Financial Market Infrastructure Ordinance (FinMIO)
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Chapter 1 Derivatives Trading
Section 1 General
Art. 76 Collective investment schemes
(Art. 93 para. 2 lit. e and f FinMIA) Whether a collective investment scheme counts as a financial counterparty or as a small financial counterparty is determined on the basis of the OTC derivatives transactions carried out for its own account in accordance with Article 99 FinMIA, regardless of whether it can be ascribed legal personality or not.
Art. 77 Companies
(Art. 93 para. 3 FinMIA) 1 Under the FinMIA, a company is deemed to be any legal entity entered in the commercial register. 2 Also classified as companies are foreign companies engaged in economic activities that are legal entities according to the law applicable to them, as well as trusts and similar constructs.
Art. 78 Branches
(Art. 93 para. 5 FinMIA) If FINMA determines that a Swiss branch of a foreign counterparty is subject to regulation that does not correspond to the statutory requirements to a significant extent, it can subject the derivatives transactions carried out by the branch in question to Articles 93 to 117 FinMIA on derivatives trading.
Art. 79 Exceptions for other public sector bodies
(Art. 94 para. 2 FinMIA) 1 Derivatives with the following counterparties are subject to the reporting duty set out in Article 104 FinMIA, but not to the other derivatives trading duties: a. foreign central banks; b. the ECB; c. the EFSF; d. the ESM; e. official bodies or state departments that are responsible for or involved in administering the national debt; f. financial institutions set up by a central government or by the government of a subordinate regional body in order to grant promotional loans on the state's behalf on a non-competitive, non-profit-oriented basis. 2 Derivatives transactions with foreign central banks and with the bodies listed under paragraph 1 letter e may be exempted from the reporting duty provided reciprocity is granted. 3 The FDF shall publish a list of the foreign bodies covered by paragraph 2.
Art. 80 Excluded derivatives
(Art. 94 para. 4 FinMIA) In addition to the derivatives listed under Article 94 paragraph 3 FinMIA, the following derivatives are excluded from Articles 93 to 117 FinMIA concerning derivatives trading: a. derivatives issued in the form of a security or uncertificated security; b. derivatives accepted in the form of a deposit.
Art. 81 Fulfilment of duties under foreign law
(Art. 95 FinMIA) 1 FINMA shall recognise foreign law as equivalent if the duties that apply for derivatives trading and the provisions on supervision are comparable with the Swiss equivalent in their material impact. 2 This condition is met with respect to the: a. clearing duty under Article 97 FinMIA, if the clearing in question largely reduces the systemic and counterparty risks of standardised OTC derivatives; b. reporting duty under Article 104 FinMIA, if the report contains at least the information set out in the Article 105 paragraph 2 FinMIA; c. the risk mitigation duty under Articles 107 to 110 FinMIA, if the corresponding measures largely reduce the systemic and counterparty risks of non-standardised OTC derivatives; d. the platform trading duty under Article 112 FinMIA, if pre-trade and post-trade transparency in the derivatives market is appropriately improved through the trading of standardised derivatives via trading venues or organised trading facilities. 3 A Swiss counte
Art. 82 Intra-group flow of information
(Art. 96 FinMIA) If the counterparty commissions group companies and branches in Switzerland and abroad with the fulfilment of its duties under Articles 93 to 117 FinMIA, it may exchange all necessary information in this respect with these group companies and branches, including client data, without this requiring the approval of the client in question.
Art. 83 Declaration concerning a counterparty's characteristics
(Art. 97 para. 3 FinMIA) 1 The declaration of a counterparty with respect to its characteristics applies with respect to all the duties set out in this chapter. 2 Counterparties must inform the counterparties with which it regularly enters into derivatives transactions about any change in its status in a timely manner.
Art. 84 Currency swaps and currency forward transactions
(Art. 101 para. 3, 107 para. 2, 113 para. 3 FinMIA) The currency swaps and currency forward transactions that are exempt from the clearing duty (Art. 97 FinMIA), the risk mitigation duties (Art. 107 to 111 FinMIA) and the platform trading duty (Art. 112 FinMIA) comprise all transactions for the exchange of currencies in which real execution is guaranteed, irrespective of the clearing method.
