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Art. 80 – Excluded derivatives

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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.

Legal act context
SR 958.11 · FinMIO · Ordinance · Ordinance of 25 November 2015 on Financial Market Infrastructures and Market Conduct in Securities and Derivatives Trading (Financial Market Infrastructure Ordinance, FinMIO)
Structure path
Title 3 Market Conduct Chapter 1 Derivatives Trading Section 1 General
Language
English (en)
Data status
2025-01-01

Available language versions

Deutschde Françaisfr Italianoit Englishen

The official sources and versions published by the competent authorities remain authoritative.

Contents of this enactment

Document textGeneral document text1ArticlesRegular articles in this version153AnnexesAnnexes and attachments in this version5
Document text1
Articles153
1Title 1 General Provisions
Art. 1 – Subject matterArt. 1 Subject matter This Ordinance governs specifically: a. the authorisation conditions and duties for financial market infrastructures; b. the duties of financial market participants in derivatives trading; c. the d… Direct link
Art. 2 – DefinitionsArt. 2 Definitions 1 Securities are deemed to be standardised and suitable for mass trading if they are publicly offered for sale in the same structure and denomination or are placed with more than 20 clients, insofar a… Direct link
Art. 3 – Significant group companiesArt.3 Significant group companies The functions of a group company are significant with respect to the activities which require authorisation if they are necessary for the continuation of important business processes, i… Direct link
1Title 2 Financial Market Infrastructures
2Chapter 1 Common Provisions
3Section 1 Authorisation Conditions and Duties for all Financial Market Infrastructures
Art. 4 – Authorisation applicationArt. 4 Authorisation application 1 The financial market infrastructure shall submit an authorisation application to the Swiss Financial Market Supervisory Authority (FINMA). This shall contain all the information necess… Direct link
Art. 5 – Changes in factsArt.5 Changes in facts 1 The financial market infrastructure shall notify FINMA in particular of: a. any amendments to the articles of association or partnership agreements and regulations; b. any material change in the… Direct link
Art. 6 – Business areaArt.6 Business area 1 The financial market infrastructure must describe its area of business in factually and geographically precise terms in the articles of association, partnership agreements or regulations. 2 The bus… Direct link
Art. 7 – Place of managementArt. 7 Place of management 1 The financial market infrastructure must effectively be managed from Switzerland. An exception is made here for general directives and decisions within the context of group supervision if th… Direct link
Art. 8 – Corporate governanceArt. 8 Corporate governance 1 The financial market infrastructure must have an organisational structure and an organisational basis that set out the tasks, responsibilities, powers and accountability of the following bo… Direct link
Art. 9 – Risk managementArt. 9 Risk management 1 With regard to risk management, the financial market infrastructure must have a concept for the integrated identification, measurement, management and monitoring of risks, particularly with resp… Direct link
Art. 10 – Guarantee of irreproachable business conductArt. 10 Guarantee of irreproachable business conduct 1 The authorisation application for a new financial market infrastructure must contain the following information and documentation in particular on the members of the… Direct link
Art. 11 – OutsourcingArt. 11 Outsourcing 1 An outsourcing situation in accordance with Article 11 paragraph 1 FinMIA is deemed to exist if the financial market infrastructure has commissioned a service provider to independently and permanen… Direct link
Art. 12 – Essential servicesArt. 12 Essential services 1 Essential services are deemed to be services that are necessary for the continuation of important business processes, in particular in the areas of liquidity management, treasury, risk manag… Direct link
Art. 13 – Minimum capitalArt. 13 Minimum capital 1 The minimum capital shall amount to: a. 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… Direct link
Art. 14 – Business continuityArt. 14 Business continuity 1 The strategy detailed in Article 13 paragraph 1 FinMIA must be enshrined in the company organisation and should regulate in particular: a. the tasks, responsibilities and powers; b. the fre… Direct link
Art. 15 – IT systemsArt.15 IT systems 1 The IT systems must be set up in such a way that: a. the requirements of information availability, integrity and confidentiality can be appropriately fulfilled with respect to the business activity i… Direct link
