A Guide to the Dubai International Financial Centre s Fund Regime

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1 A Guide to the Dubai International Financial Centre s Fund Regime Over the last 10 years the Dubai International Financial Centre ( DIFC ) has reviewed and enhanced its Funds regime with the most recent enhancement being the introduction of the Qualified Investor Funds regime, which was launched in This guide is designed to provide you with an overview of the types of funds which can be established or managed in the DIFC, highlighting their key features and explaining the local terminology. In addition the guide will look at some of the considerations that should be taken into account when establishing a Fund, Fund Manager or Asset Manager within the DIFC. Contents The Fund Regime in the DIFC Key Terms in the DFSA Rulebook Types of Fund Manager Types of Funds: Domestic, External and Foreign Funds The Regulatory cost of setting up and carrying on Fund Management business in the DIFC DFSA application process for Domestic and External Fund Managers Application to establish a Fund DFSA requirements relating to specialist Domestic Funds Marketing of Funds Prospectus Requirements Foreign Funds and External Funds Arranging Custody UAE Investment Funds Regulations Exemptions

2 The Fund Regime in the DIFC This document is intended as a brief overview of the rules and a broad guide to the terminology used in the Dubai International Financial Centre ( DIFC ) regarding Collective Investment Schemes ( CIS or Funds ) as well as the types of Funds available and the marketing of such Funds. Persons wishing to do further research on the specific Laws and Regulations applicable in the DIFC in relation to CIS should review the Dubai Financial Services Authority ( DFSA ) website and especially the DFSA s Collective Investment Rules (CIR) and Islamic Finance Rules (IFR) or contact CCL who will be able to provide you with specific advice. Key Terms in DFSA Rulebook Fund Manager or Asset Manager Definition of Fund Manager A Fund Manager is the person who is legally accountable to the unitholders for the management of the Fund and who establishes, manages or otherwise operates or winds up the Fund. A person who performs this financial service in the DIFC must obtain from the DFSA the regulatory permission of Managing a Collective Investment Fund. Whilst this permission also includes the financial service of Managing assets, i.e. acting as the asset manager (see definition of Asset Manager below) it is common for a Fund Manager to delegate this asset management function to a third party. Definition of Asset Manager The term Asset Manager (alternatively referred to as Investment Manager ) is the person who manages the assets of a fund on a discretionary basis. A person who performs this financial service in the DIFC must obtain from the DFSA the regulatory permission of Managing assets. Note, however, that a person who performs the financial service of Managing assets is not, by virtue of this permission, a Fund Manager. Types of Fund Manager A Domestic Fund Manager A Domestic/DIFC Fund Manager is a Fund Manager which is incorporated in the DIFC and is licensed and regulated by the DFSA to provide the Financial Service of Managing a Collective Investment Fund. A Domestic Fund Manager can provide this Financial Service to either Domestic or Foreign Funds, as defined below. An External Fund Manager An External Fund Manager is a foreign Fund Manager which is permitted to establish and manage a Domestic Fund in the DIFC without having to establish a place of business in the DIFC. The External Fund Manager must be subject to regulation by a Financial Services Regulator in a Recognised Jurisdiction (as defined by DFSA) and subject itself to the DIFC laws and the jurisdiction of the DIFC courts. Additionally, the firm must appoint a Fund Administrator or Trustee in the DIFC to act as its agent in its dealings with the DFSA and with Unitholders. This agreement requires the agent to facilitate:

