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FUND 3.1 Application

FUND 3.1.1 G

1The application of this chapter is summarised in the following table; the detailed application is provided in each section.

Type of firm

Applicable sections

Full-scope UK AIFM of a UK AIF.

All of chapter 3.

Full-scope UK AIFM of an EEA AIF operating from an establishment in the UK.

All of chapter 3.

Full-scope UK AIFM of an EEA AIF operating from a branch in another EEA state.

All of chapter 3 with the exception of FUND 3.8 (Prime brokerage firms).

Incoming EEA AIFM branch which manages a UK AIF.

FUND 3.8 (Prime brokerage firms).

Full-scope UK AIFM of a non-EEA AIFmarketed in the UK.

All of chapter 3 with the exception of FUND 3.12 (Marketing in the home Member State of the AIFM).

Full-scope UK AIFM of a non-EEA AIF not marketed in the UK.

All of chapter 3 with the exception of FUND 3.3 (Annual report of an AIF), FUND 3.11 (Depositaries) and FUND 3.12 (Marketing in the home Member State of the AIFM).

UK depositary of a UK AIF or a non-EEA AIF.

FUND 3.11 (Depositaries).

FUND 3.2 Investor information

Application

FUND 3.2.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

Prior disclosure of information to investors

FUND 3.2.2 R

An AIFM must, for each UK AIF and EEA AIF that it manages, and for each AIF it markets in the EEA, make available to AIF investors before they invest, in line with the instrument constituting the fund, the following information and any material changes to it:

  1. (1)
    1. (a)

      a description of the investment strategy and objectives of the AIF;

    2. (b)

      if the AIF is a feeder AIF, information on where the master AIF is established;

    3. (c)

      if the AIF is a fund of funds, information on where the underlying funds are established;

    4. (d)

      a description of the types of assets in which the AIF may invest;

    5. (e)

      the investment techniques that the AIF, or the AIFM on behalf of the AIF, may employ and all associated risks;

    6. (f)

      any applicable investment restrictions;

    7. (g)

      the circumstances in which the AIF may use leverage;

    8. (h)

      the types and sources of leverage permitted and the associated risks;

    9. (i)

      any restrictions on the use of leverage and any collateral and asset reuse arrangements; and

    10. (j)

      the maximum level of leverage which the AIFM is entitled to employ on behalf of the AIF;

  2. (2)

    a description of the procedures by which the AIF may change its investment strategy or investment policy, or both;

  3. (3)

    a description of the main legal implications of the contractual relationship entered into for the purpose of investment, including information on jurisdiction, the applicable law and the existence or absence of any legal instruments providing for the recognition and enforcement of judgments in the territory where the AIF is established;

  4. (4)

    the identity of the AIFM, the AIF'sdepositary, the auditor and any other service providers and a description of their duties and the investors' rights;

  5. (5)

    a description of how the AIFM complies with the requirements referred to in IPRU-INV 11.3.11G (Professional negligence) relating to professional liability risk;

    1
  6. (6)

    a description of:

    1. (a)

      any AIFM management function delegated by the AIFM;

    2. (b)

      any safe-keeping function delegated by the depositary;

    3. (c)

      the identity of each delegate appointed in accordance with FUND 3.10 (Delegation); and

    4. (d)

      any conflicts of interest that may arise from such delegations;

  7. (7)

    a description of the AIF's valuation procedure and of the pricing methodology for valuing assets, including the methods used in valuing any hard-to-value assets, in line with FUND 3.9 (Valuation);

  8. (8)

    a description of the AIF's liquidity risk management, including the redemption rights of investors in normal and exceptional circumstances, and the existing redemption arrangements with investors;

  9. (9)

    a description of all fees, charges and expenses, and the maximum amounts directly or indirectly borne by investors;

  10. (10)

    a description of how the AIFM ensures a fair treatment of investors;

  11. (11)

    whenever an investor obtains preferential treatment or the right to obtain preferential treatment, a description of:

    1. (a)

      that preferential treatment;

    2. (b)

      the type of investors who obtain such preferential treatment; and

    3. (c)

      where relevant, their legal or economic links with the AIF or AIFM;

  12. (12)

    the procedure and conditions for the issue and sale of units or shares;

  13. (13)

    the latest net asset value of the AIF or the latest market price of the unit or share of the AIF, in line with FUND 3.9 (Valuation);

  14. (14)

    the latest annual report, in line with FUND 3.3 (Annual report of an AIF);

  15. (15)

    where available, the historical performance of the AIF;

  16. (16)
    1. (a)

      the identity of the prime brokerage firm;

    2. (b)

      a description of any material arrangements of the AIF with its prime brokerage firm and the way any conflicts of interest are managed;

    3. (c)

      the provision in the contract with the depositary on the possibility of transfer and reuse of AIF assets; and

    4. (d)

      information about any transfer of liability to the prime brokerage firm that may exist; and

  17. (17)

    a description of how and when the information required under FUND 3.2.5 R and FUND 3.2.6 R will be disclosed.

[Note: article 23(1) of AIFMD]

FUND 3.2.3 R
  1. (1)

    An AIFM must inform investors before they invest in the AIF of any arrangement made by the depositary to contractually discharge itself of liability, in accordance with regulation 30 of the AIFMD UK Regulation.

  2. (2)

    The AIFM must also inform investors without delay of any changes with respect to depositary liability.

[Note: article 23(2) of AIFMD]

FUND 3.2.4 R

Where the AIF is required to publish a prospectus under section 85 of the Act or the equivalent provision implementing article 3 of the Prospectus Directive in the AIF'sHome State, only information referred to in FUND 3.2.2 R and 3.2.3 R that is additional to that contained in the prospectus needs to be disclosed, either separately or as additional information in the prospectus.

[Note: article 23(3) of AIFMD]

Additional information to be made available on securities financing transactions and total return swaps

FUND 3.2.4A G
  1. (1)

    2The Securities Financing Transactions Regulation sets out the additional information which a full-scope UK AIFM must make available to investors before they invest.

  2. (2)

    COLL 4.2.5BEU and COLL 4.2.5CEU copy out the relevant provisions of that regulation.

  3. (3)

    A full-scope UK AIFM of an AIF that does not use securities financing transactions or total return swaps is not required to include the information in COLL 4.2.5CEU in its pre-contractual documents.

Periodic disclosure

FUND 3.2.5 R

An AIFM must, for each UK AIF and EEA AIF it manages, and each AIF it markets in the EEA, disclose to investors periodically:

  1. (1)

    the percentage of the AIF's assets that are subject to special arrangements arising from their illiquid nature;

  2. (2)

    any new arrangements for managing the liquidity of the AIF; and

  3. (3)

    the current risk profile of the AIF and the risk management systems employed by the AIFM to manage those risks.

    [Note: article 23(4) of AIFMD]

FUND 3.2.6 R

An AIFM that manages a UK AIF or an EEA AIF or markets an AIF in the EEA must, for each such AIF that employs leverage, disclose on a regular basis:

  1. (1)

    any changes to:

    1. (a)

      the maximum level of leverage that the AIFM may employ on behalf of the AIF; and

    2. (b)

      any right of reuse of collateral or any guarantee granted under the leveraging arrangement; and

  2. (2)

    the total amount of leverage employed by that AIF.

[Note: article 23(5) of AIFMD]

Subordinate measures

FUND 3.2.7 G

Articles 108 and 109 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.3 Annual report of an AIF

Application

FUND 3.3.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIFmarketed in the UK.

Provision of an annual report

FUND 3.3.2 R

An AIFM must, for each UKAIF and EEA AIF it manages and for each AIF it markets in the UK:

  1. (1)

    make an annual report available to investors for each financial year;

  2. (2)

    provide the annual report to investors on request; and

  3. (3)

    make the annual report available to the FCA and, in the case of an EEA AIF, to the competent authority of that AIF.

