Ireland: Funds Quarterly Legal And Regulatory Update – Q1 2014

UCITS, NON-UCITS & HEDGE FUNDS

(i) EU Member States Agree on UCITS V

On 4 December 2013, the European Council issued a press release announcing that its permanent members had agreed a position on the draft UCITS V Directive. The draft UCITS V Directive sets out proposed reforms to the UCITS rules in respect of the depositary function, manager remuneration and administrative sanctions.

In particular, the draft UCITS V Directive:

  • Introduces specific provisions on depositary safekeeping and oversight duties;
  • Defines the conditions in which safekeeping duties can be delegated to a sub-custodian;
  • Sets out a list of entities that are eligible to act as UCITS depositaries;
  • Clarifies the depositary's liability in the event of the loss of a financial instrument held in custody;
  • Includes provisions on redress for investors;
  • Introduces a requirement for UCITS management companies to implement remuneration policies that are consistent with sound risk and effective management and do not encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the UCITS they manage;
  • Introduces a whistleblowing regime; and
  • Sets out the administrative sanctions that regulators should be empowered to apply.

This agreement enables trilogue negotiations to start between the European Parliament, Council and Commission with the aim of adopting the draft UCITS V Directive in advance of the European Parliament elections, which are due to be held in May 2014. Failure to reach that deadline leaves open the possibility that a new parliament might re-introduce some of the more controversial aspects of the early UCITS V proposals which were narrowly rejected earlier this year, such as the bonus cap for fund managers.

Once the European Parliament and Council adopts the UCITS V Directive it will be published in the Official Journal of the European Union, and EU member states will have two years from that date to transpose the Directive into national law.

(ii) Central Bank Publishes Revised UCITS Notice 10

In October 2013, the Central Bank of Ireland (the "Central Bank") published a revised UCITS Notice 10, which covers Financial Derivative Instruments. The Notice has been amended in light of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories ("EMIR"), pursuant to which counterparties to derivative transactions will be required to begin trade reporting from 12 February 2014 (for more, see the EMIR section).

Paragraph 4 of UCITS Notice 10 has been amended, whereby the counterparty in the case of a subsequent novation of an OTC derivative contract must be:

  • A credit institution listed in sub-paragraphs 1.4 (i), (ii) or (iii) of UCITS Notice 9 or an investment firm, authorised in accordance with the Markets in Financial Instruments Directive (Directive 2004/39/EU), (the "MiFID Directive") in an EEA member state, or is an entity subject to regulation as a Consolidated Supervised Entity ("CSE") by the US Securities and Exchange Commission; or
  • A central counterparty ("CCP") authorised, or recognised by the European Securities and Markets Authority ("ESMA"), under EMIR or, pending recognition by ESMA under Article 25 of EMIR, an entity classified as a derivatives clearing organisation by the Commodity Futures Trading Commission or a clearing agency by the SEC (both CCP).

Paragraphs 4(iv) – (vi) of the previous UCITS Notice 10 have been deleted. Some of these provisions covered the valuation of OTC derivatives and are redundant following EMIR. Article 11(2) of EMIR requires that OTC derivative contracts not cleared by a CCP be valued using mark-to-market on a daily basis and that where market conditions prevent marking-to-market, reliable and prudent marking-to- model must be used.

UCITS should review their procedures regarding financial derivative instruments to ensure compliance with the revised UCITS Notice 10.

(iii) UCITS Annual Update of Key Investor Information Document Due 19 February 2014

UCITS are required to update their Key Investor Information Document ("KIID") for each subfund/ standalone fund on an annual basis, within 35 business days of the end of each calendar year. The KIID annual updates must therefore be filed no later than 19 February 2014.

The Central Bank's "Regulatory Reporting Requirements of Irish Authorised Investment Funds" Vol. 2.2 - October 2013 may be accessed at the following link:

http://www.centralbank.ie/regulation/industry-sectors/funds/Documents/Guidance%20Note%20Regulatory%20Reporting%20Vol%202.2%20October%20%2013.pdf.