3 Issuance, resale and redemption of the Units of the Fund; Sending the reports to Unitholders of the Fund, including Net Asset Valuation; Access, in the DIFC, to the Constitution and most recent Prospectus of the Fund to Unitholders and Prospective Unitholders; Access, in the DIFC, to the Unitholder register; and Access, in the DIFC, to the books and records relating to the Fund. Types of Funds Domestic, External and Foreign Funds Domestic, Foreign and External Funds A Fund is either a Domestic Fund, External Fund or a Foreign Fund. A Domestic Fund is a Fund which is established or domiciled in the DIFC; A Foreign Fund is a Fund which is established or domiciled outside the DIFC; An External Fund is a Fund which is established or domiciled outside the DIFC but is managed by a Fund Manager which is within the DIFC. There are several types of Domestic Funds, including Public Funds, Exempt Funds, and Qualified Investor Funds ( QIF ) (see below for relevant definition of funds). The definitions of Domestic Fund, External Fund and Foreign Fund are particularly relevant when considering the Prospectus requirements relating to, and the marketing of, these Funds (see below). Designated and Non-Designated Foreign Funds This definition is important when marketing funds as generally only Designated Funds can be marketed in or from the DIFC, together with Non-Designated Foreign Funds that meet certain specific criteria. A Designated Foreign Fund is a regulated Fund in a Recognised Jurisdiction. The DFSA s list of Designated Foreign Funds and their jurisdictions can be found in the notices section of the DFSA website entitled Recognised Jurisdictions and Funds. A Non-Designated Foreign Fund is a fund which is not a Designated Fund. Such funds must therefore meet certain criteria set out by the DFSA if they are to be marketed in or from the DIFC. In summary the criteria for the marketing of a Non-Designated Foreign Fund are as follows: Either (a) both the custodian and the investment manager of the fund are regulated by a financial services regulator in a recognised jurisdiction or (b) the Fund is rated or graded as at least investment grade by an international rating agency acceptable to the DFSA,such as, for example, Moody s, Fitch or Standard & Poor s; or The offer is a recommendation-based offer which is based on an assessment of the suitability of the fund for the investor concerned; or If it were a Domestic Fund it would be an Exempt Fund or a Qualified Investor Fund ( QIF)

4 Definition of a Public Fund, Exempt Fund and Qualified Investor Fund Domestic Funds can be managed by either a DFSA-licensed Fund Manager or a Fund Manager domiciled in a jurisdiction outside the DIFC ( External Fund Manager ): Type of Fund Public Funds Exempt Funds QIF Level of regulation Detailed regulation in line with IOSCO standards Somewhat less stringent than for Public Funds Significantly less stringent than for Public Funds Investors and Offer Unitholders include Retail Clients; or Has, or intends to have, more than 100 Unitholders; or Some or all of its units are offered to investors by way of public offer. Only Professional Clients; 100 or fewer Unitholders; and Units are offered to persons only by way of a Private Placement. Only Professional Clients; 50 or fewer Unitholders; and Units are offered to persons only by way of a Private Placement. Minimum subscription N/A US $50,000 US $500,000 DFSA Application process time Varies 5 business days 2 business days Public Fund regime The Public Fund regime provides greater protection to larger numbers of investors (who may include retail investors if the Fund Manager s license contains a retail endorsement). Exempt Fund regime An Exempt Fund enjoys a fast-track notification process, where the DFSA aims to complete the process within a period of 5 days, with lesser regulatory requirements than for a Public Fund. QIF regime The Qualified Investor Fund (QIF) regime provides for a lighter touch regulatory approach and requires self-certification regarding the adequacy of systems and controls. QIFs enjoy a fast-track notification process where the DFSA aims to complete the process within a period of 2 days. A QIF may be established in The DIFC by a DFSA-authorised Fund Manager or a foreign Fund Manager. External Funds A Domestic Fund Manager who wishes to establish an External Fund must complete the relevant application form which acts as a formal notification to the DFSA. There are no specific restrictions relating to External Funds other than the need to comply with requirements in the home jurisdiction of the External Fund and for that jurisdiction to have satisfactory AML regulations.