Art. 16 – International businessArt.16 International business 1 The report that a financial market infrastructure must submit to FINMA prior to commencing activity abroad must contain all the necessary information and documentation for evaluating the… Direct link
Art. 17 – Fair and open accessArt.17 Fair and open access 1 Fair access is deemed not to be guaranteed in particular if excessively high or objectively unjustified requirements are made, or if excessive prices are demanded for use of the services of… Direct link
Art. 18 – Prevention of conflicts of interestArt.18 Prevention of conflicts of interest If the disadvantaging of participants through conflicts of interest cannot be excluded with organisational measures, this should be disclosed to participants. Direct link
Art. 19 – Publication of essential informationArt.19 Publication of essential information The financial market infrastructure shall regularly publish in addition to the information required under Article 21 FinMIA: a. the rules and procedures that apply to the oper… Direct link
3Section 2 Special Requirements for Systemically Important Financial Market Infrastructures
Art. 20 – Recovery and resolution planArt.20 Recovery and resolution plan 1 The recovery plan and the resolution plan must take into account the regulations of foreign supervisory authorities and central banks for stabilisation, restructuring and winding-up… Direct link
Art. 21 – Measures to improve resolvabilityArt.21 Measures to improve resolvability The measures to improve the financial market structure's resolvability can encompass in particular: a. structural improvements and unbundling by means of: 1. amendments to the le… Direct link
2Chapter 2 Trading Venues and Organised Trading Facilities
3Section 1 Definitions
Art. 22 – Multilateral tradingArt. 22 Multilateral trading Trading is deemed to be multilateral if it unites the interests of multiple participants in the acquisition and sale of securities or other financial instruments within the trading facility… Direct link
Art. 23 – Non-discretionary rulesArt. 23 Non-discretionary rules Rules are deemed to be non-discretionary if they grant the trading venue or the operator of an organised trading facility no discretion in the amalgamation of offers. Direct link
3Section 2 Trading Venues
Art. 24 – Regulatory and supervisory organisationArt. 24 Regulatory and supervisory organisation 1 An appropriate regulatory and supervisory organisation shall encompass the following bodies in particular: a. a body that fulfils regulatory tasks; b. Amended by No I 10… Direct link
Art. 25 – Approval of regulationsArt.25 Approval of regulations 1 When approving regulations, FINMA shall review in particular whether these: a. ensure transparency and the equal treatment of investors; and b. ensure the proper functioning of the secur… Direct link
Art. 26 – Organisation of tradingArt.26 Organisation of trading The trading venue shall establish procedures in order that the relevant data on securities transactions can be confirmed on the same day that transactions are executed. Direct link
Art. 27 – Pre-trade transparencyArt. 27 Pre-trade transparency 1 The trading venue shall publish the information communicated via its trading facilities on pre-trade transparency for shares throughout normal trading hours. 2 For each share, the five b… Direct link
Art. 28 – Post-trade transparencyArt. 28 Post-trade transparency 1 The trading venue shall publish the information on post-trade transparency with respect to transactions executed via the trading venue in accordance with its regulations. 2 Post-trade i… Direct link
Art. 29 – Exceptions to pre-trade and post-trade transparencyArt.29 Exceptions to pre-trade and post-trade transparency 1 Securities transactions are not subject to the provisions on pre-trade and post-trade transparency if they are carried out as part of public tasks and not for… Direct link
Art. 30 – Guarantee of orderly tradingArt.30 Guarantee of orderly trading 1 The trading venue shall set transparent rules and procedures for fair, efficient and orderly trading, as well as objective criteria for the effective execution of orders. It must ha… Direct link
Art. 31 – Algorithmic trading and high-frequency tradingArt.31 Algorithmic trading and high-frequency trading 1 The trading venue must be able to identify the following: a. orders generated by algorithmic trading; b. the different algorithms used for the creation of orders;… Direct link
Art. 32 – Supervision of tradingArt.32 Supervision of trading 1 The trading supervisory body must have appropriate systems and resources to carry out its tasks. 2 The functioning of the trading supervisory systems must also be guaranteed without restr… Direct link
