Competing Globally in the Asset Management Industry

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Competing Globally in the Asset Management Industry Martin W. Cornish, Partner, K&L Gates, London Stuart E. Fross, Partner, K&L Gates, Boston Nicholas S.

1 Competing Globally in the Asset Management Industry Martin W. Cornish, Partner, K&L Gates, London Stuart E. Fross, Partner, K&L Gates, Boston Nicholas S. Hodge, Partner, K&L Gates, Boston Choo Lye Tan, Partner, K&L Gates, Hong Kong October 25 th, 2011 Copyright 2010 by K&L Gates LLP. All rights reserved.

2 MARKETING INVESTMENT FUNDS IN ASIA 2

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6 ASIA HONG KONG SINGAPORE JAPAN TAIWAN PRC 6

7 Unique Selling Points for Various Jurisdictions Hong Kong Existing experience Trilingual sophisticated employee base Client base English common law system Strong and sophisticated advisory support Gateway to PRC Fastest growing number of new millionaires Converging point in Asia for Western funds professionals Commonwealth, safe-haven perception + access to PRC market + access to beneficial local PRC benefits 7

8 Unique Selling Points for Various Jurisdictions Singapore Transparent yet flexible regulatory environment Skilled multi-lingual workforce Exemptions for boutique fund managers and representatives of financial advisors Low tax rates, industry-specific tax rates Strategic location for South Asia initiatives Strong government support Outstanding product innovation 8

9 Unique Selling Points for Various Jurisdictions Japan Second largest market Access to Japanese pension funds High purchasing power Access to East Asia markets 9

10 Unique Selling Points for Various Jurisdictions Taiwan Cooperation Agreement Between Taiwan & Governments of Luxembourg/Ireland Impact of Economic Cooperation Framework Agreement 10

11 Marketing of Funds in Asia Hong Kong Singapore Japan Taiwan PRC Regulatory Authorities Securities and Futures Commission (SFC) Monetary Authority of Singapore (MAS) Securities and Exchange Surveillance Commission (SESC) Financial Supervisory Commission China Securities Regulatory Commission (CSRC) Legal System English Common Law English Common Law Civil Law Civil Law Civil Law Foreign Registration Yes Yes Yes Yes No such registration available 11

12 Marketing of Funds in Asia Hong Kong Singapore Japan Taiwan PRC Exchange Control No No No Yes Yes Licensing Yes Yes Yes Yes Yes Exemptions / Avoidance -Professional Investors for Type 1 activity only -Incidental exemptions -Group company exemption Any bank or financial institution or such other person or class of persons in respect of any regulated activity as may be exempted by the Authority Complete exemption where -Less than ten Qualified Institutional Investors ( QIIs ) who are Japanese; AND -the QIIs account for less than one-third of the contributions raised Exempted but required to file a notification At least one Japanese QII and less than fifty Japanese non-qii s NO restriction on transfer of partnership interests required but must monitor transfers to ensure that there is always at least one Japanese QII and not more than forty-nine Japanese non-qii s N/A N/A 12

13 Marketing of Funds in Asia Hong Kong Singapore Japan Taiwan PRC Costs Start-up requirements US$3,500 US$ 5,000 about US$1,218 US$4,060 US$3,000 US$5,000 Various N/A Application Cost about US$610 US$16,668 per Regulated Activity about US $ 1,624 US $ 6,496 Per Regulated Activity Time 15 weeks Depends 6 9 months (Type 1 Investment Management ) 3 6 moths (Type 2 Investment Advisory and Agency) 3-6 months (offshore funds) 1-3 months (0nshore funds) Various 13

14 Marketing of Funds in Asia Hong Kong Singapore Japan Taiwan PRC Prospectus Requirements Yes Exemptions from prospectus requirements Safe Harbour Exemptions Exclusions in relation to structured products (came into effect 13 May 2011) Yes Exemptions from prospectus requirements Issue or transfer for no consideration (section 272 SFA) Small offers (total amount raised in 12 months is not more than S$5 million or equivalent or such other amount as may be approved by Authority) Private placement Offers to institutional investors Yes Securities registration statement ( SRS ) must be filed with the Kanto Local Finance Bureau SRS is for filing purposes only; a Japanese language prospectus is prepared for Japanese investors which is generally identical to SRS Yes Yes 14

