Singapore Hedge Fund

Alternative asset management in Singapore

Future hedge fund regulation in the EU and its impact on Hong Kong and Singapore fund managers

On 30 April 2009 the European Commission, the executive body of the 27 Member State European Union (EU), published the final text of a draft EU Directive on Alternative Investment Fund Managers (Directive). The Directive, once passed, will bind all Member States of the EU and will require national legislation to be passed by Member States implementing it. While the Directive will apply primarily to any alternative investment fund manager (AIFM) established in an EU Member State which provides management and administration services to one or more alternative investment funds (AIF), it will also apply to the marketing of AIF in the EU by AIFM which are established outside the EU, including by AIFM established in the Hong Kong or Singapore. AIF for this purpose include both hedge funds and funds of hedge funds. As widely reported by the international press, the proposed Directive has been seen by many as an attack by rivals on the pre eminence of London’s hedge fund industry under cover of the perceived public desire for greater regulation following the global financial crisis. The Directive’s publication also follows the US Congress’ draft Hedge Fund Advisers Registration Act and Hedge Fund Transparency Act (the Grassley Levin Bill) in January 2009. The Directive could be approved by the end of 2009, with Member States of the EU required to transpose it to national law by 2011.

In many ways Hong Kong’s regulatory environment for hedge fund managers is “ahead of the game” in that, unlike the position in the US, exemption from licensing was effectively abolished when the Securities and Futures Ordinance (SFO) came into force in April 2003. Since that time, all hedge fund managers engaging in regulated activities have needed to be licensed by the Hong Kong Securities and Futures Commission (SFC) in the same way as “traditional” fund managers. This perhaps compares favourably to the loosening of the regulatory regime in Singapore in recent years to support its bid to rival Hong Kong’s status as the regional alternative investment management center and the fact that a fund manager need not obtain a capital markets license for fund management if the relevant fund can be treated as a “qualified investor”.

However, it is widely recognized that Hong Kong is not immune to the pressures arising from international regulatory initiatives in the wake of the global financial crisis. In addition, the mooted changes in regulation in the US will undoubtedly affect Hong Kong fund managers just as the previous attempts by the Securities and Exchange Commission (SEC) to regulate the world’s fund managers did. Whilst it is perhaps too early to assess the impact of possible US legislation, this is not the case as regards the Directive. All non EU hedge fund managers, in particular those in Hong Kong and Singapore, need to appreciate the far reaching implications of the Directive on Hong Kong or Singapore domiciled hedge fund managers, regardless of whether or not they are licensed by the SFC or the Monetary Authority of Singapore (MAS), should the Directive be adopted in its present form. This article briefly explains the major issues under the Directive and some of the relevant consequences.

Marketing authorisation of managers

Under the Directive an EU Member State in theory will be able to authorise a Hong Kong or Singapore fund manager to market an AIF of which it is the manager to professional investors (as defined in the MiFID Directive) throughout the EU provided that five conditions are satisfied (see below). This changes the present situation whereby, in brief, a Hong Kong or Singapore based hedge fund manager may (under different national legislation) market to professional investors within the particular jurisdictions according to local requirements, often with no filing or approval required. It appears that under the Directive authorisation will only be required to be obtained from one EU Member State, for example the UK, and thus not from each Member State in which an AIF is to be marketed. Further, in theory it should not be necessary for a Hong Kong or Singapore fund manager to establish a place of business in the EU Member State in which it is seeking authorisation (although in practice, as explained below, this is likely to be needed).

The Directive does not refer in this context only to AIF domiciled in a third country and thus it appears that any non EU fund manager will require authorisation to market not only AIF established outside the EU (Cayman Islands funds or funds domiciled elsewhere) but also those established inside the EU (whether in Ireland, Luxembourg or elsewhere). If this is correct, it will not suffice for a Hong Kong or Singapore fund manager to establish an AIF in the EU for marketing to EU investors to avoid the need to obtain authorization by a Member State of the EU.

The five conditions

The five conditions which will need to be satisfied in order for an EU Member State to authorise a Hong Kong, Singapore or other non EU fund manager to market an AIF in the EU are as follows:

  1. The European Commission will need to have taken a decision that legislation regarding prudential regulation and ongoing supervision in Hong Kong or Singapore is equivalent to the provisions of the Directive relating to such regulation and supervision and that it is effectively enforced.
  2. The European Commission will also need to have determined that Hong Kong or Singapore, as appropriate, grants to EU fund managers effective market access comparable to that granted by the EU to fund managers from Hong Kong or Singapore.

    The Directive provides for a two stage process in relation to these two conditions. First, it will require the European Commission to adopt implementing measures aimed at establishing (i) in relation to the first condition, general criteria for the equivalence and effective enforcement of third country legislation on prudential regulation and ongoing supervision, and (ii) in relation to the second condition, general criteria for assessing whether third countries grant EU fund managers effective market access comparable to that granted by the EU to fund managers from third countries.

