AIFMD and UCITS V: A Comparison. MUFG Investor Services

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1 AIFMD and UCITS V: A Comparison MUFG Investor Services

2 About us Mitsubishi UFJ Financial Group (MUFG) is one of the world s leading financial groups. Headquartered in Tokyo and with over 350 years of history, MUFG is a global network with 1,100 offices and 140,000 employees in over 40 countries. The Group offers services including retail and commercial banking, investment banking, securities services, credit cards, consumer finance, asset management and leasing. MUFG is driven by the vision to be the world s most trusted financial group. This is backed by an unyielding focus on lasting relationships, as reflected in MUFG s consistent delivery of solutions that exceed the expectations of clients worldwide. As the fifth largest bank in the world with $2.5 trillion in assets, a common equity tier 1 ratio of 11.3% and a market capitalization of over $80 billion MUFG is truly a partner with exceptional financial strength. From fund administration and custody to FX, trustee, depository, securities lending, banking services and a broad range of regulatory solutions MUFG provides clients comprehensive solutions tailored to their specific needs from a partner they can trust. $2.5 trillion in assets 140,000 employees 40 countries A global partner you can trust 3 AIFMD and UCITS V: A Comparison

3 Table of Contents 4 What does AIFMD and UCITS V mean for fund managers? 4 How does AIFMD and UCITS V impact fund manager remuneration? 5 What are the regulatory sanctions for fund managers under AIFMD and UCITS V? 5 Going forward 6 MUFG Solutions 7 Contact MUFG 4 AIFMD and UCITS V: A Comparison

4 WHAT DOES AIFMD AND UCITS V MEAN FOR FUND MANAGERS? The introduction of the Alternative Investment Fund Managers Directive (AIFMD) on July 22, 2014 initiated a number of changes on the alternative investment management industry, which encapsulated any fund management house that did not adhere to UCITS. While a number of firms expressed concern about the costs and operational challenges the Directive imposed, most fund managers appear to have coped well. However, there is debate as to whether non-eu managers of non-eu funds will embrace AIFMD. There are strong hopes that conservative institutional investors within the EU most notably pension funds and insurers will increasingly invest in what they view to be more rigorously regulated alternative investment funds. This could serve as an impetus for non-eu managers to conform to the Directive. The UCITS V Directive was formally published in the EU s Official Journal on August 28, 2014, and came into force less than a month after. EU member states will be obligated to impose the new rules from March 18, UCITS V initiates a number of new changes on the fund management industry although these are by no means as extensive as to what was introduced through its predecessor UCITS IV. The implications of both Directives have been welldocumented, but it is important to note there are a number of convergences and arbitrages between the two in several areas, particularly around fund manager remuneration policies and the obligations surrounding depository banks. WHILE FUND MANAGERS ARE STILL GETTING TO GRIPS WITH THEIR AIFMD COMPLIANCE REQUIREMENTS, THERE IS ANECDOTAL EVIDENCE TO SUGGEST A SECOND ITERATION OF AIFMD COULD EMERGE. HOW DOES AIFMD AND UCITS V IMPACT FUND MANAGER REMUNERATION? There is significant overlap between the remuneration provisions contained within UCITS V and AIFMD. AIFMD requires AIFMs to ensure personnel whose roles may have a material impact on the firm s risk profile to defer between 40 per-cent and 60 per-cent of their variable remuneration over three to five years, and make sure a substantial portion of their pay package is paid out in shares or some other form of approved equity. The rationale behind this is a regulatory ambition to align fund managers interests with those of their firms and their end clients, while dis-incentivising excessive short-term risk-taking. Most AIFMs already have skin in the game and pay-outs are correlated to performance, so there was some resentment about having such requirements being imposed. Some regulators have adopted a proportional approach most notably the Malta Financial Services Authority and the Financial Conduct Authority (FCA) in the UK. The FCA for example said firms managing less than 1 billion leveraged or 5 billion unleveraged in Assets under Management (AuM) will not be impacted. While this is less than what some industry associations had requested, it was a welcome development from the regulators. Earlier drafts of UCITS V s remuneration provisions originally presented challenges for fund managers. The European Parliament had favoured a bonus cap on UCITS managers of one times their salary, but this did not garner the required political support. The latest remuneration proposals under UCITS V stipulate individuals pay must be paid in UCITS assets although firms where UCITS account for less than 50 per-cent of the overall portfolio are excused. Like AIFMD, between 40 per-cent and 60 per-cent of variable remuneration must be deferred for a minimum of three years, and must be contingent on solid performance. In addition, managers of AIFMs and UCITS alike will be required to disclose the remuneration they pay their senior personnel. Firms operating both UCITS and AIFs will therefore be required to identify areas where remuneration procedures need to be brought into line as well as finding out which individuals are ensnared. 5 AIFMD and UCITS V: A Comparison

