基金管理人投资策略选择时应当履行的义务范围
The Scope of Obligations Fund Managers Must Fulfill When Choosing Investment Strategies
关键词
基金管理人、劣后级投资、审慎勤勉义务、信息披露义务
Key Words
Fund Managers, Subordinated Investments, Obligations of Due Diligence, Obligations of Information Disclosure
裁判要旨
Principle of the award
基金管理人的实际投资安排如偏离基金产品约定的风险评级及投资策略，给投资人造成损失的，需承担相应的违约责任。
Fund managers who deviate from the risk rating and investment strategies agreed upon in the fund products and thereby cause losses to their investors shall bear the corresponding liability for breach of contract.
典型意义
Significance
在法律规定和合同约定的范围，基金管理人通常可以自主决定投资计划，包括适当配置劣后级份额。但在具体投资过程中，基金管理人需结合基金投资的整体情况，按照合同约定的义务范围履行专业审慎和勤勉尽责义务及信息披露义务。同时，投资者尤其是成熟的市场投资主体，应当对投资所包含的风险具有充分的认知能力以及合理的预期，认真了解并具体跟进投资项目的实际安排。
Within the scope of legal and contractual provisions, fund managers can usually decide on investment plans on their own, including the appropriate allocation of subordinated shares. However, in the actual investment process, fund managers need to take into account the overall situation of the fund investment and fulfill the obligations of professionalism, prudence, due diligence, and information disclosure according to the scope of obligations stipulated in the contract. At the same time, investors, especially mature market investment entities, should have full awareness and reasonable expectations of the risks involved in investment, and carefully understand and follow up on the actual arrangements of investment projects.
基本案情
Basic Facts
20XX年4月，A公司与B资本管理有限公司（以下简称B资管公司）、某证券公司签署了《5号债券私募基金合同》（以下简称《基金合同》），约定B资管公司为基金管理人，某证券公司为基金托管人，A公司委托资金至B资管公司进行指定产品（即案涉基金）的投资管理。三方签订的《基金合同》中载明，案涉基金属于稳健级（R2）风险投资品种，以构建投资组合的方式严格控制投资风险，将追求长期稳定的更高投资回报作为投资目标及投资策略。同时，《基金合同》中约定的案涉基金的投资范围非常宽泛，涵盖了市场上绝大多数种类的金融投资产品，且风险特性不一、差异度很大，其中包括信托计划（以及信托计划劣后级份额）等。根据《基金合同》约定，A公司认购案涉基金8000万元。20XX年4月与同年6月，公司先后向B资管公司的案涉基金托管账户支付了3500万元及4500万元投资款，A公司系案涉基金的主要投资人（总投资资金约占案涉基金资金的65%）。案涉基金托管账户于收到A公司两笔投资款后，均先后申购了相应金额的Y信托计划。经仲裁庭查明，案涉基金的投资标的主要集中于X债券项目（约占基金投资份额的30%）和Y信托计划的劣后级份额（约占基金投资份额的70%）。案涉基金在A公司第一次支付认购款3500万元前已投资X债券项目（该时X债券项目长期评级为AA），但在A公司于20XX年4月第一次认购案涉基金前X债券项目已发生停牌事件，并在A公司支付第二笔认购款之前，已有案外人向法院申请对X债券的发行人进行破产清算；后Y信托计划全部资产完成变现，其中劣后级份额利益为0。A公司的投资近乎全部亏损。
In April 20XX, Company A signed the "No.5 Bond Private Fund Contract" (hereinafter referred to as the "Fund Contract") with Asset Management Co., Ltd. B (hereinafter referred to as Asset Management Company B) and a securities company. According to this Fund Contract, Asset Management Company B was the fund manager, the securities company was the fund custodian, and Company A entrusted funds to Asset Management Company B for the investment management of designated products (i.e., the fund involved in the case). The Fund Contract signed by the three parties stated that the fund involved in the case is a steady-risk (R2) venture capital product, which strictly controlled investment risks by constructing an investment portfolio and aimed to pursue long-term stable higher investment returns as its investment goal and strategy. At the same time, the investment scope of the fund involved in the case stipulated in the Fund Contract was very broad, covering most types of financial investment products on the market, with different risk characteristics and great differences, including trust plans (and subordinated shares of trust plans). According to the Fund Contract, Company A subscribed to RMB 80 million of the funds involved in this case. In April and June 20XX, Company A paid investment funds of RMB 35 million and RMB 45 million, respectively, to the custodial account of the involved fund of Asset Management Company B. Company A was the main investor of the involved fund (the total investment 25funds accounted for approximately 65% of the involved fund). After receiving two investment funds from Company A, the custodial account of the involved fund successively applied to Trust Plan Y for corresponding amounts. The arbitral tribunal ascertained that the subject matter was mainly invested in the Bond X project (accounting for about 30% of the fund's investment shares) and the subordinated shares of the Trust Plan Y (accounting for about 70% of the fund's investment shares). The fund involved was invested in Bond X before Company A first paid the subscription amount of RMB 35 million (at that time, Bond X was rated at the AA level). However, Bond X was suspended in April 20XX before Company A's first subscription. Before Company A paid the second subscription amount, an outsider appealed to a court for bankruptcy liquidation of the issuer of Bond X. Later, all assets of Trust Plan Y were liquidated, and the interest of the subordinated shares was zero. Company A's investment was almost entirely lost.
