952.05 order of the federal authority for supervision of the financial markets on the insolvency of the banks and traders in securities (Ordinance of the FINMA on bank insolvency, OIB-FINMA) August 30, 2012 (Status January 1, 2016) the federal supervisory authority of financial markets (FINMA), view the art. 28, al. 2, and 34, al. 3, of the law of 8 November 1934 on banks (LB), see art. 36a of the Act of 24 March 1995 (SESTA) scholarships, saw 1'art. 42 of the Act of June 25, 1930, on the issuance of letters of guarantee (LLG), stop: Chapter 1 provisions general art. 1 purpose this order embodies the remediation or bankruptcy procedure under art. 28-37g LB.
Art. 2 scope this order applies to institutions and individuals designated hereinafter by the term 'banks': a. banks within the meaning of the LB; b. dealers in securities within the meaning of the SESTA; c. the Central letters of guarantee within the meaning of the LLG.
The provisions on banking sanitation (art. 40 to 57) shall not apply to the natural or legal persons who exercise an activity without the required authorization. FINMA may, however, declare them applicable in the presence of a sufficient public interest grounds.
Art. 3 universality when bankruptcy or reorganization proceedings are opened, it extends to all realizable assets belonging to the Bank at this time, they are in Switzerland or abroad.
All the creditors Swiss and foreign bank and its foreign branches are equally and with the same privileges, allowed to participate in the bankruptcy or reorganization proceedings in Switzerland.
Are considered as being the property of a Swiss branch of a foreign bank all assets in Switzerland and abroad by persons who acted for this branch.
Art. 4 publications and communications publications are carried out in the official Swiss trade and worksheet on the FINMA website.
The communications are sent directly to creditors whose name and address are known. FINMA can require the creditors whose headquarters or domicile is located abroad to designate an agent to receive communications in Switzerland if it helps to simplify the procedure. She may give up direct communication in an emergency or to simplify the procedure.
The Swiss publication in the official journal of commerce authoritative for the calculation of the time limits and the legal consequences associated with the publication.
Art. 5 consultation of the parts anyone who makes it likely that it is directly affected in its own pecuniary interests by sanitation or bankruptcy can consult the documents concerning this reorganization or bankruptcy; professional secrecy to the senses of the art. 47 LB and 43 SESTA must be preserved as much as possible.
The parts can be limited at certain stages of the procedure or be restricted or denied due to overriding contrary interests.
Anyone who views parts cannot use the information obtained to preserve its own direct pecuniary interests.
The consultation of the parts may be subject to a statement which indicates that the consulted information is only used to maintain the own direct pecuniary interests of the signatory. It can be accompanied by the threat of penalties to the art. 48 of the law of June 22, 2007 on the monitoring of financial markets and 292 of the Swiss criminal code.
The delegate to sanitation or the liquidator of bankruptcy and after the closure of the procedure of reorganization or bankruptcy, FINMA decisions relating to consultation of the parts.
RS 956.1 RS 311.0 art. 6 denunciation to the FINMA anyone is affected in its interests by the decision, act or omission of a person to whom the FINMA has entrusted tasks under this order can report the facts to the FINMA.
Decisions made by these people are not the decisions within the meaning of the Federal Act of 20 December 1968 on administrative procedure and the informant has no standing as a party within the meaning of the Act.
FINMA appreciate the facts that are the subject of denunciation, shall take the measures required and makes a decision if necessary.
RS 172.021 art. 7 for insolvency for insolvency is the headquarters of the Bank or branch of a foreign bank in Switzerland.
If a Bank has several seats or if a foreign bank has several branches in Switzerland, there is only one single for insolvency. FINMA refers to that forum.
For individuals, the Forum in case of insolvency is instead of commercial exploitation at the time of the opening of the procedure of bankruptcy or remediation.
Art. 8 receivables and commitments recorded in the books a receivable or a commitment of the Bank are considered as validly registered if the Bank's books are kept in accordance with the requirements, and if the liquidator of bankruptcy can actually take knowledge of the existence and the amount of the debt or engagement.
