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Case 9 - Collective investment schemes

Published online by Cambridge University Press:  22 August 2009

By
Georg Graf ,
Monika Hinteregger ,
Manuela Weissenbacher ,
Benoit Allemeersch ,
Alain Verbeke ,
Merete Clausen ,
Lionel Smith ,
Jarmo Tuomisto ,
François Barrière  and
Stefan Grundmann
...Show all authors
Edited by
Michele Graziadei ,
Ugo Mattei  and
Lionel Smith
Georg Graf
Affiliation:
Professor of Private Law, University of Salzburg, Austria
Monika Hinteregger
Affiliation:
Professor of Civil Law, University of Graz, Austria
Manuela Weissenbacher
Affiliation:
Assistant to the Chair of Civil Law, University of Graz, Austria
Benoit Allemeersch
Affiliation:
Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium
Alain Verbeke
Affiliation:
Professor of Private and Comparative Law, Catholic University of Leuven, Belgium
Merete Clausen
Affiliation:
Attorney-at-Law, Denmark
Lionel Smith
Affiliation:
Professor of Law, McGill University Canada
Jarmo Tuomisto
Affiliation:
Professor of Civil Law, University of Turku, Finland
François Barrière
Affiliation:
Junior Professor, University of Paris II, France
Stefan Grundmann
Affiliation:
Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany
George K. Lekkas
Affiliation:
Attorney-at-Law, Athens, Greece
Niamh Moloney
Affiliation:
Professor of Capital Markets Law, University of Nottingham, England
Eoin O'Dell
Affiliation:
Fellow, Trinity College, Dublin, Ireland
Antonio Gambaro
Affiliation:
Professor of Comparative Private Law, State University of Milan, Italy
Michele Graziadei
Affiliation:
Professor of Comparative Private Law, University of Eastern Piedmont, Italy
Steve Jacoby
Affiliation:
Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg
Marielle Koppenol-Laforce
Affiliation:
Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands
Pedro Pais de Vasconcelos
Affiliation:
Professor, University of Lisbon, Portugal
George L. Gretton
Affiliation:
Lord President Reid Professor of Law, University of Edinburgh, Scotland
Sergio Cámara Lapuente
Affiliation:
Professor of Civil Law, University of La Rioja, Spain
Cristina González Beilfuss
Affiliation:
Professor of Private International Law, University of Barcelona, Spain
Torgny Håstad
Affiliation:
Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
Michele Graziadei
Affiliation:
Università degli Studi del Piemonte Orientale Amedeo Avogadro
Ugo Mattei
Affiliation:
Università degli Studi di Torino, Italy
Lionel Smith
Affiliation:
McGill University, Montréal
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Summary

Case

A financial services company wishes to launch a collective investment scheme. It hopes to choose a vehicle that will allow the free transfer of the interests of investors, and which will permit the rules governing the scheme to be changed where necessary.

What options are available to it?

Discussion

AUSTRIA

Austrian private law recognises one type of collective investment scheme, namely, investment funds that fall under the Austrian Investment Fund Act (InvFG). Austrian investment funds are open-ended funds that work on the principle of risk diversification and lend themselves to an open clientele. It is also possible to create special funds that only have a limited number of investors. All types of Austrian investment funds allow for changes of terms and conditions and for changes of investors, although there is no secondary market for trading the investment fund ‘certificates’. Under the Austrian Investment Fund Act, the investors have the right of redemption.

A change of the terms and conditions of an investment fund, under s. 22(3) InvFG, does not require the consent of the investors, but it must be made in their interest, must be approved by the supervisory board and must be published. Section 22(3) InvFG deals only with the public law of the modification.

Different supervision schemes apply for Austrian investment funds. Supervision under the InvFG includes a bank supervisor, a supervisory board, an investment company (a special bank) and the depository bank. The investment company manages the fund and makes the investment decisions.

Type
Chapter
Information
Commercial Trusts in European Private Law , pp. 456 - 485
Publisher: Cambridge University Press
Print publication year: 2005

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