5 Perhaps one of the biggest changes to affect fund managers under AIFMD is the obligation to appoint a depository bank to provide safekeeping of assets, cash-flow monitoring and oversight. Full scope AIFMs taking advantage of the pan-eu marketing passport are required to appoint a depository bank subject to strict liability for loss or misappropriation of assets under Article 21 of the Directive. For fund managers utilising the various national private placement regimes, Article 36 of the AIFMD permits them to appoint a depository-lite, which fulfils all of the necessary obligations of a full-scope depository but is not subject to strict liability for loss or misappropriation of assets. The European Securities and Markets Authority (ESMA) is currently reviewing the rules surrounding private placement. Were it to scrap private placement, AIFMs would be forced to appoint a full scope depository, rendering depository-lite obsolete. Using a depository bank has long been a requirement for UCITS although there are new obligations such as cash-flow monitoring that have been introduced through AIFMD. Broadly, the regimes governing depositaries under AIFMD and UCITS V are similar but there are some potentially significant divergences. It is also important to note that depository-lite is not permitted under UCITS. UCITS V and AIFMD have considerable overlap around depositaries delegated acts, although UCITS V given that it is aimed at retail investor protection goes further than AIFMD. Should a depository delegate custody to a third party, the depository must do its best to ensure that any UCITS assets are not accessible to creditors should the third party enter into a major credit event. It also requires the depository and management company to act independently of each other. Depository liability has long been a frustration associated with AIFMD, although this fear has largely subsided as depository banks have been able to discharge the liability or indemnify themselves against making right those losses, were they to arise due to an external power. UCITS V imposes similar standards on depository banks although it prohibits depositaries from contractually discharging liability to their sub-custodians. In other words, if a depository s sub-custodian such as an agent bank or central securities depository (CSD) was holding UCITS assets and were to enter into insolvency, the depository would have to make right those losses. However, as UCITS tend to be invested in more liquid assets and markets due to their investment restrictions (something which is not imposed on AIFs), the likelihood of this occurring is far lower with a UCITS than an AIF. WHAT ARE THE REGULATORY SANCTIONS FOR FUND MANAGERS UNDER AIFMD AND UCITS V? While AIFMD affords regulatory agencies powers to impose punishing fines and investigations on fund managers in breach of the rules, the specifics have not yet been laid out or formulated in immense detail. This is not the case with UCITS V, which imposes administrative sanctions with maximum penalties of 5 million (or 10 per-cent of annual turnover) for companies. Individuals found to be in breach of the rules can also be fined 5 million or be temporarily or permanently banned from managing money. GOING FORWARD UCITS VI is still in its embryonic stages although there are a few areas it is likely to touch on that could have a substantial impact on the European fund management industry. Perhaps the most significant involves the rules around the eligibility of assets permitted within a UCITS framework. There is speculation that some of the more esoteric products that have occasionally been shoehorned into UCITS could be banned as regulators seek to distinguish institutional AIFs from retail UCITS. Another possibility could see the introduction of a pan-eu depository passport whereby a fund manager can appoint a depository outside of the EU jurisdiction it is domiciled. Such a scenario could mean the rules governing depositaries under AIFMD and UCITS would have to be harmonised even further if a passport were to come into being. Any headway on UCITS VI, however, is unlikely to be forthcoming before 2017 at the earliest, although fund managers should start to consider its potential implications. While fund managers are still getting to grips with their AIFMD compliance requirements, there is anecdotal evidence to suggest a second iteration of AIFMD could emerge. Quite what an AIFMD II will look like is yet to be determined. MUFG SOLUTIONS MUFG provides full administration solutions for UCITS and AIFMD regulated funds including investment restrictions and limit monitoring. MUFG has a fully licensed UCITS and AIFMD-compliant Super ManCo based out of Luxembourg. This company may be appointed the AIFM to a fund, and then subdelegate the trading decisions to our clients existing management company. MUFG s Super ManCo is the second largest in Luxembourg by number of funds. MUFG can assist with Annex IV reporting to the applicable member state regulator or to the applicable local authority for those using private placement. MUFG provides a Depository function for UCITS and AIFs and Depository-lite function for AIFs. 6 AIFMD and UCITS V: A Comparison

6 FOR FURTHER INFORMATION PLEASE CONTACT: Blair Henderson Managing Director Global Head Business Development & Marketing +44 (0) ASIA Akira Iwamoto General Manager Akira_iwamoto@is.tr.mufg.jp AMERICAS Amy Francisco Director, Business Development afrancisco@mfsadmin.com Phil Niles Director, Business Development pniles@mfsadmin.com Scott Lederman Director, Business Development slederman@mfsadmin.com EMEA Thomas Erichsen Director, Business Development +44 (0) terichsen@mfsadmin.com This document is for general information purposes only and should not be used as a substitute for consultation with professional advisors. MUFG Investors Services is a service brand name. Please refer to the following for details on contracting entities. All entities listed are a wholly owned member of MUFG, a global financial group. Mitsubishi UFJ Global Custody S.A., , route d Arlon L-1150, Luxembourg, Grand Duchy of Luxembourg, T Mitsubishi UFJ Trust and Banking U.S.A., 420 Fifth Avenue, 6th Floor, New York, NY,10018, U.S.A, T MUFG Fund Services Limited, The Belvedere Building, 69 Pitts Bay Road, Pembroke HM 08, Bermuda, T MUFG Fund Services (Bermuda) Limited, The Belvedere Building, 69 Pitts Bay Road, Pembroke HM 08, Bermuda, T MUFG Fund Services (Cayman) Limited, Strathvale House, 2nd Floor, 90 North Church Street, George Town, P.O. Box 609, Grand Cayman KY1-1107, Cayman Islands, T MUFG Fund Services (Ireland) Limited, Ormonde House,12/13 Lower Leeson Street, Dublin 2, Ireland, T Mitsubishi UFJ Trust International Limited, 24 Lombard Street, London EC3V 9AJ, U.K., T AIFMD and UCITS V: A Comparison

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