Art. 9 coordination in the extent possible, FINMA and the delegate to sanitation or the liquidator of the bankrupt coordinate their actions with the authorities and Swiss and foreign bodies.
Art. 10 recognition of decisions of bankruptcy and the foreign measures when FINMA recognizes, in accordance with art. 37g LB, a bankruptcy decision or a measure applicable in case of insolvency, which were handed down abroad, the provisions of this order apply to the assets located in Switzerland.
Even in the absence of reciprocity, FINMA may accept an application for recognition insofar as this serves the interests of the creditors concerned.
It refers to the unique for insolvency in Switzerland and the circle of creditors referred to in art. 37g, al. 4, LB.
It publishes the recognition and the circle of creditors.
Chapter 2 bankruptcy Section 1 Procedure art. 11 publication and appeal to the creditors the FINMA notifies the bankruptcy decision at the Bank and publishes it along with the call to creditors.
The publication must include the following information: a. the name of the Bank, headquarters and branches; b. date and time of the opening of bankruptcy c. bankruptcy for; (d) the name and address of the liquidator of bankruptcy; e. the demand made to creditors and to people who have claims on property held by the Bank to produce in the hands of the liquidator of bankruptcy in the time limit, their debts or claims, and put their means of proof; f. recall of claims that are deemed to have been produced within the meaning of art. 26; g. the reminder of the obligation of announcement and provision to the senses of the art. 17 to 19.
The liquidator of bankruptcy may provide a copy of the publication to the known creditors.
Art. 12 use a liquidator of bankruptcy the FINMA appoints a liquidator of bankruptcy by decision if she does not itself assume corresponding tasks.
If she appoints a liquidator of bankruptcy, it ensures that the person is able, both in terms of time on a technical level, to exercise the mandate in a rigorous, efficient and effective and that no conflict of interest to oppose the mandate.
It sets the content of the mandate, particularly with respect to costs, reporting, and control of the liquidator of bankruptcy.
Art. 13-duties and powers of the liquidator of bankruptcy bankruptcy liquidator led the procedure. It shall in particular: a. establish the technical and administrative conditions required for the proper conduct of the procedure; b. ensure conservation and the realisation of the assets; c. ensure the management of the company to the extent necessary for the bankruptcy proceedings; d. represent the bankrupt before the courts and other authorities; e. take care, in collaboration with the guarantee agency inventory and payment of deposits is guaranteed according to art. 37 h LB.
Art. 14 meeting of creditors if the bankruptcy liquidator believes that it is appropriate to call a meeting of creditors, he made the proposal to FINMA. The latter decides to the powers of the meeting of creditors as well as the quorum of attendance and the votes necessary for the decision-making.
All creditors have the right to participate in the meeting of creditors or be represented. In case of doubt, the liquidator decides the admission of a person.
The liquidator of bankruptcy leads discussions and prepare a report on the State of the heritage of the Bank as well as on the progress of the procedure.
Creditors can also make decisions by circular. A proposal of the liquidator of the bankrupt is deemed to be accepted by one creditor if it don't rejects not expressly within the time limit.
Art. 15 monitoring commission on a proposal from the liquidator of bankruptcy, FINMA decided designation and composition of a monitoring commission and defines the tasks and skills.
If the deposit guarantee agency has paid a large extent preferential deposits referred to in art. 37 h LB, he must appoint a person to represent the Committee on monitoring.
FINMA appoints the Chair, determines the procedure of decision-making, and fixed compensation of members.
Section 2 assets from bankruptcy art. 16 taking inventory the liquidator of bankruptcy proceeds to the inventory of property forming part of the bankrupt.
Unless otherwise provided by this order, inventory in accordance with the art. 221 to 229 of the Federal law of April 11, 1889, on debt collection and bankruptcy (LP).
Filed values that must be distracted mass under art. LB 37d are mentioned in the inventory to their value at the time of the commencement of the bankruptcy. The inventory indicates the potential claims of the Bank against the applicant that impede a distraction.
