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)

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)

The ongoing digitization of the financial services markets and the near ubiquitous availability of smartphones and mobile broadband internet resulted in a rise of digital-only financial service providers over the recent years. Unlike their more traditional “brick and mortar” competitors, these new financial service providers offer their services almost exclusively through digital channels and at significantly lower costs, making financial services, in particular securities trading, available to a broad base of retail investors. Combine this phenomenon with social media features, such as influencers, and the result is social trading. In this article, we take a closer look at the Swiss financial market regulatory aspects of social trading.

By Patrick Schärli / Patrick Schleiffer (Reference: CapLaw-2021-15)

On 22 February 2021, luxury electric vehicle manufacturer Lucid Motors agreed to go public by merging with the Special Purpose Acquisition Company (SPAC) Churchill Capital Corp IV in a deal that valued the combined company at USD 24 billion. While SPACs are a dominant trend in the U.S. (representing 198 out of the 244 IPOs to date in 2021), continental Europe lags behind, with an incipient revival of SPACs in Germany with the IPO of Lakestar SPAC 1 SE in February 2021. To date, no SPAC has been incorporated in Switzerland and listed on Swiss stock exchanges. However, this might be about to change, not least because of the revision of the law on joint-stock corporations. Against this background, this article briefly highlights the key aspects of a SPAC-transaction and discusses three selected issues these vehicles have to face in Swiss capital markets law and regulation. 

By Claude Humbel / Thomas van Gammeren (Reference: CapLaw-2021-16)

Annexes 1 and 2 of FinSO require the indication of at least a maximum price in the prospectus. There are many situations where that is not adequate. This contribution shows that there is no need to apply the annexes of FinSO word by word, but that there is interpretative leeway. In that setting, article 41 FinSA that provides the review body the power to grant exemptions has mainly the function of granting certainty over and above the interpretation of the checklists.

By Matthias Courvoisier (Reference: CapLaw-2021-03)

On 1 December 2020, the revised duty to publish an approved prospectus in accordance with the Financial Services Act and the Financial Services Ordinance became fully effective. A remarkable novelty of the new Swiss prospectus regime is the introduced set of explicit exemptions and alleviations from the duty to publish a prospectus, which are largely in line with the Prospectus Regulation (earlier, the Prospectus Directive) of the European Union. This article discusses the exemptions and alleviations from the duty to publish a prospectus under the new Swiss prospectus regime from a practical perspective.

By Valentin Jentsch (Reference: CapLaw-2020-70)

On 3 April 2020, the Swiss Federal Council opened the consultation procedure for the new proposal to reform the Swiss withholding tax system and the proposal to abolish the transfer stamp duty on trading in certain securities. The consultation period ended on 10 July 2020. The present article provides for an overview over these proposals.

By Stefan Oesterhelt (Reference: CapLaw-2020-41)

The Swiss Parliament has adopted a motion requiring the Swiss government to propose a new regulation addressing the conflicts of proxy advisers. The primary focus seems to be on ISS and to a lesser extent on Glass Lewis for their potential dual role in advising institutional investors on voting recommendations and listed companies on corporate governance and compensation. In the absence of a physical presence of these proxy advisers in Switzerland, it remains unclear how the required legislation could be effectively enacted. 

By Thomas U. Reutter / Annette Weber (Reference: CapLaw-2020-24)

(Reference: CapLaw-2020-13)

Under the newly enacted Financial Services Act (FinSA), a prospectus is not required if a public offer of securities is directed at less than 500 investors. This article considers the new 500-investor rule from a practical perspective and proposes guidelines for potential offerors who wish to rely on it.

By David Weber (Reference: CapLaw-2020-14)