The Asset Management Review: United Kingdom
Overview of recent activity
The regulatory landscape for asset management since early 2020 has primarily been focused on managing the impact and consequences of the covid-19 pandemic and, during 2021, the United Kingdom's departure from the European Union at 11.00pm on 31 December 2020 (IP Completion Day). The United Kingdom incorporated directly applicable EU-level regulation of the asset management sector under the European Union Withdrawal Act 2018 (the Withdrawal Act), which provided a degree of continuity for the sector. However, Brexit did nonetheless involve profound changes to the UK asset management sector including the loss of passporting rights between the United Kingdom and the EEA. This was an area neglected by the UK–EU Trade and Cooperation Agreement, and to date no further market access in either the United Kingdom or the European Union has been granted to the other side under local equivalence regimes.
The Investment Association has noted that while the United Kingdom's place as a pre-eminent centre of asset management has been undisputed for a number of years, this status is by no means guaranteed in the future. Aside from Brexit raising several challenges to the asset management industry in the shorter term, the IA also points to longer term factors, particularly in relation to continued access to international talent, and maintaining access to overseas markets in a potentially more protectionist world with associated regulatory divergence.2
General introduction to the regulatory framework
i The Financial Services and Markets Act 2000
The main framework for the regulation of asset management activities in the United Kingdom is contained in the Financial Services and Markets Act 2000 (FSMA) and various instruments introduced under the powers contained in FSMA.
FSMA regulates the provision of financial services, including investment services, in the United Kingdom through the concept of regulated activities that may only be carried out by persons who hold appropriate authorisations or are otherwise able to take advantage of a specific exemption from the usual authorisation requirement.3 Regulated activities are specified activities set out in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the Regulated Activities Order)4 that are carried on by way of business in connection with certain specified investments also listed in the Regulated Activities Order.5 Specified investments include a wide range of financial products including shares, bonds, government securities, deposits, units in collective investment schemes (CISs) and contracts of insurance. The list of specified activities includes:
- dealing in investments as principal or agent;
- arranging deals in investments;
- managing investments;
- establishing, operating or winding up a CIS;
- managing an alternative investment fund (AIF);
- managing an undertaking for collective investment in transferable securities (UCITS) (see Section III.i);6 and
- advising on investments.
Many investment managers and certain investment fund vehicles in the United Kingdom will require FCA authorisation as they are likely to be carrying out regulated activities, such as advising clients on investments, managing investments or dealing in investments as an agent on their clients' behalf. It is a criminal offence, potentially punishable by up to two years in prison and a fine, for any person who is not authorised or exempt to carry out any regulated activity in the United Kingdom.7
FSMA contains a basic prohibition on any person who is not appropriately authorised, acting in the course of business, from communicating an invitation or inducement to engage in investment activity.8 Investment activity for these purposes includes entering or offering to enter into an agreement, the making or performance of which by either party would be a regulated activity. However, this prohibition will not apply where an appropriately authorised person has approved the content of the proposed communication or if an exemption to the basic prohibition applies.9
The concept of a CIS is a central part of the system of regulation of asset management vehicles in the United Kingdom. These are widely defined in FSMA to include:
any arrangements with respect to property of any description, including money, the purpose or effect of which is to enable persons taking part in the arrangements . . . to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the property or sums paid out of such profits or income.10
Participants in a CIS must not have day-to-day control over the management of the property.11 In addition, the relevant arrangements must involve the pooling of participants' contributions and the profits or income out of which payments are to be made to such participants, or the property must be managed as a whole by, or on behalf of, the operator of the scheme,12 or both.13 The potentially wide definition of a CIS included in FSMA is narrowed by the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001 (Collective Investment Schemes Order),14 which excludes, among other arrangements, all bodies corporate (other than open-ended investment companies (OEICs) and limited liability partnerships), contracts of insurance, and occupational and personal pension schemes.15 A CIS need not have any particular legal form and, subject to the exemptions outlined above, the concept attaches to a wide range of legal vehicles and contractual arrangements.
If an arrangement is classified as a CIS, a number of important regulatory consequences follow. Units (i.e., rights or interests) in a CIS are a specified investment, and establishing, operating or winding up a CIS are specified activities under FSMA that require FCA authorisation.16 The restrictions on financial promotion summarised above will also become relevant. Furthermore, Section 238 FSMA prohibits authorised persons from promoting or marketing unregulated CISs, such as unauthorised unit trusts (UUTs) and hedge funds, except in certain circumstances (e.g., where the promotion is made only to investment professionals).17 The promotion of unregulated CISs, together with certain close substitutes called non-mainstream pooled investments, is prohibited to the majority of retail investors.18
The FCA is the conduct-of-business regulator for all authorised firms. It is also responsible for the prudential regulation of all firms not authorised by the Prudential Regulation Authority (PRA). PRA-authorised firms (being, broadly speaking, banks, insurance companies and certain systemically important investment firms) are dual-regulated by the PRA for prudential matters and the FCA in respect of conduct of business. Most investment managers and investment vehicles requiring authorisation are regulated solely by the FCA; however, those deemed to be of significant importance to the United Kingdom's wider financial system fall within the ambit of the PRA's supervision.
FSMA confers a wide range of regulatory functions and powers on the FCA. The FCA's statutory objectives include:
- ensuring that relevant markets function well;
- protecting and enhancing the integrity of the UK financial system;
- promoting effective competition in the markets for regulated financial services in the interests of consumers; and
- securing an appropriate degree of protection for consumers.
Under FSMA, the FCA has extensive rule and code-making powers; it is permitted to issue such rules that it considers necessary or expedient for the purpose of advancing one or more of its statutory objectives. The rules and guidance applicable to FCA-authorised firms are consolidated in the FCA Handbook, which includes high-level standards, conduct-of-business requirements, regulatory guides and specific specialist sourcebooks applicable to a wide range of asset management vehicles and arrangements.19
The FCA makes use of a number of supervisory tools in its oversight of the asset management industry, including thematic reviews and market studies, which involve investigations into key current or emerging risks relating to a specific issue or product. Notably, the FCA's report on its wide-ranging asset management market study in June 2017 presented findings focused on price competition in a number of areas of the asset management industry, fund performance, how asset managers communicate their objectives to clients, and the role of investment consultants and other intermediaries in the asset management sector (see further details in Section V.vi).
In March 2017, the FCA published the final report on its Financial Advice Market Review (FAMR), which set out a series of recommendations – relating to the affordability and accessibility of advice, liabilities of investment advisers and redress – intended to tackle barriers to consumers accessing advice and guidance. In December 2020, the FCA published an evaluation of the impact of the FAMR. The evaluation found evidence of improvements since the review, such as 8 per cent of UK adults having received financial advice (up from 6 per cent in 2017); however the evaluation also found that further innovation was required in order to help more consumers make better investment decisions.
One key area of interest for the FCA over the past few years has been potential conflicts of interest between asset management firms and their clients, particularly in relation to the clarity of fund charges, inducements given or received by investment firms, and the way in which commissions charged to customers were spent. For example, under the Markets in Financial Instruments Directive 2014/65/EU (MiFID II) inducements regime, asset managers who provide research and execution services are prevented from charging clients for research on a bundled basis, and must either pay for the research directly from their own balance sheets or charge the costs back to clients via a special research payment account.20
Another key area of interest for the FCA has been the balance between the sustainable long-term allocations of capital by asset management firms, against the need for managing a fund's liquidity. The suspension of trading in open-ended property funds run by Standard Life and Aviva, among others, alongside the role of insufficient liquidity for dealing with redemption requests in the collapse of Neil Woodford's Equity Income, Income Focus and Patient Capital Funds in 2019 made this issue more prominent. In August 2020, the FCA published a consultation paper regarding liquidity mismatches in open-ended property funds, and proposed to introduce redemption notice periods for non-UCITS retail schemes investing the majority of their assets in less liquid investments. The FCA is considering feedback received on this and intends to publish its final policy in the third quarter of 2021.
Further, the FCA has been expanding its interest in innovation, big data, technology and competition. The FCA has set fintech as one of its cross-sector priorities, particularly noting that it is driving change in markets and encouraging innovations. The FCA has launched programmes to enable the development of fintech, for example, by providing assistance to firms using innovation to improve consumer outcomes through its Innovate programme. Firms can test the commercial and regulatory viability of their innovative concepts before investing in them in the FCA's regulatory 'sandbox'. In the context of asset management specifically, the FCA launched its Advice Unit to provide regulatory feedback to firms developing automated models to deliver lower-cost advice and guidance to consumers, and on 21 May 2018 published guidance in relation to automated investment services,21 and specifically its approach to the supervision of automated or 'robo' advice.22 In a review of the impact and effectiveness of its innovation programme, published in April 2019, the FCA noted that asset management was one of the sectors from which it had received comparatively low numbers of applications for the regulatory sandbox, despite proactive attempts to engage with the sector.23 This trend continued into the 2021 cohort, with the majority of applicants being retail investment and lending firms.24
The FCA issued its first decision using its powers as a competition regulator in February 2019, penalising three asset managers found to have shared strategic information in relation to initial public offerings and one placing. In March 2019, the FCA also published a package of measures to improve competition in the investment platforms market.25 The measures include provisions designed to allow consumers to switch platforms and remain in the same fund without having to sell their investments, together with restrictions on exit fees.
The United Kingdom's withdrawal from the European Union was given legislative effect by the Withdrawal Act, which repealed the European Communities Act 1972 and took effect on 31 January 2020 (Exit Day). The Withdrawal Act was subject to an implementation period between 31 January 2020 and 31 December 2020 (the Brexit Implementation Period) agreed between the United Kingdom and European Union under the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Withdrawal Agreement), which was implemented in the United Kingdom by the European Union (Withdrawal Agreement) Act 2020 (the Withdrawal Agreement Act). The Withdrawal Agreement Act provided that EU law would continue to have effect in the United Kingdom as if it were still a Member State, until the end of the Brexit Implementation period. New EU laws that came into force in the interim likewise would apply to the United Kingdom during the Brexit Implementation Period in a similar way as they would have prior to Exit Day.
