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FMA Aufsichtskonferenz 27. September 2010, Wien

Alternative Investment Fund Managers Richtlinie-

aktueller Stand und zukünftige Entwicklungen

Peter De Proft

Director General

(2)

"EFAMA Land"

26 Countries:

– 22 EU Members, and – Liechtenstein

– Norway

– Switzerland – Turkey

44 Corporate Members

(3)

EFAMA Membership

26 National Associations

• Austria: VÖIG

• Belgium: BEAMA

• Bulgaria: BAAMC

• Czech Rep.: AKAT CR

• Denmark: IFR

• Finland: FFFS

• France: AFG

• Germany: BVI

• Greece: AGII

Hungary: BAMOSZ

• Ireland: IFIA

• Italy: Assogestioni

• Liechtenstein: LAFV

• Luxembourg: ALFI

• Netherlands: DUFAS

• Norway: VFF

• Poland: IZFiA

• Portugal: APFIPP

• Romania: AAF

• Slovakia: SASS

• Slovenia: ZDU-GIZ

• Spain: Inverco

• Sweden: FBF – SIFA

• Switzerland: SFA

• Turkey: TKYD

• United Kingdom: IMA

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EFAMA Membership

44 corporate members

Allianz Global Investors Amundi

Aviva Investors

Axa Investment Managers BBVA Asset Management

Banque Cantonale Vaudoise Asset Management BlackRock

BNP Paribas Investment Partners BNY Mellon Asset Servicing

Capital International Carmignac Gestion Credit Suisse DekaBank

Dexia Asset Management DWS Investment

Eurizon Capital

Invesco

IS Asset Management

JP Morgan Asset Management

KBC Asset Management

Lombard Odier Funds (Europe)

Lyxor Asset Management

M&G Investments

Natixis Asset Management

Nordea Investment Funds

Pictet & Cie

Pioneer Investments

Raiffeisen Capital Management

Robeco

Santander Asset Management

Schroders

SKAGEN Funds

Source

State Street Global Advisors

(5)

AIFMD: AIF in Europe

Assets Mill

Eur. % Number of

Funds %

Austria 56,121 3.21% 732 4.53%

Belgium 5,660 0.32% 35 0.22%

Bulgaria 2 0.00% 1 0.01%

Czech Republic 50 0.00% 3 0.02%

Denmark 51,580 2.95% 344 2.13%

Finland 6,819 0.39% 111 0.69%

France 168,000 9.62% 3,670 22.72%

Germany 798,806 45.75% 3,962 24.53%

Greece 1,088 0.06% 8 0.05%

Hungary 2,718 0.16% 85 0.53%

Ireland 151,298 8.67% 1,906 11.80%

Italy 63,805 3.65% 385 2.38%

Liechtenstein 2,300 0.13% 153 0.95%

Luxembourg 248,620 14.24% 3,215 19.91%

Netherlands 12,700 0.73% 64 0.40%

Norway - -

Poland 6,720 0.38% 305 1.89%

Portugal 16,891 0.97% 346 2.14%

Romania 1,795 0.10% 18 0.11%

Slovakia 163 0.01% 5 0.03%

Slovenia 380 0.02% 4 0.02%

Spain 7,368 0.42% 62 0.38%

Sweden 2,869 0.16% 24 0.15%

Switzerland 40,312 2.31% 205 1.27%

Turkey 2,432 0.14% 49 0.30%

United Kingdom 97,494 5.58% 458 2.84%

1,745,990 16,150

Non-UCITS Funds

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AIFMD: EFAMA Priorities

Decision by the Board of Directors in Luxembourg on 4 June 2010:

• First Priority: Delegation

• Second Priority: Freedom of investment for institutional investors

• Third Priority: (Partial) exclusion of funds for up to 3 professional investors

• Fourth Priority: All other requests

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AIFMD: Delegation (1/2)

EFAMA Position

• Delegation and Sub-delegation shall be allowed following the UCITS approach: Within Europe, outsourcee may be authorised under

UCITS or MiFID Directive. Delegation is possible to portfolio

managers in third countries established and regulated in accordance with their national law. No requirement to hold AIFM license.

• Procedure should be notification procedure (like UCITS) not authorisation procedure.

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AIFMD: Delegation (2/2)

Belgian Presidency Proposal

• Text very close to UCITS approach

• Procedure is notification before delegation becomes effective

• AIFM must be able to justify its entire delegation structure with objective

reasons

(9)

AIFMD : Freedom of Investment for institutional investors (1/2)

EFAMA Position

• EFAMA asks for national private placement rules allowing institutional investors to invest at their own initiative into Third Country AIF.

• The Board has instructed to underline that funds of funds should also be considered as institutional investors.

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AIFMD : Freedom of Investment for institutional investors (2/2)

Belgian Presidency Proposal

• Marketing defined as offering or placement of AIF to investors domiciled in the EU

• No national private placement regimes possible

• Commission to define circumstances under which marketing shall be deemed to be by the AIFM or on behalf of the AIFM

• Investment at the own initiative of the institutional investors seems to be

excluded.

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AIFMD: Partial exclusion of funds dedicated to up to 3 professional investors

EFAMA Position

• EFAMA requests at least a partial exclusion from the directive for funds dedicated to up to 3 professional investors.

