FINMA Opens Consultation on Collective Investment Schemes Bankruptcy Ordinance

On 10 July 2012, the Swiss Financial Market Supervisory Authority FINMA opened the consultation process on the Collective Investment Schemes Bankruptcy Ordinance (CISBO-FINMA). Since 1 September 2011 FINMA has been in charge for the bankruptcy over certain institutions subject to the Swiss Collective Investment Schemes Act (CISA), such as fund management companies, investment companies with variable capital (SICAVs), limited partnerships for collective investments and investment companies with fixed capital (SICAFs). As the CISA provides only a rudimentary framework for bankruptcy proceedings and confers FINMA the competence to issue implementing rules, FINMA has made use of this competence by drafting the CISBO-FINMA. The consultation on the CISBO-FINMA ended on 22 August 2012.

The present draft of the CISBO-FINMA provides for certain implementing rules that will equally apply to all types of institutions mentioned under the preceding paragraph as well as some institute-specific rules. For SICAVs, for example, the interaction between the various sub-funds requires institute-specific regulation, whereas in case of a bankruptcy over a fund management company, the segregation of the investment fund assets is subject to specific regulation. Compared with the Swiss Banking Act, which allows FINMA to issue implementing provisions for both, bankruptcies and restructurings, the CISA and consequently the CISBO-FINMA are restricted to bankruptcy rules only. The content and entry into force of the CISBO-FINMA shall to be aligned with the current revision of the CISA.

Reference: CapLaw-2012-42