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COLL 5.2 General investment powers and limits for UCITS schemes

Application

COLL 5.2.1 R RP

This section applies to an ICVC, an ACD, a manager of an AUT, a depositary of an ICVC and a trustee of an AUT, where such ICVC or AUT is a UCITS scheme, in accordance with COLL 5.2.2 R (Table of application).

Table of application

COLL 5.2.2 R RP

This table belongs to COLL 5.2.1 R.

Rule

ICVC

ACD

Manager of an AUT

Depositary of an ICVC

Trustee of an AUT

5.2.3R to 5.2.9R

x

x

5.2.10R(1)

x

x

5.2.10R(2)(a)&(b)

x

x

5.2.10R(2)(c)

x

x

5.2.10R(3)

x

x

5.2.10AR to 5.2.10EG7

x

x

5.2.11R to 5.2.21R

x

x

5.2.22R

x

x

5.2.23R(1)

x

x

x

5.2.23R(2) to (4)7

x

x

x

x

x7

5.2.24R

x

x

5.2.25G

x

x

x

x

5.2.26R

x

x

5.2.27R

x

5.2.28R

x

5.2.29R to 5.2.33R

x

x

x

Note: x means "applies"

COLL 5.2.2A G RP

7In addition to the parts of CESR's UCITS eligible assets guidelines specifically referred to in this section, the authorised fund manager of a UCITS scheme should have regard to the other parts of those guidelines when applying the rules in this section. CESR's UCITS eligible assets guidelines are available at http://www.fsa.gov.uk/pages/Library/Other_publications/EU/eu_docs/index.shtml.

Prudent spread of risk

COLL 5.2.3 R RP

  1. (1)

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

  2. (2)

    The rules in this section relating to spread of investments do not apply until the expiry of a period of six months after the date of which the authorisation order, in respect of the UCITS scheme, takes effect or on which the initial offer commenced, if later, provided that (1) is complied with during such period.

Investment powers: general

COLL 5.2.4 R RP

The scheme property of each UCITS scheme must be invested only in accordance with the relevant provisions in sections COLL 5.2 to COLL 5.5 that are applicable to that UCITS scheme and up to any maximum limit so stated, but, 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 UCITS scheme be invested in assets of any description;

  3. (3)

    the descriptions of transactions permitted; and

  4. (4)

    the borrowing powers of the UCITS scheme.

Valuation

COLL 5.2.5 R RP
  1. (1)

    In this chapter, the value of the scheme property of a UCITS schememeans the net value determined in accordance with COLL 6.3 (Valuation and pricing), after deducting any outstanding borrowings, whether immediately due to be repaid or not.

  2. (2)

    When valuing the scheme property for the purposes of 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 COLL 6.3 (Valuation and pricing);

    2. (b)

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

    3. (c)

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

  3. (3)

    2When valuing the scheme property of a dual-priced authorised fund, the cancellation basis of valuation referred to in COLL 6.3.3 R (2) (Valuation) is to be applied.

Valuation guidance

COLL 5.2.6 G RP

It should be noted that for the purpose of COLL 5.2.5 R, COLL 6.3 may be affected by specific provisions in this chapter such as, for example, COLL 5.4.6 R (Treatment of collateral).

UCITS schemes: permitted types of scheme property

COLL 5.2.6A R RP

7The scheme property of a UCITS scheme must, except where otherwise provided in the rules in this chapter, consist solely of any or all of:

  1. (1)

    transferable securities;

  2. (2)

    approved money-market instruments;

  3. (3)

    units in collective investment schemes;

  4. (4)

    derivatives and forward transactions;

  5. (5)

    deposits; and

  6. (6)

    (for an ICVC) movable and immovable property that is necessary for the direct pursuit of the ICVC's business;

in accordance with the rules in this section.

[Note: articles 19(1) (in conjunction with other rules in this section) and (2)(c) of the UCITS Directive]

Transferable securities

COLL 5.2.7 R RP

  1. (1)

    A transferable security is an investment which is any of the following:

    1. (a)

      a share;

    2. (b)

      a debenture;

    3. (c)

      a government and public security;

    4. (d)

      a warrant; or

    5. (e)

      a certificate representing certain securities.

  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 a share or a debenture, 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.

Investment in transferable securities

COLL 5.2.7A R RP

  1. (1)

    7A UCITS scheme may invest in a transferable security only to the extent that the transferable security fulfils the following criteria:

    1. (a)

      the potential loss which the UCITS scheme may incur with respect to holding the transferable security is limited to the amount paid for it;

    2. (b)

      its liquidity does not compromise the ability of the authorised fund manager to comply with its obligation to redeemunits at the request of any qualifying unitholder (see COLL 6.2.16 R (3) );

    3. (c)

      reliable valuation is available for it as follows:

      1. (i)

        in the case of a transferable security admitted to or dealt in on an eligible market, where there are accurate, reliable and regular prices which are either market prices or prices made available by valuation systems independent from issuers;

      2. (ii)

        in the case of a transferable security not admitted to or dealt in on an eligible market, where there is a valuation on a periodic basis which is derived from information from the issuer of the transferable security or from competent investment research;

    4. (d)

      appropriate information is available for it as follows:

      1. (i)

        in the case of a transferable security admitted to or dealt in on an eligible market, where there is regular, accurate and comprehensive information available to the market on the transferable security or, where relevant, on the portfolio of the transferable security;

      2. (ii)

        in the case of a transferable security not admitted to or dealt in on an eligible market, where there is regular and accurate information available to the authorised fund manager on the transferable security or, where relevant, on the portfolio of the transferable security;

    5. (e)

      it is negotiable; and

    6. (f)

      its risks are adequately captured by the risk management process of the authorised fund manager.

