Worldwide: Global Registration Services – Market Update, Q4 2013

Originally published January 31, 2014

AIFMD

AIFMD Co-Operation Agreements
On 19 October 2013, ESMA published a table regarding signed cooperation agreements under the AIFMD 2011/61/EU.  This table was updated as of 11 December 2013.

Please click here for further details.

Cayman Islands – Cayman Islands Monetary Authority signed AIFMD MoU with BaFin
In November 2013, CIMA signed an MoU with BaFin in Germany in respect of the AIFMD.  Maples issued an update in this regard.

Please click here for further details.

Implementation Update

Finland
The Finnish implementation of the AIFMD has been delayed.  The process of implementation is underway with the new legislation currently estimated to enter into force in Q1 2014 with the Finnish FSA implying implementation on 1 March 2014.

Italy
On 4 December 2013, the Italian Government approved a first draft of legislative decree regarding the implementation of the AIFMD.

The draft legislation is currently under review by the competent parliamentary committees and the review process was scheduled to end on 13 January 2013, however this deadline was extended.

Norway
The Norwegian implementation has been delayed.  According to official information the implementation is likely to take place at the beginning of 2014 with the Act coming into force on or about 1 April 2014.

Poland
The Ministry of Finance has published the first draft of the general concepts in relation to the implementation of the AIFMD in Poland.  According to the draft, AIFMD will be implemented in relation to non-UCITS investment funds by adding the additional requirements under the AIFMD to the Polish Act on Investment Funds currently in force.  In relation to other entities which come under the scope of AIFMD, a separate act on alternative investment fund managers is planned with final implementation scheduled for Q2, 2014.

Europe

Cyprus – AIFM Fees
CySEC has published Directive DI56-2013-02 in relation to initial application fees and annual contributions for AIFMs seeking to market locally.

Please click here for further details.
 
Denmark – Notice regarding changes on the procedures for publication of share classes of sub-funds of foreign UCITS
On 20 December 2013, the Danish FSA issued a notice regarding changes on the procedures for the publication of share classes of sub-funds of foreign UCTS. From 16 November 2013, foreign UCITS shall no longer inform the Danish FSA regarding the marketing of new shear classes; change of the name of one or more share classes; merger or division of share classes, cessation of share classes, and changes in ISIN or code numbers.  Share classes will no longer be registered on the FSA homepage.

Please click here for further details.

ESMA – Revised Guidelines on AIFMD Reporting
On 18 November 2013, ESMA published revised guidelines on reporting obligations of the AIFMD which provide clarification regarding AIFMs reporting to National Competent Authorities.

Please click here for further details.

France – Marketing of Complex Financial Instruments
On 11 October 2013, the AMF News section referred to marketing of complex financial instruments.  As structured funds and complex debt securities present risks that retail clients cannot easily understand, the AMF reminds professionals (investment services providers, financial investment advisers and direct marketers) of their obligations when marketing these products, and lays down four criteria for appraising mis-selling risks.

Please click here for further details.

France – Structured and/or "Guaranteed" UCITS and AIFs
On 17 October 2013, the AMF published a paper (no. 2013-12) to remind professionals (investment service providers, financial advisers and direct marketers) of their obligation when marketing the above products and their criteria for misspelling risks.

Please click here for further details.

Germany – Investment Tax Act
On 29 November 2013, the bill for the adjustment of the German Investment Tax Act was approved.  This will introduce two new tax regimes for AIFs subject to certain provisions:  i.e. investment partnerships; and investment companies.  UCITS and open-ended AIF investment funds will be treated as "investment funds" under the new tax regime and will be fully tax transparent if certain reporting and publication requirements are adhered to.

Subsequently, on 4 December 2013, the German Federal Ministry of Finance issued a second clarification letter regarding the application of the new regulations.

Ireland – AIFMD – Q&A
On 13 December 2013, the CBI published its 6th Edition of AIFMD Q&A of particular note was the insertion of the new question ID 1068 whereby the CBI clarified their position for AIFM seeking to market other than under the AIFMD passport.  Further, question ID 1021 has also been modified to provide additional guidance in relation to Article 36 of the AIFMD.

Please click here for a copy of the Q&A.

Italy – ESMA Guidelines on ETFs and other UCITS changes to the Issuers' Regulation
On 21 October 2013 Consob published that as of 8 October 2013 the Issuers Regulation had been updated to reflect ESMA/2012/832 guidelines on matters relating to ETFs and other UCITSs and to the Q&A session ESMA/2012/592 on KIIDs.

