Selected questions

Independent asset managers acting professionally require a licence from FINMA before commencing their activities. To obtain this licence, the asset manager must meet personal, financial and organisational requirements. These conditions are set out in the Federal Act on Financial Institutions (FinIA), the Federal Ordinance on Financial Institutions (FinIO) and the FINMA Ordinance on Financial Institutions (FinIO-FINMA). In particular, the asset manager must provide proof that it is domiciled in Switzerland, that it has an adequate organisation and that it possesses sufficient financial guarantees. In addition, the persons responsible for the supervision and the management must provide a guarantee of irreproachable business, have a good reputation and have the necessary professional qualifications. Specific requirements are also set for the risk management and compliance functions.

Ongoing supervision will be monitored by a supervisory organisation (SO). The SO is authorised by FINMA, and as a result is also subject to it.

The independent asset manager must strictly comply with the requirements of the Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector (AMLA) as well as with the additional rules of conduct arising from the Federal Act on Financial Services (FinSA).

Thanks to our extensive experience in this field, we are able to help you obtain your authorisation (filing the application with OS and FINMA) and to advise you on the steps you need to take to meet the licensing requirements. Your actual organisation will depend, for example, on the number of clients, the volume of assets under management, the investment strategies implemented and the products chosen. In particular, using thresholds should allow for a proportionate adjustment of the conditions. These thresholds determine whether you should have a board of directors independent from the body responsible for management, or an independent internal audit where appropriate.

The status of “distributor” licenced by FINMA has been abolished with the entry into force of the Federal Act on Financial Services (FinSA). Instead, the FinSA has introduced the obligation for client advisors to register in a client advisor register and comply with the rules of conduct provided by FinSA.

The notion of “distribution” has also been abolished and replaced by the concepts of financial services (Art. 3 lit. c FinSA) and offer (Art. 3 lit. g FinSA), which are two distinct concepts. Depending on the questions to be answered, it must be ascertained whether an activity is considered a financial service and/or an offer, as the legal consequences are different. The concept of advertising (Art. 68 LSFin) must also be examined.

For foreign collective investment schemes, a prior approval of those investment funds by FINMA is required if the offer is aimed at non-qualified investors, as well as the appointment of a representative and a paying agent. In case of an offer to high-net-worth individuals or their private investment structures, the appointment of a representative and a paying agent is also required.

We can help you analyse and implement these complex regulatory requirements.

A basic outline of the company’s structure and its activities needs to be clearly defined in order to determine whether they would qualify as a collective investment scheme and therefore would be subject to the Federal Act on Collective Investment Schemes (CISA).

We will also have to analyse whether the investment company may be considered a financial intermediary and, as a result, whether it will be subject to the Federal Act on the Prevention of Money Laundering and Terrorist Financing (AMLA). If this is the case, this will create a number of obligations for your investment company (such as identifying shareholder and business relationships (contractual relationships), due diligence obligations, obligations for any suspicions of money laundering, organisational measures, obligations to join a self-regulatory organisation (SRO), AML audit, etc.).

First of all, the start-up’s company name has to be protected. We can conduct a clearance search in the commercial register to make sure that the company name you chose is not identical or even similar to any previous company names.

Next we can help you determine whether the products contain new and inventive technology. In this case, it might be a good idea to file a patent application to protect the invention. If this is not the case, or if for whatever reason you do not intend to apply for a patent, it is crucial to keep your technology secret. We can help by preparing confidentiality agreements with third parties and ensure that only your employees who use the confidential technology have access to it. We will also help draft a confidentiality clause to be included in their employment contract.

If you intend to name your products before putting them on the market, we recommend filing a trademark application so that you will have a monopoly regarding these products. Trademarks can be verbal (a sequence of letters/numbers), figurative (a logo), combined (verbal and figurative), three-dimensional, and take other forms. The Federal Institute of Intellectual Property will examine whether the trademark meets the legal requirements for registration and we can help you determine these absolute grounds. If so, the trademark will be registered, and third-party owners of earlier trademarks will then be able to file opposition if they think that the trademark and product are similar to their own, potentially confusing consumers.

Finally, do not forget to reserve the domain name or names you need in order to increase your online visibility. We can assist with this service as well.

As long as you (or an authorised third party, such as a distributor, licensee or franchisee) have used your trademarks within the last five years, you can take legal action against any competitor who is using your trademarks without the right to do so.

