Worldwide: Global Registration Services – Market Update Q4 2018

Last Updated: 11 February 2019
Article by Emma Conaty

AIFMD

ESMA updated AIFMD Q&As

On 4 October 2018 ESMA updated its Q&As on AIFMD.

It includes a new Q&A which clarifies the application of the AIFMD notification requirements in relation to AIFMs managing umbrella AIFs on a cross border basis.

ESMA updated Table of MoUs

On 30 October 2018 ESMA published an updated Table of AIFMD MoUs signed by the EU authorities.

Brexit

UK Temporary Permissions Regime ("TPR") EEA to be allowed to add new sub-funds following Brexit

As noted in our recent client update HM Treasury on 7 December 2018 published a draft of the Collective Investment Schemes (Amendment) (EU Exit) Regulations 2019. These will allow an EEA Member State which has notified the UK FCA of their intention to enter the UK's TPR prior to 29 March 2019 ("Exit Day") to include a sub-fund in the TPR post Exit Day.

The FCA will allocate each investment fund that has availed of the TPR a three month landing slot during which they will be required to submit: an application for recognition (for marketing to retail investors) or a notification (for marketing to professional investors only), if they wish to continue marketing in the UK following expiry of the TPR.

The FCA expects the first landing slot will be between October 2019 and December 2019 and that the last will be from January 2021 to March 2021. Each investment fund must submit the application / notification during the three month period to which they are allocated, failing which the marketing of the fund in the UK will no longer be permitted on the same basis as before Exit Day.

Europe

Denmark

Draft bill proposes easy access for foreign investment funds to Danish retail investors

On 5 October 2018 the Danish Government published a draft bill for public consultation. Which if approved, will amend:

  • The taxation of Danish individuals' investment in funds classified for Danish tax purposes as "investment companies"; and
  • The Danish dividend tax liability for non-Danish investors' investments in Danish investment funds.

These proposed amendments aim to:

  • Remove tax barriers for Danish individuals' investments in non- Danish mutual investment funds (especially exchange-traded funds);and
  • Attract capital to Danish investment funds.

They are due to take effect from the income year 2019.

European Commission evaluation on Distance Marketing of Financial Services

On 4 January 2019 the European Commission's December 2018 evaluation and fitness check roadmap on Distance Marketing of Financial Services closed. It aims to evaluate the Distance Marketing of Financial Services Directive ("Directive"), in line with the Better Regulation Principles. The evaluation collated information on the effectiveness of the Directive, particularly, in relation to the following aspects:

  • Unsolicited services and communications;
  • Regulatory choices by Member States;
  • Relationship between product specific legislation in the field of retail financial services, the e-commerce framework and horizontal consumer protection rules;
  • Scope of services covered;
  • Information disclosure; and
  • Right of withdrawal

France

AMF procedures on the review of marketing communications to retail investors

On 8 October 2018 the AMF announced the implementation of new internal priorities regarding the marketing of financial products to retail investors in France. The result of these will be that the AMF will no longer review the marketing materials of certain funds, for example, UCITS prior to their disclosure to retail investors. Going forward the AMF will prioritise the supervision of marketing materials which will be actually used post communication.

The new procedure commenced on 2 November 2018, initially as part of a one year trial phase.

The AMF outlined that the marketing materials of the following funds no longer have to be submitted for review prior to their use:

  • Structured funds;
  • Unit-linked funds;
  • Funds using an investment strategy known as "plain vanilla";
  • "Other AIF" (as described in the article 214-24-III of the "Code Monétaire et Financier"); and
  • Other investment funds marketed exclusively to professional investors only.

For the following funds marketing materials must continue to be submitted for review prior to their use:

  • Real estate investment schemes ("FCPI");
  • Corporate mutual funds ("FCPE");
  • Venture capital funds for retail investors and specific tax funds ("FCPR", "FIP", "FCPI", and "SOFICA").

The purpose of this new procedure is to concentrate AMF resources on riskier products. The rules for establishing marketing materials remain unchanged, they must be compliant with French regulation and the marketer/producer is still responsible for the information which is provided to investors.

The AMF communication is currently available in French only.

Germany

BaFin changes on administrative policies on performance fee structures in line with IOSCO Good Practice for Fees and Expenses

On 18 October 2018 BaFin notified EU regulators that it will require UCITS registered for distribution in Germany to be compliant with BaFin's principles on performance fees.

The changes were communicated on a regulator-to-regulator basis only. BaFin has yet to release a public statement.

BaFin states that UCITS distributed in Germany must comply with the following:

  • Calculation period: The calculation period for determination of a performance fee must be at least 12 months.
  • Calculation method: The performance fee calculation method must provide a loss carry forward/ high water mark, which covers at least the five previous years.
  • Quantification of the performance fee: A percentage of the maximum amount of the total performance fee must be indicated.
  • Cap on the performance fee: The amount must be limited in relation to the total assets of the fund.

