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25 March 2020
Jersey private funds
Eligible investor funds
Regulation of service providers to funds
Jersey is long established as a primary centre for the establishment of offshore funds and has been at the forefront of international developments, which have attracted international sponsors, promoters, fund managers, advisers and investors. One of the key features of Jersey's fund industry is the flexibility and range of structures and corresponding regulatory and commercial approaches that can be used for funds.
This article examines private funds. For a discussion on public funds, please see "Jersey public investment funds – regulatory options").
The Jersey Private Fund (JPF) Guide, issued by the Jersey Financial Services Commission (JFSC), defines a 'JPF' as a private investment fund that involves the pooling of capital raised for the fund and operates on the principle of risk spreading. The guide sets out certain vehicles that are not intended to fall within its scope, which broadly include:
A JPF may be structured in Jersey as a company, unit trust or partnership or an equivalent vehicle overseas. It requires a consent issued under the Control of Borrowing (Jersey) Order 1958 (the COBO Order) and may be established using a streamlined authorisation process. The promoter of a JPF does not require the JFSC's prior approval.
There is no requirement for a JPF to have an offer document, but investors must acknowledge in writing a prescribed investment warning and disclosure statement. Neither the number of offers nor the number of investors can exceed 50, and each investor must be a 'professional investor' or an 'eligible investor', as defined in the JPF Guide, which includes investors that invest a minimum of £250,000 (or the equivalent in another currency). The JPF Guide provides guidance on how offers and investors will be counted.
A requirement of the JPF Guide is that JPFs must appoint a designated service provider (DSP). This should be an existing Jersey-regulated full substance entity, so is typically carried out by the JPF's administrator. The DSP must, among other duties, make all reasonable enquiries to ensure that the JPF meets all eligibility criteria, both on its establishment and on a continuing basis, and ensure that all necessary due diligence on the JPF and all related parties (including the promoter and service providers) is carried out.
Where a JPF is structured as a company, there is no requirement under the JPF Guide for it to have Jersey-resident directors. Similarly, where a JPF is structured as a partnership or unit trust, there is no requirement under the JPF Guide for the general partner or trustee to be incorporated in Jersey or for the general partner or trustee to have Jersey-resident directors. However, while there is no explicit requirement under the JPF Guide for mind and management to be in Jersey, the JPF Guide states that the JFSC expects there to be one or more Jersey-resident directors on the board of a JPF's governing body in most cases.
If a private investment structure is a JPF, it is likely to involve a Jersey entity (eg, a corporate general partner of a JPF) which conducts fund management business and will therefore fall within the scope of the Taxation (Companies - Economic Substance) (Jersey) Law 2019 (Substance Law), which came into force on 1 January 2019. Such Jersey entity will need to ensure that it is governed and operated in a way which complies with the Substance Law – namely, that:
Fund vehicles themselves are outside the scope of the economic substance rules, other than self-managed funds (ie, corporate funds which do not appoint an external manager but which are managed internally by their board of directors), which will be in scope as fund managers after a change to the Substance Law expected to be effective in 2020.
The JPF replaced the three existing fund products that previously catered for private funds in Jersey (ie, very private funds, COBO-only funds and private placement funds). A new private fund may now be launched only as a JPF; very private funds, COBO-only funds and private placement funds all had to be launched before March 2017. Existing very private funds, COBO-only funds and private placement funds may elect to convert into a JPF (but are not required to and will continue to remain subject to their current regulatory regime if they do not).
JPFs are capable of being marketed to investors in the European Union or European Economic Area subject to compliance with certain additional requirements as set out below (see the "AIFMD" section below).
Unregulated funds are exempt from regulation as collective investment funds by virtue of an exemption order that specifies schemes or arrangements that have been established as either:
Either type of unregulated fund may take any form recognised under the laws of Jersey – namely:
Subject to the structure complying with the order, there is no regulatory review or oversight of the terms or conduct of such an unregulated fund.
The offer or listing document of an unregulated fund must contain a prominent statement that the fund is unregulated, together with a prescribed form of investment warning. In order to claim exemption as an unregulated fund, a completed notice must be filed with the Jersey registrar of companies.
Further to the implementation of the EU Alternative Investment Fund Managers Directive (AIFMD) (2011/61/EU) in Jersey, it is no longer possible to market JPFs, COBO-only funds, private placement funds or unregulated funds in the European Union or the European Economic Area without further regulation to ensure compliance with the AIFMD (as set out in further detail below).
