FINSA and FINIA enter home stretch

Economic Affairs and Taxation Committee of the National Council (WAK-N) concludes consultations

The Economic Affairs and Taxation Committee of the National Council (WAK-N) has concluded its consultation on the Financial Services Act (FINSA) and the Financial Institutions Act (FINIA). This was communicated today in a media release. Accordingly, the bill will now be subject to consultation in the National Council in the fall session. As FINSA and FINIA have already been passed in the Council of States by the end of last year the bill now has to pass its last obstacle.

By and large the WAK-N conformed to the resolution of the Council of States in terms of content. Nevertheless, the WAK-N differed with the Council of States in certain points. With respect to the FINSA there were differences with respect to the conditions for the preparation of a prospectus, the liability for false details contained in the prospectus or the Key Information Document as well as the criminal provisions. With respect to the FINIA the WAK-N differed in particular as far as the provisions contained in the Annex are concerned. According to the resolution of the WAK-N the provision in the Banking Act (BA) contained in the Annex to FINIA should not be changed at all.

In certain points the members of the WAK-N could not reach an agreement. This concerned in particular the criminal provisions, the scope with respect to the insurance companies and the external asset managers.

The draft of the bill as resolved by the WAK-N will be available in due course.

Please do not hesitate to contact us.

Günther Dobrauz
Partner
Leader Legal FS Regulatory &
Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Tina Balzli
Director
Head Banking, Legal FS Regulatory and
Compliance Services
+41 58 792 15 54
tina.balzli@ch.pwc.com

Simon Schären
Manager
PwC Legal FS Regulatory and
Compliance Services
+41 58 792 14 63
simon.schaeren@ch.pwc.com

Synopsis of the most important regulatory developments in the banking and asset management industry

Status as of August 2017

The most important regulatory developments with comments to important aspects/changes and status:

  • Interdisciplinary issues
  • Banks/securities dealers
  • Fund management companies/investment funds/representatives of foreign collective investment schemes

Download

Contact

Bruno Gmür
Technical Partner Financial Services Banking
PwC Schweiz
+41 58 792 7317
bruno.gmuer@ch.pwc.com

How banks are gearing up for PSD2

With around five months to go, banks don’t have much time left
to make sure they’re compliant with the EU’s revised Payment
Services Directive (PSD2). However, for many financial institutions,
PSD2 is more than just a compliance exercise. It will impact
banks’ strategic positioning and significantly change their risk
profile as they interact with third parties.

Since Switzerland is not a member of the EEA, PSD2 isn’t directly
applicable in this country. But given that Switzerland is a member
of SEPA (the Single Euro Payments Area), in the future it will be
required to demonstrate that national rules similar to PSD2 are in
place. There will also be heavy pressure on Swiss banks from the
client side to open up their architecture vis-à-vis third parties.

PwC’s PSD2 team recently conducted a study across the Swiss and
European markets on banks’ readiness to tackle the new rules.
The survey ran from February to June this year, and 38 large
banks responded. The objective was to understand how much
progress regulators in each state had made in terms of transposing
PSD2 into national regulation, the state of play for banks in
relation to implementing PSD2, what opportunities banks felt
PSD2 offered them, and the impact that open data might have on
banks’ systems and infrastructures.

Results of Survey

Read more about PSD2

Get in contact with us:

Günther Dobrauz
Partner, Leader Legal FS
Regulatory & Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager, Legal FS
Regulatory & Compliance Services
+41 58 792 10 87
michael.taschner@ch.pwc.com

Philipp Rosenauer
Manager, Legal FS
Regulatory & Compliance Services
+41 58 792 18 56
philipp.rosenauer@ch.pwc.com

The new FX Global Code applicable to wholesale FX trading

The FX Global Code has been published in and is applicable from May 2017 and provides a set of global principles of good practice in the foreign exchange market (Global Code). It has been developed in a partnership between central banks and market participants from 16 jurisdictions around the globe.

The Global Code is so-called “soft law” and thus non-binding law. Why should market participants care? The Global Code is the new global standard for doing business in FX markets. It is being backed by multiple regulators such as the FCA and FINMA. They all have expressed their wish that the Global Code should become the new minimum standard of doing business in the FX wholesale market. It is likely that courts will contemplate it when interpreting contractual or regulatory provisions. Market participants that do not comply with the Global Code will have fewer counterparties to trade with.

 Who is affected by the Global Code?

The Global Code applies to anyone active in the FX markets as a regular part of its business that:

  • is engaged in the purchase/sale of one currency against another, transactions designed to create gains or losses due to the change in FX rates, including derivatives, whether deliverable or non-deliverable, either directly or indirectly through market participants; or
  • operates a facility, system, platform or organization through which participants have the ability to execute the transactions mentioned above; and
  • is not considered a retail investor in Switzerland

The affected Market Participants are thus a wide array of different players, such as financial institutions, asset managers, hedge funds, pension funds, insurance companies, corporate treasury departments, family offices with treasury operations, non-bank liquidity providers, firms running automated trading strategies, brokers, E-trading platforms, and the remittance business in the wholesale market.

Pure pricing display platforms, remittance business in the retail market, private banking customers trading as individuals or via personal investment vehicles, and the general retail public remain unaffected.

What is regulated in the Global Code?

