Event 14 Oct. 2022
Curtis Provides Capacity Training to the Government of Uganda
Event 21 Sep. 2022
Kalidou Gadio Speaks at AIEN 2022 International Energy Summit
News 16 Dec. 2022
Curtis Trade Team is top ranked in Chambers Asia-Pacific 2023
Event 06 Dec. 2022
George Kahale Lectures on "Key Issues Facing States in ISDS" at Rashtriya Raksha University
News 24 Feb. 2023
Clients Praise Curtis in Chambers Global 2023 Launch
Event 21 Feb. 2023
Susan Maples Speaks at the Green Hydrogen Organisation Webinar Series on Green Hydrogen Contracting
Publications 23 Feb. 2023
Fernando Tupa Publishes Book on Forum-Specific Consent to International Arbitration in Investment Agreements
Event 22 Nov. 2022
Elisa Botero and Fernando Tupa to speak at the XVI International Congress of Arbitration in Lima, Perú
News 27 Sep. 2022
Curtis Boosts Riyadh Office with New Corporate Partner Stuart Davies
News 16 Aug. 2022
Curtis Delivers More Firsts for the Government of Oman in its Defense Against U.S. Trade Measures
Pro Bono 23 Feb. 2023
Curtis Lawyers Successfully Defend Pro Bono Client in Deportation Proceedings
News 06 Mar. 2023
Russia Sanctions at the First Anniversary: An Overview of Current Sanctions in the US, UK, and EU and How Global Companies Can Navigate Evolving and Conflicting Sanctions Regimes
Client Alert 30 Aug. 2022
The EU Adopts the “Maintenance and Alignment” Sanctions Package
Client Alert 24 Jun. 2021
Update on Virtual Notarization (Executive Order 202.7) During the COVID-19 (Coronavirus) Pandemic (Updated: June 24, 2021) — U.S. Insight
Update on Virtual Witnessing (New York Executive Order 202.14) During The COVID-19 (Coronavirus) Pandemic (Updated: June 24, 2021) — U.S. Insight
Publications December 2010
The AIFM Directive At Last
In April 2009, when EU Commissioner Charlie McCreevy announced the proposal for a Directive on Alternative Investment Fund Managers (the AIFM Directive), it was widely viewed as a rushed political response to raging populist anger in France and Germany against alternative investment funds that, due to their perceived excessive leverage and risk-taking, were considered catalysts for the global financial crisis.
The Controversial Debate
The initial draft law, which proposed a broad overhaul of regulation over managers of hedge funds, real estate funds, private equity funds and other collective investment vehicles (save for UCITS1), was roundly criticized by the alternative asset industries of Europe and the US as (i) not achieving any of its legitimate goals, and (ii) not taking into account substantial differences between the business models and asset classes of various types of alternative investment funds, and thus stifling the interests of investors and managers alike. Nowhere was the draft law more hotly debated than the UK, which is home to more than 80% of European hedge fund managers and where fears of a mass exodus of managers to Switzerland and certain other non-EU financial centres ran rampant.
Fast-forward 19 months witness to a record 1,700 proposed amendments to the draft, multiple compromise proposals, impact assessments, and lengthy negotiations and the mist surrounding alternative investment fund regulation in Europe finally lifted after 11 November 2010, when the European Parliament adopted the AIFM Directive with an overwhelming majority.2 Suddenly, the regulatory picture for the industry looks considerably less ominous than initially anticipated.
The adopted text maintains the core features of the original proposal aimed at achieving better investor protection, enhanced transparency, and effective prudential oversight of systemic risks. The related provisions include requirements regarding the managers future reporting and disclosure towards regulators and investors, their minimum capitalization, remuneration, risk management, liquidity, use of leverage on the fund level, conflicts of interest, fund control positions in portfolio companies, fund portfolio valuation, and marketing/fundraising.
Notwithstanding the broad regulatory scope of the adopted text, it adopts a substantively less draconian and protectionist stance toward industry regulation than that of certain prior versions. This softening in position is most apparent in the relatively watered-down depositary liability regime and the planned introduction (as of 2015) of a passport for the marketing of non-EU funds within the Union. Even before the extension of the passport to non-EU funds, such funds will, subject to certain minimum conditions, be able to access specific EU markets in compliance with their respective existing private placement regimes. The adopted text also stops short of proscribing passive, non-solicited investments by EU investors in non-EU funds.
Market Impact of the AIFM Directive
While stakeholders generally view the AIFM Directive as imposing substantial compliance burdens on the alternative asset universe, the consensus view is that neither a fatal blow to the nearly 2 trillion-strong industry, nor a prompt en masse manager exodus from the EU, is forthcoming. Rather, the expected behavioural consequence of the AIFM Directive is that fund managers will largely self-segregate into one of two groups: those managers with substantial interest in EU-based fund marketing and investment activity, and those focused on fund marketing and investment outside the EU.