仲裁请求
Arbitration Claim
A公司向上海金融仲裁院提起仲裁，请求裁决B资管公司赔偿其全部投资本金损失。
Company A filed an arbitration with the Shanghai Court of Financial Arbitration, requesting that Asset Management Company B compensate it for all its investment principal losses.
被申请人的答辩意见
Respondent’s Reply
B资管公司认为，鉴于案涉基金底层资产全部为债券，管理人基于此 将案涉基金划分为稳健型基金符合行业惯例。虽然案涉基金系稳健型基金，但同样存在杠杆及本金亏损的风险。其作为基金管理人已经依据法律规定与合同约定充分履行了审慎勤勉义务和信息披露义务。
具体而言，案涉基金投资X债券的时间早于A公司认购案涉基金及X 债券出现风险事件的时间，故B资管公司无需向A公司履行特别告知义务。同时，投资于Y信托计划的劣后级份额符合《基金合同》中关于投资范围的约定，A公司系专业的机构投资者，对于此种风险应当有明确的认识。此外，B资管公司已通过告知A公司投资人账号、密码，官网公示、电子邮件发送月报、估值表等方式履行了信息披露义务，A公司实际已明知案涉基金的底层投向。
综上，A公司的投资损失系宏观风险导致，与基金管理人的行为不具有因果关系，B资管公司无需承担赔偿责任。
Asset Management Company B believed that, given that the underlying assets of the fund were all bonds, it was in line with industry practice for the manager to classify the fund as a steady fund. Although the involved fund was steady, it still carried risks of leverage and principal loss. As a fund manager, it had fully fulfilled its obligations of due diligence, and information disclosure in accordance with legal and contractual provisions.
Specifically, the time when the fund involved invested in Bond X was earlier than the time when Company A subscribed to the fund involved and the time when the risk of Bond X appeared, which left Asset Management Company B no obligation to issue a special notification to inform Company A. At the same time, investing in the subordinated shares of the Trust Plan Y complied with the agreement on investment scope in the Fund Contract. Company A was a professional institutional investor and should clearly understand such risk. In addition, Asset Management Company B had fulfilled its information disclosure obligation by informing Company A of the investors' account numbers and passwords, releasing official announcements, and sending monthly reports and valuation tables via email. Company A was, in fact, well aware of the direction of the underlying investment of the involved fund.
In summary, the investment losses of Company A were caused by macro risks and had no causal relationship with the fund manager's actions. Asset Management Company B does not need to bear liability for compensation.
主要争议焦点
Issue of Dispute
B资管公司是否履行了作为基金管理人的专业审慎和勤勉尽责义务以及风险揭示、信息披露义务。基金管理人对于投资策略的选择是否符合《基金合同》中对于基金产品的风险评级及风险特性的约定。
Whether Asset Management Company B had fulfilled its obligations of professionalism, prudence, and due diligence as a fund manager, as well as its obligations of risk disclosure and information disclosure. Whether the fund manager's choice of investment strategy complied with the agreement on risk rating and risk characteristics of the fund products stipulated in the Fund Contract.