Art. 33 – Admission of securities by a stock exchangeArt.33 Admission of securities by a stock exchange 1 The stock exchange shall guarantee that all securities admitted to trading and all listed securities can be traded in a fair, efficient and orderly manner. 2 In the c… Direct link
Art. 34 – Admission of securities by a multilateral trading facilityArt.34 Admission of securities by a multilateral trading facility 1 The multilateral trading facility shall guarantee that all securities admitted to trading can be traded in a fair, efficient and orderly manner. 2 In t… Direct link
Art. 35 – Appeal bodyArt. 35 Appeal body 1 The appeal body shall be independent in its adjudication and bound only by the law. 2 The members may not belong to the body responsible for the admission of securities to trading, nor may they be… Direct link
Art. 36 – Record-keeping duty of participantsArt.36 Record-keeping duty of participants 1 The participants admitted to a trading venue shall keep a record of all orders they receive and all securities transactions they execute. 2 The record-keeping duty also appli… Direct link
Art. 37 – Reporting duty of participantsArt.37 Reporting duty of participants 1 The participants admitted to a trading venue shall report all transactions they execute involving securities admitted to trading on a trading venue. In particular, the following m… Direct link
3Section 3 Organised Trading Facilities
Art. 38 – Authorisation and recognition conditionsArt.38 Authorisation and recognition conditions The authorisation and recognition conditions that apply to the operator of an organised trading facility are based on the financial market acts pursuant to Article 1 parag… Direct link
Art. 39 – Organisation and prevention of conflicts of interestArt.39 Organisation and prevention of conflicts of interest 1 The operator of an organised trading facility shall issue regulations on the organisation of trading and monitor compliance with the statutory and regulatory… Direct link
Art. 40 – Guarantee of orderly tradingArt. 40 Guarantee of orderly trading The operator of an organised trading facility shall set transparent rules and procedures for fair, efficient and orderly trading, as well as objective criteria for the effective exec… Direct link
Art. 41 – Algorithmic trading and high-frequency tradingArt. 41 Algorithmic trading and high-frequency trading In order to prevent disruptions to its trading facility, the operator of an organised trading facility must take effective measures in accordance with Article 31. Direct link
Art. 42 – Pre-trade transparencyArt. 42 Pre-trade transparency 1 In the case of multilateral trading and bilateral trading where a liquid market exists, Articles 27 and 29 apply by analogy. 2 In the case of bilateral trading where no liquid market exi… Direct link
Art. 43 – Post-trade transparency for securitiesArt.43 Post-trade transparency for securities 1 In the case of multilateral trading, Article 28 paragraphs 1 and 4 as well as Article 29 apply by analogy. 2 In the case of bilateral trading, aggregated publication at th… Direct link
2Chapter 3 Central Counterparties
Art. 44 – FunctionArt. 44 Function The central counterparty shall ensure, in particular, the standardised recording of all details of the transactions cleared by it, the positions of the participants and its reports to trade repositories. Direct link
Art. 45 – Organisation, business continuity and IT systemsArt.45 Organisation, business continuity and IT systems 1 The central counterparty must appoint a risk committee that includes representatives of the participants, of the indirect participants and members of the body fo… Direct link
Art. 46 – CollateralArt. 46 Collateral 1 If predefined thresholds are exceeded, the central counterparty shall call in initial margins and variation margins at least once a day. 2 It shall avoid concentration risks in the collateral and sh… Direct link
Art. 47 – Exchange-of-value settlementArt. 47 Exchange-of-value settlement The central counterparty shall enable participants to eliminate their principal risk by ensuring that the settlement of one obligation occurs if and only if the settlement of the oth… Direct link
Art. 48 – Capital adequacyArt.48 Capital adequacy 1 The central counterparty must hold a minimum capital in the amount of 8.0% in accordance with Article 42 paragraph 1 letter b CAOSR 952.03. Amended by Annex No 5 of the O of 29 Nov. 2023, in fo… Direct link
Art. 49 – Risk diversificationArt. 49 Risk diversification The central counterparty shall monitor credit risks vis-à-vis an individual counterparty or a group of associated counterparties based on the calculation principles set out in Section 4 of C… Direct link
