Page 11 - ASSET MANAGER 9 (EN)

ASSET MANAGER • NO. 9/2018
OUTLOOK OF THE VQF • 11
ket are now also to be better protected, especially when purchasing services aimed at investing in financial prod- ucts. Even though many of these obligations are already reflected in contract law, FIDLEG creates the prerequisites for obliging financial service providers to comply with cer- tain rules with respect to the customer under supervisory law. FINIG, as the sister law of FIDLEG, regulates supervi- sion, whereby client advisers, for example, are subject to FIDLEG rules but are not supervised under FINIG.
FIDLEG and FINIG
When assessing the obligations, a distinction must always be made between the obligations under FIDLEG and those under FINIG. FIDLEG has a wider range of applications than FINIG. The FIDLEG rules must be observed not only by financial service providers, but also by client advisers and issuers and providers of financial instruments. FINIG, on the other hand, regulates the supervision of the uVV, trustees and other financial institutions.
Obligations according to FIDLEG
From an uVV perspective, the FIDLEG primarily provides for binding regulatory obligations that are already familiar from civil law but were not part of financial market super- vision. In addition to the rules of conduct, which feel quite familiar with the previous industry standards in asset man- agement, the obligation to provide adequate training when providing advice is also introduced. FIDLEG also regulates the provisions in the organisation and assigns responsibili- ty for its employees to a financial services provider.
In addition, the FIDLEG introduces a register of advisers in which all advisers must be registered if they are either self-employed or do not work for an institution already sub- ject to FINMA supervision. In contrast to the uVV, this pri- marily concerns those who limit themselves to investment advice without a power of attorney.
Finally, FIDLEG also introduces the Institute of the Om- budsman's Office, which is to settle disputes between fi- nancial service providers and their clients before an action is brought. Financial service providers are obliged to join the ombudsman and will have to finance them.
Obligations under FINIG
FINIG, on the other hand, is responsible for regulating the supervision of asset managers, trustees, asset managers of collective assets, fund management companies and in- vestment firms.
FINMA is now responsible for the state's holistic supervi- sion of independent asset managers. This means that FIN- MA is now the authorising authority, which also sanctions infringements of the rules and, if necessary, withdraws the authorisation. However, in order to ensure the most prag- matic supervision possible, ongoing supervision is not car- ried out by FINMA itself. This is assigned to supervisory organisations organised under private law, the so-called AO. It is currently becoming apparent that in addition to the VQF, the VSV and probably two other self-regulatory organisations will also apply for authorisation from FINMA. For example, 3 to 4 supervisory organisations can be ex- pected to ensure pragmatic supervision in a competitive market. The AO will also support the uVV, which it will su- pervise in the future, in the approval process; to what ex- tent also depends on the willingness of FINMA. At the very least, it would appear that SRO-regulated uVV already op- erating benefit from a pragmatic approval process, which would be entirely appropriate. It is important to know that a uVV regulated under the new regime no longer needs SRO membership.
At the same time, the uVV is also given further, size-de- pendent regulations as to how it has to staff and set up its company. For example, the requirements for the training and professional experience of management are regulated and regulations are drawn up on minimum capitalisation or insurance cover, their own funds, and the IKS. In order to know these relevant details, we have to wait for the regu- lation, which will appear in the draft at the end of October 2018.
How dark is the future?
Even if more regulation is by no means always better, the FIDLEG/FINIG package in its current form manages the balancing act of homogenising the supervisory require- ments for financial service providers, but still maintaining a meaningful gradation. This idea must not be lost in the reg- ulation process. If this is successful, uVV will receive a reg- ulation that can strengthen its reputation and thus the fi- nancial centre. It seems that the uVV do not yet belong on the list of species threatened with extinction: Because if the cards that have now been distributed are cleverly played, the uVV sector can certainly emerge stronger from the turbulent times of the past years.
FinControl Suisse AG - At FinControl Suisse AG, the VQF is currently pushing ahead with the establishment of an AO. More on this at www.fincontrol.ch