The Cayman Islands Monetary Authority (CIMA) has now extended the four eyes principle to Private Funds. The four eyes principle can be satisfied by a minimum of two (2) Directors for Private Funds that are companies or two (2) natural persons named in respect of a General Partner or Corporate director of a Private Fund. It is not currently a requirement that these individuals be CIMA Registered Directors or independent of the Fund Sponsor.

In conjunction with the CIMA requirement, Private Fund Sponsors, Investment Managers and/or Operators have also been considering how their structures can be efficiently enhanced to include a layer of professional, independent governance and/or how they can leverage regulatory advisory services in order to comply with the new Cayman operating requirements.

More and more, we see the dual pressures of this increased regulatory complexity and scrutiny, particularly surrounding potential conflicts of interest, instigating this conversation.

*Need/Gap – Many Sponsors of private funds will be determining how to meet and demonstrate compliance with the various new compliance and operating requirements of the Private Funds and Mutual Funds laws.

Those experienced in similar, largely equivalent requirements under EU AIFMD depo functions are aware of the potential unforeseen challenges that will require specific enhancements to the fund level compliance framework.

The DMS Solution

The Cayman Islands Private Funds Law (“PFL”) and Rules on Calculation of Asset Values & Segregation of Assets create ongoing compliance obligations at the fund level which will be new to asset managers who have historically only dealt with regulatory compliance as an obligation for their own operations. Given that many closed end structures subject to the PFL such as PE funds are structured as limited partnerships where the manager itself is the GP, being clear on where the obligations reside can be more difficult.

Sections 16, 17, 18 & 19 of the PFL create ongoing compliance obligations with the force of law. Responsibility for compliance rests on the “operator”, which for limited partnerships is the GP.

Funds registered under the PFL are subject to oversight by the Cayman Islands Monetary Authority (“CIMA”). CIMA has been granted the power to impose administrative fines for PFL breaches under the Monetary Authority (Administrative Fines) (Amendment) Regulations, 2020. Failure by the operator/GP to ensure compliance with the PFL generally (and therefore Sections 16, 17, 18 & 19) is designated as “very serious” (page 142) and therefore subject to the maximum fine of approximately US$1.25 million as set out in the Monetary Authority Law.

Given that most of the above noted requirements offer options for compliance, DMS has created a Compliance Evaluation Tool (“CET”) to guide you through the process of assessing and maintaining compliance with these PFL requirements.

The CET will guide you through the possible options so you can make decisions that are most appropriate for your operations, document existing processes at the fund level, where possible provide template language and facilitate periodic reviews to ensure continuing compliance.
To find out more please contact your usual DMS representative or contact us below.

The post Private Funds Law: Governance & Regulatory Advisory appeared first on DMS Governance.

As a result of DMS Governance and Carey Olsen receiving an increasing number of enquiries from clients and friends regarding the Economic Substance Law, on what the latest requirements and guidance is, and what needs to be done by in-scope entities approaching the end of their first reporting period at the end of this year. We held a recent webinar where our panelists discussed what action funds, fund managers and other market participants need to take to ensure compliance.

The panelists also discussed the most popular frequently asked questions they are receiving:

Panelists

Niall O’Dowd
Director
DMS Governance

Vumi Dube
Director
DMS Governance

Michael Padarin
Partner
Carey Olsen

Daniel Moore
Senior Associate
Carey Olsen

The post Cayman Economic Substance: Latest Updates and Actions for Year-End appeared first on DMS Governance.

As the Aviation Financing Sector has come to terms with the scale and impact of the Coronavirus pandemic (Covid-19) on the industry there is a growing realisation of the need to restructure existing investment vehicles and to actively manage distressed assets.

EXPERIENCED SUPPORT

DMS has a team of dedicated professionals with direct aviation industry experience working with clients as they navigated through exceptional global events such as 9/11 and the 2008 financial crisis, as well as through company specific restructurings. This experience will ensure the optimum management of your assets at a practical level in order to safeguard your investment.

STRUCTURING, RESTRUCTURING & DISTRESSED ASSETS

DMS is able to guide our clients through structuring and restructuring fund and SPV transactions through its network of Financiers and Credit Institutions in order to meet investor and market demands.

DMS stands ready to assist clients looking to securitise or carve out pools of assets through SPVs. Our well-established Management Company means we can also introduce assets that traditionally sit in unregulated vehicles to the regulated world while maintaining the industry specific knowledge needed to manage such assets, notably aviation.

AVOIDING CONFLICTS OF INTEREST

For new clients looking to restructure where DMS has not been involved in an existing vehicle, our directors appointed to the newly-incorporated entity will give the transaction a deep review to ensure a clean bill of health with no legacy issues.

CONTRACT MANAGEMENT SOLUTIONS

DMS utilises Leasepoint, the world’s leading aircraft asset management software. With our dedicated team we can offer contract administration services to your Company that allow the close and precise management of your lease contracts and lessee compliance with their obligations.

Additionally, using our extensive industry network, we will ensure that the necessary technical inspections are undertaken and assist in arranging ferry flights, storage and aircraft modifications.

MULTI-JURISDICTIONAL FIRM

With a global presence, DMS can provide solutions for clients looking to domicile their transaction in Ireland, Luxembourg, the United Kingdom, Cayman Islands, United States of America, Hong Kong and Singapore. We also have partner firms in other jurisdictions with agreed competitive pricing.

OPERATIONAL CAPABILITIES

Using our dedicated Relationship Manager model, DMS can offer market-leading corporate services and administration solutions to its clients. With best-in-class systems and cloud based infrastructure underpinning our company secretary, accounting & bookkeeping and lease & loan administration services, our team work securely throughout our global network of offices and, critically, from offsite locations. We are able to deliver to our clients a consistent and reliable service.