5 The Regulatory cost of setting up and carrying on Fund Management business in the DIFC Some of the key regulatory costs which must be taken into account when setting up a Fund Management business in DIFC include the DFSA license fee for the Fund Manager and the Fund. Fees for a DFSA Licensed Fund Manager Fees (in USD) Fund Manager licensing application fee (except as an Umbrella Fund) 10,000 Fund Manager annual license fee (except as an Umbrella Fund) 10,000 External Fund Manager application fee 0 External Fund Manager annual fee 0 Fee for a Fund Public Funds (USD) Exempt Funds (USD) Qualified Investor Funds (USD) External Fund (USD) Application fee 1, Annual fee per Fund 4,000 4,000 4,000 0 Annual ongoing fee per Fund 4,000 4,000 4,000 0 DFSA application process for Domestic and External Fund Managers. Becoming authorised as a Domestic Fund Manager You will need to establish a DIFC entity and be authorised by the DFSA to provide the services of a Fund Manager in the DIFC. Please see our separate leaflet Setting up in the DIFC for further details relating to this process and how CCL can assist you in becoming authorised by the DFSA. If you are looking to establish only QIF s or Exempt Funds the process can be shortened and has a simplified application form which must be completed. For a QIF the application process should take 4-6 weeks and the application relies heavily on self-certification. Also, for an Exempt Fund Manager the application relies heavily on self-certification and reflects the level of regulatory risks involved although this application is likely to take a little longer to process. If you apply to DFSA to Manage a QIF or an Exempt Fund your license will be restricted to Managing only these types of funds and an upgrade will be required should you wish to manage a Public Fund. Application to become an External Fund Manager of a DIFC Domestic Fund An External Fund Manager will not be a DFSA-licensed firm and, as a result, the process for reviewing the application will be shorter than for a Domestic Fund Manager. A letter of good standing from the home state financial services regulator, a copy of the license, and the appointed Fund Administrator/ Trustee agreement should be provided with the relevant DFSA application form. Generally, an External Fund Manager must be regulated by a financial services regulator in a Recognised Jurisdiction. If your jurisdiction does not appear on this list of recognised jurisdictions you will be required to demonstrate to the DFSA that the jurisdiction in which you are based is an acceptable jurisdiction i.e. has equivalent regulatory standards

6 Application to establish a Fund The Application Process The DFSA will only accept a Fund application once the Fund Manager has been authorised (in the case of a Domestic Fund Manager) or approved (in the case of an External Fund Manager). The application process is different depending on which fund type you wish to establish. The detail required in each form reflects the level of regulatory risks involved. The Public Fund form is based on open-ended questioning requiring detailed narrative responses which describe the systems and controls the Fund Manager will maintain to mitigate the regulatory risks inherent in the type of fund concerned. Exempt Funds, QIFs and External Funds rely heavily on self-certification. DFSA requirements relating to specialist Domestic Funds Shari a Funds The Fund Manager of an Islamic Fund must have a license that authorises it to conduct Islamic Financial Business, must appoint a Sharia Supervisory Board to supervise its Islamic Financial Business and must establish and maintain an Islamic Financial Business policy and procedures manual with which to manage its compliance with Shari a. Islamic Funds can be Public Funds, Exempt Funds or QIF s. The Fund Manager of an Islamic Fund that is a Public Fund must: 1. Appoint a Shari a Supervisory Board (SSB) to the Fund. It may use the Firm s SSB for Shari a governance purposes of the Islamic Fund; 2. Establish and maintain Shari a compliant systems and controls and an Islamic Financial Business policy and procedures manual for the Fund; and 3. Ensure that the Constitution and Prospectus of the Fund are approved by the Fund s or Firm s SSB. A Fund Manager of an Exempt Fund or QIF is not required to appoint an SSB (although its Constitution and Prospectus must be approved by the SSB of the Fund Manager who has an obligation to ensure that it remains Shari a compliant). Hedge Funds The Fund Manager of a Hedge Fund is responsible for ensuring that any risks associated with the Fund are adequately managed by: Ensuring that there is adequate segregation of duties between the investment function and the Fund valuation process; Observing best practice standards and guidance issued by the DFSA, in particular the DFSA Hedge Fund Code of Practice (see below); and Observing the requirements that relate to the appointment of prime brokers with authority to combine the assets of the Fund with any other assets, which can only be done in respect of Exempt Funds and QIFs, and not Public Funds. Hedge Funds have traditionally been Exempt Funds but following the introduction of the new QIF regime it is likely we will see more of these type of funds opting to be QIFs.

