Regulatory Impact Analysis (RIA) Irish Collective Asset-management Vehicles Bill 2014 (ICAV Bill)

Transcription

1 Regulatory Impact Analysis (RIA) Title of legislation: Department: Irish Collective Asset-management Vehicles Bill 2014 (ICAV Bill) Department of Finance Date: July 2014 Related publications: Irish Collective Asset-management Vehicles Bill 2013 Available to view or download at: Contact for enquiries: Patrick Brennan Tel: Policy Context The Irish funds industry is a key part of the internationally traded financial services sector (often referred to as the IFSC). Some 5,000 Investment funds are at present authorised and regulated while almost 7,000 are administered in Ireland. Around 12,500 people are employed directly and indirectly in both the IFSC in Dublin and in a number of locations throughout the country, some 2,500 of whom provide legal and accounting services. This area of the IFSC remains the biggest sector by employment. The investment funds industry in Ireland has developed significantly since the establishment of the IFSC in 1987, through the promotion, sale, marketing and administration of investment funds sold internationally. Collective investment funds are currently structured as: Companies as UCITS under the Companies Acts, and as non-ucits under Part XIII of the Companies Act 1990; Unit trusts under the Unit Trusts Act 1990; Investment limited partnerships under the Investment Limited Partnerships Act 1994; or Common contractual funds under the UCITS Regulations and under the Investment Funds, Companies and Miscellaneous Provisions Act 2005, and have the sole object of giving the investors the benefit of the collective investment of its funds in assets with the aim of spreading investment risk and giving the investors the benefit of the results of the management of its funds. Each structure above serves a particular set of organisational criteria for investors. 1

2 The Government s IFSC Strategy commits to the introduction of a legal framework for a corporate fund structure which is not a public limited company. The ICAV Bill is intended to give effect to that commitment and to facilitate growth in the industry. A new corporate structure for collective investment schemes (funds) is a significant priority in the funds area and has been sought for a number of years. The proposal will provide for the creation of a corporate structure which may be formed as an open-ended, closed-ended or limited liquidity vehicle, providing an alternative to the other legal structures currently permitted for collective investment schemes. The Bill reflects similar instruments already available in other EU jurisdictions. 2. Policy Objective of the Proposal To provide for a bespoke corporate vehicle specifically designed for collective investment schemes (funds) in accordance with the commitment set out in the Government s IFSC strategy. The structure should deliver cost savings and enhanced competitiveness to fund managers through the elimination of unnecessary and inappropriate administrative and other requirements for the establishment and operation of the fund vehicle. The bespoke corporate vehicle will be similar to that available in some other countries. 3. Policy Options 1 Do nothing. 2 Amend Part XIII of the Companies Act 1990 to provide for a private company investment vehicle. 3 Provide for an open ended collective investment scheme under regulations emanating from the power assigned in s.3 (2) European Communities Act Provide for the framework of a new corporate structure in primary legislation. 2

3 4. Identification and description of options Option Benefits Impacts 1 Do nothing The Strategy Statement for the IFSC commits to the development of a new collective investment scheme vehicle, 2 Amend Part XIII of the Companies Act A stable system which could obviate the costs and uncertainty involved in change inaction is not an option. The Companies Acts were not designed to incorporate collective investment schemes. A solution based on the Companies Acts would not deliver the desired efficiencies. The degree of amendment which would be required in order to dis-apply or modify the provisions of the Companies Act to enable this new private vehicle to operate as an investment fund would be substantial, and this process would require a thorough review and analysis of the Companies Acts involving costs in terms of time and resources. The nature of the changes which would be required would potentially create confusion as to the fundamental nature of a private company in Irish law, which could create difficulties for private companies operating in other spheres. 3 Provide for a collective investment scheme under regulations emanating from the power assigned in section 3(2) of the European Relatively quick introduction through the legislative process. Could only ever be a temporary expedient, and alternative enabling provisions, broader in scope, would need to be sourced in the future. As Part XIII of the Companies Acts, 1990 already provides for a corporate regime for investment funds, it would be difficult to justify sufficient vires enabling the government to introduce relevant 3

4 Communities Act regulations on the basis that the implementation of the master feeder structure pursuant to UCITS IV requires an alternative form of corporate vehicle May itself create difficult legal issues. 4 Provide for the framework of a new corporate structure in primary legislation, the ICAV. Provides a unique corporate code which provides for a comprehensive solution, enabling the creation of a corporate structure which may be formed as an open-ended, closed-ended or limited liquidity vehicle, thereby providing an alternative to all forms of company currently permitted under Part XIII of the Companies Acts Ensure that funds are protected from the unforeseen adverse consequences of certain pieces of EU and domestic company law legislation designed around and targeted towards trading companies rather than investment funds. Whereas the process is time-consuming to implement through the primary legislative process, this option will achieve best the objectives of the proposal. Further details of the proposal are set out at appendix Impact Analysis (a) National Competitiveness (incl. employment) The Government s Action Plan for Jobs requires the Department of Finance to continue to support policies and legislation which ensure effective regulatory supervision of the financial sector whilst supporting economic growth and job creation This proposal contributes to the Department of Finance s work-stream for growth and job-creation in the funds sector. The proposal is a response to one of the main areas of competitive disadvantage that Ireland currently has in the funds sector. A similar structure is widely available in other EU jurisdictions and that Ireland, as one of the EU s premier financial services domiciles, does not have it is somewhat anomalous. 4

