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Legal 500 Doing Business in Switzerland

Contributed by Bratschi AG

Doing Business in Switzerland graphic

Summary: 10 reasons to choose Switzerland for your business

Switzerland is a hub for international businesses. There are a number of facts that promote its position in the world:

  1. The Swiss economy has been stable for the last decades.
  2. The Swiss political system has remained equally stable literally for over a century. On the federal level, there has always been a coalition government for more than a century.
  3. The currency, the Swiss franc, has steadily grown in value compared to most other major currencies.
  4. Switzerland is located in the heart of Europe and can be reached very easily via the airports (Zurich even being a hub in Europe) and the well organized public transportation system that is connected to all neighboring countries. Extensive bilateral agreements ensure strong economic ties to the European Union and its member states.
  5. The quality of living is exceptionally high which is especially appreciated by numerous expats (the population consists of approx. 26% foreigners).
  6. Entrepreneurship is greatly esteemed. There is a powerful financial sector to enhance such businesses. Therefore, Switzerland is an innovation hub which is reflected in the top rank of the Global Innovation Index. Entrepreneurship is further fostered by flexible labor laws, an effective protection of IP rights and the like and an efficient judiciary dedicated to the rule of law.
  7. The federal, cantonal and municipal administrations are efficient and business friendly. Citizens are generally treated as clients and the authorities usually try to accommodate and enable new business ideas. Government services like infrastructure, security, education, health care etc. are very well functioning.
  8. Foreign investments are cherished and several cantons provide government offices that are ready to be of assistance if foreign companies intend to set up shop in their canton.
  9. There are almost no restrictions to foreign investments except for investors from countries under an embargo and in the defense industry.
  10. Switzerland is home to a lot of famous and highly competitive companies as well as industry sectors (pharmaceutical, nutrition, banking and finance, tourism etc.). Such businesses vary from small and midsized companies that are privately held to listed corporations with truly global operations. And they all help to make the label “Made in Switzerland” one of the most sought after.

Economy, business environment

The main drivers of the Swiss economy are its small- and medium-sized enterprises (SMEs). They make up more than 99% of all registered companies in Switzerland and account for two-thirds of all jobs. Of course, numerous of the multinationals based in Switzerland are also major market players. About 72% of Swiss GDP is generated by the service sector and 27% by industry. The contribution from the agricultural sector is less than 1%.

Unlike other currencies that have recently devaluated, the Swiss franc has remained relatively stable. This is mostly due to the political nature of Switzerland, the position of the Swiss banking system in the world and the fact that unlike the Euro, the Swiss franc is controlled only by Switzerland. Much like gold, the Swiss franc has become a very stable investment and a safe haven currency. The average inflation in Switzerland in 2017 amounts to 0,50 %.

Corruption is extremely low and there is no black market economy in Switzerland unlike in other countries where a dual system exists. The few corruption related scandals are only at the high level and it is virtually impossible to corrupt a government employee. Switzerland currently scores an 86/100 and is ranked 5th on the Transparency international index.

Legal system

It is important to bear in mind that Switzerland is a federal country. As such, there are usually two or three levels of applicable legislation. The federal, cantonal and the municipal one. Although most of the applicable legislation has been dealt with at the federal level in many areas there remains a possibility for cantons and to a smaller extent for municipalities to further legislate within the framework set by the federal and/or cantonal law as applicable. When starting a business in Switzerland, it may, therefore, be worthwhile to investigate for specific benefits and advantages of particular places within the country.

Switzerland adheres to the civil law tradition. Therefore, its system depends highly on written sources and codified law. The Swiss Law is governed by the Federal Constitution.

The Swiss legal system is built on the principle of “Good Faith”, as such the private law system relies heavily on the parties’ intent upon the conclusion of a contract. Switzerland is not a black letter law country and although the wording of a contract is important, it is not the only element that a court will take into account when deciding upon a case.

