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Global Registration Services – Market Update Q2 and Q3 2018

2018年 10月 17日

Global Registration Services – Market Update Q2 and Q3 2018

AIFMD

Ireland: CBI Q&As on AIFMD

On 4 May 2018, the CBI published the 30th edition of its AIFMD Q&As. The update concerns Q&A 1083, covering loan originating QIAIFs ("LQIAIFs") and reporting obligations under the Credit Reporting Act 2013.

Luxembourg: Statistical reporting of non – regulated AIFs

Circular BCL 2018/241 published on 18 May 2018 aims to inform non-regulated alternative investment funds ("AIFs") of new statistical reporting obligations to the Banque Centrale du Luxembourg ("BCL") under Regulation ECB/2013/38.

Following this circular, each unregulated AIF will be required to complete a form with information regarding the AIF, its main service providers and the AIF's latest balance sheet. 

Information must be submitted within a week of the fund starting its first day of activities. The BCL currently grants exemptions to non-regulated AIFs if their total assets are below €500 million. 

CSSF updated AIFMD Q&As

On 14 August 2018 the CSSF updated its AIFMD Q&As to cover a number of provisions relating to the PRIIPs Regulation on Luxembourg AIFs.

ESMA Trends, Risk, and Vulnerabilities Report

On 4 April 2018, ESMA published a report outlining the market trends of all AIFs operating within the EU. It found, amongst other things, that the passport regime is the predominant method of managing cross border AIFs in the EU.

ESMA updated UCITS Q&As

On 25 May 2018 ESMA updated its Q&As on the UCITS Directive.

The update includes one new question and answer at Section IX- Remuneration Q.1 on "the application of remuneration disclosure requirements to staff of the delegate of an UCITS management company to whom investment management functions have been delegated".

It clarifies that the remuneration – related disclosure requirements under Article 69(3) (a) of the UCITS Directive also apply to the staff of the delegate of a management company to whom investment management functions (including risk management) have been delegated.

On 23 July 2018 ESMA published a further update to its UCITS and AIFMD Q&As. 

The Q&A includes a number of new questions and answers including and in relation to: 

  • UCITS investing in other UCITS with different investment policies (Section I, Q.6);
  • Calculation of issuer concentration limits pursuant to Article 52 of the UCITS Directive (Section I, Question 5);
  • Reuse of assets by a UCITS depositary under Article 22(7) of the UCITS Directive (Section I, Q1c); and
  • The supervision of branches of UCITS Management Companies or AIFMs providing MiFID investment services (Section I, Q7).

ESMA reminder to UK-based regulated entities on authorisation applications

On 12 July 2018 ESMA released a public statement in order to highlight the importance to all market participants to prepare for the possibility of no agreement in the context of the UK withdrawing from the EU. As there is no guarantee that a transition period will be agreed, entities need to consider the scenario where a hard Brexit would take place on 30 March 2019.

ESMA stressed the importance of the timeline to submit requests for authorisation to the National Competent Authorities ("NCAs") and for regulated entities wishing to relocate in the context of Brexit.

ESMA response to EIOPA questions on AIFMD

On 7 August 2018 the ESMA published a letter it sent to EIOPA on 25 July 2018 relating to AIFMD responding to certain AIFMD-related questions raised by EIOPA relating to the AIF definition and leverage.

ESMA updated list of AIFMD MoUs

On 28 September 2018 ESMA published an updated list of AIFMD MoUs signed by certain EU NCAs, including the CBI and the NCAs in Abu Dhabi, Bahrain and Qatar.

Europe

Finland: New Processing Fees

As noted in our client update on 30 August 2018, the Financial Supervisory Authority of Finland ("FIN-SA") has announced a new schedule of processing fees which were implemented on 1 September 2018.

Ireland: EU Prospectus Amendment Regulations

On 3 August 2018, the Prospectus (Directive 2003/71/EC) (Amendment) Regulations 2018 was signed into law.

These fulfil Ireland’s obligation to transpose the provisions of the Prospectus Regulation (EU 2017/1129) that come into effect before its full transposition in July 2019.

Switzerland: New financial markets legislation

On 15 June 2018 the Financial Services Act ("FinSA" or "FIDLEG") and the Financial Institutions Act ("FinIA" or "FINIG") (together the "Acts" currently available in German) were adopted by the Swiss parliament. The expected date for the Acts to become effective is 1 January 2020.

FinSA aims to enhance client protection and to establish a level playing field with respect to the regulatory framework of financial services. It sets out the new prerequisites for providing financial services, the requirements applicable to the offering of financial instruments in Switzerland and the rules on assertion of customers' rights.

FinIA aims to uniformly regulate the supervision of all financial services providers that conduct any type of asset management activity.

United Kingdom

FCA "Temporary Permissions Regime"

As noted in our recent client update on 24 August 2018, the UK Government issued the draft statutory instrument that will form the legislative basis of the temporary permissions regime for inbound passporting EEA firms and funds.

Asia Pacific

Australia: Foreign financial services providers' relief proposals

On 1 June 2018, the ASIC released a consultation paper CP 301 proposing a modified licensing regime for foreign financial service providers carrying on a financial services business in Australia with wholesale managed funds.

China: Regulatory update on QFII reforms

On 15 June 2018, the State Council of China issued a comprehensive list of reform directives which came into force with immediate effect.  These reforms aim to further open up relevant industries to foreign investors and to facilitate the promotion of foreign investment activities in China. These include relaxing restrictions to establish foreign invested financial institutions, widening the scope of sanctioned businesses and expanding the cooperative initiatives between the mainland and foreign financial markets.

