Financial regulation

Information disclosed in Angola which may influence investors' decisions, namely when it relates to public offers, regulated markets, services and activities of investment in securities and derivatives and issuers, must be written in Portuguese or accompanied by a legalized translation into Portuguese.

Information concerning securities and derivatives, issuers, public offers, regulated markets and their infrastructures, investment services and activities in securities and derivatives must be complete, true, timely, clear, objective and lawful.

Contracts for investment services concluded with non-institutional investors shall be in writing and only such investors may invoke invalidity resulting from failure to comply with the form.

Chapter 7 of the Corporations Act 2001 (Cth) outlines various criteria which must be met when issuing promotional material relating to financial products and financial services. The Australian Securities and Investments Commission Act 2001 (Cth) also prescribes other requirements such as consumer protection provisions.

Any promotional material relating to financial products must not include the use of restricted titles, words or expressions unless strict criteria are met, or the scope of an Australian financial services license permits the provider to do so. For retail clients, advertising materials for financial products are often required to specify the issuer and seller of the product, and inform the client to consider the Product Disclosure Statement (PDS) when making a decision about the financial product.

In addition, tax promoter penalty laws prohibit the promotion of tax avoidance schemes and schemes implemented directly to the way it has been described in a tax product ruling approved by the ATO.

Financial promotions are not generally defined in Belgian law.

A financial promotion refers to a communication of an invitation or inducement to engage in investment activity made by a person in the course of business. Since such communications can influence consumers, a person is restricted from communicating such promotions unless they are an authorized person, or the content of the communication has been approved by a competent authority, or the promotion falls within one of the exemptions.

Rules

Different laws and regulations regulate financial promotions, such as the Belgian Code of Economic Law, the Law of 2 August 2002, the Prospectus Law, the UCITS Law, the AIF Law, the Royal Decree of 25 April 2014 on certain information requirements in relation to marketing of financial products with non-professional clients and circular letters from the Financial Services and Markets Authority (Autorité des services et marchés financier/Autoriteit voor Financiële Diensten en Markten) in this respect.

Below an overview of the rules governing the distribution of financial instruments in force in Belgium:

• Belgian prospectus law

Under the Belgian prospectus law, marketing is defined very broadly as the presentation of a financial product, in any manner, to encourage the client or potential client to buy or subscribe the relevant financial product (article 11).

Pursuant to article 60 of the Belgian prospectus law, ex ante/a priori supervision by the FSMA of advertising is required for investments instruments offered to the public that are subject to the requirement of a prospectus.

The advertising or marketing materials shall observe the following principles:

• they shall state that a prospectus has been or will be published and indicate where investors are or will be able to obtain it;
• they shall be clearly recognizable as such.
• the information contained in advertising or marketing materials shall not be inaccurate, or misleading. This information shall also be consistent with the information contained in the prospectus;
• Marketing Royal Decree

The Royal Decree of 25 April 2014 regarding certain information obligations for the marketing of financial products to retail clients (the “Marketing Royal Decree”) also provides rules on marketing documents for financial products marketed to retail clients in Belgium.

The rules apply to the retail marketing of any financial product in Belgium. Accordingly, foreign entities conducting activities in Belgium on a cross-border basis (or through a branch) also fall under the rules. It should be noted that they only apply to marketing addressed to MiFID retail clients.

Marketing is again defined very broadly as the presentation of a financial product, in any manner, to encourage the client or potential client to buy, subscribe, adhere, accept, sign or open the relevant financial product. This covers both public offers and private placements. The new regime creates an obligation regarding the content and presentation of marketing documents.

The Marketing Royal Decree sets forth a series of rules on the content and presentation of marketing materials including general principles such as fair and not misleading content, minimum criteria with regard to the content of marketing materials), the presentation of future and past performance information, disclosures on award and rating and comparisons between financial products.

All marketing materials must be approved beforehand by the FSMA.

• Book VI of the Code of Economic Law

Book VI of the Code of Economic Law on “Market practices and consumer protection” sets forth general rules applicable to advertising. Book VI regulates abusive advertising, misleading advertising and comparative advertising.

• Ban on the marketing of certain financial products

In Belgium, the marketing of certain financial products to retail clients in Belgium is banned by a Royal Decree of 24 April 2014 that applies to financial products that are based on so-called non-mainstream or non-standard assets.

The Regulation bans the marketing of several classes of products:

• financial products that depend on a life settlement, in other words, traded life assurance policies;
• products that consist essentially of derivatives based on virtual currencies such as Bitcoin.
• notes and class 23 insurance contracts where the return depends on an alternative investment fund that invests in non-standard assets and to class 23 insurance contracts whose return depends on an internal fund invested in such non-standard assets (such as commodities, artworks, and consumer products like wine or whisky).

Depending on the financial product concerned, non-authorized financial promotions can be sanctioned by criminal, administrative and civil penalties.

Exemptions

Exemptions include certain promotions when certain safe harbor conditions are met, such as the offer of investment instruments to qualified investors.

Rules

A communication of an invitation or inducement to engage in investment activity made by a person in the course of business may only be done by an entity authorized for such purpose by the Central Bank of Brazil or the Brazilian Securities Commission (CVM).