The Withdrawal Act also provided a mechanism to onshore EU law into UK domestic legislation by:
- preserving any domestic legislation, subordinate legislation or rules that had implemented EU laws without direct effect (e.g., EU directives);
- converting directly applicable legislation (e.g., EU regulations and decisions) into UK domestic legislation; and
- preserving any other EU rights that took effect as law (e.g., directly effective EU treaty rights) as UK domestic law.
The Withdrawal Agreement Act amended the Withdrawal Act such that EU law would be onshored into UK domestic law at the end of the Brexit Implementation Period, as opposed to Exit Day. The Withdrawal Act gives HM Treasury the power to remedy deficiencies in retained EU law arising from the onshoring process and apply any other conforming changes necessary for such law to be effective (e.g., to reflect the United Kingdom's position outside of the European Union). Legislation that was not adopted, or was adopted but not in effect, before the end of Brexit Implementation Period was not onshored. One of the effects of this onshoring process is that the United Kingdom may now revoke or amend any onshored EU law through the normal legislative procedure applicable to UK legislation, for example under an Act of Parliament.
Subordinate legislation made under the Withdrawal Act also gives the PRA, the FCA and the Bank of England (among other UK regulators) the power to make instruments (which must be approved by HM Treasury) correcting similar deficiencies in any secondary EU legislation (such as implementing technical standards and regulatory technical standards) that has been onshored. HM Treasury and the regulators have exercised these powers to pass numerous statutory instruments that, for the most part, came into force at the end of the Brexit Implementation Period. The PRA and the FCA have also made a number of changes to their rules and guidance to reflect the United Kingdom's withdrawal from the European Union and the legislative changes referred to above.
The Bank of England, the PRA and the FCA have also clarified26 that guidance issued by the European Supervisory Authorities (which supplement EU legislation) should continue to be observed by firms insofar as relevant in light of the United Kingdom's withdrawal from the European Union, despite not having binding effect under UK law.
During the Brexit Implementation Period, asset management firms based in the United Kingdom were able to continue to make use of passporting rights to provide cross-border services into the EEA (and vice versa). Those rights fell away on IP Completion Day, which means that those firms are therefore required to apply to competent authorities in EEA Member State for permission to carry out financial services on a jurisdiction-by-jurisdiction basis. Currently, the only exception to this default arrangement would be under the 'equivalence' regime, whereby under certain EU regulatory regimes, if the UK's regulatory regime is deemed 'equivalent' to that of the European Union, and if the United Kingdom establishes a reciprocal regime for EEA-based firms to market products and services into the United Kingdom, UK firms would be able to rely on their authorisation in the United Kingdom to provide their products and services into the EEA. However, this mechanism was not addressed in the UK–EU Trade and Cooperation Agreement and no determinations have between taken by the European Union or the United Kingdom that would enable firms to use this regime. The equivalence regime would in any event be of limited use to firms given that it applies on a per-service or per-activity basis, and does not cover all services and activities – for example, there is no equivalence regime applicable to UCITS schemes – and could be withdrawn at short notice.
HM Treasury took a number of measures to attempt to mitigate the loss of passporting rights into the United Kingdom at end of the Brexit Implementation Period. One of those measures was the Temporary Permissions Regime (TPR). The TPR enables certain EEA firms that were relying on a passport to operate in the United Kingdom prior to IP Completion Day to continue to operate for a limited period of time as if those rights still existed, with a view ultimately to applying for full UK authorisation by the FCA or the PRA, or both. HM Treasury also introduced a financial services contract regime to ensure that passported EEA firms that did not enter the TPR on IP Completion Day could continue to run off their pre-existing contractual obligations (where they would otherwise be frustrated by the loss of passporting rights into the United Kingdom) after the end of the Brexit Implementation Period. While some EEA Member States have introduced their own transitional measures, there has been no equivalent pan-EEA transitional measures for UK firms that would have wished to continue operating in the EEA following the loss of their passporting rights at the end of the Brexit Implementation Period.
One aspect of the TPR that is of particular significance to the asset management sector is the temporary marketing permissions regime (TMPR). This was introduced in February 2019 under the Alternative Investment Fund Managers (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/328) (the AIFM EU Exit Regulations) in respect of alternative investment funds and alternative investment fund managers, and the Collective Investment Schemes (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/325) in respect of collective investment schemes. The TMPR enables UCITS that are domiciled in the EEA to continue to market in the United Kingdom in a similar way as under their prior passporting rights. Following the expiry of the TMPR, UCITS domiciled in the European Union will be required to apply to be individually recognised under Section 272 of FSMA to continue marketing into the United Kingdom.
In recognition of the logistical difficulties that such a procedure would entail, on 29 April 2021 the UK government introduced the Overseas Funds Regime (OFR) in the Financial Services Act 2021. Under the OFR, HM Treasury may, following an equivalence determination in respect of the home state regulatory regime of the fund, recognise certain types of third-country funds, and thereby exclude them from the requirement to apply for recognition under Section 272 of FSMA. The OFR also provides an exemption from the restrictions imposed on certain funds that invest in liquid assets such as cash, government and corporate debt, known as 'money market funds', under the Money Market Funds (Amendment) (EU Exit) Regulations 2019 for money market funds authorised in a country approved by HM Treasury.
Common asset management structures
A range of legal vehicles is commonly used for asset management activities in the United Kingdom. These include limited companies, trusts and limited partnerships, as well as certain bespoke legal forms specific to the investment funds context. The choice of legal form of an investment fund will often be influenced by the tax treatment of that fund and the regulatory implications for both the fund and the fund manager that follow from that choice.
i Open-ended investment vehicles
Open-ended funds issue and redeem securities to and from investors in a fund on an ongoing basis at a price that is based directly on the underlying net asset value of the investment portfolio held by the fund. In the United Kingdom, an open-ended investment vehicle may take the form of a UUT or one of three forms of authorised CISs: authorised unit trusts (AUTs), OEICs and authorised contractual schemes. Such authorised CISs may, in turn, be UCITS schemes, non-UCITS retail schemes or qualified investor schemes, as discussed below.
Unit trusts and AUTs
Unit trusts are the original form of open-ended fund in the United Kingdom. Unit trusts rely upon the English common law concept of the trust, under which a trustee (typically, a financial institution experienced in offering trust services) holds the legal title to the trust property on behalf of the beneficiaries (in this case, the investors) who themselves have a beneficial interest in the underlying trust assets. Unlike other general forms of trusts, there will also be a separate fund manager to formulate and implement the unit trust's investment strategy, working alongside the trustee. Trusts themselves do not have any legal personality under English law and therefore cannot contract in their own name. Instead, they are characterised by the trust relationship between the trustee and the beneficiaries, which will be established by the relevant document constituting the trust (which, in the case of unit trusts, is typically termed the 'trust deed').
An AUT scheme is defined in FSMA as a unit trust scheme authorised in accordance with Section 243 FSMA.27 The FCA may authorise a unit trust scheme if it is satisfied that the requirements contained in that Section are met, the rules in the FCA's Collective Investment Schemes Sourcebook (part of the FCA Handbook, commonly referred to as COLL) have been satisfied, and it has been supplied with a copy of the trust deed constituting the AUT and a certificate signed by a solicitor that states that the requirements in Section 243 and COLL have been met.
AUTs enjoy two key advantages that flow from FCA authorisation. First, an AUT is able to make invitations or financial promotions to participate in the scheme directly to the public in the United Kingdom.28 Second, AUTs are not liable to pay UK tax on the chargeable gains realised on a disposal of assets in their underlying investment portfolios.29
It is possible for unit trusts to be unauthorised, meaning that no FCA approval has been granted under Section 243 FSMA. This has the advantage that the UUT is not subject to the detailed requirements in COLL, but it does not benefit from the exemption on the prohibition on financial promotions to the public in the United Kingdom and, unless all of the investors in the UUT are exempt from UK tax on capital gains other than by reason of their residence or the UUT benefits from pre-6 April 2014 grandfathering, it will broadly be taxed as though it was a UK-resident company. This tends to mean that unauthorised trusts are attractive to a narrower range of professional investors and are unsuitable for use as retail investor schemes.
OEICs were introduced in the United Kingdom partly as a response to the unfamiliarity of overseas investors with the trust structure underlying unit trusts. They represent a compromise position in English law by permitting a company to have a variable capital structure.30 In many ways, OEICs are similar to AUTs (the statutory and regulatory provisions applying to both often use similar wording and concepts), but OEICs are not based on the English law concept of the trust and are bodies corporate that will hold the beneficial interest to the investment portfolio (while the investment assets must be entrusted to a depositary, which will hold legal title to them).31 Therefore, investors in an OEIC are, to an extent, in a similar position to shareholders in a traditional limited company. An OEIC must also have an authorised corporate director that will assume responsibility for the OEIC's ongoing operating duties.32
The Treasury is empowered under FSMA to make rules that regulate OEICs,33 and the current regulatory framework operates through two distinct sets of regulations: the Open-Ended Investment Companies Regulations 2001 (the OEIC Regulations),34 and those parts of COLL relevant to OEICs. OEICs are not regulated by the general company law provisions contained in the Companies Act 2006, despite their status as bodies corporate under English law.
The formation of OEICs is governed by Part II of the OEIC Regulations, which states that an OEIC is incorporated upon the coming into effect of an authorisation order from the FCA.35 Since the only method of incorporating an OEIC is through this FCA authorisation procedure, it is not possible to have an unauthorised OEIC in the United Kingdom (unlike a unit trust, which may be either authorised or unauthorised).
