Asset Management. Alternative Investment Fund Managers Directive (AIFMD) Challenges and Solutions

Transcription

1 Asset Management Alternative Investment Fund Managers Directive (AIFMD) Challenges and Solutions

2 Contents 2 Asset management Challenges and solutions

3 1. Preface License application and compliance aspects Organisational requirements Risk and liquidity management Valuations Depositary Delegation Assurance on policies and procedures Remuneration / Human Capital Tax optimization of AIFM corporate structure Service providers Reporting Data Quality and Data Management... 30

4 1. Preface Background to the Alternative Investment Fund Managers Directive (AIFMD) In the wake of the financial crisis, the European Union ( EU ) Commission made clear its intention to regulate alternative asset managers across Europe when it released its draft Alternative Investment Fund Managers Directive ( AIFMD ) on 30 April The key objectives were to reduce systemic risk and enhance investor protection, with the corresponding benefit for AIFMs being a pan-european passport to provide management services and distribute funds across the EU. Voted by the European Parliament in November 2010, the AIFMD covers all alternative asset management sectors such as hedge funds, real estate and private equity, as well as traditional sectors encompassing almost all non-ucits funds. The final Level 1 text of the Directive was published in the Official Journal of the EU on 1st July 2011, with its implementation deadline being 21st July Asset management Challenges and solutions

5 On 19 December 2012, the European Commission issued the Level II measures clarifying a number of important elements of the AIFMD. These measures (also known as implementing measures) contain some surprises for the alternatives industry; the Commission has not always followed the advice provided by the European Securities and Markets Authority (ESMA) in November AIFM and their service providers face challenging times ahead; new EU AIFM must comply from 22 July 2013 and existing EU AIFM before 22 July How EY can help EY is ready to support AIFM and service providers during the entire implementation process. EY supports AIFM in defining their post-aifm product ranges and operating models, and guiding them through the implementation phase. We are also helping service providers, such as depositaries, to implement an operational framework which meets the requirements of the Directive. EY is also helping several industry bodies to develop common models for their members as they face the challenge of implementing the Directive. In this brochure we will discuss the main challenges of the AIFMD and the solutions EY has developed to meet these challenges. Should you have any questions regarding the AIFMD, our dedicated AIFMD team will be available to you. The following AIFMD subjects will be covered: License application and compliance aspects Organisational requirements Risk and liquidity management Valuations Depositary Delegation Assurance on policies and procedures Remuneration / Human Capital Tax optimization of AIFM corporate structure Service providers Reporting Data Quality & Data Management Asset management Challenges and solutions

6 2. License application and compliance aspects 6 Asset management Challenges and solutions

7 Challenge The EU AIFM Directive contains the regulatory framework applicable to fund managers managing one or more so called alternative investment funds ( AIFs ). Despite the label alternative the AIFM Directive has a broad scope and covers all collective investment undertakings which do not require a license pursuant to the EU Undertakings in Collective Investments in Transferable Securities Directive ( UCITS ). The purpose of the AIFM Directive is twofold. On the one side the Directive purports to prevent and contain macroeconomic risks resulting from the actions of fund managers. On the other side the Directive intends to increase investor protection. Managers managing one or more AIFs (so called Alternative Investment Fund Managers or AIFMs ) require a license or have to register with their home Member State competent authority, depending on the size of the assets under management by such AIFM. AIFMs requiring a license have to comply with various license requirements, including requirements on remuneration, risk management, liquidity management, valuation of fund assets, use of leverage, safekeeping of fund assets and supervision by a licensed depositary, reporting requirements and information requirements. These requirements will have a significant impact on the day to day business of fund managers. Solution In order to assist AIFMs in adapting their business we offer the following legal related solutions. License application Support in AIFM licence applications or AIFM registrations Advice on applicability of the AIFM Directive on your organisation, optimisation of your fund / business structure and advice on the use of exemptions Operational compliance with the AIFM Directive Review and amendment of fund documents such as terms for management and custody, articles of association, prospectuses or offering memoranda in order to safeguard compliance with the AIFM Directive Composing policies on due diligence with respect to the selection of services providers, review of delegation agreements to be entered into by AIFMs and service providers, performing notifications to the relevant supervisory authority in case of delegation of tasks by the manager Advice on AIFM requirements applicable to AIFMs managing AIFs exercising control in large non-listed EU companies Periodic reviews on compliance of AIFM with applicable laws and regulations Asset management Challenges and solutions