[Note: article 22(1) first paragraph and article 24(3)(a) of AIFMD]

FUND 3.3.3 R

Subject to FUND 3.3.4R (2) and FUND 3.3.4AR4, an AIFM must make the annual report available, in line with FUND 3.3.2R (1), no later than six months after the end of the financial year.

[Note: article 22(1) first paragraph of AIFMD]

FUND 3.3.4 R
  1. (1)

    Where the AIF is required to make an annual financial report public under DTR 4.1.3 R (Publication of annual financial reports) or an equivalent provision implementing article 4.1 of the Transparency Directive in the Home State of the AIF, only information referred to in FUND 3.3.5 R that is additional to the annual financial report needs to be provided to investors on request, either separately or as an additional part of the annual financial report.

  2. (2)

    Where additional information in (1) is provided as an addition to the annual financial report, that report must be made public no later than four months following the end of the financial year, under DTR 4.1.3 R (Publication of annual financial reports) or an equivalent provision implementing article 4.1 of the Transparency Directive in the Home State of the AIF.

    [Note: second paragraph, article 22(1) of AIFMD]

FUND 3.3.4A R
FUND 3.3.4B G

4A full-scope UK AIFM of a non-UCITS retail scheme is required to make available and publish its annual report within four months after the end of each annual accounting period (see COLL 4.5.14R (Publication and availability of annual and half-yearly long report)).

Contents of the annual report

FUND 3.3.5 R

The annual report must contain:

  1. (1)

    a balance sheet or a statement of assets and liabilities;

  2. (2)

    an income and expenditure account for the financial year;

  3. (3)

    a report on the activities of the financial year;

  4. (4)

    any material changes in the information required to be made available to investors under FUND 3.2.2 R (Prior disclosure of information to investors) during the financial year covered by the report;

  5. (5)
    1. (a)

      the total amount of remuneration paid by the AIFM to its staff for the financial year, split into fixed and variable remuneration, including, where relevant, any carried interest paid by the AIF; and

    2. (b)

      the number of beneficiaries; and

  6. (6)

    the aggregate amount of remuneration broken down by senior management and members of staff2 of the AIFM whose actions have a material impact on the risk profile of the AIF.2

    [Note: article 22(2) of AIFMD]

FUND 3.3.5A G

1The FCA has provided additional guidance on the disclosure requirements relating to remuneration paid by an AIFM to its staff. The guidance can be found at: [http://www.fca.org.uk/your-fca/documents/finalised-guidance/fg14-02]

Accounting information in the annual report

FUND 3.3.6 R

The accounting information given in the annual report must be:

  1. (1)

    prepared in accordance with the accounting standards of the Home State of the AIF (or, for a non-EEA AIF, the accounting standards of the third country where it is established) and with the accounting rules set out in the AIF'sinstrument constituting the fund; and

  2. (2)

    audited by one or more persons empowered by law to audit accounts under the Audit Directive (or for a non-EEA AIF, under international auditing standards in force in the country where the non-EEA AIF is established).

[Note: article 22(3) of AIFMD]

FUND 3.3.7 R

The auditor's report, including any qualifications, must be reproduced in full in the annual report.

[Note: second paragraph article 22(3) of AIFMD]

Timing of first annual report2

FUND 3.3.7A R

2An AIFM must comply with the provisions in this section in relation to the first financial year end date of the AIF following the AIFM's authorisation as an AIFM.

Information to be included in annual reports on securities financing transactions and total return swaps

FUND 3.3.7B G
  1. (1)

    3The Securities Financing Transactions Regulation sets out the additional information which a full-scope UK AIFM of an AIF must include in the AIF’s annual report.

  2. (2)

    COLL 4.5.8ABEU and COLL 4.5.8ACEU copy out the relevant provisions of that regulation.

  3. (3)

    A full-scope UK AIFM of an AIF that has not used securities financing transactions or total return swaps during the relevant period is not required to include the information in COLL 4.5.8ACEU in the AIF’s annual report.

Subordinate measures

FUND 3.3.8 G

Articles 103 to 107 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.4 Reporting obligations to the FCA

Application

FUND 3.4.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

Reporting obligations

FUND 3.4.2 R

An AIFM must regularly report to the FCA on behalf of each AIF it manages:

  1. (1)

    the main instruments in which it is trading;

  2. (2)

    the principal markets of which it is a member or where it actively trades; and

  3. (3)

    the principal exposures and most important concentrations of each AIF it manages.

[Note: article 24(1) of AIFMD]

Content of reporting information

FUND 3.4.3 R

An AIFM must, for each UK AIF and EEA AIF it manages, and for each AIF it markets in the EEA, provide the following to the FCA:

  1. (1)

    the percentage of the AIF's assets that are subject to special arrangements arising from their illiquid nature;

  2. (2)

    any new arrangements for managing the liquidity of the AIF;

  3. (3)

    the current risk profile of the AIF and the risk management systems employed by the AIFM to manage the market risk, liquidity risk, counterparty risk and other risks, including operational risk;

  4. (4)

    information on the main categories of assets in which the AIF is invested; and

  5. (5)

    the results of the stress tests performed in accordance with FUND 3.6.3R (2) (Liquidity systems and procedures) and FUND 3.7.5R (2)(b) (Risk management systems).

[Note: article 24(2) of AIFMD]

FUND 3.4.4 R

An AIFM must, at the FCA's request, provide at the end of each quarter a detailed list of all AIFs which it manages.

[Note: article 24(3)(b) of AIFMD]

AIFs that employ leverage on a substantial basis

FUND 3.4.5 R

An AIFM managing an AIF that employs leverage on a substantial basis must make the following information available to the FCA about that AIF:

  1. (1)

    the overall level of leverage employed by the AIF;

  2. (2)

    a breakdown of leverage arising from borrowing of cash or securities and leverage embedded in financial derivatives;

  3. (3)

    the extent to which the AIF's assets have been reused under leveraging arrangements; and

  4. (4)

    the identity of the five largest sources of borrowed cash or securities for the AIF, and the amounts of leverage received from each of those sources.

[Note: article 24(4) of AIFMD]

Meaning of employing leverage on a substantial basis

FUND 3.4.6 EU

Use of leverage on a 'substantial basis'

1.

Leverage shall be considered to be employed on a substantial basis for the purposes of Article 24(4) of Directive 2011/61/EU when the exposure of an AIF as calculated according to the commitment method under Article 8 of this Regulation exceeds three times its net asset value.

[Note: article 111(1) of the AIFMD level 2 regulation]

Additional information1

FUND 3.4.6A R

1In addition to the information in FUND 3.4.2 R, an AIFM must regularly report the following information to the FCA:

  1. (1)

    on behalf of each AIF it manages:

    1. (a)

      the geographical focus of investments expressed as a percentage of the total value of assets under management;

    2. (b)

      an indication of whether a short position is used to hedge a position with a similar economic exposure;

    3. (c)

      the Value at Risk (VaR), if this is calculated for the AIF for any other purpose; and

    4. (d)

      the portfolio's sensitivity to a change in foreign exchange rates and commodity prices, if this is calculated for the AIF for any other purpose; and

  2. (2)

    the information in FUND 3.4.3 R for each non-EEA AIF it manages that is not marketed in the EEA, if:3

    1. (a)

      the AIFM is subject to quarterly reporting under article 110 of the AIFMD level 2 regulation (see SUP 16.18.4EU); and3

    2. (b)

      that AIF is the master AIF of a feeder AIF which the AIFM also manages and that feeder AIF is:3

      1. (i)

        3an EEA AIF; or

      2. (ii)

        3a non-EEA AIF that is marketed in the EEA.

[Note: article 24(5) of AIFMD]

FUND 3.4.6B G

1Further details in relation to the additional reporting requirements in FUND 3.4.6A R can be found in ESMA's opinion on the “Collection of information for the effective monitoring of systemic risk under article 24(5), first sub-paragraph, of the AIFMD” (ESMA 2013/1340)2

(https://www.esma.europa.eu/sites/default/files/library/2015/11/2013-esma-1340_opinion_on_collection_of_information_under_aifmd_for_publication.pdf2) dated 1 October 2013.

