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.
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.
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.
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.
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.
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.
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.
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.
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.
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.