  2. (2)

    Unless there is information available to the authorised fund manager that would lead to a different determination, a transferable security which is admitted to or dealt in on an eligible market shall be presumed:

    1. (a)

      not to compromise the ability of the authorised fund manager to comply with its obligation to redeemunits at the request of any qualifying unitholder; and

    2. (b)

      to be negotiable.

[Note: article 2(1) of the UCITS eligible assets Directive]

COLL 5.2.7B G RP

7Where the authorised fund manager considers that the liquidity or negotiability of a transferable security might compromise the ability of the authorised fund manager to comply with its obligation to redeemunits at the request of any qualifying unitholder, it should assess the liquidity risk in accordance with CESR's UCITS eligible assets guidelines with respect to article 2(1) of the UCITS eligible assets Directive.

Closed end funds constituting transferable securities

COLL 5.2.7C R RP

7A unit in a closed end fund shall be taken to be a transferable security for the purposes of investment by a UCITS scheme, provided it fulfils the criteria for transferable securities set out in COLL 5.2.7A R, and either:

  1. (1)

    where the closed end fund is constituted as an investment company or a unit trust:

    1. (a)

      it is subject to corporate governance mechanisms applied to companies; and

    2. (b)

      where another person carries out asset management activity on its behalf, that person is subject to national regulation for the purpose of investor protection; or

  2. (2)

    where the closed end fund is constituted under the law of contract:

    1. (a)

      it is subject to corporate governance mechanisms equivalent to those applied to companies; and

    2. (b)

      it is managed by a person who is subject to national regulation for the purpose of investor protection.

[Note: articles 2(2)(a) and (b) of the UCITS eligible assets Directive]

COLL 5.2.7D G RP
  1. (1)

    7An authorised fund manager should not invest the scheme property of a UCITS scheme in units of a closed end fund for the purpose of circumventing the investment limits set down in this section.

  2. (2)

    When required to assess whether the corporate governance mechanisms of a closed end fund in contractual form are equivalent to those applied to companies, the authorised fund manager should consider whether the contract on which the closed end fund is based provides its investors with rights to:

    1. (a)

      vote on the essential decisions of the closed end fund (including appointment and removal of asset management company, amendment to the contract which set up the closed end fund, modification of investment policy, merger, liquidation); and

    2. (b)

      control the investment policy of the closed end fund through appropriate mechanisms.

  3. (3)

    The assets of the closed end fund in contractual form should be separate and distinct from those of the asset manager and the closed end fund should be subject to liquidation rules that adequately protect its investors.

[Note: CESR's UCITS eligible assets guidelines with respect to articles 2(2) and 2(2)(b)(ii) of the UCITS eligible assets Directive ]

Transferable securities linked to other assets

COLL 5.2.7E R RP
  1. (1)

    7A UCITS scheme may invest in any other investment which shall be taken to be a transferable security for the purposes of investment by a UCITS scheme provided the investment:

    1. (a)

      fulfils the criteria for transferable securities set out in COLL 5.2.7A R; and

    2. (b)

      is backed by or linked to the performance of other assets, which may differ from those in which a UCITS scheme can invest.

  2. (2)

    Where an investment in (1) contains an embedded derivative component (see COLL 5.2.19R (3A)), the requirements of this section with respect to derivatives and forwards will apply to that component.

[Note: articles 2(2)(c) and 2(3) of the UCITS eligible assets Directive]

Approved money-market instruments

COLL 5.2.7F R RP

7An approved money-market instrument is a money-market instrument which is normally dealt in on the money market, is liquid and has a value which can be accurately determined at any time.

[Note: article 1(9) of the UCITS Directive]

COLL 5.2.7G R RP

7A money-market instrument shall be regarded as normally dealt in on the money market if it:

  1. (1)

    has a maturity at issuance of up to and including 397 days;

  2. (2)

    has a residual maturity of up to and including 397 days;

  3. (3)

    undergoes regular yield adjustments in line with money market conditions at least every 397 days; or

  4. (4)

    has a risk profile, including credit and interest rate risks, corresponding to that of an instrument which has a maturity as set out in (1) or (2) or is subject to yield adjustments as set out in (3).

[Note: article 3(2) of the UCITS eligible assets Directive]

COLL 5.2.7H R RP
  1. (1)

    7A money-market instrument shall be regarded as liquid if it can be sold at limited cost in an adequately short time frame, taking into account the obligation of the authorised fund manager to redeemunits at the request of any qualifying unitholder (see COLL 6.2.16 R (3) ).

  2. (2)

    A money-market instrument shall be regarded as having a value which can be accurately determined at any time if accurate and reliable valuations systems, which fulfil the following criteria, are available:

    1. (a)

      enabling the authorised fund manager to calculate a net asset value in accordance with the value at which the instrument held in the portfolio could be exchanged between knowledgeable willing parties in an arm's length transaction; and

    2. (b)

      based either on market data or on valuation models including systems based on amortised costs.

  3. (3)

    A money-market instrument that is normally dealt in on the money market and is admitted to or dealt in on an eligible market shall be presumed to be liquid and have a value which can be accurately determined at any time unless there is information available to the authorised fund manager that would lead to a different determination.

[Note: article 4 of the UCITS eligible assets Directive]

Guidance on assessing liquidity and quality of money-market instruments

COLL 5.2.7I G RP
  1. (1)

    7The authorised fund manager should assess the liquidity of a money-market instrument in accordance with CESR's UCITS eligible assets guidelines with respect to article 4(1) of the UCITS eligible assets Directive.

  2. (2)

    Where an approved money-market instrument forms part of the scheme property of a qualifying money market fund, the authorised fund manager should adequately monitor that the instrument continues to be of high quality, taking into account both its credit risk and its final maturity.

