Luxembourg Regulation

Transcription

1 Luxemburg Regulatin HEDGE FUNDS 2010 Hedge fund managers/advisrs Regulatin Authrizatin requirements and prcess A Luxemburg Management Cmpany is subject t prir authrizatin by the Regulatr, the Cmmissin de Surveillance du Secteur Financier (CSSF), and falls under the scpe f the law f 20 December 2002 n Undertakings fr Cllective Investment. If the management cmpany manages nn-ucits nly it wuld be subject t a s-called light regulatry regime under Chapter 14 f the law. Hwever if the management cmpany were t manage UCITS funds as part f its activities it wuld have t cmply with Chapter 13 f the law that cntains mre detailed prvisins and rules with regard t authrizatin, capital, perating cnditins, and delegatin. The cllective prtfli management functins f a management cmpany include investment management, administratin, and marketing. A chapter 13 management cmpany may be authrized t prvide additinal services such as discretinary prtfli management n a client-by-client basis and the prvisin f investment advice. Chapter 14 management cmpanies may nt engage in activities ther than the management f Undertakings fr Cllective Investment. Management cmpanies are permitted t delegate their activities t third parties subject t certain cnditins. A firm that wants t seek authrizatin as a management cmpany will have t submit a file t the CSSF describing the rganizatinal structure, infrmatin n the repute and prfessinal experience f the directrs, and the identity f the sharehlders. A management cmpany may nly start business when authrizatin has been granted. The investment managers and investment advisrs f Luxemburg hedge funds may be lcated in Luxemburg r abrad, and there is n requirement fr the asset management activity t be perfrmed in Luxemburg. The CSSF will 2010 KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

2 2 Luxemburg Regulatin pay special attentin t the relevant experience and reputatin f the investment manager befre authrizing the scheme. The law f 5 April 1993 n the financial sectr, as amended, prvides fr the authrizatin f a particular categry f financial sectr prfessinal (FSP) established under Luxemburg law, the Managers f nn-crdinated Undertakings fr Cllective Investment (UCIs). These are firms that wuld be engaged in the management f freign nn-ucits nly and culd therefre manage freign hedge funds. The activities f this FSP may include the prvisin f central administratin services t entities that they manage. Authrizatin wuld nly be granted t legal entities and is subject t an authrizatin applicatin prcedure. The applicant is required t demnstrate that it has sund administrative and accunting rganizatin and adequate internal cntrl prcedures, and that the management and sharehlders are f prfessinal standing and experience. Typical timescale t receive apprval An applicant shall be infrmed within six mnths f submitting a cmplete applicatin whether r nt authrizatin has been granted. Regulatry capital requirements The minimum regulatry capital fr management cmpanies f Luxemburg dmiciled nn-ucits is EUR 125,000 and fr a management cmpany f a freign nn-ucits is EUR 125,000. Significant restrictins n marketing t investrs A nn-ucits fund dmiciled utside Luxemburg must seek apprval by the CSSF t distribute t the public. The CSSF will nly apprve thse funds that are subject t sufficient prudential supervisin in their cuntry f dmicile. It must appint a banking r savings institutin (within the meaning f Luxemburg law n the supervisin f such institutins) t ensure that facilities are available in Luxemburg t make payments t unithlders and repurchase units. Hedge fund structures Regulatin Authrizatin requirements In Luxemburg, hedge funds may take the frm f nn-ucits retail funds (Part 2 f the law f 20 December 2002) r Specialized Investment Funds (SIF) 2010 KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