Exemptions

Brazilian securities legislation does not specifically regulate the offer, to Brazilian resident investors, of securities issued, placed, distributed and negotiated abroad (Foreign Securities). As a result of Brazilian legal restrictions as to the public offer of securities, Foreign Securities may not be offered/negotiated in the Brazilian capital markets. Foreign Securities may only be offered to investors resident in Brazil on a private basis, by means of individual/specific identification and assessment, as an opportunity for investment abroad, provided that the relevant private offer does not involve any kind of public communication services, any type of offices/premises open to the public in general or any brokers/dealers that indiscriminately contact investors.

On 30 September 2005 CVM enacted the Guidance Opinion No. 32 (“Opinion 32”) aiming at, generally speaking, reporting its understanding on the qualification of an offer of securities as public when the Internet is adopted as a means of communication.

The Opinion 32 restates CVM’s understanding that the use of the Internet to disclose an offer of securities qualifies, as a general rule, the offer as a public one. Some situations may, however, be taken into consideration so that the offer will not be regarded as public. Among them, Opinion 32 refers to the following: (a) the webpage is protected in order to avoid the access of the public in general to information contained therein; (b) the non-existence of advertising about the webpage to the public by any means of communication; and/or (c) existence of clear indication that the webpage was not created to the public in general.

On that same date, CVM further enacted the Guidance Opinion No. 33 (“Opinion 33”) aiming at reporting its understanding on the:

• qualification of a securities offer as public when the issuer is located outside Brazil; and
• need of a registration at CVM of those agents that intend to mediate, in Brazil, transactions involving securities issued and negotiated outside Brazil to investors residing in Brazil.

According to Opinion 33, the mediation of securities issued and distributed abroad to Brazilian investors by entities incorporated and located abroad is only authorized – without the need of any registration or notification – on a private basis and provided that the:

• approach activities aiming at the Brazilian investors are carried out abroad; and
• operation is not characterized as a public offer.

If entities incorporated and located abroad intend to mediate securities issued and distributed abroad to Brazilian investors with regard to activities carried out in Brazil, they must:

• be registered with CVM; or
• contract a member of the so-called securities distribution system to perform the operation in Brazil.

If the offer qualifies as public, both the issuer and the issuance are subject to Brazilian registration rules.

Opinion 33 further clarifies that, for an offer of securities issued abroad not to qualify as addressed to the public residing in Brazil when made through the internet, the following situations, in addition to those provided for in Opinion 32, would be taken into consideration:

• the existence of a notice of clear content and easy access clarifying that the offer is addressed only to the countries where the information provider or the issuer is authorized to offer securities (listing the relevant countries);
• effective measures to prevent access by Brazilian investors;
• a direct or indirect indication (provided that it is sufficiently clear) that the webpage was not created for Brazilian investors (the disclosure of economic forecasts in Brazilian currency or the inclusion of Brazil among the listed countries on any form or, furthermore, the comparison between the issuer of securities and Brazilian issuers are all considered an indication that the page is also directed to investors residing in Brazil); and
• the non-existence, even in a language other than Portuguese, of text to target Brazilian investors.

Rules

‘Financial promotions’ is not a concept used in Canada.

Under Canadian securities laws, a distribution of securities may only be made by way of a prospectus that complies with Canadian securities laws and that has been filed with the Canadian securities regulators, unless a prospectus exemption is available. The securities laws of a province of Canada will apply if securities are sold to a purchaser who is resident in such province or to a purchaser who has sufficient connections to such province to trigger the application of its securities laws.

Canada also has anti-spam legislation (Canada’s Anti-Spam Law (CASL)). Generally, express opt-in consent is required to send commercial electronic messages (including emails, text messages and other electronic messages) to any person in Canada. There must also be compliance with certain content requirements, including those relating to sender details and unsubscribe requests.

Exemptions

Issuers can offer or issue their securities in a manner that is exempt from the prospectus requirements (under National Instrument 45-106 Prospectus Exemptions). The most commonly used prospectus exemption is the exemption that permits a sale of securities only to investors who qualify as accredited investors under Canadian securities laws. There are also the family-and-friends exemption, employee exemption and the offering memorandum exemption, in addition to others.

Under CASL, there are a few relationships in which there will be implied consent to receive commercial electronic messages, including existing business relationships (ie where the person has made a transaction, an inquiry, an application or a written contract for the purchase or barter of products, goods or services). Emails must still comply with the content requirements, including those relating to sender details and unsubscribe requests.

The National Consumers Service (SERNAC) grants certificates in respect of those contracts that it has reviewed and verified that comply with the Consumer Protection Law and regulations (which for example, require that such contracts do not contain any clause that may be abusive). The suppliers that promote or distribute financial pre-formulated standard agreement or financial services without the SERNAC certificate as they had it, shall be sanctioned up to US$70,000. In case of a second offence, the fine could be up to US$140,000.

Financial promotions can only be done by financial, banking or credit institution duly authorized to operate in Colombia by the Superintendency of Finance.

Rules

A financial promotion is a communication of an invitation or inducement to engage in an investment activity made by a person in the course of business.

