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.
The recent insolvency of German-Swiss cryptocurrency mining venture Envion AG inevitably begs the question of how cryptocurrencies should be treated in debt enforcement and insolvency proceedings. Further, the fact that cryptocurrencies have a number of particularities which distinguish them from other asset categories raises numerous questions relating to (for example) the seizure, attachment and liquidation of cryptocurrencies from a Swiss insolvency law perspective.
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.
The Federal Supreme Court recently dismissed an appeal against a Zurich Social Insurance Court decision concerning the replacement of an appellant's breast implant under compulsory health insurance. According to the Federal Supreme Court, a gynaecologist's reasoning that the appellant's pain was most likely caused by the implant was incomprehensible and therefore the Zurich Social Insurance Court's decision was not arbitrary.
The government recently confirmed its proposal to fully liberalise the Swiss electricity market. This liberalisation will be accompanied by measures which strengthen domestic renewable energies and improve supply security. It is now up to the Federal Department of the Environment, Transport, Energy and Communications to submit a discussion paper to the government setting out the key parameters for such liberalisation and additional adjustments to be made to the Electricity Supply Act.
The Federal Council recently submitted to Parliament a dispatch approving the Council of Europe Convention against Trafficking in Human Organs. The Federal Council supports the convention, which aims to harmonise criminal provisions internationally. In particular, the convention provides for the prosecution of all human organ trafficking, regardless of where it takes place.
As part of its effort to meet EU-equivalent standards, Switzerland is in the process of implementing a comprehensive reform package which will fundamentally change the Swiss financial market regulatory framework and introduce the country's first harmonised and coherent prospectus regulation. The new regime will ensure that bond issuers will continue to have efficient and quick access to the Swiss debt capital market – one of the legislature's key goals.
In recent years, the number of publicly placed and listed securitisation transactions in the car leasing and credit card sectors has increased significantly. The driving force behind this development is economic rather than legislative, as Swiss law places no specific restrictions on asset classes eligible for securitisation. However, compliance with certain Swiss legal concepts is crucial when setting up a securitisation transaction involving Swiss law-governed receivables.
The Agreement on Admission to the Labour Market for a Temporary Transitional Period following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons will provide facilitated access to the labour market for British nationals in Switzerland and for Swiss nationals in the United Kingdom after Brexit. The agreement will serve as a transition regime in the event of a no-deal Brexit and would be entered into for a limited period until 31 December 2020.
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.
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.
The Federal Council recently adopted new measures to combat rising costs in the public healthcare sector. With this first set of measures, the Federal Council intends to provide all stakeholders with the instruments needed to reduce costs and expects to save several hundred million Swiss francs annually.
The Federal Council recently approved a draft of the Social Security and Health Commission of the Council of States in order to improve the legal basis for the transfer of data of insured persons. The Federal Council intends to collect personal data from insured persons while guaranteeing the protection of personal data and upholding the principle of proportionality.
As a recent European Court of Justice opinion is likely to be adopted by Swiss legal doctrine and precedent, parties domiciled in Switzerland may be targeted by avoidance claims in another signatory state of the Lugano Convention based on a contract to which they were not a party but that was merely concluded between the debtor and a creditor.
In view of the media industry's ostensibly democratic and political role, the Federal Council has decided to adopt effective and feasible support measures. These measures will be implemented by adapting existing laws and incorporating online media into the scope of the Federal Act on Radio and Television. However, the plan to create a new Electronic Media Act has been abandoned.
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.
The Competition Commission (ComCo) recently closed its investigations into bid rigging in the construction industry and issued fines of Sfr11 million, an amount which would have been much higher had the commission not deducted the damages compensation paid by the cartelists to the victims from its claims. By introducing the possibility of compensating cartel victims for damages in antitrust proceedings, ComCo has chosen to advocate civil antitrust law to the detriment of its leniency programme.
The Federal Supreme Court recently clarified that although certain provisions of the Health Insurance Act and the Health Insurance Ordinance are based on patent protection (or expiration), the Health Insurance Ordinance sets out no pricing rules for generics if the original's exclusivity is only partially lost. Further, protected indications of a multi-indication pharmaceutical, of which some indications have lost exclusivity, cannot be exchanged by a generic.
The Federal Supreme Court recently addressed the relationship between a contractual forfeiture clause under Article 46(2) of the Federal Insurance Contract Act and the statutory limitation period for insurance claims. Among other things, this decision reconfirms previous case law, according to which forfeiture clauses such as the one at issue are customary in the insurance industry. It also confirms that a contraction forfeiture clause may exist alongside the statutory limitation period.
The Federal Council recently submitted a draft amendment to the Narcotics Act for consultation that aims to facilitate patients' access to cannabis-based treatments. The revised act would allow patients to obtain direct medical prescriptions for cannabis-based treatments with a tetrahydrocannabinol content of more than 1% without having to obtain an exceptional licence from the Federal Office of Public Health.