Key Benefits:
1 This Act regulates the retention and transfer of securities and securities by the custodians.
2 It guarantees the protection of the property rights of investors. It helps to ensure legal certainty in international relations, the efficiency of securities settlement, and the stability of the financial system.
1 This Act applies to intermediated securities that a custodian has entered into the credit of a securities account.
2 It does not affect the provisions on the recording of registered shares in the register of shares.
1 Securities intermediated within the meaning of this Law shall be the fungible claims and social rights against an issuer who meet the following conditions:
1bis Also considered as intermediated securities within the meaning of this Law any financial instrument and any right to a financial instrument whose preservation is subject to a foreign right which recognizes a comparable function. 1
2 The intermediated securities shall be enforceable against the depositary as well as to any third party; they shall be exempt from the control of the other creditors of the depositary.
1 Introduced by ch. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 A trustee within the meaning of this Act shall hold securities accounts in the name of persons or communities.
2 Are custodians:
3 Also considered as depositories are foreign banks, foreign traders, foreign central depositories and other foreign financial intermediaries who hold securities accounts as part of their activity Professional.
1 RS 952.0
2 RS 954.1
3 RS 951.31
4 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
5 RS 958.1
6 [RO 1997 2465, 2000 2355 Annex, c. 22, 2001 707 art. 31 ch. 3, 2003 3385, 2007 4703. RO 2012 5043 Annex c. I]. See currently L of 17 Dec. 2010 on the organisation of the post office (RS 783.1 ).
In this Act, the following means:
1 Intermediate titles are created:
2 For each issue of right-values, only one custodian holds the main register. It contains information about the issue, the number and the nominal value of the right-values issued; it is public.
1 Unless its articles or the conditions of the broadcast otherwise provide, the issuer may, at any time without the consent of the holder of an account, convert the securities deposited with an intermediary into one of the other forms In the form of collective deposit values, global certificates, or right-values. He bears the costs.
2 In so far as the articles of the issuer or the conditions of the issue provide for it, the holder of an account may, at any time, require the issuer to establish securities whose number and type correspond to the securities Intermediates who are registered on their behalf and who are based on the filing of a global certificate or on the registration of rights-values in the main register. It shall bear the costs of this conversion unless the conditions of the issuing or the articles of the issuer have otherwise provided for it.
3 The depositary shall ensure that the conversion of securities does not alter the total number of claims and social rights issued.
1 The holder of an account may, at any time, require the holder to furnish him or her with securities whose number and type correspond to the securities credited to his account:
2 The account holder shall have the right to the handing over of securities in accordance with the uses of the market on which the securities are traded.
3 The depositary shall ensure that the remittance of securities only occurs when intermediated securities whose number and type correspond to the securities have been debited from the corresponding securities account.
1 Depositary shall be permitted to hold intermediated securities, securities or securities with a sub-depositary in Switzerland or abroad. The consent of the account holder is not required.
2 However, the express consent of the holder of the account is required if the depositary abroad is not subject to adequate supervision.
1 The depositary shall enter into the credit of the securities account of the holder the intermediated securities recorded in the credit of its own account held by the depositary.
2 If the holding of the securities to the depositary is not subject to this Law, the holder of the account shall acquire by that recording rights at least equivalent to the rights obtained by the depositary.
1 A depositary holding itself or with a sub-depositary of intermediated securities whose number and type correspond to at least the sum of the intermediated securities credited to the securities accounts of its account holders (securities Available).
2 If the sum of the available securities is less than the sum of the intermediated securities credited to the accounts, the depositary shall without delay acquire intermediated securities with competition from the overdraft.
3 Available titles include:
1 If the depositary holds its own securities and third-party securities on separate securities accounts with a subdepositary, the securities of the holder of an account and its rights to the surrender of securities shall not be affected by:
2 The custodian cannot dispose of the account holder's securities until they have transferred them to their own account in the exercise of their right of use.
3 Any contrary agreement is null and void.
1 The creation of an intermediated title does not affect the investor's rights to the issuer.
2 The holder of an account may exercise his rights on intermediated securities only by his depositary, unless otherwise provided for in this Law.
1 Where an attachment, receiver or other provisional measure is ordered on the intermediated securities of the holder of an account, that measure shall be executed exclusively in the hands of the depositary holding the account of the holder. Titles are recorded.
2 A receiver, seizure or other provisional measure against the holder of the account that is executed in the hands of a subdepositary shall be null and void.
