SWITZERLAND Law and Practice Contributed by: Jürg Frick, Luca Dal Molin, Philippe Gobet and Carla Bertossa, Homburger
trol and instruction rights of the fund management company. • The delegation needs to be notified to FINMA and may require FINMA approval (depending on the significance of the delegation). • The appointed third party must possess the neces - sary skills, knowledge and experience and have the required authorisations. • The fund management company must possess the necessary human resources and expertise to select, instruct, monitor the appointed third party and control the risks associated with the outsourc - ing. • The fund management company must ensure that it has the necessary rights to issue instructions or to exercise control over the third party. • The fund management company has to lay down in its organisational principles the tasks delegated as well as details of the possibility of sub-delegation. • The fund management company must ensure that it, its internal auditors, the audit firm, the super - visory organisation and FINMA can inspect and review the delegated task. • Transparency requirements also exist, such as dis - closing the third parties to which tasks have been delegated in the fund prospectus. If third parties are entrusted with administrative and decision- making tasks, their expertise must also be dis - closed in the fund prospectus. • When delegating tasks to an agent, it must be ensured that the delegation does not result in a conflict of interest between the fund management company and the agent that could be to the detri - ment of investors. Similar rules apply for persons with a FINMA licence as managers of collective assets. In particular, a man - ager of collective assets must carry out the portfolio and risk management of at least one collective invest - ment scheme or the assets of at least one occupa - tional pension scheme itself. 3.8 Local Substance Requirements The fund management company must be a company limited by shares that has its registered office and head office in Switzerland. It must effectively be man - aged from Switzerland. The head office of the fund
management company is deemed to be in Switzerland if the following conditions are met: • The non-transferable and inalienable duties of the board of directors in accordance with the Swiss Code of Obligations are performed in Switzerland; • For each of the investment funds managed by the fund management company, at a minimum the fol - lowing tasks are performed in Switzerland: (a) decisions on the issue of units; (b) decisions on investment policy and on the valuation of investments; (c) valuation of investments; (d) determination of issue and redemption prices; (e) determination of distributions of profit; (f) determination of the content of the prospec - tus and the key information document, of the annual or the semi-annual report, as well as of further publications intended for investors; and (g) keeping of accounts. Furthermore, the fund management company must be able to be represented by one person who is resi - dent in Switzerland. This person must be a member of the board of directors or an executive officer. In addition, the persons entrusted with the management of the fund management company or the manage - ment of the FINMA-licensed manager of collective assets must be resident in a place from which they can effectively exercise such management. This gen - erally means that the members of management must live within commuting distance of the head office (see also 2.8 Local/Presence Requirements for Funds ). 3.9 Change of Control In Switzerland, mergers, sales, restructurings, or simi - lar transactions involving a fund management com - pany or its parent company are subject to a com - prehensive regulatory framework designed to protect investors and ensure the stability of the financial system. Below are the key regulatory and investor approval requirements that must be considered. Regulatory Approval FINMA approval Notification and approval Fund management companies must notify FINMA of any changes in the facts on which its authorisa -
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