Art. 50 – LiquidityArt. 50 Liquidity 1 The following are deemed to constitute liquidity in a currency as set out in Article 52 paragraph 1 FinMIA: a. cash balances in this currency with a central bank or a creditworthy financial instituti… Direct link
Art. 51 – PortabilityArt. 51 Portability 1 Portability is ensured if: a. the transfer is enforceable in the relevant jurisdictions; and b. the other participant has an obligation towards the indirect participant to assume the latter's colla… Direct link
2Chapter 4 Central Securities Depositories
Art. 52 – OrganisationArt. 52 Organisation 1 The central securities depository shall set up a user committee for every securities settlement system operated by it, on which the issuers and participants in these securities settlement systems… Direct link
Art. 53 – Principles for the custody, recording and transfer of securitiesArt. 53 Principles for the custody, recording and transfer of securities Central securities depositories that use a common settlement infrastructure shall establish identical times for: a. the entry of payment and trans… Direct link
Art. 54 – CollateralArt. 54 Collateral 1 The central securities depository must have sufficient collateral in order to fully cover its current credit exposure. 2 It shall avoid concentration risks in the collateral and shall ensure that it… Direct link
Art. 55 – Exchange-of-value settlementArt. 55 Exchange-of-value settlement The central securities depository shall enable participants to eliminate their principal risk by ensuring that the settlement of one obligation occurs if and only if the settlement o… Direct link
Art. 56 – Capital adequacyArt.56 Capital adequacy (Art. 66 FinMIA) 1 The central securities depository must hold a minimum capital in the amount of 8.0% in accordance with Article 42 paragraph 1 letter b CAOSR 952.03. Amended by Annex No 5 of th… Direct link
Art. 57 – Risk diversificationArt. 57 Risk diversification The central securities depository shall monitor credit risks vis-à-vis an individual counterparty or a group of associated counterparties based on the calculation principles set out in Secti… Direct link
Art. 58 – LiquidityArt. 58 Liquidity 1 The following are deemed to constitute liquidity in a currency as set out in Article 67 paragraph 1 FinMIA: a. cash balances in this currency with a central bank or a creditworthy financial instituti… Direct link
2Chapter 4a DLT Trading Facilities
3Section 1 Definitions
Art. 58a – Multilateral trading and non-discretionary rulesArt. 58a Multilateral trading and non-discretionary rules The definitions for multilateral trading and non-discretionary rules under Articles 22 and 23 apply by analogy to DLT trading facilities. Direct link
Art. 58b – Commercial activityArt. 58b Commercial activity 1 A DLT trading facility is operating commercially if it: a. thereby generates gross earnings of more than CHF 50,000 per calendar year; b. per calendar year, has a business relationship wit… Direct link
3Section 2 Requirements
Art. 58c – Applicability of certain requirements for trading venuesArt. 58c Applicability of certain requirements for trading venues 1 Unless otherwise specified in this Section, Articles 24 to 32 and Article 35 apply by analogy to DLT trading facilities. 2 Instead of the option under… Direct link
Art. 58d – Record-keeping and reporting dutyArt. 58d Record-keeping and reporting duty 1 Private participants are exempt from the record-keeping duty under Article 38 of the FinMIA and the reporting duty under Article 39 of the FinMIA. 2 Articles 36 and 37 of thi… Direct link
Art. 58e – Admission and exclusion of participantsArt. 58e Admission and exclusion of participants 1 The DLT trading facility shall regulate in the regulations in accordance with Article 73c paragraph 5 of the FinMIA whether and which private participants will be admit… Direct link
Art. 58f – Admission of DLT securities and other assetsArt. 58f Admission of DLT securities and other assets 1 The DLT trading facility shall regulate in the regulations in accordance with Article 73d of the FinMIA which DLT securities and other assets will be admitted to i… Direct link
Art. 58g – Minimum requirements for the admission of DLT securities and regular auditingArt. 58g Minimum requirements for the admission of DLT securities and regular auditing 1 DLT securities may be admitted by the DLT trading facility if the distributed ledger meets at least the requirements under Article… Direct link
Art. 58h – Disclosures on transactionsArt. 58h Disclosures on transactions 1 The DLT trading facility shall monitor all transactions conducted on its systems with admitted DLT securities. It shall disclose this data free of charge to all approved DLT tradin… Direct link
