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CIS 5.2 General investment powers and limits for UCITS schemes

Application

CIS 5.2.1 R

This section (CIS 5.2) applies to authorised fund managers, in respect of UCITS schemes, except:

  1. (1)

    CIS 5.2.12 R (2)(c) (Eligible markets: requirements) which applies to depositaries of UCITS schemes only;

  2. (2)

    CIS 5.2.24 R (Requirement to cover sales) which applies to ICVCs which are UCITS schemes and the managers and trustees of AUTs which are UCITS schemes only;

  3. (3)

    CIS 5.2.25 R (3) (OTC transactions in derivatives) which also applies to depositaries of UCITS schemes;

  4. (4)

    CIS 5.2.29 R (Significant influence for ICVCs), which applies to ICVCs which are UCITS schemes only;

  5. (5)

    CIS 5.2.30 R (Significant influence for managers of AUTs), which applies to managers of AUTs which are UCITS schemes only; and

  6. (6)

    CIS 5.2.31 R (Concentration), which also applies to ICVCs, only which are UCITS schemes.

Explanation of CIS 5.2

CIS 5.2.2 G

This section outlines general investment rules, with which authorised funds must comply, in order to ensure that they qualify as UCITS schemes. The scheme property of an authorised fund may, subject to the rules in this chapter, comprise any assets or investments to which it is dedicated. For ICVCs, the scheme property may also include movable or immovable property that is necessary for the direct pursuit of the ICVC's business of investing in those assets or investments.

Prudent spread of risk

CIS 5.2.3 R

An authorised fund manager must ensure that, taking account of the investment objectives and policy of the authorised fund as stated in the most recently published prospectus of the authorised fund, the scheme property of the authorised fund aims to provide a prudent spread of risk.

Investment powers: general

CIS 5.2.4 G

The scheme property of each authorised fund must be invested only in accordance with the relevant provisions in this chapter that are applicable to that authorised fund and within any upper limit in this chapter. However, the instrument constituting the scheme may further restrict:

  1. (1)

    the kind of property in which the scheme property may be invested;

  2. (2)

    the proportion of the capital property of the authorised fund to be invested in assets of any description;

  3. (3)

    the descriptions of transactions permitted; and

  4. (4)

    the borrowing powers of the authorised fund.

Valuation

CIS 5.2.5 R
  1. (1)

    In this chapter, the value of the scheme property of an authorised fund means the net value of the scheme property determined in accordance with CIS 4.8 (Valuation) (for ICVCs and single-priced AUTs) or CIS 15.8 (Valuation) (for dual-priced AUTs), after deducting any outstanding borrowings, whether immediately due to be repaid or not.

  2. (2)

    When valuing the scheme property for this chapter:

    1. (a)

      the time as at which the valuation is being carried out ("the relevant time") is treated as if it were a valuation point, but the valuation and the relevant time do not count as a valuation or a valuation point for the purposes of CIS 4 (for ICVCs and single-priced AUTs) and CIS 15 (for dual-priced AUTs);

    2. (b)

      initial outlay is regarded as remaining part of the scheme property;

    3. (c)

      if the authorised fund manager, having taken reasonable care, determines that the authorised fund will become entitled to any unrealised profit which has been made on account of a transaction in derivatives, that prospective entitlement is regarded as part of the scheme property; and

    4. (d)

      for a dual-priced AUT, when applying CIS 15.8.4 R (Valuation):

      1. (i)

        the cancellation basis only is required; and

      2. (ii)

        paragraphs 1 to 8, 11 and 23 are not applicable.

Valuation

CIS 5.2.6 G

It should be noted that for the purpose of CIS 5.2.5 R, CIS 4.8 or CIS 15.8 may be affected by specific provisions in this chapter such as, for example, CIS 5.4.6 R (Stock lending: treatment of collateral) or CIS 12 (Special provisions for certain types of scheme).

Chapter to be construed as a whole

CIS 5.2.7 R
  1. (1)

    Where a rule in this chapter allows a transaction to be entered into or an investment to be retained only if possible obligations arising out of the investment transactions or out of the retention would not cause any breach of any limits in this chapter, it must be assumed that the maximum possible liability of the authorised fund under any other of those rules has also to be provided for.