Section 2 Clearing via a Central Counterparty
Art. 85 Commencement of duty
(Art. 97 and 101 para. 2 FinMIA) The duty to clear derivatives transactions via authorised or recognised central counterparties applies from the point at which FINMA publishes the clearing duty for the derivative category in question: a. after the expiry of six months: for derivatives transactions which participants in an authorised or recognised central counterparty conclude anew with one another; b. after the expiry of 12 months: for derivatives transactions which: 1. participants in an authorised or recognised central counterparty conclude anew with other financial counterparties that are not small, or 2. other financial counterparties that are not small conclude anew with one another; c. after the expiry of 18 months: for all other derivatives transactions concluded anew.
Art. 86 Transactions not covered
(Art. 94 para. 4 and 97 para. 2 FinMIA) 1 Transactions with counterparties that are subject to the clearing duty for the first time in accordance with Article 98 paragraph 2 or Article 99 paragraph 2 FinMIA do not need to be cleared through a central counterparty if they were concluded prior to subjection to the clearing duty. 2 Derivatives transactions with counterparties which have their registered office or domicile in Switzerland to which the derivatives trading provisions do not apply do not have to be cleared through a central counterparty. 3 Derivatives transactions in which a covered bond issuer or a legal entity of a cover pool for covered bonds is involved do not have to be cleared via a central counterparty if the following prerequisites are met: a. The derivatives transaction serves the sole purpose of hedging interest rate or currency risks arising from the covered bond for the cover pool. b. The derivatives transaction is not terminated in the event of restructuring or ba
Art. 86 — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Para. 3 let. e — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 87 Derivatives transactions intended to reduce risks
(Art. 98 para. 3 FinMIA) Derivatives transactions intended to reduce risks are directly associated with the business activity, liquidity management or asset management of the non-financial counterparty if they: a. serve to hedge the risks of a change in value of assets or liabilities which the non-financial counterparty or its group can reasonably be considered to hold, in keeping with its business activity; b. serve to hedge the risks to the value of assets and liabilities that result from indirect repercussions of fluctuations in interest rates, inflation rates, currency movements or credit risks; c. are recognised as hedging transactions according to an accounting standard that is recognised under Article 1 of the Ordinance of 21 November 2012 on Recognised Accounting Standards; or d. are concluded as fixed hedging transactions in the context of the management of business risks (portfolio hedging or macro hedging) or are concluded according to the approximation method (proxy hedging
let. c — SR 221.432
Art. 88 Thresholds
(Art. 100 FinMIA) 1 The following thresholds apply to the average gross positions in outstanding OTC derivatives transactions of non-financial counterparties: a. credit derivatives: CHF 1.1 billion; b. equity derivatives: CHF 1.1 billion; c. interest rate derivatives: CHF 3.3 billion; d. currency derivatives: CHF 3.3 billion; e. commodity derivatives and other derivatives: CHF 3.3 billion. 2 Where the average gross position of all outstanding OTC derivatives transactions of financial counterparties are concerned, a threshold of CHF 8 billion applies at financial or insurance group level.
Art. 89 Average gross position
(Art. 100 FinMIA) The following rules apply to the calculation of the average gross position of outstanding OTC derivatives transactions: a. The latest exchange rates shall be used in the calculation. b. Positions from OTC derivatives transactions are factored into the calculation even if they are voluntarily cleared centrally. c. Positions of fully-consolidated group companies, including those with their registered office outside Switzerland, shall be factored in irrespective of the registered office of the parent company if these group companies would count as financial or non-financial counterparties in Switzerland. d. Adjustments to the nominal amount during the term shall be factored in if these were contractually envisaged at the start of the transaction. e. Transactions in the subsequent transaction chain of hedging transactions of a non-financial counterparty likewise count as hedging transactions. f. The netting of opposing positions in derivatives is permitted insofar as thes
Art. 90 Cross-border transactions
(Art. 94 para. 2 and 102 FinMIA) Cross-border transactions do not have to be cleared through a central counterparty if the foreign counterparty: a. has its registered office in a country whose legislation is recognised by FINMA as being equivalent; and b. the transactions in question are not subject to the clearing duty under the legislation of that country.
Art. 91 Intra-group transactions
(Art. 103 lit. b FinMIA) Non-financial counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures if they maintain professional central treasury operations.
