Newsletters - Overview
Resolution Stay Clauses
In line with international commitments, the Swiss legislator introduced an obligation of counterparties to derivatives and certain other financial markets transactions to add resolution stay clauses to such agreements. With these clauses, the parties recognize by contract the power of the Swiss Financial Market Supervisory Authority (FINMA) to order that such contracts may not be terminated for a limited time period in the critical phase of resolution proceedings.
Tax Deductibility of Financial Sanctions: Remaining Questions and Required Action
On 26 September 2016, the Swiss Federal Supreme Court decided that fines of criminal nature cannot be deducted from taxable profit, as opposed to sanctions without penal character and sanctions aiming at the profit forfeiture. The concerned taxpayer bears the burden of proof with respect to the financial sanction's nature, which calls for appropriate action.
Data Protection with M&A Transactions
Awareness about the legitimate protection of personal data has risen sharply, at least in Europe, and observance of the applicable legal framework has become one of the foremost topics in the area of compliance. The M&A process poses particular challenges when it comes to data protection law.
The 2016 SIAC Rules
On 1 August 2016, the revised Arbitration Rules of the Singapore International Arbitration Center will enter into force. They contain new and amended provisions taking into account recent developments in international arbitration practice and further promoting the efficiency of the arbitral process.
The New “Swissness” Legislation
On 1 January 2017, new laws and regulations governing “Swissness” will enter into force. These provisions will determine the conditions under which goods and services may be labeled with a Swiss indication of origin (e.g. “Swiss Made”, “Swiss Quality”) or a Swiss cross. This newsletter provides an overview of the new provisions.
Stricter controls in Swiss free ports
Swiss free ports have attracted criticism in the past for having been partly used for illegal purposes. In reaction to this criticism, the Federal Council strengthened controls in Swiss free ports as of 1 January 2016.
Federal Act on Secondary Homes
With the acceptance of the secondary homes initiative in 2012, the construction of secondary homes in Switzerland was limited by constitutional rule. The federal act and the ordinance implementing said constitutional rule entered into force as of 1 January 2016.
Regulation of Derivatives under the FMIA
The Swiss Financial Market Infrastructure Act (FMIA), which took effect on 1 January 2016, introduces the following new obligations regarding derivatives transactions, which will be phased-in shortly: (i) an obligation to report transactions to trade repositories; (ii) an obligation to clear transactions through central counterparties; and (iii) certain risk mitigation obligations.
Recording of working time
Since 1 January 2016, the Ordinance 1 of the Federal Law on Employment provides for the possibility, under very restrictive conditions, of waiving or of simplifying the recording of working time.
BEPS Action Plan – New Rules of the Game for Switzerland
On 5 October 2015, the OECD published the final reports on the BEPS Action Plan. In essence, based on minimum standards and recommendations, it shall be ensured that the profits of multinational enterprises are taxed where they actually accrue. This newsletter analyses which minimum standards will become binding for Switzerland and when, as well as which recommendations should be taken into account going forward.
Hedged Financial Transactions: Federal Withholding Tax Refundability
This newsletter provides an overview of the refundability of federal withholding tax in hedged financial transactions, in light of three decisions recently rendered by the Swiss Federal Supreme Court.
The liability of members of governing bodies and the Swiss «Business Judgement Rule»
The governing bodies of limited companies must behave with diligence and faithfully watch over the company's interests. In case of breach of their duties, they are bound to provide compensation for damage caused. The Federal Supreme Court recently rendered favourable sentences to the directors, thereby defining the outline of a Swiss «Business Judgement Rule».
Variable remuneration - welcome clarification
In a judgment handed down on 11th August 2015, the Swiss Federal Court clarified the system of variable remuneration with regard to employment law. This important judgment provides welcome clarification for all professionals.
Increasing Importance of Data Protection Compliance - a Practical Guide for Compliance Programs
In recent years, the relevance of questions and issues related to data protection laws has increased significantly. Accordingly, companies pay more attention to data protection compliance. However, many companies find the introduction of compliance programs difficult - a practical guide on how to proceed can be of help.
Exposure to new risks of criminal liability due to the implementation of the FATF Recommendations
The Federal Act on the Implementation of the Revised FATF Recommendations will enter into force in two stages on 1 July 2015 and 1 January 2016. The new rules substantially tighten the Swiss framework for combatting money laundering, and extend beyond the financial services industry. This exposes financial intermediaries and dealers to new risks of criminal liability.
Beware when Dealing with Shareholder Loans and Cash Pools
Based on first experiences in connection with the preparation and audit of the annual financial statements 2014, it becomes clear that a recent decision of the Swiss Federal Court, and in particular the interpretation thereof by EXPERTsuisse, has forced the handling of up-stream or cross-stream loans into a straightjacket that is difficult to manage in practice. The same applies to cash pool claims within a group.
FATF-Act to Create a Need for Action for Swiss Companies
Starting 1 July 2015: New Obligations for Swiss Stock Corporations, Limited Liability Companies, Cooperatives and their Equity Holders
Crowdfunding under Swiss law – a Brief Overview
Crowdfunding allows the realization of various types of projects that probably could not be financed by traditional methods. While the authorities so far took a back seat on the issue, FINMA broke the ice by publishing a factsheet on crowdfunding at the end of 2014. This newsletter reviews the regulation applicable to crowdfunding in Switzerland from a practical perspective.
The Need for Regulation of BYOD
Bring Your Own Device has gradually become a reality today. Even in companies with no real BYOD policy, the business use of personal devices such as mobile phones or tablets occurs every day. This newsletter highlights legal risks in the context of BYOD and outlines possible solutions.
The Register Mortgage Certificate
Since January 1st 2012 the revised law of real property has been in force. As a central innovation, the register mortgage certificate was introduced. Already within this short period of time the register mortgage certificate has turned out to be a legal success story, making it worthwhile to take a closer look at this new instrument.
A New Attempt at Swiss Corporate Law Reform: Draft Federal Council Bill in Consultation
The Federal Council opened the consultation process on a preliminary draft bill aimed at a comprehensive revision of Swiss corporate law. The revision is set to affect both listed and non-listed Swiss companies. The preliminary draft bill suggests numerous amendments, including both long-awaited improvements and controversial proposals. The consultation period ends on 15 March 2015.