FUND 3.4.6C R

3In addition to the information in FUND 3.4.2R, an AIFM must regularly report to the FCA the information in FUND 3.4.3R for each non-EEA AIF it manages that is not marketed in the EEA if the AIFM is subject to quarterly reporting under article 110 of the AIFMD level 2 regulation (see SUP 16.18.4EU) for that AIF.

[Note: article 24(5) of AIFMD]

Subordinate measures

FUND 3.4.7 G

Articles 110 and 111 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

Guidelines

FUND 3.4.8 G

1 ESMA's guidelines on reporting obligations under articles 3(3)(d) and 24(1), (2) and (4) of the AIFMD (ESMA 2013/1339)2

(https://www.esma.europa.eu/sites/default/files/library/2015/11/2013-1339_final_report_on_esma_guidelines_on_aifmd_reporting_for_publication_revised.pdf)2

provide further details in relation to the requirements in this section.

Further information

FUND 3.4.9 G

1Further information in relation to AIFMD reporting can be found in SUP 16.18 (AIFMD reporting), including information in relation to the frequency of reporting.

FUND 3.5 Investment in securitisation positions

Application

FUND 3.5.1 G

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

FUND 3.5.2 G

To ensure cross-sectoral consistency and remove misalignment between the interests of firms that repackage loans into tradable securities and originators within the meaning of article 4(41) of the BCD and AIFMs that invest in those securities or other financial instruments, the AIFMD level 2 regulation sets out:

  1. (1)

    requirements that must be met by the originator, the sponsor or the original lender, for an AIFM to be allowed to invest on behalf of the AIF in securities or other financial instruments of this type issued after 1 January 2011; and

  2. (2)

    qualitative requirements that must be met by AIFMs which invest in these securities or other financial instruments on behalf of the AIF.

[Note: article 17 of AIFMD]

Subordinate measures

FUND 3.5.3 G

Articles 50 to 56 of the AIFMD level 2 regulation provide detailed rules supplementing the provisions in AIFMD on investment in securitisation positions.

FUND 3.6 Liquidity

Application

FUND 3.6.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

Alignment of investment strategy, liquidity profile and redemption policy

FUND 3.6.2 R

An AIFM must ensure that the investment strategy, liquidity profile and redemption policy of each AIF it manages are consistent.

[Note: article 16(2) of AIFMD]

Liquidity systems and procedures

FUND 3.6.3 R

An AIFM must, for each AIF it manages that is not an unleveraged closed-ended AIF:

  1. (1)

    employ an appropriate liquidity management system and adopt procedures which:

    1. (a)

      enable it to monitor the liquidity risk of the AIF; and

    2. (b)

      ensure that the liquidity profile of the investments of the AIF complies with the AIF's underlying obligations; and

  2. (2)

    regularly conduct stress tests, under normal and exceptional liquidity conditions, which enable it to assess the liquidity risk of the AIF and monitor that risk.

[Note: article 16(1) of AIFMD]

Subordinate measures

FUND 3.6.4 G

Articles 46 to 49 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.7 Risk management

Application

FUND 3.7.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

Functional and hierarchical separation

FUND 3.7.2 R
  1. (1)

    An AIFM must functionally and hierarchically separate the functions of risk management from the operating units, including from the functions of portfolio management.

  2. (2)

    An AIFM must, in any event, be able to demonstrate that:

    1. (a)

      specific safeguards against conflicts of interest allow for the independent performance of risk management activities; and

    2. (b)

      the risk management process satisfies the requirements of this section and is consistently effective.

[Note: article 15(1) of AIFMD]

FUND 3.7.3 EU

Functional and hierarchical separation of the risk management function

1.

The risk management function shall be considered as functionally and hierarchically separated from the operating units, including the portfolio management function, only where all the following conditions are satisfied:

(a)

persons engaged in the performance of the risk management function are not supervised by those responsible for the performance of the operating units, including the portfolio management function, of the AIFM;

(b)

persons engaged in the performance of the risk management function are not engaged in the performance of activities within the operating units, including the portfolio management function;

(c)

persons engaged in the performance of the risk management function are compensated in accordance with the achievement of the objectives linked to that function, independently of the performance of the operating units, including the portfolio management function;

2.

The functional and hierarchical separation of the risk management function in accordance with paragraph 1 shall be ensured throughout the whole hierarchical structure of the AIFM, up to its governing body. It shall be reviewed by the governing body and, where it exists, the supervisory function of the AIFM.

[Note: article 42(1) and (2) of the AIFMD level 2 regulation]

FUND 3.7.4 EU

Safeguards against conflicts of interest

1.

The safeguards against conflicts of interest referred to in Article 15(1) of Directive 2011/61/EU shall ensure, at least, that:

(a)

decisions taken by the risk management function are based on reliable data, which are subject to an appropriate degree of control by the risk management function;

(b)

the remuneration of those engaged in the performance of the risk management function reflects the achievement of the objectives linked to the risk management function, independently of the performance of the business areas in which they are engaged;

(c)

the risk management function is subject to an appropriate independent review to ensure that decisions are being arrived at independently;

(d)

the risk management function is represented in the governing body or the supervisory function, where it has been established, at least with the same authority as the portfolio management function;

(e)

any conflicting duties are properly segregated.

2.

Where proportionate, taking into account the nature, scale and complexity of the AIFM, the safeguards referred to in paragraph 1 shall also ensure that:

(a)

the performance of the risk management function is reviewed regularly by the internal audit function, or, if the latter has not been established, by an external party appointed by the governing body;

(b)

where a risk committee has been established, it is appropriately resourced and its non-independent members do not have undue influence over the performance of the risk management function.

3.

The governing body of the AIFM and, where it exists, the supervisory function shall establish the safeguards against conflicts of interest laid down in paragraphs 1 and 2, regularly review their effectiveness and take timely remedial action to address any deficiencies.

[Note: article 43 of the AIFMD level 2 regulation]

Risk management systems

FUND 3.7.5 R
  1. (1) 1
    1. (a)

      An AIFM must implement adequate risk management systems to identify, measure, manage and monitor all risks relevant to each AIF investment strategy and to which each AIF is, or may be, exposed.1

    2. (b)

      In particular, an AIFM must not solely or mechanistically rely on credit ratings issued by credit rating agencies, as defined in article 3(1)(b) of Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies, for assessing the creditworthiness of the AIF's assets.1

  2. (2)

    An AIFM must, at least:

    1. (a)

      implement an appropriate, documented and regularly updated due diligence process when investing on behalf of the AIF, according to the investment strategy, objectives and risk profile of the AIF;

    2. (b)

      ensure that the risks associated with each investment position of the AIF and their overall effect on the AIF's portfolio can be properly identified, measured, managed and monitored on an ongoing basis, including through the use of appropriate stress testing procedures; and

    3. (c)

      ensure that the risk profile of the AIF corresponds to the size, portfolio structure and investment strategies and objectives of the AIF as set out in the instrument constituting the fund, prospectus and offering documents.

[Note: article 15(2) first paragraph and article 15(3) of AIFMD]

FUND 3.7.5A G

1An AIFM should use the form in SUP 15 Annex 6C R to notify the FCA of any material changes to the risk management policy and of the arrangements, processes and techniques referred to in article 45 of the AIFMD level 2 regulation, as required by article 41(4) of the AIFMD level 2 regulation.

Review of risk management systems

FUND 3.7.6 R

An AIFM must:

  1. (1)

    review the risk management systems with appropriate frequency and, in any event, at least once a year; and

  2. (2)

    adapt them whenever necessary.

[Note: article 15(2) second paragraph of AIFMD]

Maximum leverage levels

FUND 3.7.7 R
  1. (1)

    An AIFM must:

    1. (a)

      set a maximum level of leveraging which it may employ on behalf of each AIF it manages; and

    2. (b)

      where the leverage arrangement allows the right to reuse collateral or the granting of a guarantee, set out the extent of that right or guarantee.

