Umstrukturierung von kollektiven Kapitalanlagen

The issuance of the Swiss Federal Act on Collective Investment Schemes (CISA) in the year 2007 and the revision thereof in 2013 expanded the possibilities for restructuring of collective investment schemes and simplified the procedures. For instance, in article 95 the CISA contains a provision that deals in a non-conclusive way with the restructuring of open-ended collective investment schemes. As a novelty regulation, this provision allows for mergers not only of contractual funds but also of investment companies with variable capital (SICAV). Additionally, the transformation of an open-ended collective investment into another CISA legal form was also included into the catalogue of possible restructuring processes. Further, a SICAV still maintains the possibility for asset transfer according to article 69 ff. of the Federal Act on Merger, Demerger, Transformation and Transfer of Assets (MerA). However, not all open questions have been clarified. As long as the CISA does not contain restructuring provisions, as is the case with closed-ended collective investment schemes, generally the MerA and/or the Swiss Code of Obligations (CO) apply. The interplay of diverse, partly overlapping legislative bases leads to the emergence of unwanted gaps. Moreover, the partial revision of the CISA was not completely implemented at the ordinance level. Among others, the following issues have not been conclusively or clearly regulated: the permitted combinations of mergers, the merger procedure of the SICAV, the permitted restructurings, the transformation procedure as well as the application scope of the asset transfer for collective investment schemes according to the relevant merger regulations. Although these questions will be clarified in the following article through a systematic and teleological analysis of the relevant regulations, it is to be hoped that the gaps will be closed within the next CISA revision in order to guarantee comprehensive legal certainty.

Why Do Some International Institutions Contain Strong Dispute Settlement Provisions: New Evidence from Preferential Trade Agreements

To understand why some international institutions have stronger dispute settlement mechanisms (DSMs) than others, we investigate the dispute settlement provisions of nearly 600 preferential trade agreements (PTAs), which possess several desirable case-selection features and are evoked more than is realized. We broaden the study of dispute settlement design beyond “legalization” and instead reorient theorizing around a multi-faceted conceptualization of the strength of DSMs. We posit that strong DSMs are first and foremost a rational response to features of agreements that require stronger dispute settlement, such as depth and large memberships. Multivariate empirical tests using a new data set on PTA design confirm these expectations and reveal that depth – the amount of policy change specified in an agreement – is the most powerful and consistent predictor of DSM strength, providing empirical support to a long-posited but controversial conjecture. Yet power also plays a sizeable role, since agreements among asymmetric members are more likely to have strong DSMs due to their mutual appeal, as are those involving the United States. Important regional differences also emerge, as PTAs across the Americas are designed with strong dispute settlement, as are Asian PTAs, which contradicts the conventional wisdom about Asian values and legalization. Our findings demonstrate that rationalism explains much of international institutional design, yet it can be enhanced by also incorporating power-based and regional explanations.