Banking & Finance
Basel, Switzerland+2 other locations
- Zurich, Switzerland
- Geneva, Switzerland
others
David Rosenthal
Rolf Auf der Mar; Christian Wyss; Elias Mühlemann
‘The Vischer privacy team around their lead David Rosenthal are among the best in Switzerland. They are extremely knowledgeable, creative and responsive.’
‘David Rosenthal is constantly innovating new tools or ways to assess risks.’
‘I am a HUGE fan of David and his team.’
‘All team members are highly qualified, fast, and helpful.’
‘The data protection team I am working with is extremely professional and knowledgeable. They are true experts in their field. Despite many uncertainties surrounding this complex legal field, they are always on top of legal developments, latest case law in and outside Switzerland, and they provide clear and hands on legal advice that we can really work with.’
‘David Rosenthal is not only a leading lawyer in Switzerland’s world of data protection, he also has expertise as a developer. On top of that, he willingly shares a lot of his know-how freely and makes it available to everybody. I think he is somebody who really tries to make the world a better place when it comes to data protection, and I admire this spirit. ’
‘Very approachable, fast response time, very high quality and excellent knowledge.’
‘David Rosenthal is the number one opinion leader in data protection.’
World Economic Forum
Allianz
AXA
Swisscom
Ringier
Additiv AG
CH Media TV AG
UBS
Raiffeisen
Comparis
Open Systems
Lyfegen
Radicant
Bucher Industries
Insel Spital
Implenia
Medbase
Viseca
Twint
Marc Ph. Prinz
‘Marc Ph. Prinz has always been extremely responsive and very helpful. He takes a very collaborative approach to working with other lawyers.’
‘Marc Ph. Prinz has a very precise sense of the advice required in this field. He is target driven and efficient.’
‘Great expertise in employment law and investigation matters, putting human beings in the heart of their legal expertise, thus making a difference from a legal standpoint and risk management.’
‘Marc Ph. Prinz, Partner at Vischer AG, provided very strong support to our firm; his understanding of issues and situations and fine legal advice and assessment of facts was greatly appreciated.’
‘Marc Ph. Prinz has outstanding knowledge and expertise in his practice and is a leading lawyer in his field in Switzerland, which makes the client feeling at ease at any times in walking together in solving and delivering on any projects.’
‘A highly differentiating factor is the speed of delivery, the quality of the delivery, the commitment to us as a client, regardless of if we are dealing with a small or large project.’
‘Marc Ph. Prinz is very responsive and always suggests workable, outcome orientated solutions.’
Amcor
Invacare Corporation
Labcorp (Laboratory Corporation of America Holdings)
Jet Aviation
Thermo Fisher Scientific
Clariant
Nobel Biocare
Hyundai Electric Switzerland Ltd.
Robeco Switzerland Ltd.
Helsinn Ltd.
Hays plc
DWS Switzerland Ltd
Mitsubishi Chemical Advanced Materials Ltd.
Stefan Kohler; Matthias Staehelin
Christian Wyss; Vincent Reardon
‘This is one of the best firms I have worked together with. The reason for this is specifically Christian Wyss. Their work is highly diligent and they find innovative but market-proven ways on how to reach a desired outcome.’
‘Highly skilled, fast-to-respond, agile, flexible, great collaboration and communication.’
Redbiotec
Mosanna Therapeutics
Forty51 Ventures
Norgine Ventures
Versantis
Oculis
Anokion
Resistell
AMR Action Fund
GlycoEra AG
Medartis
ATANIS Biotech
Sustainable Health AG
Thermo Fisher Scientific
Bausch Health
ten23 Health AG
Bachem Holding AG
CombiGene AB
Anjarium Biosciences AG
Novaremed
Spexis
Combioxin SA
evitria Group
ImmunOs Therapeutics AG
Anaveon AG
Cimeio Therapeutics
MiniNaviDent AG
T3 Pharmaceuticals
ClearView Healthcare Partners
RELIEF THERAPEUTICS HOLDING SA
Rolf Auf der Maur; David Rosenthal
Christian Wyss; Elias Mühlemann; Samira Studer
‘The firm works in a very straightforward way. They combine expertise and what is relevant to the business well together. I appreciate the cooperation very much.’
‘I have worked closely with David Rosenthal for years and appreciate his pragmatic approach. I know whenever I have a problem in the area of data protection, IT, technology, that I can rely on him there.’
‘Vischer has a team that has a lot of experience in the TMT market, in addition to international know-how also in the local Swiss market. Both are essential for us. What sets Vischer apart is the parallel expertise available in tax issues relating to the TMT market. This reduces the interfaces in a project and helps keep administrative costs low.’
‘Vischer is very professional and still remains agile. Vischer reacts quickly and well in unexpected situations. Vischer, especially Rolf auf der Maur, is a very strong negotiator with a clear view of entrepreneurial interests. Rolf auf der Maur and his team have helped us several times in difficult negotiations to find a solution that took our interests into account and was acceptable to the other party.’
Netflix
World Economic Forum
Allianz
AXA
Swisscom
Ringier
Additiv AG
CH Media TV AG
UBS
Raiffeisen
Comparis
Open Systems
Lyfegen
Radicant
Bucher Industries
Insel Spital
Implenia
Twint
Adrian Dörig
Markus Guggenbühl; Robert Bernet; Jana Essebier; Matthias Staehelin; Stefan Grieder
‘I love working with the team because of their responsiveness and in-depth knowledge of the market.’
‘Jana Essebier shows a a true interest in their clients and thoroughly know what moves them.’
‘They are very hands on and responsive.’
‘Vischer’s team is pragmatic, intellectually rigorous and strategic. Their no nonsense approach is value added in court proceedings in Switzerland and highly appreciated by clients and courts alike.’
Elliott Advisors (UK) Limited
RELIEF THERAPEUTICS Holding SA
Elementum Metals Securities plc
PricewaterhouseCoopers AG acting as liquidator of Lehman Brothers in Switzerland
Kuros Biosciences AG
Spexis AG (formerly Polyphor AG)
Forty51 Advisors AG
Daniele Favalli; Thomas Weibel; Gérald Virieux
Karin Graf; Christian Oetiker; Felix C Meier-Dieterle; Lorenz Ehrler; Raphael Butz
‘The team’s strength lies in its availability and great understanding of the customer’s needs. Their pragmatism and good knowledge of court proceedings is very much appreciated. ’
‘VISCHER’s litigation team performs high-quality, thorough work with a high success rate. ’
‘Thomas Weibel is very well known in the market. It is great work with him. He is extremely smart and a very good tactician. ’
‘Thomas Weibel is highly competent and professional subject matter expert and lawyer with an ability to inject strategic thinking and business acumen into discussions coupled with a mindset to find practical solutions to challenges. ’
‘The team has highly technical skills, coupled with the ability to communicate effectively and a problem-solving attitude’
‘Thomas Weibel is a highly responsive and dedicated professional. He combines excellent technical skills with the ability to provide sound, practical advice to clients in a clear and effective manner’
‘The team work is exceptional. Only one main contact is appointed for each case. All research, analysis and further work relating to the case is done by cooperation between the in-house experts under the lead of the responsible lawyer. No need for the involvement of the client into the coordination of the process. ’
‘Karin Graf – excellent professional. Exceptional analytical and litigation skills. Very experienced professional with negotiation skills. Highly appreciated knowledge of the legal practice and understanding of the weaknesses/strength of each of the litigation parties. ’
MCH Group, Art Basel Hong Kong / Art Basel Miami Beach
AIG
EBT swiss engineering AG
Huntsman
Pirelli
PricewaterhouseCoopers
Sakto Corporation
T-Systems (Deutsche Telekom)
Jana Essebier
Stefan Grieder; Christian Wyss;Rolf Auf Der Maur
‘The team understands to bring regulatory experts and experts in IT law and data protection to the table, ensuring a holistic and consistent advice, acting as a one stop shop.’
‘A professional and very effective team, they know what they are dealing with and when facing a challenge, they resolve it in the outmost professional manner.’
‘Dedicated, responsive and professional. They do not waste your time and every exchange is effective and straight to the point.’
‘Jana Essebier is very smart and very easy to work with.’
‘The team is notable in being able to provide technical advice on highly complex areas of law while also remaining practical and keeping the client’s interests at heart. ’
‘We have worked with Jana Essebier and found her to be highly experienced and detail oriented, but also able to communicate complex legal issues in a way that can be easily understood.’
Eternyze AG
Additiv
Elementum Metals Securities plc
F10 Investment AG
King Esports GmbH
Interchain
QoQa Services SA
Digital PK
Founder of Tensor Technologies
CODE 41 SA
Daniele Favalli
AIG
MCH Group, Art Basel Hong Kong / Art Basel Miami Beach
Stefan Kohler; Lorenz Ehrler
‘The team is very diverse, and the people all complement each other with their different expertise. A seemingly overall low fluctuation of the team members ensures that long-term relationships can be formed and maintained. Every member we have worked with has a “play-to-win”-approach which was very appreciated by the legal team and our management.’
