变更投资标的、信息披露义务、解除合同

Change of Investment Targets, Obligations of Information Disclosure, Contract Termination

私募基金的募资材料中披露的有关主要投资标的的信息是投资人进行基金申购决策的重要基础，私募基金管理人应根据基金合同的约定进行投资决策；如基金管理人擅自变更主要投资标的且怠于披露该重大事项的，属于严重违反管理人义务的行为，基金合同的合同目的因此不能实现的，投资人可依法解除基金合同。

The information disclosed in the fundraising materials of the private fund  regarding major investment targets serves as a key basis for investors’ decisions to subscribe for the fund. The fund manager is obligated to make investment decisions in accordance with the fund contract. If the fund manager unauthorizedly changes the main investment targets and fails to disclose this major matter, it constitutes a severe breach of the manager’s obligations. If it prevent the purpose of the fund contract from being achieved, investors may lawfully terminate the fund contract.

基金合同作为约定投资人和基金管理人等各方权利义务的书面依据，各方应严格遵照执行。基金管理人应根据诚实信用、勤勉尽责的原则履行管理和运用基金财产的义务及变更投资标的后的信息披露义务。本案中，仲裁庭认定：基金明确变更投资标的属于私募基金管理人应披露的重大事项，管理人未依约投资并未及时向投资人披露有关信息严重违反了合同约定。这对于“重大事项”的界定以及管理人应有的举措，具有一定的指导意义。

The fund contract serves as the written basis for the rights and obligations of all parties, including investors and the fund manager, and must be strictly adhered to. The fund manager must fulfill the duties of managing and using the fund’s assets in accordance with the principles of honesty, integrity, and due diligence, as well as the obligations of information discolsure after changing the investment targets. In this case, the arbitral tribunal ruled that the change of investment targets should be disclosed as a major matter by the fund manager, and the manager's changing the investment targets without disclosure to the investor was a serious breach of the fund contract. This case is of guiding significance in defining "major matters" and the required actions of fund managers.

20XX年9月，投资人李某（本案申请人）与A资产管理公司（本案被申请人）、B证券公司共同签订《私募基金合同》，约定李某认购A资产公司管理的基金产品100万元，并由李某与A资产管理公司签订《基金说明书》。《私募基金合同》约定，A资产管理公司应遵守《私募投资基金信息披露管理办法》等规定及本合同约定，及时向基金份额持有人披露基金定期报告，揭示私募基金资产运作情况，包括：私募基金信息披露月度报表（如需）、季度报表、年度报表等；本基金发生法律法规规定的重大事项时，私募基金管理人应按规定及时向投资者披露。同时，《基金说明书》还对资金闲置期进行约定，即“对于投资主要标的之外的其他资产仅限于资金闲置期，资金尚未投入主要投资标的或者已经从主要投资标的退出但尚未分配之前的期间，应属临时和短期的投资行为”《基金说明书》第N节“私募基金的基本情况”第（七）条“投资标的”约定本期基金主要投资包括但不限于C项目公司，用于C项目公司建设开发等。资金闲置期可投资商业银行理财产品、银行存款（包括定期存款、协议存款和其他银行存款）、信托计划、基金子公司特定客户资产管理计划、于基金业协会官方网站公示已登记的私募基金管理人发行的私募基金。对于投资主要标的之外的其他资产仅限于资金闲置期，资金尚未投入主要投资标的或者已经从主要投资标的退出但尚未分配之前的期间，应属临时和短期的投资行为。

In September 20XX, investor Li (the claimant in this case) signed a "Private Fund Contract" with Asset Management Company A (the respondent) and  Securities Company B. The Contract stipulated that Li would subscribe for 1 million yuan in a fund managed by Asset Management Company A and would sign the "Fund Prospectus" with Asset Management Company A. According to the "Private Fund Contract," Asset Management Company A was obligated to comply with the Measures for the Information Disclosure of Private Investment Funds and other relevant regulations as well as agreement in current contract, and disclose regular reports to fund shareholders, revealing the operation of the assets of the private fund, including: monthly reports (if required) on information disclosure of the private fund, quarterly reports, annual reports, and any major matter as defined by law. At the same time, the Fund Prospectus also stipulated the idle period of funds, that is, "for assets other than the main investment target, it is limited to the idle period of funds, and the period before the funds have not been invested in the main investment target or have been withdrawn from the main investment target but have not yet been distributed, shall be temporary and/or short-term investment behaviors". Article (7) of the "Investment Target" of Section N "Basic Information of Private Funds" of the Fund Prospectus stipulates that "the main investment of the fund in the current period C includes but is not limited to Project Company C and is used for the construction and development of  Project Company C. During the idle period, funds can be invested in commercial bank wealth management products, bank deposits (including time deposits, agreement deposits and other bank deposits), trust plans, asset management plans for specific customers of fund subsidiaries, and private funds issued by registered private fund managers published on the official website of the Asset Management Association. The investment in assets other than the main target is limited to the idle period of funds, and the period before the funds have not been invested in the main investment target or have been withdrawn from the main investment target but have not yet been distributed shall be temporary and short-term investment behaviors."

