The Federal Act on Financial Services (FinSA), the Federal Act on Financial Institutions (FinIA) and their implementing ordinances (FinSO and FinIO) as well as the revised Federal Act on Collective Investment Schemes (CISA) and its revised implementing Ordinance (CISO) entered into force on 1 January 2020.
FinSA and FinIA will create uniform competitive conditions for financial intermediaries and improve client protection. The FinSA contains code of conduct provisions with financial service providers must comply vis-à-vis their clients. The FinIA essentially harmonises the authorization rules for financial service providers.
LEGAL REPRESENTATION STILL REQUIRED, WHY?
The new law has an impact on foreign funds aimed at qualified investors in so far as it is no longer a requirement that such funds appoint a Swiss legal representative, as long as the fund is only distributed to regulated professional investors such as banks, security dealers and regulated asset managers.
EXCEPTIONS TO THE RULE: LEGAL REPRESENTATIVE STILL REQUIRED
In the cases outlined below, funds still require the appointment of a Swiss legal representative if:
- The fund is also sold to HNWI or already has investors qualified as such; or
- The fund is also distributed to family offices; or
- The fund is also distributed to private clients, who chose to opt-out and be classified as professional clients.
In order for the fund manager to be able to continue to reach out to all qualified investors OpenFunds highly recommends that their legal representative services are retained.
Further observations have been made that big banks and other institutional investors like pension funds in Switzerland only accept funds in their portfolios if they are already legally represented in Switzerland, mainly because they do not want to perform the first level due diligence on the funds themselves.