SWITZERLAND Trends and Developments Contributed by: Johannes Bürgi, Roger Amman, Lukas Wyss and Maurus Winzap, Walder Wyss Ltd
Overview In 2024, the Swiss securitisation and covered bond market has again been very robust with numerous new Swiss ABS being issued, with the trend to more private placements in securitisa - tions continuing compared to previous years and securitisations of trade receivables continuing to be a reliable source of funding for domestic originators. Also, there have been again several public issuances of domestic covered bonds under existing and new programmes, including under a CHF20 billion covered bond programme set up by a global Swiss bank. Receivable Securitisations In recent times, the securitisation of trade receiv - ables and other claims (such as claims from the purchase or rental of mobile devices) has been frequently implemented by Swiss companies from various industries and has also been an important funding tool for CFOs in 2024. Similar to other jurisdictions, receivable securiti - sation transactions in Switzerland are typically structured as true sale transactions, whereby the Swiss sellers sell, transfer and assign eligi - ble receivables to a special purpose entity (SPE) usually located outside of Switzerland against payment of the purchase price. The SPE is financed by either issuing notes or other debt instruments to investors or warehousing loans or a combination of both. These transactions fre - quently involve multiple sellers of the operating group, which are located in multiple jurisdictions and are set up by using existing platforms of banks and other arrangers. When implementing these transactions, there are a number of particularities that need to be con - sidered from a Swiss law perspective, including (but not limited to) in relation to the assignment
of underlying receivables governed by Swiss law and tax considerations. Under Swiss conflict-of-law rules, the transfer and assignment of a right or a receivable can generally be governed by the law chosen by the parties concerned. However, Article 145 of the Swiss Private International Law Act provides that the choice of a law to govern the assignment that is different from the law that is governing the underlying right or receivable may not be asserted against the underlying obligor under the assigned receivable, unless the obligor has agreed to the choice of law. As a consequence, consent being absent, the general approach is to have the assignment and transfer governed by the law of the underlying right or receivable. Under Swiss substantive laws, the assignment and transfer of a Swiss-law-governed right or claim requires an agreement among the parties (such as a receivable purchase agreement) and a written assignment from the assignor to the assignee, which requires a wet ink signature (or a specific qualified electronic signature in the sense of Article 14, paragraph 2bis of the Swiss Code of Obligations). Under Swiss substantive laws, a claim is freely assignable unless such assignment is prohibited by law, contractual arrangement or the nature of the claim. Thus, special consideration must typi - cally be given, in particular as to whether there are contractual restrictions on assignment. Typical tax considerations in receivable secu - ritisation transactions involving Swiss entities include Swiss federal withholding tax and Swiss VAT, which should be analysed on a case-by- case basis.
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