Author Archives: François Rayroux

Funds Distribution under the new financial market law architecture

On 1 January 2020, the new Financial Services Act (FinSA) and the Financial Institutions Act (FinIA) will enter into force. This entails various changes of existing regulatory concepts in the context of distribution and management of collective investment schemes. From today’s CISA perspective, the term “distribution” under Art. 3 CISA plays a fundamental role. Under the new regulatory regime, an exclusive focus on the new concept of the offer falls short in explaining the rules governing the distribution of funds. Particularly with regard to the behavior at the point of sale, the concept of financial services is of primary importance. 

By Diana Imbach Haumüller / François Rayroux (Reference: CapLaw-2019-56)

New Delegation Rules under FinSA/FinIA as well as CISA: Impact on supervised and non-supervised entities

The purpose of this article is to provide a first analysis of the key features and challenges, which will result from the shift from the current delegation rules under CISA to the new regulations on “delegation” pursuant to FinSA, FinIA and CISA. The new regulatory framework concerning the transfer of tasks to third parties covers a variety of factual and operational circumstances and set-ups. One of the main particularities of the new framework is that it is untested for the newly prudentially supervised entities under FinIA (i.e. trustees and asset managers) and that it will, at least in part, wherever financial services are provided, also impact non-supervised entities. The new rules may have consequences for both Swiss institutions delegating financial services and other tasks and international service providers with whom Swiss financial institutions will conclude delegation schemes.

By François Rayroux (Reference: CapLaw-2019-40)

Funds Distribution under FinSA/FinIA: A change of paradigm

The introduction of the concept of an “offer” according to Art. 3 let. g FinSA as a replacement of the current notion of a “distribution” pursuant to Art. 3 CISA will lead to a number of consequences for the Swiss financial industry as well as for foreign financial services providers acting on a cross-border basis into Switzerland. The new concept is more flexible as the current notion of a “distribution”, but also raises a number of delicate questions which need to be clarified. The object of this article is to provide a first analysis of the salient features and challenges of the current and future regimes and their practical consequences with a specific focus on the placement of collective investment schemes in Switzerland.

By Diana Imbach / François Rayroux (Reference: CapLaw-2018-64)

New Ordinance of FINMA on the Insolvency of Banks: A Critical Assessment

Based on articles 28 (2) and 34 (3) of the Banking Act, as amended (BA), the Swiss Financial Market Supervisory Authority (FINMA) has opened on 16 January 2012 a consultation, which has come to an end on 2 March 2012, on the complete revision of the FINMA Bank Bankruptcy Ordinance (BBO-FINMA). More precisely, the BBO-FINMA is intended to be repealed and replaced by the new Ordinance of the Federal Authority on the supervision of financial markets on the Insolvency of Banks and Securities Dealers (Bank Insolvency Ordinance-FINMA, BIO-FINMA or the Ordinance). The current draft of the BIO-FINMA provides for some innovations which are worth noting and may even have an impact on the competitiveness of the Swiss financial place as regards derivatives, securities lending and repo transactions.