  2. (2)

    Where a rule in this chapter permits an investment transaction to be entered into or an investment to be retained only if that investment transaction, or the retention, or other similar transactions, are covered:

    1. (a)

      it must be assumed that in applying any of those rules, the authorised fund must also simultaneously satisfy any other obligation relating to cover; and

    2. (b)

      no element of cover must be used more than once.

Examples

CIS 5.2.8 G

Examples of the "provisions" referred to in CIS 5.2.7 R are: CIS 5.2.19 R (Investment in warrants and nil and partly paid securities) and CIS 5.5.7 R (General power to accept or underwrite placings).

Transferable securities

CIS 5.2.9 R
  1. (1)

    Subject to this rule (CIS 5.2.9 R), a transferable security is an investment falling within article 76 (Shares etc), article 77 (Instruments creating or acknowledging indebtedness), article 78 (Government and public securities), article 79 (Instruments giving entitlement to investments) and article 80 (Certificates representing certain securities) of the Regulated Activities Order.

  2. (2)

    An investment is not a transferable security if the title to it cannot be transferred, or can be transferred only with the consent of a third party.

  3. (3)

    In applying (2) to an investment which is issued by a body corporate, and which is an investment falling within articles 76 (Shares, etc) or 77 (Instruments creating or acknowledging indebtedness) of the Regulated Activities Order, the need for any consent on the part of the body corporate or any members or debenture holders of it may be ignored.

  4. (4)

    An investment is not a transferable security unless the liability of the holder of it to contribute to the debts of the issuer is limited to any amount for the time being unpaid by the holder of it in respect of the investment.

UCITS schemes: general

CIS 5.2.10 R
  1. (1)

    The scheme property of a UCITS scheme must, except where otherwise provided in the rules in this chapter, only consist of any or all of:

    1. (a)

      transferable securities;

    2. (b)

      money market instruments permitted under CIS 5.2.20 R (Investment in money market instruments);

    3. (c)

      derivatives and forward transactions permitted under CIS 5.2.22 R (Permitted transactions (derivatives and forwards));

    4. (d)

      deposits permitted under CIS 5.2.28 R (Investment in deposits); and

    5. (e)

      units in collective investment schemes permitted under CIS 5.2.15 R (Investment in collective investment schemes).

  2. (2)

    Transferable securities and money market instruments held within a scheme must (subject to (3) and (4)) be:

    1. (a)

      admitted to or dealt on an eligible market within CIS 5.2.12 R (1)(a) (Eligible markets: requirements); or

    2. (b)

      dealt on an eligible market within CIS 5.2.12 R (1)(b) ; or

    3. (c)

      dealt on an eligible market within CIS 5.2.12 R (2); or

    4. (d)

      in the case of a money-market instrument not within (a) to (c) above, within CIS 5.2.20 R (2) .1

  3. (3)

    Not more than 10% in value of the scheme property of a UCITS scheme is to consist of transferable securities, which are not approved securities.

  4. (4)

    Not more than 10% in value of the scheme property is to consist of money market instruments, which do not fall within CIS 5.2.20 R (Investment in money market instruments).

  5. (5)

    CIS 5.2.13 R (Spread: general) and CIS 5.2.14 R (Spread: government and public securities) do not apply until the expiry of a period of six months after the date of effect of the authorisation order in respect of the authorised fund (or on which the initial offer commenced if later) provided that CIS 5.2.3 R (Prudent spread of risk) is complied with.

  6. (6)

    The following sections also apply to UCITS schemes:

    1. (a)

      CIS 5.3 (Derivatives exposure)

    2. (b)

      CIS 5.4 (Stock lending); and

    3. (c)

      CIS 5.5 (Cash, borrowing, lending and other provisions).

Eligible markets regime: purpose

CIS 5.2.11 G
  1. (1)

    To protect investors, this sourcebook provides that markets on which investments of authorised funds are dealt in or traded on should be of an adequate quality ("eligible") at the time of acquisition of the investment and until it is sold. This section specifies criteria based on those in the UCITS Directive, as to the nature of the markets in which the property of an authorised fund may be invested.

  2. (2)

    Where a market ceases to be eligible, investments on that market cease to be approved securities. The 10% restriction in CIS 5.2.10 R (3), (4) (UCITS schemes: general) applies and exceeding this limit because a market ceases to be eligible will generally be regarded as an inadvertent breach.