To grant authorisation, the FCA must be provided with a copy of the company's instrument of incorporation and a certificate from a solicitor that attests that the instrument of incorporation complies with FCA requirements, including the inclusion of certain key statements and matters set out in Schedule 2 to the OEIC Regulations.36 As with AUTs, OEICs must also permit shareholders to have their shares redeemed or repurchased on request at a price related to the net value of the OEIC's investment portfolio and determined in accordance with the OEIC's instrument of incorporation and the rules in COLL.37 Alternatively, or in addition, shareholders must be entitled to sell their shares on an investment exchange at a price that is not significantly different from the redemption or repurchase price.38 UK OEICs are not subject to the restriction on the promotion of CISs contained in Section 238 FSMA.39
Authorised contractual schemes
The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (the Contractual Scheme Regulations) came into force on 6 June 201340 and provide for a new form of authorised CIS: an authorised contractual scheme (ACS). AUTs or OEICs are not tax-transparent (although neither AUTs nor OEICs are generally liable to pay UK tax on the chargeable gains realised on the disposal of investment assets, nor are they generally liable to pay UK tax on their dividend income). ACSs, which are not within the charge to direct taxes, and tax liability is at the investor level, were intended to increase the competitiveness of the UK asset management industry.
The ACS may take the form of a co-ownership scheme or a limited partnership scheme.41 An ACS is defined in FSMA as a contractual scheme that is authorised in accordance with Section 261D(1) FSMA.42 The FCA may authorise a contractual scheme if it is satisfied that the scheme complies with the requirements of Sections 261D and 261E FSMA; the scheme meets the requirements of the contractual scheme rules (set out in COLL); and it has been provided with a copy of the contractual scheme deed and a certificate signed by a solicitor stating that the deed complies with the necessary requirements.43
The general restriction on the promotion of CISs does not apply to ACSs.44 However, to protect retail investors, an ACS must not allow retail investors to be participants in a scheme unless they invest £1 million or more.45
UCITS schemes are not a separate type of open-ended investment vehicle, but rather they are AUTs, OEICs or ACSs that meet the criteria laid down in the UCITS Directive (EEA UCITS) or the CIS EU Exit Regulations (UK UCITS). The United Kingdom implemented the requirements of the UCITS Directive primarily through the FCA's COLL Sourcebook, and the insertion and amendment of certain provisions in FSMA by the UCITS Regulations 2011.46 Following the UK's departure from the European Union, UK-authorised funds lost their legal status as UCITS under the UCITS Directive, and therefore as part of the onshoring process of the UCITS Directive, the Collective Investment Schemes (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/325) (CIS EU Exit Regulations) amended provisions in FSMA to establish a separate UK regime for the authorisation, marketing and management in the United Kingdom of UK-authorised UCITS.
UK UCITS schemes and EEA schemes operating under the temporary permission regime must comply with the following criteria to be marketed in the United Kingdom: it must be an AUT, an OEIC or an ACS; the sole object of a UCITS scheme must be collective investment in transferable securities47 or in other permitted financial instruments48 operating on the principle of risk-spreading; and the units in the fund must, at the request of the unitholders, be repurchased or redeemed, directly or indirectly, out of the scheme's assets (which includes action taken by or on behalf of the scheme on a stock exchange to ensure that the value of its units does not vary significantly from their net asset value).
Alternatively, a UCITS scheme may be an umbrella scheme, having sub-funds that each would be a UCITS scheme if they had separate FCA authorisation.
A scheme will not constitute a UCITS scheme for the purposes of the rules in the FCA Handbook if its instrument of incorporation (for an OEIC), trust deed (for an AUT) or contractual scheme deed (for an ACS) contain a provision that means that its units may only be sold to the public in non-UK or non-EEA states, depending on the domicile of the fund.
UCITS schemes must comply with the general obligations applicable to UCITS funds under the UCITS Directive,49 as implemented in the United Kingdom through the Undertakings for Collective Investment in Transferable Securities Regulations 2011 (as amended) and the UCITS IV Directive Instrument 2011 (FSA 2011/39) as well as specific investment and borrowing power rules.50 The general UCITS investment limits have been incorporated into the UK regulatory regime through COLL, and include spread limits and specific rules for government securities and for derivatives.51 The investment powers and borrowing limits for UCITS feeder funds are also included in COLL; these include a general obligation that a feeder UCITS must invest at least 85 per cent in value of its property in units of a single master UCITS.52
Non-UCITS retail schemes
Like UCITS schemes, non-UCITS retail schemes (NURSs) are not a separate type of investment vehicle, but rather are AUTs, OEICs or ACSs that do not comply with the requirements to be a UCITS. The regulatory regime applying to NURSs in the United Kingdom is less stringent than that which applies to UCITS schemes, and the applicable investment restrictions are therefore more relaxed. For example, NURSs are permitted to invest up to 20 per cent of the value of the scheme property in unlisted securities or unregulated investment schemes, and may also invest in gold and real estate assets.53 In addition, the limit for investment in the units of another authorised scheme is 35 per cent of the NURS's assets54 (which permits a higher level of investment concentration than the 20 per cent limit applicable to UCITS schemes),55 while the limit for a NURS's exposure to a single counterparty in an over-the-counter derivative transfer is limited to 10 per cent of the scheme value,56 rather than the usual 5 per cent limit for UCITS schemes.57
Nonetheless, there are still important limitations on the investment powers of NURSs that are intended to retain a degree of investor protection in the absence of the demanding UCITS requirements. A NURS (except for a feeder NURS)58 cannot invest in the units of a CIS unless that CIS meets certain minimum requirements, including that the CIS is effectively subject to an equivalent level of regulation as a NURS or UCITS fund (or otherwise that no more than 20 per cent by value of the NURS's assets are invested in that CIS); the CIS operates on the principle of the prudent spread of investment risk; and the CIS is prohibited from having more than 15 per cent in value of its property in units in other CISs.59
NURSs are also subject to certain of the same provisions in COLL60 regarding:
- limiting the amount of cash that can be retained in the scheme property;61
- general borrowing powers;62
- the ability to lend money and other property;63 and
- the power to provide guarantees or indemnities.64
In October 2018, the FCA began consulting on proposals to reduce the potential for harm to retail investors in funds that hold illiquid assets.65 Consequently, the FCA announced a number of changes to its rulebook in September 2019, including the introduction of a new category of 'funds investing in inherently illiquid assets', a requirement for funds to be enhanced to increased depositary oversight, suspend trading in certain circumstances, produce risk contingency plans, and disclose more information about liquidity management tools.66 These amended rules are targeted at NURSs in particular that invest in illiquid assets, such as property, and came into force in September 2020.
Funds of alternative investment funds
COLL includes provisions governing the operation of funds of alternative investment funds (FAIFs) that are NURSs (or sub-funds of umbrella NURSs) operated in accordance with specific rules set out in COLL 5.7 (some of which incorporate general rules that are applicable to all NURSs from COLL 5.6). The regulatory regime for FAIFs is therefore essentially a relaxed version of the rules that apply to NURSs, providing increased flexibility in respect of investment powers.
The key attribute of FAIFs is that they are permitted to invest all of their assets in CISs, provided that those CISs prudently spread risk and do not themselves invest more than 15 per cent in value of their assets in units in CISs (or, in the absence of any such restriction, provided that the fund manager of the FAIF is satisfied on reasonable grounds that no such investment will in fact be made).67 There is no requirement that the CIS in which a FAIF invests must itself be subject to the rules governing NURSs or the UCITS requirements. However, the fund manager of a FAIF must carry out appropriate due diligence on any CIS in which the FAIF intends to invest.68 The guidance in COLL 5.7 makes clear that this due diligence should include an assessment of, among other factors, the experience and qualifications of the CIS's investment manager, the adequacy of the CIS's governance arrangements and risk management processes, the level of liquidity and the redemption policy offered by the CIS, and any relevant conflicts of interest between the CIS's investment manager and any other parties.69
Qualified investor schemes
As with UCITS schemes and NURSs, qualified investor schemes (QISs) are not a specific legal form of investment vehicle. Rather, QISs are authorised CISs that are designed to be marketed only to certain types of sophisticated investors,70 rather than to general retail customers, and the fund manager of a QIS is required to take reasonable care to ensure that the units in the QIS are sold only to such persons.71
The regulation of QISs is more relaxed than that of UCITS schemes and NURSs, and QISs have greater flexibility in respect of their investment and borrowing powers. The assets in which a QIS invests must be permitted investments under the QIS's constitution and its marketing prospectus,72 but otherwise they can consist of a wide range of assets including shares, debentures, alternative finance bonds, real estate, precious metals, exchange-traded commodity contracts, options, contracts for difference and units in CISs.73 Unlike UCITS schemes and NURSs, there are no specific rules that would limit concentration of a QIS's assets in certain investments (except for units in certain CISs), although there is a general requirement that the fund manager of a QIS must take reasonable steps to ensure that the investments provide a suitable spread of risk in light of the investment objectives of the scheme.74 In relation to investments in CISs, a QIS may only invest in regulated CISs or schemes that otherwise meet certain minimum requirements (and if the scheme is of the latter type, the QIS must not invest more than 20 per cent in value of its assets in unregulated schemes or other QISs unless the fund manager has taken reasonable care to ensure that the target scheme complies with all relevant legal and regulatory requirements).75
The limitations on the borrowing powers of QISs are similarly relaxed. There is a general rule that the borrowing of a QIS must not exceed 100 per cent of the value of its assets, and the fund manager must take reasonable care to ensure that arrangements are in place that will enable borrowings to be closed out to ensure compliance with that rule.76 However, there is no requirement that borrowings can only be of a temporary nature.