The Global Code contains content about the following key principles and sub-principles:

  • Ethics: Market Participants are expected to behave in an ethical and professional manner to promote the fairness and integrity of the FX Market.
    • Market Participants should strive for the highest ethical and professional standards as well as identifying and addressing conflicts of interests.
  • Governance: Market Participants are expected to have a sound and effective governance framework to provide for clear responsibility for and comprehensive oversight of their FX market activity and to promote responsible engagement in the FX market. Market Participants should thus:
    • Put in place adequate and effective structures and mechanisms to provide for appropriate oversight, supervision and controls with regard to FX Market activity.
    • Embed a strong culture of ethical and professional conduct with regard to their FX Market activities.
    • Have remuneration and promotion structures that promote market practices and behaviours that are consistent with the Market Participant’s ethical and professional conduct expectations.
    • Have appropriate policies and procedures to handle and respond to potentially improper practices and behaviours effectively.
  • Execution: Market Participants are expected to exercise care when negotiating and executing transactions in order to promote a robust, fair, open, liquid and appropriately transparent FX Market. This means that Market Participants have to:
    • Become clear about the capacities in which they act.
    • Handle orders fairly and with transparency in line with the capacities in which they act.
    • Handle orders fairly, with transparency, and in a manner consistent with the specific considerations relevant to different order types.
    • Only pre-hedge client orders when acting as a principal, and should do so fairly and with transparency.
    • Not request transactions, create orders or provide prices with the intent of disrupting market functioning or hindering the price discovery process.
    • Understand how reference prices, including highs and lows, are established in connection with their transactions and/or orders.
    • Ensure that the mark up applied to client transactions by Market Participants acting as principals should be fair and reasonable.
    • Identify and resolve trade discrepancies as soon as practicable to contribute to a well-functioning FX Market.
    • Ensure that Market Participants acting as voice brokers should only employ name switching where there is sufficient credit between parties to the transaction.
    • In case of a last look, ensure that it is transparent regarding its use and provide appropriate disclosures to clients.
    • Ensure that Market Participants providing algorithmic trading or aggregation to clients should provide adequate disclosure regarding how they operate.
  • Information sharing: Market Participants are expected to be clear and accurate in their communications and to protect confidential information to promote effective communication that supports a robust, fair, open, liquid and appropriately transparent FX Market. Market Participants have to:
    • Clearly and efficiently identify and appropriately limit access to confidential information.
    • Not disclose confidential information to external parties, except under specific circumstances.
    • Communicate in a manner that is clear, accurate, professional and not misleading.
    • Communicate market colour appropriately and without compromising confidential information.
    • Provide personnel with clear guidance on approved modes and channels of communication.
  • Risk management and compliance: Market Participants are expected to promote and maintain robust control and an environment of compliance to effectively identify, manage and report on the risks associated with their engagement in the FX Market. This means that Market Participants should:
    • Have frameworks for risk management and compliance.
    • Familiarize themselves with, and abide by, all applicable law and standards that are relevant to FX Market activities and have an appropriate compliance framework in place.
    • Maintain an appropriate risk management framework with systems and internal controls to identify and manage the FX risks they face.
    • Have practices in place to limit, monitor and control risks related to their FX market trading activity.
    • Have a process in place to independently review the effectiveness of and adherence to risk management and compliance functions.
    • Have adequate processes to manage counterparty credit risk exposure, including, where appropriate, through the use of appropriate netting and collateral arrangements, such as legally enforceable master netting agreements and credit support arrangements.
    • Have processes to measure, monitor, report and manage market risk in an accurate and timely way.
    • Have independent processes in place for mark-to-market trading positions to measure the size of their profit and loss and the market risk arising from trading positions.
    • Have appropriate processes in place to identify and manage operational risks that may arise from human error, inadequate or failed systems or processes, or external events.
    • Have adequate business continuity plans in place that are appropriate to the nature, scale and complexity of the FX business.
    • Have processes in place to address potential adverse outcomes arising from the use or reliance on technological systems.
    • Have prudent measures to manage and reduce their settlement risk.
    • Keep a timely, consistent and accurate record of their market activity to facilitate appropriate levels of transparency and auditability and have processes in place designed to prevent unauthorized transactions.
    • Perform “know-your-customer” (KYC) checks on their counterparties against money laundering, terrorist financing, or other criminal activities.
    • Have reasonable policies and procedures ensuring that trading access is limited to authorized personnel only.
    • Generate a timely and accurate record of transactions undertaken to enable effective monitoring and auditability.
    • Have processes in place to identify and manage legal risks arising in relation to their FX Market activity.
    • Strive to monitor and control trading permissions and credit provisions in real time.
  • Confirmation and settlement process: Market Participants are expected to put in place robust, efficient, transparent, and risk-mitigating post-trade processes to promote the predictable, smooth, and timely settlement of transactions in the FX Market. This means in particular:
    • The establishment of consistency between operating practices, their documentation, and policies for managing credit and legal risks.
    • A robust framework for monitoring and managing capacity in both normal and peak conditions.
    • The implementation of straight-through automatic transmission of trade data from their front office systems to their operation systems.
    • Conducting any updates, amendments and/or cancellations of transactions in a controlled manner.
    • Confirming trades as soon as practicable and in a secure and efficient manner.
    • Reviewing, affirming, and allocating block transactions as soon as practicable.
    • Identifying and resolving confirmation and settlement discrepancies as soon as practicable.
    • Being aware of particular confirmation and processing features specific to life cycle events of each FX product.
    • Measuring and monitoring settlement risk and seeking to mitigate that risk when possible.
    • Utilizing standing settlement instructions.
    • Requesting direct payments.
    • Having adequate systems in place to allow them to project, monitor and manage their intraday and end-of-day funding requirements to reduce potential complications during the settlement process.
    • Performing timely account reconciliation processes.
    • Identifying settlement discrepancies and submitting compensation claims in a timely manner.