8 Contact For further information please contact: Juan Vervuurt

9 3. Organisational requirements Challenge As an Alternative Investment Fund Manager ( AIFM ) the authorities will require you, as part of your AIFMD license application, to demonstrate that you are able to comply with all AIFMD requirements. In order to do so you need to describe an organisation specific internal control environment to prove you have sound and controlled business operations ( integere en beheerste bedrijfsvoering ) i.e. that your internal processes and procedures are effectively designed and operated under the AIFMD requirements. This documentation needs to be part of your AIFMD license application. The Level II guidance provides detailed information on the organisational requirements of an AIFMD. On the one hand, these requirements are general in nature and relate to establishing, implementing, maintaining and evaluating the adequacy and effectiveness of the systems, internal control mechanisms and arrangements. On the other hand the AIFM needs to have, amongst others, a permanent compliance, risk management and internal audit function as well as specific procedures around managing conflicts of interests, recording of portfolio transactions and policies and procedures for the valuation of assets. Solution As the AIFMD and the supporting Level II guidance is very comprehensive and complex, EY has prepared guidance with the key elements that need to be addressed in your internal control environment description and as a basis for the required AO/IC or in control statements in the annual accounts of the AIF s. This guidance also includes the project steps that will help you manage such a project. In addition, many AIFMs struggle with the required segregation of duties and fulfilling the permanent compliance and/or internal audit functions because of capacity and required skill set. EY can support or take over these functions and ensure it is AIFMD compliant. Contact For more information, please contact Bram Tijsseling bram.tijsseling@nl.ey.com Annemiek Mollema annemiek.mollema@nl.ey.com Asset management Challenges and solutions

10 4. Risk and liquidity management 10 Asset management Challenges and solutions

11 Challenge Risk management and liquidity management are 2 key elements in the AIFMD, the supporting Level II guidance and is a focus point of the regulatory and supervisory authorities. As part of your license application you need to document the framework in place and on an ongoing basis demonstrate you re managing the identified risks. The risk management system you have in place needs to consist of a permanent risk function, organisation specific policies and procedures and the tools and techniques available to measure and monitor your risk limits. As part of the transparency requirements the AIFM need to disclose the risk profile of your organisation. The risk limits that you will measure and monitor on an ongoing basis need to be aligned to this risk profile for the different risk categories (i.e. market, credit, liquidity, counterparty and operational risk). Measuring and monitoring your risk and liquidity management will also have to consist of back tests, stress tests and scenario analysis. Additional requirements apply relating to the governance around risk and liquidity management such as the representation in the governing body, remuneration, periodic review of the framework by the governing body and safeguarding conflicts of interest. Solution EY can support you with many challenges the risk and liquidity management requirements brings you. We have excellent knowledge of drafting or reviewing risk and liquidity management policies and can also help you setting your risk profile and aligning your risk limits to that profile. Your risk or liquidity management framework has to enable these procedures (e.g., to manage and monitor your limits) and we perform a review of this framework or help you implement it if it is not yet in place. EY can further support you performing back tests, stress tests and scenario analysis and the documentation thereof including an efficient and effective knowledge transfer to the staff of the AIFM. If your organisation lacks capability or specific skill sets we can, under certain conditions, fulfil the risk management function on your behalf. Contact For more information, please contact Lizette Bruidegom lizette.bruidegom@nl.ey.com Bram Tijsseling bram.tijsseling@nl.ey.com Asset management Challenges and solutions

