Non-UCIT (Pre-2013) Schemes

Management Company

A non-UCIT management company administration company or trustee company must have minimum capital and report to the Central Bank periodically.  The initial minimum capital requirement is around €125,000.  The requirement is calculated as one-quarter of the firm’s total expenditure from its most recent account.  The minimum capital requirement is the higher of the expenditure requirement or the initial capital requirement.

A firm must have financial resources at least equal to its minimum capital requirements.  Financial resources for a firm are based on its accounts.  They are calculated by reference to equity plus capital and other reserves. There are requirements in relation to the maintenance of capital and the form in which capital is subscribed.

Eligible assets for the calculation are total assets less certain ineligible assets, including fixed assets, debtors, loans and intercompany balances.

Outsourcing

There are requirements applicable to outsourcing.  The ultimate responsibility for the management of the risk associated with outsourcing or outsourced activities remains with the administration’s firm’s senior management.  Outsourcing arrangements cannot result in delegation of senior management’s responsibility.

Administration firms may not outsource services and activities unless the outsourcing service provider has the appropriate authorisation to carry out its activities. Core administration activities may not be outsourced.  The basic responsibilities of management cannot be outsourced or delegated.

An area of activity of an administration firm other than those identified below may be outsourced, provided such outsourcing does not impair the orderliness of the conduct of the administration firm’s business or the financial services provided senior management’s ability to manage and monitor the firm’s business and activities the ability of the other internal governance body such as the board of directors and audit committee to fulfil their oversight tasks the supervision and administration of the firm by the Central Bank. The firm’s ability to have access and control over administration systems and generate a full set of books and records.

The administration firm must have a documented policy on its approach to outsourcing, including contingency plans and an exit strategy.  It must conduct its business in a controlled and sound manner at all times. An administration firm must appropriately manage the risk associated with outsourcing activities.

All outsourcing arrangements must be subject to a formal and comprehensive contract or a service-level agreement.  The outsourcing contract must oblige the service provider to protect confidential information.

When managing the relationship with an outsourcing provider the administration firm must ensure that the contract or service level agreement includes details of the responsibility of both parties and provides that a quality control description is put in place.

The administration firm must take account of the risks associated with chain outsourcing.  It must only agree to chain outsourcing if the subcontractor will also comply with the obligations existing between the administration of the firm and the outsourcing service provider, including obligations and commitments to the Central Bank.

The administration firm must take appropriate steps to address the risk of any weakness or failure in the provision of the subcontracted activities having a significant effect on the outsourcing provider’s ability to meet its responsibilities under the outsourcing agreement.

The administration firm must provide the Central Bank with access to relevant data held by the outsourcing service provider and the right of the Central Bank to conduct onsite investigations at an outsourcing service provider’s premises.

Constitutional Requirements Units

The constitutional documents, e.g. trust deed, deed of the constitution, and Articles of Association of an investment company, must lay down conditions for the creation and cancellation of units.

The assets, including techniques for the purposes of efficient portfolio management, must be valued by your clearly defined methods set out in the constitutional document.  The valuation method must be disclosed in the prospectus.

The assets of a collective investment scheme may be purchased and sold only at prices in conformity with the method defined in the constitutional document.  Units are to be issued or sold at a price arrived at by dividing the net asset value of the scheme calculated on an approved basis by the number of units outstanding.  The prospectus must disclose charges relating to the sale and issue of units.

Units may not be issued unless the equivalent of the net issue price is paid into the assets of a scheme within a reasonable time.  It should be set out in the prospectus.  This is without prejudice to the possibility of bonus units.

Units are to be redeemed and repurchased at a price arrived at by dividing the net assets value of the scheme by the number of units outstanding.  The prices may be reduced by duties and charges, which must be set out in the prospectus.

The maximum charge relating to redemption and repurchase may not be increased without the approval of the majority of votes cast at the member’s meeting.  Reasonable notification must be provided in respect of an increase in such charges. The constitutional documents must set out the frequency of price calculation and updating.

The management company, investment company, trustee etc., must issue register certificates or bearer securities representing units in the scheme.  Rights attaching to fractions of units are to be exercised in proportion to the fraction, except for voting rights, which may only be exercised as a whole.

Fees & Investments

The constitutional document shall prescribe the remuneration and expenditure which the managers may charge.  The maximum annual fee charged may not be increased without the approval of a majority of votes at Generally Meeting.

The constitutional document shall lay down the conditions and manner of application of income.  The schemes may not grant loans or act as guarantors.  They may acquire debt security or securities which are not fully paid up.

Change to investment objects or policies as they are disclosed in the prospectus may not be affected without the prior written agreement of all unitholders or without the approval of a majority of votes at meeting cast.  This applies to a material change which includes changes which significantly alter the asset type, credit quality, borrowing or leverage limits or risk profile of the scheme.

