BREXIT: NOTHING EVER CHANGES BUT THE DATE
I was surprised to see, looking back, that I wrote my first Brexit regulatory analysis for a UK fund manager a full four months before the referendum. It considered two scenarios: 1) some deal covering financial services (be that no Brexit, Single Market membership, joining the EEA, or a Free Trade Agreement covering services—all of which seemed unlikely); or 2) a “Hard Brexit”. The rest was just timing. And nothing has changed since.
Now however, we find ourselves so much closer to the date on which the UK is due to leave the EU and, with not much more to go on than we had two and half years ago, every Board meeting I attend is taken up with speculation and discussion about where we’ll be in six months, two years, three years, five years.
So, what can we say?
AIFMD: ALL PAIN, NO GAIN
On the day we leave the EU the current law, derived from Directives and Regulations, will all be preserved in UK law. AIFMD will still govern UK fund managers who will need to comply with all its detailed requirements, including the need to retain a Depositary. However, UK AIFMs will lose the right to passport their management, and market their funds, into other EEA jurisdictions. These rights may be extended from 29 March 2019 to 31 December 2020 if a transitional deal can be agreed but if it’s a ‘no deal’ Brexit, the rights will be lost within months.
But if the EU marketing passports can’t be used, there are two other options, right? We can apply for ‘Third Country’ access to the passporting regime or we can market under the National Private Placement Regimes. Right? Right?!
Well… maybe… and probably not straight away.
THIRD COUNTRY PASSPORTS
Third Country access requires that we have an ‘equivalent regime’ (surely nobody can deny that) but it also requires that ESMA assess us (a process which has not yet started) and that the EU Commission accept ESMA’s advice to turn on the passports for us. It’s this third part which presents the biggest stumbling block. Given that the EU Commission have, for two years, declined to accept ESMA’s advice to turn on the passports for Canada, Guernsey, Japan, Jersey and Switzerland, it seems unlikely that they’ll bend over backwards to accommodate the UK, least of all amid what they will no doubt see as the frustrating recalcitrance of a no deal Brexit.
NATIONAL PRIVATE PLACEMENT REGIMES
So there’s always the NPPRs, patchy and complex as they may be. Well, there may not even be those. The NPPRs rely on a cooperation agreement existing between the relevant EU Member State and the Third Country but while we’re in the EU we don’t need these, so we don’t have them. And there doesn’t seem to be much of a rush among the 27 EU regulators to put them in place. It’s almost like Germany doesn’t see the benefit of letting all their pension funds and insurance companies put their money into the UK instead of, say, Germany.
So what do we do?
THERE ARE OPTIONS
Given that it’s (probably) too late to set up a second AIFM in the EU and, in any case, the combination of having to provide substance and shifting senior staff around is unattractive, it’s probably best to keep the principal activity in the UK and move from being an AIFM to being an Investment Adviser, at least until the dust has settled. This means buying in the services of an AIFM based outside the UK. While such AIFM platforms in the EU (typically Luxembourg and Dublin) have ready access to the marketing passports, it may also be worth considering working with a provider in a non-EU jurisdiction such as the Channel Islands which can then market into the EU under the established NPPRs. This is trade off between access and costs and will depend on which countries the fund is to be marketed into.
For some of our clients the regulatory aspects of Brexit just aren’t a big deal—usually because they are not using their passports (or can’t because they’re a Small AIFM) and they have no plans to. They’re definitely the lucky few!
AND WHAT ABOUT THE LONG TERM?
Well, my personal hope is that the UK will, over time, consider introducing a lighter-touch regime for AIFMs of funds which will never be marketed in the EU. We already have plenty of funds with UK assets, marketed only to UK investors. We could maintain an equivalent regime for anyone wanting to access the (eventual) Third Country passport and develop a lighter touch which would avoid, even large AIFMs needing to comply with the valuation, depositary and other onerous requirements of AIFMD. The big advantage would be a more cost-effective, and therefore competitive, funds environment in the UK
But don’t hold your breath! The Treasury may have a few other things on their post-Brexit plate ahead of deregulation for fund managers.