Investment Funds a Guide to Establishing a Fund in Guernsey
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Investment Funds A guide to establishing a fund in Guernsey Investment Funds Guernsey September 2020 Investment Funds Investment Funds A guide to establishing a fund in Guernsey Introduction 4 Fund types 4 Modern legislation 4 Guernsey Financial Services Commission 4 International recognition 4 Application procedure for registered funds 5 Qualifying Investor Funds 8 Manager Led Product 8 Private Investment Fund 9 Open-ended funds 9 Closed-ended funds 11 Hedge Funds 11 Companies 11 Unit Trusts 12 Limited Partnerships 12 Limited Liability Partnerships 13 Recognised Funds and AIFMD 13 Country status 14 Selection of fund structure 15 Taxation and charges 15 FATCA 17 About Ogier 18 Contact 18 3 Investment Funds A guide to establishing a fund in Guernsey The investment funds industry in Guernsey has continued to achieve significant growth in recent years. Figures from the Guernsey Financial increasingly popular for use as a policy of selectivity which means Services Commission (the “GFSC”) special purpose vehicles in asset that great weight is given to the show that as at 31 March 2020, the securitisation, real property and status of the intended promoters. net asset value of all funds under other specialised schemes. management and administration in Only those of the first rank Guernsey was £267 billion. Modern legislation are encouraged. Normally a The growth of the investment demonstrable and favourable The Island has developed into funds industry in Guernsey is track record in the establishment a leading jurisdiction for the attributable in part to the policies and/or management of collective establishment of investment funds of the Guernsey authorities and the investment funds is required. and a large number of Guernsey flexibility of the regulatory system. Please visit www.gfsc.gg for further funds are listed on the London and Growth is also attributable to the information. other stock exchanges. Funds may high quality of services available also be listed on The International in Guernsey in relation to fund International recognition Stock Exchange (TISE), formerly management and custody. Guernsey is one of the most known as the Channel Islands established, transparent and well- Securities Exchange, where special The Protection of Investors (Bailiwick regulated offshore jurisdictions. procedures exist to enable the of Guernsey) Law, 1987 (as amended) Guernsey is a member of the OECD relatively easy listing of Guernsey (the “POI Law”) sets up a modern and was placed on the G20 white and Jersey funds. Please visit statutory structure for the regulation list of offshore jurisdictions in 2009. www.tisegroup.com for further and administration of collective It has also obtained designated information. investment schemes in Guernsey. territory status under the UK Financial The law provides a framework for Services and Markets Act, 2000 Fund types investor protection whilst retaining (the “FSMA”). There are a wide variety of funds the flexibility to adapt quickly to under management in Guernsey changing market conditions. Guernsey’s low tax status, proximity including equities funds, bond funds, to the financial markets of Europe money market funds, commodities The Guernsey Financial Services and a sophisticated banking and and futures funds, hedge funds, Commission professional infrastructure have property funds, feeder funds, The GFSC seeks to maintain also contributed to the success of umbrella funds, private equity and Guernsey’s reputation for probity the Island as a base for investment venture capital funds and emerging in the international financial funds. markets funds. In addition, there community and its general duty are a large number of institutional to protect and enhance the investment schemes established Bailiwick’s reputation is reflected in in Guernsey which have become its approach to regulation. There is 4 Investment Funds Regulatory framework Licensees are subject to conduct The diagram below demonstrates The establishment and operation of business and capital adequacy the various fund types and of both open and closed-ended rules. Funds (whether open or applicable rules. investment funds in Guernsey is closed-ended) must be authorised governed principally by the POI or registered before issuing units or Application procedure Law together with the rules made shares. All Guernsey funds (whether for authorised funds thereunder. An open-ended fund is open or closed-ended) are categorised Applications for authorisation of basically defined as a vehicle where as either: an authorised open or closed-ended investors are entitled to redeem fund are made under the POI Law their holdings at a price related to • Authorised (i.e. regulated) funds to the GFSC. the value of the underlying assets. which are subject to ongoing supervision by the GFSC; or There are three stages in the A closed-ended fund does not entitle • Registered funds which are not standard authorisation process: investors to redeem at a price related authorised and are subject to a outline authorisation, interim to the value of the underlying assets lighter touch regulatory regime. authorisation and formal although it is possible to structure authorisation. Where new and a fund to permit redemptions at Factors which may be relevant in innovative funds are proposed or the discretion of the directors or deciding between an authorised or some other part of the application manager. a registered fund may include the process is unsuitable or can be following: improved, the GFSC can be flexible POI Law in its procedures and it will generally Both funds and certain persons • Investor preference (whether be possible to discuss and agree providing services to funds are investors would prefer more or alternative application procedures regulated by the POI Law. less regulatory supervision); where necessary. • Other regulatory or listing In order to provide services such as authorities (e.g. Euronext) may Promoters should discuss applications management or custody, a person require the fund to be authorised. with Ogier as soon as possible in the must obtain a licence under the POI planning and launch of a fund. Law. Guernsey Fund (Regulated) Authorised Funds Registered Funds Private Investment Fund (Standard or QIF) (PIF) Closed-ended/ Open-ended Closed-ended Open-ended Authorised Registered Manager Led Product PIF Rules Closed-Ended Class Class Class (MLP) Investment A B Q Scheme Rules Rules Rules Rules Registered Prospectus Collective Rules Investment Scheme Rules 5 Investment Funds Outline authorisation Where the promoter of the fund is be required to complete a Form Form GFA (Application for Outline not known to the GFSC, in order to PQ (discussed below) if not Acceptance of a Collective facilitate the GFSC’s consideration already known to the GFSC. It is Investment Fund Open or Closed- of its suitability as a potential a requirement to provide details Ended) is submitted to the GFSC. sponsor, the promoter should also of the name and address of all The form sets out general information submit a completed New Promoter’s individuals or entity with any regarding the structure of the fund, Introductory Checklist form together interest of 5% or more but less its investment activities and the with the requested information than 15%; parties involved. Form GFA requires on the proposed promoter’s full • Third party evidence of a the supporting signature of the background and status, including favourable track record by the proposed administrator (and, in the details of any authorisation by a promoter in the establishment case of an open-ended fund, the regulatory authority, professional and/or management of collective proposed trustee/custodian). body, investment exchange, clearing investment schemes; house, etc. • If the promoter lacks a track At this stage, the GFSC also considers record in its own right, evidence of Alternatively, the New Promoter’s whether the promoter of the fund the track record of its principals; meets its stated policy as follows: Introductory Checklist and accompanying information may • A copy of the promoter’s latest audited accounts, or latest “The GFSC places great emphasis be submitted on its own or prior management accounts if no on the status of an applicant. to Form GFA. Where the Checklist audited accounts are available Essentially the applicant must is submitted on its own, the GFSC or the audited accounts are for have a favourable track record in will carry out its own due diligence a period ending more than six an established jurisdiction which checks and will notify the applicant months prior to the date of the appears free of malpractice, as to whether it would be willing to application; dishonesty or incompetence. consider a formal application from Authorisation by another regulatory the applicant as the promoter of a • To the extent known, a brief body will be taken into consideration Guernsey fund. description of the proposed but does not guarantee a favourable collective investment fund(s) outcome to an application. The The information (which should all to be established in Guernsey; ‘track record’ must be in business be in English) requested by the • If known, details of any individuals equivalent to that to be conducted Checklist includes: not already disclosed and not in Guernsey and should be financially already known to the GFSC who will successful. Selectivity criteria also • The full name of the promoter have key roles in the management apply to the specific nature of (being the party ultimately of the fund (for example,