AIFMD Countdown – April 2013

With now just only 90 days to go to the 22 July 2013 AIFMD implementation date, progress continues to be made but a number of uncertainties remain, including how the remuneration provisions will play out. Despite the uncertainty, some, but by no means all, managers have sensibly started to do more in-depth AIFMD implementation planning.

Since the last update, France has now published an AIFMD guide/ Q&A document. However, uncertainty still remains around how the AIFMD will be implemented in a large number of EU member states and, in particular, what national private placement regimes will exist post AIFMD.

Switzerland and Brazil are still the only countries to have agreed AIFMD co-operation agreements with ESMA although over the last month both the Cayman Islands regulator, closely followed by the Bermuda regulator, issued a press release to confirm their co-operation agreements are progressing.

Discussions continue between prime brokers and depositaries to agree the day-1 AIFMD depositary model for EU AIFs. The UK’s final position relating to the so-called ‘depo-lite’ functions, which impact the large number of EU AIFM of non-EEA AIF marketed to EU investors, remains unclear.

Notable developments since the last update as follows:

  • FSA surveyed firms seeking to act as a UK depositary, to understand when they might submit their applications. The FCA is conscious that authorisation may need to be granted to such firms by 22 July.
  • FSA Consultation Paper 13/9 (FSA CP2) published covering issues arising from level 2 regulation including how the FCA will consider an AIFM’s delegation arrangements, and their approach to marketing, including passporting rights and the private placement regime.
  • ‘Level 2’ Delegated Regulation became official following a three-month scrutiny period by the European Parliament and EU Council, with its publication in the Official Journal of the European Union.
  • FSA transitioned into Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) on 1 April 2013.
  • European Securities and Markets Authority (ESMA) published draft Regulatory Technical Standards (or RTS) to determine types of AIFM under the AIFMD.
  • ESMA published Questions & Answers to 67 questions in response to questions put to the European Commission on AIFMD. These include ESMA’s thoughts around compliance on a “best efforts” basis during the transitional period.
  • AMF, the French regulator, publishes an AIFM guide/ Q&A on the directive.

Coming up:

  • Responses due to FSA CP2 by 10 May 2013.
  • FCA third consultation paper expected in May focussing on remuneration issues. A policy statement with final rules is expected in June but some rules may be published earlier.

This update can also be read on the COO Connect website by clicking here.