I OVERVIEW OF RECENT ACTIVITY
Asset management vehicles established in the Cayman Islands can generally be divided into two distinct groups: open-ended funds (predominantly hedge funds), for which there is an abundant supply of publicly available statistical information (although it lags behind the market, as is inevitably the case for information compiled by a regulator); and other asset management vehicles (including closed-ended and private equity funds), for which the available data is more limited.
A cornerstone to the success of the Cayman Islands' financial services sector is its strong legal and regulatory system, which equally benefits managers and institutional or other sophisticated investors. The jurisdiction is attentive and responsive to developing international trends, continually evolving to ensure it meets the requirements of finance sector participants, including governmental and regulatory authorities. Against this background, there have been a number of noteworthy developments in recent years, which are discussed in more detail below.
The Cayman Islands continues to maintain its position as the leading jurisdiction for the registration of mutual funds, with 10,857 funds regulated under the Mutual Funds Law (2020 Revision) (the Mutual Funds Law) at the end of 2019 and 10,505 at the end of the first quarter of 2020.2 This number is expected to grow following recent amendments to the Mutual Funds Law, which removed an exemption from registration for more-closely held open-ended funds.3 The industry's strength is reflected in the Cayman Islands Monetary Authority's (CIMA) statistical digest for 2018, which shows the net asset value of reporting funds at US$3.916 trillion.4
It is currently more difficult to obtain an accurate overview of the state of the Cayman Islands' asset management industry as a whole, which would necessarily include looking at the level of managed account activity and closed-ended fund activity. Until February 2020,5 closed-ended funds (i.e., funds that do not afford investors the option to withdraw all or part of their investment prior to the winding-up of the fund) and funds known as Section 4(4) funds, which are open-ended investment funds that pool the funds of 15 or fewer investors, a majority of whom are given the power to appoint and remove the fund's directors, managers (in the case of a limited liability company (LLC)), general partner or trustee, as applicable, were not required to be registered with CIMA.
Accordingly, to date the most useful indicator of the level of closed-ended fund activity (which generally includes funds investing in illiquid asset classes, such as private equity, real estate or infrastructure projects) is the number of registrations of Cayman Islands exempted limited partnerships (ELPs) and, more recently, LLCs. However, this is only a rough indicator based upon practitioners' experience that the majority of closed-ended fund structures are formed as ELPs. By contrast, CIMA's statistical digests show that only a small fraction of open-ended funds are formed as ELPs, highlighting that they are most prominent in the closed-ended sector. Figures released by the Cayman Islands Registrar of Exempted Limited Partnerships show that at the end of 2019, there were a total of 28,939 ELPs registered in the Cayman Islands. The past decade has generally seen a consistent increase in the number of annual ELP registrations. At the end of May 2020, the figures for LLCs registered stood at 3,033.
ELPs are utilised for a variety of purposes within closed-ended structures. An ELP may well be the primary closed-ended fund vehicle, but often ELPs will also serve other purposes (e.g., ELPs may be used as a feeder into an onshore fund, an alternative investment vehicle, a parallel fund or a co-investment vehicle). Similarly, while still a relatively new vehicle in the Cayman Islands, experience has shown that LLCs are increasingly being used as general partners as well as feeder, blocker and aggregator vehicles in closed-ended fund structures. Changes in the rate of formation of ELPs and LLCs could, therefore, indicate fluctuations in the rate of new fundraising, but are just as likely to point to variations in the level of transactional activity by established closed-ended funds themselves.
II GENERAL INTRODUCTION TO THE REGULATORY FRAMEWORK
The primary statute regulating Cayman Islands open-ended pooled investment funds is the Mutual Funds Law. A Cayman Islands investment fund qualifies as a mutual fund and is, therefore, required to be regulated under the Mutual Funds Law if:
- it is a company, LLC, partnership (including ELPs) or unit trust;
- it issues equity interests to investors (i.e., shares, partnership and LLC interests or trust units that carry an entitlement to participate in profits or gains, and which may be redeemed or withdrawn at the option of those investors prior to winding-up); and
- its purpose or effect is the pooling of investor funds with the aim of spreading investment risks and enabling investors to receive profits or gains from investments.
The key distinction between such an open-ended mutual fund and a closed-ended fund is the ability of investors to voluntarily redeem or withdraw some or all of their investment prior to winding-up, whether at will or on a specified period of notice. Where shares, partnership and LLC interests or trust units are subject to a lock-up period, Cayman Islands practitioners and CIMA generally consider that the lock-up period should be at least five years for an investment fund to be regarded as closed-ended at the outset.