7Transferable securities and money-market instruments generally to be admitted to or dealt in on an eligible market7

COLL 5.2.8 R RP

  1. (1)

    [deleted]7

    7
  2. (2)

    [deleted]7

    7
  3. (3)

    Transferable securities and approved money-market instruments7 held within a UCITS scheme must be:7

    77
    1. (a)

      admitted to or dealt in on an eligible market within COLL 5.2.10 R (1)(a) (Eligible markets: requirements); or

    2. (b)

      dealt in on an eligible market within COLL 5.2.10 R (1)(b); or

    3. (c)

      admitted to or dealt in on an eligible market within COLL 5.2.10 R (2); or

    4. (d)

      for an approved money-market instrument not admitted to or dealt in on an eligible market, 7within COLL 5.2.10AR (1); or7

      77
    5. (e)

      recently issued transferable securities, provided that:7

      1. (i)

        the terms of issue include an undertaking that application will be made to be admitted to an eligible market; and7

      2. (ii)

        such admission is secured within a year of issue.7

  4. (4)

    However, a UCITS scheme may invest no more than 10% of the scheme property in transferable securities and approved money-market instruments other than those referred to in (3).7

    7

[Note: article 19(1)(a)-(d) and (h) and 2(a) of the UCITS Directive and article 3(1) of the UCITS eligible assets Directive]7

Eligible markets regime: purpose

COLL 5.2.9 G RP

  1. (1)

    This section specifies criteria based on those in article 19 of the UCITS Directive, as to the nature of the markets in which the property of a UCITS scheme 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 COLL 5.2.8 R (4) applies, and exceeding this limit because a market ceases to be eligible will generally be regarded as a breach beyond the control of the authorised fund manager.

Eligible markets: requirements

COLL 5.2.10 R RP

  1. (1)

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

    1. (a)

      a regulated market;

    2. (b)

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

    3. (c)

      any market within (2).

  2. (2)

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

    1. (a)

      the authorised fund manager, after consultation with and notification to 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 investmentdealt 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), a market must not be considered appropriate unless it:

    1. (a)

      is regulated;

    2. (b)

      operates regularly;

    3. (c)

      is recognised as a market or exchange or as a self-regulating organisation by an overseas regulator;

    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.

Money-market instruments with a regulated issuer

COLL 5.2.10A R RP
  1. (1)

    7(In addition to instruments admitted to or dealt in on an eligible market) a UCITS scheme may invest in an approved money-market instrument provided it fulfils the following requirements:

    1. (a)

      the issue or the issuer is regulated for the purpose of protecting investors and savings; and

    2. (b)

      the instrument is issued or guaranteed in accordance with COLL 5.2.10B R.

    [Note: article 19(1)(h), first to third indents of the UCITS Directive]

  2. (2)

    The issue or the issuer of a money-market instrument, other than one dealt in on an eligible market, shall be regarded as regulated for the purpose of protecting investors and savings if:

    1. (a)

      the instrument is an approved money-market instrument;

    2. (b)

      appropriate information is available for the instrument (including information which allows an appropriate assessment of the credit risks related to investment in it), in accordance with COLL 5.2.10C R; and

    3. (c)

      the instrument is freely transferable.

[Note: article 5(1) of the UCITS eligible assets Directive]

Issuers and guarantors of money-market instruments

COLL 5.2.10B R RP
  1. (1)

    7A UCITS scheme may invest in an approved money-market instrument if it is:

    1. (a)

      issued or guaranteed by any one of the following:

      1. (i)

        a central authority of an EEA State or, if the EEA State is a federal state, one of the members making up the federation;

      2. (ii)

        a regional or local authority of an EEA State;

      3. (iii)

        the European Central Bank or a central bank of an EEA State;

      4. (iv)

        the European Union or the European Investment Bank;

      5. (v)

        a non-EEA State or, in the case of a federal state, one of the members making up the federation;

      6. (vi)

        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 which is:

      1. (i)

        subject to prudential supervision in accordance with criteria defined by Community law; or

      2. (ii)

        subject to and complies with prudential rules considered by the FSA to be at least as stringent as those laid down by Community law.

  2. (2)

    An establishment shall be considered to satisfy the requirement in (1)(c)(ii) if it is subject to and complies with prudential rules, and fulfils one or more of the following criteria:

    1. (a)

      it is located in the European Economic Area;

    2. (b)

      it is located in an OECD country belonging to the Group of Ten;

    3. (c)

      it has at least investment grade rating;

    4. (d)

      on the basis of an in-depth analysis of the issuer, it can be demonstrated that the prudential rules applicable to that issuer are at least as stringent as those laid down by Community law.

[Note: article 6 of the UCITS eligible assets Directive]

Appropriate information for money-market instruments

COLL 5.2.10C R RP
  1. (1)

    7In the case of an approved money-market instrument within COLL 5.2.10BR (1)(b) or issued by a body of the type referred to in COLL 5.2.10E G; or which is issued by an authority within COLL 5.2.10BR (1)(a)(ii) or a public international body within COLL 5.2.10BR (1)(a)(vi) but is not guaranteed by a central authority within COLL 5.2.10BR (1)(a)(i), the following information must be available:

    1. (a)

      information on both the issue or the issuance programme, and the legal and financial situation of the issuer prior to the issue of the instrument, verified by appropriately qualified third parties not subject to instructions from the issuer;

    2. (b)

      updates of that information on a regular basis and whenever a significant event occurs; and

    3. (c)

      available and reliable statistics on the issue or the issuance programme.

  2. (2)

    In the case of an approved money-market instrument issued or guaranteed by an establishment within COLL 5.2.10BR (1)(c), the following information must be available:

    1. (a)

      information on the issue or the issuance programme or on the legal and financial situation of the issuer prior to the issue of the instrument;

    2. (b)

      updates of that information on a regular basis and whenever a significant event occurs; and

    3. (c)

      available and reliable statistics on the issue or the issuance programme, or other data enabling an appropriate assessment of the credit risks related to investment in those instruments.