If the policy has changed as a result of a majority vote, a reasonable notification period must be provided to enable unitholders to redeem their units prior to the implementation of the charge.

Where management companies enter soft commission agreements, they must ensure the broker or counterparty has agreed to provide the best execution to the scheme, that the benefits provided must be those which assist the provision of investment services, and that there must be adequate disclosure in the prospectus and periodic reports issued by the scheme.

Investment limited partnership may subject to conditions, temporarily suspend the calculation of net asset value in redemption of units.  This may be allowed only in exceptional circumstances where it is justified, having regard to the interests of partners and must be immediately notified to the Central Bank.

Prospectus for non-UCITS

A collective investment scheme must publish a prospectus which must be dated and kept up-to-date.  It must be offered to investors free of charge before the conclusion of a contract.  It must contain sufficient information to enable investors to form an informed judgment of the investment proposed.

Material changes of the prospectus must be notified to unitholders in subsequent periodic reports. The prospectus may be translated into other languages provided it must contain the same information as the prospectus submitted to the Central Bank.

All publicity comprising an invitation to purchase units in a collective investment scheme must indicate that a prospectus exists and places where it may be obtained.  Advertising must not contain false or misleading information and must not be presented in a manner, which is deceptive.  Advertising shall refer to the scheme prospectus and must not be inconsistent with it.

Advertisements

Collective investment schemes marketing their units in Ireland or in jurisdictions with no statutory regulation must comply with the following standards:

All advertisements must be prepared with care and with a conscious aim of ensuring the potential investors fully grasp the nature of any commitment into which they enter.  The fact that the complexities of finance may be beyond those to whom the opportunity to invest is offered should be taken into account, and advertisements must not take advantage of inexperience or credulity.

When an advertisement contains any forecasts or projections, where they are of a specific growth rate or return, it should make clear the basis on which the forecast or projection is made, claiming, for instance, whether reinvestment income is assumed, whether account is taken of tax or whether the forecast or rates of return is subject to deductions upon any premature realisation or otherwise.

Advertisements leading to money and anything, the value of which is not guaranteed, should clearly indicate that the value can go up to #[06:42] and the return will necessarily be variable. Where the values are guaranteed, sufficient detail must be given to give the reader a fair view of the nature of the guaranty.

All advertisements making claims specific or otherwise as to anticipated growth in value or a rate of return should include a note giving due prominence to the effect that neither past experience nor the current situation are necessarily accurate guides to the future.

Where an advertisement quotes past experience in relation to projected growth or forecast, it should not mislead in relation to present prospects and should indicate the circumstances in which and the value for the period over which experience has been gained in a way that is fair and representative.

Where investors are offered the facility of planned withdrawal from capital as an income equivalent, the advertiser should ensure the effect of withdrawals on the investment is clearly explained.

Where claims to investment skill are based on an asserted increase in the value of particular items purchased or recommended for purchase by the advertisement in the past, he should be able adequately to substantiate that the purchaser recommendation upon which this assertion was based was made at the time claimed and the present value asserted for the investment corresponds to the price actually obtained for identical items when sold in the open market in the period immediately preceding the appearance of the advertisements.

No claim to an increase in the value of the investment should be based on the performance given in the market of selected items only unless substantiation can be provided for in the form set out above.

Phrases such as tax-free and tax paid should not be used unless it is made clear which particular taxes are involved and the advertiser states as clearly as possible what liabilities arise and by whom they will be paid.  When the achievement or maintenance of the return claimed or offered for a given investment is in any way dependent upon the assumed effects of the tax or duty, this should be clearly explained and the advertisement should make it clear that no undertaking can be given that the fiscal system may not be revised with consequent effect upon the return offered.

Contents of Prospectus I

The prospectus must at least contain the following:

• Information regarding the legal nature, form of the scheme, registered office, head office, and date of establishment.  It should state a place where the constitutional documents, if not annexed, may be obtained.  It should set out brief indications relevant to the unitholders of the applicable taxation system, including whether deductions are made at source from income or gain.
• It should set out the time limit after which entitlement to dividend lapses and procedures applicable in the event.
• In the case of an investment company, names and positions of the directors, past and present experience relevant to the scheme, details of the main activities, and their main activities outside the company are of significance in relation to the company.
• Name and address of the auditor.
• Details of the main characteristics of the units, including details of the rights attaching to them, security certificates, proving evidence of title, characteristics, indication of voting rights, and circumstances in which winding up may be determined.
• Details of any stock exchanges in which the units are listed or dealt on.
• Procedures for repurchase and redemption including periods within which redemption will be paid.
• Description of rules for determining and applying income.
• Description of investment objects, including investment policy.  The description must be comprehensive and accurate.  Readily comprehensive to investors and sufficient to enable them to form an informed judgment on the investment.  It shall include any limitation on the investment policy following powers.