Eligible markets regime

CIS 5.2.12 R
  1. (1)

    A market is eligible for the purposes of the rules in this sourcebook if it is:

    1. (a)

      a regulated market; or

    2. (b)

      a market in an EEA State which is regulated, operates regularly and is open to the public.

  2. (2)

    A market not falling within (1) is eligible for the purposes of the rules in this sourcebook if:

    1. (a)

      the authorised fund manager, after consultation and notification with the depositary (and in the case of an ICVC, any other directors), decides that market is appropriate for investment of, or dealing in, the scheme property;

    2. (b)

      the market is included in a list in the prospectus; and

    3. (c)

      the depositary has taken reasonable care to determine that:

      1. (i)

        adequate custody arrangements can be provided for the investment dealt in on that market; and

      2. (ii)

        all reasonable steps have been taken by the authorised fund manager in deciding whether that market is eligible.

  3. (3)

    In (2), a market must not be considered appropriate unless it:

    1. (a)

      is regulated;

    2. (b)

      operates regularly;

    3. (c)

      is recognised;

    4. (d)

      is open to the public;

    5. (e)

      is adequately liquid; and

    6. (f)

      has adequate arrangements for unimpeded transmission of income and capital to or to the order of investors.

Spread: general

CIS 5.2.13 R
  1. (1)

    This rule (CIS 5.2.13 R) does not apply to government and public securities.

  2. (2)

    For the purposes of this ruleCIS 5.2.13 R) companies included in the same group for the purposes of consolidated accounts as defined in accordance with Directive 83/349/EEC or in the same group in accordance with international accounting standards are regarded as a single body.

  3. (3)

    Not more than 20% in value of the scheme property is to consist of deposits with a single body.

  4. (4)

    Not more than 5% in value of the scheme property is to consist of transferable securities or money market instruments issued by any single body.

  5. (5)

    The limit of 5% in (4) is raised to 10% in respect of up to 40% in value of the scheme property.

  6. (6)

    In applying (4) and (5) certificates representing certain securities are treated as equivalent to the underlying security.

  7. (7)

    The exposure to any one counterparty in an OTC derivative transaction must not exceed 5% in value of the scheme property. This limit is raised to 10% where the counterparty is an approved bank.2

  8. (8)

    Not more than 20% in value of the scheme is to consist of transferable securities and money market instruments issued by the same group (as referred to in (2)).2

  9. (9)

    Not more than 20% in value of the scheme is to consist of the units of any one collective investment scheme.

  10. (10)

    In applying the limits in (3),(4),(5), (6) and (7), not more than 20% in value of the scheme property is to consist of any combination of two or more of the following:

    1. (a)

      transferable securities or money market instruments issued by; or

    2. (b)

      deposits made with; or

    3. (c)

      exposures from OTC derivatives transactions made with;

    a single body.

  11. (11)

    [deleted]2

  12. (12)

    For the purpose of calculating the limits in (7) and (10), the exposure in respect of an OTC derivative may be reduced to the extent that collateral is held in respect of it if the collateral meets each of the conditions specified in (13).3

  13. (13)

    The conditions referred to in (12) are that the collateral:3

    1. (a)

      is marked-to-market on a daily basis and exceeds the value of the amount at risk;3

    2. (b)

      is exposed only to negligible risks (e.g. government bonds of first credit rating or cash) and is liquid;3

    3. (c)

      is held by a third party custodian not related to the provider or is legally secured from the consequences of a failure of a related party; and3

    4. (d)

      can be fully enforced by the UCITS scheme at any time.3

  14. (14)

    For the purpose of calculating the limits in CIS 5.2.13 R (7) and CIS 5.2.13 R (10), OTC derivative positions with the same counterparty may be netted provided that the netting procedures:3

    1. (a)

      comply with the conditions set out in Section 3 (Contractual netting (Contracts for novation and other netting agreements)) of Annex III to the Banking Consolidation Directive; and3

    2. (b)

      are based on legally binding agreements.3

  15. (15)

    In applying this rule, all derivatives transactions are deemed to be free of counterparty risk if they are performed on an exchange where the clearing house meets each of the following conditions:3

