Meyerlustenberger Lachenal


Meyerlustenberger Lachenal Ltd. (MLL) is one of the most reputable international law firms in Switzerland. The firm’s experienced and dynamic lawyers form a strong team of specialists that stand for innovative and solution-focused services. With offices in Zurich, Geneva, Zug, Lausanne and Brussels MLL is present in the key Swiss economic centres and in the heart of Europe. The firm has a China Desk, a Latin America Desk and a Turkey Desk that serve as a gateway to and from these regions.

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Banking & Financial Services

Reporting of beneficial ownership: impact on listed companies
Switzerland | 27 April 2021

Swiss law rules that the ultimate beneficial owners of a Swiss corporation must be disclosed to the company. Parliament recently enacted a revision of the disclosure provisions, streamlining the notification obligations and providing stricter penalties for non-compliance. This article outlines the notification obligations for Swiss corporations with registered shares, when either the target company or the acquirer is listed or when the target company has issued its shares as registered securities.

New DLT law in practice: tokenisation of rights
Switzerland | 06 April 2021

In 2020 Parliament passed a law to incorporate crypto assets and digital ledger technologies into Swiss law. This article focuses on the practical implementation of the recent changes to the Code of Obligations which provide for the introduction of ledger-based securities. This new form of dematerialised security enables the digitalisation and tokenisation of rights and financial instruments and digital transfers based on blockchain technology.

LIBOR transition challenges
Switzerland | 16 March 2021

The UK Financial Conduct Authority will stop supporting the London Interbank Offered Rate at the end of 2021. According to the National Working Group on Swiss Franc Reference Rates, the Swiss Average Rate Overnight is the proposed replacement standard. This article explores the challenges that the transition period poses for national and global market participants.

Risk profile, implied acknowledgment of transactions and how to set about starting litigation
Switzerland | 16 February 2021

The Federal Tribunal recently rendered a decision in a dispute between a bank and its client, a company, with regard to a (discretionary) wealth management contract. The claimant sought damages from the bank for a loss relating to the performance of the contract. This decision serves as a reminder of the fundamental issues of substantive law and gives food for thought in terms of the legal and strategic approaches to resolving a conflict.

New licensing requirement for investment managers
Switzerland | 19 January 2021

The Financial Institutions Act came into force on 1 January 2020. It is crucial that the top management bodies of independent and external investment managers which manage the portfolios of individuals recognise whether a licensing obligation exists and whether appropriate measures must be initiated, as they are responsible for compliance with and the implementation of licensing obligations.

New DLT law is just around the corner
Switzerland | 12 January 2021

In September 2020 Parliament passed a law to incorporate crypto assets and digital ledger technologies (DLT) into Swiss law. Once the law enters into effect, Switzerland's already high-quality regulatory framework for crypto will become one of the most advanced in the world. The government's explicit approach is to create the best possible framework conditions so that Switzerland can establish itself and evolve as a leading, innovative and sustainable location for fintech and DLT companies.

499 + 1 = 500? Practical approach on new 500-investor threshold exemption
Switzerland | 29 September 2020

In January 2020 the Financial Services Act and the Financial Services Ordinance entered into force and established comprehensive rules relating to prospectuses offering securities and the admission of securities to trading, which will apply to all types of financial instrument. This article discusses the 500-investor threshold's practical implications and compliance requirements and its expected impact on the Swiss market.

Execution-only relationship – transactions without mandate and calculation of damages
Switzerland | 21 July 2020

A recent Supreme Court decision concerned a case in which a relationship manager with a Swiss bank left said bank without the relevant bank's client being informed. The relationship manager continued to act on the client's behalf and gave investment orders to the bank, which the bank followed. The bulk of the court's decision discussed how the relevant damages suffered by the client must be alleged, contested and determined.

FINMA brings more clarity to transition regimes for financial service providers
Switzerland | 14 July 2020

The new Financial Services Act and Financial Institutions Act came into force on 1 January 2020 together with their implementing ordinances. These laws oblige the Swiss Financial Market Supervisory Authority to license several new bodies, such as supervisory organisations responsible for supervising portfolio managers and trustees, as well as registration bodies responsible for maintaining client advisory registers.

FINMA: temporary exemptions for banks due to COVID-19 crisis
Switzerland | 15 May 2020

The Swiss Financial Markets Supervisory Authority (FINMA) recently provided banks with clarifications on dealing with COVID-19 credits with federal guarantees within the framework of the capital and liquidity requirements and temporary exemptions relating to the leverage ratio. FINMA will likely further specify these guidelines or issue additional rules depending on the development of the current crisis.

Transaction-related investment advice under FinSA
Switzerland | 08 May 2020

The Swiss Financial Services Act's more liberal approach to transaction-related investment advice is a significant facilitation for financial service providers, but may also lead to uncertainties regarding its actual scope. This article aims to give some clarity on the sometimes difficult differentiation between the different types of investment advice and on the regulatory consequences of this categorisation.

Treatment of retrocessions and other third-party payments under FinSA
Switzerland | 17 April 2020

The new Financial Services Act has introduced a number of regulatory obligations for financial service providers towards their clients. In particular, the new act contains a section entirely dedicated to the prevention and handling of conflicts of interest, dealing among other things with retrocessions and similar benefits received by financial service providers from third parties.

Liquidity aid for businesses in times of coronavirus: emergency aid through guaranteed COVID-19 bridging loans
Switzerland | 03 April 2020

The COVID-19 pandemic and the measures against it taken by states all over the world will have serious consequences for the Swiss economy. To cushion the economic consequences of the spread of the coronavirus, the Federal Council recently approved a comprehensive package of measures worth Sfr32 billion. A key component of this package is government-backed loans to provide liquidity for businesses.

FinSA/FinIA: proposed follow-up regulation by FINMA
Switzerland | 21 February 2020

The new Financial Services Act and Financial Institutions Act came into force on 1 January 2020 together with the implementing ordinances. These laws oblige the Swiss Financial Market Supervisory Authority (FINMA) to pass a number of implementing provisions pertaining to selected, mainly technical issues. As a result, FINMA has created a new, streamlined Financial Institutions Ordinance and introduced amendments to several current FINMA ordinances and circulars.

Rules of conduct under FinSA
Switzerland | 20 December 2019

The rules of conduct under the Federal Act on Financial Services (FinSA) are based on the EU Markets in Financial Instruments Directive (2004/39/EC) and the EU Markets in Financial Instruments Directive (2014/65/EU) and simplify market entry to the European Union for Swiss financial services providers. This article examines the FinSA's rules of conduct and the differences regarding the suitability and appropriateness duties under Swiss and EU legislation.

New DLT/blockchain regulatory framework ready for parliamentary deliberations
Switzerland | 06 December 2019

The Federal Council recently adopted a dispatch on the further improvement of the framework conditions for distributed ledger technology (DLT) and blockchain. The proposal aims to increase legal certainty, remove barriers for DLT-based applications and reduce the risk of abuse. This federal legislation, which is designed as framework legislation, proposes specific amendments to nine existing federal acts, covering both civil and financial market law.