Art. 58i – Duty of informationArt. 58i Duty of information 1 DLT trading facilities with private participants shall provide them with the associated prospectus or key information document for each DLT security admitted to the DLT trading facility. 2… Direct link
Art. 58j – Other requirements relating to services in the area of central custody, clearing or settlementArt. 58j Other requirements relating to services in the area of central custody, clearing or settlement 1 Unless otherwise specified in this Section, the requirements for central securities depositories under Articles 6… Direct link
3Section 3 Special requirements for small DLT trading facilities
Art. 58k – Small DLT trading facilitiesArt. 58k Small DLT trading facilities 1 A DLT trading facility is deemed to be small if the following thresholds are undercut in relation to DLT securities: a. Annual trading volume: CHF 250 million; b. Custody volume:… Direct link
Art. 58l – Easing of requirements for small DLT trading facilitiesArt. 58l Easing of requirements for small DLT trading facilities 1 In derogation from the FinMIA and from this Ordinance, the following eased requirements apply for small DLT trading facilities: a. In derogation from Ar… Direct link
Art. 58m – Duty of information for small DLT trading facilitiesArt. 58m Duty of information for small DLT trading facilities Before establishing a business relationship, small DLT trading facilities shall inform their clients, in writing or in another form demonstrable by text, of… Direct link
Art. 58n – Minimum capital for small DLT trading facilitiesArt. 58n Minimum capital for small DLT trading facilities For small DLT trading facilities, the minimum capital requirement is: a. CHF 500,000 if they do not provide services in accordance with Article 73a paragraph 1 l… Direct link
Art. 58o – Prohibition on lendingArt. 58o Prohibition on lending Small DLT trading facilities may not grant loans. Direct link
2Chapter 5 Trade Repositories
Art. 59 – Ancillary servicesArt.59 Ancillary services If the trade repository offers ancillary services, it must provide these in a way that is operationally segregated from its essential services. Direct link
Art. 60 – Data retentionArt.60 Data retention 1 The trade repository must do the following with respect to the reported data: a. record it immediately and completely; b. save it both online and offline; c. copy it to an appropriate extent. 2 I… Direct link
Art. 61 – Publication of dataArt. 61 Publication of data 1 The trade repository shall publish at least weekly the open positions, transaction volumes and values for the following derivative categories: a. commodity derivatives; b. credit derivative… Direct link
Art. 62 – Data access for Swiss authoritiesArt.62 Data access for Swiss authorities 1 The trade repository shall grant the following authorities access to the data, whereby paragraph 2 remains reserved: a. FINMA: all transaction data; b. the SNB: all transaction… Direct link
Art. 63 – Data access for foreign authoritiesArt.63 Data access for foreign authorities 1 The trade repository shall grant foreign financial market supervisory authorities access to transaction data solely for the purposes of enforcing financial market law under t… Direct link
Art. 64 – ProcedureArt.64 Procedure 1 The access of authorities shall be structured in line with the communication protocols, data exchange standards and reference data that are commonplace at the international level. 2 The authorities mu… Direct link
Art. 65 – Data transmission to private individualsArt.65 Data transmission to private individuals 1 The trade repository shall provide private individuals with a form for their enquiries in which the following information is required: a. personal details; b. reason for… Direct link
2Chapter 6 Payment Systems
Art. 66 – Clearing and settlement principlesArt.66 Clearing and settlement principles 1 The payment system shall ensure the proper and lawful clearing and settlement of payment obligations. 2 It shall specify the time: a. after which a payment order is irrevocabl… Direct link
Art. 67 – CollateralArt. 67 Collateral 1 The payment system shall use appropriate measures to cover risks arising from the granting of credit. 2 It shall accept only liquid collateral with low credit and market risks. It shall value the co… Direct link
Art. 68 – Fulfilment of payment obligationsArt.68 Fulfilment of payment obligations 1 The payment system shall enable the settlement of payments by transferring sight deposits held with a central bank. 2 If this is impossible or impractical, it shall use a means… Direct link
