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Alternative UCITS for Offshore Fund Managers

Mark Browne, Partner, Financial Services Department

Mason Hayes & Curran

Q2 2012

Q2 edition

 


Funds authorised as UCITS1 currently hold in excess of €7 trillion and as international recognition of this form of fund regulatory authorisation grows the related opportunities are being examined by an increasingly broad spectrum of investment managers.

These opportunities include both a legal right to avail of pan European Union (EU) market access, but also potentially expedited registration and facilitated distribution in third countries where the UCITS brand is readily identified and accepted. Recent statistics illustrate that in excess of 40% of all UCITS sales have come from such third countries, primarily those in the Far East.

For alternative managers UCITS became of greater interest following the broadening of the investment opportunities available to them and clarification in this regard further to the “UCITS III” regulatory reforms2 and the Eligible Assets Directive3. Steady growth of alternative UCITS, typically called “Newcits”, has been evident in the years since then and the number of such UCITS hedge funds now exceeds 1,000. As the majority of such funds launched post the financial crisis of 2008 it is evident that the growth trend in the alternative sector of the UCITS market is accelerating and this is being driven by investor demands for regulated products that afford greater liquidity and transparency, as well as the potential for higher returns and access to alternative strategies offered by traditional hedge funds.

As a result alternative managers, many of whom traditionally only operated funds in the offshore sector4, are increasingly considering launching UCITS and this article seeks to highlight a range of the key issues for such managers in this regard. This article will be divided into two parts, with this, the first, examining issues regarding fund structure, including governance and appointment of service providers, while the second will explore issues concerning portfolio composition, including issues stemming from the liquidity and leverage requirements applicable to UCITS.

 

 

New establishment or conversion?

It is generally possible to simply convert an existing alternative fund structure into a UCITS (a “Conversion”). However, in addition to undergoing the relevant UCITS authorisation procedures of the appropriate local EU regulator, such as the Central Bank of Ireland (the “Central Bank”), this may require the redomiciliation of the structure in accordance with relevant legislation such as Ireland’s Companies (Miscellaneous Provisions) Act 2009 where the fund was originally domiciled offshore. Managers contemplating entering the UCITS space who already have a range of existing hedge funds must therefore initially determine whether to engage in a Conversion or to simply establish a new separate standalone entity and to maintain their existing, possibly offshore, structures intact - typically referred to as operating a “side by side” or co-domiciliation strategy.

In practice, the predominant pattern to date has been for separate standalone entities to be newly established where alternative managers enter the UCITS market, particularly in cases where a redomiciliation would be required. Key reasons many managers have determined to adopt this approach include the fact that the range of investment restrictions applicable to UCITS will typically require extensive amendments to the fund’s investment policy and contractual arrangements and result in a new cost structure which may reduce or distort the performance of an existing fund. Accordingly, it is often deemed preferable not to subject existing investors to such radical changes in case this triggers a wave of redemptions.

However, it can be noted that a Conversion (whether carried out in conjunction with a redomiciliation or not) does have various advantages, including the retention of the existing corporate identity of the fund, the maintenance of existing contractual relationships and the avoidance of the costs of establishing a new legal entity or a potentially tax inefficient transfer of assets between funds. It would also permit a fund to retain its existing track record and listing history.

In addition to highlighting key issues for offshore alternative managers when they determine to launch UCITS, therefore, this article will identify the issues which may create differences in performance, structure and risk profile between an alternative UCITS and the same investment manager’s sister non-UCITS products in a side-by-side fund range.

 

Implications for the investment manager

Investment managers are typically subject to regulation in the country in which they are located. Investment managers may be able to avail of exemptions applicable under local law from any requirement to be regulated where they are only providing management services to unregulated offshore funds. On the other hand, a UCITS home state regulator will generally require entities that wish to provide discretionary investment management services to such products to be regulated regardless of the jurisdiction in which they are located so alternative managers wishing to enter this market may find that they themselves first need to obtain some form of regulatory authorisation5.

