Angebot kollektiver Kapitalanlagen vs. Vertrieb unter altem Recht

The entry into force of the Financial Services Act (FinSA) on 1 January 2020 marked a fundamental reorganization of Swiss financial market supervisory law. The introduction of cross-sectoral rules governing the provision of financial services on a professional basis left its mark on the Collective Investment Schemes Act (CISA) and the Collective Investment Schemes Ordinance (CISO) in particular. The central regulatory notion of “distribution” under the old CISA was notably repealed. Distribution activity (now in the de facto sense) must subsequently be classified within the new regulatory framework. Paramount is the question of how distribution falls under the scope of the key regulatory definitions of the FinSA and Financial Services Ordinance (FinSO): offer, financial service and advertisement. This article examines this question and the ensuing legal consequences, focusing in particular on three unresolved aspects.