Carola ZembschDie kollisionsrechtlichen Problematiken des Investmentsondervermögens

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The conflict of laws in investment law still leads a shadowy existence. This is of particular concern in view of the fact that investment funds often also invest across borders, bringing together both domestic and foreign investors, and are also frequently administered by foreign management companies in the domestic market. Consequently, questions arise, both theoretically and practically, as to the law applicable to the legal relationships of the actors involved in the investment polygon. It is still unclear what the legal position in rem is in respect of objects acquired by or for a fund. In this regard, there may be a tension between the material statute applicable to the asset concerned and the provisions applicable at the "domicile of the fund". The answer to this and other questions may also be determined by the legal constitution of the fund. This can be seen in the case of investment companies, for which the incorporation theory applies in the European domestic market. For investment funds, the situation is much more unclear due to the lack of consolidation under corporate law and the absence of clear legal regulations and relevant case law. Other legal systems show that even in the international context there is no consensus on either the substantive or the conflict-of-laws level. In her work, Zembsch suggests treating the fund as a unit as a solution. The individual statutes associated with the special funds ultimately take a back seat to the Universal Statute of Rights, so that conflict-of-law difficulties are avoided.

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