For further details please get in touch with your usual DMS representative or contact us below:

MICHAEL SHERRY
ASSOCIATE
msherry@dmsgovernance.com
(p) +1.345.749.2584

BRITTA BORNEFF
HEAD OF SALES, LUXEMBOURG
britta.borneff@mdo-manco.com
(p) +352.26.00.21.462

The post DMS Structured Finance – Transaction Restructuring Management appeared first on DMS Governance.

In July of 2020, the DMS Group were pleased to announce the acquisition of Oligo Swiss Fund Services, a Swiss FINMA-accredited fund services company. Founded in 2014, Oligo is authorised and regulated to represent foreign funds distributed in Switzerland with a comprehensive service that includes fund representation, distribution services and arrangements with the paying agent bank. Oligo currently works with more than 500 funds managed globally from all domiciles.

The obligations that apply to each provider will depend on the type of product being offered and one should note that there is a transition period with different deadlines to allow all financial service providers to be fully compliant with the new rules and regulations.

Oligo provides clients with a comprehensive solution package to ensure full compliance with FinSA.
 
READ MORE ABOUT OUR COMPREHENSIVE FINSA SOLUTION

FUND REPRESENTATION IN SWITZERLAND

Oligo are able to provide the representation services for funds seeking both qualified and non-qualified investors. The Swiss Collective Investment Schemes Act (CISA 120) concerns foreign fund providers distributing in Switzerland to qualified and non-qualified investors. Those funds are required by law to appoint a Swiss representative and a paying agent and must ensure correct legal documentation is in place and that it remains up to date.

CAPITAL INTRODUCTION EVENTS

Oligo’s capital introduction events are held quarterly and are aimed at fund managers to meet with Swiss investors. These events are held in Geneva at a centrally located hotel.

PROVISION OF COMPLETE SWISS GOVERNANCE

In addition to the services above, Oligo’s legal partners are ready to assist you, should you require advice from a Swiss law office. With Oligo as your fully comprehensive Swiss provider, clients benefit from a first-class level of governance for all Swiss-related matters, a continuous regulatory overview, and a simplified process that reduces costs and time to market.

For more details and to find our how we can assist you with your FinSA solutions please contact your usual DMS representative or Luis and Matteo below:

Luis Pedro

Managing Director

Switzerland

lpedro@dmsgovernance.com

(P) +41.21.311.17.77

Matteo Risoldi

Executive Director

Switzerland

mrisoldi@dmsgovernance.com

(P) +41.21.311.1777

The post Fund Distribution And Compliance Solutions For Switzerland appeared first on DMS Governance.

The Cayman Islands has been removed from the EU’s list of non-cooperative jurisdictions for tax purposes, it was confirmed today. It was announced in February this year that the Cayman Islands had been added to this list.

The Cayman Islands Government has continued its engagement with EU officials on the ongoing measures to address their concerns and the Cayman Islands has now been removed from the list, having implemented enhancements to its regulatory framework. The Cayman Islands Government has welcomed this decision. These reforms comprised of comprehensive legislative changes made to strengthen its investment funds regulations, adding to the requirement of economic substance within the Cayman Islands for, inter alia, discretionary fund management.

If you have any questions, please contact your usual DMS representative or contact us below.

The post Removal Of The Cayman Islands From The EU List Of Non-cooperative Jurisdictions For Tax Purposes appeared first on DMS Governance.

No-one could have predicted the effect that Covid-19 would have on the financial markets, global economies and on the way that we work as individuals. 2020 has shown us just how adaptable and flexible we can be and at DMS we have seen fantastic examples of teams pulling together under these new circumstances, working remotely, to find solutions that allow us to continue to meet our clients’ needs with the high-quality service they have come to expect from us.

Anne Storie

Chief Executive Officer, Americas

Cayman Islands

astorie@dmsgovernance.com

(P) +1.345.749.2584

(C) +1.345.526.2381

The post DMS Fund Governance Review: Quarter 2 appeared first on DMS Governance.

On 30 September, 2020 The Financial Conduct Authority (“FCA”) in the UK reopened the window for the Temporary Permissions Regime (“TPR”), allowing EEA-domiciled UCITS and AIFs (the “Funds”) to continue operating in the UK when the UCITS and AIFM passporting regimes come to an end at the close of the transition period on 31 December, 2020.

All Funds duly registered with the FCA that wish to apply for the TPR must be included in the notification. This notification must be carried out for all the Funds at the same time and, once the notification has been submitted, no changes will be permitted by the FCA.

If you intend to market new Funds in the UK, you should ensure that you allow enough time for the notifications to be received and processed by the CSSF and the FCA.

New Funds must also be duly registered with the FCA no later than 14 December 2020 if they are to be included in the notification.

Vanora Madigan

DIRECTOR

Ireland

vmadigan@dmsgovernance.com

(P) +353.1.619.2332

(C) +353.86.130 4056

The post The FCA Re-Opens The Temporary Permissions Regime (TPR) Application appeared first on DMS Governance.

Authored by Elaine Chow, Director and Paco Yik, Senior Associate.

The Limited Partnership Fund Law came into operation on 31 August, 2020. This new regulation establishes a new limited partnership fund regime (“LPF”) that enables private funds to be registered in the form of limited partnerships in Hong Kong.

Prior to the introduction of the LPF regime, most managers in the region seeking to set up close-ended private funds would traditionally have chosen the Cayman Islands exempted limited partnership (“ELP”) which was widely adopted by private fund managers and investors alike. The LPF regime now provides private fund managers with the added option of bringing their fund vehicles and operations onshore. We have set out below some key comparisons between the Hong Kong LPF and the Cayman ELP.

HOW CAN DMS HELP?

DMS can provide the following LPF services:

Professional Independent Director Service – DMS has broad, deep, and diverse local talent options that provide the most effective governance solution, representing funds and protecting the interests of the investors and other stakeholders.