1 The depositary shall be required to execute the instructions of the holder of an account tending to dispose of its securities in accordance with the contract binding them.
2 The depositary has neither the right nor the obligation to verify the legal cause of an instruction.
3 The account holder may revoke an instruction until such time as the contract is binding on the account holder or by the rules of the securities clearing or settlement system used. The appraisal shall be irrevocable as soon as the depositary has debited the account of the holder's securities.
The holder of a securities account may, at any time, require the depositary to establish a certificate of the securities on his account. This certification is not a value paper.
1 Where a depositary is subject to a forced liquidation procedure for the general execution, the liquidator distracts ex officio from the estate, in competition with the assets in account of available securities:
2 If the depositary holds its own securities and the securities of its customers holding an account on the same account with a sub-depository, the securities entered in the credit of that account shall be presumed to be those of its customers holding Account.
3 The liquidator of a depositary must fulfil the depositary's obligations to the depositary as a result of the retention of the intermediated securities or the financing of their acquisition.
4 The distracted titles and claims to the securities are:
5 The bailee's claims under s. 21 are reserved.
Where a subdepositary is subject to a forced liquidation procedure for the general performance of the depositary, the depositary shall argue against the subdepositary for the diversion of securities to the holders of an account.
1 If the distracted titles are not sufficient to completely disinterest the holders of an account, the securities of the same kind that the custodian holds on its own account are distracted from the overdraft, even when the securities are retained Separately from the titles of its account holders.
2 If the account holders are still not completely disinterested, they support the overdraft as a proportion of the balance of the missing genre credited to their securities account. They obtain a countervail claim of an equivalent amount against the depositary.
The instruction of a depositary who participates in a system of clearing or settlement of securities transactions is legally binding and enforceable against third parties, even where the depositary is subject to a forced execution procedure:
1 The depositary may retain and carry out the securities entered in the credit of a securities account in order to disinterest any debt payable by the holder of that account resulting from the retention of the intermediated securities or the financing of their acquisition.
2 This right of retention and enforcement is extinguished when the custodian enters the securities to the credit of another account holder's securities account.
1 The holder of an account may authorize the depositary to dispose in his own name and on his own account of the intermediated securities credited to his account and in particular to constitute a security right in them.
2 If the account holder is not a qualified investor, the account holder must give written authorization, which cannot be included under general conditions.
1 If the holder of an account has given the depositary a security right in intermediated securities and the depositary uses the same title in order to constitute a security right, the depositary shall return to the holder of the securities in the same number and No later than the maturity of the guaranteed debt.
2 The surrendered securities are subject to the same security right as those they replace and as if they had been acquired at the same time as the original securities.
3 If the security agreement entered into with the account holder so provides, the depositary may carry out the securities in accordance with Art. 31 instead of returning them.
Depositary designated by an anonymous corporation under ss. 697 I , para. 4, or 697 J , para. 3 of the Code of Obligations 2 Shall ensure that the depositories located downstream of the chain, on request, transmit the following information:
1 Introduced by ch. I 8 of the 12 Dec LF. 2014 on the implementation of the recommendations of the Financial Action Task Force, revised in 2012, in force since 1 Er Jul. 2015 ( RO 2015 1389 ; FF 2014 585 ).
2 RS 220
1 The act of disposition on intermediated securities occurs:
2 The act of disposition is perfect and enforceable against third parties at the time of the bonus. If the account holder transfers ownership, he loses his rights to the intermediated titles at the same time. 1
3 The provisions relating to acquisition by universal succession or enforced execution are reserved.
4 The restrictions on the transmissibility of registered shares are reserved. Any other restriction on transmissibility is unenforceable against the acquirer and third parties.
1 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 The holder of an account may dispose of intermediated securities and the act of disposition shall be made effective against third parties by concluding with the depositary an agreement by which the depositary irrevocably undertakes to execute the instructions of The recipient without any new consent or competition from the account holder.
2 The act of disposition may include:
1 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 The holder of an account may have intermediated securities in favour of the depositary by entering into an agreement with the holder. The act of provision is binding on third parties upon the conclusion of the Convention.
2 Art. 25, para. 2, is applicable.
1 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 The rate of securities intermediated in a securities account may be extolled:
2 In the case referred to in para. 1, let. A and b, the account holder must prove that the instruction was defective. The right to the extorno does not exist if the depositary proves that he did not know the defect in the appraisal or should have known him well that he had implemented reasonable measures and procedures for that purpose.