Hong Kong: Enhanced fund data reporting

On 29 June 2018 SFC issued a circular announcing the launch of enhanced reporting requirements and to provide details regarding the implementation timeline and filing arrangements. Samples of the reporting forms are also provided to facilitate preparation for the launch of enhanced data reporting.

Hong Kong: Professional Investor rules

The SFC published amendments to the Securities and Futures (Professional Investor) Rules ("PI Rules") which were introduced on 13 July 2018.

The amendments are aimed at high net worth professional investors under the PI Rules and have broadened the category of professional investors.

As part of these amendments, on 13 July 2018 the SFC published a circular which provides guidelines to directors of holding companies which are now required to ensure that shareholders are properly notified when the company becomes a professional investor under the amended PI rules. Further, intermediaries, as part of their KYC procedures, require confirmation to ensure shareholders are properly informed about a holding company's status before providing services to it as a professional investor.

The key aims of the changes to the PI Rules are to broaden the scope of individuals and corporations which are to be considered professional investors, consequently qualifying more corporations as professional investors. A copy of the changes can be found here.

Hong Kong: SFC guidance on disclosure of trailer fees

In June 2018, the SFC published FAQs related to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (“Code of Conduct”).

The aim of these FAQs is to deliver guidance on what is expected on the disclosure of trailer fees under paragraph 8.3(b)(ii) of the Code of Conduct which came into force on 17 August 2018.

Hong Kong: Updated FAQs

On 4 September 2018, the SFC published updated FAQs in relation to open-ended fund companies. In particular, Questions 17 and 20 have been updated.

Singapore: Amendments to SFA and FAR regulation

In June 2018, Singapore MAS published the Securities and Futures (Amendment) Act ("SFAA") and related regulations, as well as the Financial Advisers (Amendment) Regulations, which will be implemented on 10 December 2018.

The main amendments are to the following:

  • Definition of Accredited Investors ("AI");
  • Definition of collective investment schemes ("CIS");
  • Product Highlights Sheet ("PHS") requirements;
  • Fair and balanced advertisement; and
  • Removal of exemption under the Financial Advisers Regulations ("FAR") for advising overseas investors.

Singapore: MAS revised guidelines on licensing, registration and conduct of business for fund management companies

On 26 July 2018, MAS published revised Guidelines on Licensing, Registration and Conduct of Business for Fund Management Companies.

Those who will be affected by these changes include:

  • Fund management companies which hold a capital markets services licence to conduct business in fund management with “qualified investors” only; and
  • Fund management companies which hold a capital markets services licence to conduct business in fund management on behalf of venture capital funds only and registered fund management companies ("FMCs").

Singapore: New guidelines on liquidity risk management for fund management companies

On 16 August 2018, MAS announced new Guidelines on Liquidity Risk Management Practices for Fund Management Companies ("Guidelines") introducing a liquidity risk management framework  for FMCs in regard to the CIS which they manage. The Code on Collective Investment Schemes ("Code") was amended on the same date.

The Guidelines apply to licensed FMCs which hold a capital markets services licence for fund management, as well as registered FMCs (which are registered under paragraph 5(1)(i) of the Second Schedule to the Securities and Futures (Licensing and Conduct of Business) Regulations). The Guidelines do not apply to holders of a capital markets services licence for real estate investment trust management. 

Taiwan: Changes to private placement

Following the amendments to the Regulations Governing Securities Investment Trust Funds and Regulations Governing Offshore Funds  (currently only available in Chinese).The FSC amended Articles 51 and 52 on 13 July 2018 and 23 July 2018 to increase the total number of persons a foreign fund can target in order to be considered a private placement from 35 to 99.

Article 51 of the Regulations Governing Securities Investment Trust Funds and Article 52 of the Regulations Governing Offshore Funds state that a foreign fund may carry out a private placement in Taiwan if it targets the following two types of counterparties:

  1. Banks, bills finance enterprises, trust enterprises, insurance companies, securities enterprises, financial holding companies and other juristic persons or institutions approved by the Financial Supervisory Commission (the "FSC") in Taiwan.
  2. Natural persons, juristic persons, or funds meeting certain conditions set by FSC.

Americas

Chile: Pension funds allowed to invest in private equity and private debt

On 24 August 2018, the Chilean pension regulator (Superintendencia de Pensiones – “SP”) published the SP Official Ruling 18847 which provides clarification on the hedge fund prohibition rule (SP NCG 220 – Hedge Fund Prohibition).

The regulations published by SP to implement the amendment made by Law 20,956 to the pension fund statute (DL 3,500) that would allow direct investment of Chilean pension funds in foreign private equity funds and make co-investments.

In November 2017 the SP prohibited investment in any investment fund that used hedge fund investment strategies.

After public consultation and in order to narrow the prohibition, SP published rule SP NCG 220, which provided the following three requirements that all private funds had to meet in order not to be considered hedge funds:

  1. The fund not be registered as a hedge fund;
  2. The fund not self declare itself as being a hedge fund; and
  3. The fund be registered for either public or private distribution in an authorised jurisdiction.

Whilst these regulations are welcomed as they help to remove obstacles for exposure to private equity as an asset class, a number of local regulatory issues still remain.

How Maples can help

Maples Global Registration Services ("Maples GRS") supports UCITS[1] and AIFMs[1] 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 any member of the Maples GRS team or your usual Maples contact.


[1] Domiciled in Ireland and Luxembourg.


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