    1. (a)

      it is backed by an appropriate performance guarantee; and3

    2. (b)

      it is characterised by a daily mark-to-market valuation of the derivative positions and an at least daily margining.3

Guidance on spread: general3

CIS 5.2.13A G
  1. (1)

    CIS 5.2.13 R (12) to CIS 5.2.13 R (15) reflect the provisions of Article 5 of the Commission Recommendation 2004/383/EC of 27 April 2004 on the use of financial derivative instruments for undertakings for collective investment in transferable securities (in this Section referred to as "the Commission Recommendation on the use of financial derivative instruments"). This Recommendation may be accessed via http://www.europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_199/l_19920040607en00240029.pdf.3

  2. (2)

    The attention of authorised fund managers is specifically drawn to condition (d) in CIS 5.2.13 R (13) under which the collateral has to be legally enforceable at any time. It is the FSA's view that it is advisable for an authorised fund manager to undertake a legal due diligence exercise before entering into any financial collateral arrangement. This is particularly important where the collateral arrangements in question have a cross-border dimension. Depositaries will also need to exercise reasonable care to review the collateral arrangements in accordance with its duties under CIS 7.5.3 R (2) (Duties of the ACD and depositary: investment and borrowing powers) or CIS 7.10.3 R (2) (Duties of the manager and trustee: investment and borrowing powers), as appropriate.3

Spread: government and public securities

CIS 5.2.14 R
  1. (1)

    This rule (CIS 5.2.14 R) applies to government and public securities ("such securities").2

  2. (2)

    Where no more than 35% in value of the scheme property is invested in such securities issued by any one body, there is no limit on the amount which may be invested in such securities or in any one issue.

  3. (3)

    An authorised fund may invest more than 35% in value of the scheme property in such securities issued by any one body provided that:

    1. (a)

      the authorised fund manager has before any such investment is made consulted with the depositary and as a result considers that the issuer of such securities is one which is appropriate in accordance with the investment objectives of the authorised fund;

    2. (b)

      no more than 30% in value of the scheme property consists of such securities of any one issue;

    3. (c)

      the scheme property includes such securities issued by that or another issuer, of at least six different issues; and

    4. (d)

      the disclosures in (4) have been made.

  4. (4)

    Where it is intended that (3) may apply, the instrument constituting the scheme, and the most recently published prospectus, must clearly state:

    1. (a)

      the fact that more than 35% of the scheme property is or may be invested in such securities issued by one issuer;

    2. (b)

      the names of the States, the local authorities or public international bodies issuing such securities in which the authorised fund may invest over 35% of its assets.

  5. (5)

    In this ruleCIS 5.2.14 R) in relation to such securities:

    1. (a)

      issue, issued and issuer include guarantee, guaranteed and guarantor; and

    2. (b)

      an issue differs from another if there is a difference as to repayment date, rate of interest, guarantor or other material terms of the issue.

Investment in collective investment schemes

CIS 5.2.15 R

A scheme may invest in units in a collective investment scheme provided that no more than 30% of the value of that investing scheme is in collective investment schemes which are not schemes which comply with the conditions necessary in order to enjoy the rights conferred by the UCITS Directive and only if the second scheme is permitted under (1) - (4):1

  1. (1)

    it is a scheme which:

    1. (a)

      Complies with the conditions necessary for it to enjoy the rights conferred by the UCITS Directive; or

    2. (b)

      is recognised under the provisions of section 270 of the Act (Schemes authorised in designated countries or territories); or

    3. (c)

      is authorised as a non-UCITS retail scheme (provided the requirements of article 19(1)(e) of the UCITS Directive are met); or

    4. (d)

      is authorised in another EEA State (provided the requirements of article 19(1)(e) of the UCITS Directive are met);

  2. (2)

    the second scheme must comply where relevant with CIS 5.2.18 R (Investment in other group schemes);

  3. (3)

    the second scheme must have terms which prohibit more than 10% in value of the scheme property consisting of units in collective investment schemes; and

  4. (4)

    for the purposes of this rule (CIS 5.2.15 R) and CIS 5.2.13 R (Spread: general) each sub-fund of an umbrella scheme is to be treated as if it were a separate scheme but no sub-fund of an umbrella scheme may invest in another sub-fund of that umbrella scheme.2

Qualifying non-UCITS collective investment schemes

CIS 5.2.16 G
  1. (1)

    CIS 17.3 gives further detail as to the recognition of a scheme under section 270 of the Act.