There must be a description of the scheme’s intentions regarding the techniques and instruments which may be used for the purpose of efficient portfolio management, including its objectives and a policy including a description of the different techniques and instruments that may be used and risks inherent.

It shall set out rules for the valuation of assets. It must set out provisions for the determination of the sale or issue price and repurchase and redemption price, including methods and frequencies of calculation of prices, information regarding charges relating to the sale and issue, means, place and frequency of publication of prices.

Contents of Prospectus II

In the case of Umbrella funds, the charges if any applicable to switching and the extent to which one sub-fund may invest in another and the conditions which apply to such investments.

The manner, scheme and calculation of remuneration to the scheme management and reimbursement of costs to management must be set out.  All other costs to be borne by the scheme must be set out.  All information on remuneration costs and expenses to be borne by the scheme must be set out in a manner that is easily understood and analysed.

There are detailed provisions regarding the legal form, nature, and location of the management company, general partner, trustee and investment advisor.  Material provisions of contracts with the investment manager must be provided for.

It must be specifically stated that the authorisation by the Central Bank does not constitute a warranty or guarantee regarding the creditworthiness or financial standing of the parties to the scheme.   A prospectus must identify and describe in a comprehensive manner the risks applicable to investing in the particular scheme.

In particular, it should make reference to the fact that prices of units may fall as well as rise.  The desirability of consulting a stock broker or financial advisor about the contents of the prospectus and where relevant the fact that the difference of any one-time between the sale and repurchase price of units in the scheme means that the investment should be viewed as medium to long term.

In the cases of schemes with objectives of higher than average risks, there must be a recommendation that the investment fund should not constitute a substantial proportion of an investment folio and may not be appropriate to all investors.  This must be highlighted at the beginning and must contain full details in the prospectus, which must contain a full description of the risks involved. Details of the persons who accept responsibility for the information contained must be contained in the prospectus.

In the event that a stated minimum size is not reached within a stated period, the scheme must state the scheme of return and subscriptions to unit holders and will apply to the Central Bank for revocation of its license.

A description of the potential conflicts of interest which could arise between the management company, investment advisor and the scheme, with details of how they are going to be resolved.  A description of soft commission arrangements which may be entered into by the management administration company and the scheme managers.

The name of any party who has been contracted by the management company to carry out work.Material provisions of the contract between third parties and the management company, general partner or investment company which may be relevant to the unit holder.

Reports & Returns

There are provisions for monthly returns and annual and half-yearly reports.  There are detailed requirements as to what is to be included in the report.

Monthly returns are to include total gross assets, value of the scheme in the month, total net asset value, total number of units in circulation, net asset value per units, payments received from issues, payment made for redemptions, net amount from issues and repurchases during the month.

An annual report is to be published for each financial year, and a half-yearly report for the first six months of the financial year.   The accounting information in it is to be audited.  The auditor is to report to the unit holders and it is to be reproduced in the annual report.

The annual and half-annual reports must be published within four months and two months, respectively, of the yearly and half-yearly ends.  Each must contain the information prescribed and mentioned below.  They must be filed with the Central Bank.

The latest annual report and half-yearly report published must be offered to investors free of charge before the conclusion of a contract.  The annual and half-yearly reports must be available to the public in places specified.  They are to be supplied to unitholders free of charge.   The Central Bank may exempt an investment limited partnership from the EU accounts regulations where its sole business is the investment of funds and property with the aim of spreading risk and giving its partners the benefit of the management of those risks.

Annual Return Requirements

In broad terms, the information being included in the annual report includes

• balance sheet of assets and liabilities,
• number of units, net asset value per unit, portfolio statement distinguishing between different types of investments and each analysed in accordance with the most appropriate criteria in the light of the investment policy of the scheme as a percentage of net assets; for each of the investments, the proportion that it represents of the total assets;
• a statement of changes in the composition of the portfolio during the reference period.
• Where more than 10% is held in deposits, details of the amounts and names of institutions.
• Investments by sub-funds within an umbrella structure.
• Description of soft commission arrangements.
• Description of how techniques and instruments relating to the transfer of the securities allowed for efficient portfolio management have been utilised.
• Other details regarding derivatives and portfolio management.
• Description of material changes in the prospectus during the year.
• List of exchange rates used.
• Statement of the development of assets during the reference period.
• Comparative table covering three years, reports on the activities for the year, trustees report.
• Certain of the above information must also be included in the half-yearly report.