funds management – Global Investment Law Watch

New Year, New CPO/CTA Exemption Affirmations and CPO FinCEN Requirements

Jan 03 2024

By: Clifford C. Histed, Kenneth Holston, Cheryl L. Isaac, and Matthew J. Rogers

Happy New Year! As we kick off 2024, we note that the National Futures Association (NFA) published its annual Notice to Members with guidance on the annual affirmation requirement for certain exempt commodity pool operators (CPOs) and commodity trading advisors (CTAs). If you rely on an exemption or exclusion from CPO registration under CFTC Regulation 4.13(a)(1), 4.13(a)(2), 4.13(a)(3), 4.13(a)(5) or 4.5, or an exemption from CTA registration under 4.14(a)(8), you must file an annual affirmation in the NFA’s Exemptions System by 29 February 2024, and a multi-factor authentication is now required for access. Failure to make this affirmation will result in your registration exemption being withdrawn on 1 March 2024.

In addition, the NFA also issued a Notice to Members regarding the Financial Crimes Enforcement Network (FinCEN) final rule implementing the Corporate Transparency Act beneficial ownership information (BOI) reporting requirements. Although CFTC-registered entities (including CPOs and CTAs) are exempt from these requirements (see 31 U.S.C. §5336(a)(11)(B)(xiv)), certain pooled investment vehicles will be required to comply. Commodity pools that are operated or advised by an SEC-registered broker-dealer or investment adviser are generally exempt, but a limited number of other commodity pools will be subject to the new rule.

Accordingly, CPOs with non-exempt commodity pools will need to file BOI reports with FinCEN, including identifying information about individuals who directly or indirectly own or control the commodity pool. FinCEN recently extended the BOI reporting deadline for certain reporting companies, with the relevant compliance dates as follows:

Commodity pools created or registered before 1 January 2024: file BOI reports by 1 January 2025.
Commodity pools created or registered in 2024: file BOI reports within 90 calendar days after registration is effective.
Commodity pools created or registered on or after 1 January 2025: file BOI reports within 30 calendar days after registration is effective.

For commodity pools created or registered after 1 January 2024, a CPO will also need to report information about the “company applicants,” meaning the individual or individuals who directly file the document that creates or registers the commodity pool.

Please feel free to contact the authors of this blog post with any questions.

Europe: Central Bank’s Dear CEO Letter Highlights Actions to be Addressed by FMCs and AIFMs Without Delay

Apr 28 2023

By Gayle Bowen and Áine Ní Riain

On 24 March, the Central Bank of Ireland issued a “Dear Chair” letter following its review in 2021 of the costs and fees charged to UCITS as part of the ESMA Common Supervisory Action (the CSA).

The letter, which is addressed to Irish UCITS fund management companies (FMCs), sets out the Central Bank’s main findings from the 2021 review and its expectations on actions to be taken by FMCs to address deficiencies identified. Despite the focus being on UCITS FMCs, the Central Bank specifically emphasises that it will expect its findings and actions to be considered also by Irish AIFMs with reference to AIFs under management.

United States: SEC Proposes Amendments to Broaden the Scope of Regulation S-P in Response to Digital Communications and Risks to Customer Personal Information

Mar 17 2023

By: Trayne S. Wheeler, Brian Doyle-Wenger, and Gustavo De La Cruz Reynozo,

On March 15, 2023, the U.S. Securities and Exchange Commission (“SEC”) proposed amendments to Regulation S-P. The proposed amendments would require covered institutions to enhance protections of consumer information by requiring the adoption of written policies and procedures for an incident response program. The amendments would expand the scope of Regulation S-P by requiring covered institutions to provide timely notifications to individuals affected by data breaches and by extending the definition of the information covered by the regulation.

United Arab Emirates: SCA Overhauls Regulations Governing Foreign Fund Offerings

Jan 19 2023

By: C. Todd Gibson, Amjad Hussain, and Zaid Abu-Shattal

The Securities and Commodities Authority (“SCA”), the federal financial regulatory agency in the United Arab Emirates (“UAE”) issued on 16 January 2023 a suite of new decisions and regulations, which introduced sweeping changes to the public distribution of foreign funds in the UAE.

Pursuant to SCA Chairman of the Board of Directors Decision No. 4/RM of 2023 Concerning the Procedures of Adjustment of Situation to Promote Units of Foreign Funds in the UAE (“Foreign Funds Regulations”), which came into effect on 17 January 2023, promotion of foreign funds in the UAE is now limited to private distribution to professional investors and/or market counterparties, as defined in the SCA Rulebook. As of today, the updated regulations are only available in Arabic.

Amongst other obligations set out in the Foreign Funds Regulations, promoters of foreign funds in the UAE must amend their arrangements with managers of foreign funds to comply with the provisions of the Foreign Funds Regulations.

The Foreign Funds Regulations state that promoters may continue performing their obligations pursuant to contracts that are still in force for a period not exceeding six months from 1 January 2023 or until the expiration of such contracts (whichever comes first), provided that the registration of the concerned foreign funds are renewed within the transitional period and payment of the prescribed fees are made to the SCA.

The SCA seems to want to encourage global asset managers to set up an onshore presence and establish onshore domestic public or private funds to target investors in the UAE in accordance with the new requirements and processes that were also issued on 16 January 2023 under the SCA Chairman of the Board of Directors Decision No. 1/RM of 2023 on the Regulation of Investment Funds. The SCA also issued decisions with respect to regulations governing the registration of securities for listing purposes, amending certain provisions of the SCA Rulebook, clearing activities in local commodity markets, and SCA services fees.