  3. (3)

    In the case of an approved money-market instrument:

    1. (a)

      within COLL 5.2.10BR (1)(a)(i), (iv) or (v); or

    2. (b)

      which is issued by an authority within COLL 5.2.10BR (1)(a)(ii) or a public international body within COLL 5.2.10BR (1)(a)(vi) and is guaranteed by a central authority within COLL 5.2.10BR (1)(a)(i);

    information must be available on the issue or the issuance programme, or on the legal and financial situation of the issuer prior to the issue of the instrument.

[Note: articles 5(2), (3) and (4) of the UCITS eligible assets Directive]

COLL 5.2.10D G RP
  1. (1)

    7The appropriately qualified third parties referred to in COLL 5.2.10CR (1)(a) should specialise in the verification of legal or financial documentation and be composed of persons meeting professional standards of integrity.

  2. (2)

    The regular updates of information referred to in COLL 5.2.10CR (1)(b) and (2)(b) should normally occur on at least an annual basis.

[Note:CESR's UCITS eligible assets guidelines with respect to articles 5(2)(b) and (c) of the UCITS eligible assets Directive]

Other money-market instruments with a regulated issuer

COLL 5.2.10E G RP
  1. (1)

    7In addition to instruments admitted to or dealt in on an eligible market, a UCITS scheme may also with the express consent of the FSA (which takes the form of a waiver under section 148 of the Act as applied by section 250 of the Act or regulation 7 of the OEIC Regulations) invest in an approved money-market instrument provided:

    1. (a)

      the issue or issuer is itself regulated for the purpose of protecting investors and savings in accordance with COLL 5.2.10AR (2);

    2. (b)

      investment in that instrument is subject to investor protection equivalent to that provided by instruments which satisfy the requirements of COLL 5.2.10BR (1)(a),(b) or COLL 5.2.10BR (1)(c); and

    3. (c)

      the issuer is a company whose capital and reserves amount to at least EUR 10 million and which presents and publishes its annual accounts in accordance with Directive 78/660/EEC, is an entity which, within a group of companies which includes one or several listed companies, is dedicated to the financing of the group or is an entity which is dedicated to the financing of securitisation vehicles which benefit from a banking liquidity line.

  2. (2)

    A securitisation vehicle is a structure, whether in corporate, trust or contractual form, set up for the purpose of securitisation operations.

  3. (3)

    A banking liquidity line is a banking facility secured by a financial institution which is an establishment subject to prudential supervision in accordance with criteria defined by Community law or an establishment which is subject to and complies with prudential rules considered by the FSA (in accordance with COLL 5.2.10BR (2)) to be at least as stringent as those laid down by Community law.

[Note: article 19(1)(h), fourth indent of the UCITS Directive and article 7 of the UCITS eligible assets Directive]

Spread: general

COLL 5.2.11 R RP

  1. (1)

    This rule does not apply to government and public securities.

  2. (2)

    For the purposes of this rule companies included in the same group for the purposes of consolidated accounts as defined in accordance with the Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts 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 approved money-market instruments7issued by any single body.

    7
  5. (5)

    The limit of 5% in (4) is raised to 10% in respect of up to 40% in value of the scheme property. Covered bonds need not be taken into account for the purpose of applying the limit of 40%. 7

  6. (5A)

    The limit of 5% in (4) is raised to 25% in value of the scheme property in respect of covered bonds, provided that when a UCITS scheme invests more than 5% in covered bonds issued by a single body, the total value of covered bonds held must not exceed 80% in value of the scheme property.7

  7. (6)

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

  8. (7)

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

  9. (8)

    Not more than 20% in value of the scheme property is to consist of transferable securities and approved money-market instruments7issued by the same group (as referred to in (2)).

    7
  10. (9)

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

  11. (10)

    In applying the limits in (3),(4),(5), (6) and (7), and subject to (5A),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 (including covered bonds) 7or approved money-market instruments7issued by; or

      7
    2. (b)

      deposits made with; or

    3. (c)

      exposures from OTC derivatives transactions made with a single body.

  12. (11)

    1For 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 (12).

  13. (12)

    1The conditions referred to in (11) are that the collateral:

    1. (a)

      1is marked-to-market on a daily basis and exceeds the value of the amount at risk;

    2. (b)

      1is exposed only to negligible risks (e.g. government bonds of first credit rating or cash) and is liquid;

    3. (c)

      1is 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; and

    4. (d)

      1can be fully enforced by the UCITS scheme at any time.

  14. (13)

    1For the purpose of calculating the limits in (7) and (10), OTC derivative positions with the same counterparty may be netted provided that the netting procedures:

    1. (a)

      1comply 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; and

    2. (b)

      1are based on legally binding agreements.

  15. (14)

    1In 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:

    1. (a)

      1it is backed by an appropriate performance guarantee; and

    2. (b)

      1it is characterised by a daily mark-to-market valuation of the derivative positions and an at least daily margining.

[Note: article 22 of the UCITS Directive]7

1Guidance on spread: general

COLL 5.2.11A G RP
  1. (1)

    1COLL 5.2.11R (11) to (14) 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 www.europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_199/l_19920040607en00240029.pdf.

  2. (2)

    The attention of authorised fund managers is specifically drawn to condition (d) in COLL 5.2.11R (12) 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 COLL 6.6.4 R (General duties of the depositary).

  3. (3)

    5In applying the spread limit of 20% in value of scheme property which may consist of deposits with a single body, all uninvested cash comprising capital property that the depositary holds should be included in calculating the total sum of the deposits held by it and other companies in its group on behalf of the scheme.