Art. 69 – Capital adequacyArt.69 Capital adequacy In the case of systemically important payment systems, the capital must suffice to implement the plan set out in Article 72, but must at least be sufficient to cover ongoing operating expenditure… Direct link
Art. 70 – LiquidityArt. 70 Liquidity 1 The payment system must have sufficient liquidity in accordance with Article 58 paragraph 1: a. to fulfil its payment obligations in all currencies under extreme but plausible market conditions, even… Direct link
2Chapter 7 Supervision and Oversight
Art. 71 – AuditingArt.71 Auditing 1 The audit firm of the financial market infrastructure shall review whether the latter fulfils the relevant duties as set forth in legislation, this Ordinance and its own contractual basis. 2 The audit… Direct link
Art. 72 – Voluntary authorisation returnArt. 72 Voluntary authorisation return 1 Systemically important financial market infrastructures shall draw up a plan as to how their systemically important business processes are to be terminated in an orderly way in t… Direct link
2Chapter 8 Insolvency Law Provisions
Art. 73 – System protectionArt. 73 System protection 1 The orders of participants include in particular instructions that: a. directly affect the settlement of payments or securities transactions; or b. serve the purpose of providing the financin… Direct link
Art. 74 – Primacy of agreements in the event of insolvencyArt.74 Primacy of agreements in the event of insolvency 1 The offsetting agreements shall include in particular netting provisions as well as the default agreements contained in bilateral or framework agreements. 2 The… Direct link
Art. 75 – Postponement of the termination of contractsArt.75 Postponement of the termination of contracts 1 The following contracts in particular may be postponed: a. contracts on the purchase, sale, repurchase and lending of securities and book-entry securities and on tra… Direct link
1Title 3 Market Conduct
2Chapter 1 Derivatives Trading
3Section 1 General
Art. 76 – Collective investment schemesArt. 76 Collective investment schemes 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… Direct link
Art. 77 – CompaniesArt. 77 Companies 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 ent… Direct link
Art. 78 – BranchesArt. 78 Branches 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… Direct link
Art. 79 – Exceptions for other public sector bodiesArt.79 Exceptions for other public sector bodies 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. forei… Direct link
Art. 80 – Excluded derivativesArt.80 Excluded derivatives 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… Current article Direct link
Art. 81 – Fulfilment of duties under foreign lawArt.81 Fulfilment of duties under foreign law 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… Direct link
Art. 82 – Intra-group flow of informationArt.82 Intra-group flow of information 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 necess… Direct link
Art. 83 – Declaration concerning a counterparty's characteristicsArt.83 Declaration concerning a counterparty's characteristics 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 mus… Direct link
Art. 84 – Currency swaps and currency forward transactionsArt.84 Currency swaps and currency forward transactions 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) a… Direct link
3Section 2 Clearing via a Central Counterparty
Art. 85 – Commencement of dutyArt.85 Commencement of duty 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… Direct link
Art. 86 – Transactions not coveredArt.86 Transactions not covered Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). 1 Transactions with counterparties that are subject to the clearing duty for the first time in accordan… Direct link
Art. 87 – Derivatives transactions intended to reduce risksArt.87 Derivatives transactions intended to reduce risks Derivatives transactions intended to reduce risks are directly associated with the business activity, liquidity management or asset management of the non-financia… Direct link
Art. 88 – ThresholdsArt. 88 Thresholds 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 derivativ… Direct link
Art. 89 – Average gross positionArt. 89 Average gross position 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. Po… Direct link
Art. 90 – Cross-border transactionsArt.90 Cross-border transactions 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… Direct link
Art. 91 – Intra-group transactionsArt.91 Intra-group transactions Non-financial counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures if they maintain professional central treasury operations. Direct link
3Section 3 Reporting to a Trade Repository
Art. 92 – DutyArt. 92 Duty 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 F… Direct link
