Category Archives: Regulatory

Insurance Supervision Act: Proposed New Rules regarding Distribution of Insurance Products (Point of Sale) and Insurance Intermediaries

On 21 October 2020, the Swiss Federal Council published a message to Parliament (Botschaft) (message-ISA) for a revision of the Insurance Supervision Act (ISA), including a draft of the new provisions (draft-ISA). Among others, the proposed legislation introduces new rules regarding the distribution of insurance products (point of sale), in particular insurance products with investment character (qualified life insurance products), and thereby to some extent aligns the distribution rules with those of the Swiss Financial Services Act (FSA). In addition, the proposed new rules provide for certain far-reaching changes for insurance intermediaries, which affect the scope of their services, their organization and cooperations.

By Bertrand Schott / Simon Bühler (Reference: CapLaw-2020-71)

Partial revision of the Insurance Contract Act

On June 19, 2020, the Swiss Parliament approved the partial revision of the Insurance Contract Act (ICA). The revised ICA will enter into force on 1 January 2022. The following article is intended to provide an overview of some (but not all) of the changes (for the revised ICA see https://www.admin.ch/opc/de/federal-gazette/2020/5661.pdf). References to articles of the ICA are references to the revised law (unless otherwise noted).

By Reto M. Jenny (Reference: CapLaw-2020-72)

The limited qualified investor fund (L-QIF) – an innovation for the Swiss fund and asset management industry

Swiss funds are frequently not investors’ first choice, especially as regards alternative investments for professional investors, where time to market is often crucial. High time and cost pressure means that even Swiss clients often prefer foreign funds. With the L-QIF, Switzerland will have a real alternative designed to strengthen the competitiveness of its fund and asset management industry by increasing the number of collective investment schemes launched in the country. The way has been paved, and it will ultimately be up to the politicians and the Swiss fund and asset management industry itself to make good use of the L-QIF. So far, the outlook is promising. 

By Diana Imbach Haumüller (Reference: CapLaw-2020-73)

EU Capital Markets Recovery Package: Meeting the Economic Challenges of the “COVID-19 pandemic”?

As part of its overall strategy to repair the immediate economic damage triggered by the COVID-19 pandemic, the EU is about to adopt a “Capital Markets Recovery Package”. The aim of the reform is to implement targeted amendments to existing EU capital market rules in order to promote market-based finance as one of the core pillars of the EU’s coronavirus recovery strategy. This article sheds light on the key elements of the proposed reforms and assesses whether these regulatory adjustments may also help to finally advance the highly ambitious EU Capital Markets Union project.

By Franca Contratto (Reference: CapLaw-2020-74)

General Meetings of Stock Corporations in light of the Revised Swiss Code of Obligations

The following article is intended to outline the changes in relation to the general meeting of stock corporations under the revised Code of Obligations. The formal framework of the stock corporation remains unchanged, but the reform brings increased flexibility and administrative simplification in various areas, in particular by allowing the use of electronic means of communication. It will even be possible to hold a general meeting entirely by electronic means as a virtual general meeting. 

That this virtual concept works in practice has been confirmed in times of COVID-19. Due to the pandemic, the Swiss Federal Council has temporarily permitted virtual meetings based on a special legal basis, the COVID-19 Ordinance 2. However, although this test was successfully passed, virtual general meetings will under the new law – for practical reasons – presumably be reserved to small companies with only a few shareholders. For publicly listed companies with a large number of shareholders, the concept of physical general meetings will remain de facto the only method of holding a meeting of shareholders. 

One controversial issue arose in the final stage of the parliamentary debate of the reform relating to a practice of the independent proxy holders to inform the company or its Board of Directors in advance confidentially on the instructions received. The revised law presents a compromise in this respect.

By Peter Forstmoser / Thomas Hochstrasser (Reference: CapLaw-2020-53)

Changes affecting Shareholders’ and Minority’s Rights

One of the main objectives of the corporate law reform was to strengthen shareholders’ rights. And indeed, the reform will, albeit to a limited extent, strengthen the rights of shareholders, and those of minority shareholders’ in particular, in a number of ways. Most notably, certain threshold requirements for the exercise of minority rights are lowered, while in turn a two-thirds majority vote requirement will be introduced for certain important resolutions. Perhaps most notably, information and participation rights for minority shareholders in both listed and non-listed companies are made more accessible and to some extent likely more effective.

By Remo Decurtins / Jonas Hertner (Reference: CapLaw-2020-54)

Changes for Listed Companies under the Corporate Law Reform: Gender Quotas and Say-on-Pay

The corporate law reform brings about numerous revisions to the law affecting both private and listed companies as well as a number of revisions that apply to listed companies only. The following article provides an overview of certain changes for listed companies not described elsewhere in this issue of CapLaw.

By Daniel Raun / Annette Weber (Reference: CapLaw-2020-55)

The Capital Structure of Stock Corporations in Light of the Revised Swiss Code of Obligations

The following article will provide a brief overview of the most relevant revisions of the CO regarding the share capital. Having provided an overview, we will comment on the implications that these provisions will have on companies from a practical standpoint. 

By Peter Forstmoser / Reto Seiler (Reference: CapLaw-2020-56)

Revised Corporate Law to Facilitate Accounts in Non-Swiss Currencies and Interim Dividends

On 19 June 2020, the Swiss Parliament, after a lengthy legislative process, adopted a bill on a comprehensive corporate law reform that, inter alia, permits a share capital denominated in certain non-Swiss currencies and introduces the option for interim dividends and distributions. Both of these aspects are of particular importance for multi-national groups with subsidiaries located in Switzerland. In the following, we take a closer look into each of these two new Swiss corporate law features and address the respective requirements, consequences and potential need for action.

By Patrick Schärli / Patrick Sattler (Reference: CapLaw-2020-57)

Corporate Restructuring and Insolvency under Revised Swiss Corporate Law

On 19 June 2020, the Swiss Parliament adopted the most important revision of Swiss corporate law in years, thus concluding a process started almost two decades ago. The revision also comes with a number of changes which, in particular, aim at clarifying certain aspects relating to insolvency triggers and bankruptcy filing obligations. Such clarification complements the major revision of Swiss insolvency law (Sanierungsrechtsrevision) which entered into force in 2014 and had introduced a new, facilitated debt moratorium regime. 

By Tanja Luginbühl / Anja Affolter Marino (Reference: CapLaw-2020-58)