New financial service and financial institution regulations
Switzerland | 29 November 2019

The Federal Council recently decided to put the Swiss Financial Services Act and the Swiss Financial Institutions Act into effect on 1 January 2020 as the last part of the financial market regulations reform project. Concurrently, the Federal Council published the final versions of the implementing ordinances with some amendments compared with the previous draft versions published during the public consultation period.

Trends and developments in Swiss financial market regulation
Switzerland | 22 November 2019

Besides securing Switzerland's access to the EU financial markets, new objectives have emerged from advancing digitalisation and technological progress in the banking sector. One of those is undoubtedly Switzerland's goal of retaining its status as a leading country in the booming fintech and blockchain industry, which has led to significant developments towards a more flexible, technology-friendly legislative framework.

Granting of security interests in Switzerland
Switzerland | 08 November 2019

Until recently, Swiss regulations had no direct impact on the country's corporate lending market or the documentation of corporate loans. However, the increased capital and liquidity requirements that apply to banks in Switzerland have led to an increased focus on the collateral aspects of lending transactions to ensure that particular transactions can be treated as secured for regulatory purposes. This article provides an overview of the forms of security interest that can be taken over assets in Switzerland.

Client segmentation under FinSA
Switzerland | 01 November 2019

This article provides a short overview of the Financial Services Act's (FinSA's) new cross-sectoral client segmentation. The classification of clients under FinSA plays a significant role in the application of its rules of conduct, product documentation requirements and other provisions. The article also explains the main differences between client segmentation under the EU Markets in Financial Instruments Directive and FinSA.

Classification of stablecoins under Swiss law: FINMA publishes amended guidelines
Switzerland | 11 October 2019

The Swiss Financial Market Supervisory Authority (FINMA) has published a supplement to its Guidelines on Initial Coin Offerings which outlines how it plans to apply provisions of Swiss supervisory law to projects involving so-called 'stablecoins'. The supplement was prompted by a steady increase in the number of stablecoin projects submitted to FINMA since 2018, including a submission from the Geneva-based Libra Association for an assessment of its Libra project under Swiss supervisory law.

FDF proposes key changes to FinSO and FinlO
Switzerland | 27 September 2019

The Federal Department of Finance has proposed changes to the draft Financial Services Ordinance (FinSO) and Financial Institutions Ordinance. A significant and welcome change in the draft FinSO is that key information documents for collective investment schemes can be written in English. The Federal Council will make the final decision on the wording of the ordinances and their entry into force in November 2019.

Federal Council proposes several changes to financial market regulations
Switzerland | 05 April 2019

The Banking Act currently regulates only the main features of the restructuring procedure for banks, while more detailed provisions are given in the Swiss Financial Market Supervisory Authority Banking Insolvency Ordinance. To strengthen legal certainty, the Federal Council has initiated a consultation on a partial revision of the Banking Act, meaning that the rights of bank owners and creditors will now be regulated on the legislative level.

How will Federal Council distributed ledger technology and blockchain report affect banking sector?
Switzerland | 22 February 2019

The Federal Council recently released a comprehensive report on the inclusion of blockchain technology within the Swiss legal framework – in particular, the Swiss banking regulations. With this comprehensive report, the Swiss government has confirmed its established approach of applying Switzerland's existing and principle-based laws in a technology-neutral way. However, it also acknowledges that the existing legal framework will require punctual amendments to solve specific issues.

Federal Council adopts implementing provisions for new fintech licence
Switzerland | 21 December 2018

From 1 January 2019 companies that operate beyond the core activities characteristic for banks will be able to accept public funds of up to Sfr100 million on a professional basis subject to simplified requirements. During its recent meeting, the Federal Council set into force an amendment to the Banking Act to promote innovation in the fintech area and to remove barriers to market entry for fintech firms.

New registration obligations for Swiss and foreign client advisers
Switzerland | 14 December 2018

Parliament recently passed the bills of the new Financial Services Act and Financial Institution Act. These laws will have a significant impact on the Swiss banking and financial market landscape, as well as the applicable rules for providing banking and financial services both within and on a cross-border basis into Switzerland. This article provides a short overview of the new concept of 'client advisers' and the foreseeable implications of the new rules for banks and other financial service providers.

Swiss financial market infrastructure regulation – revised reporting duties
Switzerland | 28 November 2018

The Federal Council recently agreed to push back the effective date for derivative transaction reporting duties for small non-financial counterparties to 1 January 2024 and extend the corresponding transitional period. The corresponding amendment to the Financial Market Infrastructure Ordinance will enter into force on 1 January 2019. The reporting duties already in force for other market participants are unaffected.

New SBA guidelines on corporate bank accounts for blockchain companies
Switzerland | 12 October 2018

The Swiss Bankers Association recently published new guidelines for its member banks, including recommendations on how to treat and onboard blockchain companies for ordinary corporate bank accounts. As Switzerland has strict laws and due diligence requirements in place governing financial transactions, banks must carry out careful checks when opening an account, particularly for companies with links to blockchain and initial coin offerings.

New regulatory framework to strengthen integrity of Swiss financial sector
Switzerland | 14 September 2018

Swiss authorities are building a financial regulatory regime which considers the most important recommendations from the Financial Action Task Force's mutual evaluation report on Switzerland. To this end, the Federal Council has initiated a consultation on amendments to the Anti-money Laundering Act and the Swiss Banking Association has published its revised agreement on Swiss banks' code of conduct regarding the exercise of due diligence.

Swiss financial regulators ahead of EU curve
Switzerland | 17 August 2018

The European Parliament and the European Council recently expanded the scope of the EU anti-money laundering and combating the financing of terrorism regulations to cover cryptocurrencies and virtual currencies. While the directive will not apply directly to Switzerland, Swiss financial regulators remain ahead of the curve. Since 2016, the Financial Market Supervisory Authority has widened the scope of certain banking regulations relating to money transmitting and remitting services to cover virtual currencies.

SIX to launch fully integrated digital asset trading, settlement and custody service
Switzerland | 27 July 2018

The SIX Swiss Exchange recently announced that it is building a fully end-to-end and fully integrated trading, settlement and custody infrastructure for digital assets. The planned 'digital asset ecosystem' – the SIX Digital Exchange (SDX) – will put banks at the heart of transactions in the digital space and offer them a solid foundation to pursue their business strategies for digital and tokenised assets; however, their role in the future SDX remain unclear.

FINMA publishes supervisory notification on token sales and ICOs
Switzerland | 20 October 2017

The Swiss Financial Market Supervisory Authority (FINMA) recently published a supervisory notification on token sales and initial coin offerings (ICOs). It also announced that it was examining whether several ICOs or their corresponding business models violate supervisory provisions. A FINMA press release cited the marked increase in ICOs carried out in Switzerland in recent months as a reason for its action.