Spread: government and public securities

COLL 5.2.12 R RP

  1. (1)

    This rule applies

    to government and public securities ("such securities").

  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 prominently 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; and

    2. (b)

      the names of the individual 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 rule 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.

  6. (6)

    Notwithstanding COLL 5.2.11R (1) and subject to (2) and (3), in applying the 20% limit in COLL 5.2.11R (10) with respect to a single body, government and public securities issued by that body shall be taken into account.7

Investment in collective investment schemes

COLL 5.2.13 R RP

A UCITS scheme must not invest in units in a collective investment scheme ("second scheme") unless the second scheme satisfies all of the following conditions, and provided that no more than 30% of the value of the UCITS scheme is invested in second schemes within (1)(b) to (e):8

8
  1. (1)

    the second scheme must:

    1. (a)

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

    2. (b)

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

    3. (c)

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

    4. (d)

      be authorised in another EEA State (provided the requirements of article 19(1)(e) of the UCITS Directive are met); or8

    5. (e)

      be authorised by the competent authority of an OECD member country (other than another EEA State) which has:8

      1. (i)

        signed the IOSCO Multilateral Memorandum of Understanding; and8

      2. (ii)

        approved the scheme's management company, rules and depositary/custody arrangements;

      (provided the requirements of article 19(1)(e) of the UCITS Directive are met);8

  2. (2)

    the second scheme must comply, where relevant, with COLL 5.2.15 R (Investment in associated collective investment schemes) and COLL 5.2.16 R (Investment in other group schemes);

    4
  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; and4

    4
  4. (4)

    where the second scheme is an umbrella, the provisions in (2) and (3) and COLL 5.2.11 R (Spread: general) 3apply to each sub-fund as if it were a separate scheme.4

Qualifying non-UCITS collective investment schemes

COLL 5.2.14 G RP

  1. (1)

    COLL 9.3 gives further detail as to the recognition of a scheme under section 270of 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 EEAscheme which has the power to invest in gold or immovables would not meet the criteria set in COLL 5.2.13R (1)(c) and COLL 5.2.13R (1)(d).

  3. (3)

    8In determining whether a scheme meets the requirements of article 19(1)(e) of the UCITS Directive for the purposes ofCOLL 5.2.13R (1)(d) or COLL 5.2.13R (1)(e), the authorised fund manager should consider the following factors before deciding that the scheme provides a level of protection for unitholders which is equivalent to that provided to unitholders in a UCITS scheme:

    1. (a)

      the rules guaranteeing the autonomy of the scheme and management in the exclusive interest of the unitholders;

    2. (b)

      the existence of an independent depositary/custodian with similar duties and responsibilities in relation to both safekeeping and supervision; where an independent depositary/custodian is not a requirement of local law as regards collective investment schemes, robust governance structures may provide a suitable alternative;

    3. (c)

      the availability of pricing information and reporting requirements;

    4. (d)

      redemption facilities and frequency;

    5. (e)

      restrictions in relation to dealings by related parties;

    6. (f)

      the extent of asset segregation; and

    7. (g)

      the local requirements for borrowing, lending and uncovered sales of transferable securities and money market instruments regarding the portfolio of the scheme.

    [Note: article 26 of CESR's UCITS eligible assets guidelines with respect to article 19(1)(e) of the UCITS Directive]

  4. (4)

    8The requirement for supervisory equivalence, as described in article 19(1)(e) (first indent) of the UCITS Directive, also applies to schemes (that are not UCITS schemes) established in other EEA States. In considering whether the second scheme satisfies this requirement, the authorised fund manager should have regard to the first section of article 26 of CESR's UCITS eligible assets guidelines.

Investment in associated collective investment schemes

COLL 5.2.15 R RP

A UCITS scheme must not invest in or dispose of units in another collective investment scheme (the second scheme) if the second scheme is managed or operated by (or, for an ICVC, whose ACD is) the authorised fund manager of the investing UCITS scheme or an associate of that authorised fund manager, unless:

  1. (1)

    the prospectus of the investing UCITS scheme clearly states that the property of that investing scheme may include such units; and

  2. (2)

    COLL 5.2.16 R (Investment in other group schemes) is complied with.

Investment in other group schemes

COLL 5.2.16 R RP

  1. (1)

    Where:

    1. (a)

      an investment or disposal is made under COLL 5.2.15 R; and

    2. (b)

      there is a charge in respect of such investment or disposal;

    the authorised fund manager of the UCITS scheme making the investment or disposal must pay the UCITS scheme the amounts referred to in (2) or (3) within four business days following the date of the agreement to invest or dispose.

  2. (2)

    When an investment is made, the amount referred to in (1)(a) is either:

    1. (a)

      any amount by which the consideration paid by the UCITS scheme 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.

  3. (3)

    When a disposal is made, the amount referred to in (1)(a) is 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.

  4. (4)

    In this rule:

    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 COLL 6.3.8 R (Dilution) or SDRT provision made in accordance with COLL 6.3.7 (SDRT provision) 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.

7Investment in nil and partly paid securities7

COLL 5.2.17 R RP

  1. (1)

    [deleted]7

    7
  2. (2)

    A transferable security or an approved money-market instrument7on 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 UCITS scheme, at the time when payment is required, without contravening the rules in this chapter.

    7
7
COLL 5.2.18 R RP

[deleted]7

Derivatives: general

COLL 5.2.19 R RP

  1. (1)

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

    1. (a)

      the transaction is of a kind specified in COLL 5.2.20 R (Permitted transactions (derivatives and forwards)); and

    2. (b)

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

  2. (2)

    Where a UCITS scheme invests in derivatives, the exposure to the underlying assets must not exceed the limits in COLL 5.2.11 R (Spread: general) and COLL 5.2.12 R (Spread: government and public securities) save as provided in (4).

