Ombudsman - Affiliation Requirement
Relief for financial service providers in Switzerland: Finally, no ombudsman affiliation is required at all in case of serving institutional and professional clients.
The Swiss Federal Department of Finance (FDF) in collaboration with the Swiss Financial Market Supervisory Authority FINMA has resolved the existing legal inconsistencies that required an ombudsman affiliation and subsequent cancellation due to a late correction of the law. Financial service providers serving exclusively institutional or professional clients must not affiliate with an ombudsman.
According to the current provisions of the Financial Services Act (FinSA) and the Financial Services Ordinance, financial service providers must be affiliated to an ombudsman recognised by the Federal Department of Finance (FDF) by 25 December 2020 at the latest.
On 25 September 2020, the Parliament adopted the Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology (DLT Law). In connection with the DLT Law, the Parliament has adopted certain amendments to the FinSA. Under the new regulation, financial service providers which exclusively provide financial services to institutional or professional clients will no longer have to be affiliated to an ombudsman. For financial service providers that provide services to retail clients, the affiliation requirement still applies. It is to be noted that the exception of non-affiliation does not apply to HNWI that opted out to be considered as professional clients. The changes to the FinSA are expected to come into force after the referendum deadline has elapsed on 1 February 2021.
In order to avoid that the financial service providers who will newly be exempt from the affiliation obligation need to initially affiliate to an ombudsman, only to be released from this requirement once the new regulations come into force, FINMA has accepted to refrain from enforcing this affiliation requirement between 26 December 2020 and 31 January 2021.
Judith Raijmakers
Partner Attorney at lawJudith Raijmakers, attorney at law, is a partner in our Zurich and Luxembourg offices. She focuses on finance transactions including acquisition financing, asset financing, real estate and transportation financing, debt (re)structuring and debt issuances.
T: +41 43 434 67 24 M: +41 79 870 91 03 E: judith.raijmakers@loyensloeff.com
Diana Lafita
Associate Attorney at lawDiana Lafita, attorney at law, is a member of the Banking and Finance practice group in our Zurich office. She focuses on banking, insurance and capital markets regulatory and private matters.
T: +41 43 434 67 49 M: +41 79 368 25 59 E: diana.lafita@loyensloeff.comSandra Zysset
Associate Attorney at lawSandra Zysset, attorney at law, is an associate in our Zurich office. She focusses on finance transactions including acquisition, restructuring and syndicated financing as well as regulatory matters.
T: +41 434 34 67 52 E: sandra.zysset@loyensloeff.com