15 Marketing of Funds in Asia Liquidity Requirements Hong Kong Singapore Japan Taiwan PRC Paid-up capital: about US$ 642,425 US $3,855,554 Liquid Capital about US$12,848 US$1,927,277 Dealing in Securities about US$203,004 US$4,040,078 Trading in Futures Contracts about US$203,004 US$ 4,040,078 Trading in Commodities Futures Contracts about US$203,004 US$812,017 Fund Management about US$203,004 US$812,017 Other Regulated Activities about US$203,004 US$812,017 Minimum of about US$620,0 00 and greater than 120% solvency ratio No special requirements for offshore funds * Note: For onshore funds, there are various minimum liquidity assets requirements for different type of the funds No special Requirements 15

16 Marketing of Funds in Asia Hong Kong Singapore Japan Taiwan PRC Tax 16.5% 17% < about US$49, % about US$49, % < about US$99, % > about US$99, % Special Requirements 17% 25% Outbound Investment restriction Foreign Exchange Control 16

17 Marketing of Funds in Asia General principles for Hong Kong and Singapore Licensing by the securities regulators for the act of marketing Offer Registration for the offers of the units 17

18 Hong Kong What are regulated activities? Type 1 - Dealing in securities Type 2 - Dealing in futures contracts Type 3 - Leveraged foreign exchange trading Type 4 - Advising on securities Type 5 - Advising on futures contracts Type 6 - Advising on corporate finance Type 7 - Providing automated trading services Type 8 - Securities margin financing Type 9 - Asset management Type 10 Credit ratings 18

19 Hong Kong Meaning of active marketing Meaning of public in Hong Kong A section of the public More than 50 persons from the Companies Ordinance Meaning of business 19

20 Hong Kong Relevant Licensing Exemptions Professional Investors for Type 1 activity only Incidental exemptions Group company exemption for Types 4, 5, 6 and 9 only 20

21 Hong Kong Offer Registration Prospectus Registration & Requirements Exemptions from prospectus requirements Effect of legends 21

22 Hong Kong Authorization of collective investment schemes in Hong Kong May take up to 12 months Recognised jurisdiction schemes UCITS IV 22

23 Singapore Licensing Financial Advisers Act license is required for the following activities :- advising others concerning any investment product; issuing or promulgating analyses or reports concerning any investment product; marketing of any collective investment scheme including unit trusts; and arranging of any contract of insurance in respect of life policies. Securities, futures and fund management licenses under the Securities And Futures Act Exemptions Exempt persons Single licensing regime 23

24 Singapore Offer registration Offers in Singapore Prospectus Requirements Exemptions from prospectus requirements 24

25 Singapore Authorization of collective investment schemes in Singapore Not less than 24 days for a regular fund, 48 days for an unusual fund Recognised jurisdiction schemes Tax benefits on income and dividends to shareholders 25

26 Japan Registration for :- Solicitation for the act of marketing Investment Management for the business of offering and marketing 26

27 Japan Solicitation Solicitation/Marketing of units to the public in Japan generally prohibited unless the marketing entity is a financial institutions firm registered to engage in such businesses No fixed definition of solicitation Includes targetting Japanese investors outside Japan 27

28 Japan Exemptions Appropriately-authorised entity in Japan conducts marketing on its behalf More than 1 QII but less than fifty non-qii s 28

29 Japan Investment Management Registration under FIEL generally required Exemption Complete exemption where less than ten Qualified Institutional Investors ( QIIs ) who are Japanese; AND the QIIs account for less than one-third of the contributions raised Partial exemption requiring notification only where more than 1 QII but less than fifty non- QII s 29

30 Japan Offers where registration is required Small number private placement Professional private placement 30

31 Japan Authorisation of UCITS Prospectus registration Language requirements 31

32 Taiwan Solicitation No direct prohibition However, solicitation may constitute a business activity which requires :- Taiwan-registered company (ROC Company Law Approval by Financial Supervisory Commission under Securities Investment Trust & Consulting Act 32