合同签署的当日李某向案涉基金募集账户支付投资款100万元，A资产管理公司向李某出具基金份额确认函，确认李某申购金额100万元。此后，A资产管理公司在判断合同约定的案涉基金的投资标的存在风险且不宜投资后，未将所募集资金投向《基金说明书》约定的C项目公司，而是将案涉基金的资金投资于其同样担任基金管理人的其他私募基金。因A资产管理公司在合同到期后未按约定向李某支付本金和收益，2020年5月李某向A资产管理公司、B证券公司发出解除私募基金合同告知书，要求解除《私募基金合同》。A资产管理公司在收到李某的解除通知后拒绝向李某退还本金并支付收益。

On the day the contract was signed, Li paid an investment of 1 million yuan to the fund-raising account involved in the case, and Asset Management Company A issued a confirmation letter of fund shares to Li, confirming that Li had subscribed for 1 million yuan. Subsequently, after judging that the investment target of the fund involved in the case as stipulated in the contract was risky and unsuitable for investment, Asset Management Company A  did not invest the raised funds in Project Company C as stipulated in the Fund Prospectus, but invested the funds of the fund involved in the case in other private funds for which it also acted as the fund manager. Because Asset Management Company A failed to pay the principal and interest to Li as agreed after the expiration of the contract, in May 2020, Li issued a notice to Asset Management Company A and Securities Company B , requesting the termination of the Private Fund Contract. After receiving Li's notice of termination, Asset Management Company A refused to return the principal or pay the interest to Li.

20XX年11月，李某向上海金融仲裁院申请仲裁，请求仲裁庭裁决解除《私募基金合同》、A资产管理公司向其偿还其本金及利息等费用。

In November 20XX, Li claimed for arbitration at the Shanghai Financial Arbitration Court, requesting the arbitral tribunal to terminate the Private Fund Contract and for  Asset Management Company A to repay the principal, any interest accrued, and other expenses.

本案的争议焦点在于A资产管理公司变更投资标的是否属于根本违约。

The issue of dispute in this case is whether Asset Management Company A’s change of the investment target constitutes a fundamental breach of the contract.

仲裁庭认为，根据李某与A资产管理公司签署的《基金说明书》的约定，案涉基金的主要投资标的为某项目，但A资产管理公司却并未将募集资金投入上述合同约定的主要投资标的，而是在判断某项目不宜投资后，将募集资金全部投入其他私募基金，故李某订立的《私募基金合同》的主要目的已经落空。且A资产管理公司实际投入的其他私募基金项目，投资周期长、流动性差，不符合合同对资金闲置期的限制性约定，即“对于投资主要标的之外的其他资产仅限于资金闲置期，资金尚未投入主要投资标的或者已经从主要投资标的退出但尚未分配之前的期间，应属临时和短期的投资行为”。同时，A资产管理公司未依约进行投资决策，怠于披露重大事项，违背诚实信用、勤勉尽责的原则，严重违反了《私募基金合同》约定的基金管理人的合同义务。

The arbitral tribunal held that, according to the Fund Prospectus signed by Li and Asset Management Company A , the main investment target of the fund involved in the case was a certain project, but  Asset Management Company A did not invest the raised funds in the main investment target agreed in the above-mentioned contract; instead, they invested all the funds in other private funds after judging that the certain project was not suitable for investment. Therefore, the main purpose of the Private Fund Contract entered into by Li had been failed. In addition, other private fund projects actually invested by  Asset Management Company A had a long investment cycle and poor liquidity, which did not comply with the restrictive provisions of the Contract on the idle period of funds, that is, "the investment in assets other than the main target is limited to the idle period of funds, and the period before the funds have not been invested in the main investment target or have been withdrawn from the main investment target but have not yet been distributed, shall be temporary and short-term investment behaviors". At the same time,  Asset Management Company A failed to make investment decisions in accordance with the Contract, neglected to disclose material matters, violated the principles of honesty, due diligence, and responsibility, and seriously violated the contractual obligations of the fund manager as stipulated in the Private Fund Contract.