  3. (3)

    Where a transferable security or approved money-market instrument7embeds a derivative, this must be taken into account for the purposes of complying with this section.

    7
  4. (3A)
    1. (a)

      7A transferable security or an approved money-market instrument will embed a derivative if it contains a component which fulfils the following criteria:

      1. (i)

        by virtue of that component some or all of the cash flows that otherwise would be required by the transferable security or approved money-market instrument which functions as host contract can be modified according to a specified interest rate, financial instrument price, foreign exchange rate, index of prices or rates, credit rating or credit index or other variable, and therefore vary in a way similar to a stand-alone derivative;

      2. (ii)

        its economic characteristics and risks are not closely related to the economic characteristics and risks of the host contract; and

      3. (iii)

        it has a significant impact on the risk profile and pricing of the transferable security or approved money-market instrument.

    2. (b)

      A transferable security or an approved money-market instrument does not embed a derivative where it contains a component which is contractually transferable independently of the transferable security or the approved money-market instrument. That component shall be deemed to be a separate instrument.

    [Note: article 10 of the UCITS eligible assets Directive]7

  5. (4)

    Where a scheme invests in an index based derivative, provided the relevant index falls within COLL 5.2.33 R (Relevant indices) the underlying constituents of the index do not have to be taken into account for the purposes of COLL 5.2.11 R and COLL 5.2.12 R.

  6. (5)

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

Guidance on transferable securities and money-market instruments embedding derivatives7

COLL 5.2.19A G RP
  1. (1)

    7Collateralised debt obligations (CDOs) or asset-backed securities using derivatives, with or without an active management, will generally not be considered as embedding a derivative except if:

    1. (a)

      they are leveraged, i.e. the CDOs or asset-backed securities are not limited recourse vehicles and the investors' loss can be higher than their initial investment; or

    2. (b)

      they are not sufficiently diversified.

  2. (2)

    Where a transferable security or approved money-market instrument embedding a derivative is structured as an alternative to an OTC derivative, the requirements set out in COLL 5.2.23 R with respect to transactions in OTC derivatives will apply. This will be the case for tailor-made hybrid instruments, such as a single tranche CDO structured to meet the specific need of a scheme, which should be considered as embedding a derivative. Such a product offers an alternative to the use of an OTC derivative, for the same purpose of achieving a diversified exposure with a pre-set credit risk level to a portfolio of entities.

  3. (3)

    The following list of transferable securities and approved money-market instruments, which is illustrative and non-exhaustive, could be assumed to embed a derivative:

    1. (a)

      credit linked notes;

    2. (b)

      transferable securities or approved money-market instruments whose performance is linked to the performance of a bond index;

    3. (c)

      transferable securities or approved money-market instruments whose performance is linked to the performance of a basket of shares, with or without active management;

    4. (d)

      transferable securities or approved money-market instruments with a fully guaranteed nominal value whose performance is linked to the performance of a basket of shares, with or without active management;

    5. (e)

      convertible bonds; and

    6. (f)

      exchangeable bonds.

  4. (4)

    Schemes cannot use transferable securities or approved money-market instruments which embed a derivative to circumvent the rules in this section.

  5. (5)

    Transferable securities and approved money-market instruments which embed a derivative are subject to the rules applicable to derivatives as required by this section. It is the authorised fund manager's responsibility to check that these requirements are complied with. The nature, frequency and scope of checks performed will depend on the characteristics of the embedded derivatives and on their impact on the scheme, taking into account its stated investment objective and risk profile.

Permitted transactions (derivatives and forwards)

COLL 5.2.20 R RP

  1. (1)

    A transaction in a derivative must:

    1. (a)

      be in an approved derivative; or

    2. (b)

      be one which complies with COLL 5.2.23 R (OTC transactions in derivatives).

  2. (2)

    The underlying of a transaction in a derivative must consist of any one or more of the following to which the scheme is dedicated:

    1. (a)

      transferable securities permitted under COLL 5.2.8 R (3)(a) to (c) and COLL 5.2.8 R (3)(e)7;

    2. (b)

      approved money-market instruments7 permitted underCOLL 5.2.8 R (3)(a) to COLL 5.2.8 R (3)(d)7;

      77
    3. (c)

      deposits permitted under COLL 5.2.26 R (Investment in deposits);

    4. (d)

      derivatives permitted under this rule;

    5. (e)

      collective investment scheme units permitted under COLL 5.2.13 R (Investment in collective investment schemes);

    6. (f)

      financial indices which satisfy the criteria set out in COLL 5.2.20A R7;

    7. (g)

      interest rates;

    8. (h)

      foreign exchange rates; and

    9. (i)

      currencies.

    [Note: article 8(1)(a) of the UCITS eligible assets Directive]7

  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, approved money-market instruments,7units in collective investment schemes or derivatives provided that a sale is not to be considered as uncovered if the conditions in COLL 5.2.22R (3) (Requirement to cover sales) are satisfied1.

    7
  6. (6)

    Any forward transaction must be made with an eligible institution or an approved bank.

  7. (7)

    7A derivative includes an instrument which fulfils the following criteria:

    1. (a)

      it allows the transfer of the credit risk of the underlying independently from the other risks associated with that underlying;

    2. (b)

      it does not result in the delivery or the transfer of assets other than those referred to in COLL 5.2.6A R (UCITS schemes: permitted types of scheme property) including cash;

    3. (c)

      in the case of an OTC derivative, it complies with the requirements in COLL 5.2.23 R (OTC transactions in derivatives);

    4. (d)

      its risks are adequately captured by the risk management process of the authorised fund manager, and by its internal control mechanisms in the case of risks of asymmetry of information between the authorised fund manager and the counterparty to the derivative, resulting from potential access of the counterparty to non-public information on persons whose assets are used as the underlying by that derivative.