Recent Case Law of the Swiss federal Supreme Court in Arbitration Matters
In 2014, the Supreme Court rendered 32 decisions on petitions to set aside international arbitral awards. This Newsletter reviews the six arguably most important cases: three decisions address issues relating to the jurisdiction of arbitrators, including where a contractual pre-arbitral step has not been complied with or where a party seeks to extend an arbitration agreement to a non-signatory; the other cases concern the arbitral tribunal’s obligation to deal with the parties’ material arguments, the scope of objections against interim awards, and res judicata in international arbitration.
The End of Swiss Tax Privileges for Holdings, Finance Branches, Principal and Mixed Companies
This newsletter describes the internationally accepted yet competitive implementation of the agreement with the European Union regarding the end of the above mentioned Swiss tax privileges. The newsletter also demonstrates how Switzerland will implement Action 5 of the OECD's BEPS Action Plan regarding harmful tax practices.
The Singapore International Mediation Centre and the new AMA-Procedure – finally what users have always wanted?
Singapore enhances its status as a leading hub for international dispute resolution with the recent launch of the Singapore International Mediation Centre (“SIMC”). Aside from regular mediation services, SIMC has entered into an Arb-Med-Arb Protocol with the Singapore International arbitration Centre (“SIAC”), which may finally provide the users of alternative dispute resolution with the system they have always been longing for.
Distribution of Foreign Collective Investment Schemes to Qualified Investors – Overview
Since March 2013, the Swiss Collective Investment Schemes Act (CISA) and the Swiss Collective Investment Schemes Ordinance (CISO) regulate the distribution of foreign collective investment schemes to qualified investors in Switzerland. The transitional period for the implementation expires 28 February 2015.
M&A Transactions of Banks - From Sprint to Hurdle Race
The structuring and practical implementation of M&A transactions of banks features a multitude of specialties resulting from regulations in this sector and the banking secrecy. This is in particular true for asset deals which in the current market environment have gained in importance compared to share deals.
Legal notices and Disclaimers on Websites in the Focus of Data Protection Authorities
Almost every website has a disclaimer and other legal notices. These are often copied from other websites on the Internet and do not properly fulfill their purpose. This newsletter will give an overview on points of regulation and pitfalls requiring attention when drafting website disclaimers in light of increasing monitoring and control by data protection authorities.
FIDLEG Proposes Sweeping Reforms for the Enforcement of Clients' Rights – Switzerland, the New Claimant's Paradise?
The improvement of legal protection is a key objective of the preliminary draft for the Financial Services Act (FIDLEG). Hence, the FIDLEG contains an own chapter with measures to improve the private enforcement of rights. These measures – if they enter into force – have the potential to transform Switzerland into a claimant's paradise for financial disputes. This newsletter concludes our series of newsletters on FIDLEG and FINIG.
FSA Sets out New rules for Issuance and Listing Prospectuses
With the Federal Financial Services Act (FSA), the Federal council intends to introduce a regime for issuance and listing prospectuses in Switzerland which is comparable to the regime pursuant to the EU prospectus directive. Before publishing, prospectuses will have to be approved by a review body admitted by FINMA. Furthermore, a key information document will have to be compiled. This newsletter ties in with the newsletters published in August (FSA and FIA overview) and September 2014 (regulation of Swiss asset managers and investment advisors).
Swiss Portfolio Managers and Investment Advisors face New Regulatory Challenges
Under the current Swiss legislation, “independent” or “external” portfolio managers and investment advisors are not subject to licensing requirements or prudential supervision. As regards portfolio managers, this is about to change with the introduction of the Financial Institutions Act (FIA). In addition, the Federal Financial services Act (FSA) will introduce rules of conduct and organizational requirements for all financial services providers. This newsletter ties in with the overview of the two legislative proposals published in August 2014.
New EU Antitrust Rules for Technology Transfer Agreements – Implications for Swiss Undertakings
On 1 May 2014, new antitrust rules for technology transfer agreements took effect in the European Union. These new rules are relevant for cross-border license agreements. With Swiss authorities and courts partly drawing on those new rules when assessing them, Swiss license agreements should, therefore, also be reviewed within the transition period.
Consultation on the Proposed Financial Services Act and Financial Institutions Act – a Remodeling of the Swiss Financial Market Legislation
In June 2014 the Swiss Federal Council submitted preliminary drafts for a Financial Services Act (FSA) and a Financial Institutions Act (FIA) for consultation until mid-October. The key legislative proposals include stronger client protection in asset management and a prudential supervision regime for asset managers. In addition, a new prospectus regime allows for stronger regulation of the primary market. This newsletter provides an overview of the legislative proposals; we will publish shortly further newsletters on selected topics.
Third Reform of Corporate Taxation: Selected Topics
Due to pressure by the European Union and the OECD, Switzerland just agreed to abolish the Swiss special tax regimes for holding, mixed, domiciliary and principal companies as well as the Swiss Finance Branch regime at the earliest by 2018. This newsletter focuses on two issues linked with the related legislative proposal of the third corporate taxation reform (RIE III). The newsletter first describes the step-up and deprecation of hidden reserves resulting from a change from the privileged tax regime to the ordinary tax regime (the step-up). Secondly, it examines the notional interest deduction proposal ("NID", also called the interest adjusted corporate income tax).
Decision of the Swiss Federal Supreme Court Reveals Gaps in the Protection of Legal Privilege
In a recent decision, the Swiss Federal Supreme Court prohibited a Swiss qualified German lawyer working in the Geneva branch of a US law firm from registering with the Attorneys’ Register of the Canton of Geneva (ATF 140 II 102). This decision raises the issue of whether a lawyer not registered in Switzerland can claim legal professional privilege protection on behalf of the client under the recently revised federal procedural laws.
Shareholder Activism in Swiss Public Companies – A Growing Trend towards Hedge Fund Activism
Shareholder activism has risen significantly in recent years. Originating in the U.S., activism by hedge funds, focused on generating value for shareholders, is spreading globally, including to Switzerland. Boards and investors of Swiss public companies will be increasingly confronted with this phenomenon. In this Newsletter, we outline the activists' approach, their tools and impediments under Swiss law as well as defense strategies for Swiss target boards.