(iv) Change in Central Bank Filing Procedures

The Central Bank has advised that it will now accept by email:

  • Country Supplements;
  • Consolidated/Extract Prospectuses; and
  • Requests for UCITS Attestations.

The associated noting, acknowledgment and replies will also be communicated electronically. It should be noted however that the filing of Country Supplements by email is only possible where there is no other documentation to be submitted alongside the Country Supplement. The relevant email addresses are countrysupplements@centralbank.ie for Country Supplements and fundsmarketing@centralbank.ie for Consolidated/Extract Prospectuses and requests for UCITS Attestations.

(v) Central Bank Publishes Consultation Paper on a UCITS Rule Book

The Central Bank has published Consultation Paper 77 - Consultation on Publication of UCITS Rulebook ("CP77") which proposes publishing a UCITS Rulebook which will consolidate into one document all of the conditions which the Central Bank imposes on UCITS, their management companies and depositaries. In addition, CP77 addresses whether any aspects of the current regulatory regime that come within the discretion of the Central Bank are no longer necessary or appropriate.

The aim for the UCITS Rulebook is to eliminate duplication and text which does not clearly constitute a regulatory requirement. The Central Bank has stated that residual guidance will be published on the Central Bank's website.

Relevant amendments and additions from the UCITS Rulebook will be incorporated into the AIF Rulebook when the AIF Rulebook is next updated in an effort to have consistency between the requirements of the UCITS Rulebook and the AIF Rulebook.

As part of this consultation, the Central Bank is considering three key changes, namely:

1. Removal of the Promoter Approval Process

Reflecting the position adopted for AIFs, the Central Bank is proposing to end imposing a promoter approval process for UCITS and to instead place reliance on the regulatory regime for UCITS management companies. At the same time, it proposes to elaborate on the obligations of directors when a UCITS gets into difficulties, again in similar fashion to its approach for AIFs.

This development will be welcomed, particularly by UCITS sponsors who to date have had to hold and maintain net shareholders funds of Euro 635,000 to satisfy Central Bank Promoter Rules, often significantly in excess of what they are required to have under their home jurisdiction's regulatory requirements. It should also accelerate the UCITS authorisation process.

2. Changes to approach on Regulated Markets

UCITS are permitted to invest in transferable securities and financial derivative instruments which are admitted to or dealt in on regulated markets and on certain other stock exchanges.

The Central Bank's approach to whether a market meets the criteria for being a "regulated market" is currently outlined in its Guidance Note 1/96. Given certain duplication between that Guidance Note and the Eligible Assets Directive, the Central Bank is withdrawing that Guidance Note. As a result, it will no longer review submissions on proposed regulated markets and will no longer publish a list of permitted markets for UCITS.

Accordingly, it will be for UCITS investment managers to consider whether a particular market or exchange meets the UCITS Regulations "regulated markets" criteria.

3. Half Yearly Management Accounts

The Central Bank is also proposing to extend the current financial reporting requirements for UCITS management companies and depositaries by requiring the additional submission of half-yearly management accounts covering the second six months of the financial year.

The format of the UCITS Rulebook which the Central Bank is proposing follows closely that of the AIF Rulebook. The proposed UCITS Rulebook contains the following three chapters:

Chapter 1 – Product Requirements;

Chapter 2 – Management Company Requirements; and

Chapter 3 – Depositary Requirements.

Draft versions of each of these chapters form part of CP77.

A Dillon Eustace article on CP77 may be viewed at the following link:

http://www.dilloneustace.ie/download/1/Publications/Financial%20Services/Central%20Bank%20consults%20on%20UCITS%20Rulebook.PDF.

Submissions on CP77 are invited by email or in writing by 28 March 2014. CP77 may be accessed via the following link:

http://www.centralbank.ie/regulation/poldocs/consultation-papers/Documents/CP77%20Consultation%20on%20publication%20of%20UCITS%20Rulebook/CONSULTATION%20PAPER%20-%20CP%2077%20JAN%202014.pdf.