Since such communications can influence consumers, a person is restricted from communicating such promotions unless they are an authorized person, or the content of the communication has been approved by an authorized person, or the promotion falls within one of the exemptions.

It is both an administrative and a criminal offence for an unauthorized person to communicate a financial promotion.

Exemptions

Exemptions include certain promotions to overseas recipients, provided certain criteria are fulfilled. For example, promotions to overseas recipients are exempt from certain obligations in the case that the fulfilment of the obligation would be irreconcilable with the law of the recipient's country of origin.

Rules

According to applicable Finnish Financial Supervisory Authority (FIN-FSA) guidelines, marketing of financial services and instruments means all actions and operations aiming to promote the selling of financial services and instruments. Financial services include all services provided by the various regulated and authorized financial services providers and financial instruments include all instruments provided by the same service providers.

The rules governing marketing and offering of various financial services and instruments are not found in a single piece of legislation but are scattered into service provider and/or financial instrument specific legislation (for more information, see Law and regulation). The objective of the rules is to promote the clarity and high quality of customer and investor information on products and services offered and to ensure appropriate code of conduct of service providers.

The FIN-FSA has issued regulations and guidelines on marketing financial services and instruments as well as regulations and guidelines on codes of conduct when offering financial services and instruments that apply to all service providers and instruments. As a general rule, the rules and guidelines apply both to domestic service providers, such as deposit banks, credit institutions, payment institutions, investment firms, fund management companies, managers of alternative investment funds and insurance companies, and to Finnish branches of EEA-authorized service providers as well as EEA-authorized service providers providing cross-border services in Finland.

In addition to the service provider and instrument specific legislation, the Unfair Business Practices Act includes general requirements on marketing and conducting business in Finland and the Consumer Protection Act regulates financial promotions directed to consumers. These apply also to providers of virtual currencies. The requirements aim to ensure that, among other things, a company’s marketing is in accordance with good and acceptable practices, no improper procedures are undertaken and sufficient information is given to consumers prior to entering into a contract.

Exemptions

The applicable marketing and offering of financial services and products rules differ depending on the type of the customer. Marketing and offering to consumers and non-professional (private) clients is more strictly regulated than the same towards professional clients and eligible counterparties, which may be exempted from certain requirements.

As regards securities offering, offering securities to the public is more regulated than private placements. According to the Securities Market Act, offering securities to the public means a communication to persons presenting or intended to present sufficient information on the terms of the offer and the security offered, so as to enable to decide to purchase or subscribe to the security.

The Finnish rules are generally applicable also to Finnish branches of EEA-authorized service providers as well as EEA-authorized service providers providing cross-border services in Finland, but there are certain exemptions. For example, the FIN-FSA marketing guidelines do not apply to EEA-authorized service providers providing cross-border investment services in Finland.

The main rules regarding financial promotions are as follows.

Banking and financial solicitation (démarchage bancaire et financier)

Banking or financial solicitation (démarchage bancaire et financier) is strictly regulated under French law: any unsolicited contact, by whatever means, with an individual or legal entity in order to obtain its agreement to enter into a transaction for financial instruments constitutes banking or financial solicitation (démarchage bancaire et financier) (Solicitation).

The Monetary and Financial Code (Code monétaire et financier) (CMF) provides a list of entities authorized to perform Solicitation, among which are, without purporting to be exhaustive,  credit institutions, electronic money institutions, payment institutions, insurance firms, investment firms and their agents, financial investment advisers, etc.. Any entity carrying out Solicitation must comply with the specific regime provided in the CMF relating to information obligations, right of withdrawal, registration requirements etc.

Several exemptions to this regime are available. One of them is when the targeted persons are French ‘qualified investors’: a qualified investor is an individual or a legal entity possessing the expertise and resources required to apprehend the risks inherent in transactions in financial instruments (eg banks, financial institutions or large corporates).

Solicitation is prohibited for certain products, such as, without purporting to be exhaustive, products whose maximum risk is not known or that exceed the amount of the initial subscription made by the investor, or products unauthorized for marketing.

Information, advertisements and marketing material addressed to clients

Any information, advertisement or marketing material addressed to investment firms' clients must be clearly identified as advertising, be accurate, clear and not misleading. In addition, the material must mention the existence of a prospectus and the key investor information document. The Financial Markets Authority (Autorité des Marchés Financiers) (AMF) may request the marketing material contents to be modified or sent to it prior to the publication. In accordance with the Markets in Financial Instruments Directive, investment firms acting in France must also provide their clients or potential clients with information that enables them to have a reasonable understanding of the nature of the investment service and the specific type of financial instrument proposed, as well as the risks associated therewith, thus enabling them to make their investment decisions in full knowledge of the facts.

The rules detailed above are not exhaustive and do not cover for instance certain specific French law provisions that may apply depending on the characteristics of the activities carried out in France (eg consumer protection rules, contract or solicitation made by electronic means, financial instruments distribution rules, rules applicable to the marketing of structured or complex financial instruments, etc.).

Financial promotions of banks or investment firms must comply with the rules set out in the German Banking Act (Kreditwesengesetz KWG) and the Securities Trading Act (Wertpapierhandelsgesetz – WpHG).