Arbitration in Derivatives
There is a trend to promote the inclusion of arbitration clauses into agreements documenting derivatives transactions. Examples are the publication by the International Swaps and Derivatives Association, Inc. (ISDA) of its ISDA Arbitration Guide with model arbitration clauses and the establishment of the "Panel of Recognised International Market Experts in Finance" (P.R.I.M.E. Finance).
VAT Developments of Real Estate Sale, Lease or Self-use
Revenues from the sale and lease of real estate are in principle not subject to VAT. Under certain circumstances an election to subject such revenues to VAT might be possible. This can be an advantage in order to reclaim paid VAT. This Newsletter outlines the various VAT treatments of revenues from real estate and also describes the latest practice statements of the Swiss VAT authorities.
Major sporting events such as the Olympics or the World Cup are often used for advertising purposes by companies that are not official sponsors – so-called "ambush marketing". This conduct is not generally prohibited in Switzerland. But there are several rules that need to be taken into account in order to avoid violating the rights of sponsors and organizers.
Draft Proposal for a New Swiss Federal Act on Financial Market Infrastructures
Published at the end of 2013, the draft proposal (Proposal) for a Federal Act on Financial Market
Infrastructures (FINFRA) provides for new rules for financial market infrastructures (FMIs) and OTCderivatives.
The New EU Succession Regulation - a Swiss Perspective
In view of the growing mobility of people, in particular within Europe, the number of cross-border successions has significantly increased in recent years. Upon the death of a person, complex questions arise, such as who has jurisdiction over the estate and which law governs succession to the estate. The European Union ("EU") has now taken a major step to facilitate cross-border successions within its Member States by adopting the new EU Succession Regulation.
The Implementation of the Minder Initiative: Ordinance Against Excessive Compensation in Listed Joint Stock Companies
On 20 November 2013, the Federal Council issued the ordinance against excessive compensation in listed joint stock companies (Ordinance). The Ordinance obliges listed Swiss joint stock companies to annually submit the top management’s compensation to shareholders for a binding vote. The Ordinance also contains far-reaching new rules on the corporate governance of Swiss public companies with direct effects on executive management, shareholders, pension funds and independent proxies. Some of the provisions are already to be complied with as of the entry into force of the ordinance on 1 January 2014.
The New restructuring Law: Overview of the Main Novelties
The new restructuring law will presumably enter into force on 1 January 2014. Without fundamentally changing the existing legislation, selective amendments to the Debt enforcement and bankruptcy Act (DEBA) and to the code of Obligations (CO) will facilitate restructurings in the future.
Bilateral Cooperation Agreement in Competition Matters
The European Union and the Swiss Confederation have signed a Cooperation Agreement in Competition Matters. The agreement provides for broad possibilities of the Swiss competition authority and the European Commission to exchange protected or confidential information they have obtained in their investigations, even without the consent of the investigated companies.
Swiss Code of Civil Procedure: First Developments and Trends
In the two and a half years since the Swiss Code of Civil Procedure came into force, cantonal and federal case law have clarified a number of questions relevant for practice. In particular the Federal Supreme Court seems intent on implementing the legislature’s objective to unify civil procedure law.
Recent Developments regarding Bonus Entitlement
At a time when high salaries and bonuses are subject of criticisms, the Swiss Supreme Court has clar-
ified the conditions under which an employee may assert a right to a bonus.
New Accounting Law: Overview of the Main Novelties
The new provisions on accounting and financial reporting came into force on 1 january 2013 and replace
the former corresponding general provisions, as well as the specific rules of corporation law. The new
accounting law is applicable as from the financial year starting at the earliest on 1 january 2015,
unless a company voluntarily decides on its earlier application.
Revision of the Stock Exchange Act: New Rules on Insider Trading
The amendments to the Stock Exchange Act that entered into force on 1 May 2013 result primarily in a comprehensive revision of the regulation against market abuse. The outcome is a major tightening of the prohibitions against insider trading and market or price manipulation.
Revision of the Collective Investment Schemes Act: Substantial Changes in the Field of Asset Management and Distribution
On 1 March 2013, most of the provisions of the revised Collective Investment Schemes Act (CISA) and of the consequently amended Collective Investments Schemes Ordinance (CISO) entered into force.
Amongst other things, the revision entails substantial changes in the field of the asset management and the distribution of collective investment schemes (CIS).
Withholding Tax-Free Interest Payments by Swiss Group Companies
Under Swiss tax law, interest payments by Swiss group companies on intra-group loans in principle
are not subject Swiss withholding tax. This newsletter outlines how Swiss subsidiaries can ensure that
their interest payments to group companies remain free of the 35% Swiss withholding tax and, in particular,
ensure that such payments are not considered taxable due to requalification into dividend payments
or payments as part of a bond-like financing or payments on customer deposits.
Loss Absorption and Bail-in for Swiss Banks
In the event that a bank is failing or where its capitalization is no longer adequate, the Swiss Financial Market
Supervisory Authority (“FINMA”) may take measures to improve such bank’s financial viability rather than
liquidating it. “Loss absorption” and “bail-in” are important instruments to support any such measures. This
is now possible as a result of a revision of the Banking Act of 8 November 1934 (the “Banking Act”) in 2011 and
the taking effect of a revised Bank Insolvency Ordinance on 1 November 2012 (the “Bank Insolvency Ordinance”)
and of a revised Capital Adequacy Ordinance on 1 January 2013 (the “Capital Adequacy Ordinance”).
The New Statute of Limitations for Warranty Claims in the Sale of Goods and in Contracts for Works
On 1 January 2013, the revised statute of limitations applicable to the sale of goods and in contracts for works entered into force. The new rules extend the statute of limitations applicable to warranty claims for defective goods or works from one to two years. For goods or works built-in or integrated into an immovable construction work in accordance with their intended use, a limitation period of five years shall apply.
On 11 March 2012 the initiative "Stop the Endless Construction of Secondary Homes" ("Secondary Home Initiative") was accepted by Swiss voters. The new constitutional provision shall essentially prevent the construction of new holiday homes in tourist regions which already have a twenty percent or greater share of holiday homes. The Federal Council has adopted an implementing ordinance which will enter into force on 1 January 2013.
Debt Push-Down: An Acquisition Structure leading to a Tax Effective Interest Deduction?
The typical structure of a Swiss target company acquired through an acquisition vehicle with subsequent merger and debt pushdown is subject to income tax limitations set by the Swiss tax authorities.
