Cayman Islands: Restructuring A Cayman Islands’ Fund Board (In Mandarin)

Last Updated: 20 June 2013
Article by Christopher Day

引言

开曼群岛具有得天独厚的优惠税收制度,全球绝大部分离岸对冲基金在此注册上市投机经营。近期,对冲基金资金来源经历了连续不断的变化,以往多为高净值个人投资者,目前机构投资者则独占基金投资鳌头。这一投资主体的换位不仅会给对冲基金监管带来工作额度增加,资金来源变化本身也直接给基金监督监管带来了全新的挑战。近几年, 行业内数次披露的管理丑闻(例如开曼Weavering案例)已将基金监督管理松散欠妥问题置于媒体和投资商户关注之中。问题出现的源头是基金董事会监管层面漏洞频出难以防范。面对开曼群岛目前盛行的'巨型董事'、'沃尔玛监管模型'、'海量客户微量监督'等'开岛经典'基金监管模式,业内人士及投资者已经不得不开始重新审视和反省。

董事会在基金监管治理组织结构中起着神经中枢及不可或缺的作用。董事的职能不仅仅是确保和加强整个基金的平稳运营,同时他们还须履行相应的法规法律职责和捍卫所投基金的法定信誉。概而言之,董事会是投资人资金的终极保驾护航者。为使任何一项基金获取最佳业绩,董事成员须由资质全面的人才组成,他们应具备扎实的知识和丰富的从业经验。尽管如此,在基金生命周期中,董事会人员组成或多或少都会经历某些形式的重组或变革。

董事重组动因及思考要点

考虑重组董事成员时,发起方决不能将目光局限在董事成员个人立场上,而应以基金全局发展及投资者的利益为核心。换句话说,董事重组原动力应来源于基金自身监管需求,目的是为了推进基金发展进程和优化基金监管模式。同样,在与受益者等相关人士沟通过程中,应特别强调董事重组动机纯属促进监管工作发展之需,以更好地凸显最佳管理模式、防范于未然管理措施、及展现主动监管作风。

董事会成员变革或重组有着各种各样的动因,其中最常见的有董事退休或自愿辞职;当然还有其他特殊案例,需要更加慎重的考虑及处理方式。

如是退休或自愿辞职,发起人可参考基金建立时制定的组成文件。这类文件中均列有相关行政执行步骤。根据《开曼公司法规》第55章规定,出现董事会成员变革或重组时,凡在当地注册的基金均需更新所在公司的组成文件,其中含括更新相关董事简历,上报当地公司注册管理部门(开曼群岛金融管理局)等,还须将更新后的组成文件公布于投资者。在实际操作过程中,主要经纪人和管理员亦应更新相应基金的授权签名名单。

特殊案例的出现往往是来自外界监管力度加强所引起的。遇此情况,董事会会聘请更加合适的人选来加强内部监管运营,以继续巩固由董事会主导的良好监管框架。麦道夫丑闻之后,广大投资者普遍持有自己对基金优质监管的理念,促使改革,对改善基金运作颇有益处。故,很多基金在麦道夫事件后都重组了原由基金经营公司所代表的清一色的董事席构

成, 其董事会成员之间利益关系紧密相连,有商业伙伴、合伙伙伴等熟人关系。董事会重组时,应该按照公司组成文件规定如何增加或削减除董事成员的相应条款执行。决议一般会有两种形式:由董事会做出的决议或是由投票股东做出的决议。

风云万千变幻无常的国际资本市场同时亦给新的对冲基金产品以及对冲基金战略开发开拓了一片肥沃的发展土壤。近期,管理期货基金产品及全球宏观对冲策略基金熠熠生辉,受到了机构投资者的广泛青睐,有大量资金涌入此类对冲基金产品。面对这种崭新的形势,董事会需作出人员调整或结构性改革,公司须有相应能力的专门人员来监管尖端投资战略和相应债券交易程序。那些具有创新战略特色的基金管理应有实力扎实和能力强盛的董事任职。

投资者会因不满基金公司提供的各类服务要求更换董事,尤其是那些对基金监管不利、造成基金低收益、或致使投资利益受损;还有的董事迫于投资股东共同作俑退出董事席位或干脆辞职不干的现象发生,但这类事件极为罕见。

结语

基金圈内,业内人士普遍认为董事席内应该至少有一位信誉可靠的独立董事。独立董事立场中立不偏不倚,能够有效地分析、研究及代表投资者的利益,对基金运行和投资者可以起到进一步的保护作用。目前,全球已有一些基金注册地区制定了相应的行为守则,明确要求基金董事会组织结构中有独立董事的席位。看到当今基金产业正态发展的良好势头,我们相信独立董事会越来越普及;我们认为:随着董事会内部管理的改革和创新进展,崭新的基金监管标准将得到普遍推广,相关利益机构亦会积极主动响应这一全球金融发展的趋势。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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