Section 3 Reporting to a Trade Repository
Art. 92 Duty
(Art. 104 FinMIA) 1 Derivatives transactions with parties that are exempted from the provisions on derivatives trading are to be reported by the counterparty subject to the legislation. 2 Subject to Article 104 paragraph 4 FinMIA, centrally cleared transactions that are traded via a trading venue or an organised trading facility are to be reported by the counterparty closest to the central counterparty in the transaction chain. 3 The definition of selling counterparty shall be based on conventional industry and recognised international standards, whereby agreement on another interpretation remains reserved. 4 A counterparty may submit data to a trade repository in Switzerland or abroad without the approval of, or without informing, its counterparty or an end client, as long as this is done in fulfilment of the duties set out in Title 3 FinMIA, whereby Article 105 paragraph 4 FinMIA remains reserved.
Art. 93 Content of reports
(Art. 105 para. 2 FinMIA) Reports are to contain the information set out in Annex 2.
Section 4 Risk Mitigation
Art. 94 Duties
(Art. 107 to 111 FinMIA) 1 The risk mitigation duties apply only to derivatives transactions between companies. 2 If FINMA determines that a derivatives transaction should no longer be subject to the clearing duty, it shall inform the counterparties promptly in this respect, granting them an appropriate period in which to make the necessary adjustments.
Art. 95 Confirmation of contractual terms
(Art. 108 lit. a FinMIA) 1 The contractual terms must be reciprocally confirmed at the latest within two business days of the conclusion of the OTC derivatives transaction in question. 2 OTC derivatives transactions concluded after 4 p.m. must be confirmed at the latest within three business days of the transaction being concluded. 3 The deadlines that apply for complex transactions and small counterparties shall be extended by one business day. 4 The counterparties may agree that an OTC derivatives transaction should also be considered confirmed if one of the counterparties does not raise any objection to a unilateral confirmation.
Art. 96 Portfolio reconciliation
(Art. 108 lit. b FinMIA) 1 The details for reconciling the portfolios must be agreed prior to completing an OTC derivatives transaction. 2 The portfolio reconciliation shall encompass the key terms of the concluded OTC derivatives transactions and their valuation. 3 It may also be carried out by a third party appointed by one of the counterparties. 4 It must be carried out: a. every business day if there are 500 or more OTC derivatives transactions outstanding between the counterparties; b. once a week if there are between 51 and 499 OTC derivatives transactions outstanding between the counterparties at any point during the week; c. once a quarter if there are 50 or less OTC derivatives transactions outstanding between the counterparties at any point during the quarter. 5 Derivatives not covered by the clearing duty under Article 101 paragraph 3 letter b FinMIA are not factored in for purposes of determining outstanding transactions in accordance with paragraph 4.
Art. 97 Dispute resolution
(Art. 108 lit. c FinMIA) 1 The place of jurisdiction and the applicable law for any disputes must be agreed at the latest when an OTC derivatives transaction is concluded. 2 Procedures are to be set out in the agreement: a. for the identification, recording and monitoring of disputes in connection with the recognition or valuation of the transaction and the exchange of collateral between the counterparties; the record of the dispute has to encompass at least how long the dispute has been going on for up to that point, the counterparty and the disputed amount; b. for the swift resolution of disputes and for a special process for disputes that cannot be resolved within five business days.
Art. 98 Portfolio compression
(Art. 108 lit. d FinMIA) 1 Portfolio compression need not be undertaken if it would not lead to any meaningful reduction in counterparty risk and the counterparty subject to the obligation documents this at least every six months. 2 Portfolio compression would not lead to any meaningful reduction in counterparty risk in particular if: a. the portfolio contains no or only a few offsettable OTC derivatives transactions; b. such activity would jeopardise the effectiveness of internal risk processes and controls. 3 Portfolio compression also need not be undertaken if the corresponding work and expense would be disproportionate to the anticipated reduction in counterparty risk.