Art. 93 – Content of reportsArt. 93 Content of reports Reports are to contain the information set out in Annex 2. Direct link
3Section 4 Risk Mitigation
Art. 94 – DutiesArt. 94 Duties 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 infor… Direct link
Art. 95 – Confirmation of contractual termsArt.95 Confirmation of contractual terms 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… Direct link
Art. 96 – Portfolio reconciliationArt. 96 Portfolio reconciliation 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 conclu… Direct link
Art. 97 – Dispute resolutionArt. 97 Dispute resolution 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 agreeme… Direct link
Art. 98 – Portfolio compressionArt. 98 Portfolio compression 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 e… Direct link
Art. 99 – Valuation of outstanding transactionsArt.99 Valuation of outstanding transactions 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 pla… Direct link
Art. 100 – Duty to exchange collateralArt. 100 Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Duty to exchange collateral 1 If counterpa… Direct link
Art. 100a – Exceptions to the duty to exchange collateralArt. 100a Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Exceptions to the duty to exchange coll… Direct link
Art. 100b – Initial margin reductionArt. 100b Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Initial margin reduction 1 The counterp… Direct link
Art. 101 – Timing of initial margin calculation and paymentArt.101 Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Timing of initial margin calculation and pa… Direct link
Art. 101a – Timing of variation margin calculation and paymentArt. 101a Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Inserted by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Timing of variation margin calculation… Direct link
Art. 102 – Treatment of initial marginsArt.102 Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Treatment of initial margins 1 No reciproca… Direct link
Art. 103 – Calculation of initial marginsArt.103 Calculation of initial margins 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 ne… Direct link
Art. 104 – Admissible collateral for initial and variation marginsArt.104 Admissible collateral for initial and variation margins 1 The following count as admissible collateral: a. cash deposits, including medium-term notes or comparable instruments issued by a bank; b. high-quality d… Direct link
Art. 105 – Discounts on collateralArt.105 Discounts on collateral 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.… Direct link
Art. 106 – Cross-border transactionsArt. 106 Cross-border transactions 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 counterpa… Direct link
Art. 107 – Intra-group transactionsArt. 107 Intra-group transactions 1 Insolvency law provisions do not count as legal impediments in the sense of Article 111 letter c FinMIA. 2 Furthermore, Article 91 applies. Direct link
3Section 5 Trading via Trading Venues and Organised Trading Facilities
Art. 108 – Commencement of dutyArt. 108 Commencement of duty 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 whi… Direct link
Art. 109 – Transactions not subject to the trading dutyArt. 109 Transactions not subject to the trading duty 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 transacti… Direct link
Art. 110 – Trading via foreign organised trading facilitiesArt.110 Trading via foreign organised trading facilities 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 bee… Direct link
Art. 111 – Cross-border transactionsArt. 111 Cross-border transactions 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… Direct link
Art. 112 – Intra-group transactionsArt. 112 Intra-group transactions For intra-group transactions, Article 91 applies. Direct link
3Section 6 Documentation and Auditing
Art. 113 – DocumentationArt. 113 Documentation 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 re… Direct link
Art. 114 – Auditing and notificationsArt.114 Auditing and notifications 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 se… Direct link
2Chapter 2 Disclosure of Shareholdings
Art. 115Art. 115 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 it… Direct link
2Chapter 3 Public Takeover Offers
Art. 116 – Main listingArt. 116 Main listing For public takeover offers, Article 115 regarding main listing applies. Direct link
Art. 117 – Fees for the review of a takeover offerArt.117 Fees for the review of a takeover offer 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 va… Direct link
Art. 118 – Fees for other decisionsArt.118 Fees for other decisions 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.… Direct link
Art. 119 – Advance payment of feesArt. 119 Advance payment of fees The Swiss Takeover Board may request an advance fee payment amounting to the probable fee from each party. Direct link
