Offshore funds: committed to corporate governance

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1 Offshore funds: committed to corporate governance APRIL 2012 For more articles visit mourantozannes.com This article, which appeared in PLC Magazine, is only intended to give a summary and general overview of the subject matter. It is not intended to be comprehensive and does not constitute, and should not be taken to be, legal advice. If you would like legal advice or further information on any issue raised by this briefing, please contact one of your usual Mourant Ozannes contacts. Contacts: Mark Chambers Partner, Jersey Based in the Guernsey office Darren Bacon Partner, Guernsey Bronwyn King Senior Lawyer, BVI Based in the Hong Kong office For contact details, please see the end of this article. Mark Chambers, Darren Bacon and Bronwyn King of Mourant Ozannes compare regulation in some of the world's major offshore financial centres and consider future trends. This article looks at the fund governance regimes in four of the leading international financial centres: the British Virgin Islands (BVI), the Cayman Islands, Guernsey and Jersey. It also considers two topical issues: directors' duties in relation to offshore hedge funds in the light of the recent decision in Weavering (see box "The Weavering decision"), and "jumbo directors" (directors with a large number of directorships) (see box "Jumbo directors"). It concentrates on corporate funds as these form the large majority of offshore funds. Although unit trusts and limited partnerships are also popular fund vehicles, consideration of fund governance issues specific to trustees and general partners is beyond the scope of this article. Corporate governance in all four jurisdictions has a shared origin in English common law before the Companies Act 2006 (2006 Act) came into force, and the courts in the BVI, Cayman, Guernsey and Jersey will consider English case law as strongly persuasive, although not technically binding (see box "Common law duties"). The common law position has been superseded or modified only to a limited degree by local statutory and regulatory provisions. There has been no statutory codification of the duties of directors as occurred in England under the 2006 Act. British Virgin Islands The BVI Financial Services Commission (FSC) regulates investment funds (or mutual funds, as they are termed under BVI law) and their functionaries. There are three categories of investment fund in the BVI: public, professional and private. According to FSC statistics from 2011, 6.89% of investment funds authorised by the FSC are public funds that may be sold by prospectus to any investor. The rest are either professional funds (sold to sophisticated investors) or private funds (where the number of investors is fewer than 50 or where offers to the public are prohibited). Fund governance The regulatory framework governing fund governance standards in the BVI includes the Securities Investment Business Act 2010, the Regulatory Code 2009, the Mutual Funds Regulations 2010 and the Public Funds Code 2010 (together, the mutual fund legislation), the BVI Business Companies Act 2004 and the Insolvency Act The mutual fund legislation is a body of relatively recent legislation designed to codify and modernise the regulation of BVI investment funds and their service providers and thus provide appropriate levels of management, control and investor protections in accordance with the international standards set out in the International Organization of Securities Commissions' principles relating to collective investment schemes. Fund governance, particularly in relation to the public fund regime, lies at the heart of the mutual funds legislation. The fund governance requirements in place for nonretail professional and private funds are not as onerous as the requirements for public funds for obvious reasons, however, in many cases, the FSC will expect to see certain of the measures described below for public funds put in place for non-retail professional and private fund products. A public fund must adhere to detailed requirements and standards, including: mourantozannes.com BVI CAYMAN ISLANDS GUERNSEY HONG KONG JERSEY LONDON