仲裁庭意见
Opinion of the Arbitral Tribunal
（一）关于B资管公司是否履行了专业审慎和勤勉尽责义务。本案中，案涉基金的投资项目主要为X债券项目和 Y 信托计划（包含信托计划劣后级份额）。虽然案涉基金投资X债券项目时，X债券项目 尚未出现破产风险，但当A公司投资案涉基金时，X 债券项目已发生停牌、申请破产等风险事件，案涉基金也因持有X债券项目而出现了严重的投资风险隐患。在此情况下，B资管公司在投资时的注意义务应当提高，其在决定是否投资Y信托计划劣后级份额的问题上应更加专业谨慎。但其后续忽视了案涉基金的投资风险，迅速将A公司的投资资金全部用于购买Y信托计划的劣后级份额。该行为导致案涉基金严重偏离了《基金合同》约定的稳健级风险评级和相关投资策略，实质性地改变了案涉基金的风险特征。因此，B资管公司构成履职不当，违反了合同约定及法律规定的基金管理人所负有的勤勉尽责和专业审慎义务。
（二) B资管公司是否履行了风险揭示和信息披露义务。 各类资管产品（包括信托产品）的劣后级投资人（或其关联方）通常是投资项目的最终融资人或权益人，是底层资产的实际拥有人，也是产品的实际发起人、增信方和产品兑付责任的最终承担方或兜底方，其投资的劣后级份额用于为优先份额投资提供偿付增信和保障。劣后级投资人应当最了解底层资产的情况，投资劣后级份额应该是对风险收益认真测算后的决定行为。
本案中，A公司系案涉基金主要投资人，在基金管理人将其投资资金全部用于购买Y信托计划劣后级份额且X债券项目已出现了严重的投资风险隐患的情形下，A公司相当于“纯粹的”劣后级份额投资人。尽管法律上并不存在对此类（纯粹）劣后型投资的任何限制，但是作为基金管理人，B资管公司同时也作为两层基金投资的核心参与方，有义务在自身充分认知、识别和专业控制Y信托计划投资风险的基础上，向A公司进行充分有效的风险揭示和必要的信息披露。本案中，B资管公司仅通过合同约定、风险揭示条款等披露了案涉基金可以投资于劣后级份额，但并没有向A公司明确说明将把其全部资金集中投资单个信托产品的劣后级份额。因此，在A公司与Y信托计划所投债券的发行人并无利益关联并且完全不知道Y信托计划投资持仓情况下，资管公司没有适当履行其风险揭示和信息披露义务。
(I) Whether Asset Management Company B had fulfilled its obligations of professionalism, prudence and due diligence.
In this case, the main investment projects of the fund involved were Bond X and Trust Plan Y (including subordinated shares of the trust plan). Although the Bond X had not yet faced bankruptcy risk when the involved fund invested in it, it had already experienced risk events such as suspension of trading and bankruptcy application when Company A invested the involved fund into it. The involved fund faced serious investment risks due to the holding of the Bond X. In this case, Asset Management Company B should increase its obligation of care when investing, and should be more professional and cautious in deciding whether to invest in the subordinated shares of Trust Plan Y. However, it subsequently ignored the investment risk of the involved fund and quickly used all of Company A's investment funds to purchase subordinated shares of Trust Plan Y. This behavior resulted in a serious deviation of the fund from the steady-risk rating and related investment strategies agreed upon in the Fund Contract, substantially changing the risk characteristics of the fund involved. Therefore, Asset Management Company B performed its duties improperly and violated the obligations of due diligence, professionalism, and prudence that fund managers shall bear as agreed in the contract and as required by law.
