SWITZERLAND Law and Practice Contributed by: Johannes Bürgi, Roger Ammann, Lukas Wyss and Maurus Winzap, Walder Wyss Ltd
4.7 Use of Derivatives There are no special laws or regulations that solely apply to the use of derivatives in securiti - sation transactions in Switzerland, but the gen - eral legal framework, in particular, the FinMIA, applies with respect to the use of derivatives in As Switzerland has not adopted specific secu - ritisation legislation, the general legal framework also applies with respect to investor protection. This includes the prospectus regulation under the FinSO and FinSA, which aims at protect - ing the investors by, among others, providing for prospectus disclosure requirements in order to allow investors to make informed decisions when investing in public securitisation transac - tions and for the requirement to have the pro - spectus approved by a prospectus approval office. securitisation transactions. 4.8 Investor Protection 4.9 Banks Securitising Financial Assets Switzerland has not adopted specific legislation on the securitisation of banks, but the general legal and regulatory framework applies, in par - ticular the Swiss Banking Act and the relating ordinances. 4.10 SPEs or Other Entities SPEs in Switzerland may take the form of a lim - ited liability stock corporation (AG) or a limited liability company (GmbH). As there is no specific legislation in Switzerland on securitisations, the general legal framework also applies to SPEs and other entities. 4.11 Activities Avoided by SPEs or Other Securitisation Entities There is no specific securitisation legislation or legislation on covered bonds in Switzerland, and therefore there are no licensing require -
ments per se for SPEs, originators, servicers or other securitisation entities. However, every transaction needs to be analysed and structured carefully on a case-by-case basis in view of the general regulatory and licensing requirements under applicable financial market regulations, including the Swiss Federal Banking Act, the Swiss Federal Collective Investment Schemes Act and Swiss anti-money laundering regula - tions. Further, depending on the receivables and assets being securities or used as collateral for a covered bond and the regulatory status of the originator, additional regulations may be of rel - evance, including (but not limited to) the Con - sumer Credit Act (eg, credit card receivables or retail auto lease receivables being securitised), the Federal Law of 16 December 1983 on the Acquisition of Real Estate by Persons Abroad (Lex Koller) (eg, residential mortgage loans being securitised or used as collateral for a covered bond) or the Insurance Supervisory Act (in the case of licensed insurance companies acting as transaction parties). 4.12 Participation of Government- Sponsored Entities There have been no public transactions in which government-sponsored entities participated in the Swiss securitisation market. 4.13 Entities Investing in Securitisation Securitisation transactions that are offered to the Swiss public capital market can in principle be offered to any investor, including retail investors. However, the financial intermediaries who are involved in the placement of the notes will need to comply with their duties under financial mar - ket laws (such as the FinSA), including in rela - tion to the assessment of appropriateness and suitability of such products for the investors, as applicable. Furthermore, certain lead managers might apply (internal) guidelines in the distribu -
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