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Global Registration Services – Market Update, Q2 2015

2015年 7月 23日

AIFMD

Implementation update

Romania

On 14 May 2015, the Romanian transposition of AIFMD, Decree Law no. 74, was published in the Official Gazette.

Slovenia

On 23 May 2015, the Slovenian transposition of AIFMD, the Law on Alternative Investment Fund Manager (ZUAIS), entered into force.  The SMA is expected to issue general implementation provisions by 23 February 2016.

ESMA AIFMD reporting Q&A

On 12 May 2015, ESMA published an updated Q&A document on the application of AIFMD. The document includes new questions and answers on reporting and on the calculation of leverage.

Most notable updates include clarification on the following: how AIFMD reporting obligations apply to AIFMs that are sister companies owned by another AIFM; the reporting obligations that apply to a registered AIFM that opts in under AIFMD; whether commitments or actual capital drawdowns should be included in AIFMD reports for AIFs with private equity strategies; the reporting obligations of a non-EU AIFM whose total value of assets under management does not exceed the thresholds of Article 3(2)(a) and (b) of AIFMD and that markets AIFs in the EU under a NPPR; whether AIFMs should apply the same reporting frequency to AIFs that are sub-funds of the same umbrella AIF and the procedure for first reporting on AIFs.

Please click here for a copy of the document. 

AIFMD Article 42 reporting obligations: Luxembourg, Netherlands and Germany

In June 2015, the CSSF, AFM and BaFin disclosed in discussions with service providers that they consider it to be best practice for a non-EU AIFM marketing an AIF in Luxembourg, the Netherlands and Germany respectively, under Article 42 of AIFMD to send the AIF's AIFMD-compliant annual report to the CSSF, AFM and BaFin as applicable. This is an extension of Article 24(3) of AIFMD which states that the report is required merely to be made available to local regulators on request.

Annual reports will be required to be sent to the above regulators within six months following the end of the AIF's financial year.  The reports can be sent to the CSSF at aifm@cssf.lu and to the AFM at non.eu.notifications.aifmd@afm.nl.  While there is currently no email address available for submission to BaFin, the reports can be sent by post to:

Bundesanstalt für Finanzdienstleistungsaufsicht
Marie-Curie-Straße 24-28
60439 Frankfurt

France: Limitation of requirement to appoint centralising correspondent

On 10 June 2015, the Official Gazette published the Decree of 4 May 2015, which amends Book IV of the AMF General Regulation (the "Regulation").  The amendment removes the requirement for foreign EU AIFMs that market EU AIFs in France towards professional investors to appoint a centralising correspondent.  For the avoidance of doubt, the requirement will still apply to (third country) non-EU AIFMs seeking to market AIFs in France and to foreign AIFs that market towards retail investors in France.  

Please click here for a copy of the Official Gazette and here for a copy of the Regulation. There are no English versions available to date.

Italy: Publication of prescribed AIFMD reporting procedures

Consob have published the prescribed operating procedures for reports under Articles 3 and 24 of AIFMD.  The new system will take effect from 1 October 2015.

Please click here for a copy of the Reporting Instructions.

Malta: Guidelines on AIFMD Annex IV reporting

On 10 April 2015, the MFSA published an FAQ document on the reporting obligations applicable to AIFMs under Articles 3 and 24 of AIFMD.  The document includes guidance on the format and content of the prescribed AIFMD reporting.

Please click here for a copy of the document.

Netherlands: Updated AIFMD Article 42 Notification Form

In April, the AFM issued a new version of the AIFMD Article 42 Notification Form applicable to both licensed EU AIFMs and non-EU AIFMs. The new version prescribes the process by which an AIFM may de-notify an AIF already notified in the Netherlands.

Please click here for the updated Form.

In addition, in April 2015 the AFM issued the following two new forms: the Retail Distribution Notification Form for Licensed EU AIFMs and the AIFMD Article 36 Notification Form for licensed EU AIFMs.

Please click here and here for the new Forms.

Europe

Austria: Amendment to Investment Funds Act and Real Estate Investment Funds Act

In April, the Austrian Ministry of Finance issued a draft law amending the Austrian Investment Fund Act and the Austrian Real Estate Investment Act in order to transpose UCITS V into Austrian law.   It is expected to come into force on 16 March 2016.

For further information, please contact a member of the Maples Global Registration Services team.

Belgium: Transversal Royal Degree on information requirements for financial products marketed towards retail clients

On 12 June 2015, the Royal Decree of 25 April 2014 (the "Transversal Royal Decree") entered into force, subject to the provisions of the Royal Decree set out in the paragraph below.  The scope and purpose of the Transversal Royal Decree corresponds with the European Regulation 1286/2014 of 26 November 2014 of the European Parliament and Council on Key Information Documents for Packaged Retail and Insurance-based Investment Products (the "European Regulation").  The Transversal Royal Decree aims to increase the protection of retail investors and it prescribes the requirement to provide retail investors with certain information sheets that contain information on the financial product being marketed.  The Transversal Royal Decree also sets out regulations on the advertising of financial products.

The Royal Decree of 2 June 2015 (the "Royal Decree") postpones the entry into force of the above requirement to provide retail investors with certain information sheets.  The postponement allows time for certain discrepancies between the Transversal Royal Decree and the European Regulation to be addressed.

Please click here for a copy of the Transversal Royal Decree and here for a copy of the Royal Decree.