  2. (2)

    Article 19 of the UCITS Directive sets out the general investment limits. So, a non-UCITS retail scheme, or its equivalent EEA scheme which has the power to invest in gold or immovables would not meet the criteria set in CIS 5.2.15 R(1) (c) and (d).2

Investment in associated collective investment schemes

CIS 5.2.17 R

Units in a collective investment scheme do not fall within CIS 5.2.15 R (Investment in collective investment schemes) if that collective investment scheme is managed or operated by (or, if it is an ICVC, has as its ACD) the authorised fund manager of the investing authorised fund or an associate of that authorised fund manager, unless:

  1. (1)

    the prospectus of the investing authorised fund clearly states that the property of that investing fund may include such units; and

  2. (2)

    CIS 5.2.18 R (Investment in other group schemes) is complied with.

Investment in other group schemes

CIS 5.2.18 R

An authorised fund must not invest in or dispose of units in another collective investment scheme (the second scheme), which is managed or operated by (or in the case of an ICVC, whose ACD is), the authorised fund manager of such authorised fund, or an associate of that authorised fund manager, unless;

  1. (1)

    the authorised fund manager of the authorised fund is under a duty to pay to the authorised fund by the close of business on the fourth business day next after the agreement to buy or to sell the amount referred to in (3) and (4);

  2. (2)

    there is no charge in respect of the investment in or the disposal of units in the second scheme;

  3. (3)

    on investment, either:

    1. (a)

      any amount by which the consideration paid by the authorised fund for the units in the second scheme exceeds the price that would have been paid for the benefit of the second scheme had the units been newly issued or sold by it; or

    2. (b)

      if such price cannot be ascertained by the authorised fund manager of the authorised fund, the maximum amount of any charge permitted to be made by the seller of units in the second scheme;

  4. (4)

    on disposal, the amount of any charge made for the account of the authorised fund manager or operator of the second scheme or an associate of any of them in respect of the disposal; and

  5. (5)

    In (1), (2), (3) and (4):

    1. (a)

      any addition to or deduction from the consideration paid on the acquisition or disposal of units in the second scheme, which is applied for the benefit of the second scheme and is, or is like, a dilution levy made in accordance with CIS 4.6.3 R (for ICVCs and single-priced AUTs) or SDRT provision made in accordance with CIS 4.6.3 R (for ICVCs and single-priced AUTs) or CIS 15.6.3 R (for dual-priced AUTs) is to be treated as part of the price of the units and not as part of any charge; and

    2. (b)

      any charge made in respect of an exchange of units in one sub-fund or separate part of the second scheme for units in another sub-fund or separate part of that scheme is to be included as part of the consideration paid for the units.

Investment in warrants and nil and partly paid securities

CIS 5.2.19 R
  1. (1)

    Where a UCITS scheme invests in a warrant, the exposure created by the exercise of the right conferred by the warrant must not exceed the limits in CIS 5.2.13 R (Spread: general) and CIS 5.2.14 R (Spread: government and public securities).2

  2. (2)

    A transferable security on which any sum is unpaid falls within a power of investment only if it is reasonably foreseeable that the amount of any existing and potential call for any sum unpaid could be paid by the authorised fund, at the time when payment is required, without contravening the rules in this chapter.

  3. (3)

    [deleted]2

Investment in money market instruments

CIS 5.2.20 R

A UCITS scheme may invest in money market instruments which are dealt in on the money market, are liquid and whose value can be accurately determined at any time, provided:2

  1. (1)

    the money market instrument is within CIS 5.2.10 R (2)(a) -(c); or1

  2. (2)

    the money market instrument is:

    1. (a)

      issued or guaranteed by a central, regional or local authority, a central bank of an EEA State, the European Central Bank, the European Union or the European Investment Bank, a non-EEA State or, in the case of a Federal State, by one of the members making up the federation, or by a public international body to which one or more EEA States belong; or

    2. (b)

      issued by a body, any securities of which are dealt in on an eligible market; or

    3. (c)

      issued or guaranteed by an establishment subject to prudential supervision in accordance with criteria defined by Community law or by an establishment which is subject to and complies with prudential rules considered by the FSA to be at least as stringent as those laid down by Community law.