FINMA implements new fintech rules in circular on public deposits with non-banks
Switzerland | 22 September 2017

The revised Banking Ordinance of April 30 2014 regarding new financial technology (fintech) regulations recently entered into force. The purpose of the proposed revisions is to enhance the competitiveness of Switzerland as a major fintech hub and to create an appropriate regulatory framework for fintech companies providing services outside traditional banking business by taking into account the specific risk-profile of their business models and service offering.

Government adopts first part of revised fintech rules to ease regulatory framework
Switzerland | 14 July 2017

The Federal Council recently adopted an amendment to the Banking Ordinance scheduled to enter into force on August 1 2017. Following the announcement of the revised rules, the Swiss Financial Market Supervisory Authority published a guidance note regarding the new rules on public deposits. The revision will reduce some of the barriers to market entry for financial technology firms.

Federal Council – banking deposit protection scheme and segregation of custody assets
Switzerland | 07 July 2017

The Federal Council recently announced its intention to strengthen the existing deposit protection scheme through a series of different measures. The council also intends to strengthen the regulations on the protection of securities and other assets deposited by clients with a bank or securities dealer by introducing a new obligation to keep those assets segregated from other clients' assets on a sub-custodian level, to the extent that the chain of custody is in Switzerland.

Federal Council proposes revisions to boost fintech innovations
Switzerland | 28 April 2017

The Federal Council recently initiated a consultation procedure on new financial technology (fintech) regulations. The revised provisions ensure that barriers to market entry for fintech firms are reduced and that Switzerland's competitiveness as a financial centre is maintained. The consultation will end on May 8 2017. The proposed amendments to the Banking Act and the Banking Ordinance aim to ease the regulatory framework for innovative fintech companies, while taking into account potential risks.

May bank refuse to execute client's transfer instructions for tax compliance reasons?
Switzerland | 03 March 2017

The Appellate Court of the Canton of Geneva recently rendered three decisions ordering a bank to execute the clients' transfer and payment instructions. The latest decision leaves the door open for banks to argue that the legislation of the state where taxes ought to be paid on assets held for a foreign client's account have changed and that, as a result, they now incur the risk of criminal charges which would prevail over their obligation to execute their clients' payment or transfer instructions.

Supreme Court ruling on banks' liability in relation to external asset managers
Switzerland | 30 September 2016

The Supreme Court recently upheld a bank's liability for damages caused to its client by an external asset manager. While this ruling has confirmed settled case law in considering that a bank is in principle not liable for the wrongdoing of an external asset manager, it also clarifies under which conditions a bank may have a duty of disclosure regarding its clients. It appears that banks must ensure a complete transmission to the client of all information that they possess.

Impact of new financial market infrastructure regulation
Switzerland | 22 July 2016

When the Financial Market Infrastructure Act and the Financial Market Infrastructure Ordinance came into effect, specific transitional periods were granted to fulfil new duties, as well extended record-keeping duties for banks as participants on trading venues regarding securities transactions. As organised facilities that are not subject to authorisation may be operated only by banks, securities dealers, stock exchanges or multilateral trading venues, these changes will affect banks significantly.

FINMA supports regulatory changes in favour of fintech industry
Switzerland | 08 April 2016

According to the Banking Act, several financial technology business models carry out some sort of banking business where a full banking licence would be too expensive and would not reflect the business model properly. As a result, the Financial Market Supervisory Authority supports a new licensing category for financial innovators carrying out some banking activities, but with limited acceptance of client assets and no lending activity.

FINMA issues industry bans
Switzerland | 04 March 2016

According to the Federal Act on the Swiss Financial Market Supervisory Authority (FINMA), if FINMA detects a serious violation of supervisory provisions it may prohibit the individual responsible from acting in a management capacity over any person or entity subject to its supervision. FINMA has announced that it will use enforcement action as a visible means of achieving its supervisory objectives.

Crowdfunding platforms and banking licences
Switzerland | 11 December 2015

The Swiss Financial Market Supervisory Authority recently issued a factsheet on crowdfunding, in which it examined when crowdfunding platform operators and project developers must obtain a licence before commencing activities. It has also proposed to introduce into law a new category of banking licence that will formally place crowdfunding platform operators under its supervision while alleviating constraints.

Privacy protection and banking secrecy
Switzerland | 25 September 2015

A recent amendment to the Federal Act on Banks and Saving Banks has increased criminal liability for the violation of banking secrecy. Previously, although the theft, sale or transfer of bank data was prohibited, third parties benefiting from stolen data were not penalised. Under the amended act, intentional disclosure of data covered by banking secrecy will be subject to a penalty of up to three years' imprisonment or a monetary fine.

Financial Services Act and Financial Institutions Act: results of consultation procedure
Switzerland | 24 April 2015

The federal government has published the results of the consultation on the Financial Services Act and the Financial Institutions Act. It instructed the Federal Department of Finance to carry out various adjustments regarding enforcement and draw up a dispatch by the end of the year. It has also taken initial decisions on the direction to be taken regarding the controversial topics in the consultation procedure.

Seizure in Switzerland of assets held at foreign branch of Swiss bank
Switzerland | 06 February 2015

The Federal Supreme Court recently confirmed the possibility of freezing the assets of a debtor at the registered seat of a Swiss bank where the debtor is a client of the bank's foreign branch. While banks are often not allowed to control the bank accounts of their foreign branches because of regulatory prohibitions, the head office is regularly informed of certain activities taking place abroad, including the seizure of assets.

Federal Financial Services Act and Federal Financial Institutions Act
Switzerland | 12 December 2014

The Federal Financial Services Act aims to enhance customer protection while providing additional means in case of disputes. The Federal Financial Institutions Act aims to regulate the supervision of financial service providers offering asset management services. In principle, the rules for financial institutions that already require a licence will be taken over from applicable legislation, but will be harmonised according to activity.

New self-regulatory measures for Swiss banks on granting mortgages
Switzerland | 08 August 2014

The Swiss Bankers Association recently amended guidelines for the examination, evaluation and treatment of loans guaranteed by pledges on real estate and guidelines on minimum requirements for mortgages. The guidelines apply to both owner-occupied residential properties and investment property apartment buildings.

Banks' liability regarding actions of bank account proxy holders
Switzerland | 16 May 2014

In a recent decision the Federal Supreme Court specified that a bank is not required to monitor transactions carried out by a client on its bank account, according to the Federal Anti-money Laundering Act. A bank must ensure that the agent's actions are covered by a valid proxy. It is the client's responsibility to control the agent's actions. The bank must intervene only if it is certain that the agent is clearly acting to the detriment of the principal.

