Cyprus: UCITS – Undertake Collective Investments Schemes

Last Updated: 9 June 2014
Article by George Schizas

(EU Directive 2009/65/EC, National law 78 /2012)

Investors' information

Prospectus

The table below provides an overview of the prospectus contents

  • Management Company
  • Investment advisers
  • Investment performance and profile Costs
  • Name, legal form, registered office, date of incorporation, names of conducting officers and other supervisory bodies, capital structure.
  • Name, material provisions of the contract between the investment advisers and the UCITS/Management Company which may be relevant to unit holders/shareholders (excluding remuneration)
  • Historical performance, profile of typical investor, for each sub-fund
  • Regulatory Compliance Governance

KIID – Key Investor Information Document

KIID provides information on the following essential elements:

  • Identification of the UCITS
  • Short description of investment objectives and policies
  • Past performance
  • Costs and associated charges
  • The KIID is written in a concise manner in plain non-technical language and is available for each share class in the language of the investor
  • KIID provides information on the following essential elements:
  • Statement of assets and liabilities
  • Statement of changes in net assets of the UCITS during the period
  • Comparative figures for total assets and NAV per unit for the last three financial years
  • Number of units in circulation
  • Net asset value per unit
  • Portfolio details
  • Details of derivative transactions and commitments
  • Synthetic risk and reward indicator

Structure

Single structure

A UCITS fund can be structured as a single strategy fund. The UCITS fund will have one strategy in which all investors will participate. There is some opportunity to vary the offer terms for different investors through establishing different and distinct share classes for example

Umbrella , multi structure of UCITS

KIID provides information on the following essential elements:

Master feeder structure

The UCITS IV Directive offers an exemption to the usual investment diversification limits for any feeder UCITS fund seeking to invest at least 85% of its assets in one master UCITS fund. The remaining 15% of the assets, if not invested in the master UCITS fund, can only be used for ancillary liquid investments, derivatives for hedging purposes or movable or immovable property essential for the business of the feeder UCITS fund (e.g. business premises). The master UCITS fund must have at least one feeder, not hold any shares in any feeder UCITS, must not be a feeder UCITS itself and must not charge the feeder UCITS fund any subscription and/or redemption fees.

Express prior approval of the relevant EU Member State's regulator must be granted prior to a feeder UCITS fund investing into a master UCITS fund. For this purpose a formal application must be provided to the relevant EU Member State regulator and key information must be presented including the rules and fund documentation of the master/feeder UCITS funds, prospectuses and KIIDs and the agreement and/or conduct of business rules to be in operation between the master UCITS fund and feeder UCITS fund.

The master UCITS fund and feeder UCITS fund can be in different EU Member States and can have different service providers including different Custodians and Auditors.

Governance

Management Company / Administrator

The Management Company is the entity which has the ultimate responsibility for the management and administration of a UCITS fund and its investments. The Management Company shall oversee the administration function and the distribution function, which is usually delegated to specialist service providers. However prior to any such delegation, the Management Company is required to carry out due diligence in order to determine whether the third party that would perform the outsourced activities can be considered as qualified and capable of undertaking the functions in question. Thereafter, the Management Company is also required to undertake on going monitoring of the services provided by the third party. Legally the Management Company will remain ultimately liable for all the delegated activities.

The Management Company of a UCITS fund is in principle established and authorised to provide management services in its European home jurisdiction which need not be where the UCITS fund is domiciled and regulated.

The biggest development introduced by the UCITS IV Directive is the Management Company Passport. Under this Passport, the Management Company can manage UCITS funds established in a different EU Member State to where the Management Company is based. The Management Company can achieve this by establishing a branch in the jurisdiction of the UCITS fund and complying with the local rules of that jurisdiction.

Alternatively the Management Company can seek to rely on the supervision and regulation of its own EU Member State regulator without the need to establish a branch in the jurisdiction of the UCITS fund. The Management Company Passport will cover the traditional services that the Management Company provides.

A Management Company is responsible for the administration of the UCITS fund and it can delegate this to an Administrator. Therefore the Administrator may no longer need to be domiciled in the jurisdiction of the related UCITS fund.

Further, depending on the local rules applicable to the Management Company, it may be possible for the Management Company to appoint an Administrator which is based in a different jurisdiction to both the Management Company and the relevant UCITS fund. The Management Company Passport should promote cross border centralisation of a Management Company's asset management, administration and risk management operations.

Harmonised organisational and conduct of business rules are now applied to Management Companies, closely aligned to the existing rules of the Markets in Financial Instruments Directive ("MiFID"). This now facilitates mutual recognition between European regulators in the context of the Management Company Passport.