An invitation to the public to buy or sell shares or debentures of a company or to deposit money with any company for a fixed period or payable at call can only be made in relation to a public company.

No advertisement in connection with any activity or service which must be licensed or authorized by the Securities and Exchange Commission may be made by a person other than a licensed or authorized person.

An advertisement by a licensed or authorized person in connection with any activity or service which must be licensed or authorized by the Securities and Exchange Commission must not be unclear, false or misleading in any material particular. 

The Securities and Exchange Commission may direct a person who publishes an advertisement in contravention of these provisions to cease the publication or modify the advertisement. 

A false or misleading statement in a material particular that is likely to induce the sale or purchase of securities by any other person, whether or not made knowingly, recklessly or dishonestly, is an offense for which, upon summary conviction, a person may be liable for the payment of a fine ranging from GHS12,000 to GHS30,000, or a term of imprisonment of four to five years and or, where applicable, both.

Under Hungarian law, the communications by financial institutions are subject to special consumer protection provisions governing the form and content of financial promotions. These provisions stipulate that financial promotions shall be clear about the key conditions, shall not be misleading and shall not create unrealistic expectations.

There is no cross-sectoral financial promotions regime in effect in Ireland.

There are, however, certain sector-specific rules (both domestic and EU) in respect to the promotion of specific services and products, including requirements in relation to advertisements and incentives. These arise, for example, under the Prospectus Regulation, the MiFID Regulations, the Insurance Distribution Regulations and the Consumer Protection Code.

The rules around financial promotion differ depending on the object of the promotional/offering activity.

As regards the promotion of banking activities/financial services and products in places other than the registered office or the branches of the bank (ie 'door-to-door offer'), banks may make use of their employees and financial salesmen (agenti), other banks and investment firms and the relevant salesmen, insurance companies and the relevant agents, and financial intermediaries. Certain particular transparency requirements apply in case of door-to-door promotion and placement of banking services/financial activities and products.

Certain other specific transparency rules apply to promotion of banking activities/financial services and products by means of distance marketing techniques.

The relevant rules – both relating to door-to-door promotion of banking activities/financial services and products and to promotion of banking activities/financial services and products by means of distance marketing techniques – are provided for by the Consolidated Banking Act, the Consolidated Financial Act and the relevant implementing provisions.

With reference to promotion/offer of financial instruments/investment services, for ‘door-to-door offers’ – meaning the promotion and the placement with the public of financial instruments and/or investment services and activities in a place other than the registered office of the issuer, the offeror, the seller of the services or the provider, as the case may be, the person in charge of carrying out the promotion and the placement of such financial instrument(s) or service(s) will be subject to specific rules. The intermediaries may also make use of financial salesmen (consulente finaziario abilitato all’offerta fuori sede), ie individuals who, acting as tied agents under the MiFID II, carry out the door-to-door sales of financial instruments/investment services. Financial salesmen must be registered in a specific register kept in accordance with Italian financial law.

Intermediaries, including banks, may engage in door-to-door selling of their own investment services and activities. Where such selling involves services and activities provided by other intermediaries, the offering intermediary must be authorized to perform the services of:

• subscription and/or placement with firm commitment underwriting or standby commitments to issuers; or
• placement without firm or standby commitment to issuers.

In case of door-to-door offers of financial instruments or investment services, any recipient of such instrument or service will have a right of withdrawal within a specific term.

For door-to-door selling of their own investment services and activities by means of distance marketing techniques, the use of financial salesmen is not required. Moreover, the right of withdrawal will be governed by the general provisions set forth by the applicable rules and regulations, as applicable (Consumers' Code etc).

The above-mentioned requirements relating to door-to-door offer of financial instruments/investment services and the door-to-door offer of financial instruments/investment services by means of distance marketing techniques do not apply in the case that the offering activity is carried out vis-à-vis professional customers nor in case the offering consists only of own financial instruments and is targeted to executives, employees and other affiliates of the relevant issuer.

In addition, certain specific rules will apply to ‘public offering of securities’.

 

'Public offering of securities' means every communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe for those securities. This definition also applies to the placing of securities through financial intermediaries.

The legislation provides for specific requirements applicable to 'public offerings of securities'; in particular, any public offering is subject to the publication of a prospectus by the person making the offer, such publication being subject, in turn, to the prior authorization of CONSOB (which, inter alia, is the authority in charge of the supervision of public offerings of securities in Italy). The prospectus shall be drafted in compliance with the provision of the Prospectus Regulation and of its relevant implementing provisions.

Certain exceptions to the obligations relating to ‘public offering of securities’ are provided for by the law.

A financial promotion is a proposition for the acquisition of investment products. It is, mostly, dealt with under the concept of solicitation.

Individuals intending to conduct public solicitation activities (business providers, direct sellers) are required to obtain a professional card issued by the Regional Council (General Regulation of the CREPMF, Article 108: The solicitation of the public).

Financial institutions, such as banks, wealth management companies, management and intermediation companies (SGI), business providers, individual or legal persons authorized for that purpose, are allowed, as of right, to have recourse to solicitation after reporting to the Regional Council (Article 155).

