1. Distribution of AIFs
Switzerland is not a Member State of the EU and is thus not subject to the AIFMD and its respective rules. Switzerland has its own
- set of rules, laid down in the Financial Services Act (“FinSA”, Finanzdienstleistungsgesetz) and the corresponding ordinance (“FinSO”, Finanzdienstleistungsverordnung), as well as the Collective Investment Scheme Act (“CISA”, Kollektivanlagegesetz) and the corresponding ordinance (“CISO”, Kollektivanlageverordnung); and
- terminology related to funds or collective investment schemes (“CIS”), the term commonly used in Switzerland for any type of fund, as well as related to the terms retail, professional, institutional and non-qualified and qualified investors.
The statutory regulation on distribution of CIS in Switzerland covers the product (including passporting, cf. sections 2 and 3) and the distributor (section 4). In addition, there are rules on the documentation to be used.
2. Product Level
As a matter of principle, any foreign CIS, including AIFs and others, may be marketed and sold in Switzerland. The law provides for three different distribution (selling) options, namely:
- Distribution to the public (non-qualified / retail investors) may only occur if, among other requirements, the foreign CIS is registered for passporting with the Swiss Financial Market Supervisory Authority (“FINMA”) and if the respective marketing rules are complied with.
- Without passporting (without FINMA registration), foreign CIS may be distributedto high-net-worth retail clients and private investment structures created for them having declared an "opting out" if, among other requirements, the fund or the investment fund manager has appointed a Swiss representative and a Swiss paying agent and if the respective marketing rules are complied with.
- Without passporting and without such appointments, foreign CIS may be distributed to all other qualified investors, as defined by Swiss law, if the respective marketing rules are complied with.
Again as a matter of principle, any foreign CIS may be passported into Switzerland (by way of a registration with FINMA). However, for the passporting of foreign CIS Swiss law requires, among other requirements, that:
- such CIS is domiciled in a jurisdiction which provides for the following:
- Adequate supervision of the CIS, the asset manager and the custodian;
- A regulatory framework which requires sufficient organisation of the CIS, the asset manager and the custodian;
- Adequate investor protection, comparable to the framework applicable to Swiss CIS in Switzerland; and
- A bilateral agreement on exchange of information between FINMA and the supervisory authority at the domicile of the CIS, the CIS manager and the custodian;
- the CIS appoints a representative and a paying agent in Switzerland; and
- the designation of the CIS is not misleading or deceptive.
Currently, approx. 8200 CIS are passported, and out of those, some 48 were NON-UCITS, which gives evidence that it is very burdensome (if not impossible) to have AIFs (which are NON-UCITS) passported. Accordingly, distribution of AIFs to non-qualified / retail investors is, from a practical perspective, usually not a viable option.
4. Distributor Level
As the marketing of CIS is considered a financial service according to FinSA, distributors of CIS in Switzerland must respect further rules (in addition to the rules on the product level), which provide, in particular, for the following duties:
- Duty to register client advisers in a FINMA approved advisers' register;
- Duty to affiliate with an ombudsman's office;
- Duty to classify investors according to Swiss law (i.e. retail clients, professional clients or institutional clients);
- Duty to comply with certain rules of conduct;
- Duty to comply with certain organizational requirements.
There are certain exceptions from or facilitations to these rules if CIS are marketed to professional or institutional clients only.
FinSA, providing for the rules, entered into effect on 1 January 2020. There are, however, various transitional periods, starting from six months up to two years. As a consequence, most of the rules must not be adhered to immediately, at least if distributors of CIS in Switzerland continue to respect the regime applicable before the FinSA entered into effect.
FINMA charges a registration (passporting) fee of between CHF 2,000 and CHF 20,000 and in addition a periodic fee of CHF 750 (plus CHF 750 for each sub-fund) per annum and fees for each required filing. Such fees will not apply if distribution is limited to qualified investors and / or prudentially supervised financial intermediaries which requires no passporting and is, from a practical perspective, usually the only option to distribute AIFs in Switzerland.
In addition, the Swiss representative and the Swiss paying agent will charge fees which are subject to negotiation. Possible discounts are available depending on the number of CIS serviced by the representative and paying agent for one manager.