Under Swiss law, the distribution of an investment fund requires authorization as soon as the fund is publicly offered to investors in Switzerland through public solicitation. The term public solicitation has been the subject of wide interpretation. Consequently, the Federal Banking Commission (FBC) has stated in a circular in effect since July 1 2003 that solicitation is considered to be public if addressed to more than 20 individuals within a business year.
Two important exemptions apply: (1) Foreign investment funds are exempt if those funds are offered only to institutional investors with professional financial management. (2) Banks, security dealers or professional portfolio managers are exempt if, based upon a written portfolio management agreement (which meets the standards of the Swiss Banking Association), they underwrite shares in investment funds only for the accounts of their clients.
The FBC specifies that the information published on any website is considered public solicitation if it directly or indirectly offers an investment fund in Switzerland. It is thus not just a matter of whether the investment fund shares can be purchased online. However, it will not be considered public solicitation if a disclaimer in the website expressly excludes any offering in Switzerland, provided the website's visitor cannot evade reading the disclaimer. This can be ensured by the disclaimer appearing automatically and the visitors having to confirm that they have taken note of it.
These clarifications on public solicitation and disclaimers in websites are relevant under Swiss investment fund regulations and also guide the interpretation of similar terms under Swiss banking and capital markets laws.