‘We have been working with Stefan Kohler on different projects, some of which have been challenging to deal with besides the day-to-day business. His legal experience, in-depth technical understanding and knowledge as well as a business mindset helped greatly in finding suitable legal solutions. It has always been a pleasure to work with him and his team.’
‘VISCHER demonstrated exceptional qualities in responsiveness, reliability, and flexibility. They consistently exhibited a proactive and client-oriented approach, ensuring that our collaboration progressed smoothly and efficiently.’
‘Excellent team of IP Lawyers.’
‘Stefan Kohler is a highly committed and competent attorney for litigation, but also for contractual issues. Fantastic to work with and they have a good instinct.’
‘I have the privilege of working with this exceptional legal team specialized in IP law. Their expertise and dedication is outstanding. They went above and beyond, providing me with top-notch service. Their skills and commitment to excellence truly set them apart. I highly recommend their services. They really go the extra mile.’
‘It is great working with Stefan Kohler, the exceptional team leader of a highly skilled and motivated lawyer team. Stefan’s leadership is exemplary, driving his team to deliver outstanding results. The team’s expertise and dedication are unmatched. I highly recommend Stefan and his team for their exceptional legal services.’
‘Vischer has a team that has a lot of experience in the IP market – in addition to international know-how also in the local Swiss market. Both are essential for us. What sets Vischer apart is the parallel expertise available in tax issues relating to the IP market. This reduces the interfaces in a project and helps keep administrative costs low.’
Netflix
CH Media TV AG
Swisscom
MyTV AG
Ten23 Health
Delica AG
Stefan Rechsteiner
Michael Waldner; Stefan Kohler; Klaus Neff; Adrian Gautschi; Joel Drittenbass; Livia Camenisch; Barbara Meier
‘Vischer’s team is pragmatic, intellectually rigorous and strategic. Their no-nonsense approach is value added in court proceedings in Switzerland and highly appreciated by clients and courts alike.’
‘Stefan Rechsteiner is a highly skilled public law litigator and advocate with a great sense for effective tactics.’
‘Adrian Gautschi is very knowledgeable and experienced in public law disputes.’
Die Schweizerische Post AG
Axpo Service AG
Repower AG
Energie 360 Grad AG
EBL (Genossenschaft Elektra Baselland)
University Hospital of Zurich
University Hospital of Bern (“Inselspital”)
University Hospital of Basel
Cantonal Hospital of St. Gallen
Cantonal Hospital of Aarau
Cantonal Hospital of Lucerne
Claraspital, Basel
University Children’s Hospital Zurich
Roland M. Müller; Maxime Chollet
Andreas C. Albrecht; Raphael Butz; Moritz Jäggy
‘The team’s strengths are its availability, its competent people and its reliability. ’
University Hospital Basel
Procimmo SA, Le-Mont-sur-Lausanne
Meininger Hotels Group
Spiegelfeld Immobilien AG
Fédération des Eaux-Vives
Einwohnergemeinde Reinach
Migros/Sigma, Partner Central Group
Moritz Jäggy; Robert Bernet
Rolf Auf de Maur; Christian Oetiker; Nadia Tarolli Schmidt; Pauline Pfirter
Decathlon Sports Switzerland SA
Supponor Ltd.
PUMA Retail AG, PUMA SE (Swiss Branch) and Mount PUMA AG
SWISSLOS Interkantonale Landeslotterie
Swiss Football Association
Swiss Beach Soccer GmbH
Football Association of the region Northwestern Switzerland
Athletes Network & Athletes Academy AG
DAZN
Swiss Olympic
Tennis Club Old Boys Basel
Bodyclub24 GmbH
Dosenbach-Ochsner AG Schuhe und Sport
Christoph Niederer; Tobias F. Rohner; Nadia Tarolli Schmidt
‘The tax practitioners have a huge experience in all tax related aspects, be it company related direct or indirect taxes, or be it any product related taxes. A key strength of the company is their swift reactivity to any inquiry. I especially like their practical experience and their risk / reward approach to taxes.’
‘Christoph Niederer is a very esteemed partner. His immediate responsiveness is absolutely key for us – even during his holidays, his reaction time is same day, which we consider exceptional. The quality of work provided is outstanding.’
‘Excellent specialist knowledge and high service level.’
‘Very competent in tax matters; understanding clients’ needs.’
‘The team’s ethic, pragmatism, and their problem-solving mindset is highly appreciated. The efficiency is great, and we never feel that the clock is running in vain.’
‘Great network in Switzerland and good professional relation with the tax authorities, which facilitates the anticipation of the answers from authorities and the proactive reaction from the client side. ’
Mimacom Flowable Group
EBL (Genossenschaft Elektra Baselland)
Oberland Capital Management LLC
ISP Securities AG
Novaremed AG
Digital Wave Finance AG
Oculis Holding AG
Versantis AG
E3 Holding AG
Tally Weijl Group
Roventa-Henex SA
SUSI Partners AG
Peter Kühn
Urs Haegi; Christoph Niederer; Tobias F. Rohner
Swiss International Air Lines Ltd.
Deutsche Lufthansa AG
Edelweiss Air
LSG Sky Chefs Schweiz AG
Lufthansa Technik AG
Swiss Aviation Training AG
Austrian Airlines AG
DLH Fuel Company mbH
Jet Aviation Ltd.
Schweizerische Rettungsflugwacht (Rega)
Export Development Canada
Lufthansa AirPlus Servicekarten GmbH
AirPlus International AG
Swissterminal AG
GXO Logistics
Qatar Airways Group Q.C.S.C.
Adrian Dörig
Markus Guggenbühl; Jana Essebier; Stefan Grieder; Christian Schneiter; Seraina Jenny-Tsering
‘VISCHER is highly recognized in M&A, Private Equity, Debt Financing, Capital Markets (debt, equity and hybrid, including Tier 1 capital for banks) as well as banking and insurance regulation.’
‘Sharp-minded Markus Guggenbühl and Adrian Dörig are best known in the market – extremely responsive, straightforward and solution driven. Both have vast experience in banking and finance matters and are fully committed to top quality of work.’
‘They are technically excellent and familiar with cross-border financing process. The team is very organised and takes a practical approach to matters.’
‘Christian Schneiter is great to work with and is very diligent. Seems to know Swiss law inside and out and consistently provides well-reasoned solutions.’
‘Christian Schneiter is a very friendly and thorough lawyer. It has been easy and enjoyable to work with him and his team as the local Swiss counsel on our transaction.’
‘Vischer’s team is pragmatic, intellectually rigorous and strategic. Their no nonsense approach is value added in court proceedings in Switzerland and highly appreciated by clients and courts alike.’
‘The team is able to adapt to the situation. They act precisely with a strong commercial approach. In doing so, they think for their client and act in their interests.’
E3 Holding AG
Fangda Carbon New Material Co., Ltd.
Oberland Capital Management LLC
QoQa Brew SA
AFINUM Management AG
Bank CIC
Bank J. Safra Sarasin
Battery Ventures
Bregal Unternehmerkapital GmbH
Dermavant Sciences, Inc.
Elementum Metals Securities plc
Elliott Advisors (UK) Limited
Eternyze AG
Forty51 Advisors AG
Hardinge Inc.
IKB Deutsche Industriebank AG
Invision AG
Joh. Berenberg, Gossler & Co. KG (Berenberg Bank)
Loomis
Macquarie Bank
MUFG Bank, Ltd.
Norgine Ventures
Operational Riskdata eXchange Association (ORX) (www.orx.org)
Paprec Holding
PricewaterhouseCoopers AG
Privet Fund Management
RELIEF THERAPEUTICS Holding AG
Rigeto Unternehmerkapital GmbH
UBS
Jürg Luginbühl; Gian-Andrea Caprez; Damien Conus
Matthias Staehelin; Robert Bernet; Benedict Christ
‘Great availability, extensive experience in M&A transactions, strong negotiation skills and strong client orientation.’
‘I consider Jürg Luginbühl to be one of the best M&A lawyers in Switzerland. A very strong negotiator and deal enabler.’
‘Easy to work with, pragmatic and very service-oriented dealmakers.’
‘The team has superior knowledge of the M&A field. The team has a good mix of skills, with Jürg Luginbühl being exceptionally good at constructing the contract, reviewing the proposal and negotiating with the other party.’
‘The team is able to adapt to the situation. They act precisely.’
‘They always have a strong commercial approach. In doing so, they think for their client and act in their interests.’
‘As a client you feel well supported and accompanied throughout the process. In addition, working with the team is fun and enjoyable.’
Berlinger & Co. AG
Flowable Holding AG
SHS Gesellschaft für Beteiligungsmanagement mbH
Sowind Group SA
Nautilus Inc.
