Welcome to CapLaw

CapLaw is the first electronic newsletter providing up-to-date information on legal and regulatory developments, concise articles and reports on deals and events with particular focus on Swiss capital markets. CapLaw is addressed to all Swiss and international lawyers, in-house counsels financial institutions and corporates as well as those who are interested in the Swiss capital markets.

The Editors
René Bösch, Homburger AG
Franca Contratto, University of Lucerne
Benjamin Leisinger, Homburger AG
Ralph Malacrida, Bär & Karrer AG
Thomas Reutter, Advestra AG
Patrick Schleiffer, Lenz & Staehelin
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP

Position Paper regarding selected Aspects of the Financial Services Act (FinSA)

With the entry into force of the Swiss Financial Services Act (FinSA) as of 1 January 2020, new regulatory duties and requirements for Swiss and foreign financial service providers which are active in Switzerland or serve Swiss clients proactively on a cross-border basis were introduced. However, the practical application of the new law revealed that various newly introduced legal terms and concepts of the FinSA require more specific explanation and some statements made in the course of the implementation process require clarification.

The authors of this position paper are practicing lawyers working with various Zurich based law firms who regularly exchange views on new legal developments and share their experience in the application and implementation of the law. The views and positions expressed in this position paper are those of the individual contributing authors and not those of the respective law firms or other market participants.

(Reference: CapLaw-2021-30)

Are Insurers Permitted to Operate Innovative Business Models?

Swiss (re)insurers are generally prohibited from conducting business not directly linked to the insurance business. The dispatch of the Swiss Federal Council on the partial revision of the Insurance Supervision Act states that the current prohibition of insurance companies to conduct non-insurance business will remain in place. At the same time, the partial revision of the Insurance Supervision Act aims to enhance the competitiveness of the Swiss insurance sector and to further innovative business models. To overcome this conflict of objectives, the authors argue for a narrow interpretation of the prohibition on the conduct of non-insurance business and outline ways for insurers to operate non-insurance business.

By Hansjürg Appenzeller / Kevin M. Hubacher (Reference: CapLaw-2021-31)

LIBOR transition remains fraught with risk

Publication of most LIBOR rates will be discontinued at the end of this year. The effects on financial contracts, which refer to a discontinued LIBOR rate to determine a payment obligation and which have a term that runs beyond discontinuation, are unclear and may depend on the facts surrounding the individual contract. Legislators in key interbank markets have adopted or are in the process of adopting legislation governing LIBOR discontinuation and its legal effect on affected contracts. Switzerland is not adopting such legislation. As a consequence, the situation of parties to affected contracts governed by Swiss law remains unclear, and both sides are exposed to significant (litigation) risk.

By Thomas Werlen / Jonas Hertner / Dusan Ivanovic (Reference: CapLaw-2021-32)

Reverse Factoring: Growing Spot on the Radar of Capital Market Transactions

The Greensill case and other recent corporate breakdowns have turned the spotlight on the risk of supply chain finance. Since the outbreak of COVID-19, demand for supply chain finance has soared. The main concern is a lack of transparency. The implications of supply chain finance on capital market transactions are highlighted in this article. 

By Ralph Malacrida (Reference: CapLaw-2021-33)

Ad Hoc Publicity – New Rules And Their Consequences For SIX Listed Issuers

As of 1 July 2021, SIX Exchange Regulation Ltd (SER), the supervisory authority for issuers listed at SIX Swiss Exchange (SIX), revises the rules on ad hoc publicity in the Listing Rules (LR) and the Directive on Ad hoc Publicity (DAH). While the changes might not seem substantial at first, some details of the revised provisions are delicate, and issuers should carefully consider some practical consequences when releasing information in the future. The following article contains an overview of the changed provisions, including an initial assessment of their consequences. 

By Andrea Rüttimann (Reference: CapLaw-2021-34)

Swiss Withholding Tax Reform

The Swiss Federal Council proposes the abolition of withholding tax on bond interest in its dispatch. The proposed abolition will make it easier for companies to issue their bonds from Switzerland. There is also a chance that intra-group financing activities will increase in Switzerland.

By Stefan Oesterhelt / Philippe Gobet (Reference: CapLaw-2021-35)

The use and modalities of opting out/up clauses – new developments

In the case of MCH Group AG, the Swiss Takeover Board and FINMA refined their practice regarding the consent of the majority of the minority shareholders to the introduction of an opting out/up by clarifying who is considered to be a minority shareholder and which quorum is used to determine the voting result.

By Dr. Dieter Dubs / Fabienne Perlini-Frehner (Reference: CapLaw-2021-36)

VectiveBio Holding AG’s IPO on Nasdaq

On 9 April 2021, VectivBio Holding AG announced its initial public offering and listing of its shares on Nasdaq (ticker symbol VECT). VectivBio is a clinical stage biopharmaceutical company focused on the discovery, development and commercialization of innovative treatments for severe rare conditions for which there is a significant unmet medical need. Through its IPO, at USD 17 per share, VectivBio raises gross proceeds of USD 146.6 m (including greenshoe). At market close on the first day of trading, VectivBio had a market capitalization of USD 824m.

Credit Suisse Group AG’s Issuance of Mandatory Convertible Notes

On 22 April 2021 Credit Suisse Group AG announced the placement of two series of Mandatory Convertible Notes (CHF 865,000,000 3.00 per cent. Series A Mandatory Convertible Notes due 2021 (Series A) and CHF 890,949,000 3.00 per cent. Series B Mandatory Convertible Notes due 2021 (Series B)), issued through a Guernsey finance vehicle and convertible into a total of 203 million shares of, and guaranteed by, Credit Suisse Group AG. The MCNs were priced on 23 April after close of trading and issued on 12 May.

PolyPeptide Group AG’s IPO on SIX Swiss Exchange

On 29 April 2021, PolyPeptide Group commenced trading on SIX Swiss Exchange. The offering consisted of 3,125,000 new shares as well as 8,396,740 existing shares offered by PolyPeptide’s sole shareholder, Draupnir Holding B.V., at an offer price of CHF 64.00 per share (with an over-allotment option of up to 1,728,261 existing shares), which implies a total placement volume of up to CHF 848m. Trading opened at CHF 72.50 and closed on the first trading day at CHF 78.20, which represents a rise of more than 22 per cent from the offer price and implies a total market capitalization of CHF 2.59bn.

PolyPeptide is a Contract Development & Manufacturing Organization (CDMO) focusing on proprietary and generic GMP-grade peptides used by pharmaceutical and biotech companies in approved pharmaceutical products, drugs in clinical development as well as in generic products. Dating back to 1952, PolyPeptide today manufactures around one-half of all currently approved peptide drug substances with a global footprint of six GMP-certified facilities in Europe, the U.S. and India. As a multinational company with more than 900 employees, its diversity brings breadth, depth of knowledge and experience to the group. PolyPeptide has grown organically and by selective acquisition of existing expertise, culminating in its position today as a leader in outsourced peptide manufacturing.