Art. 99 Valuation of outstanding transactions
(Art. 109 FinMIA) 1 Market conditions that do not permit the valuation of OTC derivatives transactions are deemed to hold sway if: a. the market in question is inactive; or b. the range of plausible fair value estimates is significant and the probabilities of the various estimates cannot be reasonably assessed. 2 A market for an OTC derivatives transaction is viewed as inactive if: a. the quoted prices are not automatically and regularly available; and b. the prices available do not represent market transactions that take place regularly and under standard market conditions. 3 If a valuation is permissible on the basis of model prices, the model must: a. take into consideration all factors that the counterparties would take into account when determining a price, including the greatest possible use of market valuation information; b. be in line with recognised economic processes for determining the prices of financial instruments; c. be calibrated using the prices of observable latest m
Art. 100 Duty to exchange collateral
(Art. 110 FinMIA) 1 If counterparties have to exchange collateral, this shall take the form of: a. an initial margin that is suitable for protecting the transaction partners from the potential risk that there could be market price changes during the closing and replacement of the position in the event of default on the part of a counterparty; and b. a variation margin that is suitable for protecting the transaction partners from the ongoing risk of market price changes following execution of the transaction. 2 The duty to supply an initial margin applies only to counterparties whose aggregated month-end average gross position of OTC derivatives not cleared through a central counterparty, including derivatives in accordance with Article 107 paragraph 2 letter b of the FinMIA, is greater than CHF 8 billion at group or financial or insurance group level for the months of March, April and May of the year; in this regard, intra-group transactions are not counted several times from the viewp
Art. 100 — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 100a Exceptions to the duty to exchange collateral
(Art. 110 FinMIA) 1 The exchange of initial margins and variation margins may be waived if: a. the collateral to be exchanged would amount to less than CHF 500,000; b. small non-financial counterparties are involved in the transaction. 2 The exchange of initial margins may be waived if such margins would have to be provided for the currency components of currency derivatives where the nominal amount and interest in one currency are exchanged against the nominal amount and interest in another currency at a predefined time and according to a predefined method. 3 If one of the counterparties to a derivatives transaction is a covered bond issuer or a legal entity of a cover pool for covered bonds, that counterparty may, subject to the conditions set out in Article 86 paragraph 3, agree with its counterparty that: a. an exchange of initial margins will be dispensed with; or b. the covered bond issuer or the legal entity of a cover pool for covered bonds will pay no variation margins, and th
Art. 100a — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 100b Initial margin reduction
(Art. 110 FinMIA) 1 The counterparties may reduce initial margins by no more than CHF 50 million. 2 The amount of the initial margins of a counterparty that belongs to a financial or insurance group or a group is determined taking all of the group companies into account. 3 In the case of intra-group transactions, the initial margin may be reduced by no more than CHF 10 million.
Art. 100b — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 101 Timing of initial margin calculation and payment
(Art. 110 FinMIA) 1 The initial margin must be calculated for the first time within one business day of the execution of the derivatives transaction. It must be recalculated regularly, but at least every ten business days. 2 If both of the counterparties are in the same time zone, the calculation is to be based on the previous day's netting set. If the two counterparties are not in the same time zone, the calculation is to be based on the netting set transactions that were executed on the previous day before 4pm in the earlier of the two time zones. 3 The initial margin is to be paid on the respective calculation day according to paragraph 1. The customary timeframes apply for settlement.