E3 Holding AG
Maxburg Capital Partners GmbH
Borromin Capital Management GmbH
FairCap GmbH
BID Equity GmbH
Groupe Mutuel Holding SA
Wipro Limited
Trustar Capital
Eleven Sports Network Limited
Steele Compliance Solutions
Mainova
e-hoi
Tokai Cobex
Snyk Ltd.
AFINUM
Equistone Partners Europe
PDS Pathology Data Systems AG
Polyphor Ltd.
Bregal Unternehmerkapital GmbH
Migros-Genossenschafts-Bund
Orell Füessli Thalia AG
deepCDR Biologics AG
Clinique Matignon Suisse SA
Advanz Pharma
MCM Fashion Group
Deichmann Shoes
Rigeto Unternehmerkapital GmbH
Invision Private Equity
Helvetica Capital
Joh. Berenberg, Gossler & Co. KG
Medartis Holdings AG
Oculis SA
Swisscom AG
Syngenta
Swisspower Renewables AG
Kuros Biosciences Ltd
Jacobs Holding AG
Sonnet BioTherapeutics, Inc.
Klaus Neff
‘Responsive, competent and friendly.’
Royal Bank of Scotland
Swiss International Air Lines
Universal Music
AB Inbev
3 Plus
Air Canada
Brenntag Schweizerhall AG
Baloise Holding
Bregal Unternehmerkapital GmbH
CA Auto Finance Suisse SA
Benedict F. Christ
David Jenny; Jana Essebier; Markus Guggenbühl; Christian Oetiker; Thomas Weibel; Karin Graf; Seraina Jenny-Tsering
‘VISCHER is highly recognised in banking insolvency matters.’
‘Markus Guggenbühl and Jana Essebier are fabulous.’
Various holders of Credit Suisse bail-in debt instruments
Various holders of Credit Suisse AT 1 bonds
Quinn Emanuel Urquhart & Sullivan, LLP which in turn represents a multitude of holders of Credit Suisse AT 1 bonds
PricewaterhouseCoopers AG acting as liquidator of Lehman Brothers in Switzerland
Co-investor in a distressed equipment manufacturer
FINMA
Russian Bank in bankruptcy
Liquidator of German estate
Creditors of Weidenareal Metall AG (formerly Swissmetal Industries AG) in Nachlassliquidation
Investor in a fintec company
Daniele Favalli; Christian Oetiker; Gérald Virieux
‘VISCHER have a true international practice, enabling them to work on matters and cases involving multiple jurisdictions.’
‘Christian Oetiker is an outstanding arbitration practitioner – he is very bright and fast, and always produces brilliant quality.’
‘Daniele Favalli is a conscientious and thoughtful arbitrator.’
‘The people are the key. Vischer has a strong bench of experienced arbitration experts. Christian Oetiker chiefly among them. The experience in a wide range of disputes across boarders and involving complex fact patterns and sophisticated parties makes them my go to firm for arbitration matters.’
‘Christian Oetiker has exceptional experience combined with his keen intellect make him a dangerous adversary; he is someone you want fighting for you.’
‘The team has highly technical skills, coupled with the ability to communicate effectively and a problem-solving attitude ’
‘Thomas Weibel is a highly responsive and dedicated professional. He combines excellent technical skills with the ability to provide sound, practical advice to clients in a clear and effective manner ’
‘Karin Graf is a specialist in international arbitration and a highly regarded arbitrator.’
MCH Group, Art Basel Hong Kong / Art Basel Miami Beach
AIG
EBT swiss engineering AG
Huntsman
Pirelli
PricewaterhouseCoopers
Sakto Corporation
T-Systems (Deutsche Telekom)
Department | Name | Telephone | |
---|---|---|---|
Antitrust and Competition / Environmental, Social and Governance (ESG) | Klaus Neff | kneff@vischer.com | +41 58 211 34 50 |
Banking and finance | Dr Adrian Dörig | adoerig@vischer.com | +41 58 211 34 89 |
China Desk | Lukas Züst | lzuest@vischer.com | +41 58 211 34 35 |
Civil Law Notaries / Real Estate | Dr. Roland M. Müller | rmueller@vischer.com | +41 58 211 33 00 |
Corporate and commercial / Startup Desk | Christian Wyss | cwyss@vischer.com | +41 58 211 33 39 |
Data & Privacy / Information and Communication Technology / Investigations & eDiscovery | David Rosenthal | drosenthal@vischer.com | +41 58 211 36 05 |
Employment Law / Environmental, Social and Governance (ESG) | Marc Ph. Prinz | mprinz@vischer.com | +41 58 211 36 17 |
Energy / Public Sector & Regulatory | Dr. Stefan Rechsteiner | srechsteiner@vischer.com | +41 58 211 34 81 |
Environmental, Social and Governance (ESG) / Mergers & Acquisitions / Startup Desk | Gian-Andrea Caprez | gcaprez@vischer.com | +41 58 211 34 27 |
Health Care | Michael Waldner | mwaldner@vischer.com | +41 58 211 34 85 |
Immigration | Urs Haegi | uhaegi@vischer.com | +41 58 211 34 45 |
Information and Communication Technology / Media and Entertainment | Dr. Rolf Auf der Maur | ram@vischer.com | +41 58 211 34 64 |
Intellectual Property | Dr. Stefan Kohler | skohler@vischer.com | +41 58 211 34 19 |
International Judicial Assistance | Dr. Christian Oetiker | coetiker@vischer.com | +41 58 211 33 52 |
Legal Profession Law | Dr. David Jenny | djenny@vischer.com | +41 58 211 33 49 |
Life Sciences, Pharma, Biotech / Private Equity & Venture Capital | Dr. Matthias Staehelin | mstaehelin@vischer.com | +41 58 211 33 53 |
Litigation and Arbitration | Dr. Thomas Weibel | tweibel@vischer.com | +41 58 211 33 56 |
Mergers & Acquisitions | Dr. Jürg Luginbühl | jluginbuehl@vischer.com | +41 58 211 34 59 |
Pension Funds / Tax | Nadia Tarolli Schmidt | ntarolli@vischer.com | +41 58 211 33 54 |
Private Clients | Dr. Andreas C. Albrecht | aalbrecht@vischer.com | +41 58 211 39 44 |
Restructuring & Insolvency | Dr. Benedict F. Christ | bfchrist@vischer.com | +41 58 211 34 62 |
Sports Law | Moritz Jäggy | mjaeggy@vischer.com | +41 58 211 32 33 |
Transport/Aviation | Dr. Peter Kühn | pkuehn@vischer.com | +41 58 211 36 07 |
White-collar crime | Jonas D. Gassmann | jgassmann@vischer.com | +41 58 211 34 91 |
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Photo | Name | Position | Profile |
---|---|---|---|
Dr Andreas C Albrecht | Partner. | View Profile | |
Dr Robert Bernet | Partner | View Profile | |
Dr Sebastian Burckhardt | Partner. | View Profile | |
Raphael Butz | Partner. Litigation and Arbitration. Leading the practice area of construction and real… | View Profile | |
Dr Thomas Gelzer | Partner; Litigation and Arbitration Practice Team | View Profile | |
Dr Stefan Grieder | Partner | View Profile | |
Moritz Jäggy | Partner, Head of the Sports Law Team, corporate law, real estate and… | View Profile | |
Dr David Jenny | Partner. Head of Insolvency. | View Profile | |
Anela Lucic | Managing Associate in VISCHER’s Labour & Employment Law Practice Group; Co-Head of… | View Profile | |
Dr Roland M Müller | Partner. Real Estate & Construction Law: Advising investors, developers, property managers on… | View Profile | |
Dr Christian Oetiker | Christian Oetiker is a partner in VISCHER’s litigation and arbitration team. He… | View Profile | |
Dr Michael HP Pfeifer | Partner. | View Profile | |
Vincent S. Reardon | Vincent S. Reardon is a Swiss corporate lawyer who focuses his practice… | View Profile | |
Dr Matthias Staehelin | Partner, Co-head VISCHER Life Sciences Team, primarily involved in the life sciences… | View Profile | |
Mrs Nadia Tarolli Schmidt | Partner; Head of tax and social security team | View Profile | |
Dr Ulrich Vischer | Partner. | View Profile | |
Prof Dr Beatrice Wagner Pfeifer | Counsel | View Profile | |
Dr Thomas Weibel | Partner – Head of Dispute Resolution. Main practice areas: Litigation and Arbitration,… | View Profile | |
Mr Christian Wyss | Christian Wyss is Partner and head of VISCHER’s Corporate & Commercial team.… | View Profile |
The firm: VISCHER is one of the largest Swiss law firms, with more than 100 fee earners. The firm supports its clients in a solution oriented manner as regards all aspects of commercial, tax and regulatory law. Its professionals are organised into more than 20 practice teams, each of them under the direction of experienced partners. This enables them to effectively handle instructions, always tailored to the requirements of the individual project.