Open-ended master funds are also potentially subject to registration with CIMA. A master fund in a multi-level fund structure will be deemed to be a mutual fund for the purposes of the Mutual Funds Law and, accordingly, will be required to be registered with CIMA, if it:
- is a Cayman Islands company, LLC, partnership (including ELPs) or unit trust;
- issues equity interests;
- holds investments and conducts trading activities for the principal purpose of implementing the overall investment strategy of a CIMA-regulated feeder fund; and
- has at least one CIMA-regulated feeder fund that conducts more than 50 per cent of its investment activity through the master fund, whether directly or indirectly via an intermediate entity.
Owing to the definition of master fund under the Mutual Funds Law, an open-ended master entity in a structure having only one investor (i.e., where there is, strictly speaking, no pooling element at the level of the master fund) will, nevertheless, constitute a mutual fund. The exact fund structure will, in each case, determine whether registration of a master entity, or any other entity, is necessary, although there are certain structural approaches that may allow such an entity to fall outside the scope of the master fund registration regime under the Mutual Funds Law. Where an open-ended fund is eligible for registration both as a feeder fund and as a master fund, CIMA has suggested that funds should generally opt for registration as a master fund, although there are certain circumstances in which this may not be appropriate.
Funds registered under Section 4(3) of the Mutual Funds Law account for over 96 per cent of all regulated investment funds in the Cayman Islands as of 31 December 2019.6 The straightforward requirements for registration and the absence of a pre-approval process contribute to this popularity. The basic requirements for registration under Section 4(3) (for both traditional mutual funds and master funds) are that the minimum initial investment per investor is at least US$100,000 (or its equivalent in another currency) (the Minimum Investment Requirement), or that the equity interests are listed on a recognised stock exchange. Registration involves completion of an online application form by a licensed corporate services provider in the Cayman Islands, together with the online filing of the fund's offering document and consent letters from its administrator and its Cayman Islands auditor. A separate offering document is not required for a regulated master fund. On an ongoing basis, the fund must file an amended offering document within 21 days of any material change that occurs while it is still offering its equity interests. It must also file annual audited accounts, a key data elements form and a fund annual return (all submitted electronically by the fund's auditor) with CIMA within six months of the end of each financial year.
Few investment funds are fully licensed under the Mutual Funds Law, since this is generally only applicable to retail funds, while the majority of investment funds formed in the Cayman Islands are intended for institutional or high-net-worth investors. Of the total number of 10,857 regulated investment funds at the end of 2018, only 64 were fully licensed by CIMA under the Mutual Funds Law.7
An alternative to obtaining a full licence under Section 4(1)(a) of the Mutual Funds Law is to be regulated as an administered fund under Section 4(1)(b) of the Mutual Funds Law. As of 31 December 2019, there were only 295 administered funds.8
Administered funds have steadily declined in popularity in recent years (from 408 in 2012 to 295 in 2019),9 perhaps because the administrators who originally saw them as a source of higher fees came to realise that the higher fees were counterbalanced by higher risks. Registration as an administered fund is achieved by designating a Cayman Islands licensed mutual fund administrator as the fund's principal office. The administrator must satisfy itself that the promoters of the fund are of sound reputation, that the fund's administration will be undertaken by persons with sufficient expertise who are also of sound reputation, and that the fund's business and its offering of equity interests will be carried out in a proper manner. The administrator is obliged to report to CIMA any suspected infringements by the fund of the Mutual Funds Law (or any other law), or any suspicion that the fund may be insolvent or may otherwise be acting in any manner prejudicial to its creditors or investors. This imposes a role of quasi-regulator and compliance monitor on the administrator themselves, potentially a burdensome task to carry out effectively.
i Limited investor funds
From 7 February 2020, Section 4(4) funds are required to register with CIMA and no longer benefit from an exemption from registration (these funds are to be designated as limited investor funds (LIFs)). A new LIF carrying on business after 7 February 2020 is required to be registered with CIMA prior to the acceptance of investors and making investments. The registration requirements are similar to those of a mutual fund registered under Section 4(3) of the Mutual Funds Law, save that an LIF may file its offering document or marketing materials or a summary of its terms, as well as certified evidence of the operator removal right. LIFs must comply with CIMA's 'four-eyes' principle that requires them to have at least two natural persons in management roles. In addition, each director or manager of an LIF structured as a Cayman Islands exempted company or LLC will need to register under the Directors Registration and Licensing Law, 2014 (the DRL Law), if not already registered, prior to the LIF's registration with CIMA.