    [Note: article 8(2) of the UCITS eligible assets Directive]7

  8. (8)

    A UCITS scheme may not undertake transactions in derivatives on commodities.

    [Note: article 8(5) of the UCITS eligible assets Directive]7

Financial indices underlying derivatives

COLL 5.2.20A R RP
  1. (1)

    7The financial indices referred to in COLL 5.2.20R (2)(f) are those which satisfy the following criteria:

    1. (a)

      the index is sufficiently diversified;

    2. (b)

      the index represents an adequate benchmark for the market to which it refers; and

    3. (c)

      the index is published in an appropriate manner.

  2. (2)

    A financial index is sufficiently diversified if:

    1. (a)

      it is composed in such a way that price movements or trading activities regarding one component do not unduly influence the performance of the whole index;

    2. (b)

      where it is composed of assets in which a UCITS scheme is permitted to invest, its composition is at least diversified in accordance with the requirements with respect to spread and concentration set out in this section; and

    3. (c)

      where it is composed of assets in which a UCITS scheme cannot invest, it is diversified in a way which is equivalent to the diversification achieved by the requirements with respect to spread and concentration set out in this section.

  3. (3)

    A financial index represents an adequate benchmark for the market to which it refers if:

    1. (a)

      it measures the performance of a representative group of underlyings in a relevant and appropriate way;

    2. (b)

      it is revised or rebalanced periodically to ensure that it continues to reflect the markets to which it refers, following criteria which are publicly available; and

    3. (c)

      the underlyings are sufficiently liquid, allowing users to replicate it if necessary.

  4. (4)

    A financial index is published in an appropriate manner if:

    1. (a)

      its publication process relies on sound procedures to collect prices, and calculate and subsequently publish the index value, including pricing procedures for components where a market price is not available; and

    2. (b)

      material information on matters such as index calculation, rebalancing methodologies, index changes or any operational difficulties in providing timely or accurate information is provided on a wide and timely basis.

  5. (5)

    Where the composition of underlyings of a transaction in a derivative does not satisfy the requirements for a financial index, the underlyings for that transaction shall where they satisfy the requirements with respect to other underlyings pursuant to COLL 5.2.20R (2), be regarded as a combination of those underlyings.

[Note: article 9 of the UCITS eligible assets Directive]

Guidance on financial indices underlying derivatives

COLL 5.2.20B G RP
  1. (1)

    7An index based on derivatives on commodities or an index on property may be regarded as a financial index of the type referred to in COLL 5.2.20R (2)(f) provided it satisfies the criteria for financial indices set out in COLL 5.2.20A R.

  2. (2)

    If the composition of an index is not sufficiently diversified in order to avoid undue concentration, its underlying assets should be combined with the other assets of the UCITS scheme when assessing compliance with the requirements on cover for transactions in derivatives and forward transactions set out in COLL 5.3.3 R and spread set out in COLL 5.2.11 R.

  3. (3)
    1. (a)

      In order to avoid undue concentration, where derivatives on an index composed of assets in which a UCITS scheme cannot invest are used to track or gain high exposure to the index, the index should be at least diversified in a way which is equivalent to the diversification achieved by the requirements with respect to spread and concentration set out in this section.

    2. (b)

      If derivatives on that index are used for risk-diversification purposes, provided that the exposure of the UCITS scheme to that index complies with the 5%, 10% and 40% ratios required by COLL 5.2.11R (4) and (5), there is no need to look at the underlying components of that index to ensure that it is sufficiently diversified.

    [Note:CESR's UCITS eligible assets guidelines with respect to article 9 of the UCITS eligible assets Directive]

  4. (4)

    When assessing whether a hedge fund index satisfies the requirements for a financial index set out in this section, firms should consider The Committee of European Securities Regulators' guidelines on the classification of hedge fund indices as financial indices (CESR/07-434). Those guidelines are available at http://www.fsa.gov.uk/pages/Library/Other_publications/EU/eu_docs/index.shtml.

Transactions for the purchase of property

COLL 5.2.21 R RP

A derivative or forward transaction which will or could lead to the delivery of property for the account of the UCITS scheme may be entered into only if:

  1. (1)

    that property can be held for the account of the UCITS scheme; 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

COLL 5.2.22 R RP

  1. (1)

    No agreement by or on behalf of a UCITS scheme to dispose of property or rights may be made unless:

    1. (a)

      the obligation to make the disposal and any other similar obligation could immediately be honoured by the UCITS scheme 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 UCITS scheme at the time of the agreement.

  2. (2)

    Paragraph (1) does not apply to a deposit.

  3. (3)

    Paragraph (1) does not apply where:

    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; or

    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:

      1. (i)

        cash;

      2. (ii)

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

      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).

  4. (4)

    1In 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.

1Guidance on requirement to cover sales

COLL 5.2.22A G RP

1 COLL 5.2.22R (3) to (4) reflect the provisions of Article 7 of the Commission Recommendation on the use of financial derivative instruments.

