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Reverse Solicitation in Switzerland
Reverse solicitation designates the circumstances in which a
financial intermediary provides certain services to a client upon
the latter s request, without prior solicitation by the
financial intermediary. Where the financial intermediary can rely
on reverse solicitation, it generally avoids licensing requirements
and regulatory duties.
The concept is not specific to Swiss law. For instance, EU law
defines reverse solicitation in article 42 of MiFID II (EU
Directive3 2014/65 of 15 May 2014) as a situation where a client initiates at its own exclusive initiative the provision
of an investment service or activity by a financial intermediary.
According to the European Securities and Markets Authority (ESMA),
Cross-border distribution of funds to investors in Switzerland continues to be subject to debate and, unfortunately, uncertainty. Even though for the time being, it remains unclear whether every fund offering automatically qualifies as a financial service under Swiss law or not, the latest decision of the Swiss Parliament to introduce alleviations to the strict requirement for financial service providers to be affiliated with an ombudsman (the Ombudsman) shows a tendency into the right direction, which is to avoid unnecessary overregulation.
The aim of this article is to address the following two questions: first, is a cross-border fund offering in any case a financial service in the sense of the new Swiss Financial Services Act (FinSA), and, second, should this be the case, what Swiss law regulatory requirements would such an offering have to comply with.