In most EU Member States, a regulated Management Company is required to have a "local presence" which usually consists of having a minimum of at least two persons of sufficient repute and experience and authorised by the EU Member State regulator.

Marketing

Management Companies are also authorised to provide additional services, such as discretionary management of individual client portfolios, or as non-core services, investment advice or safekeeping and administration for UCI units.

However, these additional services require compliance with additional regulations, similar to those applicable to investment firms.

Board meetings – Frequency

Meetings are generally held on a quarterly basis, with more frequent meetings scheduled to discuss any important matters that arise. The frequency of regularly scheduled board meetings is not dictated by law or rule.

Location

Board meetings are normally held in Cyprus, with the possibility of some directors attending by conference call.

Typical Board Agenda

A typical agenda may include the following items:

  • Investment performance
  • New products and distribution network
  • Operational issues
  • Valuation issues
  • Dividend distributions
  • Compliance reports, including investment breaches and NAV errors
  • Developments in legal and regulatory requirements
  • Risk Management reports
  • Service levels with providers
  • Audit process status and findings
  • Financial statements (or semi-annual)
  • Communications with investors

Investments manager / administrator

  • Delegation of portfolio management to an investment manager
  • The Management Company may delegate portfolio management subject to the following conditions:
  • The investment manager must be an entity which is authorised/ registered for providing such services
  • The investment manager must be supervised by a prudential authority set up under national law for protection of investors
  • There must be a cooperation agreement between the prudential supervisor of the investment manager (if located in another country) and the CySEC
  • The name of the investment manager must be disclosed in the prospectus
  • The delegation must be in accordance with the investment allocation criteria determined by the Management Company
  • The delegation agreement must disclose the investment policy and investment restrictions applicable to the UCITS land each sub-fund), and specific investment rules, where applicable

Directors

Appointments of Directors of the UCITS or its Management Company Directors are expected to be persons of good repute with sufficient and relevant experience in the type of UCITS managed.

They need to be approved by the CySEC during the UCITS authorisation process. In general, there are between 2 and 5 board members, with more members for the larger UCITS.

There is no requirement to have an independent board member. In practice, there may be independent board members, such as from a legal firm, or a risk management professional.

Audit Committees are not mandatory for UCITS, but may be used as a means to strengthen the governance structure of a UCITS.

Depositary – Acting as depositary of a UCITS

Only a Cyprus credit institution or a Cyprus branch of an EU bank can act as a depositary for a UCITS.

An institution can only act as depositary of a UCITS if it is approved to do so, and provided it can demonstrate that it has the necessary human and technical infrastructure in place to properly fulfil its duties and obligations.

For a management companies, the depositary's duties extend to:

Depositary – Acting as depositary of a UCITS

Only a Cyprus credit institution or a Cyprus branch of an EU bank can act as a depositary for a UCITS.

An institution can only act as depositary of a UCITS if it is approved to do so, and provided it can demonstrate that it has the necessary human and technical infrastructure in place to properly fulfil its duties and obligations.

For a management companies, the depositary's duties extend to:

  • Ensuring that sale, issue, redemption and cancellation of units are properly carried out
  • Ensuring that the value of units is properly calculated
  • Executing instructions of the management company, unless these conflict with the law or management regulations
  • Ensuring that asset transactions and cash settlements occur within customary time limits
  • Ensuring that income of the fund is applied in accordance with management regulations

Cross-Border Distribution Opportunities

UCITS funds offer distribution opportunities throughout the EU thanks to a simplified and cost effective process known as Passporting. Passporting gives funds significant cross-border marketing and distribution rights, and thereby grants managers greater access to investors' capital. This contrasts heavily with offshore funds which have no Passporting rights and have to register formally in every EU Member State separately under private placement rules if they wish to target certain investors.

The recognised regulated status of a UCITS fund is attractive for retail investors who can rely on a set standard of quality for their funds, as well as for a number of corporate investors, such as pension funds, who may be limited through their own investment restrictions to only invest in regulated funds such as UCITS funds.

The UCITS IV Directive significantly simplifies cross-border distribution for UCITS funds by accelerating and further simplifying the Passport notification procedures in all EU Member States.

It also affects the process for the merger of UCITS. The UCITS IV Directive further introduced some key exemptions to the investment diversification limits on single undertakings for collective investment allowing for UCITS funds to be 100% invested in one other UCITS fund thus allowing for a master/feeder structure.

