Capital Markets: Debt
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GLOBAL PRACTICE GUIDESWITZERLAND Definitive global law guides offering comparative analysis from top ranked lawyers ContributingLAW AND PRACTICE: Editor p.2 DaleContributed Cendali by SchellenbergZhong Lun Law Wittmer Firm Ltd KirklandThe ‘Law & Practice’Ellis LLP sections provide easily accessible information on Capitalnavigating Markets: the legal system when conducting business in the jurisdic- tion. Leading lawyers explain local law and practice at key transactional Debt stages and for crucial aspects of doing business. Switzerland Schellenberg Wittmer Ltd chambers.com SWITZERLAND Law AND Practice Law and Practice Contributed by Schellenberg Wittmer Ltd Contents 1. Debt Markets/Exchanges p.5 6. Offering Documents p.9 1.1 Main Markets & Exchanges: Rules or 6.1 The Prospectus or Offering Document p.9 Governance and Indices p.5 6.2 Responsibility and/or Liability for the 1.2 Rules or Governance Requirements p.5 Content of a Prospectus p.10 1.3 Indices p.5 6.3 Offering Documents p.10 1.4 Regulatory Bodies p.6 6.4 Main Publication, Filing or Delivery 1.5 Remit of Regulatory Bodies p.6 Requirements for the Prospectus p.10 1.6 Application Process p.6 6.5 Exemptions to the Requirement to Produce a Prospectus p.10 2. Regulatory and Legislative Framework p.6 7. Marketing p.10 2.1 Key Legislative or Regulatory Instruments p.6 7.1 Marketing of Publicity Restrictions for an 2.2 Eligibility Requirements for Listing Debt Offering of Debt Securities p.10 Securities on the Exchange(s) p.7 2.3 Requirements for Incorporation or Valid 8. Bookbuilding and Underwriting p.11 Existence p.7 8.1 Extent to Which Bookbuilding is Used p.11 2.4 Minimum Rating for Securities Listed on the 8.2 Structure of the Underwriting p.11 Exchange(s) p.7 8.3 Key Terms of Subscription/Dealer Agreement p.11 2.5 Historical Accounting or Reporting 8.4 Rules Regarding Stabilisation and Market Requirements p.7 Manipulation p.11 2.6 Currency of Debt Securities p.7 9. Governing Law p.11 2.7 Eligibility Requirements for Setting up a Debt Issuance Programme for Securities p.7 9.1 Restrictions on the Use of Foreign Governing Law and/or Jurisdiction for Debt Issuances p.11 3. Standalone Listings p.7 9.2 Cases Where the Choice of a Foreign 3.1 Main Steps for a Standalone Listing of Debt Governing Law/Jurisdiction Has Not Been Securities p.7 Recognised p.11 3.2 Companies Incorporated in a Foreign 9.3 Enforceability of Foreign Judgments and Jurisdiction p.8 Arbitration Awards p.12 3.3 Debut Issuers p.8 9.4 Special Requirements for a Contract, 3.4 Main Ways to Structure an Offer p.8 Judgment or Award to be Enforceable p.12 3.5 Additional or Different Procedures for listing 9.5 Special Requirements for the Perfection of Different Types of Debt Securities p.8 Security over Assets p.12 9.6 Effect on Enforceability of a Bondholder 4. Issuances under a programme p.8 Being Domiciled in a Foreign Jurisdiction p.12 4.1 Main Steps to Set Up a Programme for the 9.7 Regulatory Restrictions Concerning Foreign Issuance of Debt Securities p.8 Entities Entering into Bond Transactions or 5. Parties to an offering of debt securities p.9 Offering Their Bonds p.12 5.1 Advisers Appointed in Connection with the 10. Offering Timetable p.12 Issuance p.9 10.1 Timetable of an Offering of Debt Securities p.12 5.2 Roles of Key Advisers p.9 5.3 Differences in Roles Played by Advisors or 11. Clearing and Settlement p.13 Additional Advisers p.9 11.1 Clearing & Settling Debt Securities p.13 2 Law AND Practice SWITZERLAND 11.2 Differences When Securities Issued in Currency Other Than Local Currency p.13 12. Tax p.14 12.1 Main Tax Issues When Issuing & Listing Debt Securities p.14 12.2 Withholding Tax p.14 12.3 Taxes on the Issue or Transfers of Listed or Unlisted Debt Securities p.14 12.4 Application of Capital Gains Tax on Disposal of Securities by Non-Residents p.15 13. Continuing Obligations p.15 13.1 Continuing Obligations Applicable to Listed Debt Securities p.15 13.2 Continuing Requirements for Retail and Wholesale Offers of Debt Securities p.15 13.3 Foreign Incorporated Issuers p.15 13.4 Penalties for Non-Compliance with Continuing Obligations p.15 3 SWITZERLAND Law AND Practice Schellenberg Wittmer Ltd is one of the leading Swiss busi- cial institutions in Switzerland; financial services regulation ness law firms. Over 150 lawyers in Zürich, Geneva and and prudential rules; structuring capital transactions for Singapore offer a comprehensive range of services, from banks; debt and equity matters; M&A; insider dealing and focused advice to project management, for local or foreign market abuse; and assistance in enforcement proceedings companies and high net worth individuals. The Singapore and internal investigations. On the transactional side, cli- office covers key jurisdictions and markets in the Asia- ents are advised on finance transactions, such as syndicated