Please get in contact for your free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

EU Benchmarks Regulation and Market Impact as of 1 January 2018

The new EU Benchmarks Regulation (BMR) was published in June 2016 and most rules will apply as of 1 January 2018. The BMR introduces new compliance requirements for benchmark administrators, contributors, and users, with regard to interest rate, foreign exchange, security, commodity, and other benchmarks used in financial transactions. The BMR was enacted in response to public pressure resulting from the aftermath of the LIBOR scandals and follows the recommendations of the IOSCO and ESMA EBA Principles.

Executive summary

Functioning benchmarks are key to ensuring the smooth functioning of financial markets. However, they lead to conflicts of interest and other integrity issues on the part of contributors of input data and administrators. The scope of the BMR covers all published benchmarks which are used in the European Union with regard to associating financial instruments, financial contracts and/or fund managers. The BMR defines obligations and conduct requirements for both administrators and contributors to ensure market integrity. The Regulation has an extraterritorial dimension in cases where third country administrators request market access. Market access can be granted on the basis of equivalence, recognition, and endorsement by an EU supervised entity. All the legal requirements of the BMR will phase-in on 1 January 2018 and take effect on 1 January 2020 – except for the EURIBOR, which is subject to the BMR today.

What is a benchmark?

A benchmark is defined as “a reference index, to which the amount payable under a financial instrument or a financial contract, or the value of a financial instrument, is determined, or an index that is used to measure the performance of an investment fund with the purpose of tracking the return of such index or of defining the asset allocation of a portfolio or of computing the performance fees” (Article 3(1)(3) BMR).  Such an index is a figure, fulfilling one of the following criteria:

  1. Published or made publicly available;
  2. Determined at a regular interval by either:
    • partially or entirely applying a formula or any other method of calculation, or another means to assess it by; and
    • on the basis of the value of one or more underlying assets or prices, including estimates of prices, actual or estimated interest rates, quotes and committed quotes, or other values or surveys.

Derivatives as defined in Section C, Annex I, Directive 2014/65/EU do not qualify as an index where there is only a single reference value. Such is the case where a single price or value is used as a reference for a financial instrument, e.g. the reference price for a future or option, without any calculation, input data or discretion. Equally, reference or settlement prices produced by central counterparties are not considered to be benchmarks.

Who will be affected?

While the IOSCO Principles are the basis of the BMR, the Principles included the concept of “comply or explain”; this exemption with respect to proportionality and the nature of the benchmark is only included to a limited extent in the BMR. In order to comply with the new Regulation, administrators of a benchmark will either have to apply for registration or for authorisation, depending on the type of benchmark they provide. The provision of critical and significant benchmarks, as well as commodity and interest rate benchmarks, requires an application, while in all other cases registration with the designated authority will suffice.

  • Administrators: An administrator can be either a natural person or a legal entity with control over the provision of a benchmark, in particular by administering the arrangements determining the benchmark, by collecting and analysing the input data, as well as by determining the rate of the benchmark, and by publishing it. While specific functions of the administrator can be outsourced to a third party, the sole act of publishing or referring to an existing benchmark is insufficient for an individual or an entity to be considered as the benchmark administrator. Control of provision of the benchmark is a necessary regulatory requirement for the provider to become subject to the BMR.
  • (Supervised) Contributors: The two types of contributors are differentiated in that any natural person or legal entity can contribute input data as a “contributor”, but only a “supervised contributor” can contribute input data to an administrator located in the EU as a supervised entity and the contributor has to comply with more stringent requirements, in accordance with Article 16 BMR. The quality and reliability of any benchmark is based on the integrity and accuracy of the input data, which is provided by the contributor. To prevent manipulation at data contribution level, contributors are subject to stringent rules under the BMR. The administrator has to ensure contributors adhere to the code of conduct and that input data is of the required integrity and can be validated, even if the contributor is located in a third country. Any omission by a contributor providing input data to a critical benchmark can undermine the credibility and representativeness of such a benchmark, with severe impact on the underlying market and economic reality. As such, national authorities are given the power to demand mandatory contributions from supervised contributors to critical benchmarks.
  • User of a benchmark: A supervised entity may use a benchmark or a combination of benchmarks in the EU if the benchmark is provided by an administrator located in the Union and included in the register or is a benchmark which is included in the register. Where the object of a prospectus is transferable securities or other investment products that reference a benchmark, the issuer, offeror, or person asking for admission to trade on a regulated market shall ensure that the prospectus also includes clear and prominent information stating whether the benchmark is provided by an administrator included in the register.

Which benchmarks will be affected?

The BMR subdivides the benchmarks into various subcategories, based on the type of market they reproduce. The Regulation contains specific additional requirements for both commodity and interest rate benchmarks. The following provides an overview of the various subcategories of benchmarks:

Type of Benchmark Description
Regulated Data Benchmark Data input for the benchmark is provided directly from regulated venues. Certain provisions of the BMR do not apply to regulated data benchmarks, and they cannot be classified as critical.
Interest Rate Benchmark An IR Benchmark is determined on the basis of the rate at which banks may lend or borrow from other banks or agents in the money markets. They are subject to the requirements set out in Annex I BMR. Provisions of the BMR relating to significant and non-significant benchmarks do not apply.
Commodities Benchmark The basis for the benchmark is a commodity as defined by MiFID II. Commodity Benchmarks are subject to the requirements of Annex II BMR, unless the benchmark also qualifies a regulated data benchmark, or is based on submissions from mainly supervised entities. Provisions of the BMR relating to significant and non-significant benchmarks do not apply.
Critical Benchmark To qualify as a critical benchmark, the value of the underlying contracts needs to be at least EUR 500 bn, or it has to have been recognised as critical in a member state. Critical benchmarks are subject to more stringent and specific requirements than other types of benchmarks.