3 The account holder is treated as if the debit had never been made. Damages based on the code of obligations are reserved.
4 Claims based on this Article shall be prescribed for a period of one year from the discovery of the defect, and in all cases by five years from the date of the debit.
5 Incumbents of an account who are qualified investors may derogate from this Article by agreement with their depositary.
1 The bailee can extolled the bonus of intermediated securities in a securities account:
2 The extorno must be communicated to the account holder.
3 The extl is excluded when no intermediated title of the same kind is added to the credit of the account, or when third parties have acquired rights in these securities in good faith. In such a case, the depositary shall be entitled to the countervalue of the securities credited, unless the account holder divested of the securities in good faith or could not expect to be required to return them.
4 Claims based on this Article shall be prescribed by one year from the discovery of the defect, and in all cases by five years from the date of the bonus.
5 Incumbents of an account who are qualified investors may derogate from this Article by agreement with their depositary.
1 Whoever, in good faith and for pecuniary interest, acquires intermediated securities or rights in securities intermediated in accordance with Art. 24, 25 or 26 is protected in its acquisition itself:
2 If the purchaser is not protected in its acquisition, it is required to return intermediated securities in the same number and type in accordance with the provisions of the code of obligations 1 On illegitimate enrichment. The rights of third parties are not affected. Other claims based on the code of obligations are reserved.
3 If the acquirer in restitution is the subject of a forced execution procedure for the general performance, the person entitled to do so may demand the diversion of intermediated securities in the same number and type to the extent that such Titles are in the mass.
4 The claims based on para. 2 shall be prescribed by one year from the day on which the holder of the debited account became aware of his or her right and the identity of the debtor, and in all cases ten years from the date of the debit. Art. 60, para. 2, the code of obligations is reserved.
5 The purchaser cannot invoke this section to object to the extreturns of a bonus referred to in s. 28.
1 Between acts of provision relating to intermediated securities or to rights in intermediated securities that have been made in accordance with the provisions of this Law, the earlier act shall take precedence over the later act.
2 If the custodian enters into an agreement within the meaning of s. 25, para. 1, without expressly notifying the purchaser of his earlier rights, these rights are deemed to be subordinated to the rights of the recipient. 1
4 Agreements modifying the rank of rights on intermediated securities are reserved; they only have effect between the parties to those agreements.
1 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
2 Repealed by c. 14 of the annex to the L of 19 June 2015 on financial market infrastructure, with effect from 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 The beneficiary of a security interest in intermediated securities may meet them under the conditions stipulated in the security agreement:
2 This right remains when the grantor of the security is the subject of a forced enforcement procedure or a remediation or protection measure.
3 The depositary has neither the right nor the obligation to verify whether the conditions of the realization are fulfilled.
4 The beneficiary of the security who performs intermediated securities when the conditions are not met is liable for the damage caused.
1 New content according to the c. 14 of the Annex to the L of 19 June 2015 on financial market infrastructure, in force since 1 Er Jan 2016 ( RO 2015 5339 ; FF 2014 7235 ).
1 The depositary shall respond to the damage caused to the holder of an account in connection with the retention or transfer of the intermediated securities in accordance with the provisions of the code of obligations 1 , provided that this Article does not otherwise dispose of it.
2 A trustee who holds securities intermediated with a sub-depositary shall respond to the care with which he has chosen and instruct and the care with which he has checked that the criteria of his choice have been met on a long-term basis.
3 The depositary may exclude its liability under para. 2 if the holder of the account has expressly designated a subdepositary against the recommendation of the depositary.
4 The depositary shall reply as if it were its own of the acts of the sub-depositary which:
5 Conventions to the contrary are valid only if they are passed between depositories or investors.
The amendments to the existing law are set out in the Annex.
1 A right-value issuer on the credit of securities accounts maintained by a depositary shall open a master register at the depository and shall register the right-values within six months of the entry into force of this Law.
2 If, before the entry into force of this Law, collective deposit securities, global certificates or right-values have been the subject of an act of provision which does not meet the requirements of this Law, the right thus created Any right constituted after the entry into force, provided that the person who is entitled shall make or cause to be registered within twelve months after the entry into force of this Law.
(art. 34)
The following laws are amended as follows:
... 1
1 The mod. Can be viewed at RO 2009 3577 .