France: Updated Guide on UCITS and AIF marketing regimes

On 26 June 2015, the AMF published an updated Guide to Marketing Schemes of Mutual Funds and AIFs in France.

Please click here for a copy of the Guide in French.  There is no English version available to date. 

Italy: Q&A on the distribution by intermediaries of complex financial products to retail investors

On 23 June 2015, CONSOB published a Q&A document on the application of Communication 0097996/14 of 22 December 2014 for intermediaries distributing complex financial products to retail investors (the "Communication").  The Q&A clarifies the scope of the Communication, the internal measures recommended to intermediaries, the list of products of high complexity and the obligations of intermediaries.  In particular, the Q&A confirms the application of the Communication to reverse solicitation and it sets out the measures that intermediaries are required to take to prevent the reliance on same circumventing the provisions of the Communication.

Please click here for a copy of the Q&A.

Switzerland: Removal of obligation to calculate PTR

On 20 April 2015, the SFAMA updated the "Guidelines on the Calculation and Disclosure of the TER and PTR of Collective Investment Schemes" to make provision for the recent removal of the obligation to calculate PTR from the Swiss Collective Investment Schemes Ordinance.  The updated Guidelines came into force on 1 June 2015 and the calculation of PTR is no longer required for semi-annual reports from 30 June 2015 onwards and for annual reports from 31 December 2015 onwards.

Please click here for a copy of the Guidelines.

Switzerland: FINMA lifts limitation on recognition of Guidelines on Duty to Keep Documentary Records

On 5 June 2015, FINMA lifted the two year time limit on the recognition of the 'Guidelines on the duty to keep documentary records according to Section 24(3) of the Federal Act on Collective Investment Schemes,' which was first granted during November 2013. The intention of the two year limitation period was to review the Guidelines in the context of the ongoing Financial Services Act ("FSA") project. As the FSA project has not yet concluded, FINMA have undertaken to conduct the review once it is at a more advanced stage.

The Guidelines apply to the duty to keep documentary records that arises only when an authorised institution provides individual advice to a client i.e. when a client advisor makes a personal recommendation to buy units or shares in one or more collective investment schemes.

Please click here for a copy of the Guidelines and here for the official FINMA statement lifting the two year time limit.

Americas

Canada: Changes to the NPPR

On 5 May 2015, the CSR published Amendments to the National Instrument 45-106 Prospectus and Registration Exemptions dated 19 February 2015.  The Amendments require natural persons who qualify as Accredited Investors under the Accredited Investor Exemption to complete a Risk Acknowledgement Form, unless their financial assets exceed $5 million.  In addition, the Amendments prescribe that natural persons will no longer qualify under the Minimum $150,000 Investment Exemption.  These changes aim to provide increased protection for retail investors.

For further information, please contact a member of the Maples Global Registration Services team.

Asia Pacific

China: China opens to Hong Kong registered funds

On 22 May 2015, the Hong Kong SFC and the China SRC released a joint statement announcing the launch of the Mutual Recognition of Funds ("MRF") Framework on 1 July 2015.  The Framework permits international asset managers to market Hong Kong registered fund products towards Chinese investors and vice versa.  To be eligible, the fund to be marketed is required to have a track record of at least one year and assets under management of at least Rmb200 million ($32 million).  The Framework facilitates cross-border investment and opens up the capital markets of both countries.

Please click here for the MRF Circular published on 22 May and please click here for the MRF FAQ document published on 26 June 2015.

Hong Kong: Product Key Fact Statements

The SFC has enhanced the disclosure requirements for investment products being marketed to the Hong Kong public with the introduction of Key Fact Statements ("KFS"), which provide investors with a concise, plain English summary of the key features and risks of the applicable investment product.

Please click here for illustrative templates of the KFS.

Japan: Bill to amend Financial Instruments and Exchange Act

On 24 March 2015, the Amendment Bill to the Financial Instruments and Exchange Act was submitted to the Japanese Diet.  The Bill is expected to pass in July 2015 and it is likely to come into force in June/July 2016.

The Bill limits the application of the QII-targeted business exemption ("Exemption") currently available to the General Partner ("GP") of a Limited Partnership ("LP").  While GPs making use of the Exemption will be entitled to rely on same until termination of the LP, certain sections of the revised Act (e.g. bookkeeping and reporting obligations, the requirement to appoint a representative in Japan) will apply to them.

Please click here for further details.

Saudi Arabia: Opening of Saudi Arabia stock market to Qualified Foreign Investors

On 4 May 2015, the CMA issued the Rules for Qualified Foreign Financial Institutions Investment in Listed Shares.  The Rules provide for the opening of the Saudi Arabia stock market to Qualified Foreign Investors ("QFIs") from 15 June 2015.  Foreign banks, brokerage and securities firms, fund managers, and insurance companies are eligible to qualify as QFI's provided that they are duly regulated and incorporated in a jurisdiction considered equivalent by the CMA.  In addition, the QFI is required to have $5 billion in assets under management (or $3 billion if an exemption is granted by the CMA) and a track record of at least five years.  

Please click here for a copy of the Rules.

How Maples can help

Maples Global Registration Services ("Maples GRS") supports UCITS  and AIFMs in their multi-market distribution strategies by providing an integrated global network of experts coordinated by a dedicated central team supporting all legal and regulatory aspects governing the cross border marketing of investment funds on both a private placement and public offer basis.

Should you require any further information or assistance in this regard, please do not hesitate to contact a member of the Maples GRS team.


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