(vi) ESMA Publishes Updated Q&A on their Guidelines on ETFs and other UCITS issues

On 27 November 2013, ESMA published an updated Q&A document on its Guidelines on ETFs and other UCITS issues (the "Guidelines"). The aim of this Q&A document is to promote common supervisory approaches and practices in the application of the UCITS Directive and the Guidelines. The Q&A document is directed at the various competent authorities but it is also intended to help UCITS management companies by providing clarity on the requirements of the Guidelines.

Two new questions have been added to the updated Q&A document:

  • Question 6(m) in the Collateral Management section provides that when UCITS reinvest cash collateral, the reinvested cash collateral should be taken into account for the calculation of the investment restrictions applicable to a UCITS; and
  • Question 7(i) in the Financial Indices section provides that paragraph 59 of the ESMA Guidelines (which provides that that UCITS should not invest in financial indices whose methodologies permit retrospective changes to previously published index values ('backfilling')), does not cover calculation mistakes.

The Q&A document is intended to be continually edited and updated on a regular basis. It can be accessed at the following link:

http://www.esma.europa.eu/system/files/2013-1547_qa_on_guidelines_on_etfs_and_other_ucits_issues.pdf.

(vii) ESMA Guidelines on ETFs and other UCITS issues – Index Related Issues

The IFIA made a submission to the Central Bank on 21 October 2013 relating to the treatment and classification of indices following the coming into force of the of the ESMA Guidelines on ETFs and other UCITS issues (the "Guidelines"). In its submission, the IFIA sought clarification that a distinction should be made in relation to "indices" and "financial indices" and that Part V of the Guidelines (Index-Tracking UCITS) should apply to all indices whereas Part IX of the Guidelines (Treatment of secondary market investors of UCITS ETFs) should only apply to "financial indices". According to the IFIA's submission, the term "financial indices" constitutes indices which are able to avail of increased diversification limits under the UCITS Regulations; i.e. "financial indices" are in effect a sub-set of the term "indices".

On the 23 December 2013, the Central Bank issued a response to the IFIA advising that there should be no distinction drawn between "indices" and financial indices" for the purposes of applying the Guidelines. In support of this approach, the Central Bank referenced question 7(b) of the ESMA Q&A Document which clarifies that the Guidelines apply to any UCITS investing in financial indices including index tracking UCITS. Unfortunately, the Central Bank considers that Part IX of the Guidelines apply to all indices.

In addition, the IFIA had a concern that there was an inconsistency between Guideline 491 and Article 9(2) of the Eligible Assets Directive2, in relation to how a UCITS may invest in a financial derivative instrument where the underlying financial index does not comply with the 20/35% rule. The Central Bank confirmed in its letter that it does not consider there to be any inconsistency between the Guidelines and the Eligible Assets Directive. In the Central Bank's view, Article 9(2) of the Eligible Assets Directive provides that where an index does not meet with the applicable criteria for indices set out in Article 9(1), but is composed of UCITS eligible assets, then investment by a UCITS in the index is not regarded as a derivative on an index but is regarded as a derivative on the combination of assets (i.e. in the same way as a derivative on a basket of assets).

(viii) ESMA Publishes Updated Q&A on Risk Measurement and Calculation of Global Exposure and Counterparty Risk for UCITS

On 19 December 2013, ESMA published an updated Q&A on risk measurement and calculation of global exposure and counterparty risk for UCITS. A new question was added on how UCITS should calculate their counterparty risk for exchange-traded derivatives and OTC transactions that are centrally cleared under EMIR. The answer provides:

"When calculating the counterparty risk for exchange-traded derivatives and OTC transactions that are centrally cleared, UCITS should look at the clearing model used to determine the existence of counterparty risk and, if any, where the counterparty risk is located. When analysing the clearing model used, UCITS should have regard to the existence of segregation arrangements of the assets and the treatment of claims on these assets in the event of bankruptcy of the clearing member or central counterparty."

