Suchergebnisse für KTB case

Sekundärnutzung von Mobilitätsdaten: Infrastruktur und Governance bei Mobility-as-a-Service

Proponents and opponents hotly debate the so-called secondary use of data in sectors as diverse as health, education, energy and mobility. The parallelism of these discussions has led politicians to call for a framework law on the secondary use of data. By choosing Mobility-as-a-Service (MaaS), a promising service in the mobility sector, this article explores two connected features such a…

Relative Marktmacht, Geoblocking und Digitalisierung

The rules on relative market power, recently introduced into Swiss competition law, generate far-reaching overlaps with the geo-blocking prohibition that took effect in parallel, as part of Swiss unfair competition law. This contribution analyses these overlaps, with a focus on the “shop like a local” principle which is also known from EU geo-blocking rules. Furthermore, the provision…

Relative Marktmacht – gerichtliche Sicht

The amendment 2021 of the Swiss Federal Act on Cartels and other Restraints of Competition provides in the new article 4 section 2^bis a concretizing definition of market power as follows: “An undertaking with relative market power is an undertaking on which other undertakings are dependent for the supply of or demand for goods or services in such a way that there are no adequate and reasonable…

Revision des Kartellgesetzes: Braucht die Schweiz neue Schwellenwerte oder einen Systemwechsel im Fusionskontrollrecht?

The Swiss merger control is under review. The draft for a partial revision of the Cartels Act proposes the transition from the Swiss dominance test to the internationally recognized SIEC test. This is to be welcomed. More significant in practice, however, are the disproportionately high thresholds for merger reviews in Switzerland. The following article recommends examining whether, in…

EU-Product-Governance – Ein Vorbild für die Schweiz?

In 2020 the Financial Services Act (FinSA) entered into force. The provisions on rules of conduct and organizational duties are more or less based on the provisions of MiFID II. However, the regulatory complex on product governance has not been adopted by the Swiss legislator. This article examines whether this decision was convincing. As a result, it turns out to be wise, because the EU-product…

Grüne Finanzprodukte

For environmentally sustainable financial products to be recognized by market participants, sufficient information about their environmental risks and impacts must be available. However, without regulatory measures, there are insufficient incentives for product providers to disclose the relevant information. The market is unable to correct these information deficits itself. The regulatory vacuum…

Regulierung von künstlicher Intelligenz für FinTech-Anwendungen

New methods of artificial intelligence represent one of the greatest promises and most prospective developments of digitalisation. Artificial intelligence has already enabled numerous innovative applications in the areas of image recognition, medicine, language and mobility, and it is also increasingly being used in the financial market, on which this article focuses. In addition to great…

Datenportabilität und ihre Umsetzung

The right to data portability will be introduced, as a first for Switzerland, with the revised Swiss Data Protection Act. Inspired by the GDPR but with a “Swiss finish”, data subjects may (if certain conditions are met) request the controller to transfer “their” personal data to them or another controller. However, a number of questions remain open, for example: Which type of data is subject to…

Können Investitionskontrollen für gleich lange Spiesse sorgen?

Amidst global protectionist tendencies and in view of major takeovers by foreign state-controlled companies calls for increased public control of foreign investment have been getting louder around the globe. Most recently, the Swiss parliament approved a motion obliging the Swiss government to prepare a draft bill regarding foreign investment screening. Apart from national security concerns,…

«Open Banking» in der Schweiz – Herausforderungen an den Schnittstellen von Finanzmarkt-, Datenschutz- und Kartellrecht

«Open Banking» challenges traditional financial institutions in Switzerland and around the world. It poses strategic as well as legal compliance challenges. The present study delimits the (sometimes synonymously used) terms «Open Banking» and «API Banking» to the effect that Open Banking presupposes an access to the banking account (XS2A) on the basis of non-discriminatory criteria. It thus…

