Guernsey: Offshore Private Funds - An Overview

Last Updated: 13 October 2014
Article by Heath Martorella and Wayne Atkinson

So-called Private Funds ('PFs') are attracting considerable interest as platforms to hold a wide variety of assets, both for wealthy families and small groups of "club" investors.

Originating from ideas developed in the institutional fund space, PFs are typically bespoke structures with minimal or no fund regulatory status. There is no legal definition of a PF, which can be structured as legal entities as varied as limited partnerships, trusts and cellular companies.

A GLOBAL TREND

There are a number of reasons for the increased interest in PFs, including the following:

  • A single platform for family offices to manage clients' wealth - with the ability to hold higher-risk assets (which might otherwise cause fiduciary risk concerns for trustees with duties to beneficiaries)
  • The ability for families and club investors to pool their assets and seek enhanced investment opportunities - also for greater economies of scale
  • The ability to 'unitise' specific assets to facilitate joint ownership e.g. an aircraft, paintings, real estate
  • Independent calculation of the Net Asset Value ("NAV") and external audit of a PF if required provides reassurance to investors
  • A PF may offer a more straightforward concept for some clients compared to trusts - particularly for clients in civil law countries
  • The opportunity to undertake basic succession planning, where interests can be gifted to other family members over time
  • Trends since the late 2000s for some UHNW private clients to "go it alone" and make direct target company investments, instead of using private equity funds
  • A vehicle to hold a new business venture - with the ability to "lock in" investors, providing certainty and long-term commitment between them
  • Potential taxation benefits depending on the investors' country(s) of tax residence

EXAMPLES OF PRIVATE FUND STRUCTURES

Limited Partnership

In this structure, a General Partner ('GP') needs to be appointed to manage the partnership - this might be the client or the family office. As the GP typically has unlimited liability, this function will often be structured as an SPV.

The Limited Partners will sign 'Adherence Agreements' to set out how they interact with the partnership.

For a family LP, at the outset the principal client might start by holding 100% of the LP interests, and then periodically gift further interests to family members

PROTECTED CELL COMPANY

A PCC consists of one or more cells, each of which may be owned by separate clients. There is no co-mingling of assets and liabilities between each cell.

The cells are managed by the directors who can also contract externally for administrative and accounting functions to be provided to each cell.

Costs are reduced when compared to SPV vehicles or individual trusts as overheads can be shared by allocation to cells on a pro-rata basis.

INCORPORATED CELL COMPANY

This is very similar to a PCC, except that each cell is separately incorporated, with its own Directors and Articles of Incorporation.

This is advantageous in certain situations e.g. where the clients may wish to dispose of a cell which holds a property, target company or other asset and separate it from the wider structure.

KEY REGULATORY ISSUES

Whilst there are differences between the regulatory regimes of international finance centres, PFs are often not subject to collective investment scheme legislation where:

  • There is a small, defined and closely-linked group of investors
  • The investors are "sophisticated" by their wealth / expertise
  • The "spread of assets" (number of holdings in the PF) is limited

Meeting these criteria frequently ensures that a PF is considered a fiduciary structure, rather than a regulated fund entity. As such, it will be subject to no fund regulatory requirements (or light regulations only).

Where the number of investors and spread of assets grows and exceeds local exemption rules or practice, then regulatory consents may well be required. Consent from the regulator may also be needed in relation to the entity undertaking investment decisions.

ROLE OF THE ADMINISTRATOR

The responsibilities of the Administrator (be it a Trust or Fund Company) will typically include the following:

  • Calculation of the Net Asset Value (NAV) - including the calculation of the PF's income and expense accruals and the pricing of securities at current market value
  • Investment administration - Settlement of asset purchases and sales, collection of dividends and interests, regular reporting / valuations
  • Accounting and Audit - Maintaining bookkeeping and accounting records, reconciliation of holdings with custody and broker records, producing annual financial statements, supporting annual audit and onsite auditor visit
  • General administration - Payment of PF expenses, dealing with any administration e.g. insurance for real estate
  • Transfer agency – unit registration e.g. initial allocation, after rebalancing etc.

SOME ADVISORY NOTES

  • Administration costs – typically these are levied on the value of assets held, as per market practice for regulated funds
  • Liquidity - will there be sufficient realisable assets to buy out an investor who wishes to exit? (this can sometimes be achieved with leverage)
  • Asset protection and succession planning - clients' PF holdings are still treated as personal assets. However, overlying trusts and foundations can be established to hold PF interests for long-term planning.
  • GP / Investment Adviser role - which family members(s) or business associates will be responsible for this role? This function is often structured via an SPV, due to the risks, but smooth devolution of these shares also needs to be considered (e.g. foundation, purpose trust). A third party investment advisor / manager may also be appointed by the GP

CONCLUSION

Interest in PFs continues to grow as they offer a very useful tool for private wealth structuring. Family members and groups of investors can benefit hugely from pooling their assets to maximise benefits. The ability to unitise specific assets such as real estate, aircraft, artwork is also very useful. The legal concept of a PF structure can be more straightforward for clients compared to trusts and foundations, as the different investors hold specified units and will have some voting rights.

Independent reassurance is provided by the Administrator, who will calculate the NAV, and external auditors can also be appointed if desired.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions