Note
Below is an extract under the title “Qualified investor in the nutshell”. For the sake of good order, it should also be pointed out that the following revised and translated short article is intended solely to present the then factual and legal situation in 2011. For a more in-depth overview, please refer to the dissertation: “Die vermögende Privatperson als qualifizierter Anleger im Kollektivanlagenrecht”, and the corresponding update, published by Tectum Verlag in 2014.
Summary and conclusion
The dissertation examines whether the legislator has designed the possibility of declaring the wealthy private individual as a qualified investor within the meaning of Art. 10 para. 3 lit. e CISA in conjunction with Art. 6 para. 1 CISO as a legal presumption or as fiction. Under current law, high net worth individuals define themselves as qualified investors according to purely monetary criteria.
The fiction assumed by h. L. of the involvement of qualified advisors by high net worth individuals could not be supported by the legal theory. Furthermore, this thesis also provides evidence that no corresponding legal presumption can be made. The non-applicability of the presumption of conformity means that the presumption basis must also be declared inapplicable.
Furthermore, it is examined whether the regulation issued within the scope of the autonomous enforcement procedure complies with European law. Last but not least, it is the subject of the study whether the statutory regulation satisfies the purpose article according to Art. 1 CISA and thus the protection of investors as well as the guarantee of transparency and functionality of the market.
As a scientific approach, this thesis is based on the applied legal theory according to Mastronardi. This is supplemented by comparative law and the implementation of the penetration of European law in the context of autonomous enforcement. In particular, the systematic and teleological interpretative elements of the methodology and the economic analysis of law provide interesting indications of the spirit underlying the law.
The systematic element of interpretation clearly shows, in the context of inter- and intra-legal consideration, that the planned partial revision of the Collective Investment Schemes Act, which also affects parts of the classification as qualified investors, was clearly influenced by the events of Madoff and Lehman, which had their effects right up to the FINMA position paper on distribution rules.
From the comments on the historical element of interpretation, it can be seen, among other things, that on the one hand, the legislation was passed under great time pressure and, on the other hand, neither the tautological nor the financial market theoretical or supervisory justification of the FDF can suffice for the formulation of Art. 6 para. 1 CISO.
It is clearly shown in this dissertation that the legal provisions enacted within the framework of autonomous enforcement not only strive for European compatibility in legislation, but also need to be treated in a European-compatible manner in their interpretation and application.
Under the microeconomic approach, the ÖAR is used as an introduction to look at NIÖ. Here, the information asymmetry and the resulting contractual problems are of particular interest. In the context of the explanations on Behavioral Finance, documents dating back to 1883 can be used to show the extent to which the inexperienced and sometimes reckless investor needs to be protected from the better informed and structured provider side of financial products. This can be done by means of an article of law that sanctions the offence of inducing speculation. However, Art. 158 StGB (old version), which implemented this concern, was repealed in 1994. The same result can also be achieved by constantly increasing regulation of the financial markets at every level of direct or indirect client contact (point of sale), as set out in the FINMA position paper on distribution rules. The discussion of the personal determinants in the decision-making process of investors shows on the basis of a recent study that the knowledge of the population about funds has never been as low as in 2011 in a comparison of the years 2007-2011. The personal determinants also serve to illustrate the divergent requirements of average and professional investors for key information on specific financial investments. The situational determinants show that the fund market is organized according to the division of labour, which inevitably leads to an asymmetrical distribution of information. This phenomenon is illustrated, among other things, by the presentation of monetary benefits in the investment fund business.
Furthermore, the data on capital market utilization and the development of the high net worth individuals in Switzerland and in a global comparison illustrate on the one hand the volume of financial products in question and on the other hand the development of demand on the demand side in terms of numbers and volume, considering the different definitions of the high net worth individual. Current figures show that 2/3 of all investment funds traded in Switzerland are reserved for qualified investors.
A legal comparison of the concrete implementation of Art. 6 para. 1 CISO with the implementation of the relevant EU directives in Germany, Austria, Liechtenstein and Luxembourg shows that Switzerland has only partially implemented the European legal requirements. In fact, the relevant MiFID directives were not implemented adequately within the framework of autonomous enforcement.
The comparative legal analysis shows possible solutions that are in line with the requirements of European law. Based on the general consideration of the relevant directives and the concrete implementation in the countries under consideration, possible solutions are presented and discussed. A solution approach must include not only the monetary criteria but also the cognitive criteria of classification. Only in this way can the findings of the New Institutional Economics be considered in addition to the requirements of European law and differentiated investor protection be guaranteed.
A declaration of the high net worth individual, as provided for in Art. 10 para. 3 lit. e CISA in conjunction with Art. 6 para. 1 CISO according to purely monetary criteria, therefore does not stand up to legal theory and comparative law considerations.
Finally, the conclusion is drawn and the catalogue of requirements is presented on the basis of first and second degree monetary and cognitive criteria. As a proposal de lege ferenda, a formulation of Art. 6 para. 1 CISO that is compatible with Europe is made. As an aid to implementation in practice, a European-compatible implementation of a form for the declaration of high net worth individuals as qualified investors is also proposed, considering Swiss characteristics.