12 5. Valuations 12 Asset management Challenges and solutions

13 Challenge The Level II guidance is elaborate on the valuation requirements. Besides the written policies and procedures you need to ensure a consistent application and periodic review of these policies and procedures. The valuation of assets and methodologies applied need to be fair, appropriate and transparent and when models are applied, these models need to be validated. Further, qualiy of data needs to be ensured. Valuation of certain asset classes can be complex and onerous, therefore external valuers may be used although, of course, the ultimate responsibility remains with the AIFM. Solution Support with the valuation, model validation and documenting of the valuation policies and procedures are some of the services EY can provide for you to ensure compliance with the AIFMD. We have dedicated staff with the required skill set to independently value all type of asset classes. Contact Paul de Beus paul.de.beus@nl.ey.com Floris van de Loo floris.van.de.loo@nl.ey.com Asset management Challenges and solutions

14 6. Depositary 14 Asset management Challenges and solutions

15 Challenge Depositary Legal and Compliance elements AIFMs which require a license due to the size of the assets under their management, have to comply with various license requirements. One of the major requirements relates to the safekeeping of fund assets and the supervision of the AIFM by a licensed depositary. Only a limited number of categories of financial enterprises may act as depositary. The relationship between the AIFM and the depositary has to be formalised in a written agreement. This agreement has to comply with several requirements and has to be sufficiently tailored to the characteristics of the AIF for which the depositary is appointed. The depositary has to perform various tasks including safekeeping of fund assets, cash flow monitoring, and supervision of the AIFM. The possibilities to outsource the performance of these tasks are however limited. In addition the depositary can only limit its liability in specific circumstances. Solution In order to assist depositaries we offer the following solutions. Verification whether parties intending to act as depositary have adequate regulatory authorisation to be appointed as depositary Review and amendment of existing (sub)custody agreements and other delegation agreements in order to safeguard compliance with the requirements of the AIFM Directive Composing format depositary agreements and review of existing agreements Advice to AIFM and depositaries on (i) mandatory depositary tasks (ii) possibilities of delegation (iii) and the scope of depositary liability and possibilities to mitigate this liability Contact For further information please contact: Juan Vervuurt juan.vervuurt@hollandlaw.nl Asset management Challenges and solutions

16 Solution Depositary Operational Requirements EY can, complementary to the services mentioned above, provide services on the following areas related to the depositary requirements under the Directive: Assisting in designing the depositary s operating model to meet the AIFMD requirements on safekeeping of financial instruments and other assets, cash flow monitoring and oversight Define the goverance and organisational model where the operating models of the manager and the depositary interact ( touch points processes, data and IT) Provide assurance on Depositary s cash flow reconciliation methodology and the AIFMs cash flow processes and procedures including investor subscriptions/redemptions and the use of transfer agents Assisting the Depositary in defining third party information based on the applicable auditing standards ( e.g., ISAE 3402). Define organizational design and procedures designed for Depositaries to minimize the risk of fraud, poor administration, inadequate registration and negligence Define third party opinions required to ensure proper ownership rights over assets Auditing compliance of third party custodian with defined requirements Using EY s international network to provide assurance in ownership verification for alternatives Design and implement ownership verification manual per asset class and jurisdiction Review statements of recognized external certifications by qualified external auditors and other experts Assurance on AIFMs effective implementation of quantitative and qualitative risk limits Investor payment reconciliations Review of effective implementation of valuation policies and procedures (IPEV, INREV) and NAV calculations policies Design and/or review implemented data quality and data management measures to ensure reliable data processing from source systems to reporting (e.g. in ownership verifications, asset classes, regulatory reporting). Contact Jeroen Preijde jeroen.preijde@nl.ey.com Rob Goutman rob.goutman@nl.ey.com Bart ter Huurne bart.ter.huurne@nl.ey.com Jacco Jacobs jacco.jacobs@nl.ey.com 16 Asset management Challenges and solutions

17 Solution Depositary selection AIFM need to appoint a depositary for the funds in scope of AIFMD. EY can provide support with the selection of the depositary for the funds in scope: Creating a short list of possible depositaries Assisting in the request for proposal and review of the depositaries responses Review of the operating models of the depositaries Perform an analysis of the depositaries fees Assist in the legal and financial negotiations with the depositaries Contact Bart ter Huurne bart.ter.huurne@nl.ey.com Solution Depositary VAT treatment Article 21 of the Directive states that an AIFM needs to appoint a depositary for each AIF it manages. The depositary duties consist of oversight, cash monitoring and safekeeping. Furthermore, the depositary can become liable for the loss of assets of the AIF for which it acts as depositary. For performing these activities and taking this liability, the depositary needs to be remunerated. EY can help you with a review of the VAT treatment of the depositary services, including a review of any existing VAT rulings and the implications of restructuring following AIFMD implementation. Contact Bas Breimer bas.breimer@nl.ey.com Asset management Challenges and solutions