The authorities often take the view that interest expenses incurred after such merger cannot be deducted from taxable income. This newsletter outlines structuring options to minimize disadvantages resulting from the strict practice of the tax authorities.
Private Family Funds: A Swiss Opportunity
Over the last years, private family funds have developed significantly. Whereas off-shore or Luxembourg funds may be considered as natural first choices, Swiss collective investment schemes offer specific opportunities. Families must ensure that they are in a position to meet the requirements of theSwiss regulatory framework and should analyze possible tax benefits.
Stock Exchange Act Revised: Abolition of the Control Premium and Other Changes to Public Takeover and Disclosure Laws
In June 2012, the Swiss Parliament adopted a revision of the Stock Exchange Act likely to enter into
force on 1 January 2013. Through new criminal and regulatory provisions, market-abusive practices
shall be efficiently sanctioned and the respective rules aligned with international standards. The bill
also entails changes to the provisions governing public takeovers as well as the disclosure of shareholdings.
Non-Competition Clauses in Employment Law: New Developments
Employers frequently use non-competition clauses in employment contracts to protect their manufacturing
or commercial secrets and/or their particular relationship with their clients after employees cease
working for them. This Newsletter provides an overview of the latest case-law developments in this field,
taking into account some recent rulings of the cantonal courts, as well as the Swiss Supreme Court.
Basel III - New Regulatory Capital Regime for Swiss Banks
In October 2011, the Swiss legislator published a proposal for the implementation of the regulatory
framework known as "Basel III", as applicable to Swiss banks. The new regulatory capital requirements
will enter into force on 1 January 2013, with an implementation period extending to the end of 2018.
New Swiss Tools for Financial Planning
The introduction of lasting powers of attorney, living wills and health care proxies offers some welcome
new tools for planning in Switzerland. These resources are part of the adult protection reform,
which now enables customised measures.
Swiss Corruption Case shows that Corporate Criminal Law is a Wolf in Sheep’s Clothing
In a Swiss criminal investigation into bribery offences committed abroad, Alstom accepted heavy sanctions
ordered by the federal prosecutor’s office. Following the conviction of a Swiss financial institution
for money-laundering, this is the second case in which Swiss corporate criminal law – until recently
considered fairly harmless – has bared its teeth. These cases should spur companies into reviewing
their compliance systems.
Netting Arrangements in the Context of Bank Reorganisation Laws
The bank reorganization proceedings applicable to banks and broker-dealers regulated by the Swiss
Banking Act of 8 November 1934 (the “Banking Act”) were amended recently and, as regards banks
of systemic importance, amendments were made to the Banking Act in the context of the “too big to
fail” reform. Such amendments of the Banking Act have an impact on netting and collateral arrangements.
Revision of the Unfair Competition Act
The revised Unfair Competition Act (UCA) will come into force on 1st of April 2012. This revision introduces
new provisions for providers of services by means of electronic commerce and increases the
protection against certain unfair practices. The centerpiece of the revision is the introduction of a
stricter provision against abusive general terms and conditions (GTC). This could result in currently
used GTC being qualified as unfair. It is therefore advisable to have the conformity of currently used
GTC checked before the revision comes into force.
New developments on protection of customers
On March 18, 2011, the Swiss Parliament amended the Swiss Banking Act (“SBA”). The amendments, effective September 1, 2011, incorporate into the permanent law the emergency measures taken on
December 19, 2008, in response to the economic crisis and introduced new provisions aimed at
improving the protection of depositors.
The 2012 ICC Arbitration Rules
On 1 January 2012, the revised ICC Arbitration Rules entered into force. They contain new and
amended provisions promoting the efficiency of the arbitral process and dealing with the increased
complexity of commercial relationships. The new emergency arbitrator proceedings also allow the
parties to obtain urgent interim relief prior to the constitution of the arbitral tribunal.
Changes of the Real Property Law
As of 1 January 2012, the revision of the Swiss Civil Code regarding the Real Property Law will enter into force. This will result in several important changes which might have direct consequences for real property owners.
Accession to Cash Pools - Dos and Don'ts
When a Swiss company shall become a member of a group-wide cash pool, certain restrictions and conditions imposed by Swiss corporate and tax law must be carefully considered. Particular caution should be taken if any upstream securities are to be provided by the Swiss pool member. Non-compliance can in particular lead to invalidity, adverse tax consequences and personal liability for directors and officers.
Lump-sum or forfait taxation: a reform driven by pragmatism
The lump-sum taxation regime has recently been the subject of controversial debate. For some the regime appears to contradict the requirement of equal treatment whereas for others it is of great economic importance. In an effort to preserve this regime, the Federal Council presented a draft bill in July 2011 aimed at amending the federal legislation so as to facilitate understanding by the public and harmonize the legal requirements among the various Cantons.
Distribution Agreements and Competition Law
In order to bring their products to the market, manufacturers often rely on the experience of distribution partners. In drafting distribution partnerships, one must take into consideration possible competition law issues. From the perspective of Swiss competition law, it would be particularly problematic if the Swiss market becomes isolated from the European market and if the ability of the merchants to set the prices would be influenced.
The European Commission adopted on the 1st July 2010 detailed implementing measures and member
States have a deadline until the 1st July 2011 to implement the new UCITS IV Directive and the recently
adopted measures. This Newsletter gives an overview of the main amendments introduced by UCITS
IV and an analysis of the impact of the Directive on Swiss actors.
Incoterms® 2010: Revised Incoterms of the International Chamber of Commerce (ICC)
The newly revised version of the Incoterms® 2010 is available as of January 2011 and as such consti-
tutes the ongoing development of the Incoterms® 2000. The present Newsletter provides an overview
of the legal nature of the Incoterms and their application in international trade and finally, presents the
innovations of Incoterms® 2010 in comparison to the hitherto applicable version.
Capital Contribution Principle
From 1 January 2011 the ‘capital contribution’ principle will apply in Switzerland. This will have a positive impact on Swiss domiciled listed companies and on Swiss resident private investors, as it leads to a withholding tax-free and income tax-free repayment option of paid-in share premium and of other previously made contributions. However, share premium and other contributions which have been made since 1997 must be specially accounted for in the statutory accounts as reserves from capital contributions. These reserves must be notified to the Swiss federal tax authorities 30 days after acceptance of the financial statements by the general assembly in order to be entitled to a tax-free repayment.