Board Support Service – DMS manages all administration, including coordinating the reporting and attendance of all services providers, preparing comprehensive board packs and meeting minutes.

Tax Compliance Service (CRS & FATCA) – DMS provides customized solutions to all investment funds, family offices and financial institutions that help Reporting Financial Institutions (RFI) to effectively meet their CRS & FATCA obligations in all respective jurisdictions.

For over 20 years, DMS has delivered high-quality, professional services to a diverse range of leading global institutions and emerging managers. DMS provides investment funds with high-quality fund governance and extensive compliance services. With its in-depth knowledge and extensive experience in private funds, DMS is delighted to be able to advise and assist you with any queries you may have relating to both Cayman ELP and Hong Kong LPF.

For more information, please reach out to your usual DMS representative or contact us below.

This document is for general information purpose only and does not constitute legal advice.

Elaine Chow
Hong Kong
echow@dmsgovernance.com
(P) +852.3758.1108

Paco Yik
Hong Kong
pyik@dmsgovernance.com
(P) +852.3758.1111

Niaz Khan
Hong Kong
nkhan@dmsgovernance.com
(P) +852.3758.1101

The post Launch of The Limited Partnership Fund Regime in Hong Kong appeared first on DMS Governance.

DMS Governance were delighted to have featured in Tipperary – The Place, The Time, where we were able to share the many reasons why Cashel, Ireland is a fantastic location for our growing team, home to our Center of Excellence.

The post DMS Governance Featured in Tipperary appeared first on DMS Governance.

This week, the Central Bank of Ireland issued its letter which laid out its findings, now that the fund management companies (FMCs) thematic review has been finalized. This letter provides further guidance following various deficiencies that were highlighted during the 18 month review period. Conor MacGuinness, Global Head of Onboarding and Relationship Management at DMS, shares our firm’s views on the findings of this letter.

Conor MacGuinness

Global Head of Onboarding and Relationship Management

Ireland

cmacguinness@dmsgovernance.com

(P) +353.1.619.2312

(C) +353.86.783.4916

The post CBI issues statement on CP86: The DMS Take appeared first on DMS Governance.

Over the coming weeks, DMS will bring you its unique perspective on the challenges and opportunities presented to them as the European regulatory landscape shifts. The DMS Client Solutions Team tell you how they see it, on the ground, using their expertise and technical knowledge to assist clients in structuring their products with appropriate governance and compliance frameworks in place.

This four part series begins with “Why Cross-Border Fund Domiciles are Transforming into Fund Management Hubs”, as Daniel Forbes explores the post-Brexit regulatory landscape as large countries and small countries jockey for position to fill the void left by an increasingly isolated London.

Global Context

Cross border Fund Management is continuing to increase in complexity.

When I moved from legal practice to the DMS Client Solutions team in 2016, the main reason was the growing presence of the institutional Third Party Management Company as a key service provider within the European regulatory landscape.

At that time the AIFMD was still being digested by industry, with MiFID 2 on the way. These, amongst other, European regulatory initiatives sent a clear message to the Fund Management industry: Go Big or Go Home!

The impact of European-led initiatives is not limited to the European market. Common drivers are impacting on structuring requirements in all key fund domiciling jurisdictions, including Cayman, Ireland, Luxembourg and numerous British Overseas Territories, such as:

• the increased focus of the OECD BEPs project on Fund Management activities mandating substantive Fund Management activities to be conducted in the same location where profit is derived with the overall aim of combatting tax avoidance;
• the FATF global focus on AML, mandating increased local oversight of AML/KYC functions in the jurisdiction of the Fund;
• Common Reporting Standards as the global response to US FATCA, with the aim of combatting cross-jurisdictional tax evasion; and
• Form PF / Annex IV / MiFID 2 / Solvency 2 providing greater access to information for regulators and investors.

In conjunction with these supranational initiatives, Brexit is having a profound impact on the Fund Management industry, even before the UK formally withdraws from the EU on 1st Jan 2021.

With the FCA no longer having a significant sway on the direction of European Fund Management regulation the path is clear for the European Securities and Markets Association (“ESMA”) to promote a more Franco-German agenda. As part of this new direction we have seen increased pressure on British Overseas Territories such as Cayman / Bermuda / BVI / Isle of Man / Jersey / Guernsey which make up the bulk of the “offshore” alternative investment domiciling jurisdictions. The ESMA agenda is being felt far beyond the EU.

As an example of this shifting global landscape, the Cayman Islands was plunged into uncertainty when put on the EU list of non-cooperative tax jurisdictions (the “EU blacklist”) on 17th February 2020.

Cayman managed to successfully get off the list on 6th October 2020 after adopting reforms relating to its substantial private funds industry. These reforms were mandated by a combination of the EU and the OECD, manifesting in new registration and ongoing compliance obligations for over 12,000 Cayman domiciled Private funds via the “Private Funds Law, 2020” (“PFL”). This PFL initiative was an offshoot of the comprehensive economic substance legislation implemented on 1st January 2019, under which in-scope entities that carry on income generating activities (e.g. Fund Management) are required to demonstrate economic substance in Cayman.

The swift reaction of the Cayman industry to implement the PFL and register Private Funds within an EU-mandated six month window shows that the message from ESMA & the OECD was heard loud and clear: If you are a small country that relies on access to investors and financial market infrastructure based in larger countries, then non-compliance is not an option!

How does it impact Ireland & Luxembourg?

The ongoing political wrangling over the future direction of the EU is having a dramatic impact on the Fund Management landscape. When we speak to non-EU based industry participants the assumption appears to be that the pressure being applied on the British Overseas Territories is designed to push investment managers towards the established European cross-border fund domiciles of Ireland and Luxembourg. This assumption is incorrect.