Depending on the circumstances, we can help you send a cease and desist letter to the opposing party and then you can file an application for civil injunctions to stop their illegal activity. In order to do so, you must demonstrate the plausibility of your rights (i.e. that your trademarks exist), the possibility that these rights are being violated (i.e. your competitor is putting their products on the market) and the threat of hard-to-repair damages. Finally, you must convince the judge of the urgency (relative, not absolute) of your application.

If it will be difficult to prove that the case is urgent, especially if you have been late to take action, you can file an ordinary civil claim. In this case, you must now prove the conditions we’ve just mentioned, rather than merely demonstrating their plausibility. On the other hand, the condition of urgency would no longer apply, and the procedure will take more time.

Finally, you can consider filing a criminal complaint against the third party. In this case, the alleged infringements – i.e. infringement of your trademark rights, possible falsification of goods – must have been committed intentionally and not through negligence. We can help you take the steps to prove your case and protect your valuable interests.

Whether or not you can patent or already have patented your invention, you have several options when marketing your products. We can help you arrange:

• An agency contract: Your contracting party (the agent) will negotiate the sale of the products on your behalf. You will not be bound to the agent by an employment contract, as there is no subordination relationship between you. The agent does not depend legally on you, but does depend on you economically;
• A distribution (or representation) agreement: Your contracting party (the distributor or the representative) buys your products and then puts them on the market in the specified territory. Unlike an agent, distributors act in their own name; they do not legally depend on you, but they do depend on you economically. The distributor or representative may or may not have exclusive rights for the specified territory: this is called exclusive distribution or representation;
• A franchise agreement: Your contracting party (the franchisee) will buy your products and then put them on the market in the specified territory. Unlike a distributor (or representative), franchisees must follow the unique sales and advertising concept that you impose on them. Franchisees do not depend legally on you, but do depend economically on you very much.

Depending on the business model you choose, we will draw up the appropriate contracts to protect your interests.

You will need to enter into a licence agreement. This is an agreement whereby you (as the licensor, who holds an intangible asset), authorise your contracting party (the licensee) to use that asset to put the products it protects on the market.

We can help you draft and enter into the various contracts you need, in particular the licence agreement. We can also help negotiate the terms of these contracts and represent you throughout any legal disputes that may arise in connection to them.

Yes. Swiss law allows you, as owner of an intangible right (i.e. a trademark, patent, design or copyright), as well as licensees with standing, to request that the Federal Customs Administration intervene to detain illegal products that are imported, exported or in transit through Switzerland, if Customs suspects that the intangible right upon which the request is based has been infringed.

Once notified by Customs, you – as holder or licensee – have ten working days (renewable once) to have the detained products destroyed. In this case, the consignee – the party receiving the goods – is presumed to consent. You may also request that a sum of money be paid in compensation for the costs incurred.

As holder or licensee, you may feel that the number of products detained by Customs is significant, and that they are not intended for the consignee’s personal use. The consignee may also refuse to destroy the products. In either case, the holder or licensee may decide to file an application for civil injunctions or a criminal complaint to ask the competent judicial authority to seize the products and obtain compensation under civil law or to have the perpetrator convicted under criminal law. We can help you protect your interests in either circumstance.

As a composer, you have exclusive rights to decide whether, when and how your texts or works will be used. Even if a work is automatically protected from the moment it is created, you need first of all to document the fact – to the extent that you can – that you are indeed the original composer of this music. In other words, you need to document authorship of the work. We can help you take certain steps to this end, such as a Soleau envelope, sending a copy of the work to yourself by registered mail, sealed deposit with a notary, blockchain, bailiff, among others. A composer’s compensation rights can only be exercised vis-à-vis users by management organisations for copyright and related rights (such as SUISA, for example). As a result, we recommend that you contact an organisation of this kind, where you can declare your work and where your rights to any musical works will be managed. This organisation will also act on your behalf to collect the royalties you are due.

We will be happy to work with you to draft and negotiate the various contracts related to your rights and handle your relationships with management organisations. Contact our intellectual property experts to protect your valuable rights.

First, you have to develop individualised software designed specifically for your co-contractor, according to his personal needs, all for an agreed-upon amount. This is a service contract. This is different from a mandate contract, in that you (the contractor) must fulfil the obligations from the moment when the software (the work delivered) meets the requirements promised to your client (the co-contractor), according to predefined specifications. Other than the service contract, which we can draw up for you, you must keep a written record of the modifications required by the client during the software development.