The Federal Code of Criminal Procedure
On 1 January 2011, the Swiss Code of Criminal Procedure will enter into force. The unification of the
Code of Criminal Procedure will lead to a fair amount of amendments, some of which are formal in
nature, others of which crucially impact the criminal procedure currently in force in some cantons.
Introduction of the "Cassis de Dijon" principle in Switzerland
On 1 July 2010 the "Cassis de Dijon" Principle was introduced autonomously in Switzerland. Thus, as of this day, products that are lawfully produced in the EU may, in principle, be imported into Switzerland without any further authorization or certification. Although the implementation of the "Cassis de Dijon" principle in Switzerland provides for a number of exceptions, the result is a considerable reduction in the barriers restricting the freedom of movement of goods between Switzerland and the EU.
The Qualified Shareholder as a New Player in Public Takeover Bids Early Experiences with the Revision of 2009
In early 2009, the law of public takeover bids in Switzerland was considerably revised. The changes affect the regulatory bodies as well as bidders and target companies. The “qualified shareholder” newly enjoys the position of a party to the proceedings. Early experiences in practice confirm that a new player has entered the arena of public takeovers who should be taken seriously.
Changing Times for the attorney’s Legal Privilege?
When communicating with their attorneys, companies want to be sure that their communications will be treated confidentially. Particularly when conducting compliance assessments, e.g. in the area of antitrust, corporations want to ensure that their correspondence with both external and in-house counsel cannot be used as incriminatory evidence in a later investigation.
To Disclose or not to Disclose? A Discourse on Switzerland’s New Federal Tax Act
A new Federal Act on the Simplification of Additional Tax Assessments in Succession matters and the Introduction of a tax amnesty for voluntary Declarations (hereinafter "the New Act") will come into force in Switzerland on January 1, 2010.
The Federal Act on Book-Entry Securities - Action Points for Issuers and Banks
The Federal Act on Book-Entry Securities (“BESA”) creates a new legal framework for the professional trading of securities held with intermediaries.
New Developments in Swiss Patent Law
Swiss patent law has recently been subject to significant changes. On 1 July 2009, the principle
of regional exhaustion for patent-protected products was introduced in relation to the member States
of the European Economic Area.
Recent Developments in Swiss Law in the Field of the Protection of Depositors
Following the marked aggravation of the financial crisis in autumn 2008, the Federal Council, the Swiss National Bank and the FINMA decided that certain provisions of the Federal Law on Banks and Savings Banks applicable in case of bank insolvency should be amended.
The current economic situation is forcing companies to introduce partial unemployment or to even consider a drastic diminishment of their staff. In that event, the employer has to bear in mind that this measure is possibly covered by the provisions regarding mass dismissal.
The Revised Criminal Statute on Insider Dealing (Repeal of Article 161 (3) SPC)
The revised criminal statute on insider dealing (Article 161 of the Swiss Penal Code, “SPC”) entered into force on 1 October 2008 against the backdrop of extensive efforts to amend criminal provisions regarding stock market offences. This provision prohibits the exploitation of knowledge of confidential facts that could have an influence on the market price.
The Swiss Federal Supreme Court Grants Compensation for Clientele Upon Termination of Distribution Agreements
In a recent landmark decision, the Swiss Federal Supreme Court ruled that, under certain circumstances, exclusive distributors have a mandatory compensation claim for clientele upon termination of the distribution agreement (ATF 134 III 497).
Recent Developments in the Swiss Law on Collective Investment Schemes
On 1 January 2007, the Federal Act on Collective Investment Schemes („CISA”) came into force. Among other things, the CISA intends to enhance the position of Switzerland – one of the most important places for the distribution of investment funds – as a fund production location.
Recent Changes in Intellectual Property Laws
On 1 July 2008, a number of changes to Swiss intellectual property law entered into force. Swiss copyright law was amended as a result of Switzerland’s ratification of two World Intellectual Property Organization (WIPO) treaties and implementation of the standards set forth therein to cover recent technological developments.
Swiss Merger Control – the Newest Developments
The threshold above which mergers have to be notified (formal criterion) is considered to be relatively high in comparison to international standards. Therefore, the Swiss Competition Commission can examine relatively few mergers in the framework of preventive merger control as provided for in the Federal Act on Cartels (ACart).
Revision of the Ordinance on the Lease and Usufructuary Lease of Residential and Business Premises (OLRB)
The Swiss Federal Council revised on 28 November 2007 the Ordinance on the Lease and the Usufructuary Lease of Residential and Business Premises dated 9 May 1990 (OLRB). The revision came into effect on 1 January 2008.
Second Corporate Tax Reform Act – Main Features and Expected Results
In view of enhancing its attractiveness, in particular from a tax standpoint, Switzerland has undertaken its second important tax reform, which follows the first one which took place in 1997.
Leveraged Buyouts (LBOs) in Switzerland – Selected Legal and Tax Aspects
Switzerland is an attractive market for the purchase of companies using particularly high leverage, so-called Leveraged Buyouts (LBOs). Particularly the numerous upcoming successions in medium-sized companies offer opportunities. Furthermore, LBOs benefit from changes in the legal and tax framework which have been recently adopted and will enter into force shortly. This newsletter will describe selected legal and tax aspects of such transactions.
Legal Aspects of the Security of Electronic Data Communication
Companies can achieve significant productivity gains and cost savings thanks to a technically and organizationally thought-out use of the internet and e-mail. However, the connection of the company with the worldwide web holds its own risks and is a potential source of harassment. The existing legal provisions are not always adequate to protect against such risks. On 1 April 2007, a new legal provision prohibiting "spamming" entered into force (Article 3 lit. o of the Swiss Unfair Competition Act “UCA”). The enacting of this provision provides the opportunity to examine specific legal questions in connection with the exchange of electronic data. In particular, the topics of private data communication at the work place, mass advertising by way of e-mail (spamming) and so-called "phishing" shall be discussed.
Electronic Preservation of Corporate Documents
The adoption by most, if not all, companies of electronic means of communication, accessible through a vast number of fixed and mobile devices, has greatly increased the level of exchange of correspondence, emails and all kinds of docu¬ments. Many companies today are faced with the challenge of storing voluminous corporate records and are contemplating resorting to exclusive electronic preservation of such records. This Newsletter aims to present the legal preservation duties that exist in Switzerland today.
