© 2012 Dechert LLP

AIFMD Countdown:Breakfast Briefing No. 3

Gus BlackRichard FraseDeclan O’Sullivan

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Agenda Today

1. Implementation and delegation update

2. Marketing

3. Remuneration

© 2012 Dechert LLP

Implementation UpdateDelegation Update

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Implementation Update

A. Statutory Regulation implementing Level I Directive

B. Level II Implementing Regulations (directly effective)

C. Minor amendments to primary legislation

D. Central Bank Consultation

All by 1 January before EU Presidency

Implementation Update (cont’d)

A. Statutory Regulation implementing Level I Directive

B. Level II Implementing Regulations

Minor Amendments to Primary Legislation

• Unit Trust Act 1990

• Companies Act 1990, Part XIII

• Investment Limited Partnerships Act 1994

• Investment Funds, Companies and Miscellaneous Provisions Act 2005 (permitting CCFs)

Central Bank Consultation

• Draft AIF Handbook, 30 October 2012• Consolidated rulebook:

– “RIAIF” requirements “Or I AIF”– “QIAIF” enhancements “Q I AIF”– AIFM requirements– AIF Management Company requirements– Fund Administrator requirements – AIF Depositary requirements

• Finalised Handbook expected early 2013

Consultation Paper: Headlines

– Removal of the Promoter approval process

– Increased flexibility for RIAIFs (UCITS alternative)

– Reduced investment restrictions for QIAIFs

– ‘Fair treatment’ of unit-holders in different share classes

– Creation of side pockets for investment purposes– Removal of Irish prime brokerage rules, OTC counterparty

criteria and credit rating criteria

– Abolition of PIF regime

Coming Soon

• ICAVs

• ILP Legislation

Delegation Update

Article 85(d), draft Level II Regulations March 2012:

“AIFM shall be deemed a letter-box entity and shall no longer be considered to be the manager of the AIF... [if]

(d) the totality of the individually delegated tasks substantially exceeds the tasks remaining with the

AIFM.”

• Still being argued over

© 2012 Dechert LLP

Marketing AIFs to European Investors

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The Permutations

• EU AIFM marketing EU AIF

• EU AIFM marketing Non-EU AIF

• Non-EU AIFM marketing EU AIF

• Non-EU AIFM marketing Non-EU AIF

• Home state marketing

• Cross border marketing under passport

• Cross border marketing under private placement regime

• Unsolicited sales aka passive marketing aka reverse solicitation.

Timetable – Marketing

2011 2012 2013 2014 2015 2016 2017 2018

Directive in force (P)

EU AIF obtains passport

Non-EU AIF can obtain passport

No more private placements?

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1) EU AIFM markets EU AIF in AIFM’s home state (art 31)– AIFM notifies home state regulator (and AIF regulator if different).

– Home state regulator approves within 1 month.

– Any material change to particulars must be reapproved by regulator.

2) EU AIFM markets EU AIF under passport in other EU states (art 32)

– AIFM notifies home state regulator (and AIF regulator if different).

– Home state regulator notifies host state regulator within 1 month.

– Home state regulator notifies AIFM that it has done this.

– AIFM can market in host state from date of notification.

– Any material change must be reapproved by home state regulator.

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3) EU AIFM marketing non-EU AIF (art 36)– AIFM is based in EU and authorised under AIFMD

– Non-EU AIF must comply with AIFMD except for depository rules

– An “entity” must be appointed to monitor cash flows, safe-keep assets and ensure subscriptions and redemptions, and that calculation of units takes place in line with AIFMD requirements

– Non-EU AIF’s home state must have cooperation arrangements.

– Marketing is on a state by state basis and an individual state may impose additional restrictions

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4) Non-EU AIFM marketing EU and non EU AIFs (art 37)– Non-EU AIFM is authorised under AIFMD

– AIFs must be managed by the authorised Non-EU AIFM

– Non-EU AIFM must have an EU state of reference and a legal representative in that EU state (which must perform the compliance function)

– State of Reference is (in outline)• the same state as the home state of the EU AIF

• the state where most of the AIFM EU AIFs are established

• the state where the largest amount of assets are managed; or

• the state when the AIFM intends to develop effective marketing

– If the AIFM does not follow its marketing strategy, or changes it, then the state of reference may also be changed.

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5) Non-EU AIFM passporting EU AIF (art 39)

– If non-EU AIFM is authorised under AIFMD it may passport using the same notifications procedure as for EU AIFM subject to its home state meeting cooperation requirements.

6) Non-EU AIFM passporting non-EU AIF (art 40)

– If non-EU AIFM is authorised under AIFMD it may passport using the same notification procedure as for an EU AIFM subject to its home state meeting cooperation requirements.

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7) Non-EU AIFM marketing without a passport (art 42)

– Non-EU AIFM is not authorised under AIFMD

– States may on a state by state basis allow marketing in their territory only if:

• The non-EU AIFM complies with the AIFMD’s annual report, disclosure and reporting requirements and with requirements on control of non-listed companies

• Its home state meets the cooperation requirements

– States may impose stricter rules on a state by state basis.

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Permitted Categories of Investor

• States shall ensure marketing is only permitted to professional investors, subject to right of individual states to establish retail marketing regimes under article 43.

• Under article 43 EU states may allow AIFMs to market to retail investors in their territories and impose stricter requirements

• Requirements may not be stricter for EU AIFs established in another EU state than for domestic AIFs

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Marketing Summary (1)Entity EU Passport Individual Private Placement

Regimes

EU AIFM and EU AIF Comply with full Directive n/a

EU AIFM/non EU AIF Comply with full Directive, plus 3rd country conditions

Comply with full Directive excluding depositary rules

3rd country conditions.States may impose stricter rules.

Non-EU AIFM/EU AIFNon-EU AIFM/non-EU AIF

Comply with full Directive, plus 3rd country conditions plus state of reference

Chapter IV: Transparency requirements•Annual Report•Disclosure to Investors•Reporting Obligations to competent authorities

3rd country conditions.States may impose stricter rules.

Small EU AIF N/A Domestic regime only.

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Marketing summary (2)

Non-EU Funds or EU Funds with Non-EU AIFMs

Extension of passports to non-EU AIFMs and non-EU AIFs.

EU Funds with EU AIFMs

Dual marketing system – EU passport or private placement

Implementation date. Passports made available to EU AIFMs for EU Funds.

2010

2011

2012

2013

2014

2015

2016

2017

2018

ESMA to review the passport regime. Possible end of national private placement regime. Passport only ? Passport only ?

Dual marketing system – EU passport or private placement

Private placement only

© 2012 Dechert LLP

Remuneration issues

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Remuneration

• What is the regulatory agenda?

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Remuneration

• What is the current state of play?– Level 1 text– ESMA consultation– FSA consultation– Next steps

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Remuneration - scope

• Who is affected?– Portfolio management– Governing body members– Senior management– Control functions– Other highly paid staff– Other risk takers (who have a material impact on risk

profile)

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Remuneration – ten key questions

1. How will my comp structure have to change?

2. Will “proportionality” and “tailoring” help me?

3. Will I need a remuneration committee?

4. What are the disclosure requirements?

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Remuneration – ten key questions

4. Why are “malus” and “clawback” important?

5. How do I deal with multiple funds?

6. How do I mitigate the tax impact?

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Remuneration – ten key questions

8. How do I deal with risk takers who are also business owners?

9. Will there be a regulatory capital impact?

10. Can I avoid any/all of the above?

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QUESTIONS?

Your speakers today:

gus.black@dechert.comrichard.frase@dechert.comdeclan.osullivan@dechert.com