The liquidator of the bankrupt shall submit to FINMA measures necessary for the conservation of the assets of the estate.
He submits the inventory to the banker or an organ of the Bank chosen by the owners. He invites them to declare whether they consider the inventory accurate and complete. Their declaration must be recorded in the inventory.
RS 281.1 art. 17 obligation of provision and ad them debtors of the Bank as well as those who hold assets of the Bank as a pledge or in any capacity whatsoever are required to announce them to the liquidator of bankruptcy in the period of production referred to in art. 11, al. 2, let. e, and put at its disposal.
The debts must also be announced when they are the subject of compensation.
Straight preferably shuts off if the ad or provision is omitted unjustifiably.
Art. 18 exceptions to the obligation of providing securities and other financial instruments as collateral must not be put to the extent where the legal conditions for their implementation by the beneficiary of the security are met.
However, these goods as well as proof of the right to their realization must be announced to the liquidator of bankruptcy, which must be mentioned in the inventory.
The beneficiary of the collateral must agree with the liquidator of bankruptcy on the calculation of the proceeds of the realization of these goods. A potential surplus is paid to the bankrupt.
Art. 19 exceptions to the duty of announcement FINMA may predict that the claims of the Bank registered in its books should not be announced by their debtor.
Art. 20 third-party claims the bankruptcy liquidator determines if property claimed by third parties must be returned to them.
If it considers that a claim is valid, it offers creditors the opportunity to request the assignment of the right to challenge within the meaning of art. 260, al. 1 and 2, LP and shall set a reasonable time for this purpose.
If it considers that a claim is unfounded or if creditors have demanded the transfer of the right to contest, he fixed to the claiming a period during which he can enter his claim for the bankruptcy judge. Him claiming shall have relinquished his claim if he does not act within the time limit.
In the event of assignment of the right, the action must be directed against creditors who got the right. The liquidator of bankruptcy informed him claiming the identity of the assignees at the time of the setting of the deadline to act.
RS 281.1 art. 21 claims, pretensions and revocations due claims of the mass are collected by the liquidator of bankruptcy, if necessary through the pursuit.
The liquidator of bankruptcy examines the claims of the mass on the security things that are in the possession or copossession of a third person, or on the buildings that are registered in the land register on behalf of a third party.
It examines whether the legal acts may be removed according to the art. 285 to 292 LP. The duration of a reorganization or a protective measure within the meaning of art. 26, al. 1, let. e to h, LB before the opening of the bankruptcy does not enter the computation of time referred to in art. 286 to 288 LP.
If the liquidator of bankruptcy intends to argue in court a disputed claim or a claim of mass within the meaning of the al. 2 or 3, he asked FINMA approval and the necessary instructions.
If he committed no action, it may offer creditors the opportunity to ask for the assignment according to the art. 260, al. 1 and 2, LP or conduct concerned claims and other claims in accordance with art. 31 if he offers to creditors the opportunity to request the transfer, it shall set a reasonable time for this purpose.
The realization according to art. 31 is excluded for claims in terms of revocation within the meaning of para. 3 as well as those of liability within the meaning of art. 39 LB.
RS 281.1 art. 22 pursuit of civil trials and administrative procedures the liquidator of bankruptcy examines the claims of the mass which, at the time of the opening of bankruptcy, already were the subject of a civil lawsuit or administrative proceeding and he made a proposal to the FINMA on their continuation.
If FINMA decided not to pursue such a trial or proceedings, the liquidator of bankruptcy offers creditors the opportunity to request the assignment of rights according to art. 260, al. 1 and 2, LP and shall set a reasonable time for this purpose.
RS 281.1 art. 23 suspension for lack of assets if assets are not sufficient to complete the procedure of bankruptcy, the bankruptcy liquidator proposes to FINMA to stay the proceedings for lack of assets.
In exceptional cases, FINMA continues the procedure, even in the absence of sufficient assets, particularly if she is of particular interest.
