SWITZERLAND Law and Practice Contributed by: Jürg Frick, Luca Dal Molin, Philippe Gobet and Carla Bertossa, Homburger
• HNWIs or private investment structures set up for them who opted to be treated as professional clients under the FinSA. Retail investors for whom a person provides portfolio management or investment advice under an ongoing portfolio management or investment advice agree - ment are also considered qualified investors, provided that such person is (i) a supervised financial interme - diary, which comprises banks, securities firms, fund management companies, managers of collective assets and collective investment schemes (including AIFs); (ii) a foreign financial intermediary subject to prudential supervision; or (iii) a supervised insurance company. Restriction of Investors’ Eligibility Local investors may invest in Swiss AIFs for which they are eligible, depending on their qualification under CISA and FinSA. Open-ended AIFs are generally open to all investors. However, the fund regulations may restrict investor eligibility to qualified investors only, in particular in order to benefit from exemptions from certain provisions of the CISA. Likewise, only qualified investors are permitted to invest in AIFs established as LPCIs or L-QIFs. 4.4 Rules Concerning Marketing of Alternative Funds Swiss AIFs The marketing of AIFs from or into Switzerland is not subject to regulatory approval or authorisation. How - ever, it may qualify as a financial service under FinSA and must therefore comply with the rules on the provi - sion of financial services contained therein, including rules on conduct (eg, duty to inform, assessment of appropriateness and suitability of financial services, documentation and accountability), organisational measures, the duty to register client advisers in a register of advisers and the duty of financial service providers to affiliate with an ombudsman’s office. Furthermore, AIFs must produce and publish a pro - spectus when making a public offer or when admitting their units to trading on a trading venue in Switzer - land (see 2.3 Disclosure/Reporting Requirements ). The prospectus and any amendments thereto must be filed with FINMA without delay. In contrast, other
marketing material (including the KID) does not require regulatory filing or approval. Advertising for AIFs must be clearly labelled as such. It must also refer to the relevant prospectus and KID (and indicate where they can be obtained) and be con - sistent with the detailed information contained therein. Advertising material, the prospectus and the KID as well as the fund name of “other funds for alternative investments” must contain a notice referencing the special risks involved in alternative investments (warn - ing clause). This warning clause requires the approval of FINMA and must be placed on the first page of the fund regulations, the prospectus and the KID. Similarly, if an L-QIF engages in alternative invest - ments, reference must be made to the particular risks associated with these investments in the advertising material, as well as in the designation and the fund regulations. Foreign AIFs Foreign AIFs may be offered (exclusively) to qualified investors in Switzerland without regulatory approval or authorisation (see also 2.2 Regulatory Regime for Funds ). Accordingly, foreign AIFs offered to retail investors in Switzerland must obtain prior approval from FINMA. In any case, foreign AIFs must generally adhere to the marketing and advertising rules of Swiss law described above. 4.5 High Net Worth or Retail Investors Typically, AIFs are more targeted at qualified investors. In this context, it is noteworthy that HNWIs who opt to be treated as professional clients under the FinSA, and retail investors with a portfolio management or investment advice agreement with a financial inter - mediary, are also considered qualified investors (see 4.1 Types of Investors in Alternative Funds ). To pro - vide access to alternative investment strategies to a broader group of HNWIs or retail investors, structured products or certificates may sometimes be used. 4.6 Private Placements Swiss AIFs are not eligible for any private placement exemption because they are already subject to FIN - MA authorisation as a result of their establishment. Foreign AIFs, on the other hand, are only subject to FINMA authorisation if they are offered or marketed
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