The key differences between a mutual fund registered under Section 4(3) of the Mutual Funds Law and an LIF are that investors in the former are subject to the Minimum Investment Requirement whereas there is no statutory minimum initial investment amount applicable to investors in an LIF, and a LIF must have 15 or fewer investors, a majority in number of which must be capable of appointing or removing the operator of the LIF.
ii Private funds
On 7 February 2020, the Private Funds Law, 2020 (PFL) came into force. The PFL and its supporting regulations provide for the registration of certain closed-ended funds (known as private funds) with CIMA. The PFL applies to private funds set up as Cayman Islands partnerships, companies, unit trusts and limited liability companies unless out of scope on the basis set out in the PFL. The PFL also applies to non-Cayman Islands private funds that make an invitation to the public in the Cayman Islands.
A vehicle is a private fund where it offers or issues or has issued investment interests, the purpose or effect of which is the pooling of investor funds with the aim of enabling investors to receive profits or gains from the vehicle's acquisition, holding, management or disposal of investments, where:
- its investment interests are not redeemable or repurchasable at the option of the investor (i.e., are closed-ended);
- the investors do not have day-to-day control over the investments;
- its investments are managed as a whole by or on behalf of the operator, directly or indirectly; and
- it does not constitute a 'non-fund arrangement', as listed in the schedule to the PFL.
The PFL provides certain transitional provisions for private funds that were carrying on or which commenced business prior to at any time prior to 7 August 2020.
Non-fund arrangements include joint ventures, proprietary vehicles, holding vehicles, single family offices, securitisation special purpose vehicles and officer, manager or employee incentive, participation or compensation schemes, and programmes or schemes to similar effect. There is no separate master fund definition for private funds, meaning that each closed-ended vehicle will need to be assessed to determine whether it is within the scope of the PFL.
Registration of a private fund involves completion of an online application form, together with a structure chart, certain constitutional documents, the fund's offering document or its marketing materials or a summary of its terms and consent letters from its administrator and its Cayman Islands auditor. On an ongoing basis, a private fund must inform CIMA if it makes a change, or becomes aware of any change, that materially affects any information submitted to CIMA as part of its initial registration application, within 21 days of the change or the fund becoming aware of the change. Like mutual funds registered under the Mutual Funds Law, a private fund must also file annual audited accounts, a key data elements form and a fund annual return (all submitted electronically by the fund's auditor) with CIMA within six months of the end of each financial year.
Private funds are also subject to certain operational requirements relating to valuation of its assets, safekeeping of its assets, cash monitoring and identification of securities. These functions can be carried out by the fund itself or by an appropriate service provider appointed by the fund.
There are no local service provider requirements for CIMA-registered investment funds, save that they are required to appoint an approved local auditor and, in the case of an administered fund, a Cayman Islands licensed mutual fund administrator.
CIMA issued a Statement of Guidance on Corporate Governance for Regulated Mutual Funds (SOG) on 13 January 2014. The SOG is relevant to all CIMA-registered and licensed mutual funds, their individual operators and their governing bodies. It does not extend to the banking and insurance sector. The purpose of the SOG is to provide individual operators and governing bodies of funds with guidance on CIMA's minimum expectations for the sound and prudent governance of mutual funds. While the SOG is not intended to be exhaustive and is not directly enforceable by CIMA, CIMA may look to the SOG should it need to consider whether the direction and management of a CIMA-registered and licensed mutual fund has been conducted in a 'fit and proper manner'.
The DRL Law requires the directors (or, in the case of LLCs, the managers) of mutual funds registered with CIMA under the Mutual Funds Law and companies registered with CIMA as 'registered persons' under certain heads of the Securities Investment Business Law (2020 Revision) (together, covered entities) to be, themselves, registered with or licensed by CIMA, and allows CIMA to regulate 'professional directors' and 'corporate directors' of covered entities. The DRL Law will be relevant to any person who is, or who intends to become, a director of a company (or a manager of an LLC) that is or will be a covered entity, whether that person is resident in the Cayman Islands or elsewhere. Under the DRL Law, it is unlawful to be appointed as a director (or, in the case of an LLC, as a manager) of a covered entity without first being registered or licensed with CIMA.