Prior to the Brexit vote London was the unrivalled powerhouse of the European finance industry. With its convenient time zone, use of English and tradition of light regulations, the UK evolved as the world’s leading net exporter of financial services. It became the global hub for the full range of market participants, and the key launch pad into EMEA for Fund Management activities for non-EU managers with global ambitions. Although the UK, France & Germany were never entirely comfortable bedfellows, the benefits of the common market for the City of London far outweighed the perceived inconvenience of overreaching EU Regulation.

This relationship fundamentally changed on 23rd June 2016 when the UK veered off course from its position at the heart of the EU finance industry to becoming an outsider with “Third Country” status. As soon as the Brexit vote was passed the scramble to be the “new London” began in earnest. All of the main suitors to attract lucrative jobs and assets away from London – Paris, Frankfurt, Vienna, Amsterdam, Dublin, Luxembourg – had a good story to tell, but none of them could truly rival pre-Brexit London.

Yes, Ireland and Luxembourg have benefitted from the dripping exodus from London of Fund Management groups that require regulatory connectivity to the European market (i.e. passporting rights), but ESMA has not exactly encouraged this concentration of management functions in “smaller” countries. The battle for post-Brexit market share is being waged behind the scenes through pressure from ESMA on interpretation of existing regulation, with a particular focus on the thorny issue of “substance”

At the heart of the “substance” issue is so-called delegation, which allows an asset manager to set up a fund in one country, such as Ireland or Luxembourg, and carry out portfolio management in another location, such as the UK or the US. An estimated £1.7tn of European investor assets are managed from the UK.

What do Investment Managers need to know & do?

It is well established that Ireland and Luxembourg are long standing rivals to attract international groups to domicile funds in their respective jurisdictions for cross-border sale into the EU. Although both France and Germany have substantial domestic fund industries this is because the larger countries have more domestic managers that raise capital from their large pools of domestic investors via local funds.

If the aim is to raise capital cross-border then the established industry preference is to set up funds via a jurisdiction such as Ireland or Luxembourg that is specifically designed to accommodate international groups selling to multiple jurisdictions. There has been a 30 year industry arms race to carve this niche, and these two peripheral EU countries have been extremely successful at maximizing their access to the Common Market.

However, the success as a fund domicile jurisdiction has largely been predicated in the UK being the EU hub for cross border Fund Management. The combination of London (international hub for investment management) and Ireland/Luxembourg (international hubs for fund domiciling) was a very successful marriage of convenience.

Not only did this trifecta collaborate well on an industry level, but also on a regulatory level. With the FCA at the heart of this “pro-industry” bloc, Ireland and Luxembourg had the luxury of allowing their more powerful neighbour to interpret European Fund Regulation in a user-friendly manner. This was seen most notably upon implementation of the more controversial aspects of the AIFMD where the FCA released interpretive guidance which was largely followed by other like-minded jurisdictions.

The post-Brexit shakeup has presented opportunity and challenges for all global fund domiciling jurisdictions, with Ireland and Luxembourg closest to the epicentre. The key question is: How can a “Fund Domicile” transform itself into a “Substantive Fund Management Hub” in the course of 4 years?

Brexit means the UK is no longer the logical choice for a cross border European Fund Management Company. Compounding this challenge are the regulatory & taxation pressures on Fund Management functions being conducted within the same location as the Funds (or SPVs), and the increased demands of institutional investors for bespoke products across multiple jurisdictions. This perfect storm means that institutional Investment Managers are increasingly driven to outsource AIFM services to large specialty groups, in the same way as they have done for Administration, Depositary, Prime Broker, and other key service providers.

As we will explore in following articles in this series, the cost of compliance with ever-increasing substance requirements is prohibitive for most groups to launch their own proprietary Fund Management Company, thereby making the scalable, multi-jurisdictional Third Party ManCo the logical partner to navigate these uncertain waters.

This series continues with “Irish Fund Management Companies – time to take stock of Substance & Oversight” as Padraic Durkan explores the complexities of CP86 and explains how DMS broke with convention on what substance really means in oversight of Irish funds.

The post Why Cross-Border Fund Domiciles are Transforming into Fund Management Hubs appeared first on DMS Governance.

This DMS Advisory reminds investment funds stakeholders of impending deadlines to be met, if they are contemplating formally closing a fund or a redundant vehicle via a voluntary liquidation or strike off. Now is the time to act to ensure that 2021 fees are not unnecessarily incurred.

HOW MUCH CAN BE SAVED?

Non-CIMA Registered Funds
In order to avoid 2021 annual Cayman Islands’ Registrar of Companies fees, a Voluntary Liquidator would need to have held the Fund’s final general meeting (FGM) before 31 January 2021. For a Limited Partnership, the final dissolution notice must be filed by this date.

CIMA Registered Funds
If the fund makes filings to be placed into ‘License Under Liquidation’ by 31 December 2020, the 2021 annual CIMA license fee should be avoided. For a Master – Feeder structure this saving would be in the region of US$7,000.

Funds which have not commenced the de-registration process by filing the requisite documents and paying a deregistration fee prior to 31 December 2020 would therefore be due to pay the full 2021 annual CIMA fee.

Funds which are confirmed by CIMA as being in ‘Licence Under Termination’ (having commenced but not yet filed all of the deregistration documents with CIMA such as completion of the final stub period audit) will be required to pay half fees for 2021.