Please click here for further details.

Luxembourg – Fees
On 31 October 2013, the CSSF issued a regulation in connection with fees to be levied.  This regulation is applicable from 1 November 2013 and introduces fees in relation to entities derived from AIFM law.  The levy imposed on foreign UCITS seeking to passport into Luxembourg remains unchanged.  The fees to be levied by the CSSF are payable by the different financial entities supervised in Luxembourg.

To view the full text (in French) please click here.

Luxembourg – Reporting requirements for investment firms from 2014
On 18 November 2013 the CSSF issued a circular in connection with requirements for credit institutions and investment firms Circular CSSF 13/575 on reporting requirements applicable to investment firms from 2014.

Please click here for further details (only available in French).

Switzerland – Collective Investment Scheme Act
On 14 November 2013, FINMA issued a press release regarding protocol requirements.  New Article 34a of the CISO and new Article 24, paragraph 3 of CISA will enter into force on 1 January 2014.  They provide an obligation to keep minutes when distributing collective investment schemes.  Form and content of the minutes must comply with guidelines issued by a self-regulatory organisation which were issued in November 2013, by the Swiss Bankers Association issued.  They are binding on all persons involved in distribution of collective investment schemes.

Please click here for further details.

Americas

Canada - Proposed Changes to Registration Rules for Dealers, Advisers and Investment Fund Managers
On 5 December 2013, the CSA published for comment proposals to amend the regulatory framework for firms and individuals who trade in securities, provide investment advice or manage investment funds.

Please click here for more details.

Asia Pacific

Australia – Refined 'Hedge Fund' Disclosures
The ASIC has amended the assessment for schemes that will be considered hedge funds regarding new hedge fund disclosure requirements and the requirement to comply with the shorter PDS regime. These requirements are mandatory for funds which are offered to retail investors in Australia, while hedge funds, which are offered to wholesale investors, are 'encouraged' to comply.  It will be necessary for funds that fall within the revised definition of hedge fund to comply with the disclosure obligations set out in Regulatory Guide 240: Hedge funds: Improving disclosure (RG 240).

Please click here for further details.

Hong Kong – Update to FAQ on the Post Authorisation Compliance Issues
On 4 October 2013, the SFC added Question 15 in their FAQs section in respect of Post Authorisation compliance issues of SFC-authorised Unit Trusts and Mutual Funds i.e. "can a management company re-allocate part of the RQFII quota from an existing SFC authorised RQFII fund for other uses such as launching other RQFII products.

Please click here for further details.

Hong Kong – SFC issues Circular regarding Investment Products on revised Application Lapse Policy
On 29 November 2013, the SFC issued a circular to applicants of SFC-authorised investment products on revised application lapse policy.  In this circular the SFC note that the former lapse policy introduced in June 2010 was intended to weed out applications where it felt there was no serious intention to proceed. It acknowledges that the relatively long processing time for authorising applications is far from optimal and has therefore decided to revise the 12 month lapse policy as follows. All applications for authorisation of funds on or after 1 January 2014 will be processed as follows:

  • if six months have elapsed from the Take Up Date and no authorisation has been granted the application will lapse subject to the SFC's right to grant an extension at its sole discretion.  The application fee will not be refunded;
  •  if four months have elapsed from the Take Up Date and no authorisation has been granted the SFC will issue a letter reminding and informing the applicant that the application will lapse at the expiry of six months from the Take Up Date; and
  • once an application has lapsed, if the applicant wishes to seek authorisation it must make a new application and remit a new application fee therefore repeating the application process.

The revised policy does not apply to applications for authorisation of approved pooled investment funds which are made pursuant to both the UT Code and the SFC Code on MPF Products (i.e. to mandatory provident fund schemes and approved pooled investment funds).

Please click here for further details.

Middle East

United Arab Emirates – Fees – Investment Funds
An update will issue shortly in respect of official fees charged in relation to investment funds in the UAE and also instructions regarding the payment of such fees.

  • Fees in connection with the promotion of foreign investments funds (examination fee – non-refundable) AED 5,000;
  • Fee for issuing approval to promote a foreign fund through a private offering AED 15,000; and
  • Fee for issuing approval to promote a foreign fund through a public offering AED 30,000).  These fees are fund specific and will be incurred for each new fund to be promoted.

The fees are one off fees and no annual fee will be charged.

How Maples can help

Maples Global Registration Services ("Maples GRS") supports UCITS  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.

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
Emma Conaty
 
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