A framework has been developed by ESMA to determine Interbank Offered Rates benchmarks (IBORs) and the Euro Over Night Index Average (EONIA) as critical benchmarks. To date, only EURIBOR has been qualified as such by the EC.

Significant Benchmark Requires the value of underlying contracts to be at least EUR 50 bn, or there to be none or very few market-led substitutes, leading to significant impact on financial stability, if the benchmark ceases to be produced.
Non-Significant Benchmark All other benchmarks where the benchmark is neither a commodity nor an interest rate benchmark and the value of underlying contracts of the benchmark is less than EUR 50 bn.

How will a Switzerland-based benchmark provider be affected?

Non-EU administrators are subject to BMR rules where they intend to obtain EU market access; non-compliance will likely lead to these non-EU benchmarks being denied EU market access. There are three ways for third country administrators to become compliant: equivalence, recognition, and endorsement. Firstly, an equivalence decision with regard to foreign jurisdictions can be made by the European Commission if the requirements of Article 30(1) BMR are met and this results in benchmarks from relevant third country jurisdictions being eligible for use by supervised entities in the EU. Secondly, where an administrator located in a third country provides proof of compliance with the IOSCO Principles and said compliance is equivalent to the BMR, the administrator should be recognised as an administrator within the EU. An administrator located in a third country, such as Switzerland, must have a legal representative in the reference member state, if the entity intends to obtain recognition. The legal representative must oversee the provision of benchmarks as performed by the administrator and is accountable to the competent EU member state authority. Finally, market access as a third country administrator can be gained through an endorsement by an administrator of a supervised entity located in the EU. Endorsement will permit market access where the third country administrator adheres to the IOSCO Principles and such adherence results in equivalent compliance with the BMR.

Obligations for administrators and contributors

The BMR directly imposes a variety of obligations on persons involved in the provision, contribution, and use of benchmarks throughout the EU to prevent conflicts of interest and manipulation of benchmarks as well as to ensure maximum harmonisation in cross-border applications. If tasks are outsourced to an external service provider the provider also has to adhere to the BMR. In particular, the administrator is required to provide a code of conduct specifying the requirements and responsibilities regarding input data and to supervise adherence to the code, even if the contributor is located in a third country.

The obligations include the following provisions for administrators:

  • Robust governance arrangements, including a clearly organisational structure with well-defined, transparent and consistent roles and responsibilities for all involved, preventing conflicts of interest (Article 4 BMR).
  • Develop and maintain robust procedures to ensure oversight of all aspects of the provision of a benchmark and communication with the relevant competent authorities (Article 5 BMR).
  • Ongoing control of benchmarks to ensure they are provided, published and/or made available in accordance with the Regulation, and maintained through an accountability framework, record-keeping, auditing, and review and complaints handling process (Article 6 to Article 9 BMR). These frameworks must include any third party to which a task has been outsourced (Article 10 BMR).
  • The administrator is also responsible for overseeing the quality of input data and reporting any infringements without delay to the competent authority (Article 11 to Article 15 BMR).

The obligations include the following provisions for contributors:

  • The contributor must adhere to the code of conduct provided by the administrator and the specific requirements prescribed with respect to the contribution of input data (Article 15 BMR).
  • Supervised contributors must also ensure input data is not affected by any existing or potential conflicts of interest and that all discretion is exercised in an independent and honest way (Article 16 BMR).

Typical products in scope

Entry into force

The BMR will enter into force on 1 January 2018. There is a transition period for certain new and existing benchmarks until 1 January 2020. In accordance with the transitional provisions of Article 51(3) BMR, ESMA considers existing benchmarks as including benchmarks “existing on or before 1 January 2018”, including those provided for the first time on or before 1 January 2018. Thus, an EU index provider may provide a benchmark created between 30 June 2016 and 1 January 2018, including updates and modifications, to supervised entities in the EU until 1 January 2020, even if authorisation or registration has not yet been granted, unless authorisation or registration has been refused.

The BMR has applied to the EURIBOR since 12 August 2016, following qualification as a critical benchmark.

Impact

The BMR is a highly complex regulation with implications for all market participants. It requires considerable time to plan, structure, and implement the requirements set forth in accordance with the IOSCO Principles and EU regulations. The requirements have a direct impact on the usage of benchmarks, provision of input data, and cross-border market access.

Please contact our experts on this topic for a free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

Alexandra Balmer
Consultant
Legal FS Regulatory & Compliance Services
Tel: +41 58 792 1424
alexandra.balmer@ch.pwc.com

The New EU Prospectus Regulation and its impact on Swiss-based issuers and their KIDs under PRIIPs

The new EU Prospectus Regulation (“PR”) was adopted by the European Council on 16 May 2017 and will enter into force on 20 July 2017. The PR is the latest regulation issued by the European Capital Markets Union (“CMU”) and should become reality by 2019. The PR is based on and further clarifies the existing EU Prospectus Directive. It contains provisions that are directly applicable in all EU member states without discretion, but that also apply in particular to Swiss-based issuers and their agents offering securities in the EU or admitting transferable securities to trading on regulated markets located in the EU such as EUREX. One of the main goals of the PR is to reduce the length of prospectuses by providing clear and detailed guidelines of how to create a prospectus. This newsletter gives a short overview of the key content of the PR and explains in particular how it will be applicable to Swiss-based issuers and their agents.

1. Executive Summary

The PR particularly affects Swiss-based issuers and their agents publicly offering transferable securities in the EU and admitting transferable securities to EU regulated markets such as EUREX.