Swiss Bankers Association adopts revised Portfolio Management Guidelines
Switzerland | 07 March 2014

The Swiss Bankers Association recently adopted revised Portfolio Management Guidelines. The new guidelines are self-regulatory trade regulations applicable to banks. The guidelines include specific mention of repurchase and reverse repurchase transactions, as well as securities lending and borrowing transactions. Provisions regarding the remuneration of the bank have also been amended.

FINMA's position paper on the salvaging of large banks
Switzerland | 25 October 2013

The Swiss Financial Market Supervisory Authority (FINMA) recently published a position paper regarding the resolution of global systemically important banks. The paper explains FINMA's emergency strategy for the global systemically important banks in Switzerland and outlines ways in which salvage or break-up can be implemented operationally in cooperation with foreign supervisory and resolution authorities.

Protection of deposits with banks and savings banks
Switzerland | 20 September 2013

Swiss law has implemented a privately operated deposit protection system based on preferential treatment, accelerated pay-outs and a guarantee by the deposit protection scheme. The law does not provide a state guarantee for the deposit protection system. However, participating members must hold sufficient liquid assets to cover half of their maximum contribution obligations and the minimum level of liquidity prescribed by law.

Aborted Lex USA and its consequences
Switzerland | 02 August 2013

The Swiss government adopted a draft bill (Lex USA) that aimed to put an end to the tax dispute between the United States and Swiss banks that have allegedly helped clients to avoid US taxes. In June 2013 the Federal Parliament rejected the Lex USA, mainly because it was based on a unilateral US programme that Parliament considered too far reaching.

Mutual assistance regarding bank accounts: new ruling establishes criteria
Switzerland | 07 June 2013

The Federal Administrative Court recently ruled on the conditions that must be fulfilled in order for Switzerland to grant administrative assistance to the United States with regard to banking clients which have allegedly committed tax fraud with the help of a bank. Among other things, it emphasised that mutual assistance must be consistent with the principle of proportionality and fishing expeditions are therefore prohibited.

Extension of banks' obligations relating to client information
Switzerland | 05 April 2013

The Federal Supreme Court recently rendered two landmark decisions regarding the extension of banking clients' options to obtain information, including internal documents, from banks. The court specified and expanded the information that must be passed onto banking clients. It also showed that the Federal Act on Data Protection could help clients looking for information held by a bank upstream of judicial proceedings.

New developments regarding restitution of commission to clients
Switzerland | 11 January 2013

The Federal Supreme Court recently rendered a landmark decision regarding the restitution to banking clients of commission received from funds or producers of financial products by banks acting as asset managers for their distribution services. In reaction, the Swiss Financial Market Supervisory Authority issued a newsletter on supervisory measures addressed to banks.

Recent rulings on banks' duty of care in advisory relationships
Switzerland | 07 September 2012

The Federal Supreme Court recently rendered two decisions regarding banks' duties of care and fidelity in the distribution of financial products. The court confirmed its established case law, but provided interesting insights into particular issues linked to the distribution of capital-protected structured products within the framework of an advisory relationship.

New FINMA guidance on changes to depositors' protection system
Switzerland | 04 May 2012

The Swiss Financial Market Supervisory Authority recently circulated a complete draft revision of the Ordinance on the Bankruptcy of Banks and Securities Dealers. The review was deemed necessary as a result of a series of amendments to the Federal Banking Act regarding the protection of depositors. However, the amendments to the act do not completely achieve the government's objective of full protection for depositors.

Banking secrecy: Switzerland and United Kingdom sign cooperation agreement
Switzerland | 02 March 2012

Switzerland and the United Kingdom have signed a cooperation agreement on taxation and financial markets. The agreement aims to regularise untaxed assets while preserving Swiss banking secrecy, and to curb the extent to which information is exchanged in relation to tax matters.

Banking secrecy: Switzerland and Germany sign cooperation agreement
Switzerland | 18 November 2011

Switzerland and Germany have signed a cooperation agreement regarding the area of taxation and financial markets. The agreement aims to regularise untaxed assets while preserving Swiss banking secrecy, and to curb the extent to which information is exchanged in relation to tax matters. The agreement covers assets held by the clients at banks, brokers, PostFinance and asset managers in Switzerland. However, the agreement will mainly concern banks.

Mitigating counterparty credit risk in the OTC derivatives market
Switzerland | 21 September 2011

Except for some regulated entities, market participants are in general free to assume unlimited counterparty risk at their discretion, whether under over-the-counter derivative transactions or otherwise. Collateralisation is a useful means of significantly reducing counterparty risk, although it cannot fully eliminate any remaining credit risks relating to the counterparty.

Zurich district court rules on bank liability matters
Switzerland | 12 August 2011

The Zurich district court recently issued a decision on the liability of a major Swiss bank in relation to securities sale orders. The court found the bank liable for damages which occurred when the bank refused to execute an order to sell the securities of a US-owned client company because its assets had been frozen by the US tax administration. The court considered the bank to be in breach of contract and imposed a considerable penalty.

Liability of banks in relation to margin requirements
Switzerland | 15 April 2011

The Federal Supreme Court recently published a decision regarding the issue of a bank's liability where its client transacts on derivatives markets. The court confirmed its established case law on the subject, but the case serves to remind banks of the importance of drafting general and specific terms and conditions in an adequate way, so as to avoid liability issues in particular cases.

FINMA's position paper on cross-border activities
Switzerland | 19 November 2010

The Financial Market Supervisory Authority (FINMA) has issued a position paper on legal and reputational risks in cross-border financial services. The paper could indicate a significant change in FINMA's traditionally liberal attitude towards cross-border transactions out of Switzerland.

SwissBanking revises Portfolio Management Guidelines
Switzerland | 30 July 2010

SwissBanking – the Swiss bankers' association – has adopted a revised version of its Portfolio Management Guidelines. The revised guidelines, which were previously approved by the Financial Market Supervisory Authority, introduce major amendments regarding conflicts of interest and remuneration.

Bank's liability as a de facto body of a company
Switzerland | 28 May 2010

The Federal Supreme Court recently ruled on the issue of a bank's liability where it acts as a de facto body of one of its clients. It confirmed the established case law on the subject in a decision which will allow banks to continue to advise companies which are in difficulty without incurring the liability of a de facto body.

FINMA issues circular on remuneration
Switzerland | 19 March 2010

The Financial Market Supervisory Authority has issued a new circular stipulating minimum standards for financial institutions' remuneration schemes, thereby meeting the requirements of the Financial Stability Board and other international bodies. This update defines the scope of the circular's application and presents the main principles set out therein.

The UBS Case: More Consequences for Swiss Bank Secrecy
Switzerland | 27 November 2009

The agreement between Switzerland and the United States settling the UBS Case has entered into force. The settlement ensures compliance with the tax convention with the United States by applying a broad interpretation of the term 'tax fraud or the like' found in the two countries' agreement on double taxation.