What are the CIMA audit requirements for a CIMA registered fund?
CIMA will no longer automatically grant audit waivers for a final stub period audit. Upon the payment of a fee of US$610, audit waivers may be considered in the following circumstances:

• a fund has not launched but does not wish to be de-registered;
• a fund has not launched and is being liquidated or wishes to be de-registered;
• a fund has launched but has been unsuccessful in raising sufficient capital for sustainability;
• a fund is unable to obtain audited accounts due to events such as bankruptcy proceedings, legal or regulatory enforcement actions;
• a fund has been placed in compulsory liquidation and the Authority is satisfied with the appointment of the liquidator and the scope of the liquidator’s review;
• a fund is being voluntarily liquidated and a third party liquidator has been appointed under terms that require a review of the period since the last financial year end for which an audit has been filed;
• a fund is transferring to another jurisdiction within six (6) months of its last financial year end for which an audit has been filed, or is due to be filed;
• a fund is dissolving by way of a merger within six (6) months of its financial year end for which an audit has been filed, or is due to be filed; or
• all investors in a fund have agreed to forego the audit for a part of a financial year (of more than six (6) months) and no more than ten (10) investors existed at any time during the part-period.

CIMA will require submission of the audited financial statements from the date of the last financial year (for which audited statements have been filed) either to the date the fund ceased to carry on business in or from the Islands or to the date of commencement of winding up where a third party liquidator(s) have been appointed. If no third party liquidator(s) have been appointed, the audit must cover to the date of final distribution or to the date that the final NAV was calculated, with subsequent events notes to confirm that the final distribution has been paid to investors.

Administrative Fines
CIMA registered funds should be mindful of the updated breach categories pursuant to the Monetary Authority (Administrative Fines) (Amendment) Regulations, 2020. The Rule on the Cancellation of a Licence or Certificate of Registration of Regulated Mutual Funds requires funds to apply for de-registration within 21 days from the date the fund ceases to carry on business or before 31 December of the year the fund ceases to carry on business. Failure to do so is now categorized as a minor breach under the amended regulations, resulting in potential fines between US$6,000 to US$25,000 depending on how quickly the breach is remedied.

When should I start planning?
Where a voluntary liquidation is non-contentious, does not have to de-register with CIMA, and all investors have been substantially redeemed in accordance with the statutory process in the Cayman Islands, it is possible to complete a straightforward Voluntary Liquidation process in approximately 60-90 days. Act now and this can be achieved before 31 December 2020.

More complex voluntary liquidations will undoubtedly take longer. However, DMS is able to tailor proposals and take a commercial approach to best serve your needs.

What services does DMS offer?
Our liquidations team is comprised of experienced professionals who are fully supported by our in-house fund governance specialists.

• Voluntary Liquidation – We act as an Independent Voluntary Liquidator and prepare all statutory documentation as part of our process and do not charge hourly fees. No further legal input is required.
• CIMA de-registration – When a fund ceases to operate it may start the CIMA de-registration process. The first step is to remove the fund from “Active Status”. This process is referred to as ‘License under Termination’ (LUT). DMS Corporate Services is well placed to assist you in understanding, applying for this process and taking it to conclusion.
• Strike off – A strike off is more cost effective and can be quickly completed, however the Fund/Company could be resurrected for a period of ten years after the strike off date. This option is therefore not suitable for entities which have traded or taken on investors.
• SIBL Excluded Persons deregistration. Where a registered Securities Investment Business Law (SIBL) Excluded Person has now ceased carrying on securities investment business or is no longer in scope DMS can assist with the deregistration process.
• Distressed Funds Services. DMS is well placed to assist you with key issues such as illiquid assets, structured wind downs and investor distributions.

*in order for the Voluntary Liquidation to be concluded by 31 January 2021 to avoid 2021 Registrar of Companies fees.
These dates represent FINAL deadlines. DMS recommends that you act by 15th November 2020 in order to allow sufficient time to complete the Voluntary Liquidation process.

For a preliminary, complimentary consultation to help you understand the voluntary liquidation processes and time considerations, please contact us below:

The post Fund Dissolution – Advance Preparation To Minimize Or Avoid 2021 Fees appeared first on DMS Governance.

The implications of COVID-19 have certainly made an impact on traditional operational due diligence in the hedge fund industry, and these changing trends are even more prominent now as we approach the last stages of the U.S. presidential race. Our panelists, made up of industry professionals, discussed what types of investor enquiries are currently being seen as well as providing more background regarding the changing trends to investor allocations, in the time of COVID-19.

THE PANELISTS

Anne Storie
Chief Executive Officer, Americas
DMS Governance | BIO >

Debra Franzese
Partner
Seward & Kissel LLP | BIO >

Terence Brady
Director of Operational Due Diligence
Corbin Capital | BIO >

David A. Goldstein
Director
EisnerAmper LLP | BIO >

The post Changing Trends In Operational Due Diligence: How Are Allocators Reacting appeared first on DMS Governance.

The Cayman Islands Department for International Tax Cooperation (DITC) recently advised the industry that the DITC Portal will open in early November 2020. As a first step, the DITC Portal will be available only for CRS and FATCA purposes and in its Phase II, it will provide functionality for Economic Substance and Country-by-Country reporting, with the date for this yet to be confirmed.

Please note the reporting deadlines have been extended for CRS & FATCA filings:

ARE YOU PREPARED FOR THE NEW CRS COMPLIANCE FORM?

On 15 April, the DITC released a new CRS Compliance Form as part of the overall compliance with the Common Reporting Standard (“CRS”). This CRS Compliance Form is an integral part of the assessment by the Global Forum’s AEOI Peer Reviews that are currently conducted and will result in a rating of CRS implementation effectiveness, to be published in 2021. Data collection, analysis and assessment and compliance functions will be an important factor in the Global Forum’s AEOI Peer Reviews. The implementation of the CRS Compliance Form should ensure that these factors are addressed, in order that the Cayman Islands can demonstrate the effective implementation of CRS.

The CRS Compliance Form requires Cayman Islands Reporting Financial Institutions to collect additional information for the following sections and submit the form via the DITC Portal.

