Depositary lite - AIFMD Provision: Difference between revisions
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{{aifmdanat|36}} | {{aifmdanat|36}}===The Brexit bugger’s muddle=== | ||
If you wanted an example of the bugger’s muddle that [[Brexit]] created, look no further than the depositary lite regime under AIFMD. Already, beyond a shade of doubt, a bugger’s muddle; now some kind of poan dimensional bugger’s muddle. | |||
So the UK has left the EU, but has adopted its directives into UK law, while EU regulations were already part of municipal UK law, were the law anyway, so didn’t need to be specifically adopted. AIFMD, like many financial services regulations, is composed of a directive, which is supported by regulatory technical standards imposed by regulation. I’m sure there was a good reason for this, but I don’t have the energy to find out what it was. | |||
Now: the depo lite regime is designed for ''innie'' fund managers — those resident ''inside'' the EU — marketing ''outie'' funds — funds incorporated ''outside'' the EU — to ''innie'' investors, resident in the EU. | |||
UK, of course, used to be an innie, and the idea is, as nearly as possible, for all the damage Brexit has done, we remain an innie afterwards, with harmonised alternative fund management regulation. But there’s a little gap: a UK domiciled fund is an ''innie'' for UK AIFMD, but an ''outie'' for EU AIFMD. But conversely, an fund domiciled in the EU is an ''innie'' for the EU, but ''also an innie'' for the UK, because a “third country” AIF means one resident outside the EEA. | |||
'''Cut-down depositary function''': Non-{{tag|EU}} [[AIF]]s marketed by an {{tag|EU}} [[AIFM]] to EU investors through [[private placement]] — call them {{aifmdprov|Non-EU AIF}}s — have to comply with everything else in {{tag|AIFMD}} ''but they don’t have to have a {{aifmdprov|depositary}}''. | '''Cut-down depositary function''': Non-{{tag|EU}} [[AIF]]s marketed by an {{tag|EU}} [[AIFM]] to EU investors through [[private placement]] — call them {{aifmdprov|Non-EU AIF}}s — have to comply with everything else in {{tag|AIFMD}} ''but they don’t have to have a {{aifmdprov|depositary}}''. | ||
Revision as of 09:15, 23 September 2021
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AIFMD Anatomy™
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The Brexit bugger’s muddle
If you wanted an example of the bugger’s muddle that Brexit created, look no further than the depositary lite regime under AIFMD. Already, beyond a shade of doubt, a bugger’s muddle; now some kind of poan dimensional bugger’s muddle.
So the UK has left the EU, but has adopted its directives into UK law, while EU regulations were already part of municipal UK law, were the law anyway, so didn’t need to be specifically adopted. AIFMD, like many financial services regulations, is composed of a directive, which is supported by regulatory technical standards imposed by regulation. I’m sure there was a good reason for this, but I don’t have the energy to find out what it was.
Now: the depo lite regime is designed for innie fund managers — those resident inside the EU — marketing outie funds — funds incorporated outside the EU — to innie investors, resident in the EU.
UK, of course, used to be an innie, and the idea is, as nearly as possible, for all the damage Brexit has done, we remain an innie afterwards, with harmonised alternative fund management regulation. But there’s a little gap: a UK domiciled fund is an innie for UK AIFMD, but an outie for EU AIFMD. But conversely, an fund domiciled in the EU is an innie for the EU, but also an innie for the UK, because a “third country” AIF means one resident outside the EEA.
Cut-down depositary function: Non-EU AIFs marketed by an EU AIFM to EU investors through private placement — call them Non-EU AIFs — have to comply with everything else in AIFMD but they don’t have to have a depositary.
But Non-EU AIFs do have to have someone to monitor cash flows, look after custody assets and manage subscriptions and redemptions of fund units, functions which are carried out by a depositary in a full-blown AIF. These three functions don’t have to be carried out by the same dude. An administrator might handle subscriptions and redemptions and cashflow monitoring, and a prime broker might handle the custody function.
Liability: Unlike in a full-blown depositary, a depo-lite does not have strict liability for loss of a Non-EU AIF’s assets.
For all these reasons this regime for Non-EU AIFs is referred to as “Depositary-Lite” or “Depo-Lite” regime.
Prime broker as depositary lite
A prime broker will be keen to act as custodian for a AIFMD, where it can get its grubby hands on all those lovely rehypothecatable custody assets, but it will not want to assume all liability — since it isn’t required to — so will accept this the role of custodian under 21(8)(a) as it applies to a person carrying out the safe-keeping function under Art. 36(1)(a).
Tedious, isn’t it.
In any case where the PB is a depo-lite custodian:
- There is no need for the usual delegation agreement transferring responsibility and liability from the AIFMD to the prime broker, because there isn’t a AIFMD - the AIFMD appoints PB directly to carry out the safe keeping;
- The PB won't want to sign an equivalent acceptance of all responsibility and liability directly to the AIFMD because it isn't obliged to, and why would you?
Does a margin-holder who receives collateral under a pledge count as a delegated custodian?
It is one thing for a prime broker, who definitely is safe-keeping for its client, to accept responsibilities as a AIFMD’s delegate (or, per the above, on a more limited basis as a depo-lite), but what about a futures clearing broker or a swap counterparty who receives margin under a pledge? It is hard to see why they would avoid the general drafting under AIFMD, but there are plenty of reasons it doesn’t make any sense. For one thing, a title transfer collateral arrangement, which is economically the same thing, wouldn’t be caught. Practically that may be the answer: just don’t take collateral under a pledge — or don't take non-cash collateral at all — but under the forthcoming Regulatory IM regime that might be difficult, right?
WE SHALL SEE.