Most financial instruments, such as shares, bonds, warrants and structured products come under its scope, except for units in collective investment schemes which are not close-ended. There are detailed new requirements related to the content, scope, length, formalities and other requirements of a prospectus.

The summary of a prospectus can be used instead of a KID created under PRIIPs. Issuers should therefore investigate operational and legal synergies between the PR and the KID. Consequently, the PR should be addressed now despite the fact that most provisions will not enter into force until 21 July 2019.

2. When a prospectus is required

A prospectus must be published when transferable securities are offered to the public in the EU or admitted to trading on regulated markets located in the EU by means of a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe to the securities in question.

The prospectus obligation applies to both equity and non-equity securities entitling the holder either to acquire transferable securities or to receive a cash amount through a cash settlement determined by reference to other instruments, notably transferable securities, currencies, interest rates or yields, commodities or other indices or measures. It covers in particular warrants, covered warrants, certificates, structured products, and securities convertible at the option of the investor, but not units in collective investment schemes other than the closed-end types.

No public offer of transferable securities is deemed an offer to qualified investors in the sense of MiFID II (safe harbour). Any resale to the public of transferable securities first placed with qualified investors or admitted to trading on a regulated market will however require the publication of a prospectus. Offers to fewer than 150 natural or legal persons per EU Member State are not deemed to be public, nor are offers of securities with denominations per unit amounting to at least EUR 100,000 or offers of securities addressed to investors who acquire securities for a total consideration of at least EUR 100,000 per investor. There are also multiple exemptions applicable to securities traded on a regulated market.

Resales of transferable securities in the scope of the PR are generally treated as separate offers and are subject to a prospectus, unless an exemption applies. No additional prospectus is required as long as a valid prospectus is available. A prospectus is valid for 12 months from the date of approval of the offer or the admission to trading and the date on which the issuer or the person responsible for drawing up the prospectus consents to its use in written form.

It is possible to voluntarily draw up a prospectus in accordance with the provisions of the PR even if the offer would be outside the scope of application of the PR. Such prospectuses are subject to all the rights and obligations of a prospectus created according to the PR.

3. The issuer of a prospectus

The issuer who issues or proposes to issue securities, the offeror who offers securities to the public, or a mandated third party such as a bank, is responsible for ensuring that the prospectus provides sufficient information to enable investors to make informed investment decisions.

The liability for the information given in the prospectus, and any supplement thereto, lies at the very least with the issuer, or its administrative, management or supervisory bodies, the offeror, the person asking for the admission to trading on a regulated market, or the guarantor. The persons responsible for the prospectus must be clearly identified in the prospectus. Civil liability remains with the individual EU member states.

4. When do Swiss-based issuers have to issue a prospectus?

Any non-EU domiciled issuer, such as a Swiss issuer, bank or intermediary, can offer transferable securities in the EU or seek admission to trading of securities on a regulated market established in the EU, such as EUREX, if a prospectus is drawn up and approved by the competent authorities according to the PR. It is to be expected that the corresponding Swiss prospectus requirements will be equivalent to the prospectus requirements under the PR. The Swiss requirements are currently undergoing a revision in the context of the debate on the Swiss Financial Services Act (FinSA) in the Swiss parliament. As a result, competent authorities may in future even approve prospectuses issued under Swiss law if certain additional requirements are met.

5. The Key Types of Prospectuses

6. The prospectus approval process

Any prospectus and all its constituent parts must be approved by the competent authority prior to publication. Any of the constituent parts can be approved separately. The competent authority is generally the EU member state where the issuer has its registered office or, in the case of a third-country issuer such as a Swiss bank, the member state where the securities are intended to be offered to the public for the first time or where the first application for admission to trading on a regulated market is made.

The prospectus has to be made available to the public by the issuer, offeror or person asking for admission to trading on a regulated market in advance of, and at the latest at the beginning of the offer to the public or the admission to trading of the securities concerned. The prospectus is regarded as public if it is published in electronic format or on certain web pages.

The approving authority will then notify the competent authorities of the EU member states in which the securities will be distributed.

7. The rules for advertisements

Any advertisement regarding either an offer of securities to the public or an admission to trading on a regulated market must be clearly recognisable as such. All information disclosed in the context of an advertisement must be consistent with the information contained in the prospectus.

8. When are updates required?

Every significant new factor, material mistake or material inaccuracy relating to information included in the prospectus which may affect the assessment of securities and which arises between the time of the approval of the prospectus and the closing of the offer period or when trading on the regulated market begins, must be mentioned in a supplement to the prospectus and must be approved by the competent authority. In such cases, investors who have already agreed to purchase or subscribe to the securities have two days in which to withdraw their acceptance.

9. When will the PR enter into force?

The PR will enter into force on 20 July 2017. There will be a transitional period until 21 July 2019 for most requirements under the PR. Certain provisions will already apply as of 21 July 2018 and 20 July 2017 respectively, such as the exemption from publishing a prospectus for shares which represent less than 20% of the number of shares of the same class admitted to trading on the same regulated market over a period of 12 months.

Please contact us for your free consultation:

Martin Liebi
Director
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

Michael Taschner
Senior Manager
Legal FS Regulatory & Compliance Services
+41 58 792 23 25
michael.taschner@ch.pwc.com

Anne Batliner
Manager
Legal FS Regulatory & Compliance Service
+41 58 792 2955
anne.batliner@ch.pwc.com

Latest Level 3 ESMA Q&As related to MiFID II/MiFIR – July 2017

ESMA published and updated in the last couple of days additional Level 3 Q&A papers. Due to the specification and clarification purposes of the Level 3 papers, this should help you during the implementation phase and could clarify open questions. Please find the relevant ESMA Q&As from 7 July and 10 July 2017 listed below.