Practice areas:
Main areas of practice
Corporate and M&A: VISCHER’s corporate and M&A team advises on all legal aspects relating to the listing of securities, mergers, purchase and sale of corporations and participations, spin-offs, management buyouts, execution of shareholder agreements, joint ventures, auction proceedings and related financing.
Litigation and arbitration: VISCHER has a strong and dedicated litigation and arbitration team representing clients before all Swiss Courts, as well as the Swiss Supreme Court in Lausanne and in international and domestic arbitration proceedings. Members of the firm frequently act as arbitrators.
Banking and finance: VISCHER advises banks and other financial institutions in regulatory and supervisory matters. VISCHER’s structured finance team advises Swiss companies and foreign investors with regard to lease and acquisition financing, project financing and securitisation.
Life sciences, pharma, biotech: VISCHER’s life sciences is the leading practice group of its kind in Switzerland. VISCHER represents over 50 private and public companies, from start-ups to listed companies. The firm’s expertise spans the full range of disciplines including transactions and financing; partnering, licensing and commercialisation; know-how and innovation management; and regulatory, administrative procedures and compliance.
Public sector and regulatory: VISCHER has a dedicated and experienced team that advises companies in regulated markets such as energy, telecommunications, electronic media, drugs and health and represents clients before regulatory authorities and in court proceedings.
Tax: VISCHER’s tax team provides advice on all aspects of corporate tax law including value added tax issues. The team also advises high-net-worth individuals in Switzerland and abroad with regard to succession issues and also in obtaining flat rate tax assessments in Switzerland.
Real estate: The VISCHER real estate team advises on all kinds of real estate projects and transactions, including buying or selling real estate property, contractual issues of multiple ownership (joint ventures, community of heirs etc.), land registry issues and issues of zoning.
Antitrust and competition: VISCHER advises domestic and foreign clients on Swiss and EU competition law and represents them before the Swiss Competition Commission and the courts. The team advises on administrative merger control, behavioural, contentious and civil antitrust cases, as well as in compliance matters.
Information technology and intellectual property: The firm’s IP/IT team advises on all areas of intellectual property and IT-related legal issues including telecommunications, outsourcing projects, data protection and regulatory matters. The firm also has a substantial practice in media and entertainment, including production agreements and broadcasting regulatory matters.
Restructuring and insolvency: In financially critical situations, the coordinated collaboration of specialists from a variety of areas of expertise is indispensable: in addition to proficiency in insolvency law itself, expertise in the areas of corporate law, litigation, labour law, IP law and tax law is also essential. The firm has the in-depth knowledge and extensive experience necessary for managing complex mandates, whether from the perspective of a creditor or an affected company.
Aviation: VISCHER advises and represents airline companies in their core business and also in associated fields such as catering. The team’s experience covers litigation and insurance cases of all types, assistance in contract negotiations with travel offices, air-traffic authorities and airport operators as well as advising on the leasing, buying and selling of aircrafts.
Data protection/privacy: VISCHER has one of the largest and most experienced data protection/privacy teams in Switzerland. The team advises national and international clients on all matters regarding data protection and privacy including the General Data Protection Regulation (GDPR) and represents clients in litigation and other proceedings in these matters.
Employment and executive compensation: VISCHER’s employment and executive compensation team is led by a partner exclusively dedicated to this field. The team advises on all areas of employment law, including regulatory issues, executive compensation, pensions, as well as taxes and social security and has earned an excellent reputation for representing companies and entrepreneurs in litigation.
White-collar / investigations: VISCHER advises and represents companies in white collar crime matters such as fraud, insider trading, money laundering and corruption. A dedicated team supports clients in conducting internal investigations – be it international or domestic matters – and handling eDiscovery cases.
Number of partners worldwide: 35
Number of other lawyers worldwide: 78
Languages: English, French, German, Italian, Mandarin
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
Basel, Switzerland+2 other locations
others
VISCHER values and shows consideration for its employees. Every employee, regardless of gender, sexual orientation, race or ethnicity, has the same rights and is treated equally. VISCHER wants all employees to feel valued, appreciated, and free to be who they are. Our experience has taught us that the more diversity we have in our team, the more unique perspectives and bright ideas we share.
For VISCHER, diversity and its inclusion, use and appreciation have strategic importance and are an integral part of our corporate culture. Therefore, we promote diversity and its appreciation among our employees and actively sensitise them to it. We create an environment that enables, values and promotes different perspectives, cultures and ways of thinking. We aim to build a culture of respect and trust which embraces differences and encourages diversity in our firm.
We treat each other with respect, constantly develop our skills and promote diversity in all relevant dimensions. Inclusion allows a diverse mix of people to complement each other to form a high performing team. It is important to remember that inclusion does not just mean treating people equally, but recognising and valuing all visible and invisible differences.
We foster an environment based on trust. This is our way of combining excellent business results and personal flexibility. The flexible working models we offer worldwide include mobile working, part-time and flexible working hours. Our employees remain our most important capital, in which we will continue to invest going forward.
Clients
VISCHER’s experienced lawyers advise clients and provide international services at the highest standard across the globe. Working from modern offices in Zurich, Basel and Geneva, our attorneys, tax advisers and public notaries are organised under the direction of experienced partners in practice teams, covering all areas of commercial law. VISCHER has worked with various international companies, for example:
Team
Our principal company languages are German, English, French, Italian and Mandarin, but we have employees of various nationalities so are able to cover many more languages and provide professional advice to clients from all over the globe.
Highly regarded China Desk
VISCHER has established a China Desk that, over the years, has become widely regarded as the market leader among Swiss law firms for Chinese inbound and outbound transactions. We advise many Swiss companies regarding their China business and support Chinese businesses interested in establishing a presence in Europe.
VISCHER’s network
We have spent decades building networks with attorneys, subject matter experts and firms worldwide that meet our high standards and provide the best possible service to our clients. We can help our clients, directly or in conjunction with foreign law firms, to navigate the requirements of the relevant Swiss legal and regulatory frameworks, and build a team of experts to deal with their specific challenges.
Fintech is not a defined term under Swiss law. It describes a combination of technological innovation and financial services. Examples of Fintech activities that have recently played an increasing role in Swiss financial markets are digital banking, robo-advice, crowd-investing, digital payment services and financial activities related to cryptoassets. The term Fintech covers not only financial services activities but also enabling technologies, such as digital identification, cloud, API, artificial intelligence, and distributed ledger technology (DLT)/blockchain.
Switzerland has a very liberal and business oriented approach towards regulatory policy for Fintech products and services and is supportive of innovation. This applies not only to financial market laws but is all-encompassing. Switzerland has therefore initiated various consultation processes and legislative changes in order to allow the Fintech industry to grow and implement its products and services. Swiss regulators have recognized that the old law was geared towards big financial institutions whose requirements could not be met by start-ups due to their smaller financial standing (net asset requirements, etc.). The importance of Switzerland as a hub for innovation is further demonstrated by the activities undertaken by the Swiss National Bank (SNB) in the field of Central Bank Digital Currencies (CBDC) (see below).
Switzerland has also set up an attractive taxation model for start-ups and provides ample financing opportunities for innovative companies. Therefore, Fintech innovators in Switzerland have a suitable and supportive environment for the implementation of their business model.
There is no Fintech-specific regulation in Switzerland. Instead, a technology neutral approach is applied, meaning that the same rules apply to businesses regardless of whether they are using traditional or innovative means. Switzerland closely monitors new technological developments and the potential need for regulatory adjustments in order to reduce unnecessary administrative burdens.
Frequently, Fintech companies offer services or develop technology without becoming subject to financial market laws. However, this needs to be examined on a case-by-case basis. As a general rule, persons who:
Yes. As a rule, Swiss financial market regulation does not require the establishment of a physical presence in Switzerland if a bank or another financial services provider wishes to offer banking or wealth management services to clients based in Switzerland. An important exemption applies to the distribution of shares in collective investment schemes in or from Switzerland, which may trigger the requirement to appoint a third party paying agent and representative based in Switzerland.
FINMA Circular 2016/7 on video-identification allows banks and other financial intermediaries to conduct their Know-Your-Customer due diligence via video- or online-identification. Hence, this process can be conducted purely digitally.
As a general rule, under Swiss civil law contracts do not have to be agreed in writing to be valid. Only agreement of the terms of the contract is required. A contract is only required to be in writing if it is prescribed by law or if the parties contractually agree that the contract should be in writing. For many agreements related to banking or financial services, Swiss law does not impose a requirement for the contract to be in writing. Such agreements may therefore be executed digitally by a simple or advanced electronic signature or even by the click of a button. An exception applies, for example, to consumer credit agreements. Such agreements need to be in a simple written form in order to be valid and must bear the handwritten (wet-ink) signatures of the parties. Under Swiss law, only qualified electronic signatures with qualified electronic time stamps are equivalent to a wet-ink signature. It is important to note that a provider recognized in Switzerland for certification services must issue the qualified electronic signature. Electronic signature services customarily used in Europe (such as DocuSign) do not generally fulfil these requirements. The selection of a provider should therefore also include an assessment of whether the services satisfy the specific Swiss legal requirements.