The UBS Case: Consequences for Swiss Bank Secrecy
Switzerland | 05 June 2009

In February 2009 the identities and account details of around 300 clients of UBS were transmitted to the US authorities following a decision of the Financial Market Supervisory Authority. The legality of this decision is being challenged before the Federal Administrative Supreme Court. Taxpayers with bank accounts in Switzerland would be well advised to monitor these developments closely.

Incentive Systems and Conflicts of Interest in Distribution of Financial Products
Switzerland | 27 March 2009

The Financial Market Supervisory Authority has released a report on the issues raised by 'distribution compensation', the term used to describe practices whereby banks or independent asset managers receive benefits from originators of financial products in exchange for their distribution services. Where the distribution partners also have loyalty duties towards their clients, conflicts of interest can arise.

Government Announces Plans to Increase Depositors’ Protection
Switzerland | 28 November 2008

Due to the ongoing financial crisis, the federal government has announced a set of measures intended to strengthen the Swiss financial system. The government plans to increase the protection offered by the rules on privileged deposits by increasing the amount privileged in the event of bankruptcy. A complete revision of the privileged deposits system is also planned.

New Requirements under Revised Agreement on Banking Code of Conduct
Switzerland | 23 May 2008

The Agreement on the Code of Conduct for Swiss Banks on the Exercise of Due Diligence sets out principles regarding the fight against money laundering and the prohibitions on active assistance in the flight of capital and tax evasion and similar acts. The latest version of the agreement, which is revised every five years, will come into force on July 1 2008.

Banking Commission Proposes Status Change for Forex Dealers
Switzerland | 08 February 2008

Under applicable law, the activities of foreign exchange (forex) dealers are not regulated. One reason for this is that currency trading is, in principle, not considered as securities dealing. The Swiss Federal Banking Commission proposes to delete the term 'currency dealers' from Article 3a(3)(c) of the Banking Ordinance; thereby funds deposited with currency dealers will be considered as deposits.

Draft Modifications to Money Laundering Regulations Released
Switzerland | 19 October 2007

The Swiss Federal Banking Commission appointed a working group composed of representatives from banks and from the Money Laundering Reporting Office to examine whether further regulation to combat money laundering and terrorist financing was required. The working group proposed changes to the Money Laundering Ordinance and put forward recommendations for amendments to the Swiss Banking Code of Conduct.

New Circular on Supervision and Internal Control
Switzerland | 01 December 2006

A new Swiss Federal Banking Commission circular, entitled "Supervision and Internal Control", will enter into force on January 1 2007. The circular reflects the growing trend towards enhanced corporate governance in all major industries. It provides a comprehensive but flexible set of rules that will apply to various finance and banking entities in Switzerland.

Swiss Federal Tribunal Rules on Commissions Paid to Asset Managers
Switzerland | 20 October 2006

The Swiss Federal Tribunal has rendered an important decision according to which any finders' fees and commissions received by an independent asset manager in connection with a wealth management agreement belong to the client, unless expressly agreed otherwise by the client in full knowledge of the relevant facts. The decision will result in greater transparency.

Whose Bank Account After Death?
Switzerland | 12 May 2006

When a bank client dies, his or her heirs acquire in particular all rights resulting from the banking relations. In theory, the heirs are to be informed about the status of the account at the time of death. The account holder may further provide that a power of attorney granted to a third party to operate the bank account is to remain in force after his or her death.

Commission Consults on Implementation of Basel II
Switzerland | 11 November 2005

On September 30 2005 the Swiss Federal Banking Commission launched a public consultation on the draft ordinance and circulars implementing the new Basel Capital Adequacy Framework (Basel II) in Switzerland. Switzerland has decided to incorporate the three pillars and all the various approaches of Basel II into domestic law.

Bank Bankruptcy and Secured Deposits: A New Burden?
Switzerland | 03 June 2005

The Swiss Federal Banking Commission is consulting on two draft regulations. The first concerns the bankruptcy of banks, while the second amends the existing Implementing Ordinance on Banks and Saving Banks, which implements the provisions of the Swiss Banking Act relating to banks' obligation to secure so-called 'privileged' deposits.

Bankers Association Adopts International Investment Performance Standards
Switzerland | 11 March 2005

Next year, Switzerland will take a new step towards the application of global performance presentation standards by transferring its local Swiss Performance Presentation Standards into the international Global Investment Performance Standards (GIPS). The GIPS must be treated as a code of best practice which will set the minimum standard requirements in the banking field.

Swiss Commodity Finance Industry Prepares for Basel II
Switzerland | 15 October 2004

The implementation of the Basel II Accord will have significant consequences for the financial world in general, and for commodity finance in particular. It is thus unsurprising that the leading players in the field - a large number of which are based in Switzerland - are already preparing themselves for the new capital requirements regime due to take effect in 2007.

Transmission of Information Abroad and Swiss Banking Secrecy
Switzerland | 23 July 2004

The transmission of information by a Swiss bank to its overseas parent is often a delicate issue, as the subsidiaries of foreign banks are subject to Swiss banking rules, including banking secrecy. Where client information is not needed for consolidated supervision, its transmission abroad will be considered as a breach of Swiss banking secrecy.

Signature May be Required for Over-the-Counter Withdrawals
Switzerland | 16 April 2004

The Swiss Federal Supreme Court has ruled that where a client withdraws money with a debit card from a bank counter, the bank may be obliged to require that the client provide a signature in addition to his personal identification number. Banks should ensure that their general terms and conditions are sufficiently clear as to when additional identification will be required.

Finance Ministry to Report on Implementation of 40 Recommendations
Switzerland | 07 November 2003

The Swiss Federal Council has mandated the Federal Department of Finance to set up a working group to prepare a draft message on the implementation of the Financial Action Task Force's 40 Recommendations. The working group will recommend changes to the Money Laundering Act and the Swiss Criminal Code in order to ensure full compliance with the revised recommendations.

SBA Issues Directives on the Independence of Financial Research
Switzerland | 02 May 2003

The Swiss Banking Association recently issued new directives with a view towards ensuring the independence of financial research and thus preventing potential conflicts of interest. The directives also aim to ensure appropriate transparency and equal treatment of the recipients of financial research.

Banking Commission Continues Fight against Money Laundering
Switzerland | 07 March 2003

The Swiss Federal Banking Commission recently issued its new Money Laundering Ordinance, which will take effect in July 2003. Among other things, financial intermediaries are required to ensure that their branch offices or subsidiaries outside Switzerland comply with its provisions. They must also adopt a risk-based approach to the prevention of money laundering.

Stricter 'Know-Your-Customer' Rules for Swiss Banks
Switzerland | 07 March 2003

The Swiss Bankers Association's Due Diligence Agreement forms part of the guidelines for self-regulation drafted by the Swiss banking industry. The latest version of the agreement was issued on January 17 2003 and provides for stricter 'know-your-customer' rules, such as requesting and recording more personal data about customers.