The Cayman Islands has signed two intergovernmental agreements to improve international tax compliance and the exchange of information – one with the United States (US IGA) and one with the United Kingdom (UK IGA). The Cayman Islands has also signed, along with over 100 other countries, a multilateral competent authority agreement to implement the Organisation for Economic Co-operation and Development (OECD) Standard for Automatic Exchange of Financial Account Information – Common Reporting Standard (CRS). Cayman Islands regulations have been issued to give effect to the US IGA, the UK IGA and CRS (collectively, the AEOI Regulations). Pursuant to the AEOI Regulations, the Cayman Islands Tax Information Authority (TIA) has published guidance notes on the application of the US and UK IGAs and the CRS. These developments are supported by a network of bilateral tax information exchange agreements (according to the OECD, there are over 4,000 bilateral exchange relationships activated with respect to more than 100 jurisdictions committed to the CRS, with the next exchanges between these jurisdictions set to take place at the end of September 2020), and adherence to multilateral conventions such as the OECD and Council of Europe Convention on Mutual Assistance in Tax Matters.
These initiatives further strengthen Cayman's regulatory reputation on cooperation matters and align its regulatory framework with a trend towards automatic exchange of information on tax.
III COMMON ASSET MANAGEMENT STRUCTURES
Three types of vehicle are most commonly utilised by Cayman Islands investment funds: exempted companies, ELPs and exempted unit trusts. Essentially, exempted vehicles are not permitted to carry on business within the Cayman Islands or must conduct their business mainly outside the Cayman Islands unless they have a licence to carry on business in the Cayman Islands. LLCs are not yet commonplace as investor-facing vehicles but are becoming increasingly common in overall fund structures, and are also eligible to apply for a 50-year tax undertaking.
Exempted companies limited by shares are the most commonly used vehicle for open-ended funds. In 2014, 77 per cent of CIMA-regulated mutual funds were exempted companies (including segregated portfolio companies),10 and while this particular statistic was not included in the most recent CIMA statistical digests, practitioner experience suggests that this trend continues.
As previously noted, closed-ended funds established in the Cayman Islands are most commonly established as ELPs. Most jurisdictions with managers of, or investors in, such funds have become comfortable with the limited partnership structure prevalent in the United States, which is replicated to a significant degree in the Cayman Islands ELP structure. It is expected that the use of LLCs within fund structures will increase over the coming years because of the substantial similarities between the Cayman Islands LLC and the popular United States limited liability company vehicles. While exempted companies are extremely flexible with regard to the extent to which voting and economic rights can be mixed among different classes of shares, companies with share capital have, by their very nature, certain structural and legal limitations that may not apply to ELPs or LLCs.
There are, for example, fewer statutory rules governing approval processes within ELPs and LLCs. For instance, general partners of ELPs or the managers of an LLC can be, and usually are, delegated a certain degree of unilateral authority to amend the constitutional documents of an ELP or an LLC, while such powers cannot be delegated to the directors of an exempted company in relation to its memorandum and articles of association (which can only be amended by special resolution of its shareholders). However, the key reasons for the use of ELPs (and now LLCs) for closed-ended funds relate to distributions. While the directors of a company are restricted by statutory and common law maintenance of capital rules, the general partners of an ELP or the managers of an LLC are generally limited only by basic solvency requirements and the agreed terms of the limited partnership or LLC agreement, as applicable, when considering which sources of funds to utilise. Even more significant, however, is the ability of partners or LLC members to directly enforce the constitutional documents against one another; and the fact that the terms of investment can easily be expressed to survive a partner's or member's withdrawal (whereas a shareholder in a company ceases to be subject to its articles of association when he or she no longer holds any shares).
Closed-ended funds generally make distributions on a waterfall basis, most commonly by paying distributions first to investors until all capital contributions have been returned and a certain level of return obtained, then to the manager or general partner until it has received a specified percentage of the aggregate amount of all distributions, and then to investors and the manager or general partner in specified percentages. These distributions are often subject to claw back at the end of the fund's life if, once all distributions have been made, the manager or general partner has received a higher proportion of the aggregate distributions than intended, or, in some cases, from investors to fund indemnity payments. Utilising a company in this situation would generally require these obligations to be set out in a separate shareholders' or subscription agreement that is also signed by the company to ensure that the obligations survive a shareholder's withdrawal, and can be directly enforced by each investor and the company as against each other. Such considerations are also critical prior to the drawdown of funds from investors in a closed-ended vehicle, who may be bound by a limited partnership agreement or an LLC agreement prior to funding, but will generally not be bound by the articles of a company until such time as they actually subscribe for and are issued with those shares.