Yes. Smaller Financial Service Providers use cloud infrastructures for their core business for quite some time now. But also well-known banks have (or are about to move) their main IT infrastructure to the cloud.
However, Financial Service Providers do have to be aware of regulatory restrictions. Some of the Swiss regulations are comparable to the ones in other jurisdictions (e.g. data protection), others are more restrictive/relevant in Switzerland than in other jurisdictions (e.g. professional secrecy and outsourcing).
Switzerland is known for having strict professional secrecy obligations, which apply in particular to Financial Service Providers. The disclosure of secrets obtained in the course of rendering financial services is a criminal offence. When considering using cloud services, Financial Service Providers must either require cloud infrastructure providers to comply with these obligations or obtain a waiver of the customers to avoid violating professional secrecy obligations. Local and international cloud infrastructure providers (e.g. Microsoft Azure) provide specific addendums to the standard agreements, but they often only provide these addendums upon request.
FINMA sets strict requirements related to the outsourcing of “significant functions”. According to FINMA circular 18/3 on outsourcing for banks and insurers, Financial Service Providers must conduct a risk assessment, which should take into account “the main economic and operational considerations as well as the associated risks and opportunities” (FINMA Circ. 18/3, N 16). In addition, the engagement of a cloud service provider must be done in compliance with the following key requirements:
As of September 2023, the revised Swiss Data Protection Act (revSDPA) will enter into force. The revised act will bring Swiss law closer to the regulatory framework of the GDPR, in particular related to compliance/documentation requirements. However, in contrast to the GDPR, the revSDPA does not rely on high monetary fines to ensure compliance, but focuses on the people in charge (personal fines of up to CHF 250’000). As such fines will most likely result in an entry in the criminal record of the persons fined, the managements will have strong incentives to comply with data protection requirements.
For Financial Service Provider, one specific new requirement of the revSDPA relates to “automated individual decision making”, for example if an automated credit risk assessments leads to a decision whether a credit will be granted or not. Under the revised act, data subjects must be informed about such decision processes. Data subjects may request that (i) they can present their point of view and (ii) a natural person reviews the automated individual decision making.
The digitalization increasingly raises issues of cyber-security. Financial institutions are required to monitor and control risks related to the IT infrastructure (see FINMA circular 18/3 on outsourcing above). In addition, on 13 December 2022 FINMA introduced its new Circular 23/01 on operational risks and resilience – banks, which applies to banks, financial groups and conglomerates, and investment firms. Pursuant to this new circular, the addressees will be required to introduce cyber risk management procedures, which include the following requirements:
In addition, a successful or partially successful cyber attack must be analyzed based on its materiality for critical inventoried ICT assets or electronic critical data and critical processes (including outsourced services and functions). The reporting obligation under the FINMASA must also be met. After an initial assessment and preliminary notification to FINMA within 24 hours, a complete report must be submitted to FINMA within 72 hours. Once the institution has finished processing the case, a conclusive root cause analysis corresponding to the degree of severity must be submitted to FINMA.
Furthermore, the addressees of Circular 23/01 are required to monitor and check service providers that process critical data (with additional risk assessment obligations if the data is stored or can be accessed from outside of Switzerland; see FINMA Circ. 23/01, margin no. 79). It must be noted that Circular 23/01 not only relates to CID but also other data that are “of such crucial significance that they require increased security measures” (margin no. 7).
Further, in December 2022, the Federal Council proposed to the Swiss Parliament to introduce an obligation for operators of “critical infrastructures” (e.g. energy, water and communication service providers, but also banks and insurance companies) to report cyber incidents to the Swiss National Cyber Security Center. Based on the broad public support of this draft, we deem that this reporting obligation will approved by the Parliament rather quickly.
One important question in practice is how the cyber-security may be improved while improving at the same time the customer experience in using online services. A number of Fintech business focusing on new methods to increase cyber-security are based in Switzerland, also profiting from the excellent position of the ETH Domain at international level.
Combining financial services with other products and services are well established (e.g. car leasing, travel insurance, consumer credits), but there is a need for a deeper integration of financial and non-financial services. These integrations provide for a better user experience, enable the providers to better understand their customers and facilitate cross-selling. However, these models also require Financial Service Providers to share data with their business partners that fall under professional secrecy obligations. This information may only be shared by obtaining consent of the customers due to professional secrecy restrictions.
Such waivers to professional secrecy are not bound to any form requirement, but must be obtained in a transparent manner. This can be achieved by setting up the project in a way that the transfer of information is justified by or part of a feature provided to the customer. If a customer requests CHF 100 cash-back at a kiosk, it is evident that the kiosk has knowledge about the withdrawal. Another way of obtaining consent from the customer is by informing the customer in a transparent manner about the intended transfer of information (e.g. in a “layered approach”: key terms explained in a few words, more detailed explanation in the general terms and conditions).
In 2021, the Swiss Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology (DLT-Act) entered into force. The DLT-Act did not introduce a separate legal framework for tokens but aimed to adapt the existing law to the new technology, in particular in the area of so-called ledger-based securities.
The general legal framework for tokens is included in the Swiss Code of Obligations. These provisions specify which conditions the DLT and the tokens registered in a DLT-based ledger need to fulfil for tokens to be treated like traditional certificated securities. In cases where the new legal framework applies, tokens may be exercised and transferred to other persons only via the ledger. The obligor under the tokens is entitled and obliged to render performance only to the creditor indicated in the ledger (subject to modification of the ledger). The buyer of such a token from a creditor registered in the ledger is protected even if the seller was not entitled to sell the token, unless the buyer acted in bad faith or with gross negligence.
The DLT-Act applies a principle-based approach in order to determine whether a DLT qualifies as a securities ledger within the meaning of the DLT-Act. The principles that a DLT needs to comply with are as follows:
There is no register of DLT-based ledgers that would qualify as securities ledger within the meaning of the DLT-Act. Instead, the participants involved need to self-assess. The legislation places several key obligations on an issuer:
Securities and financial instruments may be issued as ledger-based securities under the DLT-Act. Recently, a number of crowdinvesting projects have made use of the new opportunities presented thereby.
Traditional players, such as the SIX Swiss Exchange, which has set up the Swiss Digital Exchange (SDX) platform, have also started entering the DLT market. The SDX is a fully regulated exchange a central custody provider and thereby enables a link to the traditional financial market and the financial market infrastructures of the SIX SIS.
The increasing importance of the crypto market and the introduction of stablecoins by private actors in the market, have raised the question whether there is a need for a Central Bank Digital Currency (CBDC). The SNB has conducted a number of proof of concepts (PoCs) focussing on Wholesale CBDC (wCBDC) in order to get familiar with the operational, legal and policy challenges involved. One of those projects, the results of which the SNB has published, was called Project Helvetia and included two PoCs that explored the integration of tokenized assets and central bank money on the SDX. The PoCs were limited to banks and other financial intermediaries holding accounts with the SNB. Two PoCs were conducted, one account based PoC and one token based PoC:
Whether a Digital Swiss Franc will actually be introduced is a policy question. So far, the SNB has stated that it has no intention to issue a CBDC. The SNB highlighted that further challenges would need to be addressed, including error handling, privacy, and cybersecurity. Further, the question arises which platforms should be allowed to integrate wCBDC and what would happen if such platforms admitted participants that are not SNB account holders. Further PoCs will be required to answer these questions.
Partner
Managing Associate
Where people work, there will inevitably be mistakes. This is equally true for a company’s directors and officers. Notably, and even if the directors and officers acted diligently and fulfilled their duties, other parties or government authorities may still initiate legal proceedings against them. Liability law suits quite regularly extend over several years with court costs and the costs of proper representation easily amounting to significant sums of money (even if the claim is meritless). Overall, the legal and financial consequences for directors and officers of any company may be far-reaching in today’s business environment. Increasingly, liability risks render serving as directors and officers unattractive.
To, at least, neutralize the liability risks for its directors and officers (and to render such activity more attractive), most companies purchase Directors and Officers insurance policies (“D&O Policies“). D&O Policies are designed to protect a company’s directors and officers against claims in connection with the activities for the respective company.
The coverage under a “traditional” D&O Policy consists of three coverage pillars or insurance agreements which are ordinarily integrated and held together in the same insurance policy: “Side A”, “Side B” and “Side C” coverage.
