Dr Vera Naegeli and Marie-Cristine Kaptan discuss the evolving ESG legal field in Switzerland and how companies can abide by the new regulations.
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Beneficial ownership in Swiss PE acquisitions
Bär & Karrer’s Christoph Neeracher and Luca Jagmetti advise on the new rules.
As part of a new Swiss legislation aimed at preventing money laundering and tax evasion, any entity acquiring 25% or more of a non-listed Swiss company must inform the latter regarding the acquiring entity’s beneficial owner and update such information in case of changes.
In standard private equity structures, the administrative burden of the new legislation can be minimised by implementing a practicable solution compliant with the rules. As typically the general partner (GP) takes the relevant decisions regarding the fund and its portfolio companies, the individuals controlling the GP (respectively controlling the ultimate shareholder of the GP) should be disclosed as beneficial owners. If such individuals cannot be determined, the top executive officer (chair or chief executive) of the GP, or respectively of its ultimate shareholder, may be disclosed.
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Simpson Thacher, Davis Polk and Bär & Karrer win mandates on $43bn ChemChina-Syngenta deal
Simpson Thacher & Bartlett, Davis Polk & Wardwell, and Swiss firm Bär & Karrer have landed key advisory roles on China National Chemical Corp’s (ChemChina’s) $43bn bid for Swiss seeds and pesticides group Syngenta, in what will be the largest ever acquisition by a Chinese firm.
Simpson Thacher is advising China’s state-owned ChemChina on M&A, acquisition finance and regulatory aspects with a team led by partners Alan Klein, Shaolin Luo, Chris May and Sinead O’Shea, alongside Homburger.
Davis Polk & Wardwell and local Swiss firm Bär & Karrer are acting for Syngenta.
HSBC is arranging the debt financing for the deal, with advice from Linklaters, who is acting with a team led by London banking partner Brian Gray. Clifford Chance is advising ChemChina’s financial adviser China CITIC Bank with a team led by Maggie Lo.
Clifford Chance has acted for ChemChina in the past, advising on its $7.7bn bid to buy Italian tire-maker Pirelli. The deal announced last year, gave Chinese investors a significant foothold in Italy’s manufacturing industry while signalling continued Chinese investment into Europe. Davis Polk and Bär & Karrer previously worked together advising Syngenta in its defence of a takeover proposal by agriculture company Monsanto.
Syngenta said today (3 February) that the agreed offer amounted to $465 a share, plus a special dividend of 5 Swiss francs ($4.91) a share to be paid immediately before the deal’s closing. The company also announced that a ‘future initial public offering is intended’ while the transaction will ‘enable further expansion of Syngenta’s presence in emerging markets and notably in China.’
sarah.downey@legalease.co.uk
Important decision of Swiss Federal Supreme Court on intra-group financing arrangements
Bär & Karrer’s Till Spillmann and Luca Jagmetti discuss its practical consequences.
The Swiss Federal Supreme Court ruled in a recent decision that up-stream and cross-stream loans granted by Swiss companies must be entered into on arm’s-length terms. If not at arm’s length, the decision seems to suggest that such loans constitute de facto distributions and may only be granted for an amount not exceeding the lender’s freely distributable reserves. If already granted, it reduces the lender’s ability for future dividend distributions by the amount corresponding to the nominal value of the loan. The court also imposed stringent requirements on satisfying the arm’s length test.
Further, the court raised the question of whether Swiss companies are allowed to participate in zero-balancing cash pools at all.
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The agony of choice
MARKET VIEW – LITIGATION
Bär & Karrer partners Daniel Hochstrasser and Nadja Jaisli Kull discuss the dos and don’ts to be considered when appointing arbitrators
For all of its emphasis on privacy, procedural flexibility and the reassurance that comes with a widely-adopted enforcement regime in the form of the New York Convention, parties remain attracted to international arbitration for a sometimes-overlooked, but equally important, factor: the ability to select their own decision-makers. In some ways, however, being spoilt for choice can make picking one’s candidate that much more difficult. Do you go for the expensive ‘name’ arbitrator? The Big Law associate tipped for great things but with comparatively few appointments to their name? Or, for counsel and arbitrators of a certain generation, the most unthinkable move of all – a woman?
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