Long-term asset fund
In May 2021, the FCA published a consultation paper on the creation of a new open-ended authorised fund regime for investing in long term assets, to be known as 'long-term asset funds' (LTAFs).77 The LTAF vehicle is designed to enable funds to access and efficiently and flexibly invest in long-term, illiquid assets including private equity and real estate. In developing the LTAF regime, the FCA, alongside HM Treasury and the Bank of England, convened the Productive Finance Working Group to consider how to best facilitate the development of a suitable investing environment. The working group is expected to publish its conclusions later in 2021. The FCA has said that it intends to respond to feedback and publish a final policy statement by the end of 2021.
ii Closed-ended investment vehicles
Closed-ended funds differ from open-ended funds by issuing a fixed number of securities, usually determined by the fund's constitutional documents or by the general requirements of the law regulating the type of fund entity, or both, with investors realising their investment either by selling the securities in the secondary market or upon the winding-up of the fund at the end of its life. Therefore, unlike open-ended funds, closed-ended funds do not undergo the constant expansion and contraction of the number of securities in issue throughout their life in response to ongoing investment and redemption. In the United Kingdom, the most common closed-ended structures are investment trusts (which are actually companies) and partnerships.
Investment trusts, despite their misleading name, are not trusts, but rather are public limited companies that are listed on a recognised stock exchange. As such, the usual company law provisions contained in the Companies Act 2006 apply to investment trusts, and there is no separate legal regime governing their form and structure (e.g., as there is for OEICs). However, to constitute a valid investment trust for tax purposes, a company must meet the criteria set out in Section 1158 of the Corporation Tax Act 2010 and be approved as such by HM Revenue & Customs (HMRC).
Unlike open-ended funds, the shares in an investment trust may trade at a discount or a premium to the net asset value of the company's underlying assets, depending on levels of supply and demand on the stock exchange. It is usual for the shares of investment trusts to trade at a discount, which can lead to considerable time being spent on attempting to manage the level of this discount. In particular, investment trusts commonly seek general shareholder authority (usually on an annual basis) to make purchases of their own shares in the market from time to time to support the price at which their shares trade.
As listed entities, investment trusts are subject to the Listing Rules (LRs) that form part of the FCA Handbook and are published by the FCA acting in its capacity as the UK Listing Authority. In particular, Chapter 15 of the LRs contains specific rules with which listed closed-ended investment funds (which includes investment trusts) must comply.78 In addition to meeting the minimum requirements for listing that apply to all listed securities, the LRs stipulate that investment trusts must invest and manage their assets in such a way as to spread investment risk,79 and that the board of directors of the investment trust must be able to act independently from its investment manager.80 In addition, an investment trust must make investments in accordance with a published investment policy, and any material changes to that policy must be approved by shareholders and, if the change is not proposed to enable the winding-up of the investment trust, by the FCA.81
Investment trusts themselves do not require authorisation under FSMA. However, following the implementation of the AIFMD, managers of investment trusts either require FCA authorisation or, in certain limited instances, to be registered with the FCA to carry out the activity of managing the investment trust. Investment trusts have a board of directors, but management is usually delegated to an investment management company; this external manager must therefore be authorised and comply with the requirements of the AIFMD. If the investment trust is internally managed, the investment trust itself must be authorised or registered.
Under the Collective Investment Schemes Order,82 investment trusts do not qualify as CISs, and therefore the restrictions on the promotion of CISs in Section 238 FSMA do not apply.83 However, shares in an investment trust will constitute specified investments under Article 76 of the Regulated Activities Order, and therefore they fall within the general restrictions on financial promotions.
Limited partnerships are formed under the Partnership Act 1890 and registered under the Limited Partnerships Act 1907 (LPA 1907). A limited partnership is defined as consisting of one or more general partners who are liable for all the debts and obligations of the partnership, and one or more limited partners whose liability is limited to the amount of capital that they contribute.84 It is a key requirement of limited partnerships that the general partner alone is responsible for the day-to-day operation and management of the partnership's affairs: if a limited partner becomes involved in the management of the partnership's business, that limited partner will lose the benefit of limited liability and will be treated as a general partner.85 For this reason, in the asset management context it is usual that an entity connected with the investment manager of a fund that is established as a limited partnership acts as general partner or that management responsibility is delegated to a third party, while investors act as limited partners.
Limited partnerships must be registered with the Registrar of Companies (which acts, for these purposes, as the Registrar of Limited Partnerships) in accordance with the provisions of the LPA 1907.
English limited partnerships do not have separate legal personality, and therefore cannot hold property or contract in their own name. Scottish limited partnerships differ in this respect: Section 4(2) of the Partnership Act 1890 makes it clear that a Scottish partnership is a legal person distinct from the persons of whom it is composed. Both English and Scottish limited partnerships are treated as fiscally transparent in the United Kingdom. In July 2015, HM Treasury consulted on proposed changes to the LPA 1907 as it applies to funds by a legislative reform order. It stated that it remains committed to exploring the possibility of allowing English limited partnerships to elect for legal personality, but that such a change would be fundamental and hence would not be possible using the proposed legislative reform order. Further work will be needed to explore the implications and legislative changes required.86
Limited partnerships benefit from flexible governance arrangements, as the LPA 1907 contains few rules on the division of responsibilities between the general and limited partners (other than the overriding requirement that the limited partners must not become involved in the day-to-day management of the partnership business). The general law relating to partnerships is flexible, and it is entirely possible to establish a partnership (although not a limited partnership, owing to the need for registration) without a written partnership agreement. In reality, investment funds will be constituted through a written agreement that sets out the rules and arrangements for that particular partnership. Certain changes to the regime for limited partnerships are proposed by HM Treasury, in particular an ability for a limited partnership to be designated as a private fund limited partnership that would carry certain regulatory benefits. The timescale within which these changes will be brought about remains unclear.87
Most investment funds operated as limited partnerships will be CISs within the definition under Section 235 FSMA, as they will involve the pooling of investment assets in an arrangement whereby investors do not have day-to-day control over the management of the fund's property. In addition, such limited partnerships are likely to be AIFs for the purposes of the AIFMD (see Section III.iii). As a result, the fund manager (whether this be the general partner or a third-party manager) is likely to require FCA authorisation for the regulated activities of establishing, operating or winding up a CIS or for the regulated activity of managing an AIF.
Private fund limited partnerships
The private fund limited partnerships (PFLP) regime came into force on 6 April 2017 pursuant to the Legislative Reform (Private Fund Limited Partnerships) Order 201788 (the PFLP Order), which amended the LPA 1907 in certain respects. The PFLP regime is the result of the government's initiative to make the United Kingdom a more competitive jurisdiction for fund formation by relaxing or removing some of the more burdensome requirements of the LPA 1907 in relation to such funds, while retaining the flexibility and fiscal advantages of limited partnership structures.
A limited partnership must apply to be designated as a PFLP before it can avail itself of the PFLP regime. To be a PFLP, a limited partnership must satisfy two conditions: it must be constituted by an agreement in writing and it must be a CIS (as defined in Section 235 FSMA, but ignoring any order made under Section 235(5) FSMA).
The PFLP regime relaxes a number of rules relating to limited partnerships as they apply to PFLPs. In particular, the regime introduces a non-exhaustive 'white list' of permitted activities that limited partners may undertake without jeopardising their limited liability status (such as consulting or advising with a general partner or any person appointed to manage or advise the partnership about the affairs of the partnership or about its accounts).89 The PLFP regime also removes the requirement for partners to make a capital contribution to the partnership, and it removes certain other administrative burdens, such as the need to advertise changes to the partnership in the Gazette. Given that the PFLP Order overlays existing limited partnership law, it has the advantage of maintaining most of the features of the existing limited partnership law that are familiar to investors and asset managers. Crucially, the tax status of the limited partnership is not affected by the PFLP Order.
Limited liability partnerships
Limited liability partnerships (LLPs) are a relatively recent introduction in the United Kingdom, having been created by the Limited Liability Partnerships Act 2000. They are a form of hybrid legal entity that are bodies corporate with their own legal personality,90 but that enjoy the organisational flexibility and tax transparency of traditional partnerships coupled with limited liability for each member. LLPs must be incorporated through the Registrar of Companies.91
It is possible for an investment fund incorporated as an LLP to constitute a CIS under Section 235 FSMA in circumstances where the investors do not have control over the day-to-day management of the property of the LLP.92 In practice, this will depend upon how the LLP is established and operates. Unlike limited partnerships, every member of the LLP is capable of being involved in its day-to-day operation. Similarly, FCA guidance confirms that it is possible for LLPs to fall within the definition of an AIF under the AIFMD.93 In such cases, the appropriate FCA authorisation will be required.
iii Alternative investment funds
The UK implementation of the AIFMD, by means of, among other things, the Alternative Investment Fund Managers Regulations 2013 (AIFM Regulations),94 has resulted in a further regulatory category for investment funds: AIFs. An AIF is a collective investment undertaking95 that raises capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors, and that is not a UCITS scheme.96 Like UCITS schemes, AIFs are not a separate type of investment vehicle. Rather, the AIFMD regime constitutes a further layer of regulation applicable to managers of investment funds that meet the definition above. An AIF can be open-ended or closed-ended, and constituted in any legal form, including under a contract, by means of a trust or under statute.97 This broad definition of AIF means that many of the categories of investment fund described above and below fall within its scope, including authorised CISs that are NURSs or QISs, investment trusts, hedge funds, real estate funds and private equity funds. The majority of pension funds (unless they are co-investing with other pension funds) and all insurance funds are excluded. Where a fund does constitute an AIF, the fund itself will remain regulated in the manner set out above, but the manager of such a fund will be regulated pursuant to the AIFMD (although some obligations may indirectly affect the way in which the manager operates AIFs).
Although the implications of the AIFMD for AIFs themselves may be relatively minor, the impact on alternative investment fund managers (AIFMs) is far greater. An AIFM is defined as a legal person, the regular business of which is managing one or more AIFs.98 Managing an AIF means performing at least risk management or portfolio management for the AIF.99 The AIFM may be an external manager or, if the legal form of the AIF permits internal management, the AIF itself.100
The AIFMD was onshored by the AIFM EU Exit Regulations. The AIFMD Level 2 Regulations, which created a single rulebook for AIFMs and which contain further detailed requirements relating to certain matters, including the calculation of assets under management and leverage, transparency and operating conditions, was also onshored following IP Completion Day. The UK regulatory regime for AIFs comprises the AIFM Regulations and the Investment Funds Sourcebook (FUND) in the FCA Handbook. There is a degree of overlap, in that managers of NURSs and QISs who are authorised as AIFMs must refer to the new Sourcebook as well as to COLL.