• Financial Institution Data Profile.
• Financial Account Data, including information and classification of type of Non-Reportable Accounts.
• AML/KYC and Accounting (where applicable).
• CRS Due Diligence Process.

The deadline for the submission of this form is expected to be 15 September each year. In order to provide sufficient time to collect the additional information and complete the form, the deadline for the 2019 reporting period will be 31 March 2020. The DITC will apply automatic penalties where this deadline is not met.

The DMS ITC team would welcome the opportunity to further discuss its fully customizable ITC solutions which includes the completion of the new CRS Compliance Form.

Please reach out to your usual DMS representative or contact us below:

Roman Ipfling

Managing Director

Luxembourg

ripfling@dmsgovernance.com

(P) +1.345.749.2426

(C) +352.691.12.5828

The post Cayman Islands Department for International Tax Cooperation: DITC Portal To Reopen appeared first on DMS Governance.

Supervisors, managers and senior management (including Directors) of Financial Service Providers (“FSPs”) (including Funds and SIBL-Registered Persons) operating in the Cayman Islands are required to understand Anti-Money Laundering and Countering the Financing of Terrorism (“AML/CFT”) and obtain Cayman Islands specific training regularly.

What the law says:

Part II, Section 5 (d) of the Anti-Money Laundering Regulations (2020 Revision) (“AMLR”) states that:
“a person carrying out relevant financial business shall not, in the course of the relevant financial business carried out by the person in or from the Islands, form a business relationship, or carry out a one-off transaction, with or for another person unless that person provides employees from time to time with training in the recognition and treatment of transactions carried out by, or on behalf of, any person who is, or appears to be, engaged in money laundering, terrorist financing or proliferation financing, or whose assets are subject to targeted financial sanctions applicable in the Islands”

The Guidance Notes expand the law:

The Guidance Notes on the Prevention and Detection of Money Laundering, Terrorist Financing and Proliferation Financing in the Cayman Islands (2020 Revision) (“GNs”) add clarity to the above requirements of the AMLR.

Part II, Section 10. E. of the GNs provides that:
“Although Directors and Senior Managers may not be involved in the day‐to-day procedures for handling transactions that may relate to ML/TF, it is important that they understand the statutory duties placed upon them, their staff and the firm itself given that these individuals are involved in approving AML/CFT policies and procedures.

Supervisors, managers and senior management (including Board of Directors) should receive a higher level of training covering all aspects of AML/CFT procedures, including the offences and penalties arising from the relevant primary legislation for non‐reporting or for assisting money launderers, the procedures relating to dealing with production and restraint orders and the requirements for verification of identity and retention of records.”

THE DMS SOLUTION

At DMS we have developed an online, self-administered AML/CFT compliance training specifically designed for FSPs conducting relevant financial business within the Cayman Islands. This online compliance training has been developed by highly qualified and experienced DMS AML compliance specialists and provides a comprehensive overview of regulatory requirements in an easy to follow format and covers the following areas:

• Anti-Money Laundering;
• Combating of Terrorist Financing;
• Proliferation Financing;
• Customer Due Diligence and Know Your Customer Requirements; and
• Customer and Transaction Screening

This training will take approximately 40 minutes to complete.

Should you have any questions regarding the training please reach out to your usual DMS contact or contact us below:

Fortune Muhlanga

Associate Director, Cayman Compliance Services

Cayman Islands

fmuhlanga@dmsgovernance.com

(P) +1.345.749.2525

The post Who Is Required To Undertake Cayman AML Training? appeared first on DMS Governance.

The Swiss Financial Services Act (FinSA) came into force on 1 January, 2020 and as a result, it changed the regulatory requirements concerned with offering investment funds to Swiss investors. The expanded requirements now include the following:

The obligations that apply to each provider will depend on the type of product being offered and one should note that there is a transition period with different deadlines to allow all financial service providers to be fully compliant with the new rules and regulations.

Oligo provides clients with a comprehensive solution package to ensure full compliance with FinSA.
 
READ MORE ABOUT OUR COMPREHENSIVE FINSA SOLUTION

FINSA WORKSHOP WEBINAR

Please join us for our FinSA workshop hosted by Matteo Risoldi, who will take you through the various steps of FinSA compliance together with answering some of the most commonly raised questions currently being seen from our clients and friends.

WHEN: 17 November 2020
TIME: 10am Eastern/3pm London/4pm Swiss

For more details and to find out how we can assist you with your FinSA solutions please contact your usual DMS representative or Luis and Matteo below:

Luis Pedro

Managing Director

Switzerland

lpedro@dmsgovernance.com

(P) +41.21.311.17.77

Matteo Risoldi

Executive Director

Switzerland

mrisoldi@dmsgovernance.com

(P) +41.21.311.1778

The post Deadline Fast Approaching: Ensure The Distribution Of Your Fund Is Finsa-Compliant appeared first on DMS Governance.

This is the second in a series of 4 Articles from the DMS Client Solutions Team, bringing you their unique perspective on the challenges and opportunities presented to them as the European regulatory landscape shifts.

In last week’s article Daniel Forbes explored Why Cross-Border Fund Domiciles are Transforming into Fund Management Hubs.

This week Pádraic Durkan continues this theme by looking at the evolving landscape in Ireland for Fund Management in his Article: Irish Fund Management Companies: Time to Get Serious About Substance & Oversight.

Introduction

Over the last 30 years Ireland has evolved into a cornerstone of the Global Funds industry.

The first significant milestone in the development of Ireland’s funds industry was the launch of the International Financial Services Centre (IFSC) in 1987. The objective was to boost Ireland’s economy by attracting international financial institutions to the island with a promise of favourable tax rates and a supporting infrastructure.

This strategy recognized the increasing push towards cross-border harmonization for Financial Services within the EU and dovetailed with the first attempt at creation of pan-European market for management and distribution of Investment Funds thorough the first UCITS Directive which was adopted on Dec. 20, 1985.