2 Satisfying fit and proper criteria applicable to itself and each functionary. Implementing corporate governance policies and procedures. Implementing detailed business conduct rules covering: internal controls, duties and responsibilities of the board of directors, policies and procedures for disclosing and managing material conflicts, share issuance and redemption and valuation methodology, process and pricing. Complying with a series of obligations for the protection of client monies. All categories of investment fund are also required to adhere to a codified standard for accounting and auditing the fund and to prepare and file audited financial statements. Prospectus requirements A public fund is required to publish and maintain a registered prospectus which must be dated and contain full and accurate disclosure of all such information as investors would reasonably require and expect to find for the purpose of making an informed investment decision. The prospectus must also contain a summary of investor rights, among other matters. Although professional and private funds are not required by statute to publish a prospectus, the FSC will expect them to produce a prospectus covering the types of codified information applicable to a public fund that the FSC will vet at the time of recognition. BVI directors' duties The Public Funds Code 2010 expands the usual common law and statutory standards of care and skill imposed on a director by requiring a board of directors to demonstrate that it: Is capable of exercising independent judgment. Has sufficient knowledge, skills, experience and understanding of the fund's business to ensure that the governing body is able to fulfil its responsibilities. Has sufficient time and commitment to undertake its duties diligently. In addition, the board of directors of an investment fund is responsible for ensuring that the fund is in compliance with the requirements set out in the Mutual Funds legislation and that any policies and procedures required by statute are established, maintained, approved and periodically reviewed and monitored. BVI law also imposes on directors the following specific duties that are key in establishing a framework for governance of funds: Acting for a proper purpose. Acting honestly and in good faith and in a manner which the directors reasonably believe to be in the best interests of the investment fund for the benefit of its shareholders. Exercising the due care, diligence and skill that a reasonable director would exercise having regard to the nature of the investment fund, the decision at hand and the position of the director and the nature of the responsibilities undertaken by him or her. Cayman Islands The investment funds industry in Cayman is focused, overwhelmingly, on institutional and sophisticated, or high net worth investors, as opposed to retail investors. This focus is apparent in the statistics for regulated funds. According to the Cayman Islands Monetary Authority (CIMA), as at December 2011, of 9,258 regulated investment funds, 8,714 (almost 95%) were registered funds; Cayman's equivalent to a sophisticated investor fund. Corporate governance The corporate governance regime for registered funds reflects their investor base and is, appropriately, light touch, with the emphasis on disclosure and transparency. To qualify as a registered fund, a fund must, among other things, either require prospective investors to subscribe for a minimum aggregate equity interest of $100,000 (or its equivalent in any other currency), or it must list its equity interests on a stock exchange approved by CIMA. Registered funds are suitable, therefore, for institutional and high net worth investors who can afford the minimum subscription amount. These investors are considered to be sufficiently sophisticated to understand the risks of investing and the importance of carrying out appropriate due diligence.

3 The Mutual Funds Law (MFL) (the primary legislation in the Cayman Islands governing the regulation of investment funds) requires all regulated funds to produce an offering document which describes the equity interests it is offering in all material respects and contains such other information as is necessary to enable a prospective investor to make an informed decision as to whether or not to subscribe for the equity interests. If a fund is engaged in a continuing offering of its equity interests, then the fund is also required to update its offering document within 21 days of its operators becoming aware of any change that materially affects any information in the offering document. The MFL does not impose any eligibility requirements or restrictions on directors. Thus, there are no residency requirements, no minimum qualifications or experience required and no limit on the number of directorships that a person may hold. However, directors of regulated funds, other than registered funds, are subject to a vetting process (see below). It is worth noting in passing that the MFL only regulates open-ended funds that issue equity interests; closed-ended funds, such as the typical private equity fund, fall outside its provisions, as do funds which issue debt instruments instead of shares. There is a further exclusion for funds with 15 or fewer investors if a majority of them can appoint and remove the operator of the fund (being the board of directors in the case of a corporate fund). This exemption is aimed at small, private funds such as those established by family offices. CIMA has broad powers to intervene in the affairs of regulated funds in the interests of protecting investors and creditors, and to ensure that the business of the fund is being conducted in a fit and proper manner, including by requiring the replacement of a director. There are two other categories of regulation for investor-facing funds (as distinct from underlying master funds): licensed funds and administered funds. Licensed funds.these are suitable for large, well-known and reputable promoters that want, essentially, a retail fund; that is, a fund that can be offered to an unlimited number of investors with no minimum subscription. The fund, its promoter, administrator and directors are subject to background checks and vetting by CIMA. Persons will only be approved as directors of a licensed fund if CIMA is satisfied that they are fit and proper to act as such. Administered funds.these also have no limit on the number of investors and no minimum subscription, however, they must appoint a licensed mutual fund administrator based in the Cayman Islands to provide the principal office of the fund. The administrator undertakes to CIMA to assume the responsibility of being satisfied as to the same matters that CIMA is required to consider for a licensed fund, including the suitability of the directors. Consequently, this category of regulation is only suitable for funds which have a Cayman-based administrator that is willing to vouch for the fitness and propriety of the fund's directors. Best practice CIMA has issued a statement of guidance on corporate governance best practices applicable to funds and all other entities regulated by it and which is consistent with international standards on corporate governance. The guidance states that the board of directors should have a balance of appropriately skilled, experienced and qualified individuals who can apply informed and independent judgment to the governance of the entity. The board should also ensure that the entity is effectively directed and managed and its business is conducted in a sound and prudent manner with integrity, due care and professional skills appropriate to the nature and scale of its activities. Cayman directors' duties The Cayman Islands' company law imposes a number of obligations on the directors of Cayman companies. One which is particularly relevant to investment funds is that a director must not knowingly authorise or permit a company to pay a dividend or make a distribution unless, immediately following the date of the payment or distribution, the company is able to pay its debts as they fall due in the ordinary course of business. Other statutory requirements relate to administrative matters, such as filing an annual declaration