An AIFM must be authorised under Part 4A FSMA to carry on the regulated activity of managing an AIF. To be authorised under Part 4A, the AIFM must comply with a number of obligations, including the following:
- an initial capital requirement;101
- the AIFM must be the only AIFM of each AIF it manages;
- the persons who conduct the business of the AIFM must be of sufficiently good repute and sufficiently experienced; and
- the shareholders or members of the AIFM must be suitable taking into account the need to ensure prudent management.
The AIFMD allows for managers of portfolios of AIFs the value of whose assets under management does not exceed €100 million, or €500 million where each managed AIF is unleveraged and has a lock-in period of five years (small AIFMs),102 to be subject to a lighter regulatory regime.
Full-scope UK AIFMs authorised under Part 4A are subject to the full requirements of the AIFMD as set out in the AIFM Regulations and FUND. Small AIFMs may also be authorised to carry out the regulated activity of managing an AIF; however, certain small AIFMs that meet the conditions in Regulation 10 of the AIFM Regulations need not be authorised under Part 4A and need only be registered as a small registered UK AIFM.103 Small AIFMs are not required to comply with the requirements of the AIFMD, with the exception of certain registration, reporting and notification requirements contained in Article 3 of the AIFMD.104 A small, authorised UK AIFM will also be subject to the relevant parts of the FCA Handbook.
A UK AIFM may manage a non-EU AIF that is not marketed in the European Union provided that it complies with the AIFMD (with the exception of the requirements for a depositary and annual report). There must also be appropriate cooperation arrangements in place between the FCA and the supervisor in the country in which the AIF is established. This is the continuing position under the temporary permissions regime set out in the AIFMD EU Exit Regulations.
Prudential and conduct of business requirements
AIFMs must comply with a number of conduct, organisational and prudential requirements.
In particular, AIFMs must implement adequate risk management systems, including by monitoring liquidity risks for each AIF under management and setting a maximum level of leverage.105 AIFMs must also have adequate procedures and policies in relation to conflicts of interest.106AIFMs must establish, implement and maintain remuneration policies that promote effective risk management and apply to, inter alia, any senior managers and other staff whose professional activities have a material impact on the risk profiles of the AIFM or AIFs under management.107 There are also restrictions on the levels of remuneration paid to such staff: at least 40 per cent of variable remuneration (i.e., bonuses) must be deferred for a period of at least three to five years unless the life cycle of the AIF concerned is shorter than this period. If the bonus is particularly high, at least 60 per cent must be deferred.108
In respect of delegation, there are a number of restrictions.109 An AIFM must notify the FCA before any delegation arrangements become effective, and the AIFM must be able to justify the delegation objectively.110 The AIFM must not delegate its functions to the extent that it becomes a letterbox entity, and the services provided by the delegate must be reviewed on an ongoing basis. The AIFM's liability towards the AIF and its investors is not affected by the AIFM delegating its functions to a third party or by any further sub-delegation. The meaning of letterbox entity has been the subject of considerable debate. Article 82 AIFMD Level 2 Regulation (reproduced in Investment Funds Sourcebook (FUND) 3.10.9 of the FCA Handbook) lists a number of non-exhaustive situations in which an AIFM will be deemed a letterbox entity and not the manager of the AIF.
AIFMs must appoint a single depositary for each AIF, and the assets of the AIF must be entrusted to the depositary for safekeeping.111 Rules and guidance relating to the use of such depositaries are set out in FUND 3.11. AIFMs must also ensure the proper valuation of AIF assets, conduct at least annual valuations (either internally or through an independent valuer) of the assets of each AIF and disclose the results of the valuation to investors.112
The European Commission has implemented a revised legislative framework for prudential requirements for investment firms, in the form of the Investment Firms Regulation113 (IFR) and Investment Firms Directive114 (IFD). The new framework includes a new categorisation of firms and an increase of the base capital requirements to €75,000, €150,000 and €750,000 for Class 1, 2 and 3 firms respectively. The IFD and IFR came into force in December 2019, with the IFR becoming directly applicable in EU Member States in June 2021, and transposition of the IFD into domestic law in EU Member States required by that same date. The IFD and IFR were not automatically onshored in the United Kingdom by the Withdrawal Act, but the United Kingdom is introducing a new Investment Firm Prudential Regime (IFPR) on 1 January 2022, under the Financial Services Act 2021. The regime follows a series of discussion and consultation papers, with the final consultation paper on the regime to be published in the third quarter of 2021.115 The IFPR largely implements the position under the IFD and IFR package as a matter of national law.
Transparency and disclosure
The AIFMD requires certain information to be made available to investors and the FCA by AIFMs. A UK AIFM must disclose specified information to investors (set out in FUND 3.2) for each AIF that it manages or markets, both prior to investment and on a periodic basis thereafter. For instance, it must disclose the investment strategy of the AIFM, a description of the AIF's risks and risk management, and a description of all fees that are borne directly or indirectly by investors.
The AIFM must also make an annual report available to investors116 and regularly report to the FCA on the matters set out in FUND 3.4 (including the main instruments in which it is trading, its risk profile and, if the AIF employs leverage on a substantial basis, details of the level of leverage employed). Managers of private equity funds and hedge funds, among others, may have to report significantly more information to their investors under this regime than they previously had to.
Private equity provisions
An AIFM must notify the FCA when an AIF that it manages acquires, disposes of or holds significant holdings in a non-listed company.117 Further, when an AIF acquires, individually or jointly, control of a non-listed company, its AIFM must notify the company, the company's shareholders and the FCA, and must make various disclosures as to the intentions of the AIF with regard to the future business of the company.
In addition, there are asset-stripping provisions whereby the AIFM must use its best efforts to prevent any distributions, capital reductions, share redemptions or the acquisition by the company of its own shares in the first two years after the AIF acquires control.118 This restriction is subject to certain qualifications; for instance, only distributions that would cause the company's net assets to fall below the subscribed capital or that would exceed available net profits are prohibited.119 These requirements are particularly relevant to managers of private equity funds; hence, they are known colloquially as the private equity provisions.
Marketing and passporting
Guidance on management and marketing for UK purposes is set out in the FUND, Supervision (SUP) and PERG Sourcebooks in the FCA Handbook. The AIFM Regulations implemented the AIFMD passporting regime under which authorised EU AIFMs could manage and market EU AIFs to professional investors in other Member States without additional authorisation. Following the cessation of passporting rights on IP Completion Day, the AIFM EU Exit Regulations introduced the temporary marketing permission regime (TMPR) to enable AIFs that had been passporting into the United Kingdom prior to IP Completion Day to continue being marketed in the United Kingdom on a temporary basis until funds obtained authorisation from the FCA. The TMPR will cease to operate at the end of 2023.
EEA AIFMs wishing to commence the marketing of AIFs, and UK AIFMs wishing to commence the marketing of non-UK AIFs, after IP Completion Day are unable to use the TMPR to operate in the United Kingdom and must instead market AIFs under the national private placement regime (NPPR). To market under the NPPR, an AIFM must comply with certain requirements, including notification to the FCA, and compliance with the transparency requirements and private equity provisions.120
Where AIFMs are unable to use the TMPR, the FCA's temporary transitional direction – made under its 'Temporary Transitional Power' provided for in the Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (the 'standstill direction') – applies to some aspects of the UKs regime for AIFs, such that certain AIFMs have until 31 March 2022 to adapt to changes to regulation caused by Brexit. No changes have been made to the range of AIFs that may be marketed to the general public in the United Kingdom (including NURSs and investment trusts) and the domestic rules on the promotion of AIFs to retail investors continue to apply, but each of these must now be managed by an authorised AIFM.
Main sources of investment
An estimated £9.9 trillion of funds were under management in the United Kingdom at the end of 2019,121 although the combined effect of the uncertainty caused by Brexit and the covid-19 pandemic on this figure has yet to be quantified. The United Kingdom is the second-largest global fund management centre, after the United States, and is the largest centre of asset management in Europe, where it accounted for 37 per cent of all assets under management in 2019. Assets managed on behalf of European clients made up almost 25 per cent of UK-managed assets, despite strong growth in North American client assets.122 London is the leading centre for fund management in the United Kingdom, but other large fund management centres include Aberdeen, Liverpool, Manchester, Edinburgh, Bristol, Oxford, Cambridge, Glasgow and Birmingham.123
The UK fund management industry has a strong international orientation: out of the £8.5 trillion of funds under management by IA members in 2019, £3.6 trillion was managed for overseas clients. In addition, £1.9 trillion of funds under management by IA members in 2019 was managed for overseas funds (up from £1.8 trillion at the end of 2018), of which three-quarters consisted of funds domiciled in Ireland or Luxembourg.
Institutional clients provide the majority of funds under management in the United Kingdom, with £4 trillion of funds under management by IA members in 2019 managed for UK institutional clients. Within this metric, 55 per cent were managed for pension funds.