Overall, the Swiss legal system is highly business friendly, the principle of freedom of contract predominates throughout the Swiss legislation and the amount of mandatory rules regarding establishing and/or doing business in Switzerland is relatively limited in comparison to other highly regulated countries. The legal system is efficient and provides practical solutions which encourage entrepreneurship and businesses in Switzerland.

Foreign investment

Foreign investments in Switzerland are typically done either by establishing a new corporate entity or through the purchase of shares of an existing company, rarely ever in the legal form of a partnership. As far as the available corporate entities are concerned, please refer to the section Corporate Law below. There is no governmental approval necessary for the acquisition of shares of a Swiss company, unless the investment is in certain regulated industries, in particular in the financial sector, the health care sector or the residential real estate sector. There is no tax on the acquisition of shares of a Swiss entity (unless it is a real estate company).

Depending on the creation of new jobs a number of cantons offer tax incentives, up to a tax holiday for a limited period of time, for newly establish businesses in certain areas. Such tax incentives are inevitably covered by a tax ruling to be obtained prior to the investments being made (please see below under “Tax law”).

There are no requirements regarding Swiss residency of shareholders but board members and/or other signatories with residence in Switzerland must be able to validly represent the company while other board members may live abroad.

Foreign investment restrictions

The basic approach is that the Swiss government welcomes foreign direct investments. The federal government allows all the 26 cantons to set their own foreign investment attraction policies and many cantons offer foreign investors tax exemptions and other tax incentives. On the federal level the major laws governing foreign investments in Switzerland are the Swiss Code of Obligations, which covers corporate and contract law, the Lex Koller which plays an important role when it comes to the acquisition of real estate by persons domiciled abroad and Swiss securities law and Swiss cartel law. However, there are no foreign exchange controls or similar laws generally restricting investments or acquisition in Switzerland. There is no screening and no general authority governing foreign investments. However, there are certain sectoral restrictions and formalities, permit or notification requirements which may apply to foreign investments in certain industries, in particular to foreign investments into private insurance companies, the banking sector, the telecommunication industry, radio and televisions industry, aviation, maritime shipping industry and the gaming and gambling industry. Furthermore, there are restrictions in the form of domicile requirements with regard to hydro-electric and/or nuclear power or the operation of oil and gas pipelines.

The general authority that establishes the regulations for foreign investments is the State Secretariat for Economic Affairs (SECO). SECO negotiates terms of market access in order to get correct and non-discriminatory activities and it is also involved in formulating the investment policy for the Swiss Confederation. Switzerland has signed many investment protection treaties, of which 113 are in force. The country is a member of the Word Tarde Organization (WTO) and of the General Agreements on Tariffs and Trade (GATT). It is also a founding member of the Organization of Free Trade Association (EFTA) and there exist a Free Trade Agreement as well as several bilateral investment agreements between Switzerland and the EU.

Corporate & governance

Swiss law offers various forms of legal entities that may be tailored to the specific needs of any particular business. However, the vast majority of Swiss-based companies are organized as stock corporations. In addition, limited liability companies are also frequently seen, particularly for smaller businesses.

The incorporation of a company in Switzerland is fairly easy and, provided that the contribution is made in cash, can be done within about one week only. All Swiss entities must be registered in the Commercial Register and all information so registered is publicly available. Public information includes the company's articles of incorporation, share capital, the address of its main office, names of board members and other people with signing authority, auditors and the address of its main office. However, financial data regarding the company and its business is not publicly available for non-listed companies. Also, only shareholders of limited liability companies but not of stock corporations are published.

On the other hand, it should be noted that Swiss law implemented the recommendations of the Financial Action Task Force (FATF / GAFI) on the prevention of money laundering. As a result, the possibilities to anonymously invest in Swiss companies have been significantly limited. Under the new legislation, Swiss companies must hold a register of beneficial owners of all bearer shares. Similarly, the beneficial owners of registered shares whose stake in the company exceeds 25% must also be registered. However, it should be noted that this information is kept with the company only and is not publicly available.

