SWITZERLAND Law and Practice Contributed by: Jürg Frick, Luca Dal Molin, Philippe Gobet and Carla Bertossa, Homburger
2.9 Rules Concerning Service Providers Swiss law provides for a number of rules regarding the choice and location of other service providers, includ - ing rules for non-local service providers: • Administrator: Swiss AIFs and their managers may delegate fund administration tasks (such as book - keeping and other support services) to a qualified third party under the general provisions governing outsourcing (see 3.7 Outsourcing of Investment Functions/Business Operations ). Special require - ments may apply to the delegation to an admin - istrator abroad. For example, Swiss managers of collective assets, fund management companies and SICAVs must expressly guarantee that they, their auditors and FINMA can exercise and enforce their inspection and audit rights when outsourcing abroad. • Custodian: Open-ended AIFs in the form of SICAVs must appoint a custodian, subject to an exemp - tion granted by FINMA, for example if the SICAV is open exclusively to qualified investors. In the case of FCPs, the custodian is a party to the fund contract. The custodian must be a Swiss bank (or a branch of a foreign bank) licensed and supervised under the Swiss Banking Act. FINMA may also allow AIFs to appoint a prime broker. • Auditor: Fund management companies, SICAVs, LPCIs, SICAFs and representatives of foreign AIFs must appoint an audit company licensed by the Federal Audit Oversight Authority to carry out an audit. The auditor acts as an extension of FINMA and reports to it on a regular basis. • Representative/paying agent: Foreign AIFs market - ing to retail investors in Switzerland or qualified investors in Switzerland who are high net worth individuals (HNWIs) or private investment struc - tures set up for them and who opted to be treated as professional clients under the FinSA must appoint a Swiss representative and a Swiss paying agent. The paying agent must be a licensed bank pursuant to the Swiss Banking Act. • Compliance officer: As part of the general duty to maintain an appropriate organisational structure, AIFs must ensure that they have a separate and appropriate compliance function covering all of their business activities. As a member of executive management, the chief compliance officer must
be resident in a place from which he or she can effectively perform his or her duties (see 2.8 Local/ Presence Requirements for Funds ). • Anti-money laundering unit: Financial intermedi - aries, including AIFs and their managers, must appoint one or more qualified persons to act as an internal anti-money laundering unit (see also 4.11 Anti-Money Laundering (AML) and Know Your Customer (KYC) Regime ). The financial intermedi - ary may designate competent external persons to act as an anti-money laundering unit under its responsibility if (i) it is not in a position to set up its own unit because of its size or organisation; or (ii) the establishment of such a unit would be dispro - portionate. • Client advisers: Natural persons who market AIFs in Switzerland, either in their own capacity or on behalf of a financial service provider (such as an AIF or its managers), must be registered in a reg - ister of client advisers. There is an exemption from the registration requirement for client advisers of foreign financial service providers that are subject to prudential supervision abroad, if the services they provide in Switzerland are exclusively for qualified investors. 2.10 Anticipated Changes for Funds New Federal Law on the Transparency of Legal Entities and the Identification of Beneficial Owners On 22 May 2024, the Swiss Federal Council submitted a dispatch to Parliament regarding a new federal law on the transparency of legal entities and the identifica - tion of beneficial owners. The draft legislation states that SICAVs, SICAFs and LPCIs will be subject to the new act and, if enacted, will be required to comply with new duties, including entering information on their beneficial owners in a new federal register. The parliamentary debate is expected to conclude in the autumn session of 2025. However, it is not yet clear when the draft legislation will be enacted. Possibility of a Swiss ELTIF AMAS reports that efforts are being made to repli - cate the European ELTIF concept autonomously in the Swiss CISA. Consequently, such a concept could possibly be part of a subsequent revision of the CISA. However, no corresponding draft law has yet been published, so this possibility is still very vague.
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