Ireland: Funds & Investment Management Update - Q4 2018

1 Legal & Regulatory

1.1 UCITS Update

There have been a number of developments over the quarter:

Revised guidance on the use of financial indices

On 8 October 2018 the Central Bank of Ireland ("Central Bank") published updated guidance on the use of financial indices by UCITS. It clarifies its requirements and introduces a certification process regarding the use of financial indices by UCITS.

UCITS – review process

On 9 October 2018 the Central Bank advised of its updated review processes for UCITS and RIAIFs which simplify authorisation procedures and, in some cases, eliminate a review period of several weeks.

For more information see our client update, Improvements to Central Bank of Ireland Review Process for UCITS and RIAIFs

Central Bank Q&A

On 19 November 2018 the Central Bank published the 24th edition of the Central Bank's UCITS Q&A. One Q&A is updated and one added to address (i) the ability to establish unlisted share classes in an exchange traded fund or ETF; and (ii) the possibility of having different dealing cut-off times for hedged and unhedged share classes in an ETF.

Depositary safekeeping duties

Article 22a(3)(c) of the UCITS Directive 2009/65/EC requires that where a depositary delegates safe-keeping functions to third parties (custodians), the assets also need to be segregated at the level of the delegate. Delegated Regulation (EU) 2016/438 on safe keeping duties of depositaries details how this obligation is to be fulfilled.

On 19 November 2018 Delegated Regulation 2018/1619 amending Delegated Regulation (EU) 2016/438 on safekeeping duties of depositaries came into force. It will apply from 1 April 2020 and sets out further requirements where custody of UCITS clients' assets is delegated to a third party.

Closet indexing UCITS funds

On 4 December 2018 the Central Bank announced that it had begun analysis on 2000-plus Irish domiciled UCITS that report to be actively managed with supervisory follow-up where indications of 'closet indexing' are found. The objective of this review to ensure investors are not misled or misinformed about their investments in Irish domiciled funds.

1.2 AIFMD Update

There have been a few recent developments in relation to Directive 2011/61/EU ("AIFMD"):

ESMA Q&A

On 4 October 2018 the European Securities and Markets Authority ("ESMA") added a new Q&A clarifying the application of AIFMD notification requirements with regard to alternative investment fund managers ("AIFMs") managing umbrella alternative investment funds ("AIFs") on a cross-border basis. It confirms that an AIFM has to identify all the compartments of the umbrella AIF in the notification as well as the name and investment strategy of its compartments, to facilitate administrative procedure in home and host EU Member States. Any change in the composition of an umbrella AIF that is managed on a cross-border basis has to be notified to the competent authorities under Article 33(6) of AIFMD.

RIAIFs – review process

On 9 October 2018 the Central Bank updated its review processes for UCITS and RIAIFs which simplify authorisation procedures and, in some cases, eliminate a review period of several weeks.

For more information see our client update, Improvements to Central Bank of Ireland Review Process for UCITS and RIAIFs

Real asset depositaries

On 19 November 2018 the Central Bank published a notice of intention which sets out that it is minded to permit entities to seek authorisation under regulation 22(3)(b) of the European Union (Alternative Investment Fund Managers) Regulations 2013 (which transpose AIFMD into Irish law) to act as a depositary for specific types of AIFs which generally do not invest in assets that must be held in custody. It explains the Central Bank's proposed regulatory framework for these types of entities, providing stakeholders the opportunity to comment on them until 15 January 2019.

Depositary safekeeping duties

Delegated Regulation (EU) 231/2013 on safe keeping duties of depositaries supplements AIFMD and specifies depositaries' duties on the safe keeping of alternative investment fund ("AIF") clients' assets. On 19 November 2018 Delegated Regulation 2018/1618 amending Delegated Regulation (EU) 231/2013 on safekeeping duties of depositaries came into force. It will apply from 1 April 2020 and sets out further requirements where custody of AIF clients' assets is delegated to a third party.

To view the full article, please click here

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
Peter Stapleton
Stephen Carty
Ian Conlon
Emma Conaty
Pádraig Brosnan
William Fogarty
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
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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