Obviously, while the above rules apply to all non-listed Swiss companies, there are additional rules relevant for listed companies (which have to be organized as stock corporations). The relevant rules are codified in separate laws and regulations issued by the relevant stock exchange.

Rules for corporate governance and compliance have been tightened in the last years. There is not only a code of best practice for listed companies, but also the privately held companies face increasing demands to observe generally recognized corporate governance standards.

Taxation

As a consequence of the mentioned federal system, the power to tax lies with the Swiss Confederation, the cantons and the municipalities.

A federal personal income tax is levied on the income of individuals at progressive rates. Swiss corporations and other legal entities as well as Swiss permanent establishments of foreign companies are subject to federal corporate income tax at a statutory rate of 8.5%, with the effective rate being 7.834%. Federal personal and corporate income taxes are levied by the cantons on behalf and under the supervision of the Swiss Confederation.

The cantons and the municipalities levy a personal income tax and a net wealth tax as well as a corporate income tax and a capital tax on net equity. The municipal taxes on income and net wealth/capital (net equity) are in most cantons levied as a percentage or multiple of the basic cantonal tax.

Capital gains from the sale of movable private property are tax-free at the federal and cantonal level.

Gains derived from the sale of immovable private property are explicitly not subject to the federal personal income tax. All cantons, however, levy a specific immovable property gains tax.

The Swiss Confederation levies a federal withholding tax on dividend and certain interest payments, on prizes from Swiss lotteries and on certain insurance payments. Swiss resident recipients are entitled to claim a full refund of the tax withheld. For foreign resident recipients, the tax withheld represents a final tax burden, unless an applicable double taxation treaty grants a partial or total refund of the tax withheld.

Switzerland has concluded a vast number of double taxation treaties.

Only the cantons - and not the Swiss Confederation - levy an inheritance and gift tax (with the exception of the cantons of Schwyz and Obwalden).

In all cantons the transfer of assets by inheritance to the surviving spouse is tax-free. In most cantons the same rule applies to direct descendants. In many cantons gifts to the spouse or direct descendants are tax-free.

The Swiss Confederation levies VAT at a rate of 8.0 % on taxable sales and services. On certain categories of goods and services a reduced rate of 2.5 % is applied. A special rate of 3.8 % applies to overnight stays in a hotel.

The negotiation of tax rulings with the Swiss tax authorities is common practice in Switzerland. A tax ruling granted by the competent Swiss tax authority is binding in respect of a particular set of facts.

Employment law

In comparison to its competing jurisdictions, Switzerland has rather flexible and liberal employment laws regarding recruitment, employment and dismissal, which makes it an employer-friendly jurisdiction.

According to the principle of freedom of contract, the parties to an employment agreement under Swiss law are free to agree on the content and terms of the agreement. If the employment agreement is silent on a certain issue, statutory provisions apply.

Swiss employment law contains only some basic mandatory provisions of which the most important ones concern the protection of the safety and health of the employee. Public law further regulates certain areas of employment relationships under Swiss law, e.g. setting forth a limit for the maximum weekly working hours.

In May 2014, Swiss voters have rejected the introduction of a statutory minimum wage. However, collective agreements that apply to certain sectors may stipulate minimum wages for certain categories of employees.

Provisions regarding the termination of employment agreements are liberal under Swiss law. As a rule, an employment relationship may be terminated by unilateral notice at any time without indicating a reason and irrespective of the employee’s age.

Termination by notice is subject to the applicable contractual or statutory notice period. In general, the parties to the employment contract are free to determine the length of the notice period to terminate the employment relationship. However, the contractual notice periods must not differ for the employer and employee.

The statutory employment laws provide for reasonable notice periods that apply where there is no agreement between the parties (7 days during the probationary period and up to three months depending on the term of service thereafter).