Derivatives: general

CIS 5.2.21 R
  1. (1)

    A transaction in derivatives or a forward transaction must not be effected for a scheme unless:

    1. (a)

      the transaction is of a kind specified in CIS 5.2.22 R (Permitted transactions (derivatives and forwards)); and

    2. (b)

      the transaction is covered, as required by CIS 5.3.3 R (Cover for transactions in derivatives and forward transactions).

  2. (2)

    Where a scheme invests in derivatives, the exposure to the underlying assets must not exceed the limits in CIS 5.2.13 R (Spread: general) and CIS 5.2.14 R (Spread: government and public securities) save as provided in (4).

  3. (3)

    Where a transferable security or money market instrument embeds a derivative, this must be taken into account for the purposes of complying with this section (CIS 5.2).

  4. (4)

    Where a scheme invests in an index based derivative, provided the relevant index falls within CIS 5.2.34 R (Relevant indices) the underlying constituents of the index do not have to be taken into account for the purposes of CIS 5.2.13 R (Spread: general) and CIS 5.2.14 R (Spread: government and public securities).

  5. (5)

    The relaxation in (4) is subject to the authorised fund manager taking account of CIS 5.2.3 R (Prudent spread of risk).

Permitted transactions (derivatives and forwards)

CIS 5.2.22 R
  1. (1)

    A transaction in a derivative must

    1. (a)

      (a) be in an approved derivative; or

    2. (b)

      be one which complies with CIS 5.2.25 R (OTC transactions in derivatives).

  2. (2)

    A transaction in a derivative must have the underlying consisting of any or all of the following to which the scheme is dedicated:

    1. (a)

      transferable securities;

    2. (b)

      money market instruments permitted under CIS 5.2.20 R (Investment in money market instruments);

    3. (c)

      deposits permitted under CIS 5.2.28 R (Investment in deposits);

    4. (d)

      derivatives permitted under this rule (CIS 5.2.22 R);

    5. (e)

      collective investment scheme units permitted under CIS 5.2.15 R (Investment in collective investment schemes);

    6. (f)

      financial indices;

    7. (g)

      interest rates

    8. (h)

      foreign exchange rates; and

    9. (i)

      currencies.

  3. (3)

    A transaction in an approved derivative must be effected on or under the rules of an eligible derivatives market.

  4. (4)

    A transaction in a derivative must not cause a scheme to diverge from its investment objectives as stated in the instrument constituting the scheme and the most recently published prospectus.

  5. (5)

    A transaction in a derivative must not be entered into if the intended effect is to create the potential for an uncovered sale of one or more, transferable securities, money market instruments, units in collective investment schemes, or derivativesprovided that a sale is not to be considered as uncovered if the conditions in CIS 5.2.24 R (3) (Requirement to cover sales) are satisfied.3

  6. (6)

    Any forward transaction must be with an approved counterparty under CIS 5.2.25 R (2) (OTC transactions in derivatives).2

Transactions for the purchase of property

CIS 5.2.23 R

A derivative or forward transaction (which is a permitted transaction under CIS 5.2.22 R (Permitted transactions (derivatives and forwards)) which will or could lead to the delivery of property for the account of the ICVC or to the trustee for the account of the AUT may be entered into only if:

  1. (1)

    that property can be held for the account of the ICVC or can be held by the AUT; and

  2. (2)

    the authorised fund manager having taken reasonable care determines that delivery of the property under the transaction will not occur or will not lead to a breach of the rules in this sourcebook

Requirement to cover sales

CIS 5.2.24 R
  1. (1)

    No agreement by or on behalf of an ICVC or on behalf of an AUT to dispose of property or rights may be made:

    1. (a)

      unless the obligation to make the disposal and any other similar obligation could immediately be honoured by the authorised fund by delivery of property or the assignment (or, in Scotland, assignation) of rights; and

    2. (b)

      the property and rights at (a) are owned by the authorised fund at the time of the agreement.

  2. (2)

    Paragraph (1) does not apply to a deposit.