The three pillars cover the following risks:
More recently, there has been a trend for companies to not only rely on “traditional” ABC pillars within a D&O policy, but to extend the safety net for their directors & officers (i.e., the “Side A coverage”) by purchasing an additional Side A policy. Such extra coverage is referred to as a “Side A DIC” or as “Difference in Conditions” or as “Stand-Alone Side A” policy. The coverage under a Side A DIC can be visualized as an additional layer of Side A coverage on top of a “traditional” ABC policy:
This additional “layer” of insurance (i.e., the Side A DIC Coverage) is often purchased from a third party insurer (the “DIC-Insurer”) and not from the same insurance company that provides the “base” layer of ABC protection (the “ABC-Insurer”).
A Side A DIC policy is similar to a “D&O excess insurance” (in German referred to as “D&O Exzedentenversicherung,” a policy widely used in German-speaking countries). Depending on the specific wording of the excess insurance, the policy will bear a strong resemblance to a Side A DIC. In practice, though, the most important difference between an excess insurance and a “Side A DIC” policy is that the “excess insurance” is usually based on an underlying ABC-policy. In other words, the policy is a mere “follow form,” whereas a Side A DIC policy is often worded as a stand-alone and comprehensive insurance policy. In both cases, however, it is the specific wording of the policy that is ultimately decisive for determining the coverage.
The purpose of a Side A DIC policy is to provide extended coverage to directors and officers under an original D&O policy with the three traditional pillars. The extension of coverage can be achieved in a number of ways, and the scope of coverage in different DIC policies varies widely. In common Side A DIC policies, the extension of coverage is not only “numerically” achieved through a higher liability/loss limit, but also in terms of “insurance/extent of cover.” Generally, such additional coverage is provided by a drop-down feature as explained in the following paragraphs.
The coverage under a “traditional” Side ABC policy is capped by an overall liability/loss limit per claim and in the annual aggregate (often defined in the schedule at the beginning of the policy). Once the loss limit is exhausted, there is no more coverage available regardless of whether another “A”, “B,” or “C”-coverage issue exists. In the worst case scenario, a director or officer will not be fully covered and will be personally liable with their personal assets (because the liability limit is already exhausted).
Under these scenarios, and if preferred instead of a sub-limited reinstatement of an additional Side A limit in the ABC tower, respectively the primary D&O policy, Side A DIC policies will regularly provide for an additional “excess limit” or “excess protection” which ensures that the losses of the directors and officers are insured even if the overall policy limit is exhausted (the mechanism is comparable to a reinstatement clause provided for in other insurance policies). For example, if a company purchases ABC Policy with a loss limit of CHF 10 million with a separate CHF 5 million-DIC-Policy, directors and officers may benefit from an overall loss limit of CHF 15 million.
A traditional ABC Policy contains various (liability) exclusions which limit the protection of the insured. Common examples are exclusions for (increasingly important) regulatory risks, pollution risks, and the insured vs. insured exclusion which applies, in particular, to insured in the U.S. (so called “IvI” exclusion).
A Side A DIC Policy, on the other hand, often has only one exclusion: the “conduct exclusion.” The conduct exclusion applies when a claim is made against a director or officer for dishonest, fraudulent, and/or criminal behavior of the insured or for any intentional (willful) violation of any applicable statute, rule and/or law. In other words, directors should not be compensated for intentional acts, a fact which seems not only sensible but also obvious (for Switzerland, see for example art. 14 para. 1 of the Federal Law on Insurance Contracts, also referred to as “VVG”).
The limiting of policy exclusions to a minimum under a Side A DIC Policy has the effect that the overall Side A coverage range will become broader. As a consequence, the company’s directors and officers will benefit from additional protection in cases that would, per se, not be covered under traditional ABC Policies. In other words, Side A DICs may, for example, provide for effective protection against increasingly frequent ESG-lawsuits which often involve not only exorbitantly high damages claims but also enormous reputational risks. Another example may be that Side A DIC policies may allow IvI proceedings in relation to insured parties in the U.S.
Furthermore, Side A DIC Policies may also “drop down” the original limitation of the D&O policy by referring to more broadly defined terms. A common example in this regard is the inclusion of punitive or exemplary damages under U.S. law. Specifically, definition of the term “damages” may be more inclusive than originally intended by the insurer. Punitive damages regularly represent an enormous risk that is often difficult to predict.
Often, a Side A-DIC policy is not entirely understood by the insured. In certain cases, the party purchasing a Side A DIC policy does not realize the existence of and/or the effects the Side-A-DIC coverage may have. The uncertainty may relate to the fact that the Side A DIC is not embedded in an “insurance tower.” As a result, the Side A DIC policy is not in sync with the policies of the primary insurer, the tower insurer and this “independence” of the Side A DIC can cause difficulties and information gaps. It is needless to stress that it may be of importance to understand whether coverage under a Side A DIC is available and, if available, how coverage may be triggered. Special attention should be paid to two circumstances: (i) the compliance with the information and notification obligations towards the DIC insurer and (ii) the handling of a coverage rejection by the underlying ABC-insurer.
The insured party must notify the insurer of the occurrence of an insured claim as soon as practicable. If the insured party fails to notify the insurer, this may have consequences with regard to the coverage (potentially, it may lead to a complete loss of cover). Provisions regulating the insured’s notification obligations can be found in almost all insurers’ general terms and conditions and also in many statutory provisions in different jurisdictions (for Switzerland, see Art. 38 VVG).
In practice, the potentially severe consequences of a failure to comply with the information and notification obligations are, unfortunately, regularly given too little attention in the context of (potential) Side A DIC policies. Especially in cases in which the DIC Policy was acquired from a different insurer than the underlying ABC Policy, the insured has to ensure that it complies with its obligations resulting from both, the ABC- and the DIC Policy. The reason is as follows: the DIC Policy with a different insurer is regularly to be considered a separate insurance contract, even though the DIC Policy may refer to an existing insurance relationship with the underlying ABC-insurer. In other words, the DIC-Policy regularly creates a contractual relationship between the policyholder and the DIC-insurer that is independent of the underlying ABC-Policy.
Depending on the DIC policy in question, it is, therefore, insufficient to notify only the underlying ABC insurer and forward the claim to the DIC insurer only after the ABC insurer denies coverage or, after the underlying ABC-policy has been largely exhausted. Apart from rare cases, in which the ABC-Insurer would issue a definitive coverage confirmation following receipt of a claim notification, the insured should also notify the DIC-Insurer “as soon as practicable,” i.e., following occurrence of the potentially insured claim (the insured should not wait for the coverage decision by underlying ABC-insurer). This may prove to be an important precaution because the insured cannot and should not assume that the ABC-insurer will coordinate and communicate a claim notification with a Side A DIC insurer. In fact, the ABC-insurer may not be aware that a Side A Policy exists.
There are cases in which the “primary” ABC-insurer denies coverage, although they would be obligated to cover asserted claims under the DIC-policy. In these cases, the dependency of a Side A DIC policy may be disadvantageous for the policyholder.
For example, regular ABC-policies cover settlement payments only if the settlement was “reasonable and fair.” Unsurprisingly, the insurer’s and the policyholder’s views of when a settlement is “reasonable and fair” may differ and a dispute may arise. If the DIC policy also provides coverage only for “reasonable and fair” settlements, the DIC insurer is likely to follow the underlying insurer’s interpretation and the policyholder ends up arguing against two insurers.
An effective DIC policy should protect the policyholder against these interpretation risks or, at least, limit them. Anything else would contradict the very purpose of the DIC policy to extend coverage extension. Accordingly, an effective DIC policy should allow the insured to take action against the DIC insurer, regardless of whether the underlying ABC insurer (rightly or wrongly) denied coverage. This may be achieved by eliminating coverage exclusions in the DIC-Policy to the maximum extent possible.
Despite the above, it may not always be possible to eliminate all coverage exclusions, in particular, with regard to the aforementioned settlement clause. Alternatively, the insured should be able to access the Side A DIC’s coverage automatically if the underlying ABC-insurer denies coverage for any reason (even wrongfully). Direct access to DIC coverage serves as an incentive for the DIC insurer to support the insured in their (potential) dispute against the ABC insurer. Otherwise, the DIC-insurer risks liability for the entire loss (subrogation).[1] In other words, the insured should be able to access the top layer of the insurance tower directly if the bottom layer refuses to cover for any reason. Such an approach would correspond to an additional extension of the “drop down feature” as outlined above. However, whether this approach can be implemented in practice remains to be seen.
Overall, a Side A DIC policy can be a multifaceted and useful tool to better protect a company’s directors and officers from liability. To ensure that insured party receive coverage when needed, users should carefully review the wording of the policy and the (potential) effects in the context of the company’s overall D&O program.
Footnotes
[1] See also, Peter Gillon, Eric Gold, Gesut Post: The D&O Cramdown: Triggering Side A DIC Coverage When an Underlying D&O Carrier Declines Coverage in: Kevin LaCroix, The D&O Diary, July 6, 2017.