Swiss employment laws protect the employee against untimely and abusive dismissals. The termination of an employment relationship is considered untimely if declared during certain restricted periods (e.g. during pregnancy or during the period an employee is prevented from working by illness) as listed exhaustively in Swiss statutory laws. A notice of termination given in a restricted period is invalid.

The Swiss Code of Obligations lists a number of exemplary reasons that render a notice of termination abusive. The abusive notice of termination remains valid but calls for indemnity payments up to an employee’s wages for six months.

Both the employer and the employee may terminate the employment relationship with immediate effect at any time for reasons based on whose existence the terminating party cannot be expected to continue the employment relationship.

Banking and finance

Switzerland has long been proven to be an important and reputable international financial marketplace with a strong regulatory framework. FINMA as Switzerland’s independent financial-markets regulator supervises banks, insurance companies, exchanges, securities dealers, collective investment schemes, and their asset managers and fund management companies.

Rising regulatory costs, low or even negative interest rates causing shrinking margins, competition from the Fintech sector and the end of the original concept of the Swiss banking secrecy are the manifold challenges the Swiss banking sector is facing. However, as a long standing and globally important financial hub, Switzerland is used to adapt to international trends. Hereby a particular focus lies on Switzerland’s access on EU-market to foreign customers. As an EU-third country, Switzerland must therefore adopt selected EU laws, but can nonetheless retain its national specificities. One example thereof is the revision of the Swiss financial market legislation. The Financial Market Infrastructure Act (FMIA), which governs the organization and operation of financial market infrastructures as well as procedural duties for securities and derivatives trading, came into effect in January 2016. The Federal Council already approved the dispatch on the Federal Financial Services Act (FinSA) and the Financial Institutions Act (FinIA) to Parliament in 2015. These laws aim to ensure customer protection and the competitiveness of the financial centre, and bring Swiss financial market legislation in line with EU legislation where necessary and appropriate. They are not expected to come into force before 2018.

As per 1 January 2017 the legislation implementing the Automatic Exchange of Information standard as defined by the OECD entered into force. Thus, Switzerland is among the first jurisdictions implementing this standard herby leading the way in enhancing the co-operation between the tax authorities and ensuring transparency and tax compliance of the holders of assets located in Switzerland.

By the end of 2016 the Federal Council confirmed its commitment to reduce barriers to market entry for Fintech firms in the financial sector and presented a new Fintech strategy. It’s “three pillar approach” proposes specific regulatory adjustments to the current banking regulations, the introduction of an innovation area („sandbox“) for the acceptance of public funds up to CHF 1 Mio without authorization or monitoring by FINMA, and a special Fintech license (with lower regulatory requirements than the banking license).

Dispute resolution

State litigation in Switzerland

The procedural legal landscape in Switzerland changed fundamentally in 2011. A nationwide code on civil procedure (the Swiss Civil Procedure Code) as well as a unified Swiss Criminal Procedure Code entered into force and replaced the 26 earlier cantonal procedural codes. Nevertheless, the cantons continue to be responsible for the organization of cantonal courts. The procedural languages at a specific court are German, French or Italian, depending on the venue. At a federal level, there is the Supreme Court, the Criminal Court and the Administrative Court. Regarding civil procedures, federal law obligates cantons to provide for a two-instance judiciary system: a first instance and the second, appellate instance. Once cantonal procedures have been exhausted, an individual can appeal to the federal Supreme Court. Appeals in public law matters can be filed with the Federal Supreme Court for public law, if the cantonal administrative courts have rejected the matter beforehand. Litigation in Switzerland is internationally regarded as being of a high quality, reliable and bound to the rule of law. This is why international corporations often chose Swiss Law to apply to their contracts and main centers such as Zurich or Geneva as their preferred place of jurisdiction.