  3. (3)

    Paragraph (1) does not apply where:3

    1. (a)

      the risks of the underlying financial instrument of a derivative can be appropriately represented by another financial instrument and the underlying financial instrument is highly liquid; or3

    2. (b)

      the authorised fund manager or the depositary has the right to settle the derivative in cash, and cover exists within the scheme property which falls within one of the following asset classes:3

      1. (i)

        cash;3

      2. (ii)

        liquid debt instruments (e.g. government bonds of first credit rating) with appropriate safeguards (in particular, haircuts); or3

      3. (iii)

        other highly liquid assets having regard to their correlation with the underlying of the financial derivative instruments, subject to appropriate safeguards (e.g. haircuts where relevant).3

  4. (4)

    In the asset classes referred to in (3), an asset may be considered as liquid where the instrument can be converted into cash in no more than seven business days at a price closely corresponding to the current valuation of the financial instrument on its own market.3

Guidance on requirement to cover sales3

CIS 5.2.24A G

CIS 5.2.24 R (3) to CIS 5.2.24 R (4) reflect the provisions of Article 7 of the Commission Recommendation on the use of financial derivative instruments.3

OTC transactions in derivatives

CIS 5.2.25 R

Any transaction in an OTC derivative under CIS 5.2.22 R (1)(b) must be:

  1. (1)

    in a future or an option or a contract for differences;

  2. (2)

    with an approved counterparty; a counterparty to a transaction in derivatives is approved only if the counterparty is:

    1. (a)

      an eligible institution or an approved bank; or

    2. (b)

      a person whose permission (including any requirements or limitations), as published in the FSA Register or whose Home State authorisation, permits it to enter into the transaction as principal off-exchange;

  3. (3)

    on approved terms; the terms of the transaction in derivatives are approved only if, before the transaction is entered into, the depositary is satisfied that the counterparty has agreed with the ICVC or the manager:

    1. (a)

      to provide a reliable and verifiable valuation in respect of that transaction (which, for dual-priced AUTs should be on a buying and selling basis) at least daily and at any other time at the request of the ICVC or manager; and

    2. (b)

      that it will, at the request of the ICVC or manager, enter into a further transaction to close out that transaction at any time, at a fair value arrived at under the pricing model or other reliable basis agreed under (4); and

  4. (4)

    capable of valuation; a transaction in derivatives is capable of valuation only if the authorised fund manager having taken reasonable care determines that, throughout the life of the derivative (if the transaction is entered into), it will be able to value the investment concerned with reasonable accuracy:

    1. (a)

      on the basis of the pricing model which has been agreed between the authorised fund manager and the depositary; or

    2. (b)

      on some other reliable basis reflecting an up-to-date market value which has been so agreed.

Risk management: derivatives

CIS 5.2.26 R
  1. (1)

    An authorised fund manager must use a risk management process enabling it to monitor and measure as frequently as appropriate the risk of a scheme's derivatives and forwards positions and their contribution to the overall risk profile of the scheme.

  2. (2)

    The following details of the risk management process must be notified by the authorised fund manager to the FSA in advance of the use of the process as required by (1) along with advance notification of any material alteration to such details:

    1. (a)

      the methods for estimating risks in derivative and forward transactions; and

    2. (b)

      the types of derivatives and forwards to be used within the scheme together with their underlying risks and any relevant quantitative limits.2

Risk management process

CIS 5.2.27 G
  1. (1)

    The risk management process should take account of the investment objectives and policy of the scheme as stated in the most recent prospectus.

  2. (2)

    The depositary should take reasonable care to review the appropriateness of the risk management process in line with its duties under CIS 7.5.3 R (Duties of the ACD and depositary: investment and borrowing powers) or CIS 7.10.5 G (Duties of the manager and trustee: investment and borrowing powers), as appropriate.

  3. (3)

    An authorised fund manager is expected to demonstrate more sophistication in its risk management process for a scheme with a complex risk profile than for one with a simple risk profile. In particular the risk management process should take account of any characteristic of non-linear dependence in the value of a position to its underlying.

  4. (4)

    An authorised fund manager should take reasonable care to establish and maintain such systems and controls as are appropriate to its business as required by SYSC 3.1 (Systems and controls).

  5. (5)

    The risk management process should enable the analysis required by CIS 5.2.26 R to be undertaken at least daily or at each valuation point whichever is the more frequent.