Investment funds structured as unit trusts are primarily formed in the Cayman Islands for distribution in Japan, where the demand is generated by familiarity with the unit trust structure and historical local tax benefits relating to unit trusts as opposed to company shares or limited partnership interests. The Cayman Islands also has specific regulations11 that such investment funds can elect to comply with when applying for a licence under the Mutual Funds Law, which under current guidelines set by the Japan Securities Dealers Association permit them to be marketed to the public in Japan. Although companies and limited partnerships are also eligible to use this regime, the popularity of unit trusts with Japanese investors means that funds regulated under this regime are usually unit trusts.
IV MAIN SOURCES OF INVESTMENT
The current disparity of available information between open-ended and closed-ended investment funds in the Cayman Islands is evident when analysing the source and value of investments in such funds. CIMA's published statistics12 provide a useful indication of the scale of the open-ended industry, with the net asset value of reporting funds in 2018 being just under US$4 trillion. It is worth bearing in mind that the actual figures for open-ended funds alone will exceed these amounts, because CIMA's figures are based only on the 85 per cent of regulated funds as at December 2018 that had actually filed their fund annual returns for 2017, and they do not as yet capture LIFs.
We can speculate that the size of the closed-ended fund industry in the Cayman Islands is of a similar order. However, as previously noted, the exact number of closed-ended fund vehicles is currently difficult to establish, and the details of equity holders in those vehicles and the size of their investments is not publicly available information. Therefore, it should be noted that this is, at best, an educated guess, although as private funds begin to register, we should expect to see more meaningful figures emerging from CIMA in the course of the next few years.
V KEY TRENDS13
The Cayman Islands has consistently adapted its regulatory and legal system to meet the demands of the finance sector and align it with international best practice. As a jurisdiction, it has proven to be highly responsive to the needs of the global financial industry through industry consultation projects, statutory amendments and new legislation, and through the growth and development of a commercially sophisticated judicial system.
Increasingly, the majority of inflows to hedge funds are from institutional investors. Institutional money has typically favoured larger managers, and this trend, together with recent positive industry performance, is reflected in the increasing total assets under management (AUM) figure for the industry, which is currently estimated to be around US$4 trillion.
Approximately 53 per cent of new funds were launched by managers with over US$1 billion AUM at the time of launch (whether from pre-existing funds in the market or because of a launch that exceeded US$1 billion). On the other hand, approximately 25 per cent of new funds were launched by managers with under US$100 million AUM at the time of launch, showing that there are a significant number of new start-ups in existence despite the increased regulatory burden and other challenges faced by emerging managers in the current environment.
Over the past five years, the proportion of specific Employee Retirement Income Security Act of 1974 (ERISA) funds, and the funds allowing ERISA investors on the traditional limited basis, has remained fairly constant and was at 77 per cent in 2019.
Equity long-short funds have consistently constituted the highest proportion of funds launched since 2013. Other strategies such as managed futures and fixed income have fluctuated in popularity, while more recently multi-strategy funds have become more popular, perhaps reflecting the current economic uncertainty in the global markets.
Since 2013, there has, unsurprisingly, been a steady increase in the number of regulated managers. This is undoubtedly driven by the Dodd-Frank Wall Street Reform and Consumer Protection Act, which removed certain exemptions to registration with US regulatory bodies. For 2019, however, the general upward trend in the number of regulated managers dropped slightly, with 88 per cent of new funds being launched by regulated managers.
Both investors and regulators have pushed for greater transparency and accountability, which has led to changes in board composition. While the use of independent directors has generally increased over the years, a segment of the launch market prefers split boards consisting of independent directors appointed from more than one service provider as well as a manager-affiliated director. This trend has been more marked for funds with promoters in the US than other regions. Independent directors are now regarded as significant to the overall structuring of a fund, as a robust board can be critical to the fund's success, and significant decisions in crisis situations (such as gating and suspending redemptions) can rest with the board. Investor due diligence on board members is now standard practice, and institutional investors in particular now often require independent directors on the board of funds in which they invest. There has also been an increase in the use of independent advisory committees or independent directors on the boards of general partners where funds – particularly master funds – are structured as ELPs. Additionally, there has been a significant shift in the manner in which directors engage with a fund, its service providers and investors. The institutionalisation of the industry and the impact of new regulatory initiatives aimed at protecting investors has led to a much greater degree of scrutiny on corporate governance, resulting in more proactive and engaged directors than ever before.