18 Challenge Depositary liability risk The level of liability of the depositary under article 21 of the Directive is determined by the assets of the AIF: In case of financial instruments (securities), the depositary is liable for the loss of the assets unless the depositary can demonstrate that the loss results from an external event beyond reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts; Solution A depositary could manage these liabilities through captive coverage. When setting up such captive insurance model, EY can help to ensure the structure is optimized from a tax perspective. Furthermore, EY could provide an analysis of the impact on regulatory capital management. Contact Ton Daniels ton.daniels@nl.ey.com In case of non-financial instruments (e.g. real estate), the depositary is liable for all losses suffered by the AIF as a result of the depositary s negligence or intentional failure to properly perform its obligations. 18 Asset management Challenges and solutions

19

20 7. Delegation 20 Asset management Challenges and solutions

21 Challenge Article 20 of the Directive lays down restrictive requirements for delegation of tasks by an AIFM to third parties, including: each delegation should be justified with objective reasons risk management and/or portfolio management can only be delegated to entities that are subject to supervision an AIFM cannot delegate to an extent that it becomes a letter-box entity Solution Section 8 of the Level II guidance provides further guidance to the above mentioned requirements which outline that the AIFM needs to have objective reasons for delegation, perform effective supervision and manage potential conflicts of interests. Ongoing involvement is therefore key and EY can support you with ensuring the processes and procedures are sufficiently organised to comply with the delegation requirements. Level II measures further specify the delegation requirements and give criteria for objective reasons. Obviously, the delegate should be remunerated for the delegated tasks and functions. In case the delegate is a related party of the AIFM, such remuneration should meet the arm s length principle. Furthermore, transfer pricing rules require both the delegator (i.e. the AIFM) and the delegate to properly document the arm s length pricing of the delegated tasks and functions. EY can provide transfer pricing services to determine the arm s length price between delegator and delegate and can prepare the underlying transfer pricing documentation. Contact For more information, please contact Joost Hendrikx joost.hendrikx@nl.ey.com Bram Tijsseling bram.tijsseling@nl.ey.com Asset management Challenges and solutions

22 8. Assurance on policies and procedures 22 Asset management Challenges and solutions

23 Challenge The Directive and the delegated regulation include several policies and procedures that an AIFM should adopt and maintain in order to be compliant. Examples include policies and procedures around: Conflict of interest Risk management Portfolio execution Liquidity management Valuation Delegation The Directive includes several other areas where additional assurance may be needed, for example: Review calculation of assets under management Review calculation of leverage under management Review calculation of own funds/ professional indemnity Review of Financial reporting models Solution The AIFM is required to periodically assess the majority of these procedures. As we are able to review the design and implementation of these procedures and perform the periodic assessment, we are able to provide assurance to the AIFM on compliance with the requirements under the Directive. These required policies and procedures may be embedded in existing control frameworks for which we can provide assurance and other attestation services as well ( e.g., an AIFMD compliant ISAE3402 type 2 report). Contact Jeroen Preijde jeroen.preijde@nl.ey.com Rob Goutman rob.goutman@nl.ey.com Asset management Challenges and solutions

24 9. Remuneration/Human capital 24 Asset management Challenges and solutions

25 Challenge Based on article 13 of the Directive, an AIFM needs to establish and document remuneration policies and procedures for those categories of staff whose professional activities have a material impact on the risk profile of an AIF they manage. In this light, an AIFM has to comply with a set of principles which are laid down in Annex II of the Directive. Furthermore, the European Securities and Markets Authority (ESMA) has published a document called Guidelines on sound remuneration policies under the AIFMD that contains guidelines which comply with the principles of Annex II. The impact of these AIFMD remuneration rules on existing remuneration policies should be reviewed. Any adjustments that need to be made most likely will also have an impact on the wage tax and/or income tax position of the AIFM staff involved. Solution EY can help you with composing remuneration policies and review of existing remuneration policies and remuneration arrangements on compliance with the AIFM Directive. Contact For more information, please contact Mattijs van Eck mattijs.van.eck@nl.ey.com Asset management Challenges and solutions