The Q&A also provides that ESMA is continuing its work in relation to the calculation of counterparty risk by UCITS for exchange-traded derivatives and centrally-cleared OTC transactions in light of the provisions of EMIR and that ESMA plans to issue more detailed guidance on this issue, dealing with such aspects as the status of the central counterparty and the level of segregation to be put in place by the UCITS, early in 2014.

The updated Q&A may be accessed here:

http://www.esma.europa.eu/system/files/2013-1950_qa_risk_for_ucits.pdf.

(ix) ESMA Publishes Consultation Paper on Diversification of Collateral Provision in its Guidelines on ETFs and other UCITS Issues

On 20 December 2013, ESMA published a consultation paper on revising provisions on diversification of collateral in its Guidelines on ETFs and other UCITS issues (the "Guidelines"). The consultation paper provides that ESMA has been asked by stakeholders on numerous occasions to reconsider its position on the requirements on collateral diversification (paragraph 43(e) of the Guidelines) on the basis that they have a significant adverse impact on UCITS' collateral management policies. Particular attention has been drawn to the consequences for money market funds that place cash into reverse repurchase agreements.

Accordingly, ESMA is seeking views on the merits of revising the requirements on collateral diversification and, should this be necessary, on the best ways to address stakeholders' concerns while retaining the appropriate level of investor protection. Draft revised guidelines are contained in Annex III to the consultation paper.

ESMA requires that comments on the consultation paper (see link below) be provided by 31 January 2014.

http://www.esma.europa.eu/system/files/2013-1974_cp_guidelines_etfs_and_other_ucits_issues_for_publication_0.pdf

EUROPEAN MARKET INFRASTRUCTURE REGULATION ("EMIR")

(i) ESMA Approves Trade Repositories ("TR's")

ESMA, has to date, approved the registration of six TR's under EMIR. The newly registered TRs for the European Union are:

  • ICE Trade Vault Europe Ltd. (ICE TVEL), based in the United Kingdom;
  • CME Trade Repository Ltd. (CME TR), based in the United Kingdom;
  • DTCC Derivatives Repository Ltd. (DDRL), based in the United Kingdom;
  • Krajowy Depozyt Papierów Wartosciowych S.A. (KDPW), based in Poland;
  • Regis-TR S.A., based in Luxembourg; and
  • UnaVista Ltd, based in the United Kingdom.

The newly approved TR's can be used by the counterparties to a derivative transaction to fulfil their trade reporting obligations under EMIR.

The reporting obligation start date for all asset classes will begin on 12 February 2014; i.e. 90 calendar days after the official registration date. It will be possible to meet the reporting obligation by reporting to any ESMA recognised TR.

Separately, the European Commission has confirmed that it intends to reject ESMA's request to delay the start date for the reporting requirement for exchange traded derivatives. As such, the reporting requirement for all derivatives, however they are traded will come into force on 12 February 2014.

(ii) List of non-EEA CCPs

EMIR requires all non-EEA CCPs offering clearing services to clearing members or trading venues in the EEA to seek recognition from ESMA. In order to continue offering such clearing services, the non-EEA CCPs were required to apply to ESMA for recognition by 15 September 2013. ESMA has published a list, which is not necessarily exhaustive, of non-EEA CCPs which have submitted an application. It is available here –

http://www.esma.europa.eu/system/files/2013-1581_list_of_applicant_tc-ccps_published_on_6_november_2013_v2.pdf.

(iii) Updated ESMA Questions and Answers ("Q&A") on the Implementation of EMIR

ESMA published an updated Q&A on EMIR implementation on 11 November 2013 which was further updated on 20 December 2013. The purpose of the Q&A is to promote common supervisory approaches and practices in the application of EMIR. It provides responses to questions posed by the general public, market participants and competent authorities in relation to the practical implementation of EMIR.

The table of questions on pages six and seven provides a record of which questions and answers are new or and which have been updated, and includes questions relating to:

  • Calculation of the clearing threshold;
  • Risk Mitigation techniques for OTC derivative contracts not cleared by a CCP;
  • Portfolio Reconciliation;
  • Frontloading requirement for the clearing obligation;
  • Pension scheme exemption from the clearing obligation;
  • Segregation and portability;
  • Transparency requirements for central counterparties;
  • Reporting of outstanding positions following the entry into force of EMIR (Backloading);
  • Reporting to Trade Repositories : Table of fields;
  • Reporting of collateral and valuation; and
  • Exchange traded derivatives reporting questions.

