As with most types of financial services, people who are not authorised and regulated by the FSA are very restricted in how they can promote an unregulated collective investment scheme. Unusually even regulated firms are subject to tight restrictions. The Financial Services and Markets Act 2000 (let’s just call it FSMA), makes it an offence for anyone to promote a scheme to the public:
“An authorised person must not communicate an invitation or inducement to participate in a collective investment scheme.”
Fortunately, for regulated firms, there are a few exemptions, one set is created by Treasury Order and the other by the FSA.
If an investor falls into one of the categories below, a fund can be promoted to them but the promoter must ensure that the investor falls into the category before making a promotion:
Investment Professionals (authorised firms and investment companies);
Sophisticated Investors with a certificate signed by an authorised firm covering unregulated schemes; and
High Net Worth Companies and Unincorporated Associations.
For some schemes that invest in unlisted securities, authorised firms can also invite High Net Worth Individuals and Sophisticated Investors to self-certify.
These allow a scheme to be promoted to investors who have undergone an assessment by an authorised firm, including:
individuals for whom the scheme has been assessed as suitable (usually by a financial advisor); and
individuals for whom an assessment of experience, expertise and knowledge has been undertaken (sometimes by a financial advisor or the scheme’s Operator).
In these cases, a fund can be promoted to a potential investor on the basis that they will be prevented from investing unless they successfully complete the assessment (which may occur after the promotion has been made).
Whichever exemption the investors fall into, the documents for the scheme must meet detailed requirements laid down by FSMA, the Treasury and the FSA. These include presenting a balance of risk and reward, carrying appropriate warnings, giving sufficient information, and always being clear, fair and not misleading. Summary documents can be used but these also have to meet the rules and must be consistent with all of the other information given to investors.
In most cases, an FSA authorised firm can approve the scheme documents and summaries for distribution by an unauthorised person but only to the relevant categories of exempt investor. To rely on the FSA’s exemptions, careful procedures will need to be followed by the authorised firms (see our Services For Operators).
If you would like to discuss your plans to market an unregulated collective investment scheme, please contact Simon Webber, StypersonPOPE’s Managing Director, on 07710 260 717 or firstname.lastname@example.org.