    The Directive will require the European Commission, when establishing the equivalence criteria referred to in the preceding paragraph, to base these criteria on certain requirements laid down in the Directive in relation to EU fund managers, including the obligation (i) to maintain a minimum initial and ongoing level of regulatory capital, (ii) to ensure that the AIF of which they are the AIFM appoint an independent custodian and an independent valuation agent, (iii) to comply with various conduct of business rules, restrictions on delegation (see further below), transparency obligations with respect both to disclosure to investors and reporting to regulators and (iv) to comply with leverage limits which are to be determined by the European Commission.

    Second, it will require that, on the basis of these general criteria, the European Commission adopt implementing measures stating that the Hong Kong or Singapore legislation on prudential regulation and ongoing supervision of fund managers in each jurisdiction, as applicable, is equivalent to that under the Directive and is effectively enforced, as well as stating that the Hong Kong or Singapore grants EU fund managers effective market access at least comparable to that granted by the EU to fund managers from Hong Kong or Singapore, as appropriate.

    There are a number of issues which make it unlikely that Hong Kong or Singapore would likely meet the European Commission’s criteria. For most hedge fund managers in Hong Kong, for example, there are no paid up capital requirements. In Singapore hedge fund managers are not required to be licensed at all by the MAS when relying on certain exemptions. Although Hong Kong (under the Securities and Futures Ordinance and Companies Ordinance) and Singapore (under the Securities and Futures Act) have traditionally treated all private placements and offers to professional investors on the same basis, regardless of the domicile of the relevant fund, the act of marketing and distribution of a fund will usually trigger a licensing requirement. It is unclear if this will constitute comparable access.

  3. The relevant regulatory authorities of the EU Member State in which the Hong Kong or Singapore fund manager is seeking authorisation must have entered into a cooperation agreement with the “supervisor” of the relevant Hong Kong or Singapore fund manager which ensures an efficient exchange of all information that is relevant for monitoring the potential implications of the activities of the fund manager for the stability of systemically relevant financial institutions and the orderly functioning of markets in which that fund manager is active. The Directive does not define the term “supervisor”, but it is assumed that, as regards Hong Kong fund managers, this will mean the SFC and, in respect of Singapore, the MAS. To the extent that a Singapore fund manager has filed a notice of claim of exemption with the MAS, it would seem that this condition would not be capable of being complied with by such Singapore “exempt” fund manager. For Hong Kong this provision may be less of an issue given that the SFC has existing memoranda of understanding with a number of EU Member State regulators, including the UK’s FSA, Luxembourg’s CSSF and Ireland’s IFSRA.
  4. Hong Kong or Singapore must have signed an agreement with the EU Member State in which the Hong Kong or Singapore fund manager is applying for authorisation to share information on tax matters which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and which ensures an effective exchange of information in tax matters. This may not be an issue for Hong Kong � according to the OECD Hong Kong has substantially implemented the agreed standard. Singapore has stated that it intends to implement the OECD standard later in 2009.
  5. The Hong Kong or Singapore fund manager must provide the regulatory authorities in the EU Member State in which it is applying for authorisation with certain information, including information on the identities of its shareholders or members that have a direct or indirect holding in it which represents 10 per cent or more of its capital or voting rights.

It seems unlikely that all of the five conditions referred to above will be able to be satisfied in respect of either of Hong Kong or Singapore, the leading Asian hedge fund jurisdictions, and accordingly Hong Kong or Singapore fund managers may be prevented from marketing their AIF in the EU under the Directive, unless they establish a place of business in an EU Member State and seek authorisation under the Directive.

Passport provision delayed to 2014

The quid pro quo of requiring AIFM to be authorized in order to market AIF to professional investors is intended to be the fact that, once so authorized, marketing to professional investors could be done on a cross border, pan EU, passport basis. However, under (reported) French government pressure, the Directive will postpone the ability of an EU Member State to authorise fund managers to market AIF to professional investors across the EU to three years after the date on which the legislation of the Member States implementing the Directive enters into force (likely to be during the second half of 2014 at the earliest). While EU established hedge fund managers will be permitted to market non EU funds in the EU during this three year period under the existing national private placement rules currently in force in the EU Member States, it is not clear whether Hong Kong or Singapore fund managers will also be permitted to do so and this will need to be clarified.

