Non-retail pooled funds

Available vehicles

What are the main legal vehicles used to set up a non-retail fund? How are they formed?

Open-ended non-retail funds may be set up as FCPs or as SICAVs. See question 12. Closed-ended non-retail funds may be set up as SICAFs (see question 12) or as LPs.

An LP is a partnership whose sole objective is collective investment. At least one member bears unlimited liability (general partner), while other members (limited partners) are liable only up to a specified amount (limited partner’s contribution). General partners must be companies limited by shares with their registered office in Switzerland. Limited partners must be qualified investors according to CISA (see question 27). An LP may only manage its own investments. An LP conducts investments in risk capital. The investments in companies or projects can take the form of equity capital, lending or mezzanine financing. Other permitted investments generally include construction, real estate and infrastructure projects as well as alternative investments.

Laws and regulations

What are the key laws and other sets of rules that govern non-retail funds?

See question 1.

Authorisation

Must non-retail funds be authorised or licensed to be established or marketed in your jurisdiction?

All domestic non-retail funds must be approved or authorised by FINMA. Foreign non-retail funds may not be approved for distribution.

Marketing

Who can market non-retail funds? To whom can they be marketed?

See question 7. Non-retail funds may exclusively be marketed to qualified investors.

Ownership restrictions

Do investor-protection rules restrict ownership in non-retail funds to certain classes of investor?

The circle of investors of non-retail funds is limited to the following qualified investors according to CISA and CISO:

  • regulated financial intermediaries (banks, securities dealers, fund management companies, asset managers of collective investment schemes and central banks);
  • regulated insurance companies;
  • public entities and pension funds with professional treasury operations;
  • companies with professional treasury operations;
  • high net worth individuals meeting certain criteria (ie, thresholds of liquid assets, minimum level of knowledge) and having elected in writing to be deemed qualified investors; and
  • investors who have concluded a written management agreement with a qualifying IAM or a regulated financial intermediary, provided that they have not declared in writing that they want to be treated as non-qualified investors.

According to Swiss legal doctrine and relevant circulars of FINMA, the professional treasury operations requirements are fulfilled when the institutional investor employs at least one qualified person with experience in financial matters to permanently manage its liquid financial assets within the framework of professional cash or treasury management.

IAMs themselves are deemed qualified investors if they fulfil certain requirements (see question 8) and confirm in writing that they will only use the information obtained for clients who are qualified investors.

The specific fund regulations may provide for additional restrictions in individual cases (eg, for tax exemption reasons).

Managers and operators

Are there any special requirements that apply to managers or operators of non-retail funds?

The requirements that apply to managers or operators of non-retail funds are essentially the same as for retail funds. See questions 3 and 16. In the case of single investor funds (for regulated insurance institutions, public entities or pension schemes with professional treasury operations), the fund management company of an FCP or SICAV may delegate the investment decisions to the single investor. FINMA may exempt them from the duty to subject themselves to supervision for asset managers of collective investment schemes.

Tax treatment

What is the tax treatment of non-retail funds? Are any exemptions available?

See question 18.

Asset protection

Must the portfolio of assets of a non-retail fund be held by a separate local custodian? What regulations are in place to protect the fund’s assets?

See question 19.

In the case of a SICAV that is exclusively open to qualified investors, FINMA may, under certain conditions, grant exemptions to appoint a custodian bank.

LPs do not have to deposit the fund’s assets with a Swiss custodian bank or any other regulated institution. Therefore, the assets are generally not subject to special treatment in the event of the fund’s bankruptcy. However, if the assets are held with a Swiss bank within the meaning of the BA, the assets deposited with that bank are, in the case of the bank’s bankruptcy, subject to the same rules as open-ended funds.

Governance

What are the main governance requirements for a non-retail fund formed in your jurisdiction?

See question 20.

Reporting

What are the periodic reporting requirements for non-retail funds?

Generally, the same rules apply as for retail funds. See question 21.

FINMA may, upon request, fully or partially exempt non-retail funds from certain reporting requirements under CISA (eg, the duty to publish a semi-annual report or to publish prices). Exemptions must be established in the fund regulations.