The consistent commitment by Irish Government, Regulator, and Industry over the intervening decades to establishing Ireland as a best-in-class Financial Services hub has led to an Industry that contains over 7000 domiciled Funds and EUR3Tn in AUM, not to mention EUR5.2Tn in Assets Under Administration.

It is this commitment to the sustainable growth of the industry that requires the stakeholders to continually critically review the model to ensure it exceeds international best practice and maintains Ireland’s position as a Gold Standard jurisdiction.

Recent Focus:

While much of the economy remains under a cloud because of Covid-19, the Irish fund industry is thriving. Much of the influx is related to Brexit and specifically the need to be able to sell products and services within the EU after the UK’s exit.

According to Irish Funds, some 56 financial firms either entered the Irish market or expanded their presence in Ireland in the first half of 2020. In this context, groups such as Neuberger Berman, Eaton Vance, Morgan Stanley & Legg Mason all have one obvious point in common – they each had large fund ranges in Ireland before they began building up their Management presence.

The Irish Fund industry that was once the preserve of Lawyers, Auditors, Tax Advisors, Administrators, & Depositaries to service the Funds, is now being increasingly populated by Investment Management companies to provide local management to the Funds.

Evolution of the Irish Industry – From SMIC to ManCo

Prior to 2014 it was common to structure an Irish domiciled Fund as a Self-Managed Investment Company (“SMIC”). A SMIC is an authorised fund which has not appointed a Management Company but complies with management obligations in relation to capital requirements and organizational structure.

This structure was heavily favored by US & UK Investment Managers who were looking to leverage off Ireland as a Fund domicile without having to open a separate Irish Management Company. The time commitments related to the managerial functions were not significant and so, typically, the independent non-executive directors undertook those managerial functions, lending substance to the SMIC.

The evolution away from the SMIC gained traction with the introduction of AIFMD in July 2013. Unlike the UCITS regime, which is largely a “product” directive, AIFMD focuses on the regulation and ongoing supervision of the “Manager” (“AIFM”).

Although AIFMD permits both an internally managed Alternative Investment Fund (AIF) structure, as well as the appointment of an external AIFM, the rules around governance, supervision and the extent to which an AIFM can delegate duties are far more prescriptive than the UCITS regime and made the concept of an internally managed AIF far more challenging.

CP86

This increased focus on Management Functions prompted the Irish Regulator (“CBI”) to consider the effectiveness of the delegation structures by Irish Management Companies which, in turn, led to the introduction of “Consultation Paper 86” in 2014 with the stated aim of enhancing the effectiveness of fund management companies their boards and investment fund boards in the name of investor protection. CP86 focused primarily on Management Companies, including SMICs which are regulated as Management Companies.

When CP86 was issued by the CBI, DMS reviewed the various solutions for day-to-day management of SMICs and considered how they could be best delivered by appointment of individuals. In our CP86 submission in 2015 we set out our reservations as follows:

• We anticipated that most Funds would seek to have two individuals fulfill all six Designated Person roles. We recognized that in order to retain expertise in all management functions this would require a very diverse range of skills, therefore two “generalists” would be insufficient;
• We believed a third party or substantive in-house Management Company was therefore the best possible solution.

As it turned out in 2018 following the implementation of the CBI CP86 Guidance, our assessment was correct. CP86 introduced new rules in the form of a new organisational effectiveness role to be discharged by an independent board member, a new “location role” applicable to board members and designated persons and the streamlining of managerial functions to be discharged by Designated Persons. It also provided guidance on delegate oversight, organisational effectiveness and directors’ time commitments.

CP86 “Solutions” vs CBI Expectations

In practice, a further significant factor emerged in the roll out of solutions from the market to Funds utilizing Designated Persons to comply with CP86 Guidance. Competition by firms offering Designated Persons services saw prices for this service set at a considerably lower level than the market initially expected. Service providers therefore sought to make the offering profitable by limiting the day count of the commitment. This coincided with a marked increase in expected day count commitment from the CBI.

In 2018, after careful consideration, DMS decided to withdraw our Designated Persons service from the market and advised the SMICs for which we acted that we were resigning from the designated positions held. We did not consider it fair to put our individual staff members in a position where they were taking personal exposure in an effort to meet ballooning regulatory expectations to maintain an obsolete structure. We facilitated such clients with the more viable long-term solution of restructuring away from the SMIC and engaging DMS as Management Company to the Fund.

At the time we made it clear that DMS welcomed the approach being taken by the CBI, which viewed as a positive step for the industry, and we still strongly maintain that view.

What has happened since?

CP86 was only the beginning.

To signal this continued focus on substantive Governance and Oversight in the Irish Fund industry, Deputy Governor Ed Sibley at the Irish Funds Global Conference in May 2019, on the subject of Governance said the following:

The reputation of the Irish funds industry is built on the foundations of strong governance. And that is why I am concerned that we are still seeing inadequacies in board oversight and wider governance issues across too many firms.

In 2019, we will be undertaking a thematic review to assess how firms have implemented the package of Fund Management Company Effectiveness measures introduced on foot of CP86. The broad aim of this work will be to identify standards of industry compliance, to inform our supervisory approach and to ensure that management companies have systems of governance in place to protect investors’ best interests. We will use our full suite of tools to address any failings we identify.

The CBI was making very clear that it was time to get serious about Governance and Oversight. A further CP86 thematic review was commenced in September 2019 in order to assess the typical level of substance and time commitments within existing SMICs and ManCos. This included Questionnaires and desk top reviews of SMICs and ManCos.

Dear CEO Letter 2020

Following on from this period of Thematic Review, on 20 October 2020, the CBI issued a “Dear CEO” Letter to industry outlining the findings of its review of the implementation by Irish fund management companies of the Central Bank’s CP86 framework for effective governance, management and organisation.

