CZECH REPUBLIC Law and Practice Contributed by: Ondřej Mikula, Jan Šovar and Markéta Klabouchová, FINREG PARTNERS
Investment Services Specific Reverse Solicitation On the other hand, there is a reverse solicitation regime that explicitly arises from the provisions of relevant regulation (such as MiFID II). It there - fore does not apply to all services, but only in relation to investment services and marketing of investment funds. Under the investment services specific reverse solicitation regime, where an entity established outside the Czech Republic (offshore) provides services at the own exclusive initiative of a per - son established in the jurisdiction, the services should not be deemed as provided in the juris - diction, provided that the client’s approach is unsolicited (ie, there has been no marketing tar - geted at the market in the Czech Republic). The following conditions must be satisfied. • The response must be limited to the licens - able activities covered by the request. • Each transaction must be preceded by an unsolicited request. • The relevant services/products must be offered and provided from offshore (on a reach-in basis, ie, interacting with the client from outside the jurisdiction, and fly-in basis, ie, where an employee of the offshore entity has flown into the jurisdiction and interacts with the client while in the jurisdiction). • No contract must be signed by the offshore non-licensed entity in the Czech Republic (however, the client may sign in the jurisdic - tion before the offshore non-licensed entity signs from outside the jurisdiction). • A third-party referral will not qualify as an unsolicited request. • It is recommended that detailed records of any unsolicited requests be retained.
receives contractual performance for which pay - ment is due. Where a relevant licensable activity is provided in the simultaneous physical pres - ence of two contracting parties or their repre - sentatives (ie, the relevant provider and the client are located in the Czech Republic), it is provided in that location (ie, the Czech Republic). The relevant licensable activities are deemed to be provided outside the Czech Republic, if: • the performance is provided at a distance, but the beneficiary of the relevant licensable activity actively sought out the foreign provid - er in the other country (the activity is provided at the own exclusive initiative of a person established in the jurisdiction who initiated the contact with no solicitation carried out by the relevant provider); or • the contract was entered into in the other country, and it must have been clear to the client that Czech Republic law would not apply (the legal regime of the contract is irrelevant). In the case of a relevant licensable activity provided at a distance, the activity is provided where it is “offered in a targeted manner” (ie, active marketing targeted at Czech Republic cli - ents has been applied) and where it can simulta - neously be used. This is an exception from the reverse solicitation regime mentioned above. It means that the reverse solicitation regime will not apply if the relevant licensable activity was marketed in any way in the Czech Republic. Fur - thermore, negotiation of the terms of a transac - tion/signing documentation in the Czech Repub - lic will also prevent the application of the reverse solicitation regime.
183 CHAMBERS.COM
Powered by FlippingBook