5 (b) Socially excluded or vulnerable groups including gender equality, poverty, people with disabilities and rural communities; The proposal is not envisaged to have any impact on socially excluded or vulnerable groups including gender equality, poverty, people with disabilities and rural communities. (c) The environment; The proposal is not expected to have any impact on the environment. (d) Significant policy change in an economic market including impacts on competition and consumers; This proposal is designed in large part to avoid the effects of changes to company law which unintentionally but adversely affect investment funds structured as PLCs or Part XIII companies. This structure, in avoiding those unintentional effects, will reduce the operational costs for investment funds and thereby potentially provide savings to both the funds industry generally and to the investors in such funds (including retail investors). (e) North-South, East-West relations; The proposal is not expected to have any impact on North-South, East-West relations. (f) The rights of citizens/human rights; The proposal is not expected to have any impact on the rights of citizens/human rights. (g) Compliance burden on third parties e.g. citizens and business. Other than the necessary prudential and regulatory compliance burden placed on the ICAV s themselves, there will be no compliance burden on the public at large. The compliance burden on an ICAV, insofar as it is regulated by the the Office of Corporate Enforcement (ODCE) and Central Bank, will be less than, or equal to, that of any other fund structure used in the investment funds industry. 6. Consultation Stakeholders consulted in relation to the Bill include the Central Bank of Ireland, the Department of Jobs, Enterprise and Innovation, the ODCE, the Companies Registration Office and the Irish Funds Industry Association. Stakeholders have also been consulted through the Clearing House Group and Legislative Sub Group of IFSC Funds Working Group in conjunction with the Department of An Taoiseach. 5

6 7. Enforcement and Compliance The ICAV will be registered and authorised by the Central Bank of Ireland. The enforcement and compliance regime will be divided between the Central Bank and the ODCE and the Bill enumerates specifically which elements of the Bill are to be enforced by which agency. 8. Review No review process is envisaged for the provisions of the Bill in-and-of themselves but the enforcement and compliance functions, where applicable, will form part of the Central Bank and ODCE s annual report insomuch as they are required to report on their regulatory performance. 9. Publication The Bill and Regulatory Impact Analysis will be published on the Departments website following the Bill s introduction into Oireachtas. 6

7 Appendix 1 - Summary of the Proposal Irish Collective Asset-management Bill 2014 While the ICAV will be a bespoke corporate entity established outside the Companies Acts, some of the rules will model to a limited extent, the rules applicable to investment companies formed under the Companies Act, and authorised under Part XIII of the Companies Act In this way, directors of ICAVs will be aware of, and subject to, a regime that is well established. In some instances, it is proposed to cross apply some provisions from company law rather than create a separate parallel regime, such as in respect of receivership and liquidations of ICAVs. The available potential efficiencies have also informed the proposed approach as regards enforcement contained in the Bill as published. One notable difference in the proposal however, is that the registration functions discharged by the CRO in respect of Part XIII investment companies will be undertaken by the Central Bank in this Bill. Part 1 (Sections 1-8) of the Bill deals with preliminary matters and contains definitions used throughout the Bill as well as the power of the Central Bank of Ireland to make provision for the implementation of the ICAV regime. The ICAV will be a corporate entity, with limited liability for investors, formed by two or more persons and with a registered office in the State. Part 2 (Sections 9-37) deals with formation, supervision and control of the ICAV. In particular, this part provides that an ICAV can only carry on business as an authorised collective investment scheme (either as an Undertaking for Collective Investment in Transferable Securities UCITS - or an Alternative Investment Fund AIF ). Amongst other things the Bill provides that ICAV AIFs (similar to UCITS) must have an independent depositary to safeguard the assets of the fund and that the Central Bank must pre-approve the choice of depositary by the ICAV. The Central Bank will also pre-approve the choice of an ICAV s management company (if any). The Central Bank will take the role that the Companies Registration Office plays in relation to the registration of Companies formed under the Companies Acts. Funds incorporated as ICAVs may operate sub-funds within their structures which have segregated liability. This is consistent with the existing fund structures. Part 3 (Sections 38 55) deals with the shares of the ICAV and reflects provisions already in place for funds which are incorporated under existing company law. As with a Part XIII of the Companies Act 1990 investment company, the ICAV will be able to take investments and redeem investments, resulting in a fluid capital structure. The remainder of the provisions in this part 7

8 concern the maintenance of the register of members and reflect the position set out in company law. Part 4 (Sections 56 82) concerns the appointment, removal and conduct of directors and to a large extent mirrors provisions in companies legislation. The provisions include a prohibition on undischarged bankrupts acting as directors of ICAVs without Court approval; a prohibition on the making of directors loans; and the cross application of the rules concerning the restriction and disqualification of directors from company law. Part 5 (Sections 83 86) concerns the meetings, including annual general and extraordinary general meetings of the ICAV. Of particular significance is the capacity of the board to dispense with the holding of an AGM. Members holding not less than 10% of the shares of the ICAV may, in any case, cause the convening of an AGM. Part 6 (Sections ) deal with the accounting, auditing and reporting requirements for the ICAV. The approach adopted here is not to replicate the more detailed accounting requirements contained in the Companies Act, but to reflect the applicable requirements in both the UCITS and AIFM Directives, with the necessity to comply with specified accounting standards and at a minimum to give certain specified information. The objective is to ensure that the annual reports and accounts of ICAVs will result in the equivalent information being made available as that by competitor investment fund entities in other jurisdictions. Part 7 (Sections ) concerns the conversion of an existing collective scheme incorporated as an investment company to an ICAV. Part 8 (Sections ) sets out provisions relating to the appointment of receiver, the winding up and the striking from and if appropriate the restoration to the register of an ICAV. In each case those rules which apply to an investment company shall cross apply to an ICAV with the necessary modifications. Part 9 (Sections ) contains miscellaneous provisions, including the penalties for offences under the Bill, provisions for the inward migration of foreign fund structures to become ICAVs (and vice versa) and the division of enforcement responsibilities between the Central Bank and the Office of Corporate Enforcement (ODCE). 8