Rights of the creditor against the co-obligated persons of the debtor under a composition: new Decision of the Swiss Federal Tribunal
The Court’s approval of a composition agreement does not deprive the composition creditor to sue the joint debtors and other guarantors of the debtor, despite the approval of the proposed composition. In certain cases, they can escape their obligations toward the creditor. In a recent and innovative decision, the Swiss Federal Tribunal restates the acts that must be carried out by the creditor, whose claim is subject to a personal guarantee in order to preserve his rights against the joint debtors. Furthermore, this decision allows a new alternative to the actual legal possibilities (information to the co-obligated persons and offer to cede the creditor’s rights – Art. 303 para. 2 LP – and authorisation for the co-obligated persons to decide in his stead whether to ratify the composition agreement – Art. 303 para. 3 LP).
Current Developments in Swiss Corporate, Auditing and Takeover Law
Which current amendments in Swiss law are of practical importance for Swiss corporations or for Swiss and foreign investors? Where does new room to maneuvre exist and where is a need for action? This Newsletter provides the answers to these questions with regard to selected topics in the fields of Swiss corporate and auditing law as well as public takeover law.
Switzerland Ratifies the Hague Trust Convention
The Hague Trust Convention will come into effect on 1st July 2007 in Switzerland. Simultaneously, some adaptations of Swiss law will enter into force. Thus, recognition of trusts in Switzerland will be governed by predictable rules and more legal security will be given in this area. In order to further improve the trust’s status, the Swiss Tax Conference intends to publish a directive setting the rules for harmonizing the taxation of trusts. It is however not clear yet when such directive will actually be issued.
Tender Offers from a Bidder’s Point of View
Tender offer activities have increased substantially in Switzerland in recent years, and more and more hostile takeover bids and competing offers are launched. Although Swiss takeover regulations follow the principles generally known in the EU, the Swiss regulator is not bound by the EU directive on takeover bids as Switzerland is not a member of the EU. This Newsletter highlights some particularities of Swiss takeover regulations from a bidder’s point of view.
Draft of the Swiss Code of Civil Procedure
On 28 June 2006, the Federal Council (Swiss government) submitted to the Parliament its draft of the Swiss Code of Civil Procedure (CCP) with an explanatory report (“Message”). The CCP, which is presently not expected to enter into force before 2010, will for the first time provide Switzerland with a uniform regulation of civil procedure at national level. The CCP will supersede the current 26 cantonal Codes of Civil Procedure. The CCP thus represents the most important reform ever in this area of law in Switzerland.
The Procedure Before the Court of Arbitration for Sport (CAS)
Since its creation in 1984, some 1200 arbitration requests have been filed before the Court of Arbitration for Sport (CAS) in Lausanne and about 500 of those have resulted in an award. These numbers demonstrate the importance of the role the CAS has played in the resolution of sports-related disputes. This newsletter is aimed at presenting, to users of the CAS, the main characteristics of the CAS arbitral institution and explaining a few peculiarities of its procedure. In discussing various aspects of such procedure, including the rationale for the CAS’ creation, the problem of arbitrator independence, and the costs of a CAS procedure, this newsletter intends to act as a short practical guide to CAS arbitration, summarizing what parties should know prior to submitting a dispute before the CAS.
The New Federal Supreme Court Act (FSCA)
A new judiciary organization at the Swiss federal level will be instituted on 1 January 2007. A Federal Administrative Court will be created and the new Federal Supreme Court Act (FSCA) will enter into force and replace the Federal Judiciary Organization Act of 16 December 1943. The FSCA introduces many innovations and changes the appellate procedures to be followed before the Swiss Supreme Court considerably.
Preparing for the Public Takeover Bid
The board of directors (the “Board”) of a Swiss publicly held company that is the target of a public takeover – especially if hostile – is unexpectedly confronted with a plethora of complex questions that must be answered quickly. The takeover battles against Saurer AG and SIG Holding AG are only the most recent examples in a wave of hostile takeover attempts in the last two years. Through early preparation the Board can lay the organizational and technical foundations for a takeover situation that will allow it not only to react but to provide active and timely leadership in the interest of the company. As part of strategic planning, the Board of a Swiss publicly held company also has to assess and decide whether – and if answered in the affirmative – which preventive measures including defensive actions are to be taken against an undesired public takeover bid.
New Rules Applicable to the Collection and Transfer Abroad of Personal Data
The Swiss Federal Data Protection Act of 1992 (DPA) is currently being amended and it is anticipated that the new legislation, dated 24 March 2006, will become effective in the spring of 2007. The amended rules will modify the obligations of persons and companies that collect and process personal data, in particular with respect to the information that must be provided to the data subjects, and to the transfer abroad of personal data, including within a group of companies.
The Tightening of Swiss Anti-Corruption Legislation, Particularly in the Field of Bribery in the Private Sector (Private Bribery)
Barely registered by the public, on 1st July 2006, a new piece of anti-corruption legislation entered into force in Switzer¬land. The new provisions on bribery in the private sector lie at the heart of the new legislation. The key new point is the fact that a private individual receiving a bribe (passive bribery) can now also be prosecuted. The reform also introduces cor¬porate criminal liability in cases of private bribery. A further aspect of the new law provides for the criminal liability in Switzerland of bribed foreign state officials and officials of international organisations.
The Tax Consequences of a Sale of Shares – Recent Developments in Connection with Indirect Partial Liquidation
The Indirect Partial Liquidation, which takes place upon the sale of shares from an individual to a corporation is among the most controversial issues in the Swiss Taxation. A number of share deals failed in the last years due to the restrictive practice of the Tax Authorities, or did they trigger unexpected tax consequences. The new legislation on the Indirect Partial Liquidation, relevant for the first time during the 2006 summer session by the Swiss parliament is therefore to be welcomed. The new regulations will bring an enhanced legal clarity. However, the concept of Indirect Partial Liquidation has not been abolished, but merely limited. It will therefore have to be taken into consideration upon each future share deals.
The Modification of the Provision on International Administrative Assistance in the Federal Law on Stock Markets and Securities Dealing
On 1 February 2006 the revision of article 38 of the Federal Law on Stock Markets and Securities Dealing ("LBVM") came into effect. This law, which concerns international administrative assistance, was modified so as considerably to facilitate the administrative assistance that Switzerland can grant to other states in the framework of the application of regulations on stock markets and securities dealing. In particular, in its new wording, the law to a large extent eliminates what is known as the "long arm principle".