4 on behalf of the company with the Registrar each year and ensuring that the company's statutory registers are properly maintained. The Cayman Islands Directors Association, formed in 2008 to promote and safeguard the interests of directors of Cayman companies, has adopted a code of professional conduct, based on the code of professional conduct adopted by the UK Institute of Directors, with which all its members undertake to comply. Following a recommendation by the Chief Justice of the Cayman Islands, the Cayman Islands Law Reform Commission (the Commission) has recently stated that it intends to review the duties of directors in order to ensure certainty with regard to the liabilities of directors, particularly in cases where a company may be doing business in foreign jurisdictions that treat the responsibilities and liabilities of directors differently than is the case under Cayman law. In particular, the Commission has indicated that it will consider whether there is need to codify the responsibilities of directors to create certainty. Guernsey Guernsey has built a sophisticated infrastructure to foster the establishment of funds. Fund regulation The formation and operation of funds in Guernsey is regulated by the Guernsey Financial Services Commission (GFSC) pursuant to the Protection of Investors (Bailiwick of Guernsey) Law 1987, as amended (the POI law) and certain rules and regulations made thereunder. The criteria for granting an authorisation to a fund and the manner in which that fund will be regulated largely depends on whether the fund is open or closed-ended, and the type of investor targeted. In granting authorisation, the GFSC will consider the status, reputation and track record of the promoter, the scope of the fund's investment activities and the nature of its business. It will also consider the protection and/or enhancement of Guernsey's reputation as a financial centre. Depending on the type of application made to the GFSC, funds may be either registered or authorised under the POI law. The GFSC also regulates the licensing of fund service providers in Guernsey. There is no requirement to establish a Guernsey fund manager, but all Guernsey funds must have a local administrator and open-ended funds must also have a Guernsey-based custodian. New promoters Where the promoter of a fund is not known to the GFSC, it must submit a new promoter checklist, which gives information on the track record of the promoter or its principals, the proposed investment business to be undertaken in Guernsey and personal information on the directors, managers and shareholders of the promoter, the shareholders and directors of any management company and the directors of the proposed fund. The GFSC adopts a policy of selectivity in relation to new promoters and all relevant persons must be fit and proper in accordance with the criteria specified in the POI law. Governance issues The GFSC has introduced a Finance Sector Code of Corporate Governance (the Code) which applies to all companies which hold a licence under the POI law (or other regulatory laws) or which are registered or authorised as funds. The Code provides a framework, consisting of eight principles along with guidance on meeting those principles, but is not intended to codify or amend existing laws. Companies which report against the UK Corporate Governance Code or the Association of Investment Companies Code of Corporate Governance (AIC Code) are deemed to meet the Code (see "Governance" below). The Code does not apply to the boards of foreign domiciled companies which have a licensed branch in Guernsey, nor to a fund's underlying special purpose vehicles or holding companies. Guernsey directors' duties A company's memorandum and articles of association/incorporation will prescribe the scope of a director's powers and duties, but it is up to the general law to supplement this and to deal with points on which the constitution is silent. Guernsey law applies the English common law on duties of directors.