(II) Whether Asset Management Company B has fulfilled its obligations of risk and information disclosure. The subordinated investors (or their affiliates) of various asset management products (including trust products) are usually the ultimate financiers or beneficiaries of the investment projects, the actual owners of the underlying assets, the actual sponsors and credit enhancers of the products, and the ultimate bearers or guarantors of product repayment responsibilities. The subordinated shares of their investments are used to provide repayment enhancement and protection for the investment of priority shares. 30Subordinated investors should be most familiar with the underlying assets, and investing in subordinated shares should be a decision made after carefully calculating risks and returns. In this case, Company A was the principal investor of the fund involved. When the fund manager used all of its investment funds to purchase subordinated shares of the Trust Plan Y in the situation where the Bond X had already shown serious investment risks, Company A was equivalent to a "pure" investor of subordinated shares. Although there were no legal restrictions on this type of (pure) subordinated investment, Asset Management Company B, as a fund manager and a core participant in the two-tier fund investment, had an obligation to make full and effective risk disclosure and necessary information disclosure to Company A based on its full understanding, identification, and professional control of the investment risks of the Trust Plan Y. In this case, Asset Management Company B only disclosed through contractual agreements and risk disclosure clauses that the involved fund could invest in subordinated shares, but did not clearly state to Company A that it would invest all of its funds in the subordinated shares of a single trust product. Therefore, when Company A had no interest relationship with the issuer of the bonds invested in the Trust Plan Y and was completely unaware of the investment holdings of the Trust Plan Y, Asset Management Company B did not properly fulfill its obligations of risk disclosure and information disclosure.
裁决结果
Award对A公司申请全额赔偿全部本金损失的请求，仲裁庭认为虽然A公司的损失与B资管公司违反管理人专业审慎、勤勉义务以及信息披露义务的行为直接相关，但A公司自身作为成熟、专业的市场投资主体，其没有认真了解和具体跟进案涉基金的实际投资安排，风险管理不到位，故对其损失也负有一定的责任。因此，在综合考虑投资劣后级份额给投资人造成的实际损失及A公司投资案涉基金的占比后，酌情认定B资管公司应对A公司投资本金的损失承担部分赔偿责任。
The arbitral tribunal, in response to Company A's request for full compensation for all principal losses, believed that although Company A's losses are directly related to Asset Management Company B's breach of its duties of professional prudence, due diligence, and information disclosure, Company A, as a mature and professional market participant, failed to adequately understand and follow up the actual investment arrangements of the funds involved and lacked proper risk management, thereby bearing certain responsibilities for its losses. Therefore, after comprehensively considering the actual losses caused to investors by the investment in subordinated shares and the proportion of Company A's investment in the fund involved, it has been determined at discretion that Asset Management Company B should bear partial compensation liability for the loss of Company A's investment principal.
