21(14) - AIFMD Provision

A provision which seems to require an AIF being able to directly sue a sub-custodian located in a third country. Eek! (But fear not: there's a twist...)

Paragraph 21(14), AIFMD

AIFMD, 21(14)
21(14). Further, where the law of a third country requires that certain financial instruments are held in custody by a local entity and there are no local entities that satisfy the delegation requirements laid down in point 21(11)(d)(ii) of paragraph 21(11), the depositary can discharge itself of liability provided that the following conditions are met:

(a) the rules or instruments of incorporation of the AIF concerned expressly allow for such a discharge under the conditions set out in this paragraph;

(b) the investors of the relevant AIF have been duly informed of that discharge and of the circumstances justifying the discharge prior to their investment;

(c) the AIF or the AIFM on behalf of the AIF instructed the depositary to delegate the custody of such financial instruments to a local entity;

(d) there is a written contract between the depositary and the AIF or the AIFM acting on behalf of the AIF, which expressly allows such a discharge; and

(e) there is a written contract between the depositary and the third party that expressly transfers the liability of the depositary to that local entity and makes it possible for the AIF or the AIFM acting on behalf of the AIF to make a claim against that local entity in respect of the loss of financial instruments or for the depositary to make such a claim on their behalf.

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Commentary

Of interest are the criteria set out in Article 21(11)(d)(ii), right? If met, the strictures of this paragraph do not apply. Well, these are they:

Paragraph 21(11)(d)(ii), AIFMD

AIFMD, 21(11)(d)(ii)

(ii) for custody tasks referred to in point (a) of paragraph 21(8), the third party is subject to effective prudential regulation, including minimum capital requirements, and supervision in the jurisdiction concerned and the third party is subject to an external periodic audit to ensure that the financial instruments are in its possession;

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These are, even in weird and wonderful jurisdictions, a fairly low bar over which to execute a Fosbury flop: That it be subject to "effective prudential regulation - seems somewhat subjective to me - to have some minimum capital requirements (without saying how much...), and to be audited. Which is just as well, because the provisions of 21(14) are otherwise outrageously onerous.

AIFMD Anatomy™ →Go uptown {{{2}}} Directive 2011/61/EU (EUR Lex) | Implementing regulation 231/2013 (EUR Lex) Navigation directive - 21 (depositary) | 21(4) (conflict management) | 21(8) (custody function) | 21(11) (custody delegation) | 21(12) (liability for loss of assets) | 21(13) (discharge of liability on delegation) | 21(14) (discharge of liability for Non-EU subcustodians) | 36 (depo-lite) | 36(1) implementing regulation DR20 (Due diligence when appointing counterparties and prime brokers) | DR76 (objective reason) | DR89 (Safekeeping duties with regard to assets held in custody) | DR91 (reporting obligations for prime brokers) | DR98 (due diligence) | DR99 (segregation obligation) | DR100 (Loss of custody asset) | Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.