仲裁庭认为A资产管理公司已根本违约，李某可以解除案涉《私募基金合同》，并由A资产管理公司返还投资款及占用款项期间的利息。

The arbitral tribunal held that Asset Management Company A had fundamentally breached the contract, and that Li could terminate the Private Fund Contract involved in the case, and Asset Management Company A should return the investment money and the interest during the occupied period of the money.

二十一世纪以来，私募基金日益成为我国投融资体系和资本市场中的重要力量，中小投资者对私募基金的接受度和认可度也不断提高。私募基金的架构设计，呈现出法律结构多元化、复杂化的特点；相比于公募基金，私募基金运作的公开性较弱、公共管制较少——这也为私募基金的中小投资者保护提出了新的课题。从监管规则、行业自律到相关争议的解决，都有必要贯彻投资者保护的目标，为广大投资者提供安全有效的财富管理途径，实现多层次资本市场的健康有序发展。基金管理人是私募基金中最重要的角色，管理人、托管人等机构的义务问题时常成为投资者与机构博弈的重点，相关纠纷也逐渐多元化。本案主要涉及私募基金管理人（以下简称管理人）未经投资者同意变更投资标的的问题。在现有的法律和制度框架内，管理人擅自变更基金投资标的，是一个既涉及管理人披露义务，又涉及合同违约及违约救济的重要问题。为保障投资者的合法利益、规范管理人的行为，关于私募基金投资标的变更，有以下几个问题值得关注：

Since the beginning of the 21st century, private funds have increasingly become an important force in China's investment & financing system and capital market, and the acceptance and recognition of private funds by small and medium-sized investors have also been continuously improved. The structural design of private funds presents the characteristics of diversified and complex legal structures; Compared with public funds, the operation of private funds is less transparent and there is less public control, which also raises new issues for the protection of small and medium-sized investors in private funds. From regulatory rules, industry self-discipline to the resolution of related disputes, it is necessary to implement the goal of investor protection, provide investors with safe and effective wealth management paths, and achieve a healthy and orderly development of multi-level capital markets. The fund manager is the most important role in private funds, and the obligations of the manager, custodian and other institutions have often become the focus of disputes between investors and institutions, and related disputes have gradually diversified. This case mainly involves the issue of a private fund manager (hereinafter referred to as the manager) changing the investment target without the consent of the investors. Within the existing legal and institutional framework, the manager's unauthorized change of the fund's investment target is an important issue involving not only the manager's disclosure obligations, but also the breach of contract and the relief for breach of contract. In order to protect the legitimate interests of investors and standardize the behavior of managers, the following issues deserve attention regarding the change of investment targets of private funds:

第一，投资标的属于管理人应当向投资者披露的“重大事项”。信息披露义务是管理人对投资者负有的重要义务，在《证券投资基金法》《私募监管暂行办法》《私募投资基金信息披露管理办法》等法律法规中均有详细规定。投资标的、投资范围与基金的投资目的直接相关，很大程度上决定了投资者的投资风险和投资收益，也是基金募集说明书、基金合同中的重要内容，管理人对此负有披露和说明义务。投资范围和投资策略发生重大变化尚且属于《私募投资基金信息披露管理办法》规定的重大事项，合同约定的投资标的的变更自然属于管理人应当披露的重大事项，应当依法及时向投资者披露。

First, the investment target is a "major matter" that the manager should disclose to investors. The obligation of information disclosure is an important obligation owed by the manager to investors, which is stipulated in detail in the Securities Investment Fund Law, the Interim Measures for the Supervision of Private Placements, the Measures for the Information Disclosure of Private Investment Funds and other laws and regulations. The investment target and investment scope are directly related to the investment purpose of the fund, which largely determines the investor's investment risk and investment returns, and is also an important part of the Fund Prospectus and Fund Contract, which the manager has the obligation to disclose and explain. If there is a major change in the investment scope and investment strategy, and it is a major matter stipulated in the Measures for the Information Disclosure of Private Investment Funds, the change of the investment target agreed in the contract is naturally a major matter that the manager should disclose to the investor in a timely manner in accordance with the law.