Belgian Presidency Proposal

• No exclusion for funds dedicated to up to 3 professional investors.

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AIFMD: Valuation (1/3)

Valuation

EFAMA Position:

• AIFM is responsible for the valuation of the AIF assets as well as for the calculation and publication of the net asset value or valuation attributed, delegated or assigned in accordance with the existing national solutions (AIFM in accordance with some national laws not responsible for the proper valuation of AIF assets).

• Requirement of authorisation and supervision of valuator problematic

as it reduces the choice of possible valuators, in particular also in

regard to third countries.

(13)

AIFMD: Valuation (2/3)

Valuation

Belgian Presidency Proposal

• AIFM is responsible for and shall ensure proper valuation of AIF assets as well as for calculation of net asset value and publication of that net asset value,

• Internal or external valuer legally or functionally independent from portfolio management

• External valuer may be used and must be subject to mandatory

professional registration and furnish sufficient professional guarantees to undertake functions in question, selected with due care and AIFM must be in position to monitor effectively the activity of the external valuer

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AIFMD: Valuation (3/3)

Valuation

Belgian Presidency Proposal

• External valuer may not be depositary unless it has functionally and

hierarchically separated the performance of its depositary function

from its tasks as external valuer and the potential conflicts of interest

are properly identified, managed and disclosed to the investors of the

AIF.

(15)

Depositary

EFAMA Position:

• Eligible institutions : a majority of EFAMA members is in favor of limiting eligible institutions to Credit institutions and MiFID firms authorized to provide ancilliary services of safe-keeping and administration and subject to capital requirements.

• Delegation, but also sub-delegation, of custody functions should be allowed (subject to proper due-diligence process)

• Liabilities:

– General principle of liability to be based on UCITS standard of unjustifiable failure to perform its obligations (no strict liability regime for depositaries)

– Depositaries should not be held liable for losses arising out of Force Majeure (or equivalent concept)

AIFMD: Depositary (1/3)

15

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AIFMD: Depositary (2/3)

Depositary

Belgian Presidency Proposal:

• Eligible institutions: also open to other categories of institutions

already authorized to provide depositary services at the time of entry into force of AIFMD

• Clarification of rules regarding country of establishment of depositaries for non EU-AIFs (linked to third country issue)

• Delegation and sub-delegation of custody function allowed if objective

reason for delegation and subject to adequate structures and ongoing

monitoring of sub-custodians

(17)

AIFMD: Depositary (3/3)

Depositary

Belgian Presidency Proposal:

• Liabilities – general principles:

Depositary liable to AIF and its investors in case of loss of financial instruments held in custody – obligation of restitution without undue delay (except if loss result of

external event outside depositary’s reasonable control)

Depositary also liable for any other losses resulting of its negligent or intentional failure to perform its obligations

Depositary also liable in case of delegation of custody function, but possibility for depositary to discharge its liability on sub-custodian through written contract with AIF

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AIFMD: Remuneration

Remuneration

• Inserted into AIFMD in ECON and Council Drafts as consequence of Financial Crises

• ECON Secretariat suggests drafting following CRD 3 rules

• Commission suggests identical rules for AIFMD and UCITS V

• EFAMA Position: Provisions need to reflect business model of asset

management industry

(19)

AIFMD: Industry Reaction (1/5)

- Uncertainty over content and timing of AIFMD (Level I) - Blocking Factors Private Equity and Third Countries

- Important delegation of competences to Level II (Commission and ESMA) – uncertainty over content and timing of Level II

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AIFMD: Industry Reaction (2/5)

Newcits

• Since Madoff, Lehman and the financial crisis more investors are looking for fund structures that will provide them with return ON their assets, but also return OF their assets.

• The UCITS III framework has a proven safety of assets framework what provides investors with liquidity, transparency, risk

management and control, but flexible enough through the use of

derivatives to create more than just long only products.

(21)

AIFMD: Industry Reaction (3/5)

Newcits

• The uncertainty surrounding the implications of the future European regulation of alternative investment managers also contributed to the convergence process between hedge funds and UCITS.

• UCITS Directive does not distinguish between different types of UCITS fund category. Newcits cannot be considered as an

independent category of fund; they represent instead a specific niche in the UCITS market and regulatory space.

• Risk management has come to the top of the agenda.

• It is necessary to protect the UCITS brand against potential collateral damages.

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AIFMD: Industry Reaction (4/5)

Source: EFAMA and PwC

(23)

AIFMD: Industry Reaction (5/5)

Relocation

- Relocation of products for the European market to Europe

- Relocation of products and managers for non-European markets to Third Countries

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Reaction of Foreign Regulators:

• Questions regarding suitability of “Newcits” for retail investors

• Negative Impact of “Newcits” on well established UCITS brand

• Retaliation measures because of uncertainty over AIFMD

AIFMD: Regulator Reaction

(25)

UCITS IV and UCITS V are examples of cross border fertilization between industry and

legislators!

AIFMD started on a wrong footing from the word go!

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FMA Aufsichtskonferenz 27. September 2010, Wien

Contact

Peter De Proft Director General EFAMA

Square de Meeûs, 18/2 B-1050 Brussels, Belgium Tel. +32 (2) 513 3969

Fax + 32 (2) 513 2643

References

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