Pacific region, assisting clients in inbound and outbound loan facilities; structured finance transactions; derivatives; investments, and international arbitration. The banking asset management matters and investment law; listing of fi- and finance team acts across a broad range of regulatory nancial instruments at the SIX Swiss Exchange; and Fintech matters, such as the establishment and licensing of finan- issues. Authors Dr Philippe Borens is a partner and the Dr Olivier Favre is a partner with head of banking and finance (Zürich) and expertise in banking and finance, capital capital markets, and has a wealth of markets, insurance, blockchain experience in financial services, banking technologies and Fintech. He is an and finance, capital markets, corporate authorised representative at the SIX Swiss and commercial. An authorised Exchange and is a member of the representative at the SIX Swiss Exchange, he is a member International Bar Association and the International Swaps of the International Bar Association and the Zürich Bar and Derivatives Association. Dr Favre has written in Association, and has written in various publications on various publications on securities laws, banking and subjects such as debt and equity, capital markets, stock financial markets regulation, regulatory capital, derivatives exchange regulation, structured products and collective and structured finance, and Fintech, including, most investment schemes. recently, as co-editor of the first commentary on the Swiss Financial Market Infrastructure Act and co-author of key sections on securities and derivatives regulation, and on Tarek Houdrouge is a partner, and is the regulation of organised trading facilities; and as highly experienced in the practice areas of co-author of the Swiss chapter in the Virtual Currency banking and finance, capital markets, Regulation Review, first edition. blockchain technologies and Fintech, financial services, M&A, corporate and commercial. He is a member of the Caroline Clemetson is a partner and is Geneva and Swiss Bar Associations, the International the head of banking and finance (Geneva) Association of Young Lawyers, CEDIDAC and AGDA, and and investment funds, who is highly has written articles for several publications, in areas experienced in the practice areas of private including capital markets, Fintech and M&A. equity and venture capital, banking and finance, insurance, capital markets, blockchain technologies and Fintech, and financial services. She is an authorised representative at the SIX Swiss Exchange and a member of the Legal & Compliance Specialist Committee at the Swiss Funds and Asset Management Association, having written for several publications on issues involving investment funds, Fintech and asset management. 4 Law AND Practice SWITZERLAND 1. Debt Markets/Exchanges SIX Repo operates two markets: 1.1 Main Markets & Exchanges: Rules or (a) the CH Repo Market providing the Interbank Repo Governance and Indices Market and the infrastructure for SNB’s open market Under the Swiss regulatory framework of the Swiss Financial operations; and Market Infrastructure Act (“FMIA”), bonds and notes may (b) the OTC Spot Market for issuing bonds of the Swiss be traded on an exchange (“Exchange”), a multilateral trad- Confederation and short-term debentures (eg, ing facility (“MTF”) or an organised trading facility (“OTF”). GMBF or SNB Bills of the Swiss National Bank). Exchanges and MTFs are trading venues in the sense of the 1.2 Rules or Governance Requirements FMIA (“Trading Venues”) and must be licensed as finan- On SIX, debt securities in the form of bonds (which for the cial market infrastructures by the Swiss Financial Market purpose of this overview include notes) are listed and admit- Supervisory Authority (“FINMA”). As a result of the admis- ted to trading according to the standard for bonds. sion to trading on a Trading Venue, bonds are subject to transaction-reporting and transaction-recording require- In addition, there are around 2,000 international bonds ments and they fall into the scope of Swiss insider dealing admitted to trading on the separate segment for interna- and market-abuse rules. tional bonds of SIX (ie, bonds issued by a foreign issuer, denominated in a foreign currency and already listed on a OTFs are not Trading Venues in the sense of the FMIA. foreign exchange recognised by the SIX). Unlisted foreign They are not licensed as financial market infrastructures bonds or foreign bonds admitted to trading on an exchange by FINMA under the FMIA, but the operator of an OTF not recognised by the SIX may be admitted to trading on the must be a FINMA licensed securities dealer or bank, which segment for international bonds of the SIX if: has notified FINMA that it operates an OTF and complies with the regulatory obligations resulting from the FMIA for (a) the bond issue originates from an issuer that already such activity.