案件评析
Case Analysis
本案争议焦点集中在两个方面：一是基金管理人是否履行了勤勉义务？具体言之，基金管理人将案涉基金财产投向了X债券和Y债券信托计划的劣后级份额，该投资策略是否符合《基金合同》对基金产品风险评级及风险特性的约定？二是基金管理人是否履行了风险揭示、信息披露等义务？
关于基金管理人的勤勉义务，我国相关法律法规多有规定。例如， 《证券投资基金法》第九条第一款要求基金管理人等主体从事基金服务。
活动时，应当恪尽职守，履行诚实信用、谨慎勤勉的义务。中国证监会2014年颁布的《私募投资基金监督管理暂行办法》第四条第一款也有同样规定。2023年国务院通过的《私募投资基金监督管理条例》则将该项义务表述微调为“诚实守信、谨慎勤勉”。一般认为，基金管理人的勤勉义务与忠实义务共同构成信义义务的核心内容。相较于是否履行忠实义务的判定，确认是否履行勤勉义务常常面临更大的困难。忠实义务的要义在于禁止利益冲突，义务边界和判断标准相对清晰。如果可将忠实义务理解为“不能偷钱”，那么勤勉义务要求的“不能偷懒”的界定标准无疑更加模糊。当然，勤勉义务界定标准上的模糊化不能简单归咎于相关法规在提及该项义务时多使用抽象表述，而是源于勤勉义务自身的功能定位。在法律和监管规则要求相对模糊的背景下，基金合同等文件一般也会对基金管理人在基金投资、管理、退出各阶段的履职行为提出更多的具体要求，这些条款也是裁判者判断基金管理人是否勤勉尽责的重要依据。
依据本案《基金合同》记载，案涉基金属于稳健级（R2）风险投资品种，以构建投资组合的方式严格控制投资风险，将追求长期稳定的更高投资回报作为投资目标及投资策略。《基金合同》约定的案涉基金投资范围非常宽泛，包括现金、银行存款、股票、债券、各类期货期权以及信托计划（包含劣后级份额），基本涵盖了我国市场中的绝大多数金融投资产品。经仲裁庭查明，案涉基金的投资标的主要集中于X债券项目（约占基金财产总额的30%）和Y债券信托计划的劣后级份额（约占基金财产总额的70%）。表面上看，基金管理人的上述投资完全符合《基金合同》对投资范围的约定，也不在合同约定的投资限制和投资禁止范围之内，其投资策略选择似乎无可非议。但在合同约定的上述投资范围内，各类金融投资产品的风险差异实际上非常明显。私募基金由基金管理人负责具体投资运作，基金管理人当然有权决定案涉基金财产的投资方向和投资额度。那么，基金管理人在作出投资决策时，是否只需要满足投资范围的约定即可万事大吉呢？答案显然不是。正如本案仲裁庭指出的那样，投资范围仅仅说明可投资标的资产的选择范围，并不等同于基金管理人可以不顾案涉基金的稳健性特性而集中投资于特定信托计划的劣后级份额。案涉基金可以投资或适当配置劣后级份额，但必须确保实际投资安排不偏离案涉基金设定的稳健策略。仲裁庭在原则承认债券/固定收益类投资属于相对稳健投资的基础上，准确区分并论证了这两类投资产品具备不同的风险等级和风险特征，指出不合适的债券标的选择、不适当的仓位配置以及不合理的杠杆比例，都可能增加投资风险。由于案涉基金绝大部分资产投向了Y债券信托计划的劣后级份额，且优先级份额与劣后级份额比例接近3：1，劣后级投资人极易遭受投资本金出现大额亏损乃至全部损失的结果。因此，基金管理人的投资行为并不符合本案合同设定的稳健级基金的投资策略，实质性地改变了案涉基金的风险特征，提升了案涉基金的风险等级，由此可以认定基金管理人履职不当，有违勤勉尽职和专业审慎义务。可以说，仲裁庭在该争议问题上认定事实清楚，适用法律准确，分析逻辑清晰，论证严谨有力，为判断基金管理人在投资阶段是否勤勉尽责提供了很好的示范裁决。
关于基金管理人的风险揭示和信息披露义务。众所周知，良好的信息披露可以满足投资者的知情需求，减少信息不对称的发生，也有利于实现对基金管理人的监督制约。《私募投资基金监督管理暂行办法》在第二十四条对信息披露有一般性规定，中国证券投资基金业协会发布的《私募投资基金信息披露披露办法》在第九条规定了基金管理人应当向投资者披露的具体信息种类，包括基金的投资情况、资产负债情况、投资收益分配情况、基金承担的费用和业绩报酬安排、可能存在的利益冲突等等。
基金管理人应在基金的整个生命周期内履行信息披露义务。在基金募集阶段，信息披露更多的被表述为风险揭示、告知说明等概念。本案中，《基金合同》在风险揭示条款、风险确认书以及投资范围等处表明案涉基金可以投资于信托计划的劣后级份额，基金管理人对申请人的电话回访也有此类说明，但这些并不能证明基金管理人已经很好地履行了此项义务。按照《九民纪要》第76条，告知说明义务的履行是金融消费者能够真正了解各类高风险等级金融产品或者高风险等级投资活动的投资风险和收益的关键，人民法院应当根据产品、投资活动的风险和金融消费者的实际情况，综合理性人能够理解的客观标准和金融消费者能够理解的主观标准来确定卖方机构是否已经履行了告知说明义务。就本案而言，基金管理人在收到申请人投资后迅速将资金投向了Y债券信托计划的劣后级份额。鉴于案涉基金风险评级为稳健级，可以投资的产品范围极为广泛，且涵盖了很多低风险产品。对一个具备正常理性的投资者来说，某产品可以投资于劣后级份额，和该产品的大部分资金将投资于劣后级份额，显然不可相提并论，后者面临的风险会明显增加。特别是，本案与实践中常见的劣后级投资存在根本区别：在后者，劣后级投资人通常是一个投资项目的最终融资人或权益人，是底层资产的实际拥有人，其对底层资产的具体情况非常熟悉；而本案申请人作为主要投资人的案涉基金是“纯粹的”劣后投资人，面临的投资风险显著上升。由此，基金管理人更应将案涉投资的风险及特征向申请人作更充分及时的披露和提醒，以确保申请人是在充分认知投资风险的情况下作出投资决定。但是，基金管理人并没有向申请人明确说明案涉基金将把申请人的全部资金集中投资单个信托产品的劣后级份额，也无证据显示其向申请人披露了Y债券信托计划的基本情况如产品规模、底层标的资产、投资人结构及优先级投资人等信息。在此情况下，仲裁庭最终认定基金管理人没有适当履行风险揭示和信息披露义务，可谓有理有据。
The issues of the dispute in this case centers on two main aspects. The first is whether the fund manager's investment of the fund assets, in this case, into the Bond X and the subordinated tranches of Trust Plan Y have aligned with the risk rating and risk characteristics stipulated in the Fund Contract. The second is whether the fund manager has fulfilled its obligations concerning disclosing risks and information.
