SWITZERLAND Law and Practice Contributed by: Lorenzo Olgiati and Pascal Hubli, Schellenberg Wittmer Ltd
5.4 Global Anti-Money Laundering Swiss companies, may be affected by anti-money laundering rules, but the Swiss Anti-Money Launder - ing Act (AMLA) and the related ordinances applies pri - marily to financial intermediaries (such as banks, asset managers, and insurers). The key obligations include: • customer due diligence (KYC) and identification of the UBO; • ongoing monitoring of transactions; • record-keeping; and • duty to report suspicious activities to the Money Laundering Reporting Office Switzerland (MROS). Based on its non-transferable and inalienable duties, the board is required to ensure effective oversight of AML compliance. This includes the implementation of appropriate risk management systems, internal con - trols and compliance functions. For regulated entities, supervisory expectations require boards to take an active role in overseeing AML risks, integrating them into the broader risk man - agement and internal control system. Directors may personally face civil liability under the CO if they fail to implement or supervise adequate AML systems. Potential consequences include liability for damages, regulatory sanctions (for regulated enti - ties), as well as criminal liability in serious cases. The liability risk is particularly high where the board fails to implement or supervise adequate AML controls. 6. Audit, Risk and Internal Controls 6.1 External Auditors Depending on the size of the entity, a company has to submit its accounts and financial statements to an ordinary (ie, full) audit or a limited audit. No audit requirement exists for smaller companies with less than ten full-time employees, if their shareholders unanimously resolve to opt out of the audit require - ment. An ordinary audit of the annual accounts, and, if appli - cable, the consolidated accounts, is required for the following companies:
separate corporate governance section concerning important information on the management and control mechanisms at the highest corporate level. Although information on remuneration is compulsory (see 3.10 Payments to Directors/Officers ), other broad catego - ries of information – such as group and capital struc - ture, board of directors, auditors, shareholder partici - pation rights, change of control or defence measures, and information policy – may be dealt with in accord - ance with the principle of “comply or explain”. Management Transactions The SIX Directive on the Disclosure of Management Transactions imposes obligations on listed issuers to disclose any buy-or-sell transactions concluded by their directors and members of the executive man - agement (including related parties) in the respective issuer’s equity securities or financial instruments. Each issuer has to ensure that its board members and executive management report each management transaction to the issuer within two trading days. The issuer has to publish the notified transaction via the SIX electronic reporting platform for the disclosure of management transactions within three trading days following such notification; the report will be shown without mentioning the individual’s name. 5.3 Incorporation and Registration Swiss companies must file relevant corporate infor - mation and any changes thereto with the competent cantonal commercial registry. This includes amend - ments to the articles of association, such as a change to the corporate purpose, the capital structure, share transfer restrictions, and appointments to the board, as well as changes to other authorised signatories. This information is publicly available from the com - petent commercial registry and filings must be made upon occurrence and are also published electronically in the Swiss Official Gazette of Commerce. Unregistered changes are not effective vis-à-vis third parties. The commercial register has formal supervisory pow - ers. It reviews whether filings comply with mandatory legal requirements and may refuse non-compliant registrations.
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