  2. (2)

    An AIFM, in complying with (1), must take into account relevant matters including:

    1. (a)

      the type of AIF;

    2. (b)

      the investment strategy of the AIF;

    3. (c)

      the sources of leverage of the AIF;

    4. (d)

      any other link or relevant relationship with other financial services institutions which could pose systemic risk;

    5. (e)

      the need to limit the exposure to any single counterparty;

    6. (f)

      the extent to which the leverage is collateralised;

    7. (g)

      the asset-liability ratio; and

    8. (h)

      the scale, nature and extent of the activity of the AIFM on the markets concerned.

[Note: article 15(4) of AIFMD]

FUND 3.7.8 R

An AIFM must demonstrate that the leverage limits it sets under FUND 3.7.7R (1)(a) are reasonable and that it complies with those limits at all times.

[Note: article 25(3) first sentence of AIFMD]

FUND 3.7.9 G

To comply with FUND 3.7.8 R, an AIFM should report to the FCA any changes to the leverage limits it sets.

Subordinate measures

FUND 3.7.10 G

Articles 6 to 11 of the AIFMD level 2 regulation provide detailed rules on the calculation of levels of leverage, articles 38 to 47 of the AIFMD level 2 regulation provide detailed rules on risk management and article 112 of the AIFMD level 2 regulation provides detailed rules on circumstances when competent authorities may impose leverage limits or other restrictions on the management of AIFs.

FUND 3.8 Prime brokerage firms

Application

FUND 3.8.1 R

This section applies to:

  1. (1)

    a full-scope UK AIFM of:

    1. (a)

      a UK AIF;

    2. (b)

      an EEA AIF managed or marketed from an establishment in the UK; and

    3. (c)

      a non-EEA AIF; and

  2. (2)

    an incoming EEA AIFM branch which manages or markets a UK AIF.

Selection of a prime brokerage firm

FUND 3.8.2 R

An AIFM must exercise due skill, care and diligence in the selection and appointment of a prime brokerage firm.

[Note: article 14(3) second paragraph of the AIFMD]

Prime brokerage firm contract

FUND 3.8.3 R

Where the AIFM, on behalf of an AIF, uses the services of a prime brokerage firm, the terms must be in a written contract. In particular, any possibility of transfer and reuse of AIF assets must be provided for in that contract and must comply with the AIF'sinstrument constituting the fund. The contract must provide for the depositary to be informed of the contract.

[Note: article 14(3) first paragraph of the AIFMD]

FUND 3.9 Valuation

Application

FUND 3.9.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF.

Responsibility of the AIFM

FUND 3.9.2 R

An AIFM is responsible for the proper valuation of AIF assets, the calculation of the net asset value and the publication of that net asset value.

[Note: article 19(10) first sentence first paragraph of AIFMD]

Standard of care of the valuation

FUND 3.9.3 R

An AIFM must ensure that any valuation of an AIF's assets is performed impartially and with all due skill, care and diligence.

[Note: article 19(8) of AIFMD]

Establishment of procedures for valuation of assets

FUND 3.9.4 R

An AIFM must ensure that, for each AIF it manages, appropriate and consistent procedures are established so that under the rules laid down in the applicable national law of the country where the AIF is established and the instrument constituting the fund:

  1. (1)

    a proper and independent valuation of the assets of the AIF can be performed; and

  2. (2)

    the net asset value per unit or share of the AIF is calculated and disclosed to investors.

[Note: article 19(1), (2) and (3) first paragraph of AIFMD]

Frequency of valuation of assets and calculation of net asset value

FUND 3.9.5 R
  1. (1)

    An AIFM must ensure that the valuation procedure in FUND 3.9.4 R provides for the assets of any AIF under the AIFM's management to be valued and the net asset value per unit or share to be calculated at least once a year.

  2. (2)

    Where an AIF is open-ended, such valuations and calculations must also be carried out at a frequency that is appropriate both to the assets held by the AIF and its issuance and redemption frequency.

  3. (3)

    Where an AIF is closed-ended, such valuations and calculations must also be carried out in case of an increase or decrease of the capital by the relevant AIF.

[Note: article 19(3) second, third and fourth paragraphs of AIFMD]

Informing investors of valuations of assets and calculations of net asset value

FUND 3.9.6 R

An AIFM must ensure that investors in the AIFs under its management are informed of the valuations and calculations in the manner set out in the relevant instrument constituting the fund.

[Note: article 19(3) fifth paragraph of AIFMD]

Performance of the valuation function

FUND 3.9.7 R
  1. (1)

    An AIFM may perform the valuation itself, provided that:

    1. (a)

      the valuation task is functionally independent from the portfolio management; and

    2. (b)

      the remuneration policy and other measures ensure that conflicts of interest are mitigated and that undue influence upon the employees involved is prevented.

  2. (2)

    An AIFM that does not perform the valuation function itself must ensure that the function is performed by an external valuer.

  3. (3)

    An external valuer appointed under (2) must be a person independent from:

    1. (a)

      the AIF in respect of which the valuation function is performed;

    2. (b)

      the AIFM; and

    3. (c)

      any other persons with close links to the AIF or the AIFM.

[Note: article 19(4) first paragraph of AIFMD]

Appointment of the depositary as an external valuer

FUND 3.9.8 R

The depositary appointed for an AIF may not be appointed as an external valuer of that AIF unless:

  1. (1)

    it has functionally and hierarchically separated the performance of its depositary functions from its tasks as an external valuer; and

  2. (2)

    the potential conflicts of interests are properly identified, managed, monitored and disclosed to the investors of the AIF.

[Note: article 19(4) second paragraph of AIFMD]

Appointment of an external valuer

FUND 3.9.9 R

Where an external valuer performs the valuation function, the AIFM must be able to demonstrate that:

  1. (1)

    the external valuer is subject to mandatory professional registration recognised by law or legal or regulatory provisions or rules of professional conduct;

  2. (2)

    the external valuer can provide sufficient professional guarantees to be able to perform the relevant valuation function effectively under this section; and

  3. (3)

    the appointment of the external valuer complies with the requirements of FUND 3.10.2 R (General delegation arrangements) and the AIFMD level 2 regulation.

[Note: article 19(5) of AIFMD]

Delegation by an external valuer

FUND 3.9.10 G

AIFMs should be aware that regulation 24(2) of the AIFMD UK Regulation prohibits an external valuer from delegating valuation to a third party.

Notification of appointment of an external valuer

FUND 3.9.11 R
1
  1. (1)

    An AIFM must notify the appointment of an external valuer to the FCA.1

  2. (2)

    An AIFM must notify the FCA under (1) using the material change form in SUP 15 Annex 6C R.1

[Note: article 19(7) first part of first paragraph of AIFMD]

FUND 3.9.12 G

Under regulation 24(3) of the AIFMD UK regulation, the FCA may require an AIFM to appoint another external valuer where it considers that the appointment does not comply with FUND 3.9.9 R.

Subordinate measures

FUND 3.9.13 G

Articles 67 to 74 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.10 Delegation

Application

FUND 3.10.1 R

This section applies to a full-scope UK AIFM of:

  1. (1)

    a UK AIF;

  2. (2)

    an EEA AIF; and

  3. (3)

    a non-EEA AIF

in relation to the delegation of those AIFM management functions for which it is responsible, other than supporting tasks such as administrative or technical functions.

