Author Archives: Thomas Müller

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)

Update on the Key Information Document Requirement

In CapLaw-2016-5, Enrico Friz outlined in detail the new duty of manufacturers of financial instruments to produce a key information document (KID, Basisinformationsblatt) for all financial instruments. This duty shall be implemented by the Financial Services Act (FinSA) which will likely be set into force during the course of 2018 and is currently being debated in the Swiss Parliament. The Council of States has, with rather minor amendments, approved the draft FinSA produced by the Federal Council in December 2016. The National Council will discuss the FinSA in one of its upcoming sessions. This contribution summarizes the changes to the FinSA in respect to the KID proposed by the Council of States compared to the Federal Council’s draft FinSA outlined in CapLaw-2016-5.

By Thomas Müller (Reference: CapLaw-2017-04)

Retrocessions – Struggle Without End?

The topic of retrocessions has been in the focus of banks, asset managers, clients, pension funds, lawyers and the media ever since a verdict was given by the Federal Supreme Court in March 2006 (BGE 132 II 460). In their decision, the Federal Supreme Court decided that the retrocessions received by asset managers from banks belong to the clients of the respective asset management mandates. The topic was further intensified by another judgment of the Federal Supreme Court of October 2012 (BGE 138 III 755) which extended the duty of restitution; not only asset managers are bound to restitute the retrocessions received from banks, but also the banks have to pass on hidden commissions they receive from product providers to clients with discretionary mandates.

By Thomas Müller (Reference: CapLaw-2015-61)