SWITZERLAND Law and Practice Contributed by: Nicolas Béguin, Joseph Merhai, Thomas Pasquier and Benjamin Vignieu, Aegis
direct or indirect right to redeem their units at net asset value, at the expense of the collective assets (Article 9, para 2 CISA). Swiss alternative investment funds (AIFs) can be structured in either of these two forms, but the use of Swiss CIS for alternative funds is relatively limited in practice. Open-Ended Funds Swiss open-ended CIS take the form of either a contractual investment fund or an investment company with variable capital (SICAV) (Article 8, para 1 CISA). Open-ended collective investments are further divided into different categories according to their investment policy: • securities funds (Article 55 et seq CISA); • real estate funds (Article 58 et seq CISA); • other funds for traditional investments (Article 70 CISA); and • other funds for alternative investments (Article 71 CISA). This last category is logically the most relevant for Swiss AIF. Contractual investment funds Contractual investment funds are based on a contract between the investors, the fund man - agement company and the custodian bank (Arti - cle 25 CISA). Under the terms of this contract, which is referred to as an investment fund con - tract, the fund management company manages the collective assets independently and in its own name. The fund’s investors participate in the fund in proportion to the units they have acquired (Arti - cle 25, para 1 CISA); the custodian bank essen -
tially safeguards the collective assets, issues and redeems fund units and manages payment transactions (Article 73, para 1 CISA). The fund contract must comply with certain legal requirements (Article 26, para 3 CISA and Article 35a et seq CISO) and must be submitted to the Swiss Financial Market Supervisory Authority (FINMA) for approval (Article 26, para 1 CISA). SICAV The SICAV is an alternative to the contractual investment fund, whose structure is based on Luxembourg SICAV legislation. Like the contrac - tual investment fund, the SICAV is an open-end - ed CIS, since it allows investors to request the redemption of their units and their repayment in cash at any time (Article 78, para 2 CISA). How - ever, unlike the contractual investment fund, the SICAV is a public limited company governed by the provisions of the Swiss Code of Obligations (CO), subject to the specific provisions of CISA. Any person recognised by the SICAV as a share - holder may exercise voting rights, with each share in principle entitling the holder to one vote (Article 47, para 1 CISA). However, the decision to dissolve the SICAV and its sub-funds rests solely with the entrepreneur shareholders (Article 41, para 2 CISA). Investors also have a right to information (Article 84, paras 1 and 2 CISA) and may apply to the court at the registered office of the management company for the auditing company or another expert to examine the facts requiring verification and submit a report (Article 84, para 3 CISA). Lastly, investors may bring an action for restitution if assets have been mis - appropriated or if pecuniary benefits have been unlawfully obtained at the expense of the SICAV (Article 85 CISA).
448 CHAMBERS.COM
Powered by FlippingBook