In China, numerous regulations stipulate fund managers' obligation of due diligence. For instance, Article 9(1) of the Securities Investment Fund Law of the People's Republic of China stipulates that fund managers and other entities engaged in fund services shall devote themselves to their duties and perform their obligations of good faith, prudence, and due diligence, which aligns with Article 4(1) of the Interim Measures for the Supervision and Administration of Privately-Raised Investment Funds issued by the China Securities Regulatory Commission in 2014. Moreover, the Regulation on the Supervision and Administration of Private Investment Funds, approved by the State Council in 2023, refines the expression of such obligations into "honesty, trustworthiness, prudence and due diligence." It is generally understood that the obligation of due diligence and the obligation of loyalty constitute the core of the fiduciary obligations of fund managers. Compared with determining compliance with the obligation of loyalty, assessing compliance with the obligation of due diligence often presents greater challenges. The obligation of loyalty is prohibiting conflicts of interest with relatively clear boundaries and standards for judgment. If the obligation of loyalty can be understood as "not stealing money from the fund," then the obligation of due diligence requires standards like "not being lazy," which are undoubtedly more ambiguous in the definition. However, the ambiguity indefining the standards of the obligation of due diligence cannot simply be attributed to the abstract language often used in regulations concerning this obligation but to the functional role of this obligation itself. In contexts where legal and regulatory requirements are relatively ambiguous, fund contracts and similar documents typically impose more specific requirements on fund managers during fund investment, management, and exit stages. These provisions serve as crucial criteria for judges to determine whether fund managers have fulfilled their obligations diligently.
According to the provisions of the Fund Contract, the fund involved was categorized as a steady-risk (R2) investment product. It strictly controlled investment risks through portfolio construction, aiming for long-term stable and higher investment returns as its investment goal and strategy. The Fund Contract broadly defined the investment scope of the involved fund, including cash, bank deposits, stocks, bonds, various types of futures and options, and trust plans (including subordinated shares), covering most financial investment products in the Chinese market. Upon investigation, the arbitral tribunal found that the subject matters of the involved fund were concentrated in Bond X (approximately 30% of the fund's total assets) and subordinated shares of Trust Plan Y (approximately 70% of the fund's total assets). On the surface, these investments by the fund manager fully complied with the provisions of the Fund Contract regarding the investment scope and do not fall in the scope of the contract's investment restrictions or prohibitions, making their investment strategy seemingly unquestionable. However, within the aforementioned investment scope defined by the contract, there were significant differences in risk among various financial investment products. Privately raised funds were operated by fund managers who are responsible for specific investment operations, leaving them the right to decide the direction and amount of the investment of the fund's assets involved in the case. Does this mean that fund managers only need to meet the provisions of the investment scope when making investment decisions? The answer is obviously no. As pointed out by the arbitral tribunal in this case, the investment scope merely indicated the range of the subject matters of the assets available for investment and did not imply that fund managers can concentrate investments in specific trust plans' subordinated shares, disregarding the steady nature of the fund in concern. While the involved fund may be invested in or appropriately allocated to subordinated shares, it must be ensured that the actual investment arrangements align with the steady strategy set for the fund. The arbitral tribunal recognized, based on the fundamental assumption that bond/fixed income investments belong to relatively steady investments, that these two types of investment products possessed different risk levels and risk characteristics. In this sense, inappropriate selection of bond targets, improper position allocation, and unreasonable leverage ratios might increase investment risks. Due to the fact that the vast majority of the involved fund's assets were allocated to subordinated shares of the Trust Plan Y, with a ratio of preferred shares to subordinated