Those managers seeking to tap the EU investor base or operate within the EU will need to begin assessing the impending impact of the AIFM Directive on their current and future fund activities and platforms, with a view toward modifying those activities and platforms to ensure compliance. On the other hand, those managers with little or no connection to the EU markets should conduct a cost-benefit analysis as to the perceived advantages and disadvantages of becoming subject to the AIFM Directive and act accordingly.
In addition to the nationality mix of a managers investor base, the size of its fund management operation and its investment strategy will also influence the managers assessment of the AIFM Directive, as certain exemptions from the manager authorization and ongoing compliance requirements may be available. In particular, the agreed text sets forth a lighter supervisory regime for a manager whose fund portfolio does not, on aggregate, exceed (i) 100 million, or (ii) 500 million, provided that the fund platform is unleveraged (with leverage being assessed only at the fund level, not at the portfolio company level) and the investors are locked-in for a minimum five-year period.
Managers that are able to avail themselves of one of the foregoing exemptions will still be required to register with their home-state regulator, satisfy certain initial and ongoing disclosure requirements, and comply with any applicable national regulation in their respective Member States. An exempted manager will be able to largely avoid the compliance costs associated with the AIFM Directive but will be restricted in its marketing efforts due to the non-availability of the EU passport. As a result, managers with a broad pool of existing EU investors, or those managers seeking to expand their marketing efforts into multiple EU Member States, may elect to voluntarily opt into the AIFM Directive framework, thereby subjecting themselves to the full gamut of compliance requirements.
Interestingly, as the AIFM Directive is concerned exclusively with managers of funds, the Euro-denominated thresholds associated with the foregoing exemptions only take into account the value of fund portfolio assets, without regard to assets associated with managed accounts or other non-collective investment management arrangements. As such, some investment managers will be able to manage large single-investor portfolios without falling under the AIFM Directive umbrella.
UCITS as an Alternative
Another option for the avoidance of future AIFM regulation that may appeal to hedge fund managers with a substantial EU investor base or fund platform is the possibility of migrating to or creating mirror investment vehicles under the UCITS regime. UCITS III-compliant hedge funds (NewCITS) represent a trend that has been gaining momentum since the dawn of the financial crisis and may climax with the advent of the AIFM Directive. The UCITS framework offers managers a number of benefits, such as new sales channels (to retail and certain institutional investors), broader geographic reach, economies of scale and a recognized global brand,
while not substantially curtailing absolute-performance, long-bias strategies. The gold-plating3 associated with the UCITS brand has historically come at a higher compliance cost for managers, but the overall impact of the AIFM Directive, coupled with the added flexibility afforded by the upcoming UCITS IV, may ultimately render this distinction meaningless.
The regulatory implications and consequent market reactions to the advent of the AIFM Directive, together with related developments under the UCITS regime, represent the dawn of a brave new world for the EU alternative asset industry. Managers within and without the EU will be confronted with a sweeping array of regulatory challenges of first impression, challenges which will call into question the fundamentals of how and where the alternative asset industry structures, sells and locates its products. The manner in which other leading (offshore) financial centres position themselves to competitively attract elements of the industry and market players also remains to be seen, as does the overall efficacy of the EUs regulatory initiatives in the face of future economic turmoil, though assuredly we are now witnessing merely the opening act of a several-act play, with more drama to follow.
The AIFM Directive is due to be transposed into national law by EU Member States by 2013. In 2017, the European Commission is required to review the AIFM Directives effectiveness in achieving its regulatory goals and market impact. Immediately after the formal completion of the EU legislative process, the European Commission will begin working with the Committee of European Securities Regulators (CESR)4 to promulgate technical advice and undertake rulemaking under the AIFM Directive. Finally, in 2018, ESMA is due to review the efficacy of the dual marketing system and potentially end the national private placement regimes.
2 CESR will be replaced by the newly established EU Securities and Markets Authority (ESMA), which is due to begin its operations on 1 January 2011.
3 Undertakings for Collective Investment in Transferable Securities (UCITS) are pan-European open-ended retail funds organized and operated within the UCITS regulatory regime currently consisting of Directive 85/611/EEC, amended, inter alia, by Directives 2001/107/EC and 2001/108/EC (UCITS III), and recast by Directive 2009/65/EC (UCITS IV).
4 The text was approved by 513 votes to 92, with three abstentions. The Council of the European Union is expected to give its formal approval of the adopted text in the coming weeks. However, this is widely expected to be a rubber-stamping exercise.
Marc V. Kramer
Carl A. Ruggiero