UK investor funds under management in UK-authorised and recognised funds reached a record £1.31 trillion by the end of 2019, and despite a 14 per cent fall in March 2020, this figure recovered to £1.28 trillion by June 2020. Net retail sales were £9.8 billion in 2019, and were £8.6 billion for the first half of 2020.
i Asset allocation
The past 15 years have seen a gradual reduction in the allocation of funds to equity investments, an increase in investment in bonds and generally more diversification of investments. In spite of this general trend, 2019 saw a resurgence of equity markets with allocation to equities increasing from 36 per cent in 2018 to 38 per cent in 2019. This was matched by a decrease of 1.8 per cent in fixed income allocation, with 32 per cent of total assets.124
Following the UK government's implementation of lockdown measures in response to the covid-19 pandemic, retail funds experienced record net retail outflows of £9.7 billion in March 2020 as investors reacted to these measures. However, this has been largely offset by inflows in April 2020 through to June 2020 totalling £11.2 billion.
ii Concentration and consolidation
The top five fund managers by UK assets under management increased slightly to 43 per cent of total funds under management from 42 per cent in 2019, and the top 10 managers managed 58 per cent.125 Overall, the UK fund management industry remains a highly competitive environment, compromising many small and medium-sized organisations. The proportion of assets under management by stand-alone asset management firms stood at 42 per cent as of 2019, a large increase from the 21 per cent in 2008. This reflects a trend over recent years of stand-alone asset managers having increasing significance; in 2003, they accounted for 11 per cent of assets under management in the UK.126 Merger and acquisition activity has continued in the fund management sector, with the strength of activity in recent years continuing. Notable recent large deals involving UK firms include the merger of Tilney and Smith & Williamson, the acquisition of Neptune Investment Management and Architas by Liontrust, and Sanlam's acquisition of Astute Wealth Management and Thesis Asset Management.127
iii Corporate governance
The UK Stewardship Code (Stewardship Code) was first published by the Financial Reporting Council (FRC) in July 2010, with the aim of improving the engagement of firms who manage assets on behalf of others with the companies in which they invest. It is directed at institutional investors with equity holdings in UK listed companies, and sets out twelve principles covering the monitoring of and engagement with companies on matters such as strategy, performance, risk, remuneration and corporate governance. Since 6 December 2010, UK-authorised asset managers have been required by the FCA to disclose whether they comply with the Stewardship Code, with a large majority of institutional clients of these firms expecting them to exercise stewardship.128
The revised UK Stewardship Code 2020, which took effect at the start of January 2020,129 specifically considers the separate positions of asset owners, such as pension funds and insurance companies, and service providers as well as asset managers. It also includes new requirements for investors to report how their purpose, values and culture enable them to meet their obligations to clients and beneficiaries. Lastly, it refers to environmental, social and governance (ESG) factors, and expects investors to exercise stewardship across a wider range of assets where they have influence and rights (i.e., beyond listed equity). In September 2020, the FRC published a Review of Early Reporting to the Code, setting out their expectations in respect of effective reporting and the code's principles.
The Stewardship Code is of particular significance to those pension funds that delegate investment management to others. They are expected to: satisfy themselves that they have in place a process for monitoring how their asset managers apply the Stewardship Code;130 ensure that managers are adhering to a fund's stewardship policy; and seek to hold their managers to account for their stewardship activities.131
iv The Retail Distribution Review
In June 2006, the FSA launched a review of retail distribution in the United Kingdom with the aim of helping consumers to achieve a fair deal from the financial services industry, and to have confidence in the products they buy and the advice they take.
Rules implementing the outcomes of the Retail Distribution Review – launched in June 2006 with the aim of improving clarity for investors and reducing conflicts of interest arising from the remuneration of financial advisers came into effect on 31 December 2012 for all advisers in the retail investment market. The rules prevent commission payments, and require advisory firms to disclose explicitly and charge clients separately for their services. The rules also require firms to describe their advisory services clearly as either independent or restricted and require individual advisers to adhere to consistent professional standards.132
The FCA carried out a post-implementation review of the Retail Distribution Review in 2014, which found that the Retail Distribution Review had generally had a positive impact on the industry, for example through increasing levels of professionalism and decreasing product bias and product charges. As a follow-up, in March 2020 the FCA published an evaluation of the Retail Distribution Review (alongside its review of the Financial Advice Markets Review), which found that the financial advice market was slowly improving, however many consumers remain reluctant to invest their money.
v The Fair and Effective Markets Review
In June 2014, the Chancellor of the Exchequer and the Governor of the Bank of England launched a review aimed at reinforcing confidence in the wholesale fixed income, currency and commodities (FICC) markets: the Fair and Effective Markets Review.
The final report of the Fair and Effective Markets Review, published on 10 June 2015, set out 21 recommendations to promote fairer FICC market structures while also enhancing effectiveness. A further implementation report was published on 28 July 2016.
The recommendations also included extending the senior managers and certification regime (SMCR) to cover a wider range of firms that are active in FICC markets. The report notes that this would include: MiFID investment firms, including asset managers and interdealer brokers; hedge funds under the AIFMD; and fund managers under the UCITS Directive. The government has implemented this change via the Bank of England and Financial Services Act 2016, which made provision for the extension of the senior managers and certification regime to all UK-authorised firms (including the asset management firms mentioned above). The FCA published final rules in July 2019 extending the scope of the SMCR to all FCA solo-regulated firms,133 some of which took effect in December 2019. Other requirements, such as conduct rules applicable to staff of solo-regulated firms outside of the senior managers regime and the requirement for firms to assess the fitness and propriety of their certified staff, had to be complied with by March 2021, extended from December 2020 in recognition of difficulties following the covid-19 pandemic.
vi The asset management market study
In November 2015, the FCA launched the asset management market study, a review of the asset management sector, with a view to understanding how the retail and institutional asset management sector works for investors. In its final report, published in June 2017,134 the FCA stated that it had concerns about weak price competition in the asset management sector, particularly in relation to active mandates for retail clients, in respect of which it concluded that price competition is not working as effectively as it could be. The FCA also considered whether there is a relationship between fund performance and the level of fees charged by managers, and concluded that both actively managed funds and passive funds – for retail and institutional investors – failed to outperform their own benchmarks once fees were taken into account. Additionally, the regulator noted that it had concerns about how managers communicate investment objectives with their clients, particularly in relation to retail investors. Finally, the FCA voiced concerns about the role of investment consultants and other intermediaries in the asset management sector, particularly in relation to competition among investment consultants.
In response to the issues identified, the FCA proposed to strengthen the duty of asset managers to act in the best interests of their clients (including requiring authorised fund managers (AFMs) to carry out and publish an annual assessment of whether funds managed by them will deliver value to investors),135 and to consult on requiring managers to return certain box profits to their funds and making it easier for managers to switch investors to cheaper share classes. The FCA also restated its support for the disclosure of an 'all-in' fee to investors, and the consistent and standardised disclosure of costs and charges to institutional investors and made a reference to the Competition and Markets Authority (CMA), which culminated in the CMA publishing a final report in December 2018 and a package of reforms, including a recommendation to HM Treasury to broaden the FCA's regulatory scope to include the activities of investment consultants.136 Additionally, new rules make it easier for AFMs to move investors to cheaper but otherwise identical classes of the same fund by removing the need for an AFM to seek consent from each investor before converting them to a different share class. In February 2019, the FCA also set out final rules that require AFMs to explain why they have used a benchmark in a fund's prospectus and other consumer-facing communications that include fund-specific information and that, where an AFM describes a fund's past performance, it should describe such performance against the relevant benchmark.137 The new rules also include requirements relating to how performance fees are calculated, and disclosure of fund objectives and investment policies. The FCA has separately carried out an additional review of governance standards for unit-linked funds (whose performance determines the benefits due to holders of unit-linked insurance contracts). The results of this review, published in September 2019, highlighted concerns around the limited consideration of unit holders' interests in decision-making around levels of fees and charges, low levels of price competition in the market and the limited impact of independent governance bodies. The FCA is currently assessing the findings of this review and may implement remedies in the future.138
vii Responsible and sustainable investment
Growing concerns around the impact of climate change, along with increased scrutiny surrounding equality and diversity, has resulted in a marked growth of interest in responsible and sustainable investment, with an apparent increased integration of ESG factors across asset managers' strategies.
On climate change in particular, there has been a hive of activity in recent years. In 2017 the Financial Stability Board's Task Force on Climate-Related Financial Disclosures (TCFD) developed voluntary, climate-related financial risk disclosures, with the aim of providing decision-useful information to companies' stakeholders. On 2 July 2019, the UK government announced, in its Green Finance Strategy, the expectation that listed companies and large asset owners should disclose in line with the TCFD recommendations by 2022. Subsequently, in December 2020, the FCA published a policy statement in support of adopting a reporting and disclosure framework based upon the TCFD framework. Also in December 2020, a new listing rule and related guidance aimed at accelerating good practice by companies came into force. The rule (LR 9.8.6R(8)) and guidance (LR 9.8.6BG) require companies to include a statement in their annual financial report as to whether the company has made the disclosures recommended by the TCFD in their annual report.
The UK insurance industry is the largest in Europe and the fourth-largest in the world. It contributes significantly to the UK economy, managing investments of over £1.6 trillion and paying nearly £16.1 billion in taxes to the government in 2020.139 UK insurance funds represented 13 per cent of funds under management in the United Kingdom in 2019.
In terms of asset allocation, the proportion of UK quoted shares held by insurance companies was estimated at 4 per cent at the end of 2018,140 continuing the fall seen in recent years and the lowest percentage since 1963 (when records began).141 This decrease reflects a move from investment in UK equities to overseas securities and mutual funds. This trend is partly attributable to the introduction under the Solvency II Directive (Solvency II)142 of, among other things, higher capital charges on certain asset classes compared to others.
HM Treasury are considering regulatory reform to support the UK insurance sector. Existing aspects of the UK regulatory regime that may affect investments made by insurers include the permitted links regime and requirements that apply to with-profits business.
The permitted links regime
Rule 21.3.1 of the FCA's COBS Sourcebook stipulates that insurers are not permitted to provide benefits under linked long-term contracts of insurance that are determined by reference to fluctuations in any index that is not an approved index,143 or by reference to the value of, income from, or fluctuations in the value of, property, other than property that is on the list of permitted links set out in COBS 21.3.1(2). As part of the UK's implementation of Solvency II, the FCA amended the rule to extend the list of permitted links to include approved money market instruments and to ensure that insurers offering linked policies to policyholders that are not natural persons now fall outside its scope (such that insurers can link benefits to any type of asset as long as they continue to comply with relevant prudential requirements).144 In March 2020, the FCA also introduced a 'conditional permitted links' regime to remove some of the restrictions on investing in illiquid assets (aside from land and property), setting an overall limit of 35 per cent on the proportion of the fund that may be invested in these assets and a set of conditions aimed at protecting policyholders.145
Under the UK regime derived from Solvency II, insurers are allowed to use derivatives to cover their technical provisions in respect of linked business without being subject to the requirement that derivatives are held only for the purpose of efficient portfolio management or reduction of investment risks, unless the assets are held in respect of any guarantee of investment performance or other guaranteed benefit provided under the linked long-term contract of insurance.146 However, any use of derivatives will still need to satisfy the prudent person principle more generally.