Art. 101 — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 101a Timing of variation margin calculation and payment
(Art. 110 FinMIA) 1 Variation margins are to be recalculated at least every business day. 2 The basis of the calculation is the valuation of the outstanding transaction in accordance with Article 109 of the FinMIA. For all other matters, Article 101 paragraph 2 is applicable by analogy. 3 Variation margins are to be paid on the respective calculation day according to paragraph 1. The customary timeframes apply for settlement. 4 Notwithstanding paragraph 3, variation margins may be paid up to two business days after the calculation day if: a. A counterparty not obliged to pay an initial margin provided additional collateral before the calculation day and the following conditions are met: 1. the additional collateral was calculated taking account of a 99% one-tailed confidence interval for the valuation of the OTC derivatives transactions to be secured for the relevant margin period of risk, 2. the margin period of risk is at least as many days as the number of days between the calculati
Art. 101a — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 102 Treatment of initial margins
(Art. 110 FinMIA) 1 No reciprocal offsetting may apply to initial margins. 2 Initial margins paid in cash must be held with a central bank or a Swiss bank independent of the paying counterparty or an independent foreign bank subject to appropriate regulation and supervision. 3 Initial margins not paid in cash may be held by the receiving counterparty or by a third party mandated by the counterparty. The third party may be the paying counterparty. 4 The use of initial margins for other purposes is not permissible. This does not apply to the reutilisation of initial margins paid in cash by a custodial third party, provided it is contractually ensured that the reutilisation does not adversely affect the security and its usability. 5 The receiving counterparty and the custodial third party must keep the non-cash initial margins received separate from their own assets and conclude a segregation agreement. This shall prescribe in particular that: a. the initial margin payment should be immed
Art. 102 — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 103 Calculation of initial margins
(Art. 110 FinMIA) 1 The initial margin is calculated as a percentage discount on the gross positions of the individual derivatives transactions. Derivatives transactions that form the object of a netting agreement concluded between the counterparties («netting set») may be pooled. 2 It shall amount to the following for each derivative category: a. 1% for interest rate derivatives with a residual term of up to two years; b. 2% for credit derivatives with a residual term of up to two years and interest rate derivatives with a residual term of two to five years; c. 4% for interest rate derivatives with a residual term of more than five years; d. 5% for credit derivatives with a residual term of two to five years; e. 6% for foreign currency derivatives; f. 10% for credit derivatives with a residual term of more than five years; g. 15% for equity, commodity and all other derivatives. 3 If a transaction can be classified in more than one derivative category in accordance with paragraph 2, it
Para. 5 — SR 952.03 Para. 5 — SR 961.011 Para. 6 — Repealed by No I of the O of 5 July 2017, with effect from 1 Aug. 2017 (AS 2017 3715).
Art. 104 Admissible collateral for initial and variation margins
(Art. 110 FinMIA) 1 The following count as admissible collateral: a. cash deposits, including medium-term notes or comparable instruments issued by a bank; b. high-quality debt securities issued by a central government, a central bank, a public-law entity with the right to levy taxes, the BIS, the International Monetary Fund, the ESM and multilateral development banks; c. high-quality debt securities of companies; d. high-quality mortgage bonds (Pfandbriefe) and other covered debt securities; e. shares in a major index in accordance with Article 4 paragraph 1 letter b CAO, including convertible bonds; f. gold; g. money market funds; h. units in securities funds in accordance with Article 53 of the Federal Act of 23 June 2006 on Collective Investment Schemes, if: 1. the units are valued daily, and 2. the securities funds invest solely in assets in accordance with letters a to g or in derivatives that hedge such assets. 2 Collateral is deemed to be high value if it is highly liquid, has
Para. 1 let. e — Amended by Annex No 5 of the O of 29 Nov. 2023, in force since 1 Jan. 2025 (AS 2024 13). Para. 1 let. e — SR 952.03 Para. 1 let. h — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Para. 1 let. h — SR 951.31
Art. 105 Discounts on collateral
(Art. 110 FinMIA) 1 The value of the collateral should be marked down by means of discounts on the market value in accordance with Annex 4. 2 An additional discount of 8% must be applied in cases where: a. the currency of the initial margin paid is different from the currency agreed for the termination payment; b. the currency of non-cash variation margins provided is different from the currencies agreed in the derivatives contract, the netting framework agreement or the credit support annex for variation margins. 3 Counterparties may ascertain the discounts that apply using their own estimates of market price and exchange rate volatility if they meet the qualitative and quantitative minimum standards in accordance with Annex 5. 4 They shall take measures to: a. exclude risk concentrations with respect to certain types of collateral; b. rule out the possibility that the collateral accepted was issued by the collateral provider or a company associated with the collateral provider; c. av
Para. 2 let. b — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 106 Cross-border transactions
(Art. 94 para. 2 and 107 FinMIA) 1 The duty to exchange collateral in the case of cross-border transactions shall also apply, subject to the exemption envisaged in paragraphs 2, 2bis and 2ter, if the foreign counterparty of the Swiss counterparty which has the duty to exchange collateral would also be subject to this duty if it had its registered office in Switzerland. 2 No collateral has to be exchanged if the foreign counterparty: a. has its registered office in a country whose legislation is recognised by FINMA as being equivalent; and b. does not have to exchange collateral under the legislation of that country. 2bis The Swiss counterparty may dispense with the payment of initial margins and variation margins to the foreign counterparty if an independent legal review showed that: a. the netting or guarantee agreements vis-à-vis the foreign counterparty are not definitely legally enforceable at all times; or b. agreements on the separation of collateral are not in line with internat
Para. 1 — Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Para. 2bis let. b — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Para. 2ter let. b — Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715).