7 The Hedge Fund Code of Practice ( the Code ) which sets out best practice standards for Fund Managers of Hedge Funds in the DIFC (i.e. Fund Managers of Public Funds, Exempt Funds or QIF s which are classified as Hedge Funds) addresses risks inherent in the operation of Hedge Funds and are set out under the following 9 Principles: Principle 1: Appropriate skills and resources to conduct the operations of the Fund; Principle 2: Robust and flexible investment process in line with the risk profile of the Fund; Principle 3: Systems and controls to mitigate trading related risks; Principle 4: Adequate back-office systems and controls; Principle 5: Appropriate measures to identify and manage portfolio risks; Principle 6: Adequate valuation policies and procedures; Principle 7: No arrangements where material benefits are given only to some investors; Principle 8: Adequate systems and controls to deal with market sensitive information; and Principle 9: No investment in underlying Hedge Funds without appropriate due diligence. Fund Managers and Asset Managers must comply with these principles as well as the usual COB rules. Private Equity Funds These are generally Exempt Funds although once again it is likely that the new QIF regime will also be attractive to this type of Fund. Some of the benefits of these structures include, for example: You do not require the Fund Property to be entrusted with an Eligible Custodian; instead for an Exempt Fund you must appoint an Investment Committee; and You must make certain disclosure in the Prospectus relating to how the Fund s assets are held. Property Funds All Property Funds (i.e. Funds investing predominantly in real estate or real estate-related assets) must be closed-ended Funds and can also be a Public Fund, Exempt Fund or a QIF. A Property Fund which is a Public Fund, in addition to being a closed-ended Fund, must: Invest only in Real Property or Property Related Assets, but may retain up to 40% of its investments in cash or certain specified Securities; Be an Investment Company or Investment Trust; Be listed, within 6 months of its establishment, either on an Authorised Market Institution or an Exchange in a Recognised Jurisdiction; Have the Fund property valued annually, and before acquiring or disposing any asset, do so on the basis of an independent valuation of the relevant property; and Limit its borrowings to 80% of its total net asset value

8 Property Funds Real Estate Investment Trusts (REITs) REITS are a sub-set of Property Funds, which are designed for income generation. A REIT must, in addition to being closed-ended: Be structured either as an Investment Company or Investment Trust; Be a Public Fund that is listed and traded on an Authorised Market Institution; Distribute 80% of its audited annual net income to Unitholders; Not borrow beyond 70% of net asset value; and Invest in property under development only up to 30% of its total assets. Feeder Funds and Fund of Funds In addition to the above specialist classes of Funds, the DFSA Funds regime also has specific provisions dealing with Feeder Funds and Fund of Funds. Marketing of Funds Prospectus Requirements All Funds marketed in and from the DIFC must be accompanied by a Prospectus (or an Information Memorandum in respect of Exempt Funds and QIF s or other disclosure document prepared in accordance with the laws relevant to a Foreign/External Fund) in English. Depending on the type of fund, the content of the Prospectus and the manner of distribution may vary. The detailed rules relating to the Marketing of Funds are set out in Part 7 of the Collective Investment Rules. Domestic Funds The requirements relating to the marketing of a Domestic Fund center around where the fund is established, i.e. the DIFC, and therefore are equally applicable to both a Domestic Fund Manager and an External Fund Manager. Other than the usual requirements to provide all material information in a manner which is clear, fair and not misleading, taking into account whether the recipient may be a Retail Client, the DFSA also set out other specific requirements, as detailed below. Public Funds The Prospectus (and any supplementary Prospectus) of a Public Fund must be filed with the DFSA prior to marketing the Fund. The Prospectus must include specific disclosures which are set out in detail in the Appendix to the CIRs as well as the following mandatory statement: This Prospectus relates to a DIFC Fund in accordance with the Collective Investment Law 2010 and Rules of the Dubai Financial Services Authority ( DFSA ). The DFSA has no responsibility for reviewing or verifying any Prospectus or other documents in connection with this Domestic Fund. Accordingly, the DFSA has not approved this Prospectus or any other associated documents nor taken any steps to verify the information set out in this Prospectus, and has no responsibility for it. The Units to which this Prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the Units offered should conduct their own due diligence on the Units. If you do not understand the contents of this document you should consult an authorised financial adviser. There are also some additional disclosures for certain types of specialist funds and listed funds.