[Note: recital 31 of AIFMD]

General delegation requirements

FUND 3.10.2 R

An AIFM must ensure the following conditions are met when a delegate carries out any function on its behalf:

  1. (1)

    the AIFM has notified the FCA of the delegation before the delegation arrangements become effective; and

  2. (2)
    1. (a)

      the AIFM is able to justify its entire delegation structure with objective reasons;

    2. (b)

      the delegate has sufficient resources to perform the respective activity and the persons who effectively conduct the business of the delegate are of sufficiently good repute and experience;

    3. (c)

      (subject to FUND 3.10.7 G) the delegation of AIFM investment management functions is conferred only on a delegate that is authorised or registered for the purpose of asset management and subject to supervision;

    4. (d)

      in addition to (c), where the delegation of AIFM investment management functions is conferred on a third-country delegate, cooperation between the FCA and the supervisory authority of the delegate is ensured;

    5. (e)

      the delegation does not prevent the FCA from supervising the AIFM effectively and, in particular, does not prevent the AIFM from acting, or the AIF from being managed, in the best interests of its investors; and

    6. (f)

      the AIFM is able to demonstrate that:

      1. (i)

        the delegate is qualified and capable of undertaking the functions in question;

      2. (ii)

        it was selected with all due care; and

      3. (iii)

        the AIFM can monitor the delegated activity effectively at any time, give further instructions to the delegate at any time and withdraw the delegation with immediate effect when this is in the interest of investors.

[Note: article 20(1) of AIFMD]

FUND 3.10.2A R

1An AIFM must notify the FCA of delegation arrangements under FUND 3.10.2R (1) using the form in FUND 3 Annex 2 R.

FUND 3.10.3 G

For the purposes of FUND 3.10.2R (2)(d) cooperation is ensured between the FCA and the supervisory authorities of a third-country delegate where a cooperation arrangement is in place between the two authorities in accordance with AIFMD and article 78(3) of the AIFMD level 2 regulation.

Sub-delegation

FUND 3.10.4 R

An AIFM must ensure the following conditions are met when any of its delegates carries out a sub-delegation:

  1. (1)

    the AIFM has consented to the sub-delegation before the sub-delegation arrangements become effective;

  2. (2)

    the AIFM has notified the FCA of the sub-delegation before the sub-delegation arrangements become effective; and

  3. (3)

    the conditions in FUND 3.10.2R (2) (General delegation requirements) are satisfied in relation to the sub-delegation, with references to 'delegate' and 'delegation' replaced by references to 'sub-delegate' and 'sub-delegation'.

[Note: article 20(4) of AIFMD]

FUND 3.10.4A R

1An AIFM must notify the FCA of sub-delegation arrangements under FUND 3.10.4R (2) using the form in FUND 3 Annex 2 R.

FUND 3.10.5 R

An AIFM must comply with the rules in this section which are applicable to a sub-delegation in relation to any further sub-delegation of its functions by a sub-delegate.

[Note: article 20(6) of AIFMD]

Delegation of AIFM investment management functions

FUND 3.10.6 R

An AIFM must not delegate or consent to the sub-delegation of AIFM investment management functions to:

  1. (1)

    the depositary or a delegate of the depositary; or

  2. (2)

    any other entity whose interests may conflict with those of the AIFM or the investors of the AIF, unless:

    1. (a)

      that entity has functionally and hierarchically separated the performance of its AIFM investment management function from its other potentially conflicting tasks; and

    2. (b)

      the potential conflicts of interest are properly identified, managed, monitored and disclosed to the investors of the AIF.

[Note: article 20(2) and (5) of AIFMD]

FUND 3.10.7 G

The FCA may consent to the delegation by a Full-scope UK AIFM of its AIFM investment management functions to an entity which is not authorised or registered for the purpose of asset management and subject to supervision in accordance with regulation 26 of the AIFMD UK regulation.

FUND 3.10.7A D

1An AIFM that wishes to apply for the approval of its delegation arrangements in accordance with regulation 26 of the AIFMD UK regulation must do so using the form in FUND 3 Annex 2 R.

Letterbox entity

FUND 3.10.8 R

An AIFM must not delegate its functions to the extent that, in essence, it can no longer be considered to be the AIFM of the AIF and to the extent that it becomes a letter-box entity.

[Note: article 20(3) of AIFMD]

FUND 3.10.9 EU

Letter-box entity and AIFM no longer considered to be managing an AIF

1.

An AIFM shall be deemed a letter-box entity and shall no longer be considered to be the manager of the AIF at least in any of the following situations:

(a)

the AIFM no longer retains the necessary expertise and resources to supervise the delegated tasks effectively and manage the risks associated with the delegation;

(b)

the AIFM no longer has the power to take decisions in key areas which fall under the responsibility of the senior management or no longer has the power to perform senior management functions in particular in relation to the implementation of the general investment policy and investment strategies;

(c)

the AIFM loses its contractual rights to inquire, inspect, have access or give instructions to its delegates or the exercise of such rights becomes impossible in practice;

(d)

the AIFM delegates the performance of investment management functions to an extent that exceeds by a substantial margin the investment management functions performed by the AIFM itself. When assessing the extent of delegation, competent authorities shall assess the entire delegation structure taking into account not only the assets managed under delegation but also the following qualitative criteria:

(i)

the types of assets the AIF or the AIFM acting on behalf of the AIF is invested in, and the importance of the assets managed under delegation for the risk and return profile of the AIF;

(ii)

the importance of the assets under delegation for the achievement of the investment goals of the AIF;

(iii)

the geographical and sectoral spread of the AIF's investments;

(iv)

the risk profile of the AIF;

(v)

the type of investment strategies pursued by the AIF or the AIFM acting on behalf of the AIF;

(vi)

the types of tasks delegated in relation to those retained; and

(vii)

the configuration of delegates and their sub-delegates, their geographical sphere of operation and their corporate structure, including whether the delegation is conferred on an entity belonging to the same corporate group as the AIFM.

[Note: Article 82(1) of the AIFMD level 2 regulation]

Liability for delegated functions

FUND 3.10.10 G

An AIFM's liability towards the AIF and its investors is not affected by the AIFM delegating functions to a third party, or by any further sub-delegation (see regulation 28(1) of the AIFMD UK Regulation).

Review of delegation and sub-delegation

FUND 3.10.11 R

An AIFM must review on an ongoing basis the services provided by each:

  1. (1)

    delegate appointed under FUND 3.10.2 R; and

  2. (2)

    sub-delegate appointed under FUND 3.10.4 R.

    [Note: article 20(1) and 20(4) of AIFMD]

FUND 3.10.12 G

An AIFM should make each of its delegates aware of the requirement to review the services provided by each of its sub-delegates on an ongoing basis (see regulation 28(2) of the AIFMD UK Regulation).

Subordinate measures

FUND 3.10.13 G

Articles 75 to 82 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.11 Depositaries

Application

FUND 3.11.1 R

This section applies in accordance with the table in FUND 3.11.2 R and FUND 3.11.3 R.

FUND 3.11.2 R

This table belongs to FUND 3.11.1 R.

Rule

Full-scope UK AIFM of a UK AIF or an EEA AIF (other than a non-EEA feeder AIF which is marketed in the UK)3

Full-scope UK AIFM of a non-EEA AIF or a non-EEA feeder AIF3 which is marketed in the UK

UK depositary of a UK AIF (other than a non-EEA feeder AIF which is marketed in the UK)3 managed by a full-scope UK AIFM or an EEA AIFM

UK depositary of a non-EEA AIF or a non-EEA feeder AIF which is marketed in the UK3

3.11.4R

x

3.11.5R

x

x

3.11.7R

x

3.11.9R

x

3.11.10R

x

3.11.12R

x

3.11.14R

x

3.11.16R

x

3.11.18R

x

3.11.19R

x

x

3.11.20R

x

x

3.11.21R

x

x

3.11.23R

x

x

3.11.24R

x

3.11.25R

x

x

3.11.26R

x

3.11.28R

x

3.11.29R

x

3.11.30R

x

3.11.33R

x

Note: "x" means "applies".

FUND 3.11.3 R

A UK depositary of a non-EEA AIF or a non-EEA feeder AIF which is marketed in the UK3 that does not perform all of the functions of cash monitoring, safekeeping and oversight for the AIF need only comply with the following rules that are applicable to the functions it performs:

  1. (1)

    FUND 3.11.20 R if it performs only the cash monitoring function;

  2. (2)

    FUND 3.11.21 R and FUND 3.11.23 R if it performs only the safekeeping function;

  3. (3)

    FUND 3.11.25 R if it performs only the oversight function;

  4. (4)

    FUND 3.11.20 R, FUND 3.11.21 R and FUND 3.11.23 R if it performs only the cash monitoring and safekeeping functions;

  5. (5)

    FUND 3.11.20 R and FUND 3.11.25 R if it performs only the cash monitoring and oversight functions; and

  6. (6)

    FUND 3.11.21 R, FUND 3.11.23 R and FUND 3.11.25 R if it performs only the safekeeping and oversight functions.

