On 15 June 2018, the Swiss parliament adopted the Swiss Financial Services Act (FinSA) and the Swiss Financial Institutions Act (FinIA). On 24 October 2018, the Swiss Federal Council opened a consultation process regarding the three ordinances implementing these acts, the Financial Services Ordinance (FinSO), the Financial Institutions Ordinance (FinIO) and the Supervisory Organisation Ordinance (SOO), which will last until 6 February 2019. The two acts are expected to enter into force together with the ordinances on 1 January 2020 and will introduce an entirely new regulatory framework governing the Swiss financial markets. Among other provisions, FinSA provides for a general obligation to prepare a prospectus in connection with public offerings of securities and their admission to trading on a trading venue as well as for an ex ante review and approval process by a Review Board. It also provides for an obligation to prepare a key information document in connection with the offering of certain financial instruments to retail investors.
New Duty to Prepare and Obtain Approval of Prospectuses
Until now, Swiss prospectus requirements were incomplete and partially outdated. The duty to prepare an issuance prospectus was based on private law rules in the Swiss Code of Obligations and was not enforced by a public authority. Except for issuers listed at Swiss stock exchanges, there was no obligation to file or obtain the approval for a prospectus under Swiss law. FinSA takes on the model of the EU-Prospectus Regulation and introduces into Swiss law a regulatory obligation to prepare a prospectus in connection with any public offering of securities or the admission of securities to trading on a trading venue. This entails a radical change in the Swiss regulatory regime, where securities offerings were previously only subject to limited disclosure requirements in connection with the issuance of new securities and more extensive ones applying to a listing in Switzerland. Under the new regime, all prospectuses will be subject to an approval process, carried out ex ante, as a rule, under a new regulatory body, the Review Board (Prüfstelle), which will review them for formal completeness, consistency and clarity.
Scope and Exemptions
The obligation to prepare a prospectus will be triggered by a public offering to subscribe or purchase securities as well as by the admission to trading of securities on a Swiss trading venue. It will therefore cover both...