5 The Companies (Guernsey) Law 2008 imposes certain additional statutory duties on directors but does not attempt to codify the duties and liabilities of directors of Guernsey companies. Further obligations are imposed by codes of practice. Jersey Governance There is no specific model for corporate governance that must be applied to Jerseybased investment funds. Codes of practice issued (or to be issued shortly) by the Jersey Financial Services Commission (JFSC) (the Jersey codes) require that both a Jerseyregulated corporate fund and a Jersey-based fund service provider (for example, manager, administrator, custodian) must have an appropriate system of corporate governance. In particular, a fund must operate an effective corporate governance system that must include the following key elements: An adequate span of control must exist that is appropriate to the nature of the business of the fund. The fund must be directed by at least two appropriately qualified and experienced people (the "four eyes" principle). The relationship of directors and other key persons within the fund must be such as to ensure that they can all exercise independent judgment without duress or undue influence from one another in the best interests of the fund, and so as to secure compliance with the applicable legislation and regulatory guidance. Responsibilities must be apportioned among the fund's directors and other key persons in such a way that their individual responsibilities and accountabilities are clear, and that the business of the fund is adequately monitored and controlled at senior management and board level. The Jersey codes also require that there must be an appropriate risk management and control framework established for the fund. Where there has been a failure in corporate governance, this may trigger the need to notify the regulator. It is worth noting that the AIC Code is supported by the JFSC. The AIC Code is principles-, rather than rules-, based and introduces twenty-one principles. These include independence of the chairman and board independence from the investment manager, ensuring appropriate skills and training for directors, review of service provider performance and contracts and appropriate communications with shareholders providing sufficient information for them to evaluate their investment. It is considered best practice for AIC members to "comply or explain", in other words, to state in their annual report whether they are adhering to the principles and following the recommendations in the AIC Code and, if not, to explain why and the steps that will be taken to remedy the same. Jersey directors' duties There is no single statute which conclusively lists and defines the duties of a director of a Jersey company. Basic duties are contained in the Companies (Jersey) Law 1991, as amended (1991 Act), although it is less codified than the approach taken under the 2006 Act. Further specific duties are placed on directors by bankruptcy and companies legislation, as well as anti-money laundering, and other regulatory, laws. Directors are required, in exercising their powers and discharging their duties, to act honestly and in good faith with a view to the best interests of the company; and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances (Article 74, 1991 Act). The test is considered an objective one and might be interpreted more stringently at present, requiring a director to inform themselves of the financial position of the company, attend all board meetings and participate in the conduct of the company. Directors are also required under the 1991 Act to disclose their interests in transactions undertaken by the company. Where the director fails to disclose such interests, the transaction may be set aside by application to the court. The transaction may be approved by special resolution of the shareholders of the company, provided they are given sufficient information in relation to the transaction.

6 On the general question of directors' duties, the Jersey courts will look to existing Jersey case law and in the absence of such, will look for guidance to English common law on the question of directors' duties generally. Key common law duties include: Directors should not make secret profits from their position as a director and interests in transactions should be disclosed. Information obtained in the course of his or her activities should be kept confidential. Directors should ensure that they act within the powers afforded to them by the constitutional documents of the company (note that although the concept of acting ultra vires the company was abolished by the 1991 Act, this might constitute a breach of the memorandum of association of the company). Simon Palmer, Mark Chambers and Darren Bacon are partners, and Bronwyn King is a senior lawyer, at Mourant Ozannes. The Weavering decision A recent case before the Grand Court of the Cayman Islands caused a stir in the world of offshore fund corporate governance (Weavering Macro Fixed Income Fund Limited (in liquidation) v Stefan Peterson and Hans Ekstrom). The judgment garnered a lot of attention for three reasons. Most importantly, it was the first time that the duties of a director had been scrutinised in the context of an offshore hedge fund, which was entirely conventionally structured. Second, the conduct of the independent directors was particularly egregious and, third, the directors were found liable for a staggeringly large amount of money ($111 million plus costs). The judgment contains an orthodox review of the law relating to directors' duties and wilful neglect or default. It also contains a surprisingly detailed and prescriptive analysis of how the directors should have conducted themselves and this analysis has drawn some attention and comment. In considering the implications of the judgment, it should be borne in mind that the proposed course of conduct outlined for the directors is being put forward as appropriate in the particular circumstances of the Weavering fund. While the judgment is a useful guide to the directors of other offshore funds and aspects of it will, no doubt, have wider application, it should not be taken as a simple checklist on how directors should discharge their duties. The overarching point to take away from the judgment is not a new or surprising one. In the final analysis, in order for a director of a fund to properly discharge his duties, he has to roll up his sleeves and engage with the fund, bringing his skills and experience to bear as appropriate and exercising his judgment cognisant of the specific facts and circumstances of the fund. Jumbo directors In 2011, the Financial Times (FT) published an article on fund "jumbo directors" (directors with a large number of directorships). The article revealed hat there were a number of Cayman resident directors who sat on the boards of a large number of funds; according to the FT, currently at least four with more than 100 directorships and 14 with more than 70 (in fact, both statistics are likely to be understated). This disclosure would have come as no surprise to those in the industry. What was surprising is that the FT should choose to give the subject the prominence it did (without offering any substantive analysis of the underlying issues). Capacity It is axiomatic that any one individual has a finite capacity to take on and properly discharge different directorships. The debate is over what the capacity limit is and whether and, if so, how it should be policed. How many directorships equals full capacity will depend, in simple terms, on two factors: the capacity of the individual director and how time consuming is each directorship. The capacity of the individual director will turn on how much time is he willing and able to devote to his directorships, for example, is he a full-time professional director or employed full time in another capacity? It will also turn on how efficiently he is able to discharge his duties. For example, the time it takes a director to review and understand a set of accounts, a broker's trading statement or a shareholder circular will vary greatly depending on the director's skills and experience.