Preserving liquidity continues to be a key priority for investors. There was a significant decrease in funds launching without a gate in 2018, but 2019 saw a return to previous levels at around 64 per cent of funds, with a corresponding reduction in the number of funds launching with fund level gates and investor level gates, being 21 per cent and 15 per cent, respectively.
Requests for liquidity in side letters must be tailored to the asset class, and many investors understand that it is not always preferable to have greater liquidity. It is crucial to provide clear disclosure on any liquidity restrictions and the reasons for them in side letters. Fund promoters frequently consider the importance of balancing investors' desire for liquidity with the need to manage the fund's portfolio in a liquidity crunch.
i Statutory revisions and new legislation
A key strength of the Cayman Islands' funds regime continues to be the ability to combine robust yet flexible laws, which are updated to keep pace with industry needs, with a commercial approach to business. The past few years have been a particularly busy period for Cayman Islands legislation in this regard. Legislation and regulations have been amended when necessary to meet OECD, AIFMD and other European Union initiatives, the US Foreign Account Tax Compliance Act and other external requirements, and this approach can be expected to continue. The Cayman Islands fund industry is focused on, and responsive to, the legal and regulatory changes taking place worldwide, particularly in the US, Europe and Asia.
The Cayman Islands, through the applicable regulatory agencies, continues to engage proactively with counterpart international regulators (such as the Securities and Exchange Commission and the Financial Conduct Authority), and so remains at the forefront of evolving transparency and cooperation initiatives.
In addition to the previously mentioned PFL, amendments to the Mutual Funds Law, the SOG and the DRL Law, there have been a number of other fairly recent legislative updates.
In May 2020, CIMA issued rules on the contents of offering documents for mutual funds and the contents of marketing materials for private funds. The rules should harmonise material disclosures in the marketing documents of all registered funds, although it is likely that, due to the breadth of the meaning of private fund under the PFL, not all private funds will necessarily have marketing materials. As a case in point, private funds that are alternative investment vehicles are expressly excluded from the rules.
The Cayman Islands has established two 'opt-in' regulatory regimes that are consistent with (and intended to provide equivalency to) the EU Directive on Alternative Investment Fund Managers (AIFM Directive). In August 2015, the amendments to the Mutual Funds Law and Securities Investment Business Law required to implement the new regulatory regimes were passed, and in December 2016 the relevant supporting regulations were passed. This regime was brought into force on 1 January 2019, although certain requirements of the regime remain subject to a further order of the government.
In June 2017, the Cayman Islands passed legislation to allow for the establishment and registration of another new Cayman Islands vehicle: the limited liability partnership (LLP); and the registrar of LLPs in the Cayman Islands is expected to commence accepting applications to register LLPs in due course. An LLP combines the flexible features of a general partnership with the benefit of separate legal personality and affords limited liability status to all its partners. The LLP is expected to become the preferred manner by which professional firms operating in the Cayman Islands structure their businesses, but the LLP's features and flexibility may also provide an additional structuring option for investment funds as, by way of example, a general partner or management vehicle, or as a holding or fund of funds partnership.
The Cayman Islands' anti-money laundering (AML) and countering of terrorist financing (CFT) sanctions and countering of proliferation financing regimes implement the FATF Recommendations and global practice. The Anti-Money Laundering Regulations (2020 Revision) (the AML Regulations) apply to entities carrying on 'relevant financial business', which includes all types of Cayman Islands investment vehicles, whether or not registered with CIMA.
All Cayman Islands investment entities must maintain AML/CFT and sanctions procedures in accordance with the AML Regulations and each investment entity must designate natural persons in the roles of anti-money laundering reporting officer, money laundering reporting officer and deputy money laundering reporting officer (together, AML officers). However, AML compliance functions (including those of AML officers) can be performed by third-party service providers, subject to certain conditions, including the requirement for a risk-based assessment and ongoing review of the service provider, and that there is adherence to the prescribed requirements of the AML Regulations. In this regard, the most salient requirement is that beneficial ownership of entity investors is assessed at a minimum 10 per cent ownership or control threshold.
ii Recent case law
In the Cayman Islands court system, commercially significant cases are handled by the Financial Services Division of the Grand Court (FSD), and each proceeding is assigned to one of the FSD's highly experienced commercial judges. Appeals from the Grand Court are to the Cayman Islands Court of Appeal (CICA), with a further potential right of appeal to the Privy Council in London. The courts deal with a wide variety of complex commercial disputes, including disputes between investors and funds that have suspended redemptions or are being wound down. Liquidations arising out of investment fund collapses also continue to give rise to litigation before the Cayman Islands courts.