OTC transactions in derivatives

COLL 5.2.23 R RP

A transaction in an OTC derivative under COLL 5.2.20 R (1) (b) must be:

  1. (1)

    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;

  2. (2)

    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 authorised fund manager:

    1. (a)

      to provide, at least daily and at any other time at the request of the ICVC or authorised fund manager,7 a reliable and verifiable valuation in respect of that transaction corresponding to its fair value (being the amount for which an asset could be exchanged, or a liability settled, between knowledgeable, willing parties in an arm's length transaction) and which does not rely only on market quotations by the counterparty;7 and

      7
    2. (b)

      that it or an alternative counterparty 3will, at the request of the ICVC or authorised fund manager, enter into afurther transaction to sell, liquidate or 3close out that transactionat any time, at afair value arrived at under the reliable market value basis or7 pricing model agreed under (3);

      77
  3. (3)

    capable of reliable7 valuation; a transaction in derivatives is capable of reliable7 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 an up-to-date market value which the authorised fund manager and the depositary have agreed is reliable;7 or

    2. (b)

      if the value referred to in (a) is not available, on the basis of a pricing model which the authorised fund manager and the depositary have agreed uses an adequate recognised methodology; and7

      7
  4. (4)

    subject to verifiable valuation; a transaction in derivatives is subject to verifiable valuation only if, throughout the life of the derivative (if the transaction is entered into) verification of the valuation is carried out by:7

    1. (a)

      an appropriate third party which is independent from the counterparty of the derivative, at an adequate frequency and in such a way that the authorised fund manager is able to check it; or7

    2. (b)

      a department within the authorised fund manager which is independent from the department in charge of managing the scheme property and which is adequately equipped for such a purpose.7

[Note: articles 8(1)(b), 8(3) and 8(4) of the UCITS eligible assets Directive]7

Risk management7

COLL 5.2.24 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 positions and their contribution to the overall risk profile of the scheme.

    7
  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):

    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.

  3. (3)

    The authorised fund manager must notify the FSA in advance of any material alteration to the details in (2)(a) or (b).

Risk management process

COLL 5.2.25 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 COLL 6.6.4 R (General duties of the depositary) and3COLL 6.6.14 R (Duties of the depositary and authorised fund manager: 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)6.

  5. (5)

    The risk management process should enable the analysis required by COLL 5.2.24 R to be undertaken at least daily or at each valuation point whichever is the more frequent.

  6. (6)

    1Firms 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.

  7. (7)

    1In 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.

  8. (8)

    An authorised fund manager should undertake the risk assessment with the highest care when the counterparty to the derivative is an associate of the authorised fund manager or the credit issuer.7

[Note:CESR's UCITS eligible assets guidelines with respect to article 8(2)(d) of the UCITS eligible assets Directive]7

Investment in deposits

COLL 5.2.26 R RP

A UCITS scheme may invest in deposits only if it:

  1. (1)

    is with an approved bank;

  2. (2)

    is:

    1. (a)

      repayable on demand; or

    2. (b)

      has the right to be withdrawn; and

  3. (3)

    matures in no more than 12 months.

Significant influence for ICVCs

COLL 5.2.27 R RP

  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 to influence significantly 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

COLL 5.2.28 R RP

  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)

    For the purpose of (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

COLL 5.2.29 R RP

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 approved money-market instruments7 issued by any single body; and

    7
  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.

UCITS schemes that are umbrellas

COLL 5.2.30 R RP

  1. (1)

    In relation to a UCITS scheme which is an umbrella, the provisions in COLL 5.2 to COLL 5.5 apply to each sub-fund as they would for an authorised fund, except the following rules which apply at the level of the umbrella only:

    1. (a)

      COLL 5.2.27 R (Significant influence for ICVCs);

    2. (b)

      COLL 5.2.28 R (Significant influence for managers of AUTs); and

    3. (c)

      COLL 5.2.29 R (Concentration).

  2. (2)

    A sub-fund must not invest in another sub-fund of the same umbrella.

Schemes replicating an index

COLL 5.2.31 R RP

  1. (1)

    Notwithstanding COLL 5.2.11 R (Spread: general), a7UCITS 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 which satisfies the criteria specified in COLL 5.2.33 R (Relevant indices).

    7
  2. (1A)

    Replication of the composition of a relevant index shall be understood to be a reference to replication of the composition of the underlying assets of that index, including the use of techniques and instruments permitted for the purpose of efficient portfolio management.7

    [Note: article 12(1) of the UCITS eligible assets Directive]7

  3. (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

COLL 5.2.32 G RP
  1. (1)

    Where the 20% limit (see COLL 5.2.31 R (1)) is raised (subject to the maximum of 35% permitted by COLL 5.2.31 R (2)), the authorised fund manager should provide appropriate information in the simplified prospectus, in order to explain the authorised fund manager's assessment of why this increase is justified by exceptional market conditions.7

    [Note:CESR's UCITS eligible assets guidelines with respect to Article 12(2) of the UCITS eligible assets Directive]7

  2. (2)

    In the case of a UCITS scheme replicating an index under COLL 5.2.31 R (Schemes replicating an index) the scheme property need not consist of the exact composition and weighting of the underlying in the relevant index in cases where the scheme's investment objective is to achieve a result consistent with the replication of an index rather than an exact replication.7

7

Relevant indices

COLL 5.2.33 R RP
  1. (1)

    The indices referred to in COLL 5.2.31 R are those which satisfy the following criteria:

    7
    1. (a)

      the composition is sufficiently diversified;7

    2. (b)

      the index represents an adequate benchmark for the market to which it refers; and7

    3. (c)

      the index is published in an appropriate manner.7

  2. (2)

    The composition of an index is sufficiently diversified if its components adhere to the spread and concentration requirements in this section.7

    7
  3. (3)

    An index represents an adequate benchmark if its provider uses a recognised methodology which generally does not result in the exclusion of a major issuer of the market to which it refers.7

    7
  4. (4)

    An index is published in an appropriate manner if:7

    1. (a)

      it is accessible to the public;7

    2. (b)

      the index provider is independent from the index-replicating UCITS scheme; this does not preclude index providers and the UCITS scheme from forming part of the same group, provided that effective arrangements for the management of conflicts of interest are in place.7

[Note: articles 12(2),(3) and (4) of the UCITS eligible assets Directive]7