Banking Commission Offers Guidance on Distribution of Funds
Switzerland | 06 December 2002

In a recent circular the Swiss Federal Banking Commission summarizes its practice regarding the advertisement of investment funds. The circular also sets out regulations on the distribution of funds via the Internet.

Federal Banking Commission Consults on New Initiatives
Switzerland | 16 August 2002

The Swiss Federal Banking Commission recently presented two new drafts for consultation. One relates to the revision of its guidelines concerning the preparation of financial statements, while the other proposes more stringent anti-money laundering provisions.

FBC Proposes Heightened Controls in Annual Management Report
Switzerland | 03 May 2002

The Swiss Federal Banking Commission (FBC) recently presented its annual management report. The report suggests that supervision of bank auditors be increased and that the scope of the FBC's control be extended to all players on the stock market. It also wants to make the provision of international assistance easier.

Decision Casts Doubt on International Administrative Assistance Regime
Switzerland | 08 February 2002

A Swiss Federal Court decision has left the Swiss Federal Banking Commission (SFBC) unable to grant administrative assistance to the US Securities and Exchange Commission. The decision is proof of the inadequacy of existing legislation on the provision of international administrative assistance.

International Assistance and the Remittance of Banking Documentation
Switzerland | 16 November 2001

Three new decisions, relating to criminal investigations brought in Pakistan against former prime minister Benazir Bhutto and her family, show that a bank account holder's opportunities to challenge international assistance in Switzerland are limited, particularly where the holder is an offshore company.

Swiss Banks Join Global Fight Against Money Laundering
Switzerland | 24 August 2001

Eleven leading international private banks, including Credit Suisse and United Bank of Switzerland, have adopted the Wolfsberg Anti-Money Laundering Principles as global guidance for preventing the use of a bank's worldwide operations for criminal purposes.

Banking Association Condemns E-commerce Bill
Switzerland | 24 August 2001

The Swiss Banking Association has rejected the Bill on Electronic Commerce because of its inclusion of certain legal issues which are obviously not relevant to electronic commerce.

Conditions for International Administrative Assistance
Switzerland | 25 May 2001

The Federal Supreme Court recently had to decide whether the Swiss Federal Banking Commission could grant administrative assistance to the French commission for stock exchange activities. On the basis of this case the court defined the conditions under which Swiss authorities may submit confidential information to foreign authorities.

Eagerly Awaited Stamp Duty Exemptions Become Law
Switzerland | 09 March 2001

Parliament has moved to ease the tax burden on Swiss securities dealers engaged in securities transactions. Subject to certain conditions, Swiss dealers no longer owe one-half of the transfer stamp tax for certain parties which are also involved in a transaction.

Banks Push for Stamp Duty Exemptions
Switzerland | 03 November 2000

A new revision of the Swiss stamp duty regulation is one of a series of measures intended to increase the competitiveness of the Swiss financial market. Parliament is expected to adopt it quickly due to pressure from the Swiss Stock Exchange and the Swiss banks.

Swiss Bankers Association's Portfolio Management Guidelines are Modified
Switzerland | 08 September 2000

On July 24 2000 the Swiss Bankers Association's board of directors approved a revision of the association's Portfolio Management Guidelines of April 1996. The amended guidelines came into force on August 1 2000. This update describes the main modifications.

Banks May Guarantee High Levels of Privacy Protection
Switzerland | 30 June 2000

The Swiss Bankers' Association (SBA) is satisfied with the content of a report on improving access to bank information for tax purposes. Since the Swiss legal system conforms entirely with the report’s recommendations, the SBA sees no need to make any changes that would affect the protection of the individual privacy of bank customers in Switzerland.

Pension Fund Investment Possibilities Expanded
Switzerland | 23 June 2000

Pension fund investments in Switzerland are governed by the Ordinance on Occupational Retirement, Survivors' and Disability Pension Plans. Its provisions concerning security and spreading of risks, indirect placements and permissible investments have recently been modified to account for the development of the financial markets.

Committee Reports on the Search for Holocaust Victims' Assets
Switzerland | 29 March 2000

Over the last two years the Independent Committee of Eminent Persons has searched Swiss banks for the unclaimed assets of Holocaust victims. The Swiss Federal Banking Commission which supervised the process, has recently commented on its findings.

Corporate Finance/M&A

Selective opting-up clauses under takeover law: recent Takeover Board and FINMA rulings
Switzerland | 19 May 2021

In a recent decision, the Takeover Board had to assess the validity of a selective opting-up clause. Unlike a general opting-up clause, a selective one applies only to a certain pre-defined transaction or to certain beneficiaries. Against this background, this article outlines the conditions for the valid introduction of a selective opting-up clause and summarises two key considerations of the Takeover Board's ruling, which was confirmed by the Financial Market Supervisory Authority.

Reporting of beneficial ownership in private equity transactions
Switzerland | 21 April 2021

Swiss law rules that the ultimate beneficial owners of a Swiss corporation must be disclosed to the company. However, in a typical private equity structure, the economic ownership rights on the one hand and the management and control rights over the portfolio companies on the other hand usually fall apart, making it difficult to identify one or more typical beneficial owners. To remedy practical deficiencies and provide for greater legal security, Parliament recently enacted a revision of the disclosure provisions.

Corporate and financial reorganisation: an overview
Switzerland | 17 March 2021

It has become increasingly clear that after the initial shock caused by the COVID-19 lockdowns, businesses will face lasting challenges. Against this background, a growing number of investors will need to assess how to deal with distressed business units or entire companies. This article provides an overview of corporate and financial reorganisation options, particularly with regard to the sale of distressed companies or business units and carve-out transactions.

Indirect counterproposal to CRI – impact of new reporting and due diligence duties on M&A transactions
Switzerland | 03 February 2021

As the Corporate Responsibility Initiative was rejected, an indirect counterproposal will likely enter into force, introducing reporting duties for companies of public interest and due diligence duties for companies active in certain high-risk areas. The potential penalties and liability, and the potential reputational risks stemming from violations of these duties, are relevant for the acquisition of or investments in Swiss companies. Thus, the counterproposal will affect due diligence in M&A and financing transactions.

Reducing share capital: current law and expected changes
Switzerland | 20 January 2021

In June 2020 the legislature passed draft modifications of Swiss corporate law, which would amend, among other things, substantial parts of the Code of Obligations. This marked the end of what is generally known as the 'large corporate law reform' which officially started in 2007. As part of these 'final' modifications, the provisions concerning the reduction of the share capital of Swiss corporations will be amended.

Fulfilment of Swiss takeover offer obligation by completing a merger
Switzerland | 20 May 2020

The Takeover Board recently confirmed its case law on whether the obligation to make a public takeover offer may be fulfilled by completing a merger. However, the Takeover Board's arguments were based heavily on the specifics of the case at hand. It seems possible, if not likely, that the Takeover Board would have come to a different conclusion had the merger been structured differently.

