AIFMD

Alternative Investment Fund Managers Directive

Overview

The Alternative Investment Fund Managers Directive 2011/61/EU ("AIFMD") is a European Union Directive that entered into force on 22 July 2013. The Directive regulates:

• EU fund managers that manage alternative investment funds (essentially hedge funds and private equity funds) ("AIFs") (wherever they are based);
• fund managers (wherever they are based) that manage AIFs established in the EU; and
• fund managers (wherever they are based) that market the units or shares of an AIF in the EU.

Hedge funds and private equity funds and their Investment Managers (AIFMs) have not been subject to the same rules to protect the investing public as mutual (including UCITS) and pension funds and their managers. In general, the lack of financial regulation is seen by some

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to have contributed to the severity of the global financial crisis. The Directive was aimed at redressing this perceived regulatory gap.

Application

AIFMD Depositary requirements are driven by a combination of the domicile of the AIFM and AIF and marketing practices:

• EU AIFM of EU AIF: Subject to Full Depositary requirements (Article 21)
• EU AIFM of non-EU AIF: Subject to lighter depositary regime (Article 36) – mandatory in order to market the non EU-AIF marketed to EU investors through private placement.
• Non-EU AIFM of EU or non-EU AIF: not subject (at least initially) to any depositary requirements irrespective of whether AIF being marketed to EU investors, except potentially if marketing into certain countries (e.g. Germany, Denmark, France "gold plating"), and any other country specific requirements (e.g. Ireland QIAIF requirements)

Depositary Lite Regime

Non-EU AIFs marketed by an EU AIFM to EU investors through private placement are subject to certain depositary requirements (Article 36 AIFMD)

• An AIFM must ensure one or more entities are appointed to carry out the following duties of:
  • Cash flow monitoring (Article 21.7);
  • Safe keeping of assets, both financial instruments and OTC (Articles 21.8a and 21.8b); and
  • Oversight (Article 21.9)
• Unlike Article 21 (which covers the full depositary obligations of an EU AIFM / EU AIF) there is no strict liability for loss of assets for a non-EU AIF, and no requirement to appoint a single depositary - therefore this regime is referred to as "Depositary-Lite" or "Depo-Lite".