If FINMA intends to suspend the procedure, she does know by publishing. She mentions that the proceedings will be continued if a creditor provides, within a certain time, the collateral required for procedure fees which are not covered by the assets. Deadline is set by the FINMA and determines the type of collateral and their amount.
If the required security is not provided within the specified time, each pledgee may apply to FINMA, within such time as it will take time, the realization of his gage. FINMA elects a liquidator of bankruptcy for the realization of the guarantees.
FINMA ordered the realisation of the assets of a legal person when no pledgee has requested the realization within the time limit. If a product remains after paying the costs of realization and the encumbrances of assets realized, it is paid to Confederation after coverage of costs of FINMA.
If directed against an individual bankruptcy proceedings were suspended for lack of assets, the art. 230, al. 3 and 4, LP applies to the procedure of prosecution.
RS 281.1 Section 3 liabilities of bankruptcy art. 24 plurality of creditors if claims against the Bank are the common property of several creditors, their community should be treated as a creditor distinct from rights holders.
If there is solidarity among several creditors, an equal share of the claim must be attributed to each of them, where the Bank has no right to compensation. Each part is considered to be a debt due to each creditor solidarity.
Art. 25 privileged deposits deposits privileged in the sense of art. 37 lbs are: a. all the receivables arising out of an activity of bank or securities dealer that are, or should be, counted in the section of the balance sheet commitments resulting from customer deposits; (b) the obligations of Fund included in the section of the balance sheet cash bonds, filed with the Bank on behalf of the applicant.
Are not deposits privileged in the sense of art. 37A LB: a. claims to the carrier; (b) the obligations of Fund which are not deposited to the Bank; c. Requests for compensation contractual or extra-contractual, such as claims arising from the non-return of the securities deposited pursuant to art. 37d lbs.
The claims of the banking foundations within the meaning of art. 5, al. 2, of the Ordinance of 13 November 1985 on the deductions permitted tax-for contributions to recognized pension and forms the foundations of free passage within the meaning of art. 19, al. 2, of the Ordinance of 3 October 1994 on free passage are considered to be those of each pension-takers or insured. However, the dividend is paid the Bank Foundation or vested.
New content according to chapter I of the O of the FINMA on March 27, 2014, in force since Jan 1. 2015 (2014 1309 RO).
RO 2012 5899 RS 831.461.3 RS 831.425 art. 26 audit of claims the bankruptcy liquidator examines claims produced as well as those arising from the law. In this context, it can conduct its own investigations and pray the creditors to recover from additional means of evidence.
Are considered as under the Act: a. claims registered in the land registry, including the common interest; ETB. claims registered in the books of the Bank according to the art. 8.
The liquidator of bankruptcy consulted the banker or an organ of the Bank chosen by the owners, about claims that are not registered in the books of the Bank.
Art. 27 collocation the bankruptcy liquidator decides the acceptance of a claim, its amount and its rank and establishes the State of collocation.
If a building is part of the mass, the liquidator of bankruptcy established a statement of the charges are related, like the mortgage, easements, land charges and annotated personal rights. The statement of the charges is an integral part of the scheme of collocation.
The liquidator of bankruptcy may, with the authorisation of the FINMA, establish a separate scheme of collocation for claims secured by pledge entered in the register if it is the only possible way to limit systemic risk.
Art. 28 claims subject to a civil suit or administrative procedure claims that already were the subject of a civil suit or an administrative procedure in Switzerland at the time of the opening of bankruptcy are initially referred to memory in the scheme of collocation.
If the liquidator of bankruptcy is not going civil trial or the administrative procedure, it offers creditors the opportunity to request the assignment of rights according to art. 260, al. 1, LP.
If neither mass nor assignees creditors pursue the civil trial or administrative procedure, the claim is considered to be recognized, and creditors no longer have the right to bring an action to challenge the scheme of collocation.
If creditors grantees continue the civil trial or administrative procedure, the amount for which the part of the creditor who succumbs is reduced is vested such creditors assignees until competition from their production and their costs of proceedings. A potential surplus is paid to the bankrupt.