Art. 107 Intra-group transactions
(Art. 111 FinMIA) 1 Insolvency law provisions do not count as legal impediments in the sense of Article 111 letter c FinMIA. 2 Furthermore, Article 91 applies.
Section 5 Trading via Trading Venues and Organised
Art. 108 Commencement of duty
(Art. 112 FinMIA) The duty to trade a derivatives transaction via a trading venue or organised trading facility in accordance with Article 112 FinMIA (platform trading duty) shall apply from the point at which FINMA publishes such a duty for the derivatives transaction in question: a. after the expiry of six months: for derivatives transactions which participants in an authorised or recognised central counterparty conclude anew with one another; b. after the expiry of nine months: for derivatives transactions: 1. which participants in an authorised or recognised central counterparty conclude anew with other financial counterparties, or 2. which other financial counterparties that are not small conclude anew with one another; c. after the expiry of 12 months: for all other derivatives transactions concluded anew.
Art. 109 Transactions not subject to the trading duty
(Art. 112 FinMIA) 1 Counterparties newly subject to the platform trading duty in accordance with Article 98 paragraph 2 or Article 99 paragraph 2 FinMIA do not have to trade transactions they concluded prior to the start of this duty via authorised or recognised trading venues or via operators of an organised trading facility. 2 Derivatives transactions with counterparties in accordance with Article 94 paragraph 1 FinMIA are not covered by the platform trading duty.
Art. 110 Trading via foreign organised trading facilities
(Art. 95 and 112 FinMIA) The platform trading duty may be fulfilled through trading via a foreign organised trading facility if this facility is subject to foreign regulation that has been recognised by FINMA as being equivalent in analogous application of Article 41 FinMIA.
Art. 111 Cross-border transactions
(Art. 94 para. 2 and 114 FinMIA) Cross-border transactions do not have to be traded through a trading venue or an organised trading facility if the foreign counterparty: a. has its registered office in a country whose legislation is recognised by FINMA as being equivalent; b. is not subject to the platform trading duty under the legislation of that country.
Art. 112 Intra-group transactions
(Art. 94 para. 2 and 115 FinMIA) For intra-group transactions, Article 91 applies.
Section 6 Documentation and Auditing
Art. 113 Documentation
(Art. 116 FinMIA) 1 Financial and non-financial counterparties shall regulate, in writing or in another form that that allows for proof by text, the processes with which they ensure fulfilment of the duties with respect to: a. clearing via a central counterparty (Art. 97 FinMIA); b. determining thresholds (Art. 100 FinMIA); c. reporting to a trade repository (Art. 104 FinMIA); d. risk mitigation (Art. 107 FinMIA); e. trading via trading venues and organised trading facilities (Art. 112 FinMIA). 2 Non-financial counterparties which do not want to trade in derivatives may set out this resolution in writing or in another form that that allows for proof by text, in which case they are exempt from the duty set out in paragraph 1. 3 Financial counterparties appointed by other financial or non-financial counterparties to implement their duties shall regulate the corresponding processes in accordance with paragraph 1 by analogy.
Para. 1 — Amended by Annex 1 No II 14 of the Financial Institutions Ordinance of 6 Nov. 2019, in force since 1 Jan. 2020 (AS 2019 4633). Para. 2 — Amended by Annex 1 No II 14 of the Financial Institutions Ordinance of 6 Nov. 2019, in force since 1 Jan. 2020 (AS 2019 4633).