9 Exempt Fund If the Fund is an Exempt Fund, the Prospectus must include, in addition to the statement referred to above, the following statement: This Information Memorandum is intended only for Professional Clients who can make a minimum subscription of US$50,000 and must not, therefore, be delivered to, or relied on by, a Retail Client or a Professional Client not able to make that minimum subscription. External/Foreign Fund The Prospectus for an External or Foreign Fund must contain in a prominent position, or have attached to it, a statement that clearly: (a) describes the jurisdiction in which the Fund is established and the legislation in that jurisdiction that applies to the Fund; (b) states the name of the relevant Financial Services Regulator in that jurisdiction; (c) describes the regulatory status accorded to the Fund by that Regulator; and (d) includes the following warning: This Prospectus relates to a Fund which is not subject to any form of regulation or approval by the Dubai Financial Services Authority ( DFSA ). The DFSA has no responsibility for reviewing or verifying any Prospectus or other documents in connection with this Fund. Accordingly, the DFSA has not approved this Prospectus or any other associated documents nor taken any steps to verify the information set out in this Prospectus, and has no responsibility for it. The Units to which this Prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers should conduct their own due diligence on the Units. If you do not understand the contents of this document you should consult an authorised financial adviser. ; and (e) if the Offer is not directed to Retail Clients, includes a prominent statement to that effect to be incorporated within the warning in (d). Foreign Funds and External Funds The DFSA rules set out the types of Funds which can be marketed in or from the DIFC. A Firm will ensure that it does not offer any Foreign Fund, including an External Fund, to any potential investor unless the Foreign Fund is a Designated Foreign Fund or is a Non Designated Foreign Fund which meets the specific criteria set out by the DFSA Collective Investment Rules (see above for relevant definitions). In the case of a transaction with or for a Retail Client, the units must also satisfy the requirements that govern the sale of such units to retail investors in the Fund s home jurisdiction. The Prospectus must also contain in a prominent position, or have attached to it, a statement that clearly: (a) describes the foreign jurisdiction and the legislation in that jurisdiction that applies to the Fund; (b) states the name of the relevant Financial Services Regulator in that jurisdiction; (c) describes the regulatory status accorded to the Fund by that Regulator; (d) includes the mandatory statement noted above

10 Arranging Custody A Fund Manager who arranges custody for a fund must comply with certain regulatory obligations, as described below. Before the Fund Manager arranges the provision of custody services for a Fund it will, if applicable, notify the Client in writing that the Client Investments may be held in a jurisdiction outside the DIFC and that the market practices, insolvency and legal regime applicable in that jurisdiction may differ from the regime applicable in the DIFC. The Fund Manager will carry out and record in writing an assessment of any Third Party Agent to ascertain whether that person is suitable to hold the Client Money or Client Investment concerned. The assessment should be revisited at least annually as part of the Compliance Monitoring Programme to ensure that the person remains suitable. The Fund Manager should consider the following in assessing the suitability of a Third Party Agent: (a) its credit rating; (b) its capital and financial resources in relation to the amount of Safe Custody Investments held; (c) the insolvency regime of the jurisdiction in which it is located; (d) its arrangements for holding the Investments; (e) its regulatory status, expertise, reputation and history; (f) its Group structure; (g) its use of agents and service providers; and (h) any other activities of the agent. Before passing Safe Custody Investment to a Third Party Agent the Third Party Agent must provide a written acknowledgement confirming the following: (a) that the title of the account sufficiently distinguishes that account from any account containing Investments belonging to the Fund Manager, and is in the form requested by the Fund Manager; (b) that the Client Investment will only be credited and withdrawn in accordance with the instructions of the Fund Manager; (c) that the Third Party Agent will hold Client Investments separately from assets belonging to the Third Party Agent; (d) the arrangements for recording and registering Client Investments, claiming and receiving dividends and other entitlements and interest and the giving and receiving of instructions; (e) that the Third Party Agent will deliver a statement to the Fund Manager (including the frequency of such statement), which details the Client Investments deposited to the account; (f) that all Investments standing to the credit of the account are held by the Fund Manager as agent and that the Third Party Agent is not entitled to combine the account with any other account or to exercise any charge, mortgage, lien, right of set-off or counterclaim against Investments in that account in respect of any sum owed to it on any other account of the Fund Manager; and (g) the extent of liability of the Third Party Agent in the event of default.

