Global Registration Services - Market Update, Q3 2016
ESMA Q&A on AIFMD
On 19 July 2016, ESMA published an updated Q&A on the application of AIFMD 2011/61/EU and its implementing measures. It clarifies certain AIFMD rules and subscribes common approaches and practices to be undertaken by supervisory authorities. In particular, the update covers the impact of the European Market Infrastructure Regulation 648/2012 ("EMIR") on the AIFMD framework with regard to the valuation of centrally cleared OTC derivatives by AIFMs.
Please click here for a copy of the Q&A.
ESMA Q&A on EMIR
On 27 July 2016, ESMA published an updated Q&A on EMIR. In particular, the update clarifies the status of the reporting of trades cleared by a clearing house which is not a Central Counterparty under the EMIR definition.
Please click here for a copy of the Q&A.
Extension of the AIFMD Passport to Non-EU AIFMs and AIFs
On 19 July 2016, ESMA published advice under Article 67(1) of AIFMD in relation to the following non-EU countries on the extension of the AIFMD passport: Australia, Bermuda, Canada, Cayman Islands, Guernsey, Hong Kong, Isle of Man, Japan, Jersey, Singapore, Switzerland and the US.
Please click here for our July 2016 Client Update providing an overview on the topic ESMA Advice Suggests Further Deferral of AIFMD Passport for Third Countries. A full overview will also be included in the Maples and Calder Quarterly Funds Update – Ireland, Q3 2016 which is due to be released shortly.
A further update was published by ESMA on 12 September 2016 (the "Advice"). The Advice repeats ESMA's 19 July 2016 advice and provides an additional assessment on the Isle of Man in connection with the Isle of Man's lack of a current International Monetary Fund financial sector assessment program.
Please click here for a copy of the Advice.
In August 2016, the ATVP released a Guidance Note on the notification procedure whereby an EU AIFM intends to market units of an EU AIF to non-professional investors in Slovenia under Article 199 of the Alternative Investment Funds Managers Act No 32/15. In particular, it provides details on: the categories of AIFMs/AIFs eligible to market/be marketed towards non-professional investors; information and documentation required for notification and technical instructions for electronic submission; ongoing information and publication requirements for the AIFM post-notification; and instructions for the cessation of marketing of units.
Please click here for a copy of the Guidance Note.
ESMA Q&A on UCITS
On 19 July 2016, ESMA published an updated Q&A on the application of UCITS and its implementing measures. It clarifies the content of certain UCITS rules and subscribes common approaches and practices to be undertaken by supervisory authorities. In particular, it clarifies the impact of EMIR on the UCITS framework with regard to the valuation of centrally cleared OTC derivatives by UCITS management companies.
Please click here for a copy of the Q&A.
Belgium: FAQ on FSMA Approval of Advertising Materials
On 16 August 2016, the FSMA released FAQs on the approval of advertising materials by the FSMA. In particular, it provides clarification on:
1. The use of a pre-approved FSMA template for advertising material representative of several funds containing shared criteria of a single type;
2. The FSMA's supervisory obligations regarding advertising materials for financial products distributed to retail and institutional clients before or after usage;
3. Whether a private email addressed to a particular retail client including investment advice constitutes advertising material; and
4. FSMA recommendations applicable to printed brochures and websites intended for information purposes only.
Please click here for a copy of the FAQs.
Germany: Investment Tax Reform Act
On 19 July 2016, the new German Investment Tax Act was enacted. The Act will be fully in force by 1 January 2018.
The Act introduces considerable change to the German tax system, particularly for domestic and foreign retail funds. It effectively removes the principle of tax transparency for retail funds and introduces an advance lump sum taxation.
Under the Act, the statutory seat, principal place of management and permanent establishment is no longer relevant to the distinction between German and non-German investment funds. This purports to ease the cross-border management of investment funds.
Please click here for a copy of the Act in German. There is no English version available to date.