The updated Q&A can be found at this link;

http://www.esma.europa.eu/system/files/2013-1959_qa_on_emir_implementation.pdf.

(iv) ESMA Publishes Final Draft Technical Standards on the Cross Border Application of EMIR

ESMA issued final draft regulatory technical standards ("RTS") related to derivative transactions by non-European Union (EU) counterparties on 15 November 2013. The RTS provides more detail on the application of EMIR to (i) transactions between non-EU counterparties with a direct, substantial and foreseeable effect within the European Union and (ii) lays down criteria for determining whether contracts should be considered as evading the rules and obligations laid down in EMIR. The draft RTS have been submitted to the European Commission for consideration and the European Commission has three months to decide whether to endorse them.

The document can be found here:

http://www.esma.europa.eu/content/Draft-technical-standards-under-EMIR-contracts-direct-substantial-and-foreseeable-effect-wit.

(v) EMIR Counterparty Classification Tool

The International Swaps and Derivatives Association, Inc. ("ISDA"), the British Bankers Association ("BBA"), the Investment Management Association ("IMA") and Markit announced the launch of the EMIR Counterparty Classification Tool. It is an online service that facilitates compliance with EMIR requirements regarding classification of counterparties to OTC derivatives contracts and application of the relevant standards of the regulatory requirements. Additional information regarding the tool is available at this link;

http://www2.isda.org/emir/.

(vi) Irish Stock Exchange to Provide Pre-Legal Entity Identifiers

All financial organisations, including listed legal entities, will need to comply with new global legal entity identifier ('LEI') requirements. A LEI is a global reference code which uniquely identifies each legal entity that engages in a financial transaction. The LEI is designed to enable the identification and linking of parties to financial transactions in order to manage counterparty risk.

The range of entities requiring LEI codes is broad and includes the following:

  • All entities listed on an exchange;
  • All entities that issue equity, debt or other securities for other capital structures;
  • All entities that trade stock or debt, investment vehicles constituted as corporate entities or collective investment funds (including hedge funds, private equity funds, umbrella funds and in certain cases sub-funds where contracts are entered at sub-fund level);
  • All financial intermediaries; and
  • Banks and finance companies.

In particular, under the EMIR technical standards on format and frequency of trade reporting, all EU counterparties are expected to have a LEI for reporting to trade repositories from 12 February 20143. The Central Bank, as a member of the Financial Stability Board's Regulatory Oversight Committee, has sponsored the ISE in becoming a Pre-Local Operating Unit ("Pre-LOU") with authority to issue pre-LEI codes. It is strongly anticipated that all pre-LEIs that are globally endorsed will transition into LEIs once the LEI governance structure is fully established. Pre-LEI's can be accepted for reporting under EMIR in the EU.

To read this Update in full, please click here.

Footnotes

1 Guideline 49 provides "A UCITS should not invest in a financial index which has a single component that has an impact on the overall index return which exceeds the relevant diversification requirements i.e. 20%/35%. In the case of a leveraged index, the impact of one component on the overall return of the index, after having taken into account the leverage, should respect the same limits".

2 Article 9(2) of the Eligible Assets Directive (2007/16/EC) provides "Where the composition of assets which are used as underlyings by financial derivatives in accordance with Article 19(1) of Directive 85/611/EEC does not fulfil the criteria set out in paragraph 1 of this Article, those financial derivatives shall, where they comply with the criteria set out in Article 8(1) of this Directive, be regarded as financial derivatives on a combination of the assets referred to in points (i), (ii) and (iii) of Article 8(1)(a)".

3 Please see Table 1 of the Annex to Commission Delegated Regulation (EU) No. 148 of 19 December 2012 supplementing Regulation EU No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories with regard to regulatory technical standards on the minimum data to be reported to trade repositories.

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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