Public Procurement in the Health Industry

When it comes to levels of transparency in the field of public procurement, Switzerland is proud about its positioning in international rankings. This has its reasons inter alia in the well-established processes foreseen by law in most of the relevant areas. But also this field of the law needs to keep up with constant developments and innovations in the economic world, including the increasingly broad areas in which public and private activities converge for the sake of optimizing the business environment. Precisely this is what the various legislative levels in Switzerland are envisaging for the future, and substantial changes in this field are ahead of us.

One of the developments will certainly affect the procurement processes to be observed by hospitals, both stately held and private hospitals and health institutions. Philipp do Canto, our expert lawyer in Public Law, describes in this essay a recent court case in the Canton of Zurich that reflects the developments in the field of public procurement in the health industry and deals in particular with the blurred line that distinguishes the obligations of transparency in their respective procurement practices. This is an interesting essay that might be able to give you a flavor about how things are today and into which direction they might evolve in the future.

If this is a matter of your interest, do reach out to Philipp do Canto. He will be glad to elaborate on this topic and share with you his expertise and founded predictions.

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The new regulations on OTC-derivatives entering into force on January 1, 2016 will affect all industries

We are all aware of the steady increase of regulations in the financial sector, but those who are not operative in the financial industry tend to think that they are in the clear as long as they do not operate what they assess to be financial businesses. Well, this happens to show wrong.

Legal provisions that appeared to be  relevant only for banks, insurers, asset managers and some other specific operators are now turning to be relevant for a broad range of persons and companies which had not thought they would even come close the financial regulator.  A whole range of industries – starting with the chemical sector and all the way down to consumer goods traders –  might well need to look in detail at the new Swiss Financial Market Infrastructure Act (FMIA). Martin Liebi has summarised in this issue of our Legal News the key issues which might well affect you – even if you are not operating business in any of those sectors traditionally understood as being the object of strict regulatory framework of the Swiss financial oversight authorities. I strongly recommend that you look at this. Martin would be happy to elaborate on any matter you might want to discuss with him in this regards.

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New Code of Obligation Provisions as of 1 July 2015: Action required for Joint Stock Companies and Limited Liability Companies

Once upon a time the question whether the shares of a company should be bearer shares or registered shares was an important decision to be made at the time of incorporating a company. Bearer shares were mostly chosen in those cases in which either there was an essential interest in keeping the identity of the shareholders undisclosed and confidential, or there was a clear preference for the transferability of the shares being kept as easy as possible. These goals were legitimate and during long years bearer shares were seen as a fully respectable option.

And then the wave of transparency came. The fear of opaque structures aimed to hide less respectable interests has since then overtaken a part of our legal environment, and in certain circles bearer shares have become a difficult instrument to operate with. In some jurisdictions they are regarded as suspicious instruments, and other jurisdictions have even opted to abolish them.

Swiss corporate law has not abolished them. It still grants the choice between both types of shares, but the global wave of regulation has now also shown its impact. Even though bearer shares continue to be an option for Swiss companies, a new piece of legislation will come into force on 1 July 2015 with the aim of establishing some boundaries to the anonymity that bearer shares provide to shareholders or quotaholders.

Philipp Aichele and Nicole Froelicher have prepared for you a summary on the main features of the new legislation. Some 50,000 Swiss companies are affected by this new rules and need to react. Whether you are a shareholder, a director or an adviser to any affected Swiss entity, it might well be worth while taking a look at it and deciding whether you need to take action.

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Acquisitions in Kind without Consideration

As a matter of principle incorporating a Swiss company by means of a cash contribution should be an easy enterprise – although a significant amount of paperwork needs to be completed.

However you might already have been confronted with the situation in which the incorporation process became much longer and more complicated than you had expected. One reason which might have led to it could have been the fact that the incorporation process included immediate plans to invest a portion or the entire initial capital in specific assets. Depending on the party from which the assets were to be bought, the incorporation was seen by Swiss law as a qualified incorporation. In this case additional board resolutions, validations and auditor’s intervention could not be avoided – all of it for the sake of protecting potential creditor’s rights, but somehow able to turn your time plans upside down.

Knowing that you might not be able to meet an agreed-upon deadline can keep you awake at night. This is the reason why it is important to understand when and why this happens, since not all plans for actions or acquisitions immediately following the incorporation of a Swiss company are actually qualified incorporations, particularly not in those cases, in which the new company is paying no consideration for the assets. This is a topic about which lawyers, notaries and officers of the Swiss commercial registers have been discussing about for years, Daniela Fiorillo has now prepared a summary in which she clarifies this situation and defines when and how creditors need protection and when they do not. Daniela gives us an overview of the legal reasoning behind these cumbersome provisions and you should feel free to contact her or any of the lawyers at PwC Legal in case you wish to elaborate on this.

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