A peculiarity of the UK regulatory regime for insurance is the additional layer of requirements for with-profits funds (long-term insurance funds in which policyholders are eligible to participate, broadly, in any excess of assets over the liabilities of the fund). Additional conduct of business rules, set out in COBS 20, apply to the management of these funds, and additional prudential requirements are set out in the With-Profits part of the PRA Rulebook for both Solvency II and non-Solvency II firms. Additional conduct requirements, but not additional prudential requirements, apply to in-scope firms.
Occupational pension schemes do not fall within the scope of the MiFID regime and are not CISs under FSMA; however, the investment of fund assets is generally delegated to an external fund manager who is likely to be subject to those regulations. The investment of the assets of occupational pension schemes is, however, subject to restrictions in the Pensions Act 1995 (as amended by the Pensions Act 2004) and the Occupational Pension Schemes (Investment) Regulations 2005 (the Pension Schemes Regulations).
Subject to any restriction in a scheme's trust deed and rules, pension scheme trustees have the power to invest the scheme's assets as if absolutely entitled to those assets and to delegate investment management to a fund manager, provided that manager is either authorised or exempt for the purposes of the general prohibition in FSMA.147 Trustees will not be responsible for the acts or default of a fund manager provided they take reasonable steps to satisfy themselves that the manager has appropriate knowledge and experience for managing the investments of the scheme, and carries out his or her work competently and in compliance with provisions governing his or her investment choices.148 The trustees must ensure that a statement of investment principles (a written statement of the principles governing decisions about investments for the purposes of the scheme) is prepared and revised on a regular basis.149 The statement must cover various matters, including the trustees' policies in relation to:
- the kinds of investments to be held;
- the balance between different kinds of investments;
- risks, including the ways in which risks are to be measured and managed;
- the expected return on investments;
- the realisation of investments; and
- the extent (if any) to which social, environmental or ethical considerations are taken into account in the selection, retention and realisation of investments.150
Where trustees make investment decisions (rather than delegating to a fund manager), they are also required to obtain and consider proper advice as to whether a particular investment is satisfactory, having regard to the requirements of the Pension Schemes Regulations and the statement of investment principles. If the provision of the investment advice constitutes a regulated activity for the purposes of Section 19 of FSMA, proper advice must be given by a person entitled to give it (i.e., by an authorised or exempt person).151
Regulation 4 of the Pension Schemes Regulations sets out the manner in which trustees' investment powers in relation to a scheme's assets must be exercised and the restrictions on the assets in which trustees can invest. The scheme's assets must be invested in the best interests of the members and beneficiaries.152 Investment powers must be exercised in a manner calculated to ensure the security, quality, liquidity and profitability of the portfolio, and assets must be properly diversified so as to avoid accumulations of risk in the portfolio as a whole.153 Scheme assets must consist predominantly of investments admitted to trading on regulated markets, and investments in assets that are outside of this category must be kept to a prudent level.154 In addition, derivative instruments may only be used to the extent that they contribute to a reduction of risks or facilitate efficient portfolio management.155
The requirement for scheme assets to consist predominantly of investments admitted to trading on a regulated market does not prevent a pension scheme from holding investments in investment funds as it is permissible to look through investments held in a CIS to the underlying assets.156 In addition, pension schemes are not restricted from investing in qualifying insurance policies,157 such as annuities, which are treated as investments on a regulated market and, to the extent that the assets of a scheme consist of such policies, they are deemed to satisfy the requirement for proper diversification.158
There is a further requirement for defined benefit pension schemes in Regulation 4(4), which prescribes that the assets held to cover a scheme's technical provisions (i.e., the value of the scheme's defined benefit liabilities) must be invested in a manner appropriate to the nature and duration of the expected future retirement benefits payable under the scheme.
As the number of active members in defined benefit schemes has fallen, contributions to defined contribution (or money purchase) schemes have risen, and their importance will continue to increase as they replace the closing defined benefit schemes. During 2012, the government introduced reforms to enrol employees into employee pension schemes automatically, with the ability to opt out. Further significant reforms came into force in April 2015, which included removing the requirement for savers with 'money purchase' schemes to purchase an annuity, thereby increasing the flexibility for individuals when they draw their benefits on retirement. New governance requirements for trustees of defined contribution schemes and restrictions on charges in those schemes were also introduced in April 2015. On 18 June 2018, the Department for Work and Pensions published a response to the Law Commission's report on social impact investing. Following a consultation by the Department for Work and Pensions to clarify and strengthen trustees' investment duties, amendments were made to the Pension Schemes Regulation that took effect on 1 October 2019.159 These included new requirements for trustees to, among other things, update their statement of investment principles to clarify how they take account of financially material considerations, including: ESG issues such as climate change; their policies on the stewardship of investments; and a statement on how they will take account of members' views on, for example, ESG issues.
The Department for Work and Pensions published a further set of amendments to the Pension Schemes Regulations in June 2019 with particular relevance to asset managers, requiring trustees of both defined benefit and defined contribution pension schemes to ensure that the statement of investment principles sets out their policies in relation to their arrangements with asset managers. In particular, the statement should detail the duration of the arrangement, how the scheme incentivises the asset manager to align its investment strategies and decisions with that of the trustees, and how they monitor portfolio turnover costs incurred by the asset manager.160 These amendments also took effect in October 2019.
On 11 February 2021, the Pension Schemes Act 2021 received Royal Assent; however, much of the Act's changes requires enactment by further statutory instruments to come into force. The Act provides for significant change relating to defined benefit scheme funding, climate-related disclosures and new powers for the Pension's Regulator including in respect of civil penalties and two new criminal offences introduced by the Act. The Act also creates a framework for 'collective defined contribution' schemes, in which the investment of savers' individual funds is pooled to facilitate the sharing of risk and generate economies of scale.
iii Real property
Traditionally, UK commercial property has often been held through various offshore vehicles, including Jersey property unit trusts, to take advantage of favourable offshore tax treatment. It is also common for investors to hold property through UK listed property companies (in addition to unit trusts) that allow pooling of assets to overcome cost-related barriers to entry into the property market, and to take advantage of a lower rate of stamp duty levied on transactions involving shares than is payable in respect of direct transactions involving real property. However, investing in this manner puts shareholders at a disadvantage when compared with investing directly in property because of the possibility of double taxation.
Real estate investment trusts
Since 2007, it has been possible in the United Kingdom to establish real estate investment trusts (REITs), which, like other investment trusts, are actually companies that invest specifically in real estate and receive an advantageous tax treatment in that profits and gains arising from the company's property rental business are exempt from corporation tax. To obtain this tax treatment, a number of detailed conditions have to be fulfilled and notice must be given to HMRC.161 These conditions include requirements that the REIT distributes at least 90 per cent of the profits from its real estate investment business and that the REIT's ordinary share capital is listed or admitted to trading (and is actually trading) on a recognised stock exchange. The latter requirement is satisfied if the shares are traded on the Alternative Investment Market (AIM) of the London Stock Exchange or a similar recognised stock exchange overseas. REITs must also be widely held, unless they are owned by certain 'institutional investors' such as pension funds.
There are 55 REITs with a market cap of over US$70 billion listed on the London Stock Exchange.162 Data published by the Investment Property Forum indicates that in 2018, UK REITs and listed property companies together held commercial property valued at £71 billion,163 down from £74 billion in 2016.164
UK REITs are not CISs for the purposes of the definition in Section 235 FSMA; however, they may be AIFs.165 The FCA has indicated that a REIT is a concept used for tax purposes, and so there is no presumption as to whether a REIT is an AIF: this will be considered on a case-by-case basis.166
Property authorised investment funds
Since 6 April 2008, it has also been possible to establish a property authorised investment fund (PAIF) in the United Kingdom to act as a tax-efficient vehicle for a property investment business. In contrast to REITs, PAIFs do not need to be listed or traded on a recognised stock exchange, but they must be structured as OEICs, meaning that they do not benefit from the exemption from the definition of CISs available to other bodies corporate, and must therefore be authorised by the FCA.
To constitute a valid PAIF a number of detailed conditions have to be fulfilled and the fund manager must have given notice to HMRC for the PAIF rules to apply. Once an OEIC comes within the ambit of the regime, it benefits from favourable corporation tax treatment relating to its property investment businesses.
iv Hedge funds
As hedge funds are typically located in offshore jurisdictions (largely owing to the favourable tax treatment that can be obtained in those territories), there are relatively few UK-based hedge funds. However, London remains one of the largest global centres for hedge fund managers. In practice, the regulation of hedge funds under English law has therefore tended to focus on the managers themselves, rather than the fund entities, which tend to be beyond the UK's jurisdictional reach. All hedge fund managers, like other investment managers, are likely to be undertaking activities that constitute a regulated activity for the purposes of FSMA and the Regulated Activities Order.167 As a result, they must have the necessary FCA authorisations to carry out such activities.
Certain funds that invest in underlying hedge funds (funds of funds) may be based in the United Kingdom and may be listed on the London Stock Exchange as investment trusts. As discussed earlier, investment trusts are not CISs for the purposes of FSMA and do not require FCA authorisation themselves. Nonetheless, the investment manager of an investment trust will still need to be authorised. The advantage of a UK-listed fund of funds is that it can provide an indirect route to investment in multiple underlying hedge funds while still requiring adherence to the continuing obligations and reporting requirements contained in the UK Listing Authority's Listing Rules.
