CP12/32: Implementation of the Alternative ... - BVCA admin

CP12/32
Implementation of the Alternative Investment Fund Managers Directive
3.5 For the purpose of transposing these categories into our rules, we propose to add the
defined terms ‘UK AIFM’, ‘EEA AIFM’ and ‘Non-EEA AIFM’ to the Glossary.
Regulatory technical standards on types of AIFMs
Annex X
3.6 As mentioned in Chapters 1 and 2, ESMA is currently developing these RTS having issued
a Discussion Paper earlier this year. 21 Because these standards have not yet been finalised, a
detailed discussion of the AIFMD perimeter is beyond the scope of this CP. We will
consider in CP2 the impact on the AIFMD perimeter of any draft material that ESMA
publishes for consultation.
AIFMD regulatory perimeter
3.7 Although we cannot make definitive statements in this CP about which funds and managers
are in scope, we can give some indication of our thinking. Although AIFMD is principally
targeted at the managers of funds that only have professional investors, it will apply to all
managers of authorised investment funds that are not UCITS. These are NURS and QIS; we
plan to consult on our approach to the regulation of these funds under AIFMD in CP2.
3.8 We would expect the managers of most unregulated collective investment schemes (UCIS),
managed or marketed in the UK, to be subject to the Directive. UCIS include UK-based
unauthorised unit trusts and limited partnerships investing in a range of assets such as
transferable securities, derivatives, real estate, private companies, fine art, wine, etc. UCIS
are primarily targeted at professional investors, but may be sold to certain types of retail
investor under certain exemptions. 22
3.9 The Directive applies to funds structured in any legal wrapper 23 , which means that
managers of investment companies are likely to be subject to the Directive, whether or not
the investment company is listed, or is internally or externally managed.
3.10 It is also likely that managers of offshore investment funds marketed to retail or
professional investors in the UK will be subject to the Directive. We do not have data on
the number of offshore investment funds marketed to professional investment in the UK,
because the managers or agents are not required to notify us of their marketing activities.
3.11 Finally, we understand that asset managers structured as limited partnerships subject to
the law of England and Wales will not be able to become AIFMs. This is because limited
partnerships subject to the laws of England and Wales, unlike some other jurisdictions, do
not have separate legal personality.
21 Discussion paper on Key concepts of the Alternative Investment Fund Managers Directive and types of AIFM available from
www.esma.europa.eu/system/files/2012-117.pdf
22 COBS 4.12. See sections 238 and sections 21 of FSMA and accompanying secondary legislation.
23 See Recital 6 AIFMD.
24 Financial Services Authority November 2012