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8.

Foreign collective investment schemes

8.1 Basic structure

Representative of foreign collective investment schemes

Foreign Collective Investment Schemes Subject to CISA:

Basic Structure

Tafel 33-3

Paying agent

Company law collective investment scheme or fund management company Investor Custodian bank

agreement Custodian bank

Switzerland R ep re sent at iv e ag re em en

t Paying agency agreement

Distribution approval Authorization

21

Foreign countries

Chart 22: Foreign collective investment schemes: Basic structure

A foreign collective investment scheme that is distributed in or from Switzerland by public

advertising requires the approval for the relevant documents of the Swiss supervisory au-

thority (Art. 120 CISA).

The approval for distribution is only granted by the supervisory authority if the foreign fund

management company (for contractual funds) or the company law collective investment

scheme, respectively, has entered into a representative agreement with a representative who

is domiciled in Switzerland (Art 123 et seq. CISA).

The foreign fund management company or the company law collective investment scheme

must additionally appoint a Swiss bank as paying agent and enter into a corresponding pay-

ing agency agreement (Art. 121 CISA).

8.2 Approval obligation and approval qualifications

Foreign collective investment schemes:

Approval obligation and approval qualifications in accordance with Art. 120 CISA

Subject to CISA

Is it a foreign open-ended collective investment scheme pursuant to Art. 119 Para. 1 CISA

or a

foreign closed-ended collective investment scheme pursuant to Art. 119 Para. 2 CISA?

Public advertising permitted

Approval obligation

Is there an intention to publicly advertise in or from Switzerland?

yes

Approval qualifications

Is the foreign collective investment scheme subject to

public supervision protecting the investor in the country of domicile?

Is the supervision equivalent with respect to

organization, investor rights and investment policy? Does the designation provide grounds neither

Is a representative and paying agent appointed for

those units distributed in Switzerland? yes yes yes yes Public advertising not permitted no no no _{permitted without} Distribution

public advertising yes

Distribution approval

22

for confusion nor deception?

Chart 23: Foreign collective investment schemes: Approval obligation and approval

qualifications

8. Foreign collective investment schemes

The basis for determining whether a foreign collective investment scheme is subject to CISA

is stated in Art. 2 Para. 4 CISA, whereby foreign collective investment schemes for which

public advertising is done in or from Switzerland are subject to the relevant provisions of

CISA regardless of their legal status.

Two steps are required to determine whether a foreign investment vehicle can be distri-

buted using public advertising in or from Switzerland. The first step is to determine whether

the foreign investment vehicle falls within the definition of a foreign collective investment

scheme in accordance with Art. 119 CISA. If this is the case, there is the obligation to obtain

approval in accordance with CISA. The supervisory authority will only grant approval if the

foreign collective investment scheme meets the conditions for approvability. After it has

been determined that it is a foreign collective investment scheme in accordance with CISA,

it is necessary to determine in a second step whether the investment vehicle can also be

approved in Switzerland.

Art. 119 CISA sets out which investment vehicles are deemed to be foreign collective invest-

ment schemes pursuant to CISA. The definition of foreign collective investment schemes

includes both open-ended and closed-ended collective investment schemes.

Both the contractual forms as well as companies with an open-ended structure are deemed

to be foreign open-ended collective investment schemes. The contractual forms include as-

sets that are accumulated on the basis of a fund contract and are managed by a fund man-

agement company with its registered office and main administrative office abroad as well

as other agreements with a similar effect for the purpose of collective capital investment

(Art. 119 Para. 1 lit. a CISA). Furthermore, along with companies, also included are assets

with a nature similar to an entity with registered office and main administrative office abroad

whose object is collective capital investment and whose investors have a legal right with

regard to the company itself, or with regard to a closely related company, to the redemption

of their units at the net asset value (Art. 119 Para. 1 lit. b CISA).

Companies with a closed-ended structure are deemed to be foreign closed-ended collective

investment schemes. These include companies and schemes with their registered office and

main administrative office abroad whose object is collective capital investment and whose

investors have no legal right with regard to the company itself, or with regard to a closely

related company, to the redemption of their units at the net asset value (Art. 119 Para. 2

CISA). Foreign SICAFs and foreign limited partnerships are deemed to be companies in this

sense.

All investment vehicles that are to be qualified as foreign collective investment schemes in

accordance with Art. 119 CISA are thus subject to the obligation to obtain approval in ac-

cordance with CISA if their units are distributed by public advertising in or from Switzerland

(Art. 120 Para. 1 CISA).

tors in the country of domicile of the fund management company or the investment scheme

company (Art. 120 Para. 2 lit. a CISA). The approval is only granted if the fund management

company or the company as regards organization, investor rights and investment policy

are equivalent to the provisions of CISA (Art. 120 Para. 2 lit. b CISA). The foreign collective

investment scheme must carry a designation that does not provide grounds for confusion

or deception (Art. 120 Para. 2 lit. c CISA). The designation must be chosen in a manner

in which the intended investment policy is consistent with the investment policy actually

pursued.

Finally, a representative (Art. 123 et seq. CISA) and a paying agent (Art. 121 CISA) in Swit-

zerland must be appointed for units distributed in Switzerland of a foreign collective invest-

ment scheme (cf. chart 22

16

_).

In document Tecnología Diseño de Estructuras Metálicas Secundarias Generales (página 127-169)