BaFin will review performance fee provisions in all new applications for the distribution of UCITS in Germany as well as in amendment applications and check whether they comply with the above principles. In relation to UCITS which are already registered for distribution in Germany, BaFin have advised the German Investment Funds Association that these UCITS need to comply with the principles no later than 31 December 2019. If UCITS do not meet these criteria, it is likely that BaFin will restrict such UCITS from distribution in Germany.

Publication of German tax figures

On 2 November 2018 the German Ministry of Finance published an update extending the deadline for publication of German tax figures in accordance with section 13 of the German Ministry of Finance's circular of 8 November 2017 from 31 December 2018 to 30 June 2019.

Netherlands

AFM updated policy regulation on the Provision of Information

On 31 December 2018 the Dutch AFM published an updated version of its policy relating to the Regulation on the Provision of Information, following an open consultation. The updated policy adds new interpretations and updates existing ones. It is available in Dutch only.

The policy provides guidelines on how to comply with the Dutch laws and regulations in relation to the marketing of financial products.

Examples of the changes include:

  • Clarification and additional content to the passage on comparisons between financial products;
  • Removal of an unclear passage on historical returns; and
  • Providing an example of an advertising site in section 2.3.

Switzerland

New cross border financial services regime

On 24 October 2018 the Swiss Council published draft ordinances to the Financial Services Act ("FinSA") and the Financial Institutions Act ("FinIA") and initiated a consultation on the ordinances, until 6 February 2019. The draft ordinances are currently available in Swiss-German only.

The draft ordinances include a new regime for the provision of cross border financial services and the offering of securities into Switzerland which may greatly affect the manner in which foreign financial service providers had previously approached the Swiss market. The new regime will bring into line the Swiss approach to principles already been recognised in a European context. It sets out strict consequences for breaches of the regulation.

Canada

CSA final version of the alternative mutual fund amendments

On 4 October 2018 the CSA announced the final alternative mutual fund amendments to NI 81-102 (the "Final Rules"). The Final Rules became effective on 3 January 2019. These changes contain a number of significant modifications to the amendments to NI 81-102 which were originally proposed in September 2016. They aim to provide retail investors with greater access to alternative investment strategies, including leveraged and market neutral portfolios.

Asia Pacific

Hong Kong

SFC circular

On 1 November 2018 the SFC issued a Circular to intermediaries to notify them of the publication of the Statement on regulatory framework for virtual asset portfolios managers, trading a platform operator.

SFC circular to intermediaries

On 23 November 2018 the SFC published a Circular to intermediaries to notify them of the new arrangements for submission of notifications and delivery of letters of approval.

SFC consultation on the Code on Unit and Mutual Funds

On 6 December 2018 the SFC published consultation conclusions on proposed changes to the Code on Unit Trusts and Mutual Funds ("UT Code") (Note 1).

The proposals set out in the consultation paper (Note 2) will be implemented, subject to some changes and clarifications. These include changes to the calculation method for funds' derivatives investments and clarification of the enhanced obligations of trustees and custodians.

Subsequent amendments to the SFC Code on MPF Products ("MPF Code"), Code on Pooled Retirement Funds ("PRF Code") and Code on Investment-Linked Assurance Schemes ("ILAS Code") will also be implemented, with certain amendments. The revised UT Code, MPF Code, PRF Code and ILAS Code came into effect following gazettal, on 1 January 2019 (Note 3).

The SFC will publish FAQs which will offer further guidance to the industry regarding the implementation and transition arrangements for the revised UT Code (Note 4).

Updated confirmations for investment products

On 17 December 2018 the Investment Products Division of the SFC published the following updated/new documents. Applicants must use them for submissions received on or after 1 January 2019.

The updated and new documents have been added under the following sections:

  • Unit Trusts and Mutual Funds;
  • Schemes under Mutual Recognition Arrangements;
  • Mandatory Provident Fund Products and Pooled Retirement Funds;
  • Investment- Linked Assurance Schemes; and
  • Private Open-ended Fund Companies.

SFC updated FAQs in relation to open-ended fund companies

On 28 December 2018 the SFC published updated FAQs relating to open ended fund companies. The update includes an amendment to Question 20.

Singapore

MAS amendments to various regulations

As noted in our recent client update on 31 October 2018, MAS published amended versions to the following regulations on 8 October 2018:

Americas

Chile

CCR updated procedure for application of foreign funds

In October 2018 the CCR announced an online platform for the application of foreign funds in Chile. From December 2018, applications of foreign funds must be submitted via the CCR platform on the CCR website. There will be no changes to the documents that are required as part of the application. The timeline for processing applications will not be affected by the new submission process.

The yearly renewal process is still required to be completed via email until further notice. By January 2019, the CCR plans to make the CCR platform operative for the annual renewal as well. Foreign funds or service providers can request access to the platform here.

How the Maples Group can help

The Maples Group's Global Registration Services ("Maples Group GRS") supports UCITS1 and AIFMs1 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 the persons below or any member of the Maples Group GRS team.

Footnotes

1 Domiciled in Ireland and Luxembourg.

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
Emma Conaty
 
In association with
Related Topics
 
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