 

Fund domicile

UCITS are required to be constituted under the laws of a member state of the EU so where a new entity is to be established this will have to be in an appropriate jurisdiction. In practice Ireland and Luxembourg are the two most prominent domiciles for the establishment of internationally distributed UCITS. It can be noted that this article makes specific reference to UCITS domiciled in Ireland.

Where it is proposed to proceed with the UCITS authorisation by means of a Conversion, this will need to adhere to both the applicable requirements of the local regulatory requirements for such authorisation in the relevant EU member state as well as the re-domiciliation legislation of the target jurisdiction (if the fund was originally established outside the EU)6.

 

Legal and capital structure of UCITS

UCITS may be formed as investment companies, unit trusts or contractual vehicles only and therefore if an existing fund was constituted as an investment limited partnership a new form of legal structure will be necessary and a Conversion would not be possible, as such. As a result, the legal structure of the respective funds may constitute a differentiating characteristic in the side-by-side model in addition to the regulatory classification.

The form of articles of association of any investment company will usually be largely driven by local company law so it would be preferable, if not absolutely necessary, for a completely revised form of articles which complies with both local law and the UCITS requirements to be adopted. This may also necessitate an amendment to the existing capital structure, particularly as share capital in off-shore investment companies is typically divided between non-voting participating shares held by investors and a small number of non-participating management shares with voting rights being held by the investment manager or promoter. By contrast all of the shares or units in UCITS will have voting rights and this often poses a concern for traditional alternative managers regarding potential loss of control.

One possible way of addressing such concerns within the applicable requirements is for the UCITS to be created with a separate non-participating subscriber share class with voting rights which are held by the investment manager (although investors will also still have voting rights) which not only facilitates a winding up at the end of the life of a fund but also, in the event of a serious disagreement with investors in a sub-fund, creates a potential practical solution where closing or spinning off the relevant sub-fund is proposed, to ensure the fund platform or corporate shell remains under the control of the sponsoring investment manager. It can be noted that UCITS are prohibited from making loans so this purely equity capital base may also be a point of divergence in comparison to an offshore fund which elects to issue debt instruments as well as equity.

In the case of UCITS structured as self-managed investment companies one (minor) advantage of a Conversion rather than establishing an entirely new UCITS, particularly for smaller managers who may have difficulty in raising, or providing, seed capital, is that the fund will typically already be of sufficient size to eliminate any need for the manager to invest capital to ensure that it meets the minimum capital requirement for UCITS.

 

Fund governance

Fund governance is an area of increased attention in recent years. In particular, the recent Weavering case7, where two “independent” directors were subject to civil litigation for their conduct as directors of a Cayman fund structured as an investment company, has focussed increased attention on the nature and composition of fund boards.

The issue of director capabilities and experience has greater significance in the context of UCITS. This arises as, in addition to general director’s duties, the boards for such funds, or their management companies, are specifically required to take responsibility for 10 key management functions under the UCITS IV8 regime, including risk management, supervision of delegates and monitoring of investment policy, investment strategies and performance, to cite a handful of examples. Each management company or self-managed fund is required to prepare a “Business Plan” which details the manner in which these requirements are met on an on-going basis and the UCITS’ “Statement of Responsibility” will specify which specific responsibilities adhere to each director. It can also be noted that the concept of collective board responsibility must be replaced with individual designated responsibility, in accordance with UCITS IV, for directors of UCITS by 1 July 2013 at the latest so this will accentuate concerns in this regard.

Additional local legal and regulatory requirements may also be relevant. For example, Irish UCITS are required to have a minimum of two Irish resident directors and each director must be approved by the Central Bank and meet its new “fitness and probity” standards. The new Irish voluntary Corporate Governance Code for funds may also be relevant in relation to determining board composition as it provides, for example, for the appointment of at least one entirely independent director and one representative of the investment manager. It can also be noted that in addition to fund regulatory concerns, under Irish company law directors may be subject to a higher liability standard in carrying out their duties than is generally the case in offshore jurisdictions.

In light of all these considerations any Conversion will typically involve a re-evaluation of the existing board and potential changes to its composition to ensure members have the relevant expertise to address the UCITS requirements. As a result, in the case of side-by-side structures it may be appropriate for board composition’s to differ for the separate onshore and offshore structures, or if a common board is to be appointed it may be necessary to reconstitute the boards of the existing offshore structures in the product range to ensure those directors can also meet the requirements of the UCITS.