Authors
Daniele Favalli and Selim Keller, VISCHER Ltd., Zurich, Switzerland
On 28 July 2022, the first four Chinese companies listed global depositary receipts (“GDRs”) in accordance with the Standard for Depositary Receipts on SIX Swiss Exchange via the China-Switzerland Stock Connect program and started trading in the newly introduced segment of GDRs. This was the first time GDRs had been listed on SIX Swiss Exchange but by 19 April 2023 nine more Chinese companies had followed suit. These transactions attracted extensive Swiss, Chinese and global financial media coverage. Prospects are positive that many more listed Chinese companies will list GDRs on SIX Swiss Exchange later this year.
In June 2019, the so-called Shanghai-London Stock Connect Program was launched in order to facilitate a new level of capital cooperation between the People’s Republic of China (“China”) and the United Kingdom. On 11 February 2022, the China Securities Regulatory Commission (“CSRC”) expanded the Shanghai-London Stock Connect Program to include the Shenzhen Stock Exchange, as well as the SIX Swiss Exchange and German stock exchanges. Then, on 25 July 2022, the Swiss Financial Market Supervisory Authority FINMA approved a respective revision of the Listing Rules of SIX Exchange Regulation AG (“SIX Listing Rules”) and the introduction of a new designated GDR trading segment on SIX Swiss Exchange.
This all paved the way for the listing and trading of GDRs on SIX Swiss Exchange via the China- Switzerland Stock Connect Program (see below). The effects of this were quickly evident with several Chinese listed companies announcing their intention to raise funds through listing and trading GDRs on SIX Swiss Exchange.
The China-Switzerland Stock Connect Program enables Chinese companies listed on the Shenzhen Stock Exchange or the Shanghai Stock Exchange to list and trade GDRs representing their domestic shares (“A Shares”) on SIX Swiss Exchange (the focus of this article) and, vice versa, it allows Swiss listed companies to obtain a listing of Chinese depositary receipts in China.
Under the China-Switzerland Stock Connect Program investors are able to buy GDRs on SIX Swiss Exchange or another legitimate trading venue in the normal manner or (subject to Chinese law restrictions applicable to foreign investors) instruct a designated broker to buy A Shares on the Shenzhen Stock Exchange or the Shanghai Stock Exchange (where the A Shares are listed). They would then instruct the depositary to create GDRs representing such A Shares (subject to the cap of the total amount of GDRs actually approved by CSRC). Vice versa, in order to sell GDRs, an investor may either sell GDRs on SIX Swiss Exchange or another legitimate trading venue in the normal manner or instruct a designated broker to redeem the GDRs and sell the underlying A Shares on the Shenzhen Stock Exchange or the Shanghai Stock Exchange (where the A Shares are listed). This means that the China-Switzerland Stock Connect Program provides for a mechanism connecting the capital pools that exist at the participating stock exchanges in China and in Switzerland via a two-way depositary receipt program. The intention of this mechanism is to provide fungibility between the GDRs and the underlying A Shares by enabling investors or their brokers to place, buy and sell orders with designated brokers who are able to seek the
best price for the equity securities from either market. It should also be noted that pursuant to CSRC regulations, GDRs subscribed for by investors in an offering may not be redeemed within 120 days following the first day of trading. Therefore, during such a lock-up period GDR holders cannot redeem their GDRs and sell the underlying A Shares on the Shenzhen Stock Exchange or the Shanghai Stock Exchange and are thus, only able to sell their GDRs through SIX Swiss Exchange or another legitimate trading venue.
GDRs – the Swiss equivalent to American depositary receipts (ADRs) which are used by non-U.S. companies to access the U.S. capital markets – are tradable securities that are issued by a bank or a securities firm (depositary) to represent a certain number of the respective Chinese issuer’s underlying A Shares, which in turn are listed on the Shenzhen Stock Exchange or the Shanghai Stock Exchange. The GDRs allow the indirect exercise of membership and economic rights attached to the deposited A Shares. Through the listing of GDRs on SIX Swiss Exchange via the China-Switzerland Stock Connect Program, Swiss and international investors can (subject to Chinese law restrictions applicable to foreign investors) gain exposure to Chinese stocks.
Although the possibility of listing GDRs on SIX Swiss Exchange has existed for more than 15 years, no issuer had ever dared to make use of it, until very recently. A GDR listing on SIX Swiss Exchange carries both elements of a primary as well as of a secondary listing (as the issuer has already issued shares which are listed abroad) but is closer to a primary listing.
Foreign listed non-Chinese companies have so far sought a secondary listing of their shares on SIX Swiss Exchange rather than a listing of GDRs. The main reason for choosing that route is that under certain conditions significant exemptions for secondary listings of shares apply with respect to the SIX listing requirements as well as the obligation to publish a prospectus. Chinese listed companies are, however, bound by strict domestic regulations for secondary listings of shares abroad, making a follow-on on the GDR segment of SIX Swiss Exchange a less arduous route which has become more attractive with the introduction of the China-Switzerland Stock Connect Program.
(a) Requirements for the GDR Listed Issuer
The requirements that must be fulfilled by the issuer of the underlying shares whose shares are listed on a foreign stock exchange (“GDR Listed Issuer”) are the same as for a primary listing of shares in the main market of SIX Swiss Exchange, in particular:
(b) Requirements for the GDRs:
For the GDRs the same requirements apply as for the listing of shares in the main market, in particular:
(c) Requirements regarding the Depositary:
The depository must either be (i) licensed as a bank under the Swiss Banking Act or as a securities firm under the Swiss Financial Institutions Act or (ii) subject to equivalent foreign supervision.
In order to ensure that the GDR holders can exercise the membership and economic rights attached to the underlying shares, the GDR Listed Issuer has to enter into a deposit agreement with the depositary who issues the GDRs.
In addition to this, the underlying shares must be held by the depositary in a way that they can be separated and segregated for the benefit of the investors in the event of debt restructuring or insolvency of the depositary. Further, the deposit agreement must oblige the depositary to provide the Regulatory Board and/or SIX Exchange Regulation, upon request, with all information and documentation in connection with the implementation of the deposit agreement, in particular with respect to the number of underlying shares deposited and GDRs issued.
(d) Prospectus Requirement:
A GDR Listed Issuer who applies for a listing on SIX Swiss Exchange must submit evidence that it has a prospectus that has been approved by a reviewing body (e.g. SIX Exchange Regulation) or that is deemed to be approved in accordance with the Swiss Financial Services Act (“FinSA”). An exemption from this obligation can apply when GDRs are listed that are the same category as has already been admitted to trading on SIX Swiss Exchange. When GDRs are, however, listed for the first time on SIX Swiss Exchange, as a rule, there is no exemption.
In addition to the minimum required content of a listing prospectus relating to a listing of shares, it is required that a GDR listing prospectus contains appropriate information about the depositary, the GDRs and the deposit agreement, in particular information about the rights of the GDR holders under the deposit agreement, insolvency protection (i.e. protection of the GDR holders in the event of debt restructuring or insolvency of the depositary) and the risks related to the GDR set-up. The disclosure of this information is required even in cases where the GDR listing does not trigger the obligation to publish a prospectus.
A separate trading segment has been created for the GDRs listed on SIX Swiss Exchange. It is based on the model for the Mid-/Small-Cap Shares trading segment, i.e. the segment that includes shares which are listed in the regulatory standard for Special Purpose Acquisition Companies (SPACs). However, shorter trading hours apply as the opening auction only starts at 3:00 p.m. Swiss time, with continuous trading ending on 5:20 p.m. Swiss time and the closing auction and Trading-at-Last (TAL) until 5:40 p.m. Swiss time. Regular trading hours for the other equity securities (except in the Sparks trading segment) are quite different, with trading open between 9 am Swiss time and 5.40 p.m. Swiss time on each trading day.
These shortened (and late) trading hours should allow Chinese GDR issuers to publish price-relevant ad hoc information outside trading hours in Switzerland (where the GDRs are listed) and in China (where the underlying A Shares are listed). In addition, the shortened trading hours serve to pool secondary market liquidity to enhance price building and trade execution.
As soon as and for as long as the GDRs are listed on SIX Swiss Exchange, GDR Listed Issuers have to fulfil certain conditions to maintain the listing of GDRs under the SIX Listing Rules. These post-listing requirements include, inter alia, the following:
Further, Swiss capital market conduct rules (such as the prohibition of insider trading and market manipulation) apply as soon as the GDRs are listed on SIX Swiss Exchange. Since the prevailing view is that a listing of GDRs does not qualify as a “main listing” within the meaning of the Swiss Financial Market Infrastructure Act (“FinMIA”), the disclosure obligations regarding principal shareholders and the rules regarding public takeover offers set out in the FinMIA are not applicable.