26 10. Tax Optimization of AIFM Corporate Structure 26 Asset management Challenges and solutions

27 Challenge Following articles 6 and 7 of the Directive, no AIFM is allowed to manage an AIF unless it has been authorised by the competent authorities of the home Member State of the AIFM. Based on article 8 of the Directive, authorization by the home Member State is valid for all Member States, effectively resulting in a European passport for the AIFM. Annex I of the Directive lists the investment management functions which an AIFM must at least perform when managing an AIF (article 1), as well as other functions which an AIFM may additionally provide (article 2). Each AIFM needs to determine which entity in its corporate group structure in which Member State should apply for authorization and whether or not it needs to maintain its corporate structure in the other Member States. Solution Tax optimization at AIFM level Besides commercial reasons, tax consequences may be a main driver for the AIFM group s decision which entity in which Member State will apply for authorization. This decision may include AIFM group restructuring and consolidation of legal entities within the group. EY can help mitigating any adverse tax consequences. Moreover, EY can assist exploring tax optimization opportunities. Finally, EY can help determine whether the choices made under the AIFMD could adversely affect the tax structure of the AIF it manages. Contact Joost Hendrikx joost.hendrikx@nl.ey.com Solution VAT treatment of AIFM services Investment management services provided to an AIF should be able to benefit from the VAT exemption for collective/special investment funds based on EU VAT principles. EY can help you with a review of the VAT treatment of the services including additional services provided by an AIFM and can assist the AIFM when approaching the tax authorities. Contact Bas Breimer bas.breimer@nl.ey.com Asset management Challenges and solutions

28 11. Service providers 28 Asset management Challenges and solutions

29 Challenge Managers managing one or more AIFs which require a license due to the size of the assets under their management, have to comply with various license requirements. These include requirements on the delegation of management tasks, such as portfolio management and risk management. In addition restrictions apply with respect to parties to which certain services can be delegated, such as the valuation of fund assets. Furthermore, the AIFM Directive contains restrictions with respect to sub-delegation by service providers. Solution In order to assist service providers we offer the following solutions. Composing and reviewing format agreements for service providers such as external valuators, external asset managers, external risk managers in order to safeguard compliance with the AIFM Directive Advice on the requirements applicable to the performance of tasks delegated by AIFMs, including restrictions on subdelegation Contact For more information, please contact Juan Vervuurt juan.vervuurt@hollandlaw.nl Asset management Challenges and solutions

30 12. Reporting 30 Asset management Challenges and solutions

31 Challenge It is necessary for an AIFM to set up a reporting framework that ensures minimal reporting standards for annual reporting. Material changes in information, as stated by Article 22 (2)(d) of the Directive 2011/61/EU need to be disclosed in the Management Board report of the annual Financial statements. Any additions, like subtotals, may be enclosed if relevant for the overall understanding of the Financial position of the AIF. The valuation of assets and reporting thereof needs to be performed at least once a year. The balance sheet or the statement of assets and liabilities needs to include a line item cash and cash equivalents. Chapter 5 of the L2 guidelines describes, amongst others, the obligations relating to transparency in the financial reporting including the management board report. Articles 108 and 109 provide additional guidelines on investor reporting and article 110 on reporting to the regulators. Publication may be done via the AIFMs website. It might be a challenge for AIFMs to embed, in their current reporting framework, the necessary reporting facilities and additional controls to be able to comply with all new reporting requirements under AIFMD. Solution EY can provide support in various ways on the reporting requirements under AIFMD: We can provide support in the design and implementation of the required reporting framework under AIFMD. EY can help design and implement the reporting architecture, processes and systems. Also, EY can assist in a gap analysis on the reporting data requirements and advice on possible solutions for the gaps. In addition to validation of the reporting process, EY can validate the content of the reports such as validation of the data used within the report or overall assessments on data quality within reporting systems. On a recurring basis, we can perform controls testing or compliance procedures on the reporting process at the AIFM and/or AIF. On a periodic basis, we can also perform an audit or provide (additional) assurance on the investor, depositary and regulatory reportings of the AIF(s) and AIFM(s). Contact For further information on possible AIFMD reporting services please contact: Jeroen Preijde jeroen.preijde@nl.ey.com Rob Goutman rob.goutman@nl.ey.com Jacco Jacobs jacco.jacobs@nl.ey.com Juan Vervuurt juan.vervuurt@hollandlaw.nl Asset management Challenges and solutions