Solicitation of the WAMU’s public by a non-resident entity, or on behalf of it, to propose the acquisition of investment products is subject to prior authorization of the Regional Council and the assent of BCEAO (General Regulation, Article 176).

Rules

When a financial instruments business enters into a contract for the sale and purchase of securities, a derivatives transaction, a public offering, a private placement or certain other types of transaction, specified disclosure requirements must be met before and upon execution of the transaction contract. For example, a financial instruments business must deliver explanatory documents to a customer and provide information to enable a customer to make an informed investment decision.

Exemptions

When a financial instruments business executes a contract for the transactions referred to above with professional investors, certain exemptions apply. For instance, the requirement to provide risk information when soliciting business and the prohibition on re-solicitation do not apply.

Rules

A financial promotion is a communication of an invitation or inducement to engage in a financial activity made by a person in the course of business. Since such communications can influence consumers, a person is restricted from communicating such promotions unless he/she is an authorized person, or the content of the communication has been approved by an authorized person, or the promotion falls within one of the exemptions.

An unauthorized person who communicates a financial promotion may be held liable for carrying out such activity without being licensed.

Exemptions

Promotions are allowed for those persons and entities authorized by the regulator or permitted (ie benefitting from an exemption) to do so.

Solicitation 

Under the Securities Act 2005, solicitation is widely defined. 

No person other than the holder of an investment dealer license or an investment advisor, shall solicit another person to enter in securities transactions. 

A person shall be deemed to solicit another person where they induces another person to buy, sell or exchange securities or to participate in transactions involving securities or offers services, recommendations or advice for those purposes by:

• seeking to meet such person at their place of residence, work or public places;
• contacting such person by telephone, letters, circulars, the internet or other electronic means or telecommunication system; or
• publishing or causing an advertisement to be published or circulated. 

Guidelines for the Advertising and Marketing of Financial Products 

The Financial Services Commission has also produced Guidelines for the Advertising and Marketing of Financial Products, which regulates advertisements in connection with the conduct of an activity or the provision of a service which requires a license, approval, authorization or registration.

Rules

Mexican legislation regulates investment advisors as individual or entities that without being stock exchange brokers, provide portfolio management and investment advisory services in an habitual and professional manner. Investment advisors are subject to the surveillance of the National Banking and Securities Commission (CNBV) and subject to AML/CFT regulations.

All advertising or promotion by investment advisors to the general public is subject to CNBV’s approval, including advertising in connection with securities offers, which is made through prospectuses, informative brochures or other offering materials authorized by CNBV.

Exemptions

Exemptions include communications to relatives or employees, foreign investment advisors not having physical presence or agents in Mexico, or the rendering of asset management services to trusts issuing securities to the general public though the stock exchange, as long as there is no services advertisement to an indeterminate number of persons or through mass media.

Moroccan law defines the concepts as well as the persons authorized to carry out financial solicitation (démarchage).

A financial solicitation occurs when a person in contacted without having requested it, by any means whatsoever (mail, phone etc.), to offer a potential transaction on financial instruments.

Only financial intermediaries and natural legal persons authorised by the financial intermediaries are authorised to carry out financial solicitation.

Rules

The Civil Code (Burgerlijk Wetboek) and the Financial Supervision Act (Wet op het

financieel toezicht) lay down several rules on promotions regarding financial products (including consumer credit, mortgage and investment services).

Financial entities should provide their services 'carefully'. Furthermore, the rules require financial entities to ensure that financial promotional materials are accurate, clear and not misleading and recognizable as having a commercial objective. Furthermore, although exemptions apply, the information must be provided in writing and in the Dutch language.

In relation to advertisements for consumer credit services on television, radio, internet and printed media, additional rules apply, including the following requirements that:

• The advertiser must be clear about the costs of a loan, including stating the highest interest rate which may be applicable.
• The advertisement must not include promotional rates.
• A warning statement and symbol must be included in advertisements. This statement reads: ‘Attention! Borrowing money costs money’ (Let op! Geld lenen kost geld) (Warning). Other mandatory texts and illustrations as prescribed by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten) must also be included.

If a consumer credit supplier does not communicate this required information, it may be held by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten) to be engaging in unfair trade practices, resulting in damage-claims and enforcement by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten).

Furthermore, additional rules apply in relation to the advertising of complex financial products such as investment insurances or bank saving products.

As of 19 April 2019 the marketing, distribution or sale of binary options to retail investors in and from the Netherlands is prohibited; the marketing, distribution or sale of CFDs to retail investors in and from The Netherlands is restricted.

 

Exemptions

Several very specific exemptions apply, for example, such as the following:

• Where it is clear that mortgage credit is to be provided for the sole purpose of purchasing a house for personal use, it is not necessary to include the warning in promotional material.
• The language of the promotional information does not have to be Dutch if the consumer has asked for this and the financial entity has agreed, if parties have agreed on another applicable jurisdiction in a contract regarding a financial product or if the information is essential and the Dutch Authority for the Financial Markets (de Autoriteit Financiële Markten) has agreed on the use of the particular language).
• The information does not have to be provided in writing in cases the law provides for this (for example in case of non-personal information, if it is allowed to provide information on the website of the financial entity) or in the event that the customer has approved the information to be transmitted through another durable medium and this fits the relationship.