Art. 114 Auditing and notifications
(Art. 116 and 117 FinMIA) 1 In the case of non-financial counterparties, the auditor shall review whether these counterparties have taken measures, in particular to comply with the derivatives trading duties set out in Article 113 paragraph 1 letters a to e. 2 When carrying out its audit, it shall take account of the principles of risk-oriented review and materiality. 3 The auditor in accordance with Article 727 of the Swiss Code of Obligations (CO) shall set out the results of its audit in a comprehensive report for the board of directors in accordance with Article 728b paragraph 1 CO. 4 The auditor in accordance with Article 727a CO shall inform the responsible body of the audited company of the results of the audit. 5 If the auditor identifies violations of the provisions on derivatives trading, it shall incorporate these into its report in accordance with paragraphs 3 and 4. It shall set a deadline for rectification of the reported violations. 6 If the audited company has not execu
Para. 3 — SR 220
Chapter 2 Disclosure of Shareholdings
Art. 115
(Art. 120 FinMIA) 1 The equity securities of a company having its registered office abroad are deemed to be mainly listed in Switzerland if the company has to fulfil at least the same duties for its listing and maintenance of its listing on a stock exchange in Switzerland as companies having their registered office in Switzerland. 2 The stock exchange shall publish which equity securities of companies having their registered office abroad are mainly listed in Switzerland. 3 Companies having their registered office abroad whose equity securities are mainly listed in Switzerland must publish the current total number of equity securities issued and the associated voting rights.
Chapter 3 Public Takeover Offers
Art. 116 Main listing
(Art. 125 para. 1 FinMIA) For public takeover offers, Article 115 regarding main listing applies.
Art. 117 Fees for the review of a takeover offer
(Art. 126 para. 5 FinMIA) 1 The Swiss Takeover Board shall levy a fee for reviewing the takeover offer whenever such an offer is made by any party. 2 The fee is calculated as a proportion of the value of the transaction: a. 0.05% for amounts up to CHF 250 million; b. 0.02% for the part between CHF 250 million and CHF 625 million; c. 0.01% for the part in excess of CHF 625 million. 3 The fee shall amount to at least CHF 50,000 and a maximum of CHF 250,000. In special cases, the fee may be reduced or increased by up to 50% depending on the scope and complexity of the transaction in question. 4 If securities listed on the stock exchange are offered for exchange, the total amount of the offer shall be ascertained on the basis of the volume-weighted average closing price over the last 60 trading days prior to submission of the offer, or prior to the offer being reported to the Swiss Takeover Board. For illiquid or unlisted securities, the fee shall be ascertained on the basis of the auditor
Art. 118 Fees for other decisions
(Art. 126 para. 5 FinMIA) 1 The Swiss Takeover Board shall also levy a fee if it has to make a decision in other circumstances relating to takeovers, particularly on whether or not a duty to make an offer exists. It may also levy a fee for reviewing requests for information. 2 The fee shall amount to up to CHF 50,000 depending on the scope and complexity of the case in question. 3 If the applicant subsequently submits a takeover offer after a committee has made a decision, the Swiss Takeover Board may subtract this amount from the fee set out in Article 117.
Art. 119 Advance payment of fees
(Art. 126 para. 5 FinMIA) The Swiss Takeover Board may request an advance fee payment amounting to the probable fee from each party.
Art. 120 Calculation of voting rights in the case of the cancellation of outstanding equity securities
(Art. 137 para. 1 FinMIA) In order to determine whether the threshold of 98% in accordance with Article 137 paragraph 1 FinMIA has been exceeded or not, the following shares shall be taken into account in addition to the shares held directly: a. those with dormant voting rights; b. those held by the offeror indirectly or in concert with third parties at the time of the application for cancellation.
Art. 121 Proceedings for cancelling outstanding equity securities
(Art. 137 FinMIA) 1 If the offeror brings an action against the company in an attempt to have the latter's outstanding equity securities cancelled, the court shall make this known to the public and inform the remaining shareholders that they may participate in the proceedings. In this respect, it shall set a timeframe of at least three months, beginning on the day of the first announcement. 2 The announcement shall be published three times in the Swiss Official Gazette of Commerce. In special cases, the court may arrange for appropriate publication in another manner. 3 If shareholders participate in the proceedings, they shall be independent of the defendant company in their litigious acts. 4 Notice of the cancellation must be published immediately in the Swiss Official Gazette of Commerce, as well as elsewhere at the court's discretion.
Chapter 4 Exceptions to the Ban on Insider Trading
Art. 122 Subject matter
(Art. 142 para. 2 and 143 para. 2 FinMIA) The provisions of this Chapter shall determine the cases in which forms of conduct that fall under Article 142 paragraph 1 and Article 143 paragraph 1 FinMIA are permissible.