RS 281.1 art. 29 consultation of the scheme of collocation creditors may view the status of collocation as part of art. 5 at least 20 days.
The liquidator of bankruptcy publishes the date from which the scheme of collocation can be consulted and what form.
It may provide consultation will take place with the Agency of bankruptcy in the bankruptcy Forum.
He communicates to every creditor whose claim has been collocated as it was produced, or as she was registered in the books of the Bank or the land registry the reasons for which its production has been totally or partially excluded.
Art. 30 action contesting the scheme of collocation actions to challenge the scheme of collocation are governed by art. 250 LP.
The time for bringing the action begins to run from the moment when it becomes possible to consult the State of collocation.
RS 281.1 Section 4 making art. 31 the liquidator of the bankrupt realization mode decides the mode and the moment of realization and proceeds to the latter.
Goods on which there are the rights of pledge can be made otherwise than by public auction only with the agreement of the secured creditors.
The goods can be carried out without delay: a. If they are exposed to a rapid depreciation; b. If they cause excessive administration costs; c. If they are traded on a representative market. Oud. If they have no significant value.
Art. 32 public auction public auction takes place in accordance with the art. 257 to 259 LP, unless the Ordinance provides otherwise.
The liquidator of bankruptcy organizes auction. It may fix a minimum price for the first auction under the conditions of the auction.
It shows in the publication that it is possible to consult the terms of the auction. It may provide that the consultation will take place with the Agency of bankruptcy or the proceedings of the place where the object is located.
RS 281.1 art. 33 transfer of rights the liquidator of bankruptcy sets in the certificate of assignment of the rights of the bankrupt within the meaning of art. 260 LP the time during which the creditor assignee must open the action to make the claim. If it does not use during this period, the transfer is then lapses.
Creditors assignees shall inform without delay the liquidator of bankruptcy and after the closing of the bankruptcy proceedings, FINMA of the result of the action taken.
If no creditor the assignment of rights or if no creditor does use during the time limit for action, the liquidator of bankruptcy and after the closing of the bankruptcy proceedings, FINMA decided an eventual achievement of these rights.
RS 281.1 art. 34 appeal against the achievements the liquidator of bankruptcy periodically establishes a plan of achievements that provides information on the assets must still be made and on how to proceed.
The achievements that can be performed without delay within the meaning of art. 31, al. 3, must not be mentioned in terms of the achievements.
A transfer of rights to the senses of the art. 33 is not considered as an achievement.
The liquidator of the bankrupt communicates achievements plan to creditors by outsourcing them a period of time during which they can ask the FINMA ruling subject to remedies for each expected accomplishment.
Section 5 article Distribution 35 the mass debts are covered first of all by the mass bankruptcy and in the following order: a. the commitments within the meaning of art. 37 lbs and art. 43 herein; b. commitments contracted by the bankrupt during the duration of the procedure; c. all the expenses for the opening and the liquidation of bankruptcy proceedings; d. commitments against third-party custodians according to art. 17, al. 3, of the Federal Act of 3 October 2008 on intermediated securities.
RS 957.1 art. 36 distribution the liquidator of bankruptcy may provide interim distributions. It provides for this purpose a draft table of distribution and submit to approval by FINMA.
When all assets have been made and all the trials relating to the fixing of the assets and liabilities of the mass are completed, the liquidator of bankruptcy makes the final table of liquidation and the final account and submits them for approval by FINMA. It is not necessary to await the outcome of the lawsuits filed individually by creditors assignees in the sense of art. 260 SQ.
After the approval of the distribution table, the liquidator of bankruptcy proceeds to pay creditors.
No payment is made for claims: a. that the amount may not be fixed definitively; b. that rights holders are not known definitively; c. that are partially covered by wages abroad not made or that are covered under art. 18; Oud. for which rights holders are likely to be partially disinterested in the context of a foreign enforcement in connection with the bankruptcy proceedings.
If one establishes a separate scheme of collocation in the sense of art. 27 al. 3, with the agreement of the FINMA, the liquidator of bankruptcy may make the distribution as soon as it comes into force, regardless of the entry into force of the scheme of collocation pertaining to the remaining claims.