Support for start-ups in Switzerland
Switzerland | 13 May 2020

Following the widespread outbreak of COVID-19 in Switzerland, the Federal Council implemented several emergency measures to mitigate the virus's economic impact. After weeks of pressure from the growing Swiss start-up ecosystem, the Federal Council acknowledged that start-ups had little or no access to the existing emergency aid and, considering their importance for the economy as a whole, stated that it would devise a liquidity support programme specifically designed for innovative start-ups.

Restructuring exemption in Swiss takeover law
Switzerland | 01 April 2020

Under Swiss takeover law, the duty to launch a takeover offer is triggered when an acquirer of shares, whether acting directly, indirectly or in concert with third parties, acquires equity securities and thereby, in addition to the equity securities already owned, exceeds the threshold of 33.3% of the voting rights of a listed company. A recent Financial Market Supervisory Authority decision is a helpful reminder that the requirements for exemptions from the offer obligation must be assessed carefully on a case-by-case basis.

Due diligence requirements regarding share ownership and related compliance in M&A transactions
Switzerland | 16 October 2019

In Swiss M&A practice, share deals remain the most common method of acquiring a business from a third party for several reasons. Due to strict Federal Supreme Court precedents, legal due diligence regarding share ownership and related compliance has always been a fundamental component of legal due diligence in Swiss share deals. Recent legislative changes have further increased the importance of thorough due diligence in this regard.

Bulk transfers
Switzerland | 28 August 2019

Under Swiss law, the acquisition of a business may be structured as a mere share deal, a mere asset deal or – according to the Merger Act – a statutory merger, demerger or bulk transfer. This article outlines the corporate law aspects of bulk transfers and distinguishes between domestic and cross-border bulk transfers.

Private mergers and reorganisations
Switzerland | 12 June 2019

Under Swiss law, the acquisition of a business may be structured as a mere share deal, a mere asset deal or – according to the Merger Act – a statutory merger, demerger or bulk transfer. This article outlines the private law aspects of private statutory mergers and distinguishes between domestic and cross-border statutory mergers.

Approvals for share deals in Switzerland
Switzerland | 30 January 2019

Sale and purchase transactions with respect to privately held companies in Switzerland are usually structured as share or asset deals or, in certain cases, bulk transfers or mergers. This article provides an overview of the approvals and authorisations that might be required with respect to a share deal in Switzerland. In particular, it focuses on the laws regulating foreign investments in Switzerland and summarises their key characteristics.

Opting-out clauses in Swiss takeover law
Switzerland | 01 August 2018

The Takeover Board recently assessed whether adopting an opting-out clause which will apply only to two specific investors and only for a period of five years is permissible from a takeover law perspective. In its decision, the Takeover Board confirmed its case law on selective opting-out clauses. However, there is still considerable legal uncertainty in this area.

Competing public offers in Switzerland – recent case law
Switzerland | 18 April 2018

Public takeover offers are regarded as competing offers if, at the time of their publication, another offer in relation to the target has already been launched. To guarantee freedom of choice of the recipients of the offers, and to avoid the sequence of offers influencing the shareholders' decision, the law sets forth specific rules for competing offers. In the recent LifeWatch case, the Takeover Board took its position on issues relating to multiple offerors.

Legal framework for group financings under Swiss law
Switzerland | 13 December 2017

Switzerland recently decided to facilitate the financing activities of groups operating in or out of Switzerland by easing some restrictions under the Withholding Tax Ordinance. The amendment of the ordinance is meant to strengthen the establishment of headquarter activities with further central corporate functions, as well as treasury activities, particularly those performed outside Switzerland.

Permitted conditions for public offers in Switzerland
Switzerland | 05 July 2017

In a recent case regarding the takeover of Actelion by Johnson & Johnson, the Takeover Board expanded its case law on the permissibility of conditions in public takeover offers. In this case, the Takeover Board had to assess whether the implementation of a demerger of a business division from the target constituted a permissible condition within a public offer.

MAC clauses in Swiss M&A transactions
Switzerland | 03 May 2017

The completion of larger M&A transactions is usually conditional on the absence of material adverse changes (MAC). This can be achieved by including either a MAC clause or a condition that all warranties must be true at completion in combination with a warranty confirming the absence of a MAC. A MAC clause defines what is deemed to be a MAC of the target company and entitles the acquirer to step back from the proposed transaction in case a MAC event has occurred or is alleged to have occurred.

Settlement of target equity award programmes in view of best-price rule
Switzerland | 12 October 2016

In a recent Takeover Board case, the offeror filed a request with the board for approval that it should – before the distribution of the special dividend – have the right to acquire shares outside the offer without triggering the best-price rule. In its decision, the board stressed the importance of the offer price as a reference for the best-price rule and held that any acquisition of shares for a consideration above the offer price would violate the rule.

Valuation of privileged voting shares in a public offer
Switzerland | 13 July 2016

The Takeover Board has reviewed the methods of valuing different share categories of a target and the monetary value of additional covenants and obligations entered into by a shareholder. The decision is relevant for the interpretation of similar provisions under the Merger Act, requiring equal treatment of shareholders in the context of a merger, demerger or conversion.

Hostile tender offers under public takeover law
Switzerland | 29 June 2016

Swiss M&A transactions involving public companies are mainly governed by the Financial Market Infrastructure Act, which replaced the former Federal Act on Stock Exchanges and Securities Trading. This regulates both friendly and hostile public takeovers for Swiss resident companies with at least one class of equity security listed on a Swiss exchange, and for foreign resident companies whose shares are mainly listed on a Swiss exchange.

Revised disclosure rules for significant shareholdings
Switzerland | 06 April 2016

On January 1 2016 revised regulations for the disclosure of significant shareholdings in listed companies and amendments to takeover regulations took effect. The new regulatory framework regulates key market infrastructures and incorporates many former provisions of the Stock Exchange Act, including those on public takeovers and those relating to the disclosure of significant interests in listed companies.

Management incentives in public takeovers
Switzerland | 23 March 2016

In the context of a friendly public offer, the bidder will usually seek to enter into a transaction agreement with the target. Such a transaction agreement customarily includes provisions regarding the continuance of the contractual relationship between the target and its management, as well as the (dis)continuance of certain target board members' mandates as per the settlement of the public offer.

Act leads to amendments of public takeover law
Switzerland | 24 February 2016

The Federal Council recently enacted the Financial Market Infrastructure Act. While the act requires the formal alignment of the Takeover Ordinance with the provisions relating to takeovers, the amended ordinance brings substantive changes. By implementing these changes, the Takeover Board acknowledges that electronic publication has become the standard procedure for disseminating important financial information.

New rules for publication of documents relating to public tender offers
Switzerland | 10 February 2016

An amendment of the Ordinance of the Takeover Board on Public Takeover Offers has entered into force, abolishing the requirement that announcements and notices relating to a public offer be physically published in newspapers. Consequently, the Takeover Board has issued guidance on the newly applicable rules for the publication of the offer documents.