33 Taiwan Offer Registration Offshore Funds (Public Offer) Registration with regulator Appointment of Master Agent Distributor Prospectus 33

34 Taiwan Structured Note Products Requirement for local office No prospectus required 34

35 PRC No specific law, prohibition or regulation on marketing of foreign funds on a private basis Marketing may constitute a business activity for which regulation is extensive Public offers subject to the authority of China Securities Regulatory Commission; and Ministry of Commerce 35

36 PRC Public offers of securities require a PRCincorporated fund manager Joint venture with a PRC entity is necessary as foreign ownership cannot exceed 49% Foreign ownership must be from a foreign entity approved by CSRC 36

37 PRC Outbound funds of PRC investors is heavily restricted 37

38 Considerations Short or long-term? Where are your proposed investors based? Costs? What products are you marketing? What is the objective of your fund? Sector/region/product-based? Living standards 38

39 MARKETING INVESTMENT FUNDS IN EUROPE 39

40 Introduction Structuring Funds for European Investors UCITS Closed End Funds Alternative Investment Fund Managers Directive Marketing Strategies Post

41 Structuring Funds for European Investors Optimal structure depends on nature of underlying investments and investment strategy; and jurisdiction and type of underlying investor Europe = 25 plus jurisdictions so analysis is very complex Real Estate/PE Funds typically use LPs Retail long only and hedge funds typically use corporate vehicles But detailed analysis driven by tax and regulatory considerations in each case 41

42 Structuring Funds for European Investors - Tax Considerations Tax: - natural capital gains flow-through for Real Estate/PE Funds via LP structures - Use of DTTs common issue for long only funds and especially certain emerging market funds Russia, India, Brazil - Use of blocker corporations to shield trading income/convert income into capital gains common issue for hedge funds 42

43 Structuring Funds for European Investors - Tax Considerations European jurisdictions have no check the box elections (unlike the U.S.) to treat corporations as transparent But several European jurisdictions do have antiavoidance provisions which impute liability to tax on a current year basis; deem capital gains to be liable to income tax; and/or impose surcharges etc. E.g. UK Offshore Funds Rules; and German Investment Tax Act 43

44 UCITS Open ended, publicly marketable EU funds Exempted from AIFMD Restricted to listed tradable securities so no PE or Real Estate Funds Hedge Funds - Newcits Eligible assets rules relevant to hedge funds and hedge fund of funds UCITS IV: - Procedures for mergers of UCITS funds - Master feeders available for first time - Standardised Key Investor Information Document - Management Company passport - Simplified/improved passporting mechanisms UCITS V 44

45 Closed End Funds Caught by AIFMD But can be marketed publicly under Prospectus Directive if compliant i.e. separate from AIFMD passport and therefore to the retail public May be appropriate for fund of funds, PE, Real Estate and other more illiquid strategies 45

46 Structuring Funds for European Investors - Regulatory Considerations Most Jurisdictions require marketing to be conducted by EU authorised marketers Some allow non-eu persons to market but marketing then more restricted e.g. Belgium (but must register locally; UK 46

47 Structuring Funds for European Investors - Regulatory Considerations Private placement rules vary enormously but fall into 5 main categories: 1. subject to a minimum investment amount (e.g. Belgium 250,000, Holland 50,000) 2. by number of offerees - e.g. Denmark (8), Holland (100) 3. by type of investors (e.g. institutional, large corporates, sophisticated individuals etc.) Finland, Germany, Holland, Switzerland, UK 4. All forms of active solicitation banned France, Italy, Norway, Spain 5. No restrictions - Sweden 47

48 Alternative Investment Fund Managers Directive Basics EU AIFMs to be subject to significant additional regulation already subject to MiFID (required to be regulated, have minimum capital, subject to conduct of business rules etc) AIFMD effectively regulates AIFs as well as AIFMs by restricting marketing of both EU and non-eu funds into the EU EU AIFMs granted a passport to market EU funds to professional investors throughout the EU from EU AIFMs may be granted a passport to market non-eu funds to professional investors throughout the EU from 2015 subject to AIF and non-eu jurisdiction complying with various equivalency requirements 48