7 The amount of time required properly to discharge each directorship will depend on, among things, the complexity of the fund, the quality of its service providers and how well they are performing their functions, the number and nature of its investors, whether and how it is regulated, whether it is listed and the nature of its investment strategy. Clearly, it is too simplistic to measure capacity just by the number of appointments. Regulation Regulators in the Channel Islands have introduced a more managed, qualitative assessment process. Recently, the Guernsey Financial Services Commission (GFSC) issued a guidance letter referring to the FT article and noting that it was concerned that some individuals who are directors of supervised entities have such a large number of directorships that "they may not be able to discharge their duties effectively". The new code of corporate governance introduced in Guernsey requires new directors to confirm, among other issues, that they have sufficient time to discharge their duties, taking into account other commitments (including other directorships of non-regulated entities) (see "Governance issues" in the main text). The GFSC further noted that the large number of directorships held by some individuals "will be increasingly unsustainable in light of the growing responsibilities of directors". The Jersey Financial Services Commission (JFSC) has, for some time, applied oversight in respect of the number of appointments an individual holds in relation to regulated entities (see "Governance" in the main text"). The personal questionnaire (or update) requires an indication of the anticipated time spent for a board appointment. Of course, at what stage the GFSC and the JFSC draw the line and say to an individual that he has reached his limit of directorships remains to be seen but there does appear to be an appreciation that this judgment involves a qualitative assessment of the individual's circumstances. Registration Another approach which would seem to fit well with a director's fiduciary duties, as well as being consistent with the push, globally, towards greater transparency, would be to require directors to list the directorships they hold in a public registry. A director seeking new appointments (or just looking to hang on to his existing ones) would have to justify the number of appointments he holds and show that he has sufficient capacity. Fund promoters would have the option of not appointing a director if there is a concern that he holds too many directorships and investors would be able to raise concerns and, ultimately, not invest if they have concerns over the corporate governance of a fund. The Cayman Islands Monetary Authority has indicated that it is looking at this issue closely as well as at related issues, such as a framework for assessing the fitness and propriety of directors and a directors' disqualification regime. Common law duties In common law, a director of a corporate fund owes both fiduciary duties and a duty of skill and care. The fiduciary duties can be summarised as follows: Firstly, and most importantly, a duty to act honestly and in good faith in the best interests of the fund as a whole. This duty is likely to be construed more narrowly than the equivalent duty of a director under section 172 of the Companies Act 2006 (section 172) to promote the success of the company, and it is not clear how much weight a court would attach to the six factors to which a director is required to have regard under section 172. A duty to exercise the powers that are vested in him for the purposes for which they were conferred and not for any collateral purpose. A duty not to put himself in a position where he has a conflict of interests between the business of the fund and his own business interests. A duty to account to the fund for any profits he makes without the fund's consent from his position as a director. A duty not improperly to fetter his future ability to exercise discretion in the use of his powers as a director. A duty of confidentiality to the fund. Information received or obtained by a

8 director, in that capacity, concerning the fund, its business relationships and opportunities, should not be disclosed to other people unless such information is already in the public domain or he is authorised to disclose it. In addition to his fiduciary duties, a director owes a duty to the fund to act with care, diligence and skill. The test for this is both objective and subjective. The director must exercise the degree of care and diligence which would be displayed by a reasonable man in the circumstances. However, while he is not required to exhibit a greater degree of skill than may reasonably be expected from a person of his knowledge and experience, if he has relevant expertise, for example, experience in investment management, accounting, administration or law, he would be expected to demonstrate a higher standard of skill and diligence in those fields where he has experience than would be required from a person not in possession of such expertise. Contacts: Mark Chambers, Partner, Jersey Based in the Guernsey office Darren Bacon, Partner, Guernsey Bronwyn King, Senior Lawyer, BVI Based in the Hong Kong office

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