Rules

Regulated offers of managed investment products, debt securities and equity securities are required to be made in a registered product disclosure statement prepared in accordance with the Financial Markets Conduct Act 2013. A regulated offer is an offer made to a retail investor. General fair dealing provisions also apply with respect to disclosure.

Exemptions

Exemptions apply to offers made to wholesale investors and certain other types of offers.

The Marketing Control Act 2009

Where financial products or services are marketed to consumers in particular, but also to a small extent to businesses, the Marketing Control Act of 2009 will apply unless otherwise stated. This Act and related regulations contain rules aimed at protecting consumers, by ensuring for example that the total price of products or services are clear and unambiguous, and also that the seller does not use misleading communications or omit to inform of important details regarding the services or products.

The Financial Contracts Act of 1999 applies to contracts and assignments concerning financial services with financial institutions or similar institutions, unless otherwise provided by or pursuant to law. This Act regulates specifically what information must be provided to consumers when marketing loan and credit agreements.

In addition, the Consumer Ombudsman has provided extensive guidelines in relation to marketing of specific financial products aimed towards consumers, for example credit cards. There are also certain market standards or agreements established in Norway that set requirements for promotions of certain financial products, which can also secure fair comparisons of these.

Where transferable securities are being offered, a prospectus may be required, and these rules will provide more detailed information regarding how such securities can be promoted.

The Financial Institution Act 2015

The Financial Institution Act of 2015, chapter 2 part III says that banks need to use the word ‘bank’ in their company name. The same rule applies to sparebanker. No entities other than banks and sparebanks may use such wording. Similar rules apply in the case of insurance companies.

Rules relating to a financial institution’s relationship to customers and related financial promotions are set out in chapter 16 of the Financial Institution Act 2015.

According to the Stock Market Promotion Act – Law 30050, every advertisement or offer made in Peru, to buy or sell or subscribe securities through mass media such as newspapers, magazines, radio, television, mail, meetings, social networking, internet servers located in Peru or other media or technology platforms, may only be done by companies authorized by the Superintendence of Banking, Insurance and Private Pension Fund Management Companies (SBS) or the Superintendence of Securities Market (SMV).

There are specific promotion rules for specific financial products such as:

• consumer credit as provided for in the Regulations on Regulations on Market Conduct Assessment of the Financial System (Reglamento de Gestión de Conducta de Mercado del Sistema Financiero) – Resolution SBS 3274-2017;
• mutual funds referred to in Resolution Conasev 068-2010-EF/91.10 (Reglamento de Fondos Mutuos y sus Sociedades Administradoras);
• investments funds as referred to in Resolution SMV 029-2014-SMV/01 (Reglamento de Fondos de Inversión y sus Sociedades Administradoras); and
• collective funds as referred to in Resolution SMV 20-2014-SMV/01 (Reglamento del Sistema de Fondos Colectivos y de sus Empresas Administradoras).

Promotion rules broadly relate to the obligation of including or not including certain information in the promotion materials relating to financial products.

Additionally, any promotion – including financial promotions – must follow publicity rules that are set out in the Unfair Competition Act (Ley de Represión de la Competencia Desleal) – Legislative Decree 1044. Any promotion infraction may be punished by by the National Institute for the Defense of Free Competition and the Protection of Intellectual Property Rights (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual) - INDECOPI, which is the national promotion and consumer protection authority.

A financial promotion is a communication of an invitation or inducement to engage in investment activity made by a person in the course of business. Only authorized persons are allowed to offer investment products and advise on engagement in investment activities.

It is a criminal offence for an unauthorized person to communicate a financial promotion.

Exemptions

Exemptions include intra-group financial promotions or free-of-charge financial advice given in the ordinary course of business.

Rules

The promotion and advertising of investment and financial services is a regulated activity, unless they fall within one of the exemptions.

Promotion of investment services is considered a complementary activity to the investment service being carried out and therefore subject to the same regulatory regime applicable to such activities.

Promotion of other financial services that do not qualify as investment services may only be carried out by authorized persons/promoters, who can only carry out promotional activity provided that they do not enter into or execute agreements on behalf of the financial institution. The financial institution must draft and submit a code of conduct applicable to such promoters.

Unauthorized or unfit promotions of investment and financial services are offences punishable by fine.

Exemptions

Exemptions include certain promotions to certified high-net worth individuals or overseas recipients, provided certain criteria are fulfilled.

A financial promotion is a communication of an invitation or inducement to engage in investment activity (offer to sell or buy). Any such marketing of financial products, especially securities, are heavily regulated under the Uniform Securities Act (PRUSA). Pursuant to such regulation, marketing material needs to be registered and all written materials to sell securities are subject to anti-fraud protections.

Exemptions

There are a number of exemptions applicable to the registration of written marketing material to be used in the sale of securities, but there is no exemption from the anti-fraud provisions of the PRUSA and other US federal securities laws.

There are various legal requirements applying to financial promotions and marketing.