Transaction Agreements under Swiss Takeover Rules
Public Tender Offers for listed companies have lately increasingly been backed up also in Switzerland by transaction agreements between the bidder and the target company and/or its major shareholders of the target company. Although such agreements are shaped for the individual case at hand, standards begin to show, which differ from Anglo-Saxon structures due to the legal framework in Switzerland. This Newsletter exposes the typical areas of regulation of transaction agreements in Switzerland and illuminates them against the background of aspects of corporate and takeover law.
Swiss Banking Community and Financial Intermediaries Should Welcome Recent Supreme Court Decision on "Gag Orders"
There are few banks in Switzerland which have not been confronted with legal measures that essentially ban them from informing clients of the existence of an investigation concerning their account(s). Generally imposed in the context of cantonal or national investigations (mainly for money laundering or financing of terrorism) or in connection with the execution of an international request for assistance in criminal matters, such bans became a major tool frequently relied upon by investigating magistrates. Furthermore, prior to the Swiss Supreme Court decision of 25 July 2005 (ATF 131 I 425) no one questioned the legitimacy of such measures. However, in this seminal decision the Supreme Court, while upholding the legality of such bans, also ruled that they cannot be imposed without limitation. That is, they cannot be for an indefinite period and must be limited in time. While the decision has been welcomed and generally viewed by the banking industry as a move in the right direction, uncertainty still remains to the extent that the court gave no firm ruling of a permissible definitive time period for such measures. Thus, the issue of a "permissible time period" must be decided on a case-by-case basis.
Integral Revision of the Limited Liability Company Law, New Auditors' Law and Other Amendments of Corporate Law
On 16 December 2005, the Swiss Parliament adopted an integral new law on Swiss limited liability companies (LLC, GmbH or Sàrl). These revisions further entail amendments to the laws on corporations (Aktiengesellschaften, sociétés anonymes), cooperatives (Genos- senschaften, sociétés coopératives) and some further changes to other corporate laws of general application. In parallel, the Swiss Parliament adopted a new federal law on the admission and supervision of statutory auditors (law on supervision of auditors). It is expected that these new provisions will enter into force in the second half of 2007.
Major Revision of Swiss Insurance Supervisory and Insurance Contract Legislation
In essence, the ISA applies to (i) Swiss insurance and reinsurance undertakings, (ii) foreign insurance undertakings with respect to their insurance activity conducted in or from Switzerland and (iii) insurance intermediaries. It introduces supervision on insurance conglomerates and insurance groups. Moreover, it sets forth notification and approval requirements for (i) the acquisition or divestment of significant shareholdings in insurance undertakings, (ii) mergers, demergers and conversions of insurance undertakings and (iii) non-insurance activity by an insurance undertaking. It introduces new minimum capital and solvency rules. However, the ISA does not establish freedom of cross-border services. The ICA improves protection of the assured.
The Montreal Convention Takes Effect in Switzerland
On 5 September 2005, the Montreal Convention of 1999, officially the Convention for the Unification of Certain Rules for International Carriage by Air, came into force in Switzerland. The Swiss ratification brought the number of ratifying parties to 66. The new Convention consolidates and modernises the numerous rules governing the liability of air carriers in international transportation.
Dispute Resolution in M&A Transactions
In recent years, a trend has emerged of subjecting M&A contracts to arbitration instead of litigation. In addition, mediation and expert determination are playing an increasingly important role in the resolution of M&A disputes. This newsletter looks at the reasons for the trend towards arbitration and alternative dispute resolution methods and explains the various possibilities that the parties have for resolving their M&A disputes.
Public-Private Partnerships (PPP)
Public-private partnerships are already a reality in numerous countries of the European Union. The development of such partnerships in Switzerland is more and more the topic of much debate. These partnerships are likely to open new markets for private companies. They allow for the development of a specific culture of collaboration between private and public players. This is not limited to providing a good or service, but involves a number of undertakings in relation to the completion of a given public task, over relatively a significant period of time. At this time however, these partnerships are not subject to specific legal regulations.
International Arbitration of Intellectual Property Disputes in Switzerland: An Overview
Intellectual property disputes arising from licensing or research-and-development contracts are often decided before arbitral tribunals in Switzerland, even when neither the parties nor the subject matter has a direct connection to Switzerland. One of the reasons for this is that parties often experience difficulty in agreeing on the jurisdiction or the seat of the arbitral tribunal, and Switzerland’s neutrality makes it an easy compromise. Furthermore, Swiss international arbitration law has a strong international reputation for liberalism, especially regarding the arbitrability of intellectual property disputes. Considering Switzerland’s significance as a venue for international arbitration, this Newsletter will highlight some of the basic principles and particularities of Swiss arbitration procedures relating to intellectual property disputes.
Collecting, Trading, Transferring and Protecting Cultural Property
On 1 June 2005, the new Swiss Federal Act on the International Transfer of Cultural Property (“CPTA”) entered into force. The new Act deals with the protection of cultural heritage, regulates the import, transit and export of cultural property, introduces certain duties of diligence regarding the trade of cultural objects, and regulates the return of stolen or illicitly exported cultural property. Its provisions are of particular relevance to art dealers and auctioneers, museums, collectors and persons involved in the shipping and transporting of cultural property.
Tax Aspects of the Bilateral Agreements II
The Bilateral Agreements II between Switzerland and the EU will enter into force in the very near future. The Agreements, in particular the Agreement on the taxation of savings income, will effect important tax changes. These changes will have an overall major, positive impact on the attractiveness of Switzerland for multinational groups.
Electronic Data in Business and Trade: A New Law and Other Recent Developments
On 1 January 2005, the new federal law on certification services in the domain of the electronic signature (law on the electronic signature, SCSE) entered into force. It provides the legal basis for electronic signatures to have the same status as hand-written signatures, thus offering numerous new opportunities in the area of e-commerce. In this Newsletter, we will outline the practical consequences of the new rules and other recent developments in the use of electronic data in commerce and their consequences in civil litigation.