49 Alternative Investment Fund Managers Directive Basics From 2015 non-eu AIFMs may be also able to apply to become recognised AIFMs and be granted permission to manage and market EU and non-eu funds to professional investors throughout the EU (subject to non-eu AIF and non-eu jurisdiction complying with various equivalency requirements) 49

50 AIFMD Strategies Comply from 2013 Passport will allow active/broader marketing into Denmark, France, Italy, Norway and Spain from 2013 But passport may restrict marketing in Belgium, Holland, Germany, UK and perhaps Switzerland if restricted to professional investors EU jurisdictions permitted to allow marketing to retail investors but to impose more strict requirements Passport where more attractive, privately place elsewhere? EU investor preference for regulated funds? And tax disadvantages for some investors in tax haven based funds Brand potential of AIFMD funds similar to UCITS discussion that derivatives funds be restricted to AIFMD funds 50

51 AIFMD Strategies Wait and See 2015 decision on passport for non-eu AIFs and non-eu AIFMs 2015 decision also regarding private placement route post 2018 But will private placement rules survive until 2018? Managed Accounts not covered by AIFMD Platform providers each AIF must have a single AIFM which can delegate - scope for delegation to US/other managers Non-EU funds post 2013 implications for EU and Non-EU Managers 51

52 AIFMD Strategies Mergers/Consolidation AIFMD likely to significantly increase cost of compliance for EU Managers Depository likely to cost basis points (AIMA) Establishment, reporting and approval obligations will add to both launch and ongoing costs Start ups will be hit particularly hard but existing small and mid sized firms also Expect some teams/star traders to join existing firms or platform providers instead of setting up solo to avoid/reduce costs 52

53 AIFMD Strategies Mergers/Consolidation Non-EU managers to buying into Europe Or set up own operations Ability to work through 3 rd party marketers with passport? 53

54 Conclusion UCITS changing investment range could be narrowed EU domiciled funds becoming more popular Passporting of non-eu funds to become a possibility from 2015 Anticipated that private placement route will disappear from 2018 but subject to ESMA decision in 2015 Probability that private placement rules will be narrowed significantly in some EU jurisdictions before mid

55 AIFMD: From Our Side of the Pond 55

56 AIFMD: From Our Side of the Pond Context: The US is Implementing its Own Regime Relating to Funds that are Private Funds The Form PF Reporting Regime will have some similarities to AIFMD Reporting Threat/Opportunity: AIFMD is both a threat and an opportunity for US money managers. The Impact On US Money Managers Is Significant The Opportunity is the passport 56

57 AIFMD Themes for US Money Managers 1. Private Placements. Article 49 AIFMD offers the hope of continued private placements with three new requirements (transparency, annual report, regulator reporting). US Advisers will need this immediately 2. Securitizations and UCITS. Article 63 rules on securitization compliance will affect UCITS (and AIFMD) US Advisers will need this immediately 3. US UCITS Managers. Impact on US based UCITS managers Senior Management Accountability AIF Specific Business Plans Remuneration 57

58 AIFMD Themes for US Money Managers Fund Managers. Impact on 1940 Act Fund managers The same as 3, plus Risk management Adaptation to an EU regulatory regime 5. Hedge Fund Managers. Same as four, plus a wholesale shift to systemic regulation". Duties arise to the "system" - previously unheard of for hedge fund managers. 6. Cooperation Agreements with SEC. Cooperation agreement between the SEC and ESMA is a key dependency 58

59 Question & Answer Session 59

Fund-raising in Asia. Tan Choo Lye K&L Gates Hong Kong & Singapore

Fund-raising in Asia. Tan Choo Lye K&L Gates Hong Kong & Singapore Fund-raising in Asia Tan Choo Lye K&L Gates Hong Kong & Singapore 852 2230 3528 choolye.tan@klgates.com Copyright 2010 by K&L Gates Solicitors. All rights reserved. 1 2 3 Statistics Total Asia net worth