Validity of opt-out clauses: Takeover Board issues decisions in Sika battle
Switzerland | 15 April 2015

Two recent Takeover Board decisions have determined the validity of an opt-out clause in the Sika takeover. The board had to ascertain the validity of an opt-out clause in Sika's articles of association and determine whether the opt-out clause applied in the contested acquisition by Compagnie de Saint-Gobain SA.

Relevance of Minder Initiative to M&A transactions
Switzerland | 11 March 2015

In March 2013 the Swiss voting population approved the fiercely debated 'Rip-off Initiative', originally launched in 2008 by Thomas Minder. Its incorporation into national law is now ongoing. It remains to be seen how this will affect public M&A transactions involving Swiss corporations with publicly listed shares. The consequences are extensive and company boards should carefully consider the implications.

Acquisitions facilitated by revised restructuring provisions
Switzerland | 05 March 2014

Amendments to the Debt Enforcement and Bankruptcy Act and the Code of Obligations recently entered into force, increasing the attractiveness of acquisitions of distressed businesses and facilitating restructurings. The revised law makes composition proceedings more attractive for both the company and a potential acquirer. For a company in distress, the new law makes it easier to overcome legal hurdles.

Rules applicable to buy-back programmes
Switzerland | 22 January 2014

The Takeover Board recently modified Circular 1 regarding buy-back programmes. The revised circular brings, in particular, some changes to the reporting and publication procedure. It is therefore important that all existing buy-back programmes take the revised circular into account.

Continuation of past practice regarding introduction of opt-out clauses
Switzerland | 28 August 2013

The Takeover Board's practice regarding the evaluation of the validity of an opt-out clause has recently undergone several changes. Transparency requirements must now be met not only at the shareholders' meeting itself, but also with regard to the information provided in the invitation to the meeting, so that the shareholders can understand the reason for, and the effects of, the opt-out clause.

Implementation of Federal Administrative Court decision on Quadrant
Switzerland | 03 July 2013

In November 2010 the Federal Administrative Court handed down a decision in a public takeover matter as a result of an amendment in the regulatory framework governing public takeovers. The court rejected part of the Takeover Board's previous decisions. As a result, the board had to reassess numerous issues, and recently handed down its decision regarding the adequacy of the share price offered to the public shareholders.

Takeover Board confirms opt-out practice
Switzerland | 20 February 2013

The Takeover Board previously expanded its practice with regard to the evaluation of the validity of opt-out clauses. In two recent cases, the board had to decide whether opt-out clauses introduced after listing were valid. The board also took this opportunity to reflect on its own practice. These decisions show that board practice is still variable and can be expected to undergo further changes and/or clarifications.

Control premium
Switzerland | 28 November 2012

The Swiss legislature has recently passed an amendment to the rules of the Stock Exchange Act. The new rules will, among other things, abolish the possibility for an offerer to pay a control premium to the controlling shareholders of a target company shortly before the launch of a public tender offer.

Squeeze-out mergers: Supreme Court's view on valuation issues
Switzerland | 20 June 2012

A new majority shareholder must take minority shareholders' interests into account. An offeror has two legal options to exclude or 'squeeze out' minority shareholders under the Stock Exchanges and Securities Trading Act and the Merger Act. The Supreme Court recently clarified certain questions relating to a squeeze-out merger following a successful public takeover bid, which was challenged under the Merger Act.

Takeover Board becomes more lenient regarding opt-out clause
Switzerland | 15 February 2012

It appears that the Takeover Board will no longer review opt-out clauses in instances where the shareholders have been fully informed and made aware of the consequences and implications of the introduction of such clauses. This is rather astonishing, especially since in the last reform of the Securities and Stock Exchange Act, the legislature intended to substantially strengthen the position of minority shareholders.

Federal Administrative Court rules on Quadrant public takeover
Switzerland | 07 December 2011

In the first case in which it has acted as the court of final instance in relation to a public takeover, the Federal Administrative Court recently oversaw a case regarding a high-profile public takeover. In light of the case, offerors would be well advised to use the most simple transaction structures possible in future public takeovers in order to avoid the increasingly costly and time-consuming processes involved with legal challenges from shareholders.

New regulatory framework: impact on public offers
Switzerland | 30 November 2011

In 2009 the Swiss legislature enacted the Financial Market Supervision Act and made several changes to the Act on Stock Exchanges and Securities Trading relating to public offers. In view of these changes in the legislation, FINMA and the Takeover Board undertook a general overhaul of the FINMA Stock Exchange Ordinance and the Ordinance on Public Takeovers. This update analyses the impact of these changes.

Disclosure of significant interests in listed companies' voting securities
Switzerland | 03 November 2010

In 2009 the rules governing the disclosure obligations relating to interests in listed companies' voting securities were substantially revised. In addition, the authorities in charge of supervising compliance with these obligations have investigated a number of potential violations of the rules. These investigations have attracted media attention and have become the subject of intensive discussion among legal experts.

Swiss Takeover Regulations Revised
Switzerland | 08 April 2009

The Federal Act on Stock Exchanges and Securities Trading and its associated ordinances have been revised. The new takeover regulations reflect the existing practice of the Takeover Board, but also include several amendments to the rules governing public tender offers. This update summarizes the general rules to be considered by a bidder when determining an offer price and the new rules on exchange offers.

Acquiring Private Companies: Protection against Undisclosed Liabilities
Switzerland | 07 January 2009

The principal methods of buying a Swiss company are to buy its assets or shares, or to merge the target with the acquirer or with a newly formed subsidiary of the acquirer. Choosing the appropriate legal structure for the acquisition is the starting point of each transaction and will have a major impact on the risks of the acquirer to assume undisclosed liabilities.

Intellectual Property

Limitation of patents during infringement proceedings – case law and strategic considerations
Switzerland | 22 March 2021

Over the past two years, patent owners have frequently limited patents in suit during infringement proceedings in Switzerland. Two recent Federal Supreme Court decisions have illuminated how and at what stage in the patent proceedings limitations are possible. While bringing some long-awaited clarity, the recent case law also raises new questions and issues for patent owners to consider in determining their litigation strategy.

Federal Supreme Court confirms when display of information is technical feature that can provide inventive step
Switzerland | 21 December 2020

Is an animated lung on the display of a ventilator machine merely an unpatentable display of information or a technical feature that can provide an inventive step? For the first time, the Federal Supreme Court recently addressed the issue of whether such graphical user interfaces can be technical and affirmed a Federal Patent Court's decision.

Does Switzerland need a new patent system with a fully examined patent, utility models and opposition proceedings?
Switzerland | 14 December 2020

The Federal Council recently published a preliminary draft of a revised version of the Patent Act which would introduce a fully fledged patent system. As is well known, Switzerland is not a member of the planned unitary EU patent system comprising a European patent with unitary effect and the Unified Patent Court, so a revision of the Swiss patent system could make sense in this context.