PwC provides you with this newsletter an overview of the latest questions related to the following topics:

  1. Investor protection and intermediaries topics (10 July 2017)
  • Best execution
  • Recording of telephone conversations and electronic communications
  1. Market structures topics (7 July 2017)
  • Direct Electronic Access (DEA) and algorithmic trading
  • Multilateral and bilateral systems
  • Access to CCPs and trading venues
  1. Data reporting (7 July 2017)
  • Field 14 and Field 17 – Total issued nominal amount
  • Field 30 – Quantity
  • Reference data for financial instrument
  • Transaction reporting
  • Order record keeping
  1. Commodity derivatives topics (7 July 2017)
  • Position limits
  • Position reporting

Read the whole article.

We are happy to discuss with you any thoughts and issues or are happy to review your solutions with regard to MiFID II and MiFIR.

Please do not hesitate to contact us.

Günther Dobrauz
Partner
Leader Legal FS Regulatory & Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager
PwC Legal FS Regulatory & Compliance Services
+41 58 792 23 25
michael.taschner@ch.pwc.com

Orkan Sahin
Senior
PwC Legal FS Regulatory & Compliance Services
+41 58 792 19 94
orkan.sahin@ch.pwc.com

Newsflash: The Swiss Federal Council has published some key amendments to the current version of the Swiss Financial Market Ordinance (FinfraV/FMIO)

The new regulations on initial and variation margins for OTC-derivatives, the platform trading obligation, the delayed recording and reporting obligation for securities dealers and foreign market participants, and the prolonged exemption for pension funds and investment funds for retirement.

The Swiss Federal Council has published some key amendments to the current version of the Swiss Financial Market Ordinance (FinfraV/FMIO) affecting a wide variety of market participants such as counterparties of OTC-derivatives, securities dealers, pension funds, and investment funds for retirement.

The new regulations on initial and variation margins for OTC-derivatives under the Swiss Financial Market Infrastructure Act FinfraV/FMIO will enter into force on the 1st of August 2017. The variation margin requirements under FinfraV/FMIO will enter into force on the 1st of September 2017 and will affect all counterparties to OTC-derivatives not being small non-financial counterparties (NFC-). The key new requirements under the new initial and variation margins regulations will be as follows:

  • The new regulations are much stronger aligned to the final initial and variation margin regulations under EMIR, the corresponding European regulation. The new Swiss regulations do however not impose an obligation to review the legal opinions applicable to OTC-contracts on an annual basis. This is a welcomed alleviation for the Swiss market participants.
  • It is now generally possible to re-use initial margins granted in the form of cash if they are held in custody with a third party custodian bank or a central bank.
  • It is now possible to change the method for the calculation of the initial margin in each derivative category also after a mutual agreement on such calculation has been achieved.
  • There will no mandatory haircut of 8% anymore if the variation margin paid in cash is not provided in the mutually agreed currency.
  • The obligation to exchange initial and variation margins for options on equity, indexes or similar equity derivatives will apply only beginning as of the 4th of January 2020.
  • Units in UCITS funds can now also be used for initial and variation margin purposes.
  • No initial margin must be provided anymore for the foreign exchange component of Cross Currency Swaps.
  • OTC-derivatives related to covered bonds are under certain conditions totally or at least partially exempted from the initial and variation margin obligation.

The platform trading obligation, that requires that certain specifically designated derivatives must be traded on a trading venue, has formally set in force. There is however currently no derivatives category that has been designated as subject to the trading obligation on a platform.

Another important alleviation for securities traders and foreign market participants at Swiss trading venues is the delayed entry into force of the recording and reporting obligations. These obligations will now only enter into force on the 1st of October 2018 for Swiss securities dealer. The transactions and orders that have occurred in between the 1st of January 2018 and the 30th of September 2018 will however have to be recorded and reported no later than until the 31st of December 2018 (“backloading”). The recording and reporting obligations will enter into force for foreign branches of Swiss securities dealers and foreign participants of Swiss trading venues as of the 1st of January 2019.

The exemption for pension funds and investment foundations for retirement from the clearing obligation has been extended until the 16th of August 2018.

Please do not hesitate to contact us for a free consultation on any of these new provisions.

Contact

Martin Liebi
Head Capital Markets
martin.liebi@ch.pwc.com
0041 76 341 65 43

EU conflict minerals legislation

EU conflict minerals legislation will enter into force on 7 July 2017 and affect all EU importers of gold, tin, tungsten and tantalum (metals and ores).

The new EU conflict minerals regulation (“CMR”) was officially published on 9 May 2017 and will enter into force on 7 July 2017. The CMR introduces new compliance rules for EU importers of gold, tin, tungsten and tantalum, as well as their ores (“metals and minerals”), which stem from conflict-affected and high-risk areas, among others. The CMR is based on the OECD Due Diligence Guidance for responsible supply chains of minerals from conflict-affected and high-risk areas (“OECD Due Diligence Guidance”), including the annexes and supplements thereto. The USA have already introduced their version of a conflict minerals regulation in Section 1502 of the Dodd-Frank Act. This memorandum provides an overview of the key features of the CRM.

Summary

The EU Conflicts Minerals Regulation covers gold, tin, tungsten and tantalum, as well as their ores, which stem from conflict-affected or high-risk areas, among others. The CMR will affect all EU importers (or third parties acting on their behalf) of gold, tin, tungsten and tantalum, and those involved in the EU supply chain of the import of these metals and minerals. EU importers or third parties acting on their behalf must comply with the following key obligations: the creation of management and risk management systems, third party audits, disclosure obligations and ex-post checks. Non-EU importers must ensure that EU importers can fulfil their obligations by providing the required information and data for supply chain traceability. The CMR will enter into force on 7 July 2017. Its key obligations will however only come into effect on 1 January 2021.

