Depositary's obligations re safekeeping of assets - AIFMD Provision
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AIFMD Anatomy™
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A fully authorised AIFM must appoint a single depositary for each AIF it manages. See Article 21.
Depositary’s Functions
The depositary may not be affiliated with the AIFM and must be domiciled in the same jurisdiction. Its main roles are:
- monitoring cashflows;
- providing safe-keeping of custodiable assets (i.e., being a custodian);
- verifying the AIF's ownership interest in non-custodiable assets;
- overseeing issue, and redemption of fund units;
- overseeing calculation and publication of NAVs;
- ensuring the AIF’s receives consideration for the sale of its assets within the usual time limits; and
- maintaining accurate records of the above.
Depositary’s liability
The depositary has almost - eek - strict liability for the performance of its functions: if it loses an AIF's custody assets, it must return identical financial instruments or the corresponding amount even if the instruments were lost by a sub-custodian. The depositary will not be liable for losses caused by force majeure which were unavoidable despite all reasonable efforts to the contrary.
However, there are strict rules which make this liability less extensive than it seems. Note especially insolvency of a sub-custodian is not covered.
Depositaries delegating to prime brokers
A prime broker to an AIF could be its depositary, but for a bunch of reasons would most likely not be (for one thing, the depositary has to be domiciled in the same jurisdiction and the AIF, and PBs tend to be domiciled in London, New York, Hong Kong etc, and not espievie jurisdictions; for another, there is an inherent conflict of interest between a depositary function and the margin lending relationship which is at the heart of what a PB does and how it makes money).
That said, depositaries can delegate custody tasks to prime brokers provided that they meet certain conditions:
Delegation of depositary’s functions
You will see from 21(4) the depositary’s role in toto is not really suitable for a prime broker. However, the depositary may delegate some of its functions, and a prime broker may act as:
- A custodian, but will have certain conditions to that appointment (set out in Art 21(11), including the famous “objective reason”), and you may expect the depositary will seek to delegate the safe-keeping function on those exact conditions, and (as far as it can) transfer outright its liability for those responsibilities to the prime broker, on exactly the terms required by AIFMD and AIFMR.
- A “depositary lite” to certain non-EU domiciled AIFs who aren’t obliged to have a full-blown depositary. The depo-lite regime, and the delegated safe-keeping regime, are different but in many respects quite similar things and it is easy to conflate them.
“Delegation” versus “sub-contracting”
These terms are easily conflated. Indeed, AIFMD conflates them. But, in this commentator’s view, they are different in important ways. Read more about this here. But in any case our — well, contrarian — view is that a custodian who appoints a sub custodian in its sub custody network is not “delegating” its AIFMD custody obligations “at the first level of the custody chain”, as Art 21(11)contemplates, and hence sub-custodians do not have to:
- Segregate the AIF’s assets from the depositary’s assets in their books (as would be required of a delegate custodian under Art 21(11)(d)(iii)),
- Hold assets in their books in the name of the AIF (or the AIFM acting on behalf of the AIF) (as would be required of a delegate custodian under Art 21(11)(d)(v), incorporating as it does Art 21(8)(a)(ii)).
Conditions to delegation by a depositary
The depositary can only delegate in certain circumstances:
- It must have an “objective reason” for the delegation.
- it must exercise due skill, care and diligence in the selection, appointment and ongoing monitoring of the delegate;
- The delegate:
- must have structures and expertise proportionate to the nature, scale and complexity of the assets of the AIF
- must be subject, in acting as a custodian, to effective prudential regulation and supervision in its local jurisdiction and periodic external audits;
- must segregate AIF assets from its own and the depositary’s assets
- may not reuse the AIF’s assets without the AIF’s express consent.
We read this as referring only to a delegation of the “head” custody function, not to a custodian’s holding of assets in its own sub-custody network: it can’t do; sub-custodians operate on an omnibus basis and don’t segregate assets belonging to the main custodian’s individual clients’ interests in their books (so can’t segregate, for example, the depositary’s assets from the AIF’s assets: they don’t have enough information to do this.
Conditions to discharge of liability when delegating by a depositary
It is one thing for a depositary to delegate performance of a safekeeping function to a prime broker (21(11)); it is another for it to discharge its liability for the safekeeping of assets (21(13)). That can only happen if:
- All the conditions to delegation are met;
- There is a written contract transfers that liability so the AIF can claim directly against the PB — which contractual privity freaks will immediately realise will require either artful use of the Contracts (Rights of Third Parties) Act 1999, or that the AIF should be party to that contract. In practice the AIF will of course be party to a contract with its prime broker.
Discharge of depositary's strict liability
Upon delegation the depositary remains strictly liable for loss caused by the sub-custodian. The depositary may discharge its liability if it can prove that:
- The delegation complies with the AIFMD;
- The sub-custodian has expressly accepted the depositary's liability so that the AIF may claim directly against the sub-custodian for the loss of financial instruments or for the depositary to make such a claim on their behalf; and
- The AIF expressly allows the depositary to discharge its liability in this way, establishing an objective reason for such a discharge.
Objective reason?
The objective reason must be established each time the depositary intends to discharge itself of liability, and must be:
- limited to precise and concrete circumstances; and
- consistent with the depositary's policies and decisions.
The following will be deemed to be objective reasons:
See also
- The depo-lite regime which is applicable only to Non-EU AIFs marketed on a private placement basis to professional investors (especially Article 36.