shares close to 3:1, subordinated investors were highly susceptible to significant capital losses or even complete losses. Therefore, the fund manager's investment behavior did not conform to the steady-level investment strategy outlined in the Fund Contract in this case, substantially altering the risk characteristics of the involved fund and increasing its risk level. Consequently, it could be determined that the fund manager acted improperly, contravening their obligations of due diligence, professionalism, and prudence. Based on the analysis above, the arbitral tribunal made a clear finding of the facts, accurately applied the law, presented a logical and rigorous analysis, and provided a strong and exemplary ruling for judging whether the fund manager acted diligently and responsibly during the investment phase.
Regarding the obligations of risk disclosure and information disclosure of the fund manager, it is well known that good information disclosure can meet the information needs of investors, reduce the occurrence of information asymmetry, and also facilitate the supervision and restraint of the fund manager. Article 24 of the Interim Measures for the Supervision and Administration of Private Investment Funds provides general provisions on disclosure. Additionally, Article 9 of the Measures for the Information Disclosure of Privately-Raised Investment Funds, issued by the Asset Management Association of China, stipulates specific types of information that fund managers must disclose to their investors, including details on the fund's investments, asset-liability status, investment income distribution, the fees borne by the fund and performance remuneration, and potential conflicts of interest, etc.
The fund manager is obligated to fulfill the obligation of information disclosure throughout the entire life cycle of the fund. During the fund-raising phase, disclosure of information is often expressed as risk disclosure and explanation. In this case, the Fund Contract stipulated in the provisions concerning the risk disclosure clauses, risk confirmation documents, and investment scope that the fund could be invested in subordinated shares of trust plans. The fund manager also provided similar explanations during telephone follow-ups with the claimant. However, these did not prove that the fund manager adequately fulfilled this obligation. According to Article 76 of the Summaries of the National Conference for Work of Courts on the Trial of Civil and Commercial Cases, fulfilling the obligation to inform and explain was crucial for financial consumers to truly understand the investment risks and returns of various high-risk financial products or investment activities. The people's courts should determine whether the selling institution has fulfilled its obligation to inform and explain based on objective standards that rational persons could understand and subjective standards that financial consumers can comprehend, as well as taking into account the risks of the products and investment activities and the actual circumstances of the financial consumers. In this case, the fund manager swiftly invested the funds into subordinated shares of the Trust Plan Y after receiving the claimant's investment. Given that the risk rating of the fund in concern was steady and the range of permissible investments was broad, encompassing many low-risk products, for a rational investor, the possibility of investing in subordinated shares versus the vast majority of funds being allocated to them was clearly not comparable since the latter investment significantly increases the risk. Specifically, there was a fundamental difference between this case and common practice regarding subordinated investments. Typically, subordinated investors were an investment project's final financiers or equity holders, possessing detailed knowledge of the underlying assets. However, in this case, the claimant, as the primary investor in the fund, was a "pure" subordinated investor, facing a markedly higher investment risk. Therefore, the fund manager should have provided more comprehensive and timely disclosure and reminders to the claimant regarding the risks and characteristics of the investment in concern. Nevertheless, the fund manager did not explicitly disclose to the claimant that the fund would concentrate all of the claimant's funds into subordinated shares of a single trust product, nor was there evidence that it disclosed basic information about the Trust Plan Y, such as the product scale, underlying assets, investor structure, and preferred investors. In this case, the arbitral tribunal finally determined that the fund manager did not properly fulfill the obligations of risk revelation and information disclosure, which could be said to be reasonable and well-founded.