32 13. Data Management 32 Asset management Challenges and solutions

33 Challenge Acccording to the AIFMD, fund managers need to appoint a depositary for the purpose of asset protection (cash flow monitoring, safe keeping, ownership/asset data verification and oversight of duties). These depositaries face many new challenges, of which a significant part is data driven. The challenges often focus on greater data analysis, greater levels of data granularity and the ability to produce greater volumes of data faster. A robust solution to solve these data challenges is essential to meet the expectations of the fund manager and adhere to the new regulations. On the other hand an solution around data quality and data management that addresses simultaneous regulations is key. Managers and/or depositaries face many similar challenges throughout the data lifecycle when identifying, producing and managing regulatory data. A robust data Governance, Data Quality and Data Management framework and measures are key aspects for Depositaries to address. In order to satisfy to the AIFMD requirements, depositaries (and/or managers) need to ensure that relevant transaction data is available, accurate and complete from source systems to endreporting. Furthermore, adequate process and data monitoring facilities need to ensure that quality of data remains valid on an ongoing basis, including an appropriate process to follow-up and cleanse any inaccurate data. Solution Our solution enables you to identify and monitor key information (and data) elements in your process flows. By means of pro-active monitoring, exceptions will be identified early in the process and followed up on a short notice using an automated workflow tool. Appropriate cash flow monitoring assists fund managers and depositaries in getting in control of their data and satisfying AIFMD requirements. Examples of our support are: Design an effective data Governance and data quality framework Design and implement effective data quality measures around ownership verification, cash flow monitoring, etc Assist you in meeting your regulatory reporting requirements, from a data perspective, more effectively to meet various regulatory requirements Design and implement a process for effective continuous monitoring process for effective follow-up of exceptions noted in data quality which lead to process improvements Contact Jacco Jacobs jacco.jacobs@nl.ey.com Marc Welters marc.welters@nl.ey.com Asset management Challenges and solutions

34 EY Contacts Asset Management practice Jeroen Preijde Rob Goutman Joost Hendrikx Ton Daniels Piet-Hein Prince Jacco Jacobs jacco.jacobs@nl.ey.com Rianne Vedder rianne.vedder@nl.ey.com Remco Bleijs remco.bleijs@nl.ey.com Bram Tijsseling bram.tijsseling@nl.ey.com Juan Vervuurt juan.vervuurt@hollandlaw.nl 34 Asset management Challenges and solutions

35

36 EY Assurance Tax Transactions Advisory About EY EY is a global leader in assurance, tax, transaction and advisory services. The insights and quality services we deliver help build trust and confidence in the capital markets and in economies the world over. We develop outstanding leaders who team to deliver on our promises to all of our stakeholders. In so doing, we play a critical role in building a better working world for our people, for our clients and for our communities. EY refers to the global organization and may refer to one or more of the member firms of Ernst & Young Global Limited, each of which is a separate Legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. For more information about our organization, please visit ey.com Ernst & Young Accountants LLP All Rights Reserved. This publication contains information in summary form and is therefore intended for general guidance only. It is not intended to be a substitute for detailed research or the exercise of professional judgment. Neither EYGM Limited nor any other member of the global EY organization can accept any responsibility for loss occasioned to any person acting or refraining from action as a result of any material in this publication. On any specific matter, reference should be made to the appropriate advisor. ey.com/nl