11 The Fund Manager must: (a) at least every 25 business days, reconcile its records of Client Accounts held with Third Party Agents with monthly statements received from those Third Party Agents; (b) at least every six months, count all Safe Custody Investments physically held by the custodian, as relevant, and reconcile the result of that count to the records of the Fund Manager; and (c) at least every six months, reconcile individual Client ledger balances with the Fund Manager s records of Safe Custody Investment balances held in Client Accounts held by Third Party Agents. The Fund Manager s auditors will also be required to prepare a Safe Custody Auditor s report for submission to the DFSA annually within 4 months of the Firm s financial year end. UAE Investment Funds Regulations In 2012 the UAE introduced regulations to govern the establishment and regulation of domestic funds in the UAE as well as the promotion and offering of foreign investment funds in the UAE. The main elements of these regulations relevant to DIFC firms is the ability to market DIFC Domestic Funds or Foreign Funds, as both types of Fund are considered to be a Foreign Investment Fund under the UAE Investment Funds Regulations ( the Regulations ) and as such are treated the same when marketing in the UAE. Unless an exemption applies, both Public Offerings and Private Offerings require pre-approval from the Emirates Securities & Commodities Authority ( SCA ) before they are permitted to be made in the UAE and the Regulations state that SCA may take up to 30 business days to issue its decision on whether the Public Offering or Private Offering may or may not proceed. In order for SCA to approve a Public Offering, the foreign investment fund must be licensed and supervised by an authority in its home jurisdiction that is the equivalent of SCA, and it must also be authorised to make a Public Offering in that jurisdiction. For an offering to qualify as a Private Offering various criteria must be fulfilled. These include the following: The offer must be made to identified investors. There must be minimum subscription amounts of: AED500,000 (approx. USD136,100) (in respect of foreign funds from outside of the UAE); or AED1,000,000 (approx. USD272,200) (in respect of foreign funds incorporated in foreign tax havens outside of the UAE). There are certain limited specific exemptions to these requirements. All offerings in the UAE of foreign investment funds must be made through a UAE company licensed or permitted by SCA to act as a promoter (the Promoter ). For Public Offerings and Private Offerings, generally the Promoter must be a bank or investment firm regulated by the Central Bank or licensed by SCA to make such offerings. In the case of Private Offerings where the minimum subscription is for AED10 million or more (approx. USD2,750,000) and the offer is limited to institutional investors, the offer may be promoted in the UAE through a representative office of the foreign company

12 Exemptions Subsequent to the publication of the Regulations, SCA set out certain exemptions from the above requirements. These exemptions relate to the type of investor the investment funds are being promoted to. The exemptions cover the following investors: Federal and local government entities, such as UAE sovereign wealth funds; and Companies, institutions and other entities whose primary activity is, or whose activities include, the investment of securities, providing that such companies, institutions or entities are acting on their own account. Private placements of foreign funds may still be offered to other types of institutional investors by foreign (and offshore UAE) managers via a locally registered promoter or the Fund Manager s UAE representative office or branch, provided that approval has been obtained from SCA and the minimum subscription amount is limited to AED 10 million per subscriber. SCA has also clarified the position regarding reverse enquiries by setting out a Reverse Enquiry Declaration (the Declaration ). The Declaration clarifies that the issue of units in a foreign fund as a result of enquiries initiated by a UAE based investor will fall outside the scope of the Regulation (as amended) and will therefore not require prior approval from the SCA, provided that it satisfies the conditions mentioned in the Declaration, that is: (a) the enquiry was initiated by the UAE based investor; and (b) the UAE investor has had previous communications or undertaken enquiries in relation to that fund with the Fund, its promoters or distributors outside of the UAE with the objective of investing in that fund. Note, however, that SCA expects this exemption to be used as an exception rather than the rule. Contact Us To speak to our Fund specialist, call Clare Curtis on or CCL Limited All rights reserved

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