For example:

• Any advertising concerning credit agreements for consumers must include certain standard information and be presented in a certain way.
• There are specific rules on credit agreements for consumers relating to residential immovable property.
• Long distance contracts regarding financial services (eg banking services, credit-related services, financial investments services, etc) are subject to various rules regarding the information to be provided to consumers who are entering into such contracts.

There are also specific rules around marketing materials for Undertakings for Collective Investments In Transferable Securities (UCITS).

Rules

Russian law does not specifically define financial promotions. However, there are relevant provisions in legislation regarding advertising, the issuance and operations of financial instruments and the provision of financial services.

Under Federal Law 'On Advertising', any advertising (that is, the distribution of information addressed to the general public and intended to draw attention to an object of advertising, to form or keep up an interest to it or to market it in any form) of financial services or financial activities that requires authorization can only be done by an authorized person.

It is also unlawful to advertise and/or offer to the general public the securities of issuers who have not disclosed information in the order and scope specified by law. Russian law also stipulates that certain types of securities may be offered to qualified investors only.

Foreign securities which are not admitted to public placement/circulation in Russia and foreign financial instruments which are not qualified as securities under Russian law cannot be offered in any form or by any means (including advertising) to the general public or to persons who are not qualified investors. The term ‘offering/offer’ is understood very broadly. According to informal opinions of the predecessor of the current regulator (the Federal Service for Financial Markets which is the predecessor of the Central Bank of the Russian Federation in the sphere of financial market regulation), an ‘offer‘ is in essence ‘advertising or proposing‘ and ‘it is not allowed to disseminate within the Russian Federation in any way, in any form and by any means, information that (i) is addressed to an unlimited number of persons or to persons that are not qualified investors and (ii) is aimed at (a) drawing attention to foreign financial instruments that are not admitted for public placement and/or public circulation in Russia, (b) creating and supporting interest in such securities and (c) promoting them in the market‘.

Generally, foreign securities may be admitted for placement (initial sale to initial investors) in Russia provided that the prospectus describing such securities is registered by the Central Bank of the Russian Federation (CBR) and such securities are registered with (held through) a depositary established in accordance with Russian law. A filing of a notice to CBR with the results of the initial placement in the Russian territory and disclosure of this information are required, without which any subsequent trading/transacting in Russia is prohibited.

Foreign legal entities and their representative offices and branches cannot perform activities of non-credit finance organizations including activities of professional participants on the securities market, offer services of foreign legal entities on the financial markets or distribute information about such entities and their activities to the general public in the territory of Russia.

Violations of the stated requirements can lead to a civil and administrative liability or loss of authorization.

Exemptions

Public placement (initial sale to initial investors) of Russian securities is generally allowed after the registered prospectus is made available to the public. If securities are designated for qualified investors, then in some cases it is possible to place them without a prospectus. Public circulation, including offering to the general public, of Russian securities also requires compliance with the disclosure of information requirements. These rules may not be applicable to securities for qualified investors.

Foreign securities which are not admitted to public placement/circulation in Russia and foreign financial instruments which are not qualified as securities under Russian law can only be offered to qualified investors.

A financial promotion is a proposition for the acquisition of investment products. It is, mostly, dealt with under the concept of solicitation.

Individuals intending to conduct public solicitation activities (business providers, direct sellers) are required to obtain a professional card issued by the Regional Council (General Regulation of the CREPMF, Article 108: The solicitation of the public).

Financial institutions, such as banks, Wealth Management Companies, Management and Intermediation Companies (SGI), business providers, individual or legal persons authorized for that purpose, are allowed to have recourse to solicitation after reporting to the Regional Council (Article 155).

Solicitation of the WAMU’s public by a non-resident entity, or on behalf of it, to propose the acquisition of investment products is subject to prior authorization of the Regional Council and the assent of BCEAO (General Regulation, Article 176).

Rules

The Monetary Authority of Singapore issued principle-based Guidelines on Standards of Conduct for Marketing and Distribution Activities which took effect from 1 April 2017. These guidelines set out safeguards that financial institutions should apply when marketing and selling financial products and services to retail customers.

Exemptions

The Guidelines on Standards of Conduct for Marketing and Distribution Activities apply to financial institutions which conduct marketing and distribution activities targeting retail customers only, and the representatives who act on behalf of these financial institutions.

A financial promotion is a communication of an invitation or inducement to engage in investment activity made by a person in the course of business.

An investment firm and a bank authorized by the National Bank of Slovakia may use bound investment agents for the promotion of investment services and secondary services, provided that the bound investment agent is registered in the relevant register.

A bound investment agent may perform financial intermediation only for one financial institution.

A credit provider must not harass a person in an attempt to persuade that person to apply for credit or to enter into a credit agreement or related transaction. Credit providers are restricted from entering into credit agreements at various times and at specific places unless they comply with a number of legislative requirements. Only persons that are registered as credit providers may advertise the availability of credit, or of goods or services to be purchased on credit.

Any advertisement concerning the granting of credit must clearly state the interest rate and other credit-related costs in the format prescribed by the applicable legislation.

The promotion of investment services is deemed also as a restricted activity which can only be undertaken by authorized entities.

