Financial market law is subject to constant change: international regulatory projects often require Swiss compliance in order for Swiss financial service providers to operate abroad or across borders. After the financial crisis of 2008 the concept of client protection has been sharpened, which has been and continues to be reflected in increased organizational requirements and conduct duties of financial service providers. And finally, technological change is leading to disruptive business models and new financial market structures and players, which must be regulated or at least legally classified. Koller Law closely follows these developments and their influence on the financial industry and is therefore in a position to provide comprehensive legal advice to financial service providers.
Asset management is the backbone of the Swiss financial industry. Yet "the" asset management does not exist. Rather, it is extremely diverse in terms of providers (from multinational to regional), style (from product-based to discretionary) and client groups (from institutional to private). Swiss asset managers cover the entire range of possible investment strategies and asset classes. This diversity leads to different regulatory approaches and requirements.
Koller Law knows the industry and supports asset managers, managers of collective assets, banks, securities firms, family offices and investment advisors in meeting the regulatory and private law challenges, including the following areas:
FinIA-compatible corporate governance and separation of functions
Internal regulations and directives
Risk management and compliance structures, including implementation concepts
Money laundering prevention
Compliance with FinSA rules of conduct
Dealing with conflicts of interest
Contract documentation, investment strategies, risk profiles, KYC
License applications by Swiss financial institutions
Establishment and authorization of branches and representative offices of foreign financial institutions
Structuring and issuing derivatives, structured products and actively managed certificates
Investment activities of pension funds
Coordination with foreign specialists in cross-border situations
Representation for regulators (FINMA and supervisory organizations)
Representation for court proceedings
Consolidation (company acquisitions, mergers, asset deals)
Switzerland is an important location for funds if a local investor base is to be targeted. It is also important as a distribution location because of the assets managed by Swiss financial institutions. Finally, Swiss asset managers manage substantial assets through Swiss and foreign collective investments. The fund industry therefore plays an important role for the Swiss financial center. And therefore, also for us.
Koller Law advises fund management companies, asset managers, fund distributors, investors, representatives and other fund players in the following areas, among others:
Regulatory assessment of pooled investments
Investment clubs and investment companies
Set up and approval of Swiss collective investment schemes
Compliance with distribution rules under the Collective Investment Schemes Act and the FinSA
Licensing, representation and paying agency requirements for offering foreign collective investments in Switzerland
Approval of foreign collective investments
Establishment and authorization of managers of collective assets
FINMA reporting requirements
Representation in FINMA preliminary and enforcement proceedings
Coordination with foreign specialists in cross-border situations
Swiss financial market regulation is becoming tighter. On the one hand, this affects the traditional areas of institution, market and product regulation. On the other hand, new business models such as fintech or crowdfunding can lead to regulatory activity. The financial industry is not immune to social megatrends, such as the increasing emphasis on sustainability and social responsibility when assessing financial services and products.
Koller Law follows regulatory developments and supports its clients in the following areas, among others:
Regulatory classification and structuring of business models under the various financial market laws (Banking Act, Financial Intuitions Act FinIA, Financial Services Act FinSA, Collective Investment Schemes Act CISA, Financial Market Infrastructure Act FMIA and Anti-Money Laundering Act AMLA)
Developing and implementing risk management and compliance systems
Assessing complex compliance issues
Writing internal and external memoranda and expert opinions on regulatory issues
Compliance with anti-money laundering and anti-terrorism requirements
Assessing and legal structuring of fintech, crowd lending and crowd investing projects and platforms
Regulatory assessment of product distribution structures
Issue of structured products, derivatives and AMC
Non-action letters; FINMA rulings
Representation for regulatory bodies (preliminary and enforcement proceedings)
The relationships between financial service providers and their clients are not just regulatory, but are of course also contractually driven. These special contracts have to comply with regulatory requirements, on the one hand, and strongly case-law-based private law on the other.
Koller Law knows the industry standards and advises its clients, among others, on drafting and negotiating the following contracts:
General contractual terms and conditions of financial institutions
All types of bank contracts (account/deposit, credit, security, securities lending and other contracts)
Asset management and investment advisory agreements
Sureties and guarantees
Representative and paying agent agreements
Custody and ex-custody contracts
Index advisory and index license agreements/financial index guidelines
Global custody contracts between banks and institutional investors such as pension funds
If FINMA becomes aware of the violation of supervisory law, it will initiate proceedings. The catalog of measures available to the supervisory authority ranges from an order to restore orderly conditions to the withdrawal of a license. In addition, FINMA can impose professional and activity bans on offenders. Violations of supervisory law may also result in criminal prosecution.
We support our clients before and after the initiation of public law proceedings, especially in the following areas:
Responding to requests for information from FINMA before initiating enforcement proceedings/representation in preliminary proceedings
Assessment of facts with regard to their regulatory (non) compliance
Representation in FINMA enforcement proceedings as well as before the appellate bodies
Representation of financial institutions in administrative, legal assistance and criminal proceedings (the latter with the assistance of external experts)
Relationships between financial service providers and their clients or other contractual partners are not always free of conflict and in extreme cases lead to legal disputes. As an independent law firm, we represent both clients and financial service providers.
Our activities relate in particular to the following areas:
Assertion of claims
Out-of-court settlement of disputes (in particular in the absence of process economy)
Procedure before ombudsman offices
Representation in court proceedings
Preparation of legal opinions on private financial law
The regulatory framework for the provision of financial services in Switzerland has recently undergone fundamental changes. We help you find your way around.
On 1 January 2020, the Financial Services Act FinSA and the Financial Institutions Act FinIA together with the implementing ordinances FinSO, FinIO and SOO entered into force. The implementing ordinance of FINMA on the FinIA (FINMA-FinIO) will be enacted at the beginning of 2021. Koller Law offers comprehensive legal services in implementing the new laws and obtaining the necessary licenses and registrations.
Financial service providers must ensure that their employees are aware of the FinSA rules of conduct; the same applies to client advisors. This requires training and continuing education.
Koller Law offers appropriate training courses that are tailored to the specific needs of the respective financial service providers and their employees. Please inquire about our offers.