3 3 Luxemburg Regulatin dedicated t qualified investrs (Law f 13 February 2007). The Part 2 nn- UCITS funds require prir regulatry apprval by the Luxemburg Supervisry Authrity (CSSF) befre the fund may be launched. Hwever the SIF has the pssibility t seek regulatry apprval after the launch and must submit its applicatin t the CSSF fr apprval at the latest ne mnth after launch date. The prmter and the investment manager f the SIF are nt subject t CSSF apprval which may be imprtant in the hedge fund sectr fr smaller butique managers. Hwever, the SIF s Bard f Directrs, the depsitary, and the auditr are all subject t regulatry apprval by the CSSF. The Prmter f a Part 2 nn-ucits fund wuld have t be apprved by the CSSF. The CSSF will base their assessment n the financial standing, reputatin, and experience f the Prmter in the particular investment strategy. Lcatin f manager A Luxemburg Cmmn Fund (Fnds Cmmun de Placement (FCP)) which is similar t a U.K.unit trust has n legal persnality and must be managed by a Luxemburg management cmpany. A Luxemburg SICAV is an investment cmpany and will have the crprate frm f a public limited cmpany (sciété annyme (S.A.)). There is n requirement fr a hedge fund set up as a SICAV t appint a management cmpany. The Management Cmpany f an FCP and a SICAV may appint an investment manager that is lcated abrad. Luxemburg fund law des nt place any restrictin n the lcatin f the investment manager. Hwever, in the case f a Part 2 nn-ucits, the CSSF will ensure that the investment managers and investment advisers have experience in the fund investment strategy. Restrictins n types f investments, cncentratin levels, and the manner in which hedge funds can invest and/r strategies Funds under part 2 f the law f 20 December 2002 The Circular 02/80 (the Circular) issued n 5 December 2002 prvides the rules that generally apply t hedge funds set up under the 2002 law. Cmpliance with these rules will generally speed up the CSSF apprval prcess f the hedge fund. Hwever, certain dergatins frm the rules may be granted by the CSSF if apprpriately justified. The Circular prvides fr the pssibility fr hedge funds t undertake shrt sales, t brrw fr investment purpses and t make use f derivative financial instruments and sme ther techniques. It als sets diversificatin rules in relatin t these investments t ensure adequate risk spreading KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

4 4 Luxemburg Regulatin The mst imprtant limits applicable in relatin t sme f these investments and techniques can be summarized as fllws: Brrwings and leverage rules Funds may brrw permanently and fr investment purpses frm first class prfessinals wh are specialized in this type f transactin. The cnditins under which a fund may brrw are: Brrwings are limited t 200 percent f the net assets f the fund. Cnsequently, the value f the assets f the fund may nt exceed 300 percent f its net assets. Funds pursuing a strategy with a high level f crrelatin between lng psitins and shrt psitins are authrized t brrw up t 400 percent f their net assets. Cunterparty risk: the difference between the value f the assets transferred by the fund t a lender as security in the cntext f brrwing transactins and the debt f the fund wed t such lender may nt exceed 20 percent f the assets f the fund. The cunterparty risk resulting frm the sum f: the difference between the value f the assets transferred as security and the amunts due t the lender in the cntext f securities lending transactins; and the difference between the value f the assets transferred as security and the amunts brrwed referred t abve may nt in respect f a single lender, exceed 20 percent f the assets f the fund. Use f derivative financial instruments and ther techniques The use f exchange-traded/otc financial derivative instruments such as futures, ptins, swaps and frwards are permitted prviding certain cnditins are met. The circular aims t manage the expsure t derivative financial instruments in three different frms: Limit n leverage frm derivative instruments Margin depsits in relatin t derivative financial instruments may nt exceed 50 percent f the assets f the fund. The fund must have an adequate reserve f liquid assets which must represent an amunt at least equal t the margin depsits made by the fund. The fund may nt brrw t finance margin depsits KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

5 5 Luxemburg Regulatin The aggregate cmmitments resulting frm the financial derivative instruments entered int may nt at any time exceed the value f the assets f the fund. Limit n the underlying The fund may nt hld an pen psitin in a single cmmdity r a single categry f financial futures fr which the required margin/cmmitment represents 20 percent r mre f the assets The fund may nt enter int cntracts relating t cmmdities ther than cmmdity futures cntracts. The fund must ensure an adequate spread f investment risks by sufficient diversificatin. Limits n the cntracts r identical ptins The fund may nt hld an pen psitin in anyne single cntract fr which the required margin/cmmitment represents 5 percent r mre f its assets. Premiums paid t acquire ptins utstanding having identical characteristics may nt exceed 5 percent f the assets The methd fr calculating the expsure/cmmitment depends n the type f instruments: derivatives dealt n an rganized market: required margin ptins acquired: premium paid cmmitment n OTC derivatives (includes premium written under this categry): nn-realized lss Sale with right f repurchase transactins and reverse repurchase transactins. The fund may enter int sale with right f repurchase transactins (rep) and reverse repurchase transactins (reverse rep) prvided: The cunterparty is a first class prfessinal specialized in these types f transactins. During the duratin f a sale with right f repurchase agreement where the fund acts as purchaser, it may nt sell the securities f the cntract unless the fund has ther means f cverage at its dispsal KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