RS 281.1 art. 37 Act of default assets creditors can apply with the liquidator of bankruptcy and after closure of bankruptcy proceedings, with FINMA, against payment of a flat-rate contribution, an act of default of property for the unpaid amount of their claim in accordance with art. 265 LP.
The liquidator of bankruptcy reported this possibility to creditors when paying their share.
RS 281.1 art. 38 consignment subject requirements for dormant assets, FINMA adopts the necessary arrangements about not yet paid dividends as well as deposited values logging distracted mass and not returned.
Consigned goods that become available or which have not been removed within ten years are produced and distributed according to art. 39, subject to contrary regulations contained in a special law.
Art. 39 property discovered later if goods or other claims which have not been included in the bankrupt are discovered in the ten years following the closure of bankruptcy proceedings, FINMA charge a bankruptcy liquidator to resume the procedure of bankruptcy without further formality.
The goods or claims found later are distributed to creditors who have suffered a loss and that the data necessary for payment are known as the liquidator of bankruptcy. The latter may invite creditors to let him know their current data by indicating that otherwise they will be deprived of their rights. He shall set a reasonable time for this purpose.
FINMA may waive use bankruptcy proceedings if it is clear that the costs of this recovery will be not covered or only will be slightly overwhelmed by the expected proceeds of goods discovered later. She then transfers later discovered property to the Confederation.
Chapter 3 sanitation Section 1 Procedure art. 40 conditions
The prospect of the reorganization of the Bank or the maintenance of certain banking services is justified when presumably valid, at the time when the decision is made: a. that sanitation will likely place creditors in a better position than the bankruptcy; ETB. that the restructuring proceedings is feasible both in terms of time on a technical level.
There is no right to the opening of a restructuring procedure.
Art. 41 opening FINMA opens the restructuring by decision procedure.
She immediately publishes the opening of the procedure.
She says in the opening if existing protective measures under art. 26 LB should be continued or modified or whether to order new ones.
It may also approve the remediation plan already at the opening of the restructuring proceedings.
Art. 42 the FINMA sanitation delegate appoints a delegate to sanitation by decision if she does not itself assume corresponding tasks.
If she appoints a delegate to sanitation, it ensures that the person is able, both in terms of time on a technical level, to exercise the mandate in a rigorous, efficient and effective and that no conflict of interest to oppose the mandate.
It defines the responsibilities of the delegate to sanitation and determines if the latter may act in the place and place bodies of the Bank. During the remediation process, the delegate may in particular honouring of obligations to the Bank for sanitation.
FINMA sets the content of the mandate, particularly with respect to costs, reporting, and control of the Chief sanitation officer.
Art. 43 commitments during the restructuring proceedings in the event of failure of sanitation and in bankruptcy proceedings that followed, the commitments entered into by the Bank during the procedure of reorganization with the approval of the delegate are honored before any other claims.
Art. 44 remediation plan the remediation plan outlines key elements of sanitation, the future structure of the capital and the business model of the Bank after the reorganization and it shows the way in which he meets the conditions for approval laid down in art. 31, al. 1 LB.
The remediation plan should also address the following: a. the likely conditions of authorization observation; b. the inventory of assets and liabilities of the Bank; c. the future organisation and management of the Bank and, if the latter is part of a banking group or of a conglomerate of banks, the future organisation of the group or conglomerate; (d) the question of whether and to what extent the remediation plan infringes on the rights of the creditors of the Bank as well as owners; (e) the question of whether the right of revocation and the claims of the Bank liability under art. 32 LB are excluded; f. the existing bodies of the Bank who remain responsible for the conduct of the latter and the question of what are the reasons for which it is in the interest of the Bank, creditors and owners; g. all of the starting conditions for the outgoing of the Bank organs; h. the operations which require a registration in the register of commerce or the land register; ETI. the provisions of sections 3 and 4 of this chapter that apply during the reorganization in question.