Distributors

Timely transmission of subscription/redemption orders to the central administration in Cyprus,

  • Nominees
  • Nominees act as intermediaries between investors and UCITS. Nominees can be used under the following conditions:

Their role must be properly described in the prospectus,

Timely transmission of subscription/redemption orders to the central administration in Cyprus,

  • Timely transmission of subscription/redemption orders to the central administration in Cyprus,
  • Investors must retain the possibility of investing directly in the UCITS without the use of a nominee, and this possibility must be disclosed in the prospectus.
  • The contract between the nominees and investors must provide for the right of the investor to claim direct title to the securities subscribed through the nominee.

Subscriptions and redemptions

In principle, it is up to the central administration to determine prices at which subscriptions and redemptions must be calculated, to draw up subscription/redemption contract notes, share/unit certificates, and dispatch them to investors.

In addition, intermediaries in or outside Cyprus can be appointed, subject to specific conditions, as authorised financial agents and representatives for placing and redemption of units/ shares:

  • Distributors
  • Nominees
  • Market makers In all cases, investors should have the ability to deal directly with the UCITS

Register of investors / Anti-money laundering procedures

The central administration is responsible for ensuring compliance with anti-money laundering regulations concerning the proper identification of investors.

The register must be kept and maintained in Cyprus. If an IT processing unit outside Cyprus is used by the fund, there must be adequate measures to protect the confidentiality of data regarding investors, in line with rules and regulations applicable in Cyprus.

Performance Internal controls tested annually for

  • Anti-money laundering
  • Valuation of the portfolio distinguishing between different types of investments, and unquoted or illiquid securities
  • Compliance with investment policy and restrictions
  • Recording and settlement of subscriptions/redemptions
  • Recording and validation of securities purchases and sales

Reporting

Assessing performance

Assessing performance of the UCITS It is important for governance bodies to understand the performance of the fund, and whether it is consistent with the investment policy and risk profile initially approved and expected by the investors.

The investment manager should be in a position to provide relevant information to support explanations of the performance, and be able to explain deviations from expected or benchmark returns.

Managing conflicts

The Board should have a process for identifying and managing conflicts which arise. Having a policy in place, and some sort of independent assessment over conflicts which arise and the way they are resolved is probably a healthy way to determine if conflicts have been managed correctly, in the best interests of investors.

Risk Management

Risk Management Function requires UCITS Management Companies to have a permanent and independent risk management function in place to implement a comprehensive risk management process for the UCITS managed. The role of risk management is to ensure compliance with UCITS risk limits, and to report to senior management on the current level of risk and foreseeable breaches of the limits.

The Board of Directors of the UCITS, and of the Management Company have to ensure that:

  • The Risk Management Process is adequate, based on legal and regulatory requirements
  • The Risk Management Process is operating effectively
  • They have approved the definition of the risk profile for each managed UCITS
  • They have approved the internal risk limits for each UCITS
  • They receive regular reporting on the risks incurred by each UCITS.

Additional responsibilities of the Conducting Officers

  • Have active involvement in the Risk Management Process, and approve the risk management methods
  • Be regularly informed of the risk exposures via timely risk reporting information, and take appropriate measures to manage risks
  • Approve the reference portfolio which will be used as benchmark for the relative VaR limit monitoring

The Value at Risk ("VaR") Approach

The approach measures the maximum potential loss at a given confidence level over a specific time period under normal market conditions. This is achieved through an analysis of VaR which can be broken down as follows:

Relative VaR: this risk calculation is based on the VaR of an unleveraged reference portfolio of the UCITS fund. When this method is applied the Relative VaR limit is set to double the VaR of the reference portfolio in order to ensure a limitation of the global leverage ratio of the UCITS fund.

Absolute VaR: this risk calculation is applied when there is no reference portfolio and is measured at the UCITS fund level instead. An Absolute VaR figure, when calculated, must not exceed 20% of the value of its total net assets.

Risks to be monitored

The main categories of risks to be monitored with respect to a UCITS are:

Market risk (price and currency)

Liquidity risk

Concentration risk

Credit risk

UCITS Risk Profile

A risk profile should be assessed for each UCITS based on:

The investment manager should be in a position to provide relevant information to support explanations of the performance, and be able to explain deviations from expected or benchmark returns.

The investment policy and strategy

The use of derivatives

The risk profile is used to determine the method for measuring market risk.

The SRRI (Synthetic Risk and Reward Indicator) is meant to provide a meaningful indication of the overall risk and reward profile of a UCITS, for the attention of investors. It is dependent on the historical return volatility of a UCITS and is classified between 1 and 7, with 7 representing the highest risk profile.

Derivatives and reporting – Cover rules for derivatives

The general principle is that the UCITS should, at all times, be able to fulfil its obligations with respect to derivative instruments, whether in the form of delivery or payment. This means that, for contracts involving physical delivery, the UCITS needs to hold the underlying instrument in its portfolio, or equivalent liquid assets which can be used to transform into the underlying positions.