Appointment of a single depositary

FUND 3.11.4 R

An AIFM must, for each AIF it manages, ensure that:

  1. (1)

    a single depositary is appointed; and

  2. (2)

    the assets of the AIF are entrusted to the depositary for safekeeping in accordance with

    1. (a)

      for a UK AIF, FUND 3.11.21 R and FUND 3.11.23 R; or2

    2. (b)

      for an EEA AIF, the national laws and regulations in the Home State of the AIF implementing article 21(8) of AIFMD.2

[Note: article 21(1) and (8) of AIFMD]

General obligations

FUND 3.11.5 R

An AIFM and a depositary must, in the context of their respective roles, act honestly, fairly, professionally, independently and in the interest of the AIF and its investors.

[Note: article 21(10) first paragraph of AIFMD]

FUND 3.11.6 G

The Act specifies that the trustee of an AUT and the depositary of an ACS must be independent of its authorised fund manager, and the OEIC Regulations specify that the depositary of an ICVC must be independent of the ICVC and its directors. However, these requirements do not apply to AIFs which are not authorised funds, and, therefore, an AIFM and a depositary of an unauthorised AIF may be from within the same group, but only if conflicts of interest are avoided and there is sufficient organisational separation between the two entities.

Conflicts of interest: AIFM

FUND 3.11.7 R

To avoid conflicts of interest between the depositary, the AIFM, the AIF and its investors, an AIFM must ensure that:

  1. (1)

    it does not act as a depositary or a delegate of a depositary; and

  2. (2)

    a prime brokerage firm acting as counterparty to an AIF does not act as the depositary for that AIF, unless:

    1. (a)

      the prime brokerage firm has functionally and hierarchically separated the performance of its depositary functions from its tasks as a prime brokerage firm; and

    2. (b)

      potential conflicts of interest are properly identified, managed, monitored and disclosed to the investors of the AIF by the AIFM.

[Note: article 21(4) of AIFMD]

FUND 3.11.8 G

A depositary may delegate custody tasks to one or more prime brokerage firms provided the depositary complies with FUND 3.11.26 R to FUND 3.11.30 R. In addition to the delegated custody tasks, prime brokerage firms are allowed to provide prime brokerage services to the AIF. Those prime brokerage services do not form part of the delegation arrangement.

[Note: recital 43 of AIFMD]

Conflicts of interest: depositaries

FUND 3.11.9 R

A depositary must not carry out activities with regard to the AIF, or the AIFM on behalf of the AIF, that may create conflicts of interest between the AIF, the investors in the AIF, the AIFM and itself, unless:

  1. (1)

    the depositary has properly identified any such potential conflicts of interest;

  2. (2)

    the depositary has functionally and hierarchically separated the performance of its depositary tasks from its other potentially conflicting tasks; and

  3. (3)

    the potential conflicts of interest are properly managed, monitored and disclosed to the investors of the AIF.

[Note: article 21(10) second paragraph of AIFMD]

Eligible depositaries for UK AIFs

FUND 3.11.10 R

Subject to FUND 3.11.12 R, an AIFM must, for each UKAIF it manages, ensure the appointment of a depositary which is a firmestablished in the UK and which is one of the following:

  1. (1)

    a credit institution; or

  2. (2)

    a MiFID investment firm which:

    1. (a)

      has own funds of not less than €730,000; and

    2. (b)

      provides the ancillary service of safe-keeping and administration of financial instruments for the account of clients; or

  3. (3)

    another category of institution that is subject to prudential regulation and ongoing supervision and which, on 21 July 2011, fell within the categories of institution eligible to be a trustee of an AUT or a depositary of an ICVC.

[Note: article 21(3)(a) to (c) and (5)(a) of AIFMD]

FUND 3.11.11 G

For a depositary to be established in the UK it must have its registered office or branch in the UK. A MiFID investment firm that has its registered office in the UK must be afull-scope IFPRU investment firm1 to meet the requirements of FUND 3.11.10R (2). A MiFID investment firm that has a branch in the UK must meet the capital requirements under the EU CRR for1aCRD full-scope firm as implemented1 in its Home State to meet the requirements of FUND 3.11.10R (2).

1 1 1 1 1
FUND 3.11.12 R

An AIFM that manages a UK AIF which:

  1. (1)

    has no redemption rights exercisable during the period of five years from the date of the initial investments; and

  2. (2)

    in accordance with its core investment policy:

    1. (a)

      does not generally invest in AIF custodial assets; or

    2. (b)

      generally invests in issuers or non-listed companies in order to potentially acquire control over such companies in accordance with regulation 35 of the AIFMD UK regulation

may appoint, as its depositary, a firm which is established in the UK and which complies with FUND 3.11.14 R.

FUND 3.11.13 G

For the purposes of FUND 3.11.12R (2)(a), an AIF does not generally invest in AIF custodial assets if it invests in such assets on a temporary basis or if those assets do not constitute a significant proportion of its overall assets. However, in line with FUND 3.11.12R (2)(b), an AIF may invest in AIF custodial assets if it invests in issuers to acquire control of such companies in accordance with regulation 35 of the AIFMD UK regulation or if it is in the process of divesting its investment in an issuer which it controls or previously controlled.

FUND 3.11.14 R

An AIFM must ensure that a depositary appointed in line with FUND 3.11.12 R is a firm:

  1. (1)

    which has the Part 4A permission of acting as trustee or depositary of an AIF; and

  2. (2)

    which has own funds of at least €125,000.

[Note: article 21(3) second paragraph after (c) and (5)(a) of AIFMD]

FUND 3.11.15 G

For certain types of closed-ended AIFs (such as private equity, venture capital and real estate funds) a wider range of entities than those specified in FUND 3.11.10 R may perform the relevant depositary functions. The FCA requires such entities to obtain authorisation as a depositary to demonstrate that they can meet the commitments inherent in those functions, but imposes a lower level of capital requirements in recognition of the different degree of risk implied by the characteristics of the AIF. The capital requirements of such firms are contained in IPRU-INV 5 (particularly IPRU-INV 5.4.3R5 (Own funds requirement))but1 if the firm also 1undertakes MiFID business, its capital requirements will be contained in IFPRU and the EU CRR or in GENPRU and BIPRU depending on the scope of that MiFID business1.

[Note: recital 34 of AIFMD]

1

Additional requirements for depositaries of authorised AIFs

FUND 3.11.16 R

A MiFID investment firm (other than a PRA-authorised person) which is appointed as a depositary for an authorised AIF in accordance with FUND 3.11.10R (2) must maintain own funds of at least £4 million.

FUND 3.11.17 G

Where the firm referred to in FUND 3.11.16 R is afull-scope IFPRU investment firm1 which is a depositary for an authorised AIF appointed in line with FUND 3.11.10R (2), it is subject to the capital requirements of IFPRU and the EU CRR1. However, these requirements are not in addition to FUND 3.11.16 R and, therefore, a firm subject to this rule may use the own funds required under IFPRU and the EU CRR1 to meet the £4 million requirement.

1 1 1

Eligible depositaries for EEA AIFs

FUND 3.11.18 R

An AIFM must, for each EEA AIF it manages, ensure the appointment of a depositary which is established in the Home State of the AIF and which is eligible to be a depositary in that Home State in accordance with article 21(3) of AIFMD.

[Note: article 21(3) and (5)(a) of AIFMD]

Written contract

FUND 3.11.19 R

An AIFM and a depositary must ensure that the appointment of the depositary is evidenced by a written contract. The contract must regulate the flow of information deemed necessary to allow the depositary to perform its functions for the AIF for which it has been appointed as depositary.