Prospektpflicht nach FIDLEG

Switzerland has modernized its prospectus law by introducing new extensive rules in the Financial Services Act. The legislator closely considered the existing rules of SIX Swiss Exchange for the admission to trading and the rules applicable in the EEA. Fundamental changes are the mandatory review by a review body of prospectuses to be published in case of a public offer. In connection with the…

Recent developments in Swiss competition law

Obviously, steps taken by certain companies in the media sector trigger reactions from competitors in this dynamic environment which is constantly changing as a result of the digital revolution. Interestingly, Comco faced at the same time two transactions (AZ Medien/NZZ and Tamedia/Basler Zeitung) which had to be assessed in light of each other from the perspective of collective dominance:⁹⁰

Aktuelle Rechtsprechung zur Haftung im Konzern

Federal court rulings on liability of the parent company in a Group have developed further since the classic decisions of the nineties in the matters of Swissair and Motor-Columbus. This article provides an overview of the handed down by the Federal Supreme Court over the past ten years. The article shows that the Court did not decide these cases based on principles of director’s liability,…

Crowdinvesting mittels Initial Coin Offering – Regulierungsaufgaben im -Token-Universum

Initial coin offerings (ICOs) are a phenomenon with similar characteristics as the cryptocurrency boom. Projects that typically have no history of producing a product or revenue raise capital by issuing their own tokens to investors. Therefore, the Federal Council adopted in December 2018 a report on the legal framework for blockchain and distributed ledger technology (DLT) in the financial…

Auf dem Weg zu einer digitalen Wettbewerbsordnung – Reaktionen des deutschen Gesetzgebers

Germany changed the Act against Restraints of Competition in 2017, partly in order to give a regulatory answer to the changes of the digital economy. The legislator answered to multi-sided markets with network effects, data-driven business models and the rise of «super platforms». Reforms related to the definition of market and the criteria for market power. A new merger threshold was introduced…

Algorithmen als Anlass für einen neuen Absprachebegriff?

Traditionally, cartels are concluded between natural persons whose behaviour then is imputed to the firms they are acting for. How shall we assess restrictions of competition emanating not from humans, but from algorithms? Long-established definitions of agreements as «concurrence of wills» or «meeting of the minds» do not fit well to the output of machines. Therefore, competition law is…

Die Regelung von Interessenkonflikten im Aktienrecht de lege lata und de lege ferenda

Conflicts of interest are a threat to the functioning of the board of directors and the management of a public limited company. This paper looks into the legal regime applicable in cases of a conflict of interest while dealing with third parties. It then tries to establish rules to safeguard an internal decision-making process solving conflicts of interest. Finally it assesses the effectiveness…

Vollgeld-Initiative und Alternativkonzepte

A full-reserve banking system as requested by a Swiss popular initiative would not bring the promised benefits. Accepting the initiative would entail unforeseeable risks for the Swiss economy. To prevent these risks, vol­untary full-reserve accounts have been suggested to complement the existing fractional reserve system. This article discusses possible concepts for such vol­untary full-reserve…

Le régime de responsabilité civile en matière d’émissions publiques de jetons digitaux (ICO)

Initial Coin Offerings (ICOs) consist of an innovative form of capital raising. In the digital era, it has become technically possible to raise substantial funds within a very short period of time. This paper analyses the civil liability regime applying to misrepresentations communicated to investors acquiring tokens in an ICO. Pursuant to the prospectus liability provisions of the Swiss Code of…

Financement intragroupe et Cash Pooling : Quelle évolution ?

Cross-financing between affiliated companies, a subject at the heart of a group’s strategy, is a daily reality that remains largely ignored by current law and jurisprudence. The latest developments in court decisions seem to increase the discrepancy between the economic needs of the group and the legal requirements for protection of capital of each entity. Thus, since the Swisscargo ruling of the…

Corporate Social Responsibility

The concept of Corporate Social Responsibility demands that companies comply with ethical standards with regard to human rights and the protection of the environment wherever they are active and that they, in general, respect the interests of society at large in their business. This concept is promoted by the UN in the UN Guiding Principles of Business and Human Rights. While Swiss law obliges…

Europareport

Am 18. Mai 2017 hat die Europäische Kommission bekannt gegeben, dass sie gegen Facebook eine Geldbusse in Höhe von EUR 110 Mio. verhängt hat. Die Kommission wirft dem Unternehmen vor, im Zuge der fusionskontrollrechtlichen Prüfung der Übernahme von WhatsApp unrichtige bzw. irreführende Angaben gemacht zu haben.