A financial promotion is a communication of an invitation or inducement to engage in investment activity made by a person in the course of business. The Swedish Financial Supervisory Authority (Finansinspektionen) has developed regulations with regards to financial promotions. Such promotions must, amongst other things, represent a balance between the opportunities and risks of investment. If a company does not comply with the regulations, the SFSA may impose sanctions.

Pursuant to the Consumer Credit Act (Sw. konsumentskreditlagen (2010:1846) there are certain information requirements that need to be met when consumer credits are marketed to the public. The requirements are, inter alia, that consumers are adequately informed about the risks of entering into the credit agreement and informed of whether the credit at issue is to be deemed a "pay day loan" (Sw. högkostnadskredit) under the Consumer Credit Act.

Furthermore, the Marketing Act 2008 (Marknadsföringslagen) has general provisions regarding marketing which must be adhered to.

Rules

Only a securities company licensed by the SEC can contact or solicit business from or otherwise provide advice on securities investment to investors or clients.

Exemptions

Exemptions include solicitation to institutional investors for investment outside of Thailand. For example, a non-Thai securities company licensed by a regulator which is an ordinary member of the International Organization of Securities Commissions can solicit business from Thai institutional investors to manage investments overseas without being licensed by the SEC.

Rules

Financial institutions are not allowed to disseminate misleading advertising about financial services and products, for example, deposits, consumer credits, investments and mortgages.

In marketing or offering financial services, a financial institution must inform a client about certain matters, including:

• details of proposed financial services and their actual cost;
• terms and costs of additional financial services;
• payment of applicable taxes and duties; and
• consequences of acceleration or early termination under the agreement.

It is prohibited under Ukrainian law to advertise securities offerings, including specifying the amount of returns under debt securities, predicting the increase in value of debt securities (except for fixed rate securities), advertising prior to the registration of the issuance of debt securities, and promoting information about returns without stating that this does not guarantee an expected return.

A financial promotion is a communication of an invitation or inducement to engage in investment activity made by a person in the course of business. Since such communications can influence consumers, a person is restricted from communicating such promotions unless they are an authorized person, or the content of the communication has been approved by an authorized person, or the promotion falls within one of the exclusions in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005. 

It is a criminal offence for an unauthorized person to communicate a financial promotion.

Exclusions

Exclusions include certain promotions to certified high-net worth individuals or overseas recipients, provided certain criteria are fulfilled.

A financial promotion is a communication of an invitation or inducement to engage in investment activity made by a person in the course of business. Since such communications can influence consumers, a person is restricted from communicating such promotions unless they are an authorized person, or the content of the communication has been approved by an authorized person, or the promotion falls within one of the exemptions.

It is a criminal offence for an unauthorized person to communicate a financial promotion.

Exemptions

Exemptions include certain promotions to certified high-net worth individuals or overseas recipients, provided certain criteria are fulfilled.

Under the New Banking Law, financial promotion refers to any form of communication by any means, aimed at inviting or offering to enter into any transaction, or offering to conclude any agreement related to any of the Licensed Financial Activities. Since such communications can influence consumers, entities are restricted from communicating financial promotions unless they are licensed to do so by the UAE Central Bank.

Exemptions

Even though engaging in regulated activities is clearly prohibited (unless the person is licensed to do so), the UAE Central Bank has tolerated certain practices under the Old Banking Laws. To fall within the scope of a tolerated practice, the foreign entity must ensure that, for instance:

• only a discrete and defined group of pre-identified clients (who are either institutional, professional or sophisticated clients) are approached;
• no mass advertising campaign is carried on in the UAE;
• the person marketing the product or service is not resident in the UAE; and
• marketing activities are performed from outside the UAE (except for ‘low profile’ activities).

It is important to note that the concept of ‘tolerated practices’ is neither a legal concept nor officially recognized by the UAE Central Bank. Whilst it has not been tested in the UAE courts, we are not aware of examples of foreign entities being found liable under the Old Banking Laws. Whether these tolerated practices will be more closely regulated or supervised by the Central Bank under the New Banking Law remains to be seen.

Rules

Offers of securities and other financial products are subject to detailed requirements and restrictions imposed by the Securities Act of 1933, Securities Exchange Act of 1934 (SEA), Investment Advisers Act of 1940 (IAA) and Investment Company Act of 1940 (ICA), as well as relevant Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) rules and regulations thereunder, including without limitation:

• registration requirements for offered securities;
• registration and licensing requirements for persons involved in such activities;
• requirements with respect to the content of prospectuses, offering memoranda and other documents;
• supervision and retention requirements; and
• general antifraud prohibitions.

Offers of financial services are likewise subject to detailed requirements imposed by the foregoing statutes, rules and regulations, including:

• detailed requirements for content, retention and supervision of communications with clients/customers and potential clients/customers;
• advertising regulations;
• requirements for providing investment research; and
• general antifraud prohibitions.

Exemptions

The relevant requirements and restrictions imposed by the foregoing statutes, rules and regulations include various exemptions and exceptions, which generally are based on the nature of the offered products or services, the intended target audience, the type of communication and specific content thereof, and a number of other factors.