[Note: article 21(2) of AIFMD]

Depositary functions: cash monitoring

FUND 3.11.20 R

A depositary must ensure that the AIF's cash flows are properly monitored and that:

  1. (1)

    all payments made by, or on behalf of, investors upon the subscription of units or shares of an AIF have been received;

  2. (2)

    all cash of the AIF has been booked in cash accounts opened:

    1. (a)

      in the name of:

      1. (i)

        the AIF; or

      2. (ii)

        the AIFM acting on behalf of the AIF; or

      3. (iii)

        the depositary acting on behalf of the AIF; and

    2. (b)

      at:

      1. (i)

        a central bank; or

      2. (ii)

        aCRDcredit institution1; or

        1
      3. (iii)

        a bank authorised in a third country; or

      4. (iv)

        another entity of the same nature, in the relevant market where cash accounts are required, provided such an entity is subject to effective prudential regulation and supervision which have the same effect as EU law and are effectively enforced and in accordance with the principles set out in article 16 (safeguarding of client financial instruments and funds) of the MiFID implementing directive; and

  3. (3)

    where cash accounts are opened in the name of the depositary acting on behalf of the AIF in accordance with (2)(a)(iii), the depositary must ensure that no cash of the entity referred to in (2)(b), and none of the depositary's own cash, is booked on such accounts.

[Note: article 21(7) of AIFMD]

Depositary functions: safekeeping of financial instruments

FUND 3.11.21 R
  1. (1)

    A depositary must hold in custody all AIF custodial assets.

  2. (2)

    The depositary must ensure that all AIF custodial assets that can be registered in a financial instruments account are registered in the depositary's books within segregated accounts opened in the name of the AIF, or the AIFM acting on behalf of the AIF, so that they can be clearly identified as belonging to the AIF at all times in accordance with the applicable law and CASS 6.1.16IA R (Depositaries of AIFs).

    [Note: article 21(8)(a) of AIFMD]

FUND 3.11.22 EU

Financial instruments to be held in custody

1.

Financial instruments belonging to the AIF or to the AIFM acting on behalf of the AIF which are not able to be physically delivered to the depositary shall be included in the scope of the custody duties of the depositary where all of the following requirements are met:

(a)

they are transferable securities including those which embed derivatives as referred to in the last subparagraph of Article 51(3) of Directive 2009/65/EC and Article 10 of Commission Directive 2007/16/EC, money market instruments or units of collective investment undertakings;

(b)

they are capable of being registered or held in an account directly or indirectly in the name of the depositary.

2.

Financial instruments which, in accordance with applicable national law, are only directly registered in the name of the AIF with the issuer itself or its agent, such as a registrar or a transfer agent, shall not be held in custody.

3.

Financial instruments belonging to the AIF or the AIFM acting on behalf of the AIF which are able to be physically delivered to the depositary shall always be included in the scope of the custody duties of the depositary.

[Note: Article 88 of the AIFMD level 2 regulation]

Depositary functions: safekeeping of other assets

FUND 3.11.23 R

For assets of the AIF that are not AIF custodial assets, a depositary must:

  1. (1)

    verify that the AIF, or the AIFM acting on behalf of the AIF, is the owner of the assets based on information or documents provided by the AIF or the AIFM and, where available, on external evidence; and

  2. (2)

    maintain, and keep up to date a record of those assets for which it is satisfied that the AIF, or the AIFM acting on behalf of the AIF, is the owner.

[Note: article 21(8)(b) of AIFMD]

Reuse of assets

FUND 3.11.24 R

A depositary must not reuse the assets of the AIF without the prior consent of the AIF or the AIFM acting on behalf of the AIF.

[Note: article 21(10) third paragraph of AIFMD]

Depositary functions: oversight

FUND 3.11.25 R

A depositary must:

  1. (1)

    ensure that the sale, issue, repurchase, redemption and cancellation of units or shares of the AIF are carried out in accordance with the applicable national law and the instrument constituting the fund;

  2. (2)

    ensure that the value of the units or shares of the AIF is calculated in accordance with the applicable national law, the instrument constituting the fund and FUND 3.9 (Valuation);

  3. (3)

    carry out the instructions of the AIFM, unless they conflict with the applicable national law or the instrument constituting the fund;

  4. (4)

    ensure that in transactions involving the AIF's assets, any consideration is remitted to the AIF within the usual time limits; and

  5. (5)

    ensure that an AIF's income is applied in accordance with the applicable national law and the instrument constituting the fund.

[Note: article 21(9) of AIFMD]

Delegation: general prohibition

FUND 3.11.26 R
  1. (1)

    A depositary must not delegate its functions to third parties, except as permitted by FUND 3.11.28R.4

  2. (2)

    The prohibition in (1) does not apply to the delegation by the depositary of supporting administrative or technical tasks that are linked to its depositary functions.4

[Note: recital 42 and4 article 21(11) first paragraph of AIFMD]

FUND 3.11.27 G

The use of services provided by securities settlement systems, as specified in the Settlement Finality Directive, or similar services provided by third-country securities settlement systems, does not constitute a delegation by the depositary of its functions.

[Note: article 21(11) fifth paragraph of AIFMD]

FUND 3.11.27A G
  1. (1)
    1. (a)

      4If a depositary performs part of its functions through a branch in another EEA State this is not a delegation by the depositary of its functions to a third party.

    2. (b)

      This is because ‘third party’ in FUND 3.11.26R means any party that is not part of the same legal entity as the depositary.

  2. (2)

    Paragraph (1) also applies where the depositary is the UKbranch of an EEA firm and it performs part of its functions:

    1. (a)

      through a branch in another EEA State; or

    2. (b)

      from the EEA State where it has its registered office.

  3. (3)
    1. (a)

      A depositary that performs part of its functions through a branch or registered office in another EEA State should ensure that those arrangements do not impede the depositary’s ability to meet the threshold conditions.

    2. (b)
      1. (i)

        In particular, the arrangements should not impede the FCA’s ability to supervise the depositary effectively.

      2. (ii)

        For example, the FCA’s ability to supervise the depositary might be impeded if the depositary performed tasks other than administrative and supporting tasks from its branch or registered office in another EEA State.

Delegation: safekeeping

FUND 3.11.28 R

A depositary may delegate the functions in FUND 3.11.21 R and FUND 3.11.23 R to third parties, subject to the following conditions:

  1. (1)

    the tasks are not delegated with the intention of avoiding the requirements of AIFMD;

  2. (2)

    the depositary can demonstrate that there is an objective reason for the delegation;

  3. (3)

    the depositary:

    1. (a)

      has exercised all due skill, care and diligence in the selection and appointment of any third party to whom it wants to delegate parts of its tasks; and

    2. (b)

      continues to exercise all due skill, care and diligence in the periodic review and ongoing monitoring:

      1. (i)

        of any third party to whom it has delegated parts of its tasks; and

      2. (ii)

        of the arrangements of that third party in respect of the matters delegated to it;

  4. (4)

    the depositary ensures that the third party delegate meets the following conditions at all times:

    1. (a)

      the third party has structures and expertise that are adequate and proportionate to the nature and complexity of the assets of the AIF, or the AIFM acting on behalf of the AIF, that have been entrusted to it;

    2. (b)

      (subject to FUND 3.11.29 R) for custody tasks in relation to AIF custodial assets, the third party is subject to:

      1. (i)

        effective prudential regulation, including minimum capital requirements, and supervision in the jurisdiction concerned; and

      2. (ii)

        an external periodic audit to ensure that the financial instruments remain in its custody;

    3. (c)

      the third party segregates the assets of the depositary's clients from its own assets and from the assets of the depositary in such a way that they can, at any time, be clearly identified as belonging to clients of a particular depositary;

    4. (d)

      the third party does not make use of the assets unless it has:

      1. (i)

        obtained the prior consent of the AIF, or the AIFM acting on behalf of the AIF; and

      2. (ii)

        given prior notification to the depositary; and

    5. (e)

      the third party complies with the general obligations and prohibitions relating to the depositary in FUND 3.11.5 R, FUND 3.11.5 G, FUND 3.11.9 R, FUND 3.11.21 R, FUND 3.11.23 R and FUND 3.11.24 R.