Where a fund will be regulated as a collective investment fund pursuant to the Collective Investment Funds (Jersey) Law 1988 (CIF Law), as amended – which means that offers can be made to an unlimited number of investors – a light level of regulation is possible, provided that all investors qualify as expert investors and expressly acknowledge an investment warning. This allows a fund to qualify as an expert fund under the Expert Fund Guide issued by the JFSC. Expert investors include (among other tests) any person investing at least $100,000 (or the equivalent in another currency). The approval process for seeking a certificate for expert funds pursuant to the CIF Law is streamlined and typically takes as little as three days from the formal filing of the application.
Other necessary features of expert funds include the following:
Expert funds are capable of being marketed to investors in the European Union or European Economic Area subject to compliance with certain additional requirements (as set out in the "AIFMD" section below).
Eligible investor funds are regulated pursuant to the CIF Law and are restricted to 'eligible investors' (which includes, among other tests, any person committing at least $1 million (or the equivalent in another currency) to the fund). Eligible investor funds are subject to a streamlined approval process and a relatively light degree of regulation in accordance with the JFSC Eligible Investor Fund Guide.
Other necessary features of eligible investor funds include the following:
To the extent that a fund is to be offered to more than 50 investors or listed and is unable to fall under the expedited regulatory approach offered under the Expert Fund Guide, the Listed Fund Guide or the Eligible Investor Fund Guide, a collective investment fund may be regulated as an unclassified fund pursuant to the CIF Law. In this situation, the JFSC will regulate the fund in accordance with its policy, which includes compliance by the promoter of the fund with the JFSC's promoter policy. This will include an evaluation of the promoter's track record, experience and reputation, as well as its financial resources and spread of ownership. The JFSC will review the prospectus, constitutional documents and material agreements relating to the fund. The fund operation and investment and borrowing restrictions will need to comply with certain established standards against which the JFSC evaluates funds of this type.
Other relevant features of unclassified funds include the following:
Recognised funds are regulated as collective investment funds pursuant to the CIF Law and must, in addition, comply with a separate prescriptive order. Funds of this type may be marketed directly to retail investors in the United Kingdom under the UK Financial Services and Markets Act 2000, taking advantage of Jersey's designated territory status for the purpose of this legislation. Recognised funds are more highly regulated and provide investors with access to a statutory compensation scheme. Recognised funds may also be marketed to the public in numerous other territories, including Australia, Belgium, Hong Kong, the Netherlands and South Africa. Functionaries of recognised funds are also regulated under the CIF Law.
Service providers to unclassified or unregulated funds in Jersey are licensed and regulated under the Financial Services (Jersey) Law 1998 (FSJL), as amended, as providers of fund services business. Once an entity is registered for a class of funds service business, it no longer needs to apply for authorisation in relation to each new fund for which it provides that class of services.
Service providers to JPFs are not required to be licensed under the FSJL as they generally benefit from exemptions to such licensing on the basis that the fund meets the criteria of a professional investor regulated scheme.
Separate briefings on the regulation of service providers to different types of fund are available upon request.
Since July 2013, Jersey AIF managers marketing Jersey or other non-EU or EEA AIFs to investors in the European Economic Area have been required to comply with additional disclosure, transparency and reporting requirements pursuant to the AIFMD.
In addition to the requirements summarised above for each relevant fund product, where the fund is a Jersey private, very private, COBO-only or private placement fund which is to be marketed to investors in the European Union or European Economic Area, the fund must apply to the JFSC for an AIF certificate pursuant to the AIFs (Jersey) Regulations and comply with the applicable sections of the JFSC Code of Practice for AIFs and AIF Services Businesses, which mirrors the AIFMD Level 2 Regulation.
Jersey-based AIF managers of these funds must be licensed by the JFSC pursuant to the FSJL as providers of AIF services business and must comply with relevant sections of the Code of Practice for AIFs and AIF Services Businesses.
These funds must be converted to another form of fund (eg, an eligible investor, listed or expert fund) before they may be marketed to investors in the European Union or the European Economic Area).
Jersey offers a location for investment funds which does not impose its own tax burden on an investment fund or its investors.
Jersey-domiciled investment funds may be structured as companies (including protected cell companies and incorporated cell companies), limited partnerships (including incorporated limited partnerships and separate limited partnerships) or unit trusts. They may be open or closed ended.
For further information on this topic please contact Niamh Lalor, Emily Haithwaite, Tatiana Collins or Alexandra O'Grady at Ogier by telephone (+44 1534 514 000) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com). The Ogier website can be accessed at www.ogier.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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