SWITZERLAND Law and Practice Contributed by: Johannes Bürgi, Roger Ammann, Lukas Wyss and Maurus Winzap, Walder Wyss Ltd
tion process. Additional restrictions may apply under relevant foreign capital market regulations that would have to be complied with in connec - tion with any placement of securitisation trans - actions outside of Switzerland. 4.14 Other Principal Laws and Regulations See 1.3 Applicable Laws and Regulations . 5. Synthetic Securitisation 5.1 Synthetic Securitisation Regulation and Structure As Switzerland has not adopted specific secu - ritisation legislation, the general legal and reg - ulatory framework also applies to synthetic securitisations, which have to be analysed and structured on a case-by-case basis. 6. Structurally Embedded Laws of General Application 6.1 Insolvency Laws As Switzerland has not adopted specific secu - ritisation regulation, the general insolvency regime and regulation (in particular the Swiss Debt Enforcement and Bankruptcy Act (DEBA)) apply in Switzerland also to Swiss entities (such as issuers, originators and servicers) in secu - ritisation transactions. Similar to other jurisdic - tions, the bankruptcy remoteness of the SPE is a key consideration when structuring a domestic securitisation transaction. 6.2 SPEs Swiss SPEs are either held and controlled by shareholders unaffiliated with, and independent from, the originator and the other transaction parties (ie, orphan SPEs) or structured as (direct
or indirect) subsidiaries of the originator; in each case depending on the specific needs and goals of the originator and corresponding require - ments from an accounting perspective in view of potential derecognition and deconsolidation. In the majority of the public transactions, the Swiss SPE is held by the respective originator, sometimes also providing for golden shareholder structures that provide the (independent) golden shareholder or shareholders with some control (veto rights) at the level of the shareholders’ meeting. Essentially, all transactions involving Swiss SPEs provide for an independent director structure giving the independent director some control (veto rights) at board level. As a matter of Swiss corporate law, the bank - ruptcy of a shareholder of the SPE will not auto - matically lead to the bankruptcy or liquidation of the SPE itself. Rather, a shareholder bankruptcy would result in the SPE’s shares falling into the bankruptcy estate of the shareholder, which would be sold in the course of such liquidation or bankruptcy. Any such transfer of shares in the SPE would not legally affect the contractual obli - gations of the SPE under the transaction docu - ments. Also, there is no concept of substan - tive consolidation under Swiss law (subject to extraordinary cases, such as fraud and abuse of rights), and a bankruptcy of an SPE shareholder would, as a matter of Swiss law, not result in a consolidation of its assets and liabilities with those of the SPE. 6.3 Transfer of Financial Assets For the perfection steps required for a transfer, see 3.3 Principal Perfection Provisions . 6.4 Construction of Bankruptcy-Remote Transactions Bankruptcy remoteness in Swiss securitisation transaction is generally achieved by the lim -
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