The case of Ardon Maroon14 raises important issues for master-feeder structures that rely on back-to-back redemptions (i.e., where a redemption from the master fund will be required in order to service a redemption request submitted to the feeder fund). In this case, the CICA upheld the decision of the Grand Court that a redemption purportedly made by the master fund was invalid in the absence of a written notice from the feeder fund to the master fund, as was held to be required by the particular fund documents in this case. The decision highlights the importance of both the feeder fund and master fund following precisely the redemption process set out in their governing documents, whether that is by way of an 'automatic' back-to-back redemption, or, as in this case, by the feeder fund serving a redemption notice on the master fund. The decision also reinforces the critical importance of the language in a fund's governing documents in resolving such issues and it serves as a useful reminder of the need to ensure that the language used properly reflects the parties' commercial intentions.
A common feature of Cayman Islands corporate investment funds is that management shares, which carry voting rights but no (or few) economic rights, are held by the fund's investment manager, while investors hold participating shares that carry the economic rights. In the Adamas case,15 the CICA considered how the voting rights attached to management shares should be exercised when the fund is contemplating entering voluntary liquidation. The court held that where all or the majority of participating shareholders nominate a fit and proper voluntary liquidator to conduct the liquidation, that liquidator should ordinarily be appointed by the party that holds the voting shares. This is because it is the investors holding participating shares who have the predominant economic interest in the proposed liquidation. The position will always be fact-sensitive, but this decision illustrates that there may be circumstances where the wishes of any non-redeemed participating shareholders as to the identity of the liquidator will prevail.
Questions concerning directors' liabilities and indemnity rights often arise following the collapse of an investment fund. A series of Grand Court and CICA decisions arising out of the collapse of the Axiom legal financing funds have dealt with a number of these issues in the context of claims against: (1) the director of the investment manager of the funds; and (2) the professional services firm that employed the director. Ultimately, the claims against both parties failed as the claims against the director fell within the exoneration and indemnity provisions of the manager's articles, which were held to apply, and the employer could not be held vicariously liable where no claim existed against its employee. In one of the decisions,16 the CICA commented on the concept of 'wilful default', which is a standard of conduct for which a director cannot be indemnified as a matter of Cayman Islands law. While mere inaction on the part of a director would normally found a claim in negligence, which is a less serious type of wrongdoing for which a director can be indemnified, the CICA stated that wilful default (and therefore non-indemnifiable conduct) can be established where the magnitude and persistence of failures by a director in effect amounts to a conscious decision by the director to disregard his or her duties.17
Finally, the topic of the interaction between the Cayman court's winding-up jurisdiction and arbitration clauses was again considered in FamilyMart China Holding Co Ltd v. Ting Chuan (Cayman Islands) Holding Corporation in the context of a shareholder's just and equitable winding-up petition.18 These petitions are a remedy that may be available to investors in various circumstances, including where there has been wrongdoing or mismanagement by those in control of an investment fund, and arbitration clauses are not uncommon in the governing documents of Cayman Islands funds. The CICA held that, since the threshold question of whether to wind up a company on the just and equitable ground had to be determined by the court, the subject matter of the petition in this case, which concerned allegations of wrongdoing against the directors, was not capable of being determined by arbitration. The position would have been different if the agreement in question had contained an express non-petition covenant, as such provisions are enforceable as a matter of Cayman Islands law. At the time of writing, it remains to be seen whether there will be any further appeal in respect of this aspect of the matter to the Privy Council, or otherwise how the decision will be interpreted and applied in subsequent cases.
VI SECTORAL REGULATION
CIMA requires all insurance companies licensed under the Insurance Law, 2010 to have a business plan and an investment strategy, the complexity of which is dependent upon the nature of the business underwritten. CIMA's Statement of Guidance: Asset Management & Investment Strategy for Insurance Companies requires insurers, among other things, to ensure that the composition of their asset portfolio is the product of a well-structured investment process with appropriate steps for implementation, to determine asset allocation in terms of the asset mix over the investment categories selected, and, in specific cases (e.g., use of derivative contracts), to seek prior CIMA approval to make certain investments.