6 6 Luxemburg Regulatin Where the fund acts as seller in a repurchase transactin, must nt sell the securies under the rep r pledge them t a third party, r rep them a secnd time, in whatever frm. The fund must hld sufficient assets t pay the agreed upn repurchase price payable t the transferee. Specialized Investment Funds (SIF) The SIF shuld maintain the principle f risk spreading and there are n restrictins n the types f assets held. In terms f investment limits, the SIF shuld ensure a maximum issuer expsure f 30 percent. Rules regarding the publishing f the accunts and prspectuses Funds under part 2 f the law f 20 December 2002 Luxemburg hedge funds under Part 2 f the 2002 law are subject t the same legal and regulatry requirements than all the ther Luxemburg funds in relatin t the preparatin f a prspectus and the timing and cntent f annual and semi-annual financial statements. In additin, Circular 02/80 specifies the requirements fr the cntent f the prspectus f hedge funds. It must cntain a descriptin f the investment strategy f the fund cncerned as well as, a descriptin f the specific risks inherent t its investment plicy and must state that investing in the fund in questin entails a higher than average risk and is nly suitable fr investrs prepared t lse the ttal value f their investment. The prspectus must als disclse the fllwing specific items, if applicable: ptential lsses resulting frm shrt selling f transferable securities differ frm thse where the fund acquires such securities fr cash the leverage effect creates an pprtunity fr increased yield, and hence higher incme, but at the same time increases the vlatility f the fund's asset values and hence the risk f capital lss any brrwings invlve an interest cst which may exceed any incme r gains generated by the fund's assets the lw liquidity f the fund's assets means that the fund may nt be in a psitin t meet investrs' redemptin requests 2010 KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

7 7 Luxemburg Regulatin Specialized Investment Funds (SIF) The law requires that the SIF prepares an ffering dcument that must cntain the infrmatin necessary fr the investr t make an infrmed decisin n the investment prpsed. It must als infrm the investr n the risks inherent t this investment. In relatin t the publicatin f financial statements, the law nly requires the preparatin f annual financial statements that must be prduced within six mnths f the year end. Time-scale f establishment f a hedge fund Funds under part 2 f the law f 20 December 2002 The time t btain apprval fr the structure will mainly depend n its cmplexity. The cmpliance with all the investment plicies and limits as set in Circular 02/80 will ease the prcess cnsiderably. Plicies that depart frm the prescriptins f Circular 02/80 will raise mre questins and requests frm the CSSF and this will increase the time required fr registratin. Specialized Investment Funds (SIF) As specialized funds are dedicated t qualified investrs, the legislatr allws fr a pst launch regulatry apprval, a significant speed t market advantage. Investrs Regulatin Restrictins n which type f investrs can invest in a hedge fund and/r the minimum/maximum number f investrs in a hedge fund Funds under part 2 f the law f 20 December 2002 Fr thse funds, there are n restrictins n investrs r minimum investment amunt. Therefre, hedge funds created under Part 2 f the law f December 2002 can be distributed t retail investrs KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.

8 8 Luxemburg Regulatin Specialized Investment Funds (SIF) Specialized funds are restricted t the cncept f well-infrmed investrs. The law defines qualified investrs as institutinal investrs, prfessinal investrs r any ther investr prvided the latter cmply with the fllwing criteria: The investr cnfirms in writing that he/she adheres t the status f wellinfrmed investr; and A minimum investment f EUR 125,000; r He/She will hld a certificate frm a banking institutin r a prfessinal f the financial sectr in which they cnfirm his/her expertise, experience, and his/her knwledge and therefre its ability t decide knwledgeably f the investment made in the specialized fund. KPMG in Luxemburg Vincent Heymans KPMG S.à r.l. 9, allée Scheffer Luxemburg L-2520 Luxemburg Tel Fax [email protected] The infrmatin cntained herein is f a general nature and is nt intended t address the circumstances f any particular individual r entity. Althugh we endeavr t prvide accurate and timely infrmatin, there can be n guarantee that such infrmatin is accurate as f the date it is received r that it will cntinue t be accurate in the future. N ne shuld act upn such infrmatin withut apprpriate prfessinal advice after a thrugh examinatin f the particular situatin KPMG S.à r.l., a Luxemburg private limited cmpany, is an affiliate f KPMG Eurpe LLP and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative (KPMG Internatinal), a Swiss entity. All rights reserved.