Once the software is delivered, you are responsible for ensuring that it works properly. Very often, objective performance criteria are defined in a Service Level Agreement (or SLA). This contract quantitatively and objectively expresses the quality of the services provided. This contract is more technical than a service contract. It must be drawn up carefully to better determine where exactly you are liable to your co-contractor, who expects the software to operate flawlessly.

We are more than willing to help you draft the service contract and the Service Level Agreement. Contact our IT legal experts.

You must comply with Swiss data protection laws when processing your Swiss clients’ data as well as with the European GDPR (General Data Protection Regulation) for clients residing in the European Union.

Personal data are information regarding an identified or identifiable person; this includes both natural and legal persons about whom the data are processed. You are required to process such data lawfully, accurately, securely and proportionately, all the while respecting principles of good faith. Your customers must be able to determine why their personal data are being collected and give their consent to have the data processed.

The GDPR lays down additional requirements for companies processing personal data. This includes: the data processing must be limited to what is absolutely necessary; all data must be completely deleted upon your client’s request; consent to data use must be given clearly and definitively, and; it must be possible to transfer personal data from one provider to another. Finally, Swiss companies that do not have an establishment in the EU must still comply with the GDPR when offering goods or services to persons in the EU or when monitoring the behaviour of these persons (targeting criterion).

We can help bring your company into full compliance with these intricate Swiss and European data protection regulations.

There are several options for structuring your business and private assets. Your company can be passed to your descendants by transferring shares to them during your lifetime or upon your death via a will or an inheritance agreement.

You need to consider the interests of your spouse and any descendants who will not inherit your shares in the family business when arranging your estate plan. Various solutions are possible, taking into account any potential tax consequences. Our tax and inheritance law experts can advise and assist you in preparing this succession.

Since Swiss legislation on real estate acquisition contains a series of restrictions for persons abroad looking to buy property, it would probably be a good idea to start by completing the administrative steps for your residence in Switzerland.

To do this, you have to obtain a residence permit. Conditions for granting residence permits are defined by Swiss federal legislation as well as by the laws in the canton where you want to live. In addition, the requirements will differ depending on whether you are a national of a member state of the European Union or the European Free Trade Association, or a third country national. Whether or not you plan to engage in gainful employment in Switzerland will also impact the process.

We will be at your side to assist you throughout this process and to prepare your permit application to be presented to the federal and cantonal authorities. Contact our experts for hands-on support.

Some legal forms may be more suitable than others for your plans. Depending on your unique situation and ambitions, we can guide your decision to form a sole proprietorship, a partnership or a corporation. Depending on your goals, or if your entity is an NGO, you can also consider setting up an association or a foundation.

We can help you develop and track the progress of your new business. We also provide assistance in setting up your structure, such as defining the company name and purpose, drafting corporate documents, developing internal governance, putting in place a shareholders’ agreement, if appropriate, and more. And, our tax experts are ready to help you analyse and anticipate any tax issues.

There are several options that help you reduce your liability to a certain extent as a member of the board of directors of a Swiss company. These include taking out a D&O insurance policy, drawing up appropriate board organisational regulations, setting up sub-committees with specific responsibilities or possibly obtaining an indemnity guarantee from a majority shareholder. We can help you develop and implement these solutions.

Whether or not you can patent or already have patented your invention, you have several options when marketing your products. We can help you arrange:

• An agency contract: Your contracting party (the agent) will negotiate the sale of the products on your behalf. You will not be bound to the agent by an employment contract, as there is no subordination relationship between you. The agent does not depend legally on you, but does depend on you economically;
• A distribution (or representation) agreement: Your contracting party (the distributor or the representative) buys your products and then puts them on the market in the specified territory. Unlike an agent, distributors act in their own name; they do not legally depend on you, but they do depend on you economically. The distributor or representative may or may not have exclusive rights for the specified territory: this is called exclusive distribution or representation;
• A franchise agreement: Your contracting party (the franchisee) will buy your products and then put them on the market in the specified territory. Unlike a distributor (or representative), franchisees must follow the unique sales and advertising concept that you impose on them. Franchisees do not depend legally on you, but do depend economically on you very much.

Depending on the business model you choose, we will draw up the appropriate contracts to protect your interests.

Yes. We can help you set up an external financing system for third-party loans, bank financing with guarantees, convertible loans, or other financing arrangements. You can also consider having one or more financial investors – whether private or institutional – take a financial stake in your company, through a capital increase, for example.