 

UCITS service providers

Apart from the investment manager, there will typically be a requirement to appoint certain local third party service providers for functions such as fund administration. In a Conversion scenario, given the high proportion of both offshore and European hedge funds already administered from Ireland, this may not entail any change of administrator. However, given the nature and higher level of reporting required for UCITS, for example the obligation to ensure that any OTC derivatives held are reliably valued on a daily basis, in practice it will be necessary to ensure that the existing administrator has the appropriate capacity and expertise and as a result it will still be necessary to examine whether a change of administrator is actually required in addition to revisiting the terms of the service contract.

It can be noted that under the relatively new outsourcing regime permitted by the Central Bank activities other than “core administration activities” (being the final checking and release of NAV for dealing purposes and the maintenance of the shareholder register) may be carried out, subject to the applicable requirements, elsewhere, for example in the US. It can also be noted that in accordance with UCITS IV it is now possible for companies to avail of a passport for management services.

While offshore funds are generally free to choose whether or not to appoint a third party custodian, UCITS are required to appoint one, which must be located in the same jurisdiction they are domiciled in. In addition, in the case of a UCITS the minimum range of services to be provided is prescribed by regulations and the liability standard applicable to the custodian is required to cover situations where loss arises for the “unjustifiable failure to perform its obligations or its improper performance of them”. It is highly unlikely that this standard would be made applicable for any non-UCITS structure as, apart from other considerations, the exact meaning of this liability standard remains unresolved. The appointment of a custodian may therefore be a differentiating factor for the UCITS, which will certainly have a cost implication, and in any event the liability provisions, even if a custodian is appointed in both cases, will differ.

The appointment of a prime broker has been a standard hallmark of offshore hedge funds and indeed is often viewed as one of their defining characteristics. However, such appointments were traditionally not possible for UCITS, primarily due to the prohibition on the re-hypothecation of assets typically provided for in standard prime brokerage agreements and the limitation of 10% on counterparty exposure which UCITS are subject to. Increasingly however, in order to target the multi-trillion euro market which UCITS represent, prime brokers are now using modified form standard agreements specifically adapted to address the UCITS requirements and accepting a sub-custody role to facilitate their provision of services to UCITS. This is a growing market for prime brokers and increasingly the standard model for alternative UCITS.

 

Conclusions and summary

The market for alternative UCITS is expanding rapidly due to increased investor demand for well regulated, transparent and liquid investment structures. In determining whether to enter this market investment managers with existing funds need to initially determine whether to set up a completely new structure or to adapt and convert an existing product to ensure compliance with this regime and seek the appropriate authorisation. In either case the UCITS will differ from traditional alternative fund structures in a range of ways, a number of examples of which are set out above. Further examples, relating to portfolio composition, will be detailed in the second part of this article.

 

mbrowne@mhc.ie

www.mhc.ie

 


[1] UCITS is an acronym for “Undertakings for Collective Investment in Transferable Securities”, being investment funds established pursuant to relevant European Directives as implemented in each member state of the European Union. For example, the current UCITS directive, Directive 2009/65/EC, known as UCITS IV, was transposed into Irish law by way of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (SI 352 of 2011).

[2] Directive 2001/107/EC and Directive 2001/108/EC.

[3] Directive (2007/16/EC).

[4]“Offshore” in this context should be interpreted to mean non-OECD tax havens such as the Cayman Islands, BVI etc., rather than non-US.

[5] Switzerland is an example of a country which specifically introduced certain regulations some years ago in order to address this issue for local investment managers wishing to service UCITS which were not previously required to be regulated locally.

[6] A Conversion need not necessarily involve a redomiciliation. For example, the fund might originally have been authorised as an Irish Qualifying Investor Fund (QIF) or Professional Investor Fund (PIF).

[7] Weavering Macro Fixed Income Fund Limited (in liquidation) v Stefan Peterson and Hans Ekstrom, Cayman Islands Grand Court, Financial Services Division, 2011.

[8] Directive 2009/65/EC.

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