Arbitration in Switzerland

Switzerland is a pre-eminent venue for international arbitrations, whether in ad hoc proceedings or in proceedings administered under the rules of the leading arbitration institutions such as the ICC, the Swiss Chambers Arbitration Institution (SCAI) or the LCIA. This tradition goes hand in hand with Switzerland being a politically neutral country, hosting many international organizations or dispute settlement institutions, such as the UNO, the WTO, the WIPO, the FIDIC, or the Court of Arbitration for Sport (CAS/TAS). Many international contracts referring to arbitration in Switzerland are governed by Swiss substantive law which provides for a neutral, party-friendly and predictable legal framework, too.

The Swiss arbitration regime is widely acknowledged as modern, concise and arbitration-friendly, allowing minimal interference of state courts, unless approached in support of an arbitration. It provides for only very limited grounds for potential challenges of the awards, which are handled exclusively by the Swiss Supreme Court, and are dealt with expeditiously (normally within six months).

Since 1965, Switzerland has been a signatory to the New York Convention 1958, which allows to enforce arbitral awards worldwide.

Due to its long-standing arbitration tradition, Switzerland is the home of many international arbitration experts and a regular meeting point for the world's leading arbitration practitioners.

Swiss arbitral awards enjoy respect abroad where they are routinely enforced, an important consideration for international businesses.

Real estate

Switzerland’s peculiar geographical setting keeps having an impact on its real estate market. From the country’s total area of 41’285 km2, only 7.5 % are available for urban development. Additionally – and typical for Switzerland’s already explained federal structure – Investors and prospective real estate owners face a fractured and multi-layered legal landscape (communal, canton and federal level) when it comes to real estate transactions, development and exploitation – including certain restrictions for residential real estate acquisitions by foreigners. This multi-layered landscape is to be found in both public (zoning laws, building permits, etc.) and private (sale/purchase, leases, etc.) real estate law.

Nonetheless, Switzerland’s attraction as country of residence and location for corporate headquarters has caused a steady increase in real estate prices, in particular in urban centers such as Zurich and Geneva. After 14 years of constant growth, 2016 has seen the first overall decline of residential property prices with a price drop of 0.8%. This trend is expected to continue, in particular in the premium market.

Switzerland’s real estate system is register based. As such, every piece of real estate has its own land register sheet and number. The inscriptions in the land registry form the basis of every real estate property. In connection with this, real estate transactions typically needs to be notarized and inscribed in the land registry in order to be effective.

Swiss tenancy law, both for residential and business leases, is regulated by the Swiss Code of Obligations. Additional or slightly different rules apply to residential leases for the French speaking regions and specific cantons due to mandatory frame lease agreements mandatory in these parts of the country. In general, Swiss tenancy law is considered being rather tenant-friendly.

All in all, while the Swiss real estate market keeps being attractive for foreign investors, the density and local diversity of the legal landscape in this particular market make it an absolute necessity to seek early assistance from a lawyer or notary when contemplating investing in Swiss real estate.

Intellectual property, business secrets and know-how

Switzerland’s efficient legal system and its statutory intellectual property laws provide for the ideal place to seek protection for the innovations and creations of businesses.

The main types of intellectual property rights that are regulated by the Swiss legislator are copyrights, trademarks, patents, designs, indications of source and topographical rights. The Swiss Unfair Competition Act coupled with specific provisions in Swiss employment and criminal law complements the comprehensive legal framework in Switzerland providing an extensive protection of innovative business ideas and know-how.

Copyright protection does not require a formal registration or notification of any kind but rather comes into existence automatically with the creation of original work. The protection of all other types of intellectual property rights requires a special registration. The registration process is a cost-effective and simple administrative procedure with the Swiss Federal Institute of Intellectual Property.

For civil law disputes dealing with patents, the Federal Patent Court has been established in Switzerland as a first instance with nationwide jurisdiction. The Federal Patent Court consists of judges with a legal or a technical training, which is required to rule on the technical issues patent matters entail. If agreed by the parties, English is used as the procedural language. Civil-law disputes regarding all other intellectual property rights are dealt with by the ordinary cost-effective and efficient Swiss courts.

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