Who is affected?

The obligations of the CMR will mainly affect EU importers of metals and minerals. An “EU Importer” is any natural or legal person declaring metals or minerals for release for free circulation, or any natural or legal person on whose behalf such declaration is made. Non-EU goods intended to be put on the EU market or intended for private use or consumption within the customs territory of the EU shall be placed under release for free circulation. Release for free circulation entails:

  1. the collection of any import duties due
  2. the collection, as appropriate, of other charges, as provided for under relevant and effective provisions relating to the collection of such charges
  3. the application of commercial policy measures and prohibitions and restrictions insofar as they do not have to be applied at an earlier stage
  4. the completion of other formalities established in respect of the import of goods.

Release for free circulation shall confer the customs status of EU goods on non-EU goods.

It is important to note, however, that EU importers sourcing metals and minerals not stemming from areas deemed to be “conflict-affected or high-risk” must maintain their responsibility to comply with the due diligence obligations of the CMR. In other words, all EU importer of metals and minerals must comply with the requirements of the CMR. Commodities traders who are not EU importers of metals and minerals are still affected by the CMR because they are part of the supply chain. These traders must ensure that EU importers can fulfil their traceability obligations and other duties under the CMR.

Which metals and minerals are affected?

The CMR impacts gold, tin, tungsten and tantalum and their ores (“metals and minerals”) if they exceed a certain threshold volume. EU authorities have outlined the affected metals and minerals in their “Combined Customs Nomenclature”. Please find below an indicative table of the affected CN codes and exempted volumes.

Affected minerals

Description EU CN code TARIC subdivision Exempted threshold volume (kg)
Tin ores and concentrates 2609 00 00 5,000
Tungsten ores and concentrates 2611 00 00 250,000
Tantalum or niobium ores and concentrates ex 2615 90 00 10 To be communicated
Gold ores and concentrates ex 2616 90 00 10 To be communicated
Gold, unwrought or in semi-manufactured form, or as a powder with a gold concentration lower than 99.5% that has not passed the refining stage ex 7108 100

Affected metals

Description CN code TARIC subdivision Threshold volume (kg)
Tungsten oxides and hydroxides 2825 90 40 100,000
Tin oxides and hydroxides ex 2825 90 85 10 To be communicated
Tin chlorides 2827 39 10 10,000
Tungstates 2841 80 00 100,000
Tantalates ex 2841 90 85 30 To be communicated
Carbides of tungsten 2849 90 30 10,000
Carbides of tantalum ex 2849 90 50 10 To be communicated
Gold, unwrought or in semi-manufactured form, or as a powder with a gold concentration of 99.5% or higher that has passed the refining stage ex 7108 100
Ferrotungsten and ferro-silico-tungsten 7202 80 00 25,000
Tin, unwrought 8001 100,000
Tin bars, rods, profiles and wires 8003 00 00 1,400
Tin, other articles 8007 00 2,100
Tungsten, powders 8101 10 00 2,500
Tungsten, unwrought, including bars and rods obtained by simple sintering 8101 94 00 500
Tungsten wire 8101 96 00 250
Tungsten bars and rods, other than those obtained by simple sintering, profiles, plates, sheets, strips and foil, and other 8101 99 350
Tantalum, unwrought including bars and rods, obtained by simple sintering; powders 8103 20 00 2,500
Tantalum bars and rods, other than those obtained by simple sintering, profiles, wire, plates, sheets, strips and foil, and other

 Which jurisdictions are concerned?

The CMR will affect all metals and minerals coming from areas in a state of armed conflict or fragile post conflict, as well as those areas witnessing weak or non-existent governance and security (such as failed states) and widespread and systematic violations of international law, including human rights abuses. It will be left to the discretion of the respective EU importer whether areas should be deemed “conflict-affected” or “high-risk”. An indicative, non-exhaustive, regularly updated list of conflict-affected and high-risk areas will be provided. This list will however not provide absolute clarity on the countries that are considered “conflict-affected” or “high-risk”. The authorities will prepare non-binding guidelines in the form of a handbook for economic operators, explaining how best to apply the criteria for the identification of conflict-affected and high-risk areas.

What are the obligations under the EU conflict minerals regulation?

EU importers of metals and minerals must comply with the supply chain due diligence obligations set out in the CMR, and keep documentation demonstrating their compliance with these obligations, including the results of independent third-party audits. The key obligations are the implementation of:

  1. Management system: A supply-chain policy for metals and minerals stemming from conflict-affected and high-risk areas must be created, adopted and overseen by senior management, and communicated to suppliers. A grievance mechanism as an early-warning risk-awareness system must also be implemented. A chain-of-custody or supply-chain traceability system must be developed that provides the following (and its respective documentation):
      • description of the metal or mineral, including its trade name and type
      • name and address of the supplier to the EU importer
      • name and address of the smelters and refiners in the supply chain of the EU importer
      • in the case of metals – records of the third-party audit reports of smelters and refiners, if available, or evidence of conformity with a supply chain due diligence scheme recognised by the European Commission
      • in the case of minerals only – the country of origin of the minerals and if available, the quantities and dates of extraction, expressed in volume or weight
      • in the case of metals or minerals originating from conflict-affected and high-risk areas – additional information in accordance with the specific recommendations for upstream economic operators, as outlined in the OECD Due Diligence Guidance.