Neuerfindung des Finanzsektors?

Although digitalization embraces practically all areas of society and economy, in the financial sector, the use of these new technologies started very early and were particularly intense. As financial products are largely based on information, the usage of such technologies are also the basis for financial systems, payment infrastructures, trading platforms and crypto-currencies. Owing to the…

Stimmenmehrheit unter Verdacht: Wege und Irrwege im aktienrechtlichen Minderheitenschutz

Recent developments in the area of corporation law ­indicate a dichotomy between calls for more “shareholder democracy” and an increasing suspicion about “shareholders’ majority decisions”. Corporations have to date been governed following the model of “subjection of the minority to the majority”, with the steady approval of the courts. This guiding principle, which is at the core of a…

Financial Benchmarks – Bedeutung und internationale ­Regulierungsbestrebungen

The manipulation scandals surrounding the key interest rate LIBOR and benchmarks used in foreign exchange trading have rendered financial benchmarks a regulatory phenomenon. While they all serve a similar purpose, i.e. to provide a reference in a wide range of financial transactions, financial benchmarks vary significantly in their importance, data basis, underlying market and determination…

Innovation durch den OR 2020-Entwurf: Die Vorschriften über die Liquidation

The draft version of the new Swiss Law of Obligations (OR 2020) suggests introducing a novel regime for restitution (called “Liquidation”) into the general part of the OR. The new provisions would cover all cases where contractual performances have to be restored, ranging from the invalidity of a contract to its termination for breach. It specifies that if a party cannot return what it has…

Proxy Advisors: Risikolose Stimmenmacht mit Checklisten

Over the last ten years Proxy Advisors have continually enhanced their role as major players in shareholders’ meetings of Swiss public companies. In correlation with the ever increasing percentage of listed shares owned by Institutional Shareholders – 50%–70% and more in typical cases –, a power transfer is developing to advisors wielding factual voting clout without bearing investment risk.

Verletzung der börsenrechtlichen Meldepflicht durch ein nicht innert vier Börsentagen gemeldetes grenzwertrelevantes Verpflichtungsgeschäft

Pursuant to Art. 20 of the Swiss Stock Exchange Act, certain qualified participations in listed companies are to be notified to the company and the stock exchanges on which the securities are listed. Intentional or negligent violations of this notification obligation can be fined, up to CHF 10m in the case of intentional and up to CHF 1m in the case of negligent violations. Regarding the point in…

Wie weiter im schweizerischen Wettbewerbsrecht?

The Swiss Act on Competition Law is now 20 years old. The revision proposal of 2012 failed in Parliament not because a revision would not be necessary but rather because the proposal was overloaded and pursued conflicting aims. The author argues that a new revision should be prepared without further delay. There are at least three reasons for this. First, an institutional reform remains necessary…

Standing and Passing-on in the New EU Directive on Antitrust Damages Actions

This article critically evaluates private enforcement of the competition rules in Switzerland and compares them to recent developments at EU level, particularly regarding indirect purchaser standing and the passing-on defence. The article addresses the question of whether, and under what conditions, the new EU Directive on Antitrust Damages Actions, along with the Recommendation on Common…

Der kartellrechtliche Blick über die Grenze

Since the revisions to the Swiss antitrust law in 1995 and 2004, the law is now very similar in structure to the laws of the EU and the EU member states. It is therefore very probable that ideas stemming from the EU enter Swiss legislation and court cases, but there are also some ideas of improvement of Swiss laws that could be interesting for the legislation of the EU or even in its court…