While further clarity is going to be required from the Central Bank in a number of areas, it contains significant developments which will require prompt action.

The Letter addresses many of the same topics as were raised in ESMA’s 18 August 2020 letter to the European Commission on its review of the Alternative Investment Fund Managers Directive (the “ESMA Letter”) in relation to substance and delegation of managerial functions and ESMA’s July 2017 Opinion to support supervisory convergence in the area of investment management in the context of the United Kingdom withdrawing from the European Union (the “ESMA Brexit Opinion”).

These findings have brought the Irish funds industry to a point of inflection. It signals the end for SMICs & light touch Management Companies with insufficient resourcing from a governance and risk expertise perspective.

As set out in the CBI’s findings, all but the smallest of ManCos are expected to have a CEO responsible for the day to day running of the business. The letter also notes that three full time employees is the minimum potentially acceptable number of employees for authorisation. However, based on our interactions with clients the number being communicated is a multiple of this figure. Correctly, there is a correlation between number of funds, complexity of strategy and level of AUM to number of required full time employees.

The expectation of a CEO for these entities clearly sets out the path forward for ManCos in Ireland. These entities will not be simply there to tick a box but need to be substantial independent operations with responsibility for oversight.

A core function of the ManCo is supervision of delegates, the CBI noting a failure of many ManCos to conduct initial and ongoing due diligence. ManCos failing to conduct appropriate delegate oversight will need to prioritise this as an immediate concern.

Notably the CBI focus on the Director for Organisational Effectiveness sets a clear onus on ManCos to continually evaluate their own resourcing from quality and quantity perspective, which is of interest when launching products for new strategies and asset classes. Many of the larger Investment Managers in the market have evolved into multi-strategy groups, and the CBI will be ensuring the skill set / technology within the ManCo is sufficiently broad to account for proper oversight of each strategy.

DMS is in the fortunate position of having over 120 Irish based employees to support our fund clients, with a very well established and scalable process for all prescribed functions. In concluding whether SMICs or under-resourced ManCos should be allowed to exist, the Regulatory & Industry view is clear – they should not be allowed to exist in their current form.

Padraic Durkan

Director

London

pdurkan@dmsgovernance.com

(P) +44.203.997.2487

(C) +44.7551.749.742

The post Irish Fund Management Companies: Time to Get Serious About Substance & Oversight appeared first on DMS Governance.

Frank Dowling and Niall McNamara update us on the current state of the aviation industry as a result of the impact of COVID-19. They will update us on what is anticipated for the 12 months ahead including the nature of future financings and the role of regulated funds at this time.

Frank Dowling

Managing Director – Structured Finance

Ireland

fdowling@dmsgovernance.com

(P) +353.1.619.2382

Niall McNamara

Managing Director – Structured Finance

Ireland

nmcnamara@dmsgovernance.com

(P) +353.1.619.2395

The post THE IMPACT OF COVID-19 ON THE AVIATION INDUSTRY appeared first on DMS Governance.

Operators/Directors of Financial Service Providers (“FSPs”) (including Funds and SIBL-Registered Persons) operating in the Cayman Islands are expected to understand the Anti-Money Laundering Regulations (2020 Revision) (“AML Regulations”), and how the AML Regulations apply to the FSPs that they oversee, and are required to complete regular Cayman Islands AML training.

WHAT THE AML REGULATIONS SAY:

Part II, Section 5 (d) of the AML Regulations states that:
Read More >

THE GUIDANCE NOTES EXPAND THE AML REGULATIONS:

The Guidance Notes on the Prevention and Detection of Money Laundering, Terrorist Financing and Proliferation Financing in the Cayman Islands (2020 Revision) (“Guidance Notes”) add clarity to requirements stated in the AMLR. Part II, Section 10. E. of the Guidance Notes provides that:
Read More >

THE DMS SOLUTION

At DMS, we have developed an online, self-administered Cayman Islands AML training course that has been specifically designed for Operators/Directors of Cayman Islands Funds and SIBL-Registered Persons. This training course provides a comprehensive AML overview in an easy to follow format. It covers the following areas:

• Anti-Money Laundering;
• Combating of Terrorist Financing;
• Countering Proliferation Financing;
• Customer Due Diligence and Know Your Customer Requirements; and
• Customer and Transaction Screening.

The course consists of approximately 40 minutes of learning followed by an exam. An AML training certificate will be provided upon successful completion of the exam.

Should you have any questions regarding the training please reach out to your usual DMS contact or contact us below:

Helen O'Sullivan

Senior Associate

Cayman Islands

hosullivan@dmsgovernance.com

(P) +1.345.749.2413

Fortune Muhlanga

Associate Director, Cayman Compliance Services

Cayman Islands

fmuhlanga@dmsgovernance.com

(P) +1.345.749.2525

The post Cayman Islands AML training: Are you up to date? appeared first on DMS Governance.

Further to our recent communication, we are pleased to inform you that The Cayman Islands Department for International Tax Cooperation (DITC) has now advised the industry that the DITC Portal has reopened. As previously noted, the initial opening will see the DITC Portal only being available for CRS and FATCA purposes and in its Phase II, it will provide functionality for Economic Substance and Country-by-Country reporting, with the date for this yet to be confirmed.

Please note the reporting deadlines have been extended for CRS & FATCA filings:

The DMS ITC team would welcome the opportunity to further discuss its fully customizable ITC solutions which includes the completion of the new CRS Compliance Form.

Please reach out to your usual DMS representative or contact us below:

Roman Ipfling

Managing Director

Luxembourg

ripfling@dmsgovernance.com

(P) +1.345.749.2426

(C) +352.691.12.5828

The post Cayman Islands Department For International Tax Cooperation: Portal Is Now Open appeared first on DMS Governance.