Banking Regulation 2017

Author:Mr Peter Hsu
Profession:Bar & Karrer
 
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Introduction

The financial crisis of 2008/2009 triggered a wave of new regulations in Switzerland in recent years. Besides client protection and stability for the overall economic system, past and currently ongoing reform projects are a reaction to international regulations and particularly aim to harmonise Swiss regulations with existing and upcoming EU regulations, such as the EU Directive 2011/61/EU on Alternative Investment Fund Managers ("AIFMD"), Directive 2014/65/EU on Markets in Financial Instruments II ("MiFID II") and Regulation (EU) No 600/2014 on Markets in Financial Instruments ("MiFIR") to ensure Swiss financial institutions' access to the European financial markets. The core of the new Swiss banking regulation will consist of the existing Federal Act on Banks and Savings Banks of 8 November 1934 ("BankA"), the existing Federal Act on the Swiss Financial Market Supervisory Authority of 22 June 2007 ("FINMASA"), the Financial Market Infrastructure Act of 19 June 2015 (entered into force on 1 January 2016; "FMIA"), the planned Federal Financial Services Act ("FinSA") and the planned Financial Institutions Act ("FinIA"). It is currently expected that the FinSA and FinIA will enter into force on 1 January 2018 at the earliest.

Furthermore, the current environment has been characterised by a variety of legal developments, particularly in international tax matters: first, at the end of August 2013, the US Department of Justice ("DoJ") and the Swiss Federal Council announced a programme for the settlement of the tax dispute between the Swiss banks and the DoJ ("US Program"). The process of concluding Non-prosecution Agreements ("NPA") with the DoJ is already well advanced. As per 6 February 2017, 78 of approximately 100 banks participating in the US Program concluded a NPA with the DoJ (http://www.justice.gov/tax/swiss-bank-program). Furthermore, in the course of the implementation of the revised recommendations of the Financial Action Task Force ("FATF"), several laws have been amended. E.g., under the amended provisions of the Swiss Criminal Code ("SCC") (entered into force on 1 January 2016), certain types of tax fraud constitute a predicate offence for money laundering. Further, pursuant to new provisions in the Swiss Code of Obligations ("CO"), acquirers of non-listed shares (except for shares in the form of book-entry securities) have to report to the issuing company the acquirer of bearer shares and the beneficial owner of...

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