Facts
D. Ltd is a company incorporated under the laws of the British Virgin Islands (BVI), whose main activity is the purchase, sale, exchange, holding, development, and issuance of securities. In Switzerland, it is active in Zurich and Geneva through branches.
The Zurich branch, D. Ltd, Zurich branch, has been registered in the commercial register of Zurich since March 1, 2004 as a branch of D. Ltd (BVI). Its activities consist of contacting investors in Europe. The Geneva branch has not been registered in the commercial register as such.
The company A. SA, under Swiss law, aims to create and manage offshore trusts and companies to optimize the tax situation of their beneficial owners. A. SA provides administrators for D. Ltd (BVI) and other related companies, including B. and C., which play an important role in the daily activities of D. Ltd (BVI) and its branches.
The Swiss Federal Banking Commission found that the activities of D. Ltd (BVI) in Geneva were those of a branch, proceeded with its ex officio registration in the commercial register of Geneva, declared the bankruptcy of the Zurich and Geneva branches, and prohibited certain persons from engaging in securities trading activities.
Considerations
First, the Federal Court finds that the activity in question concerns the marketing in Switzerland of shares issued by foreign companies, which is not subject to the rules of the Swiss Code of Obligations but to the Stock Exchange Act.
According to the Stock Exchange Act, to be qualified as a "securities dealer", a natural or legal person must "purchase and sell" securities on a professional basis. Issuing houses, although underwriting or acting as commission agents for securities issued by third parties, must also fulfill this condition.
D. Ltd (BVI) has only been…