On the stock exchanges of Switzerland, United Kingdom and Germany which are covered by the China- Stock Connect Program, the following are the GDR listings by 19 April 2023:
(a) SIX Swiss Exchange
Issuer | Proceeds raised in the
Offering (USD) |
Listing Date | Industry of the Issuer |
GEM Co., Ltd. | Approx. 381 million | 28.07.2022 | Energy – Urban Mining, New Energy Materials, Lithium
Batteries |
Gotion High-tech Co.,
Ltd. |
Approx. 685 million | 28.07.2022 | Energy – Lithium
Batteries |
Keda Industrial Group
Co., Ltd. |
Approx. 173 million | 28.07.2022 | Energy – Clean
Technologies |
Ningbo Shanshan Co.,
Ltd. |
Approx. 319 million | 28.07.2022 | Energy – Lithium
batteries |
Lepu Medical Technology (Beijing)
Co., Ltd. |
Approx. 224 million | 21.09.2022 | Life Sciences – Medical Devices |
Joincare Pharmaceutical Group
Industry Co., Ltd. |
Approx. 92 million | 26.09.2022 | Life Sciences – Chemical
Pharmaceuticals |
Sunwoda Electronic
Co., Ltd. |
Approx. 440 million | 14.11.2022 | Energy – Lithium
Batteries |
Hangzhou GreatStar
Industrial Co., Ltd. |
Approx. 155 million | 15.11.2022 | Industrial – Machinery
and Equipment |
Jiangsu Eastern
Shenghong Co., Ltd. |
Approx. 718 million | 28.12.2022 | Chemicals – Textile
Fibers |
Zhejiang HangKe Technology Incorporated
Company |
Approx. 173 million | 22.02.2023 | Energy – Lithium Batteries |
Fangda Carbon New Material Co., Ltd. | Approx. 190 million | 15.03.2023 | Industrial – Carbon and Graphite
Materials |
Zhejiang Supcon Technology Co., Ltd. | Approx. 564 million | 17.04.2023 | Industrial –
Automation Control Products |
Yangzhou Yangjie Electronic Technology Co., Ltd. | Approx. 215 million | 18.04.2023 | Manufacture – Semicconductor devices, chips and
silicon wafers |
Hence, the 13 listed Chinese issuers raised proceeds from the offerings of approximately USD 4.329 billion.
(b) London Stock Exchange
Issuer | Proceeds raised in the
Offering (USD) |
Listing Date | Industry of the Issuer |
Huatai Securities Co.,
Ltd. |
Approx. 1.540 billion | 17.06.2019 | Financial Services –
Securities |
China Pacific Insurance (Group) Co., Ltd. | Approx. two billion | 17.06.2020 | Financial Services – Insurance |
China Yangtze Power
Co., Ltd. |
Approx. 1.830 billion | 30.09.2020 | Energy – Electric
Power, Hydropower |
SDIC Power Holdings
Co., Ltd. |
Approx. 226 million | 19.10.2020 | Energy – Power
Generation |
Ming Yang Smart
Energy Group Ltd. |
Approx. 657 million | 08.07.2022 | Energy – Renewable
Energy Equipment |
According to media reports Zhejiang Yongtai Technology Co., Ltd., a company listed on the Shenzhen Stock Exchange and active in the Chemicals industry, is currently preparing a listing of GDRs on the London Stock Exchange.
(c) Frankfurt Stock Exchange
As of end of March 2023 no Chinese companies had listed GDRs in Germany. However, according to public media SANY Heavy Industry Co., Ltd, China’s biggest maker of engineering machinery, announced that it is preparing a listing of GDRs for a listing on the Frankfurt Stock Exchange. Thus, it would be the first China-listed company to list GDRs in Germany.
The Chinese issuers listed on SIX Swiss Exchange are active in diversified industries, including, inter alia, renewable energy, high-end technology equipment and life sciences. It is worth mentioning that five GDR Listed Chinese Issuers are active in the lithium battery industry and more than a dozen Chinese companies which are active in this industry announced to list GDRs on SIX Swiss Exchange. For comparison, three of the Chinese companies that listed GDRs on the London Stock Exchange are also active in the energy sector and two in the financial sector.
In addition to the Chinese listed issuers, many other players worldwide are typically involved in a GDR offering and listing on SIX Swiss Exchange. Amongst others, the following parties are typically involved in such transactions:
So far, the CSRC has been responsible for the regulatory Chinese transaction approvals. In Switzerland, the listing application has to be approved by SIX Swiss Exchange.
Further, there are bookrunners and global coordinators involved. Among others, Huatai Financial Holdings (Hong Kong) Limited and CLSA Limited often acted as global coordinators and bookrunners. Also, Swiss banks are stepping into this new business (e.g. UBS AG has been acting as global coordinator and bookrunner in two Swiss GDR transactions). Typically, the global coordinators act on behalf of the managers and are directly involved in the pricing. In addition to this, in some Swiss GDR transactions cornerstone investors participated in the offering.
Under the set-ups chosen so far, SIX listed GDRs are deposited with depositaries who use European International Central Security Depositories (ICSDs) Euroclear and
Clearstream to facilitate the clearance and settlement of transactions with GDRs. In 12 Swiss GDR transactions Citibank, N.A. acted as depository and Deutsche Bank Trust Company Americas was chosen as depositary in one Swiss GDR transaction. Both of these depositaries are based in the United States of America which underpins once more the truly international transaction structure.
In the Swiss GDR transactions known so far, the offerings of the GDRs consisted of private placements in Switzerland solely to professional clients within the meaning of the FinSA and private placements in certain jurisdictions outside Switzerland and the United States of America. Some offerings provided for an over-allotment option (according to which the GDR Listed Issuer grants to the managers an option, exercisable by the global coordinator and the stabilization agent within a certain time period after the first day of trading to purchase the over-allotment GDRs) and/or for an upsize option (which consists of the option that may be jointly exercised by the GDR Listed Issuer and the global coordinator on the date of pricing of the offering based on demand to offer a certain additional number of GDRs, i.e., the number of offered GDRs may be increased to a certain pre-determined number if the market reception is good).
The process relating to the creation and redemption of GDRs under the China-Switzerland Stock Connect Program is not under the control of the Chinese GDR Listed Issuer. Whilst the number of GDRs listed at any time on SIX Swiss Exchange may increase or decrease at the option of the GDR holders and the A shareholders respectively, the total share capital of the Chinese GDR Listed Issuer remains unchanged. The regulations of SIX Exchange Regulation are not adapted to cover such cross-border creation and redemption of GDRs. SIX Exchange Regulation has, however, developed a practice according to which it accepts a yearly report stating the number of issued (listed) GDRs, the number of issued (listed) GDRs since last report, the number of newly issued (listed) GDRs (increase), the number of GDRs redeemed (reduction) since last report, the number of remaining (unlisted) GDRs and the number of remaining (unlisted) GDRs since last report.
As of mid-march 2023, it is being reported in the media that, apart from the companies that have already successfully listed their GDRs on SIX Swiss Exchange, approx. 30 Chinese listed companies have disclosed plans to issue GDRs in Europe and more than 90% of these companies have plans to list GDRs on SIX Swiss Exchange.
On 20 March 2023, CSRC approved the issuance of GDRs of Kunshan Dongwei Technology. Further, media reports stated that Contemporary Amperex Technology Co. Ltd., a global leader of new energy innovation technologies, plans a listing of GDRs on SIX Swiss Exchange and a record amount of at least USD 5 billion could be raised thereby.
It appears that Chinese regulators are currently reconsidering whether any changes in the GDR listing approval process in China shall be implemented. Therefore, the GDR approval process in China is currently on hold.
The China-Switzerland Stock Connect Program is designed as a two-way depositary program. Therefore, it is conceivable that SIX listed Swiss issuers might consider pursuing a GDR listing on the Shenzhen Stock Exchange or the Shanghai Stock Exchange, they are entirely free to do so. To date, no SIX listed issuer has made use of this opportunity and it can be expected that this will remain the less likely transaction direction at least in the short term given that the SIX marketplace is already truly international.
The China-Switzerland Stock Connect Program provides a new channel for Chinese companies which are listed on the Shenzhen Stock Exchange or the Shanghai Stock Exchange to raise capital in Switzerland and it seems that GDR listings on SIX Swiss Exchange could become a regular financing tool for Chinese listed companies. Many other Chinese listed companies have publicly expressed real interest in, and some are already actively pursuing, a listing of GDRs on SIX Swiss Exchange. There are several factors which make SIX Swiss Exchange attractive for Chinese companies. SIX Swiss Exchange holds a top spot in the heart of Europe and is one of Europe’s biggest exchanges in terms of market capitalization of its listed companies. It enables efficient capital raising and a broad exposure to Swiss and international investors, thereby achieving a high level of brand awareness and visibility beyond China. Although issuers listed on SIX Swiss Exchange are not required to have a physical presence in Europe, quite a few Chinese issuers that have listed GDRs on SIX Swiss Exchange have established or are considering to establish their presence in Europe (including Switzerland), or introduced or plan to introduce their products or services into the European markets.