     

  2. Risk management obligations: Identify and assess the risks of adverse impacts in the mineral supply chain on the basis of information provided on the standards of their supply chain policy. Implement a strategy to respond to identified risks, one that prevents or mitigates adverse impacts by:
    • reporting findings of the supply chain risk assessment to senior management
    • adopting risk management measures consistent with the OECD Due Diligence Guidance
    • implementing a risk management plan and tracking its performance
    • undertaking additional fact and risk assessments for risks requiring mitigation, or after a change of circumstances.

     

  3. Third party audit obligations: EU importers of metals or minerals shall have audits performed by an independent third party (‘third-party audit’). EU importers of metals shall be exempt from the obligation to carry out third-party audits provided they provide substantive evidence, including third-party audit reports, which demonstrate that all smelters and refiners in their supply chain comply with the CMR or that they source exclusively from smelters and refiners found on the “Globally-Responsible Smelters and Refiners” list (see below, “Acknowledged refiners and smelters”).
     
  4. Disclosure obligations: EU importers of metals and minerals shall provide reports of any third-party audits to the competent authorities, and provide their immediate downstream purchasers all information gained and maintained pursuant to their supply chain due diligence with regard to business confidentiality and other competitive concerns. Each year, they shall report as thoroughly as possible on their supply chain due diligence policies and practices for responsible sourcing, including on the Internet.
     
  5. Ex-post checks: The competent authorities will carry out appropriate ex-post checks in order to ensure that EU importers of metals and minerals comply with the established obligations. This includes the examination of the EU importer’s implementation of supply chain due diligence obligations, the examination of documentation and records demonstrating proper compliance and the verification of audit obligations. Ex-post checks will include on-the-spot inspections, such as those done on the premises of the EU importer.
     

What are the applicable exemptions?

There are multiple applicable exemptions, such as:

  1. Recycled metals: Where an EU importer can reasonably conclude that metals are derived only from recycled or scrap sources, and when it has, with due regard for business confidentiality and other competitive concerns, publicly disclosed its conclusion and described in reasonable detail the supply chain due diligence measures it exercised in reaching that conclusion.
  2. Stocks of affected minerals: When stocks were created in their current form on a verifiable date prior to 1 February 2013.
  3. Recognised due diligence schemes of industry associations and groups: Industry associations and groups may request recognition of their due diligence schemes from the European Commission.
  4. Acknowledged refiners and smelters: A list will be provided that contains the names and addresses of globally-responsible smelters and refiners.

When will the EU conflict minerals regulation and its obligations take effect?

The CMR will take effect on 9 July 2017. Its key provisions will however only enter into force on 1 January 2021. These key provisions are:

  • Compliance with supply chain obligations
  • Management systems obligations
  • Risk management obligations
  • Third-party audit obligations
  • Disclosure obligations
  • Ex-post checks on EU importers

What will be the impact?

The experience obtained from the enforcement of the conflict minerals regulations under Dodd-Frank has shown that it will take a considerable amount of time to plan, structure and implement the requirements set forth in the OECD Due Diligence Guidance. These requirements will affect corporate governance, risk management, supply chain and trading activities.

Please contact our experts on this topic for a free consultation.

Contacts

Martin Liebi
Director – Head of Commodities Trading Regulation
Tel: +41 58 792 2886
martin.liebi@ch.pwc.com

Guenther Dobrauz
Partner Tax and Legals
Tel: +41 58 792 1497
guenther.dobrauz@ch.pwc.com

MIFID2: Are you ready for the new era in record-keeping?

With the MIFID2 regulatory regime beginning on 3 January 2018, EU-based financial firms will not only face a new era of heightened record-keeping involving many more records than was previously required, but also the negative effects of new oversight, monitoring, e-discovery and forensics processes for the firm’s clients and regulators. MIFID2 recordkeeping will not just be about expanded content archival – it will deal with its implementation in a way that will help firms best execute processes in a strategic and efficient manner.

The task faced by management teams to ensure their firms are compliant with MIFID2 record-keeping may be daunting given the complexities of the directive and its regulations. We feel this task is best completed by way of an overall approach to record-keeping operations, culminating in the decision to create a firm-level “programme” that is designed to handle all the new requirements posed by MIFID2 – as opposed to ad-hoc, tactically focused processes, which ensure minimal compliance with great risk and little preparation for the processes of oversight, monitoring, e-discovery and forensics. With a strategic programme, firms will have the means to ensure record-keeping compliance and be prepared to effectively deal with the negative effects of MIFID2.

Ultimately, a robust and strategic recordkeeping programme should encompass a process of integrating content archiving into the management of line-of-business applications from the very first day of MIFID2. This process should put operational archiving best practices into place to ensure that records are archived in such a way that their state and inventory are always known – thus making oversight, searching and retrieval easier in the future.

Read the whole article

Contacts PwC:

Guenther Dobrauz
Partner|Leader PwC Legal Services Switzerland
Tel. +41 58 792 1497
guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager|Legal FS Regulatory and Compliance Service
Tel. +41 58 792 1087
michael.taschner@ch.pwc.com

Philipp Rosenauer
Manager|Legal FS Regulatory and Compliance Services
Tel. +41 58 792 1856
philipp.rosenauer@ch.pwc.com

Orkan Sahin
Senior |Legal FS Regulatory and Compliance Services
Tel. +41 58 792 1994
orkan.sahin@ch.pwc.com

Contacts KSF Technologies:

Michael Imfeld
Managing Partner, Business Development
michael.imfeld@ksftech.com

Allen Frasier
Director of Compliance
allen.frasier@ksftech.com