The Risk Management process is required to monitor whether there is adequate cover for the fund to fulfil its contractual obligations under derivative contracts.

Valuation of OTC derivative instruments

A UCITS has to be able to determine the fair value of all OTC derivative instruments in its portfolio. The valuation needs to be based on a market value, or an appropriate model, and not only on prices provided by the counter-party of a derivative instrument.

The valuation needs to be verified by a party which is independent of the transaction counter-party, and of the investment management function.

The UCITS can use models which are provided by a third party, but it must ensure that it has first tested and validated such models.

Valuation

The extent of involvement of the Board in the valuation process is linked to the level of risk of mispricing or misevaluation

For listed and liquid securities, the valuation exercise is relatively simple in that it involves of applying observable market prices, obtained from price vendors, at each valuation point.

For unlisted or illiquid securities, the valuation exercise is more subjective, which means that more active involvement of the Board and Conducting Officers is required. This is because there is a higher risk of inappropriate valuation, and therefore a higher risk of investors' interests being affected.

Financial statements reporting

Financial statements need to be prepared and audited annually and published within 4 months of the year end.

Semi-annual financial statements do not need to be audited, and should be published within 2 months of the period end.

Financial statement prepared under IFRS as adopted by EU

Compliance

Self-assessment questions for governance bodies

Risk Identification

Have we identified the significant risk exposures, classified the fund (sophisticated or unsophisticated (and approved the process for assessing risks on new instruments and investment strategies?

Risk Measurement

Have we approved methodologies to be used for quantifying risks e.g. Value at Risk model for sophisticated funds reviewed assumptions, and results of these models, and the results of back testing and stress testing?

Have we reviewed and approved the valuation of OTC derivatives?

Risk Treatment

Do we receive timely and proper information on risk exposures, risk indicators, and exception reports to be able to manage risk in an active manner?

Do we take risk management and risk mitigation decisions on a timely basis?

Are we satisfied that weaknesses detected in the Risk Management Process (by internal audit, external audit etc. have been properly addressed?

Risk Reporting

Have we complied with regulatory requirements for reporting of risk management information for our fund?

Have we reviewed and approved Risk Management related submissions made to the CySEC?

Merger of UCITs

Fund mergers take place when investment companies are consolidating fund ranges, often to achieve economies of scale.

Merger proposal

A merger proposal needs to be prepared by the Board of Directors, which will contain, amongst others, details of the merger, valuation methodologies used and the merger ratio{s) calculation method. The CySEC needs to approve the merger proposal if the merging UCITS is established in Cyprus.

The merger ratio needs to be audited by a Cyprus auditor. Investors must be informed and have the right to redeem or. switch of no extra charge.

Tax implications

The tax implications for national and cross-border mergers need to be considered on a case by case basis depending on the countries involved.

Merger costs

Except for self-managed UCITS, any legal, advisory or administrative costs associated with the preparation and the completion of the merger cannot be charged to the merging or receiving UCITS or to any unit holders.

Migration of UCITS / Passport

Both the requirements under the law of the originating country and Cyprus law need to be considered. For the re-domiciliation to be possible without liquidation of the initial fund, the law of the originating country must allow for this possibility. Cyprus law recognizes UCITS re-domiciliation.

Investors of the fund in the originating country will likely need to be informed of the re-domiciliation proposal and give their approval. They need to be informed as to how the re-domiciliation will affect their shares, the fund expense structure, the tax implications, and who will bear the costs of the re-domiciliation, Instructions should also be given to investors who want to exit the fund before its re-domiciliation.

General taxation of funds

Direct taxes

Cyprus investment funds established under the law of 15 June 2012 UCITS and non-UCITS based in Cyprus are subject to Cyprus income tax income and including except for annual subscription tax.

Withholding tax

Distributions made by Cyprus funds are subject to withholding taxes

Subscription tax

CySE annual fee

Portfolio investment related taxation

Aberdeen In 2009, ECJ's decision in the Aberdeen case IC-303/071 was a milestone judgement for the abolishment of discriminatory taxation of cross-border dividends.

This decision provides a solid basis for all Cyprus investment funds, UCITS or non-UCITS, to reclaim withholding taxes unduly suffered in the Member States where they have made investments.

Liquidation

Causes

Fund liquidations may occur for a number of reasons, such as fund range restructuring, insufficient critical mass or over-abundance of products.

Board duties officially cease on the appointment of the liquidator.

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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Authors
George Schizas
 
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