Art. 123 Buyback of own equity securities
(Art. 142 para. 2 and 143 para. 2 FinMIA) 1 The buyback of own equity securities at market price as part of a public buyback offer (buyback programme) in accordance with Article 142 paragraph 1 letter a and Article 143 paragraph 1 FinMIA is permissible, subject to Article 124, if: a. the buyback programme lasts a maximum of three years; b. the scope of the buyback programme does not exceed a total of 10% of the capital and voting rights and 20% of the free float of the equity securities; c. the scope of the buyback does not exceed 25% of the average daily volume traded on the regular trading line during the 30 days prior to the publication of the buyback programme; d. the purchase price is not greater than: 1. the last independently achieved closing price on the regular trading line, or 2. the best current independent bid price on the regular trading line, provided this is below the price referred to in item 1; e. no prices are provided during breaks in trading and during the opening o
Art. 124 Blackout periods
(Art. 142 para. 2 and 143 para. 2 FinMIA) 1 Article 123 paragraphs 1 and 2 shall not apply to the buyback of own equity securities if the buyback programme is announced or the buyback of own equity securities occurs: a. while the issuer postpones the announcement of a price-relevant fact in keeping with stock exchange provisions; b. during the ten trading days prior to the public announcement of financial results; or c. more than nine months after the reference date of the last published consolidated closing accounts. 2 The buyback at market price remains reserved if this is undertaken by: a. a securities firm that was commissioned prior to the start of the buyback programme, and the security firm's decisions are made within the parameters originally prescribed by the issuer without the latter having any further influence; b. a trading unit that is segregated with information barriers, insofar the issuer itself is a securities firm. 3 The parameters under paragraph 2 letter a must have
Art. 125 Content of buyback notices
(Art. 142 para. 2 and 143 para. 2 FinMIA) The buyback notice in accordance with Article 123 paragraph 1 letter g and paragraph 2 letter c must contain at least the following information: a. information on the issuer, in particular: 1. its identity, 2. the issued capital, 3. its holding of its own capital, 4. the shareholder participations in accordance with Article 120 FinMIA; b. the nature, purpose and object of the buyback programme; c. the schedule.
Art. 126 Price stabilisation after a public placement of securities
(Art. 142 para. 2 and 143 para. 2 FinMIA) Securities transactions which are intended to stabilise the price of a security that has been admitted to trading on a trading venue or DLT trading facility in Switzerland and which fall under Article 142 paragraph 1 letter a and Article 143 paragraph 1 of the FinMIA are permissible if: a. they are carried out within 30 days of the public placement of the securities to be stabilised; b. they are executed at a price that is no higher than the issue price, or, in the case of trading with subscription or conversion rights, at a price that is no higher than the market price; c. the maximum period during which the securities transactions can be carried out and the identity of the securities firm responsible for carrying them out are published before the start of trading with the securities to be stabilised; d. they are reported to the trading venue or DLT trading facility at the latest on the fifth trading day following their execution and published
Amended by No I 10 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 400). let. d — Amended by No I 10 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 400). let. e — Amended by No I 10 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1
Art. 127 Other permissible securities transactions
(Art. 142 para. 2 and 143 para. 2 FinMIA) 1 The following securities transactions are permissible even if they fall under Article 142 paragraph 1 letter a and Article 143 paragraph 1 FinMIA: a. securities transactions to implement an own decision to carry out a securities transaction, in particular the purchase of securities of the target company by the potential offeror with regard to the publication of a public takeover offer, provided the decision was not taken on the basis of insider information; b. securities transactions carried out in the course of the fulfilment of public tasks rather than for investment purposes by: 1. the Confederation, cantons or communes, 2. the SNB, 3. the BIS, and 4. multilateral development banks in accordance with Article 63 paragraph 2 letter c CAO. 2 Paragraph 1 may also be declared applicable to securities transactions carried out by the following parties as long as the transactions are carried out in connection with public tasks and not for investme
Para. 1 let. b let. 4 — SR 952.03
Art. 128 Admissible communication of insider information
(Art. 142 para. 2 FinMIA) The communication of insider information to a person does not fall under Article 142 paragraph 1 letter b FinMIA if: a. this person requires the insider information in order to fulfil his or her statutory or contractual obligations; or b. the communication is required with regard to the conclusion of a contract and the information holder: 1. makes it clear to the information recipient that the insider information may not be exploited, and 2. documents the disclosure of the insider information and the clarification under item 1 above.