第二，本案的特殊性在于，管理人擅自变更了投资标的。投资标的实质上决定了投资者的投资目标，也是投资者与管理人订立基金合同的主要合同目的。本案中，管理人擅自变更投资标的，导致投资者的投资目的不能实现、合同目的落空，因而构成根本违约。通常来说，基金资金的全部或大部分用途与合同约定不符时，管理人即构成根本违约，投资者有权要求解除合同，管理人应当向投资者返还投资款及占用款项期间的利息。学理上，管理人擅自变更投资标的，投资者要求管理人承担责任的请求权基础在于根本违约的合同法救济；但管理人未履行信息披露义务的其他情形一般难以构成根本违约，以一般违约为依据要求管理人承担赔偿责任的案例也并不多见，原因主要在于违反义务和投资者损失的因果关系难以证明。

Second, the particularity of this case lies in the fact that the manager changed the investment target without authorization. The investment target essentially determines the investor's investment objective, and is also the main contractual purpose of the Fund Contract between the investor and the manager. In this case, the manager changed the investment target without authorization, resulting in the failure of the investor's investment purpose and the frustration of the purpose of the contract, thus constituting a fundamental breach of contract. Generally speaking, when all or most of the use of funds is inconsistent with the contract, the manager constitutes a fundamental breach of contract, and the investor has the right to demand the termination of the contract, and the manager shall return the investment money and the interest during the period of occupation to the investor. Theoretically, if the manager changes the investment target without authorization, the investor's claim to demand the manager to bear responsibility lies in the contract law remedy of fundamental breach of contract. However, it is generally difficult for other situations in which the manager fails to perform her/his obligation of information disclosure to constitute a fundamental breach of contract, and there are few cases in which the manager is required to bear the liability for compensation on the basis of a general breach of contract, mainly because it is difficult to prove the causal relationship between the breach of obligations and the losses of investors.

第三，管理人意欲变更基金投资标的或投资范围，应当以合同各当事方的合意为基础。管理人对投资者负有忠实义务和勤勉义务，其对基金的运营权限来源于投资者的授权。管理人意欲变更投资标的或投资范围，首先应当依据基金合同约定的方式进行变更；基金合同没有约定的，应当按照相关法律法规，由合同双方协商一致变更。倘若出现类似本案“合同约定的案涉基金的投资标的存在风险且不宜投资”的情形，管理人应当及时向投资者履行告知义务，并就变更投资标的等事项进行协商；协商不成时，可视情况依据不可抗力、情势变更、合同目的无法实现等规则解决。简言之，管理人不得擅自超越基金合同的约定执行基金事务、改变投资标的或投资范围，否则就要承担相应的违约责任。

Third, if the manager intends to change the investment target or investment scope of the fund, it should be based on the agreement of the parties to the contract. The manager owes a duty of loyalty and diligence to investors, and her/his authority over the operation of the fund is derived from the authorization of investors. If the manager intends to change the investment target or investment scope, she/he shall first do so in accordance with the method agreed in the Fund Contract. If there is no stipulation in the contract, it shall be changed by consensus between the parties to the contract in accordance with relevant laws and regulations. In the event of a situation similar to this case, where "the investment target of the fund involved in the case as agreed in the contract is risky and not suitable for investment", the manager shall promptly perform its obligation to inform the investors and negotiate on matters such as changing the investment target. If the negotiation fails, it can be resolved according to the rules of force majeure, change of circumstances, and inability to achieve the purpose of the contract, as the case may be. In short, the manager shall not exceed the provisions of the Fund Contract to carry out fund affairs, or change the investment target or investment scope, otherwise she/he will bear the corresponding liability for breach of contract.

本案以投资者的合同目的不达为核心理由，要求管理人对投资者承担根本违约的责任。裁决同时阐明了管理人负有的忠实勤勉、诚实信用、严守合同等义务，界定了“重大事项”以及管理人应有的举措，依法为投资者利益提供了应有的保护，具有重要的示范效应。

In this case, the core reason was that the investor's contract purpose was not achieved, and the manager was required to bear the responsibility for the fundamental breach of contract to the investor. At the same time, the Award clarifies the obligations of the manager such as loyalty, due diligence, honesty and strict compliance with the contract, defines the "major matters" and the measures that the manager should take, and provides due protection for the interests of investors in accordance with the law, which has an important demonstration effect.