Squeeze-Out Merger - New Opportunities and Risks in the Fields of M&A Transactions, Reorganizations
On 1 July 2004, the Federal Act on Merger, Demerger, Conversion and Transfer of Assets and Liabilities (the Merger Act) entered into force (see also our Newsletters of March 2004 and May 2004). Since then, shareholders owning at least 90% of the voting rights may, in a merger procedure, force the remaining minority shareholders out of the company against payment of a cash consideration (so-called squeeze-out merger). The possibility of excluding minority shareholders is of particular interest to privately and publicly held stock corporations. It offers various new opportunities in the fields of M&A transactions, company reorganizations and going private transactions on the one hand, while creating new risks for minority shareholders on the other hand.
40 FATF Recommendations Against Money Laundering : Implementation in Switzerland and in the EU
In June 2004 the European Commission issued a proposal for its Third Money Laundering Directive, which will be the basis for upcoming negotiations between the EU Council and Parliament. In December 2004 the Finance Ministers of the 25 EU Member States already agreed on a text based on this proposal. Final adoption of this proposed Third Money Laundering Directive (“Proposed Directive”) is planned before the end of 2005. On 12 January 2005, Switzerland opened a consultation procedure aimed at amending its anti-money laundering legislation. Hence, a timely opportunity to review, and compare, both developments.
New SWX Rules for the Listing of Bonds
On 1 February 2005, the new rules of the Admission Board of the SWX Swiss Exchange (“SWX”) for the listing of bonds will enter into force. With the new provisions, the SWX is striving to attract domestic and foreign issuers seeking a place to get their bonds and notes listed. This new initiative can be viewed as a reaction by the SWX to regulatory changes in Switzerland and abroad: In Switzerland, the “principle of entrenchment”, which required a Swiss lead manager for Swiss franc bond issues, was abolished on 1 May 2004 in connection with the revision of the Swiss National Bank Act, which lead to a certain liberalization of the Swiss bond issuance market. The European Union has amended its rules governing the public offering and admission to trading of securities in its Member States, tightening certain disclosure and accounting standards.
Financial Assistance in the Form of Upstream Loans in the Light of Certain Swiss Corporate and Tax Law Aspects
Upstream loans granted by Swiss companies to their parent or affiliated companies must in each case be examined in the light of certain specific restrictions and conditions imposed by general principles of Swiss corporate and tax law. These principles do generally also apply to a Swiss company transferring its liquid funds into a central cash management or cash pooling structure of the group.
Recent Developments in the Practice Relating to the Prevention of Money Laundering in the Non-banking Sector
In line with developments on the international level, Switzerland has, in the last few years, intensified its efforts to prevent money laundering both in the banking and in the non-banking sector. This process has been conducted in tandem with a refining of the mechanisms for enforcing the pertinent provisions. In this connection, the authority entrusted with the supervision in the non-banking sector has concretized the Money Laundering Act and has provided answers to several unresolved questions.
New EU-Rules on Technology Transfer Agreements
Together with the reform of the EU-Competition Law, a new group exemption regulation for technology transfer agreements No 772/2004 ("TTBER") came into force on 1st May 2004. The TTBER introduces important new innovations. Henceforth its scope of application will also cover software licenses. The TTBER will also deal with agreements between competitors differently and more restrictively than with those between non-competitors.
Swiss Federal Law on Merger, Demerger, Conversion and Transfer of Assets and Liabilities: Tax Aspect
On 3 October 2003, the Federal Assembly adopted the Federal Law on Merger, Demerger, Conversion and Transfer of Assets and Liabilities (Merger Law), which will enter into force on 1 July 2004. Following our Newsletter regarding the corporate and contract law aspects of the Merger Law, we will herein highlight the main tax aspects of the law.
From the Investment Fund Act to the Act on Collective Capital Investments
In February 2004, the Swiss Federal Council released for comments the draft of the revised Swiss Federal Investment Fund Act (IFA). The new draft of the "Federal Act on Collective Capital Investments" ("Draft-CCIA" or "Act") aims to strengthen the position of Switzerland within the EU as a distributor and also as a producer of funds.
The New Swiss Rules of International Arbitration ("Swiss Rules")
On 1 January 2004, the new "Swiss Rules of International Arbitration" ("Swiss Rules") entered into force. The Swiss Rules were adopted by the six major Swiss chambers of commerce providing arbitration services (i.e. Basel, Bern, Geneva, Lausanne, Lugano and Zurich) and mark an important step in Swiss international commercial arbitration, as they provide arbitration users with a modern and proven set of rules, which are uniform for all of the six participating chambers.
The New Swiss Federal Act on Merger, Demerger, Conversion and Transfer of Assets and Liabilities
On 3 October 2003, the Federal Assembly passed the new Swiss Merger Act, which is expected to enter into force on 1 July 2004. The new Act provides for a comprehensive regulation of mergers, demergers, conversions of legal entities and of the transfer of assets and liabilities.
The Revised Swiss Cartel Act
On 20 June 2003, the Swiss Parliament approved partial revisions to the Swiss Cartel Act (Cartel Act). The modifications create a stricter approach towards commercial practices considered to be anti-competitive. The Competition Commission (Comco) will be granted new means to detect violations and to impose fines. The regulatory goal is to reinforce the preventive effect of the law.
Criminal Liability of Legal Entities
Until recently, only individuals were subject to criminal liability in Switzerland. Now, as of 1 October 2003, business enterprises, including legal entities, can be punished and fined for criminal conduct up to 5 million Swiss Francs.
Public Advertising of Foreign Investment Funds in Switzerland: A New Circular Letter of the Federal
The offer and distribution of foreign investment funds in Switzerland has experienced a new boom over the last years due to the increasing popularity of hedge funds, on the one hand, and to technological progress particularly with the distribution through Internet, on the other hand.
Corporate Governance - New Directive of SWX Swiss Exchange
On 1 July 2002, the Directive on Information Relating to Corporate Governance of SWX Swiss Exchange entered into force. It covers the disclosure of Corporate Governance issues, does however not set any Corporate Governance standards.
Distribution Agreements and Swiss Competition Law
There are several types of commercial contracts that may be totally or partially void for breach of competition law (Swiss Cartel Act; RS 251). Among them are distribution agreements. The treatment of such agreements by the Swiss Competition Commission (ComCo) has been uncertain for quite a long time. This uncertainty has been partially alleviated by ComCo’s publication of a notice. In the light of this development, many companies may need to review their system of distribution.