Switzerland: Asset Management Guidelines
On 1 July 2016, FINMA released an updated Circular 2009/1 on Guidelines on Asset Management, which came into force on 1 August 2016. It extends the requirement to conclude asset management contracts in writing by permitting the alternative of concluding such contracts in digital form. The Circular originates from work recently undertaken by FINMA to implement technology-neutral regulations.
Please click here for a copy of the Circular and FINMA's press release.
Canada: Investment Fund Product Regulation
On 22 September 2016, the CSA published a Notice and Request for Comment on Proposed Amendments to various investment fund product regulations including National Instrument 81-102 Investment Funds (NI 81-102) and National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101). The Proposed Amendments constitute the final phase of the CSA's ongoing initiative to modernise investment fund product regulation and, in particular, amend the parameters of product regulation applicable to publicly offered mutual funds and non-redeemable investment funds.
Comments may be submitted via email to email@example.com where the deadline for receipt of same is 22 December 2016.
Please click here for a copy of the CSA Notice and Request for Comment, which includes a copy of the Proposed Regulations as well as a list of specific issues for comment under Annex A of the document.
New Zealand: Targeted Exemptions to the Overseas Investment Act
On 2 September 2016, the Treasury invited submissions on the draft Overseas Investment Amendment Regulations (No 2) 2016, which introduce targeted exemptions to the existing requirement to obtain consent from the Overseas Investment Office ("OIO") for foreign investment in certain New Zealand assets, as prescribed by the Overseas Investment Act 2005. Under the Regulations, overseas custodians holding shares on behalf of New Zealand investors will be exempt from the OIO consent requirement in relation to those shareholdings.
The deadline for submissions is 7 October 2016.
Please click here for a copy of the consultation document and the draft Regulations.
Singapore: Licensing and Registration of Fund Management Companies
On 19 September 2016, MAS published updated FAQs on the licensing and registration of fund management companies ("FMC") under the Securities and Futures Act (CAP. 289). In particular, it clarifies the required standards and the processing times for licensing and registration applications and the lapsing of approvals where fund management activity is delayed. Details also provided include information on whether central dealing activity may be performed by an FMC for funds managed by entities related to that FMC, the engagement of audit firms for internal audit services and whether the provision of factual information by an FMC constitutes financial advice.
Please click here for a copy of the FAQ.
Taiwan: Amendments to Regulations Governing Offshore Funds
On 15 October 2016, Article 24 of the updated Regulations Governing Offshore Funds (as published by the FSC on 13 October 2015) will enter into force. Article 24 updates the qualification criteria of an offshore fund manager for the public offering and sale of an offshore fund. Under Article 24, the various compulsory contribution options available are:
1. Establishing a Taiwan licensed Securities Investment Trust Enterprise ("SITE") with more than NT$5 billion in AuM;
2. Establishing a Securities Investment Consulting Enterprise ("SICE") with more than NT$3,5 billion in AuM;
3. Outsourcing the management of at least NT$3,5 billion in assets to a Taiwan licensed asset manager;
4. The AuM for which a SICE acts as advisor reaching NT$14 billion; or
5. The donation of an amount equal to 0.01% of the average monthly AuM held by Taiwan investors into a dedicated education fund.
The updated Article 24 is applicable to all offshore funds approved to market in Taiwan on or after 15 October 2016, regardless of the date that the relevant application was filed.
Saudi Arabia: Amendments to Qualified Foreign Investors Rules
On 31 August 2016, the CMA released updated FAQs on the Amendments to Qualified Foreign Investors Rules which it approved on 3 May 2016, and which are expected to enter into force during the first half of 2017.
The FAQs provide responses to queries raised by foreign investors and other relevant parties in relation to the Amendments.
How Maples can help
Maples Global Registration Services ("Maples GRS") supports UCITS [i] 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.
[i] Domiciled in Ireland and Luxembourg