FINMA can require that the remediation plan addresses additional items.
Section 2 approval of rap art. 45 approval FINMA counterpart rap by decision if the conditions defined in the Bank Act and this order are met.
It publishes approval and an outline of the remediation plan and shows how the affected creditors and owners can consult the latter.
The approval of the remediation plan is accompanied by the immediate implementation of the provisions it contains: a. on the transfer of real property; (b) on the transfer of real rights and obligations attached to buildings; OUC. on the changes of the share capital.
To proceed as soon as possible with the necessary entries in the land register in the commercial register or in other records.
Art. 46 refusal of creditors if the remediation plan violates the rights of creditors, FINMA fixed these a period, at the latest with the approval of the remediation plan, during which they can reject. The time is at least ten working days. The transfer of liabilities and contractual relationships and change of debtors that it implies are not an attack on the rights of the creditors.
Creditors seeking to refuse this plan must do so in writing. They must indicate their name and address, the amount of the debt at the time of the opening of the restructuring procedure, as well as the reason for the claim. The declaration of refusal must be addressed to the Chief sanitation officer.
Section 3 measures of capital art. 47 General provisions if the remediation plan provides for capitalization according to this section, he must ensure that: a. the interests of the creditors prevail those owners and that the hierarchy of creditors should be taken into account; (b) the requirements of the law of obligations shall apply by analogy.
Insofar as the granting of a subscription right may affect sanitation, it can be removed to existing owners.
RS 220 art. 48 principles governing the conversion of third party funds in equity if the remediation plan provides a conversion of third party equity funds, must: a. convert funds own many third party as necessary funds for the Bank can undoubtedly meet its obligations in terms of minimum own funds requirements, to continue its activities after successful sanitation; b. reduce completely the capital before the conversion of third party funds funds own; c. not to carry out the conversion of third party funds in equity when has already taken place that of debt instruments issued by the Bank in the form of additional or complementary basic own funds, especially loans mandated under certain conditions; d. follow the order of collocation for the conversion of third-party equity funds the claims of the next row cannot be converted when the previous level are insufficient to meet the requirements of the minimum own funds according to the Let's... a: 1 claims of subordinate rank, without imputation of own funds, 2 other claims, to the extent where they are not affected by the conversion, with the exception of deposits, et3. deposits, to the extent where they are not privileged.
Art. 49 convertibility of all funds of third party debts can be converted into equity, except: a. the preferential claims of first and second class according to art. 219, al. 4, LP and art. 37, art. 1 to 5 lbs, within the limits of the privileges granted; b. the receivables covered in the limit of their coverage and those compensable in the limit of the realization of the conditions necessary for their compensation, provided that the creditor can immediately make plausible the existence, amount and the fact that the claim is the subject of an agreement in this sense or spring books of the Bank.
RS 281.1 art. 50 reduction of debt at the same time or place in the conversion of third-party equity capital, FINMA may order a partial or total debt reduction. The art. 48, let. a-c, and 49 apply in the same way.
Section 4 maintenance of certain banking services art. 51 maintaining banking services if the remediation plan provides the maintenance of one or more banking services and the partial transfer of the goods or the contractual relationship of the Bank to another subject of law, including a bridge Bank, these include:
a. designate the subjects of law to which these banking services and these assets will be transferred; (b) describe the property to be partially transferred, including assets and liabilities, as well as the contractual relationship, as well as their considerations; c. describe banking to maintain and transfer services; d. present measures taken capitalization and, in the case of transfer of a bridge Bank banking expose the distribution of assets and liabilities obtained between the Bank and the Bank relay; e. include a commitment on the Bank to take measures and necessary arrangements so that all goods and objects to be transferred, including those located abroad or subject to foreign law, can be handed over to the other topic of law; f. specify to set-off How to calculate, and if a maximum compensation amount must be fixed; g. indicate if and how systems and applications will be used jointly by the Bank and by the another subject of law and, in the case of maintaining banking services through a bridge Bank, how the latter will provide the infrastructure access relating to payment and operations to the infrastructure of the financial market as well as the use of such infrastructure; h. expose how to ensure the conservation of the legal relations and economic assets, liabilities and contractual relationships, knowing that only can be transferred: 1 all of the receivables and commitments compensatable by the Bank to one or more opposing parties, including those who are subject to an agreement of compensation, 2. the claims and guaranteed commitments in relation to their security, 3. structured finance or similar agreements on the market of the capital to which the Bank is a party including all rights and obligations arising from.