[Note: article 21(11) second paragraph of AIFMD]

Delegation: third countries

FUND 3.11.29 R

A depositary may delegate custody tasks in relation to AIF custodial assets to an entity in a third country that does not satisfy the conditions in FUND 3.11.28R (4)(b), provided that:

  1. (1)

    the law of that third country requires those AIF custodial assets to be held in custody by a local entity;

  2. (2)

    no local entity satisfies the conditions in FUND 3.11.28R (4)(b);

  3. (3)

    the depositary delegates its functions to such a local entity only to the extent required by the law of that third country and only for as long as there is no local entity that satisfies the delegation conditions in FUND 3.11.28R (4)(b);

  4. (4)

    the investors of the relevant AIF are informed before their investment that such delegation is required due to legal constraints in the third country and of the reasons as to why the delegation is necessary; and

  5. (5)

    the AIF, or the AIFM on behalf of the AIF, has consented to the delegation arrangements before they become effective.

[Note: article 21(11) third paragraph of AIFMD]

Delegation: sub-delegation

FUND 3.11.30 R

A depositary must ensure that a third party to whom the depositary has delegated functions does not, in turn, sub-delegate those functions unless the delegate complies with the same requirements that apply to the depositary, with any necessary changes, in relation to the delegation by the depositary of its functions in FUND 3.11.26 R to FUND 3.11.29 R.

[Note: article 21(11) fourth paragraph of AIFMD]

Delegation: omnibus account

FUND 3.11.31 G

A depositary may delegate the safe-keeping of assets to a third party that maintains a common account for multiple AIFs, a so-called 'omnibus account', provided it is a segregated common account that is segregated from the third party's own assets.

[Note: recital 40 of AIFMD]

Provision of information

FUND 3.11.32 G

The requirements of SUP 2 (Information gathering by the FCA or PRA6 on its own initiative) apply to the depositary, under which it must enable the FCA to obtain, on request, all information that the depositary has obtained while discharging its duties and that the FCA considers necessary.

[Note: article 21(16) of AIFMD]

AIFM of a non-EEA AIF

FUND 3.11.33 R

An AIFM of a non-EEA AIF or a non-EEA feeder AIF3 which is marketed in the UK must:

  1. (1)

    ensure that the duties referred to in FUND 3.11.20 R, FUND 3.11.21 R, FUND 3.11.23 R and FUND 3.11.25 R are carried out in relation to that AIF by one or more:

    1. (a)

      firms that:3

      3
      1. (i)

        are established in the UK; and3

      2. (ii)

        which have the Part 4A permission of acting as trustee or depositary of an AIF; and3

      3. (iii)

        which have own funds of at least €125,000,3

      where the duties are carried out in the UK; or

    2. (b)

      entities that are not established in the UK, where the duties are not carried out in the UK; or3

    3. (c)

      firms that are established in the UK and which are carrying out the duties from a non-UKbranch;3

  2. (2)

    not perform the duties referred to in (1) itself; and

  3. (3)

    provide the FCA with information about the identity of those entities responsible for carrying out the duties referred to in (1).

[Note: article 36(1)(a) of AIFMD]

Subordinate measures

FUND 3.11.34 G

Articles 83 to 102 of the AIFMD level 2 regulation provide detailed rules supplementing this section.

FUND 3.12 Marketing in the home Member State of the AIFM

Application

FUND 3.12.1 G

This section applies to:

  1. (1)

    a full-scope UK AIFM of:

    1. (a)

      a UK AIF; and

    2. (b)

      an EEA AIF; and

  2. (2)

    a full-scope EEA AIFM of:

    1. (a)

      a UK AIF; and

    2. (b)

      an EEA AIF.

Marketing application

FUND 3.12.2 D

Under regulation 54 (FCA approval for marketing) of the AIFMD UK regulation, a full-scope UK AIFM and a full-scope EEA AIFM may apply to market a UK AIF or EEA AIF it manages in the UK by submitting a notice to the FCA in the form set out in FUND 3 Annex 1 D.1

FUND 3.12.3 G

If the UK AIF or EEA AIF is a feeder AIF, the master AIF needs to be an AIF that is not managed by a non-EEA AIFM or is not a non-EEA AIF for it to be marketed in accordance with regulation 54 of the AIFMD UK Regulation. If the master AIF is managed by a non-EEA AIFM or is a non-EEA AIF, the AIF may be marketed in the UK in accordance with regulation 57 (Marketing under article 36 of the directive) of the AIFMD UK regulation (see FUND 10.5.3G (Marketing under article 36 of AIFMD)).

FUND 3.12.4 G
  1. (1)

    A full-scope UK AIFM may use the form set out in FUND 3 Annex 1 D to apply to market a UK AIF or EEA AIF (that is not a feeder AIF, the master AIF of which is managed by a non-EEA AIFM or is a non-EEA AIF) to professional clients and/or retail clients.

  2. (2)

    A full-scope UK AIFM may inform the FCA of its intention to market such an AIF in the UK in its application to become authorised as a Full-scope UK AIFM, in which case the firm does not also have to submit the form in FUND 3 Annex 1 D in respect of that marketing.

  3. (3)

    A full-scope UK AIFM may also use the form in FUND 3 Annex 1 D to apply to the FCA to market an AIF in other EEA States using the AIFMD marketing passport and to notify the FCA of material changes to domestic and cross-border marketing.2

FUND 3.12.5 G
  1. (1)

    A full-scope EEA AIFM that wishes to market a UK AIF or EEA AIF (that is not a feeder AIF, the master AIF of which is managed by a non-EEA AIFM or is a non-EEA AIF) to professional clients should do so using the marketing passport provided for under AIFMD and should, therefore, apply to its Home State regulator for permission to do so.

  2. (2)

    In accordance with regulation 49 (Marketing by full-scope EEA AIFMs of certain AIFs) of the AIFMD UK Regulation, a full-scope EEA AIFM may market such an AIF to retail clients in the UK if the FCA has received a regulator's notice in relation to the marketing in accordance with Schedule 3 to the Act (EEA Passport rights) or if the AIFM has applied to the FCA for permission to market the AIF using the form in FUND 3 Annex 1 D and the FCA has approved such marketing.

  3. (3)

    As such, a full-scope EEA AIFM may use the form in FUND 3 Annex 1D to apply to market such an AIF in the UK to retail clients, but should not use this form to apply to market such an AIF to professional clients in the UK.

FUND 3.12.6 G

A full-scope UK AIFM or a full-scope EEA AIFM that intends to market to retail clients should consider the application of the financial promotions regime and ensure it is compliant with the relevant requirements (see PERG 8.37.14 G (Application of the financial promotion and scheme promotion restrictions)).

Marketing an ELTIF3

FUND 3.12.7 G

To market an ELTIF in the United Kingdom a full-scope UK AIFM should submit a notice to the FCA using the forms in:3

  1. (1)

    FUND 3 Annex 1D (Notification of intention to market an AIF in the United Kingdom); and3

  2. (2)

    3FUND 4 Annex 1R (Additional documentation and information to market an ELTIF).3

FUND 3 Annex 1 Notification of intention to market at AIF in the United Kingdom

FUND 3 Annex 1 D

This annex consists only of one or more forms. Forms are to be found through the following address:

Notification of intention to provide or amend cross border services in another EEA state with respect to marketing an AIF (Article 32); and/or Notification of intention to market an AIF in the United Kingdom (Article 31) - FUND 3 Annex 1 D

1 1

FUND 3 Annex 2 Notice of AIFM delegation

FUND 3 Annex 2 R

1This annex consists of one or more forms. Forms can be completed online now by visiting https://www.handbook.fca.org.uk/form

The forms are also to be found through the following address:

FUND 3 Annex 2 R - Notice of AIFM delegation