Meaning of “marketing”

The Directive will define “marketing” to mean any general offering or placement of shares or interests in an AIF to, or with, investors domiciled in the EU regardless of at whose initiative the offer or placement takes place, and thus extends to responding to unsolicited approaches. Accordingly, if a fund manager based in, say, Hong Kong receives an unsolicited approach from investor, such as a UK based fund of hedge funds, any response to that approach is likely to constitute marketing by the Hong Kong fund manager. Where a Hong Kong fund manager is approached by a non EU entity acting on behalf, or which is a non EU affiliate, of an EU investor, it should be possible for the Hong Kong or Singapore fund manager to avoid being treated as marketing to the ultimate EU investor so long as it deals only with the non EU entity, subject to any contrary indication in the legislation of the relevant EU Member State implementing the Directive. In addition, the provision of periodic reports by a Hong Kong or Singapore fund manager to existing EU investors in an AIF of which it is the manager should not constitute marketing to such investors, provided that such reports do not contain any offer to subscribe for additional shares or interests in the AIF. Where an existing EU investor makes its own determination to subscribe for additional shares or interests, the position is less clear and again this will need to be clarified.

Protectionism

The five conditions set out above, all of which will need to be satisfied in order for a Hong Kong or Singapore fund manager to be authorised to market the AIF which it manages in the EU, in effect introduce a form of protectionism which is unlikely to benefit EU investors. This stands in unwelcome contrast to the openness of both Hong Kong and Singapore to foreign fund managers and, historically, to European funds in particular UCITS. The likely inability of a Hong Kong or Singapore fund manager to satisfy the conditions could result in EU pension funds and similar institutional investors being substantially restricted in the choice of AIF in which they may invest. Moreover, if the EU effectively locks out AIF managed by Hong Kong or Singapore (or in future, PRC) fund managers in this way, each of these jurisdictions may in turn reciprocate and lock out AIF managed by foreign or EU fund managers from their respective markets. This cannot be in the interest of EU fund managers or of EU investors. It would also contradict the terms of the Communique issued by the G20 in April 2009 in which it was agreed that protectionist measures would not be engaged in by the G20 countries.

Since these conditions, with the exception of a condition which is similar to the fourth condition, do not need to be satisfied by fund managers established and authorised in an EU Member State, Hong Kong or Singapore (or in future PRC) fund managers wishing to continue to market their AIF in the EU may be forced to establish a place of business in the EU and to become authorised under the Directive, something which will not be feasible for a large number of start ups in Hong Kong and Singapore.

Otherwise, as the explanatory memorandum which forms part of the proposed Directive recognises, EU fund managers will be provided with a comparative advantage vis à vis non EU fund managers such as those from Hong Kong and Singapore.

The position of Hong Kong or Singapore fund managers will differ from that of EU fund managers authorised under the Directive, in that the only condition which must be satisfied in order for an EU fund manager to be authorised to market a non EU AIF to professional investors in the EU is that each EU Member State in which the EU fund manager wishes to market the non EU AIF must have entered into an agreement to share information on tax matters with the country in which the non EU AIF is domiciled. It should be noted that this requirement provides that such an agreement must have been entered into with the country of domicile of the non EU AIF, while the fourth condition referred to above in relation to the authorisation of non EU AIFM, such as Hong Kong or Singapore fund managers requires that the agreement has been entered into with the relevant jurisdiction, being the domicile of the fund manager, irrespective of the domicile(s) of the AIF which it manages. The explanatory memorandum to the Directive explains that the requirement in relation to a non EU AIF managed by EU fund managers is designed to ensure that national tax authorities in the EU may obtain such information from the tax authorities in the country in which the non EU AIF is domiciled as is necessary to enable them to tax their domestic investors in that AIF. However, it is difficult to see how this objective will be achieved, particularly in relation to Cayman Islands established AIF (the most common offshore jurisdiction used by Hong Kong fund managers), by requiring say Hong Kong to have entered into such an agreement with the EU Member State in which a Hong Kong fund manager is seeking authorisation to market in the EU the Cayman Islands AIF which it manages.

Placement agents

Although the Directive is unclear as to the position, it appears that the European Commission’s intention is that Hong Kong or Singapore based third party distributors, placement agents and the like will only be permitted to market an AIF to professional investors in the EU if such AIF’s Hong Kong or Singapore fund manager is permitted to do so on the basis described above.

Conclusion

Whilst it is important to note that the Directive is not yet in force and the likely implementation is some way off, the scapegoating of hedge funds in a number of EU Member States remains politically expedient and, given the concentration of hedge fund managers in London, without cost for the governments of countries such as France and Germany. Moreover, as key discussions shaping the final form of the Directive proceed, the present government of the UK is possibly in its final 11 months of power.

With this combination of circumstances it is therefore incumbent on Asian hedge fund managers, in particular those established in Hong Kong and Singapore, to push their respective regulators and governments to register concern as to the consequences of the Directive in its present form, which will discriminate against Hong Kong and Singapore and could potentially shut out any future fund raising to professional investors within the EU by Asian based fund managers.

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  1. […] the original here: Future hedge fund regulation in the EU and its impact on Hong Kong … Tags: asia, singapore, throughout-the World […]

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