Local pension plans must be registered with the Superintendent of Pensions under the National Pensions Law (2012 Revision), and the administrators of such plans are subject to statutory duties of care, diligence and skill (comprising both objective and subjective tests) in their management of the plan assets. Pension plans established and maintained for the benefit of employees in the Cayman Islands are required to comply with asset management rules under the National Pensions (Pension Fund Investments) Regulations (1998 Revision), which currently restrict investments to certain types of securities.
iii Real property
There are no specific rules that apply to property fund management in the Cayman Islands.
iv Hedge funds
Hedge funds will generally be open-ended vehicles, and therefore need to comply with the provisions of the Mutual Funds Law, as described in Section II.
v Private equity
There are no rules that apply specifically to private equity funds in the Cayman Islands (e.g., private equity funds, like other types of investment entities, are subject to the need for AML officers). Private equity funds will generally be closed-ended vehicles and, therefore, in most cases, will be subject to and will need to comply with the provisions of the PFL, as described in Section II.
VII TAX LAW
The Cayman Islands imposes no taxation on the income or capital gains of investment funds or their investors, and no transfer taxes on the transfer of interests in investment funds. Exempted companies, LLCs, limited partnerships and unit trusts can obtain undertakings from the government that if any such taxation is introduced during a 20-year period (companies) or 50-year period (limited partnerships, LLCs and unit trusts),19 as applicable, from the date of the undertaking (or date of creation of the unit trust), such taxation will not apply to the entity to which the undertaking is given.
The Cayman Islands recently introduced legislation20 (the Economic Substance Law) in connection with global initiatives in relation to base erosion and profit shifting.
The Economic Substance Law introduces certain reporting and economic substance requirements for 'relevant entities' conducting 'relevant activities'. These entities will be required to report certain information on their relevant activities on an annual basis to the TIA, the first such annual report being due no later than 12 months after the last day of the entity's financial year commencing on or after 1 January 2019.
The definition of 'relevant entity' in the Economic Substance Law recognises that, among other things, an entity that is an 'investment fund' is not within the classification of a 'relevant entity' and, therefore, not subject to the requirements of the Economic Substance Law. The definition of 'investment fund' includes an entity through which an investment fund directly or indirectly invests or operates.
With the introduction of the PFL and recent amendments to the Mutual Funds Law, and as the Cayman Islands continues to respond and adapt to the implementation of new global regulatory and taxation standards and improve the laws relating to the fund vehicles preferred by sponsors and investors alike, we expect the jurisdiction to remain prevalent and competitive in the hedge, private equity and venture capital fund formation market.
Further, the demand for a tax-neutral and secure method of pooling capital from multiple jurisdictions, and of transmitting that capital to where it can best be employed, remains strong, in a world that is subject to increased regulatory and fiscal scrutiny. The Cayman Islands' secure legal and regulatory framework and level of specialist expertise, combined with a proactive regulator and desire to comply with recognised global standards in the investment fund industry, should enable the Cayman Islands to continue taking advantage of this demand, and to maintain its position as a premier jurisdiction for offshore investment funds.
1 Tim Coak, Luke Stockdale and Michael Richardson are partners at Maples and Calder, the Maples Group's law firm.
3 Changes made pursuant to the Mutual Funds (Amendment) Law, 2020.
4 CIMA: Investments Statistical Digest 2018.
5 The Private Funds Law, 2020 and the Mutual Funds (Amendment) Law, 2020 introduced a registration regime for closed-ended funds and Section 4(4) funds, respectively. This is discussed further in Section II.
6 Op. cit. 2.
10 CIMA: Investments Statistical Digest 2014.
11 The Retail Mutual Funds (Japan) Regulations (2018 Revision).
12 Op. cit. 4.
13 The following trends and statistics are based upon our own client and transaction experience.
14 Re Ardon Maroon Asia Master Fund (in official liquidation) (Unreported, CICA, 20 May 2020).
15 Adamas Global Alternative Investment Management Inc v. Public Institution for Social Security for the State of Kuwait (Unreported, CICA, 8 November 2019).
16 Goodman v. DMS Governance Limited (Unreported, CICA, 30 April 2020).
17 No such findings were made against the director in this case.
18 Unreported, CICA, 23 April 2020.
19 Companies are entitled to a 20-year undertaking under Section 6 of the Tax Concessions Law (2018 Revision), limited partnerships are entitled to a 50-year undertaking under Section 38 of the Exempted Limited Partnership Law (2018 Revision), LLCs are entitled to an undertaking for a period not exceeding 50 years under Section 58 of the Limited Liability Companies Law (2020 Revision) and trusts are entitled to an undertaking under Section 81 of the Trusts Law (2020 Revision).
20 The International Tax Co-operation (Economic Substance) Law (2020 Revision), supplemented by the related Guidance on Economic Substance for Geographically Mobile Activities (as revised from time to time).