United States: SEC Throws a Flag on Red Flags Programs

Dec 06 2022

By: Jessica D. Cohn and Keri E. Riemer

On 5 December 2022, the staff of the Division of Examinations (Staff) of the Securities and Exchange Commission (SEC) issued a risk alert identifying practices that are inconsistent with Regulation S-ID, thereby exposing retail customers to potential identity theft.

Regulation S-ID, which applies to SEC-regulated entities that are financial institutions or creditors under the Fair Credit Reporting Act (including most registered broker-dealers, registered investment companies and registered investment advisers), requires the establishment of programs designed to detect, prevent, and mitigate identity theft in connection with covered accounts (each, a Program). Programs must include reasonable policies and procedures to identify, detect, and respond to red flags relevant to identity theft.

United States: SEC Adopts Expanded Proxy Voting Reporting by Registered Funds and New Reporting of Executive Compensation Votes by Form 13F Filers

Nov 07 2022

By: Lynn A. Schweinfurth, Kathy Kresch Ingber, and Crystal Liu

On November 2, by a vote of 3 to 2, the Securities and Exchange Commission adopted, largely as proposed, amendments to Form N-PX under the Investment Company Act of 1940 and new Rule 14Ad-1 under the Securities Exchange Act of 1934 (Amendments). The Amendments expand the proxy voting information that registered investment companies (Funds) report on Form N-PX, and require, for the first time, Form 13F filers (Managers) to report annually on Form N-PX how they voted proxies concerning certain shareholder advisory votes on executive compensation (“say-on-pay” votes).

Australia: Australian Government abandons introduction of limited partnership structure

Oct 26 2022

By Kane Barnett

The Australian Government has delivered the 2022-23 Federal Budget. One of the announcements relevant to the investment funds industry was that the Government “has reviewed and will not proceed with … the 2016–17 Budget measure that proposed introducing a new tax and regulatory framework for limited partnership collective investment vehicles”.

United States: SEC Reopens Comment Period for Eleven Significant Rulemaking Releases

Oct 14 2022

By: Trayne S. Wheeler and Brian Doyle-Wenger

On October 7, 2022, the Securities and Exchange Commission (the “SEC”) announced that, due to a technological error, it was reopening the public comment periods for 11 pending rulemaking releases (“Rulemaking Releases”) and one request for comment. The comment periods will be reopened as of October 7^th and will end 14 days after the publication of the release in Federal Register (if, for example, this release were to be published on October 15, then the comment periods would close on October 29, 2022). The SEC encouraged commenters that submitted a public comment through the internet comment process to check the SEC’s website, SEC.gov, to determine whether their comment was received and posted.

The SEC’s release did not elaborate on nature of the technological error but stated that a number of public comments submitted through the SEC’s internet comment form were not received. The SEC noted the majority of the affected comments were submitted in August 2022, but that the technological error is known to have occurred as early as June 2021.

The impact of the reopening of the public comment periods is not yet known, but will likely result in delaying the release of a number of highly anticipated SEC rules[1]. The Rulemaking Releases include the following proposals and request for comment:

• Reporting of Securities Loans

• Prohibition Against Fraud, Manipulation, or Deception in Connection with Security-Based Swaps; Prohibition against Undue Influence over Chief Compliance Officers; Position Reporting of Large Security-Based Swap Positions

• Money Market Fund Reforms

• Share Repurchase Disclosure Modernization

• Short Position and Short Activity Reporting by Institutional Investment Managers; see also Notice of the Text of the Proposed Amendments to the National Market System Plan Governing the Consolidated Audit Trail for Purposes of Short Sale-Related Data Collection,

• Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure

• Private Fund Advisers; Documentation of Registered Investment Adviser Compliance Reviews

• The Enhancement and Standardization of Climate-Related Disclosures for Investors

• Special Purpose Acquisition Companies, Shell Companies, and Projections

• Investment Company Names

• Enhanced Disclosures by Certain Investment Advisers and Investment Companies About Environmental, Social, and Governance Investment Practices

• Request for Comment on Certain Information Providers Acting as Investment Advisers

(Certain SRO rules, not covered here, also have comment periods that have been reopened.)

[1] SEC Release, Resubmission of Comments and Reopening of Comment Periods for Several Rulemaking Releases Due to a Technological Error in Receiving Certain Comments, October 7, 2022 (https://www.sec.gov/rules/proposed/2022/33-11117.pdf)

Australia: ASIC Provides Practical Guidance as Long Awaited CCIV Arrives

Jun 23 2022

By Kane Barnett and Bernard Sia

ASIC has published Information Sheet 272 (INFO 272) and Report 728 (REP 728) on the eve of the corporate collective investment vehicle’s (CCIV) commencement.

With the commencement date for CCIVs being 1 July 2022, today ASIC released 7 regulatory guides relating to the registration and licensing requirements for CCIVs. We outline the key features of CCIVs in our previous update. INFO 272 provides much needed clarity on how both the CCIV itself and its initial sub-funds are to be registered.

Australia: Finally, a new fund vehicle

May 06 2022

By Kane Barnett

On 1 July 2022 Australia will finally get a new fund vehicle, the corporate collective investment vehicle (CCIV).

Historically, Australian funds have been established as unit trusts or, in the case of certain venture capital funds, limited partnerships. The CCIV is a corporate structure that is intended to be more internationally recognisable than the trust-based fund structure as it is similar to the equivalent structure in other key fund jurisdictions such as the United Kingdom, Cayman Islands, Singapore and Hong Kong.

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