  6. (6)

    Firms carrying out the risk management process should note the methodologies set out in Article 3 (Appropriately calibrated standards to measure market risk) of the Commission Recommendation on the use of financial derivative instruments.3

  7. (7)

    In assessing the risk of OTC derivatives, firms should note the methodologies set out in Article 5.3 (Invitation to use the standards laid down in Directive 2000/12/EC as a first reference) of the Commission Recommendation on the use of financial derivative instruments.3

Investment in deposits

CIS 5.2.28 R

A UCITS scheme may invest in deposits only with an approved bank and which are repayable on demand or have the right to be withdrawn, and maturing in no more than 12 months.

Significant influence for ICVCs

CIS 5.2.29 R
  1. (1)

    An ICVC must not acquire transferable securities issued by a body corporate and carrying rights to vote (whether or not on substantially all matters) at a general meeting of that body corporate if:

    1. (a)

      immediately before the acquisition, the aggregate of any such securities held by the ICVC gives the ICVC power significantly to influence the conduct of business of that body corporate; or

    2. (b)

      the acquisition gives the ICVC that power.

  2. (2)

    For the purpose of (1), an ICVC is to be taken to have power significantly to influence the conduct of business of a body corporate if it can, because of the transferable securities held by it, exercise or control the exercise of 20% or more of the voting rights in that body corporate (disregarding for this purpose any temporary suspension of voting rights in respect of the transferable securities of that body corporate).

Significant influence for managers of AUTs

CIS 5.2.30 R
  1. (1)

    A manager must not acquire, or cause to be acquired for an AUT of which it is the manager, transferable securities issued by a body corporate and carrying rights to vote (whether or not on substantially all matters) at a general meeting of the body corporate if:

    1. (a)

      immediately before the acquisition, the aggregate of any such securities held for that AUT, taken together with any such securities already held for other AUTs of which it is also the manager, gives the manager power significantly to influence the conduct of business of that body corporate; or

    2. (b)

      the acquisition gives the manager that power.

  2. (2)

    In (1), a manager is to be taken to have power significantly to influence the conduct of business of a body corporate if it can, because of the transferable securities held for all the AUTs of which it is the manager, exercise or control the exercise of 20% or more of the voting rights in that body corporate (disregarding for this purpose any temporary suspension of voting rights in respect of the transferable securities of that body corporate).

Concentration

CIS 5.2.31 R

A UCITS scheme:

  1. (1)

    must not acquire transferable securities (other than debt securities) which:

    1. (a)

      do not carry a right to vote on any matter at a general meeting of the body corporate that issued them; and

    2. (b)

      represent more than 10% of those securities issued by that body corporate;

  2. (2)

    must not acquire more than 10% of the debt securities issued by any single body;

  3. (3)

    must not acquire more than 25% of the units in a collective investment scheme;

  4. (4)

    must not acquire more than 10% of the money market instruments issued by any single body; and

  5. (5)

    need not comply with the limits in (2), (3) and (4) if, at the time of acquisition, the net amount in issue of the relevant investment cannot be calculated.

Schemes replicating an index

CIS 5.2.32 R
  1. (1)

    A UCITS scheme may invest up to 20% in value of the scheme property in shares and debentures which are issued by the same body where the investment policy of that scheme as stated in the most recently published prospectus is to replicate the composition of a relevant index as defined in CIS 5.2.34 R (Relevant indices).

  2. (2)

    The limit in (1) can be raised for a particular UCITS scheme up to 35% in value of the scheme property, but only in respect of one body and where justified by exceptional market conditions.

Index replication

CIS 5.2.33 G

In the case of a scheme replicating an index under CIS 5.2.32 R (Schemes replicating an index) the scheme property need not consist of the exact composition and weighting of the underlying in the relevant index where deviation from this is expedient for reasons of poor liquidity or excessive cost to the scheme in trading in an underlying investment.

Relevant indices

CIS 5.2.34 R

The indices referred to in CIS 5.2.32 R (Schemes replicating an index) are those which satisfy the following criteria:

  1. (1)

    the composition is sufficiently diversified;

  2. (2)

    the index is a representative benchmark for the market to which it refers; and

  3. (3)

    the index is published in an appropriate manner.