Art. 120 – Calculation of voting rights in the case of the cancellation of outstanding equity securitiesArt.120 Calculation of voting rights in the case of the cancellation of outstanding equity securities In order to determine whether the threshold of 98% in accordance with Article 137 paragraph 1 FinMIA has been exceede… Direct link
Art. 121 – Proceedings for cancelling outstanding equity securitiesArt.121 Proceedings for cancelling outstanding equity securities 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 thi… Direct link
2Chapter 4 Exceptions to the Ban on Insider Trading and Market Manipulation
Art. 122 – Subject matterArt. 122 Subject matter 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. Direct link
Art. 123 – Buyback of own equity securitiesArt.123 Buyback of own equity securities 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 p… Direct link
Art. 124 – Blackout periodsArt.124 Blackout periods 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… Direct link
Art. 125 – Content of buyback noticesArt. 125 Content of buyback notices 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 parti… Direct link
Art. 126 – Price stabilisation after a public placement of securitiesArt.126 Price stabilisation after a public placement of securities 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 faci… Direct link
Art. 127 – Other permissible securities transactionsArt.127 Other permissible securities transactions 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 transa… Direct link
Art. 128 – Admissible communication of insider informationArt.128 Admissible communication of insider information 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 informatio… Direct link
1Title 4 Transitional and Final Provisions
Art. 129 – Financial market infrastructuresArt. 129 Amended by No I of the O of 29 June 2016, in force since 1 Aug. 2016 (AS 2016 2703) Amended by No I of the O of 29 June 2016, in force since 1 Aug. 2016 (AS 2016 2703) Financial market infrastructures 1 The dut… Direct link
Art. 130 – Reporting to a trade repositoryArt.130 Reporting to a trade repository 1 The duty to report to a trade repository under Article 104 FinMIA must be fulfilled at the latest: a. within six months of the first authorisation or recognition of the trade re… Direct link
Art. 131 – Risk mitigation dutiesArt. 131 Risk mitigation duties 1 The duties that apply with respect to timely confirmation, portfolio reconciliation, dispute resolution and portfolio compression in accordance with Article 108 letters a to d FinMIA sh… Direct link
Art. 132 – AuditingArt.132 Auditing The duty to have an audit performed by the auditors in accordance with Article 114 shall apply 12 months following the entry into force of this Ordinance. Direct link
Art. 133 – Occupational pension schemes and investment foundationsArt.133 Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Amended by No I of the O of 5 July 2017, in force since 1 Aug. 2017 (AS 2017 3715). Occupational pension schemes and investment… Direct link
Art. 134 – Amendment of other legislative instrumentsArt.134 Amendment of other legislative instruments The amendment of other legislative instruments is set out in Annex 1. Direct link
Art. 135 – CommencementArt. 135 Commencement This Ordinance comes into force on 1 January 2016. Direct link
Annexes5
Amendment of other legislative instrumentsAnnex 1 (Art. 134) Amendment of other legislative instruments The legislative instruments below are amended as follows: ...Direct link
Data to be reported to trade repositoriesAnnex 2 (Art. 93) Data to be reported to trade repositories Legend for column «Validation for T / P / V»: T: Reporting of an individual transaction M: Mandatory P: Reporting of a position U: Under reservation V: Reporti…Direct link
Calculation of the initial margin for a netting setAnnex 3 (Art. 103 para. 4) Calculation of the initial margin for a netting set 1 The initial margin for a netting set is calculated using the formula: Net initial margin = 0.4 * gross initial margin + 0.6 * NGR * gross…Direct link
Discounts (haircuts) on collateralAnnex 4 (Art. 105 para. 1) Discounts (haircuts) on collateral Rating class as per Annex 2 and Art. 64 a para. 2 CAO Term to maturity Haircut on collateral in cash deposits in % Haircuts on collateral as per Art. 104 par…Direct link
Quantitative and qualitative minimum standards for collateralAnnex 5 (Art. 105 para. 3) Quantitative and qualitative minimum standards for collateral 1 Quantitative minimum standards 1.1 If debt securities have a credit rating from an approved rating agency, volatility estimates…Direct link

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