SWITZERLAND Law and Practice Contributed by: Alexander Vogel, Marc Baumberger and Selina Bruderer, MLL Legal
In May 2024, as part of the proposed new AML meas - ures, the federal government proposed a new federal transparency register, in which companies need to enter information regarding their UBO. The register will not be publicly available. The bill is now being presented to parliament and is not expected to enter into force until 2026 at the earliest. Listed Companies If the JV company or a Swiss JV party is listed on a stock exchange, its shareholders must disclose a relevant participation as soon as such exceeds the 3% threshold (with further thresholds at 5%, 10%, 15%, 20%, 25%, 33.3%, 50% and 66.6%). This disclosure notification shall include the UBO and, if different, the direct shareholder. The information on significant shareholders is publicly available (for SIX Swiss Exchange listed entities, see the SIX Exchange Regulation’s website ). 4. Legal Developments 4.1 Notable Recent Decisions or Statutory Developments The reformed Swiss company law came into force on 1 January 2023. The main changes are greater flexibil - ity in share capital and capital distributions, strength - ening of shareholders’ rights to improve corporate governance and the digitalisation of shareholders’ meetings. From a corporate JV perspective, the fol - lowing changes allow for greater structuring flexibility and facilitate the handling thereof: • the allowance of interim dividend payments; • share capital in certain foreign currency is permissi - ble (USD, GBP, EUR and JPY) – note that account - ing and financial reporting must then be done in the same currency as the share capital; • the implementation of the capital band concept, which allows greater flexibility for capital increases and decreases within a predefined range during a maximum period of five years; and • shareholders’ meetings may now be held: (a) in one or more different meeting venues; (b) by electronic means without a physical meet - ing venue (“virtual shareholder meeting”; (c) in a physical and virtual venue (“hybrid share -
holder meeting”); (d) in a meeting venue abroad; and (e) in written circular form (on paper or in elec - tronic form). With effect from 1 January 2025, amendments to the Swiss CO and the Commercial Register Ordinance (“HRegV”) came into force, introducing changes to Swiss corporate law. In addition to amending certain bankruptcy and criminal law provisions, the legislator has taken up case law of the Swiss Federal Supreme Court on shell companies, rendering null and void any transfer of shares and quotas if the company is inac - tive and overindebted, and limiting the possibility of “opting out” (ie, waiving the requirement for a limited audit) only to future years. 5. Negotiating the Terms 5.1 Preliminary Negotiation Instruments and Practices Negotiating JV agreements can be a rather time-con - suming and complex process, depending on the com - plexity of the envisaged structure. As a result, parties often outline key commercial terms in a term sheet or letter of intent. Those may include general directives on the parties’ envisaged structuring of a JV, including corporate governance principles. While these terms are often non-binding with respect to the specifics of the JV, others are binding to govern the negotiation and diligence process. Examples of such binding rules include exclusivity, confidentiality obligations, cost sharing, the choice of applicable law and jurisdiction or a commitment to resolve disputes through arbitration. 5.2 Disclosure Obligations If no listed entities are involved, there is in principle no legal obligation to disclose a JV. Nevertheless, parties often decide to provide such market information on a voluntary basis, mainly for marketing purposes (eg, by way of a press release previously aligned amongst parties). If either of the JV parties or the JV itself is listed, the relevant listing rules apply. Under Swiss law, it is often
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