As soon as the approved remediation plan is executable or, in the case of a systemically important Bank, upon certification of the plan of reorganization, all property or to transfer, including rights and obligations, contractual relationships are transferred to the new subject of law with effect at the time of the approval of the remediation plan.
Art. 52 bridge Bank bridge Bank serves as interim maintenance of banking services that are transferred.
FINMA grants the relay Bank authorisation limited to two years. It can waive licensing requirements during its naming. It is possible to extend the authorization.
Chapter 4Protection of the infrastructure of the financial market art. 53 repealed art. 54 validity of orders to a central counterparty, a central depository or a payment system measures which may restrict the legal validity of an order within the meaning of art. 89, al. 2 of the Act of 19 June 2015 on the infrastructure of financial markets (FMIA) are: a. the opening of a bankruptcy under arts. 33 to 37g LB, etb. the protective measures referred to in art. 26, al. 1, let. f to h, LB.
In its decision, FINMA explicitly sets the time from which the measures referred to in para. 1 apply.
RS 958.1 art. 55 netting agreements agreements referred to in art. 27, al. 1 LB includes: a. the provisions on compensation in the bilateral conventions or agreements; b. billing and compensation provisions and agreements on the failure of the CCPs, CSDs or systems of payment according to art. 89, al. 1, FMIA.
RS 958.1 Chapter 5...
Art. 56 and 57 repealed by section II 1 of Schedule 2 to the O of the FINMA on Dec. 3. 2015 on the infrastructure of the financial markets, with effect from Jan 1. 2016 (2015 5509 RO).
Chapter 6 closure of the proceedings art. 58 final report the liquidator of bankruptcy or sanitation officer address a final report to the FINMA summarizing the proceedings in bankruptcy or remediation.
The final report of the liquidator of bankruptcy also contains: a. a presentation on the outcome of the trial relating to the fixing of the assets and liabilities of the mass; (b) data on the State of the rights granted to creditors according to the art. 260 LP; etc. a list of dividends not paid as well as deposited values distracted mass and not returned, with an indication of the reasons for which payment or restitution could not be implemented so far.
FINMA publishes the closure of the proceedings in bankruptcy or remediation.
RS 281.1 art. 59 keep parts the FINMA decided to how parts of the insolvency and commercial activity of the Bank should be kept after the closing or the suspension of the procedure of bankruptcy or remediation.
Remaining parts of insolvency and commercial activity of the Bank must be destroyed on the orders of FINMA after expiry of a period of 10 years after the closure or suspension of the procedure of bankruptcy or remediation.
Against specific legal provisions that govern the conservation of parts are reserved.
Chapter 7 provisions final art. 60 repeal and amendment of the law in force the order of FINMA of 30 June 2005 on Bank bankruptcy is repealed.
[RO 2005 3539, 2008 5613 ch. I 3, 2009 1769]
The mod. can be found at the RO 2012 5573.
Art. 61 transitional provisions the provisions of this order apply to proceedings under way at the time of the entry into force of the latter.
Art. 62 entry into force this order comes into force on November 1, 2012.
RO 2012 5573 RS 952.0 RS 954.1 RS 211.423.4 new content according to section II 1 of Schedule 2 to the O of the FINMA on Dec. 3. 2015 on the infrastructure of financial markets, in effect since Jan. 1. 2016 (2015 5509 RO).
New content according to section II 1 of Schedule 2 to the O of the FINMA on Dec. 3. 2015 on the infrastructure of financial markets, in effect since Jan. 1. 2016 (2015 5509 RO).
Status January 1, 2016