Your company’s future depends on how this financing is structured and the conditions that come with it, as well as your choice of investors. We can work with you to assess the risks associated with all these different options, and then to implement your decisions from a legal point of view. We can also help you draft and negotiate investment contracts and shareholders’ agreements with your new investors or shareholders, should you need them. Finally, we will work in cooperation with notaries or the competent commercial registers to help you prepare all of the corporate documents relating to the proposed transaction. Our mergers and acquisitions specialists are ready to help your company thrive.

Selling or transferring a business requires good preparation and anticipation both from the owner, who has to prepare their business for the takeover, and from the buyer, who has to carefully examine the accounts and health of the business.

The various methods for transferring a company differ significantly depending on the goals set by both the buyer and the seller. We can advise you on the best way to meet your expectations and goals.

Divestiture or takeover of a company can be quite a demanding process in terms of energy, time and costs for those who are not used to doing it. It is important to have support from trusted and highly specialised financial, tax and legal advisors throughout this process that can help you assess your risks and opportunities. We are here for all your legal needs throughout the lifecycle of your transaction.

If you are buying real estate on plans, you have probably entered into a general or total contractor agreement with your contact person.

Your relationship with your contracting party is defined by the terms of this contract. In principle, it contains provisions relating to the precise and detailed description of the agreed-upon work, the deadlines for its execution, as well as any non-compliance with the contractually agreed terms.

If it has in fact been established that the work is not being done in accordance with the terms of the contract and if you are not at fault, it is your responsibility to clearly express your disagreement with your contracting party, in writing, specifying the details and reasons for this disagreement. You must also give the contracting party formal notice to comply with the terms of the contract within a certain deadline.

If you, as the client, have not committed any faults of your own, then you have a number of rights given the contractor’s breach of obligations. Depending on the circumstances, these rights may go as far as the right to terminate the contract, with awarded damages.

We can help you review and analyse the provisions of the contract and advise you on your options in case of a breach of all or part of these provisions. We can also assist you during your dealings with your contracting party to ensure that your contractual and legal rights are respected, if necessary through legal action.

We can set up various types of compensation or participation plans within your company which give rights, under certain conditions and after a certain period of time, to shares, options, virtual shares, or other forms of compensation.

Our tax experts can also help by defining which type of plan is best suited to your goals. Contact our employment law experts.

Swiss employment law contains certain mandatory provisions that cannot be ignored when amending employment contracts or internal rules applicable to your employees.

An employment contract cannot be unilaterally modified by either party, and, depending on the circumstances, any amendments under consideration cannot come into force without meeting certain deadlines. The procedure will differ depending on whether the proposed change improves or undermines your employees’ rights. For example, you may need a settlement agreement or a leave of absence amendment.

We can help you review the situation and avoid any potential claims for abusive termination.

Your employee has committed several acts of unfair competition. First, he copied some of your documents and as a result illicitly exploited what you are entitled to for his future business. Your employee also induced some of your clients to break their contracts with your company in order to enter into new contracts with him. Finally, your employee has incited some of your employees to betray or reveal your company’s trade and business secrets.

You can file a criminal complaint for violation of the law against unfair competition or take civil action for an injunction against the commission of acts of unfair competition. In an emergency, you can file a request for provisional civil measures to get a quick court decision.

We can help you determine whether to take civil or criminal action – or both – against your employee, and we can represent you and assist you in court.

Yes. FINMA sets out prudential framework conditions that allow business relationships in the financial sector to be conducted digitally. A new circular sets out the due diligence obligations that arise from money laundering regulations in digital financial services, in line with the principle of neutrality as regards the technology used.

Before a FinTech company can begin operations, it is necessary to check whether it is subject to measures to prevent money laundering. You also need to look into the obligation to obtain FINMA authorisation for the proposed financial services, depending on the type of activities or type of financial products offered. Certain trading activities in virtual currencies, for example, require banking authorisation and are subject to supervision by FINMA. Other uses of blockchain technology may also be subject to applicable laws governing financial markets, such as the Swiss Financial Market Infrastructure Act, and may require authorisation. This may be the case, for example, when operating crypto-currency trading platforms.

We can help you analyse your business model and prepare an application for authorisation from FINMA. Thanks to our extensive experience, we can also help you meet all your obligations in the fight against money laundering.