Regulation

There is debate about the extent to which the client's knowledge and experience should be gathered as part of the suitability test. The solution proposed by Art. 12 para. 2 FinSA is probably not satisfactory for the investment advisory service. For the management service, the interpretation of this provision proposed by FINMA in its Circular 2025/2 on the rules of conduct according to FinSA and FinSO has been fairly criticized and, according to some, deviates from the will of Parliament.[...]

Following on from the EU's General Data Protection Regulation (GDPR), the European Regulation on Intelligence artificial (AI Act) provides for a broad territorial scope, covering not only companies incorporated within the EU, but also some located in third countries such as Switzerland. Swiss financial intermediaries may therefore be affected by the AI Act, the extraterritorial dimension of which is presented in this commentary. A. Criteria for determining the territorial scope of the AI Act We will discuss here the two[...]

The European Regulation on Artificial Intelligence (AI Act) adopts an approach based on the risks that an artificial intelligence system (AIS, cf. Caballero Cuevas, cdbf.ch/1382) may pose to the health, safety and fundamental rights of individuals. AIS are divided into four categories, respectively AIS presenting an unacceptable risk, AIS presenting a high risk, AIS presenting a limited risk and AIS presenting a minimal risk. This commentary focuses on the first three categories of AIS. A. AIS presenting an unacceptable risk[...]

Artificial intelligence (AI) can prove invaluable in the human resources management of a bank or financial services provider. Employers can use it to automate various tasks, such as sorting applications, assessing performance, issuing warnings and even dismissals. These practices raise various legal questions: to what extent can an employer rely on AI for such tasks? Can employees challenge the use of AI on them, or obtain explanations of the criteria used by AI? In Switzerland, there are no regulations specifically[...]

The European Regulation on Artificial Intelligence (AI Act) has been in force since 1 August 2024 (see cdbf.ch/1359/). It applies both to artificial intelligence systems (AIS) and to general-purpose AI model (art. 2 AI Act). This commentary focuses on the definitions of these two key concepts in the application of the AI Act and attempts to highlight their characteristics and specificities. A. The concept of SIA According to art. 3 ch. 1 AI Act, an AIS is “machine-based system that is[...]

After more than three years of legislative gestation, the European regulation on artificial intelligence has finally been published in the Official Journal. It is directly applicable to all EU Member States, without the need for transposition into national law. There are transitional arrangements for certain players and requirements (cf. timeline). The Regulation represents the first regulatory framework to apply generally to artificial intelligence systems (AIS), as defined below. This regulation marks a major turning point, also for Swiss financial services[...]

On 22 May 2024, the Federal Council published the bill revising the anti-money laundering provisions. The revision comprises two parts. The first follows on from the amendment of FATF Recommendation 24 on the transparency of legal persons in early 2022. It provides for the introduction of a federal register of beneficial owners of companies, by means of a new law on the transparency of legal persons and the identification of beneficial owners (P-LTPM). The second part consists of several amendments[...]

From 1 January 2025, banks, insurance companies and financial market infrastructures will have to report cyber attacks to the Federal Office for Cyber Security (FOCS) within 24 hours. The Federal Council has just put out to consultation the draft ordinance that implements art. 74a ff of the Federal Act on Information Security (obligation to report cyber attacks). As we explained earlier (see Hirsch, cdbf.ch/1261), banks will now have to inform the OFCS in the event of a cyber attack. The[...]

FINMA has published a draft of a new circular entitled "Rules of Conduct under the Investment Services Financing Act and the Investment Services Financing Ordinance". The aim of the draft is to enhance legal certainty two years after the end of the transitional period following the entry into force of these standards and the first prudential audit cycle on this subject. Overall, it is a relatively modest project. Rather than extending the scope or providing a general commentary, it is[...]

This year, the general meetings of public-interest companies meeting the criteria of Art. 964a para. 1 of the Swiss Code of Obligations will be asked to approve their reports on non-financial matters in accordance with Art. 964c para. 1 of the Swiss Code of Obligations. In this context, a controversy has arisen over the legal nature of the vote: on the one hand, Novartis and Roche have already organised a consultative vote, while on the other, the Ethos Foundation is[...]

At its meeting on 31 January 2024, the Federal Council adopted the amendments to the CISO and decided that the amendments to the CISA relating to the limited qualified investor fund (L-QIF), adopted on 17 December 2021, would enter into force. As a reminder, the L-QIF is a collective investment reserved for qualified investors within the meaning of the CISA that is not subject to approval or authorisation by FINMA (art. 118a CISA). It may take the form of a[...]