AFBS Info Legal&Compliance August 2020

France: Cross-Border Work from Home

Extension of applicability of the amiable agreement on taxation of cross-border commuters working from home due to the COVID19 pandemic. The duration of the agreement has been extended until 31.12.2020. It can be extended further if the situation so requires.

Info: Amiable Agreement LINK (in FR)

FinSA Ombudsman

The Federal Department of Finance approved the following four entities' applications for ombudsman:

  • Financial Services Ombudsman FINSOM: finsom.ch
    Is based in Martigny, created for mediation in financial services and employment relations, also offers training.
  • Swiss Chamber's Arbitration Institution: swissarbitration.org
    Established by the Chambers of Commerce of the Cantons of Basel, Bern, Geneva, Lausanne, Lucerne (Central Switzerland), Lugano, Neuchâtel and Zürich. Offers Swiss and international arbitration.
  • Terraxis SA: terraxissa.ch
    Terraxis Commodities SA is based in Geneva and specialised in finance and commodities trading.
  • OmbudFinance Switzerland OFS: ombudfinance.ch
    Is based in Geneva, offers mediation in four languages.
  • Verein Ombudsstelle Finanzdienstleister OFD: ofdl.ch
    Is based in Zürich; is sponsored by a group of financial planners' associations.
  • Finanzombudsstelle Schweiz FINOS: finos.ch
    Is based in Zürich, is founded by private individuals.

Info: The FDF publishes a list of all approved ombudsmen: DE FR IT EN

Information on Deceased Clients

To follow up on the Federal Supreme Court ruling n° 4A 522/2018, dd 18.7.2019 on information that may be disclosed to heirs of deceased clients, the SBA created a working group. The working group's aim is to provide clarity and enhanced guidance to banks. A first meeting took place and the group agreed to review the existing Circular 7195 dd 10.9.2002 "Information of banks in case of succession". Banks are invited to submit suggestions of amendments to the working group which will discuss the points on its forthcoming meeting. If you wish to make suggestions please send your comments to wuergler@afbs.ch not later than 7 September 2020 . We will collect your input, anonymise and submit it to the SBA working group.

Info: SBA Circular 7195 dd 10.9.2020 www.sba.ch ; word text version available here: DE FR

FINMA

The FINMA published audit guidance for banks and securities houses. The new guidance is based upon the revised small banks' regime and the new Financial Institutes Act FinIA. It outlines the standard audit intervals according to the various risk categories of the individual institute.

Info: "Beilage der Wegleitung zur Durchführung der Aufsichtsprüfung / Annexe du guide pratique pour la réalisation des audits prudentiels": DE FR IT EN

The FINMA also published for comments the revision of its Circular Direct Transmission . The amendments are based upon the ex-post evaluation it conducted in autumn 2019. Major novelties regard the extension of the list of foreign authorities qualified to receive information to such authorities with which the FINMA has concluded bilateral agreements for cooperation in administrative assistance. It furthermore provides more detail regarding the procedures for notification of transmissions. Recital 72 distinguishes between transmissions which require explicit approval from the FINMA (issues along Art 42c III Financial Market Act) and those which can be performed contemporaneously with the FINMA information (Art 42c II FMIA). This is a point the AFBS raised during the ex-post evaluation.

Info: FINMA Consultation on partial revision of “Direct transmission” Circular DE FR IT EN

Anti-Money Laundering

The FATF updates its standards regarding transparency and beneficial ownership of legal entities / structures. The SIF has invited the industry representatives for a first consultation. Please contact the Secretariat if you would like to comment the document: wuergler@afbs.ch .

Info: FATF Recommendations in EN (p 20 and 86ss) and FR (p 22 and 89ss)

Collective Investment Schemes

The Federal Council adopted the dispatch to Parliament on the revision of the Collective Investment Schemes Act in view of introducing the Limited Qualified Investor Fund concept. This would allow authorised asset managers and/or fund management companies to create collective investment schemes reserved for qualified investors without prior FINMA approval, thus shortening the time to market. The law is expected to enter into force not before 2022.

Info: Press Release Federal Council DE FR IT EN and SIF DE FR

SRDII implementation by Swiss custodian

In an AFBS Roundtable a group of foreign-owned Swiss custodian banks discussed questions relating to the implementation of the SRDII regulation. They identified challenges in the fact that * the national implementation of the EU Directive differs from country to country, * the ISO20022 messaging standard is not universally adopted yet, which requires intermediaries to develop translation mechanisms; * the 24h deadline for processing messages can only be complied with if SWIFT messaging is used; * the recipient of a request for information needs to reply directly to the issuer to avoid breach of data protection by disclosing the investor identity to intermediaries.

They agree that information on institutional investors should be available already. Information on private investors may have to be retrieved.

Penalties are defined individually by each member country. It is unclear how to identify the liable entity in case an investor does not receive information on time and/or does not or cannot respond / exercise voting rights in time. Also it is unclear what attitude the FINMA will adopt if a Swiss intermediary fails to be fully compliant with the regime.

The group agrees that questions remain open regarding the involvement of holders of shares of collective investment schemes. Is the end-investor to be identified, is the management company considered as such?

Swiss Framework for Arbitration

The revision of the Swiss Act on Arbitration is expected to enter into force on 1 January 2021. The amendments allow Swiss arbitration tribunals to deal also with international cases; a separate set of measures has been adopted. Furthermore, cases can be filed also in English and unilateral dispositions (such as in testaments and trusts) are recognised. Foreign arbitration courts can directly apply Swiss courts for the execution of decisions rather than having to use the international legal assistance.

Info: Press Release Federal Council DE FR IT

AFBS Survey

The AFBS is conducting a survey on the "back to normal" under the COVID-19 situation. The invitation has been sent to the CEOs of the member institutes. Please make sure your institute participates to assure maximum representativity.

Info: AFBS Survey  LINK