Having historically taken a light touch approach to hedge fund supervision, the FCA has significantly increased its scrutiny of the hedge fund industry, including through enforcement action taken against hedge fund managers and their staff. Hedge funds pose potentially systemic risks by their disorderly failure, particularly as counterparties to trades with financial institutions and others within the financial markets.168 In January 2020, the FCA published a 'Dear CEO' letter to firms managing 'alternative' investment vehicles (such as hedge funds and private equity firms) highlighting a number of risks that AIFMs posed to customers, such as low standards of governance, insufficient consideration of the appropriateness of investment products offered, and insufficient controls around client assets. The letter suggests that the FCA intends to take future action in this sector to address these issues.
UK regulation of hedge funds is also led by the overarching provisions introduced by EU legislation such as the AIFMD. There has been recent growth in the number of UCITS-compliant hedge funds,169 the managers of which will not be required to comply with the AIFMD but will nevertheless likely require FCA authorisation for carrying out regulated activities as described above.170 Non-UCITS hedge funds are likely to fall within the definition of AIFs; the managers of such funds, as AIFMs, are subject to the requirements of that regime.
In 2008 the Standards Board for Alternative Investments (SBAI) (the Hedge Fund Standards Board, as it then was) was established to act as an industry body to represent hedge funds and to improve standards across the hedge fund industry. The SBAI publishes the Hedge Fund Standards, which are designed to encourage greater transparency and more effective governance across the hedge fund sector in an attempt to pre-empt the requirement for greater regulation and legislative intervention.171 Funds that adopt the Hedge Fund Standards are required to adhere to a 'comply or explain' regime, ensuring that certain information is disclosed to investors about how the standards have been complied with, or why certain requirements have otherwise not been met or are not appropriate in the context of a particular fund. As of August 2018, 130 hedge fund managers with combined assets under management of over US$1.2 trillion had committed to the Hedge Fund Standards.172
v Private equity
In the United Kingdom, private equity firms typically use limited partnerships as investment vehicles to take advantage of their tax-transparent nature and their lower disclosure requirements as compared with limited companies or LLPs. The limited partners in the partnership are typically the institutional investors in the private equity fund, while the private equity firm will usually act as the general partner and will therefore be responsible for the day-to-day management of the partnership's activities.
The United Kingdom is the largest and most developed private equity centre in Europe, second in size globally only to the United States.173 Preqin, the alternative investment industry analyst, has noted that despite a slight drop in fundraising in 2020 due to the impact of covid-19,174 fundraising in the private equity sphere has improved significantly in recent years. The aggregate value of buyout deals fell in the second quarter of of 2020 to US$64 billion from US$120 billion in the first quarter; however investment activity recovered in the second half of 2020.
Traditionally, private equity has been a relatively lightly regulated area of asset management in the United Kingdom; although, in common with other asset management entities, private equity firms have required FCA authorisation if they are undertaking regulated activities specified in the Regulated Activities Order. Therefore private equity funds voiced concerned over the impact of the AIFMD regime, as implemented in the UK, on private equity activities.175 For example, rules on remuneration impact private equity firms' policies regarding deferred remuneration. Furthermore, the private equity provisions (intended to limit asset-stripping of companies) may interfere with some of the usual funding structures adopted by private equity funds, potentially restricting corporate reorganisations and targeted disposals of parts of a target company's business. The FCA indicated in its 'Dear CEO' letter of January 2020 to managers of alternative investment vehicles that it may also take future regulatory action in this sector.
There are ongoing initiatives to improve the transparency of the private equity industry in the United Kingdom to address criticism that the activities of private equity funds are opaque and to counteract the perception that they are insufficiently regulated. In November 2007, the Walker Guidelines were introduced to encourage improved disclosure by private equity bodies.176 These voluntary guidelines recommend that private equity firms that meet certain specified criteria177 should publish annual reviews or regular updates on their websites containing information about their investment approaches and portfolios and should provide various performance data on a confidential basis to an independent third party appointed by the British Private Equity and Venture Capital Association (BVCA). The Guidelines were amended in July 2014 to enhance the reporting requirements therein to include the information required by the Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013. Furthermore, the Institutional Limited Partners Association (ILPA) have published private equity principles with the aim of encouraging improvements in private equity practice by furthering the relationship between general partners and limited partners for the long-term benefit of participants in the industry and encouraging a greater focus on transparency and governance. These were first published in September 2009, and subsequently revised in January 2011.
Managers of certain venture capital funds can continue to benefit from the European Venture Capital Funds Regulation (VCF Regulation).178 The VCF Regulation was onshored as part of the Brexit process and applies to managers of collective investment undertakings (other than UCITS schemes) that are established in the European Union or United Kingdom, are registered in their home Member State in accordance with the AIFMD, manage portfolios of qualifying venture capital funds and generally, their assets under management do not exceed €500 million in total. The VCF Regulation's marketing passport, which can be used to market funds with European venture capital status to EU or UK investors, subject to complying with certain requirements, continues to allow managers of qualifying funds to benefit from cross-border marketing without having to comply with the full requirements of the AIFMD.
vi Other sectors
Sovereign wealth funds
While the United Kingdom does not operate a sovereign wealth fund (SWF) of its own, London remains a popular location for foreign SWFs to establish branches to pursue their investment activities, and the government has generally sought to encourage foreign direct investment into the United Kingdom.
There is no specific regulatory regime that applies to foreign investment by SWFs in the United Kingdom; instead, the position is regulated by general provisions in domestic and EU law, such as merger control regimes under the Enterprise Act 2002 or the EC Merger Regulation that may permit review of proposed transactions in certain defined circumstances that are of general application.
Exchange-traded funds (ETFs) are traditionally passively managed open-ended funds that are listed and traded on a stock exchange. The fund's trading price is linked to the net asset value of the underlying assets, and typically tracks the performance of an index such as the FTSE 100. The key characteristics of an ETF are that it is tradeable, and that it offers simple exposure to a more complex underlying asset or index. ETFs are popular with investors as they have lower operating expenses than actively managed funds and a transparent structure (as a listed company), and are tax-efficient. In the United Kingdom, ETFs are OEICs.
ETFs have performed well in recent years, venturing into emerging markets, real estate, infrastructure, private equity and hedge funds, such that global assets under management of ETFs have been reported to have grown to about US$8.56 trillion as of the end of 2021's first quarter.179 ESMA published revised consolidated guidelines on ETFs and other UCITS-related issues in August 2014, and an updated questions and answers paper on ETFs and other UCITS-related issues in February 2016. The FCA has incorporated ESMA's guidelines into the COLL Sourcebook.
Venture capital trusts
The venture capital trusts (VCTs) scheme was introduced in the United Kingdom in April 1995 as a means of encouraging individual investors to support higher-risk unlisted start-up companies through providing certain reliefs for such investors from UK income and capital gains tax. VCTs, like investment trusts, are not trusts, but companies that are admitted to trading on a regulated market in the European Union. They invest in securities issued by small unquoted180 trading companies for which there is no liquid market. VCTs help mitigate this investment risk for investors by spreading their investments across a range of such companies, and by providing liquidity through the VCT's own listed shares to overcome the illiquidity of its underlying assets. To be treated as a VCT, a company must meet a number of detailed conditions and be approved as such by HMRC.
According to the UK Treasury's January 2021 call for input into the review of the UK funds regime,181 tax neutrality is a guiding principle of the UK's approach to funds taxation. A detailed discussion of the UK tax treatment of investment funds and investors is beyond the scope of this publication, which can only highlight a few key aspects.
Taxation of domestic funds
Taxation at the fund level is determined by the type of fund vehicle and, depending on the vehicle type, detailed eligibility criteria may have to be met and notifications given to, or approvals obtained from, HMRC before the desired treatment is available. Generally speaking, the differences between fund types in respect of the taxation of income are more pronounced than in respect of the taxation of capital gains.
In most cases, capital gains should not be taxable at the fund level. Notable exceptions are REITs (as gains from investments other than real estate would generally be taxable at the normal corporation tax rate, which is currently 19 per cent but set to increase to 25 per cent from April 2023) and non-exempt UUTs (where all gains would be subject to corporation tax).
Dividend income should not generally be subject to tax at fund level, given that most types of funds are taxable on corporation tax principles or transparent. Other types of income may also be exempt depending on the fund type (e.g., income from real estate investment would, for instance, be exempt for REITs and PAIFs) or a tax charge may not arise as the fund is transparent or distributions to investors are treated as tax deductible. To the extent that income is taxable at fund level, tax may be charged at corporation tax rates (e.g., in the case of a REIT or investment trust) or at the basic income tax rate of 20 per cent (e.g., in the case of an AUT or OEIC).
Taxation of foreign funds and of investors
Subject to certain exceptions (some of which are highlighted below), a foreign fund would not be subject to UK tax unless it carries on a trade in the United Kingdom, and a foreign fund will not be treated as carrying on a trade in the United Kingdom merely by virtue of engaging an independent investment manager in the United Kingdom to carry out transactions on its behalf, provided that certain conditions as to the manager's activities, relationship with the foreign fund and remuneration are met.182
Even if a foreign fund does not carry on a trade in the United Kingdom, the fund may be liable to tax in the United Kingdom in the form of transfer taxes, withholding taxes on UK-source payments (other than dividends as the United Kingdom does not generally impose a withholding tax on dividends), taxes on income from a UK property business and taxes on gains from the disposal of UK real estate or shares in a UK real estate rich company. It is also possible that foreign investors in domestic or offshore funds holding UK real estate or shares in UK real estate rich companies may also be subject to UK tax on a disposal of their interest in the fund or, if the fund is treated as fiscally transparent for the purpose of the UK taxation of capital gains, a disposal by the fund of such real estate or shares.
Investors, regardless of their jurisdiction of tax residence, are unlikely to suffer UK withholding tax on distributions from UK domestic funds. A notable exception to this general rule is distributions from PAIFs and REITs, which may attract withholding tax at 20 per cent. In most cases, it should be possible for investors to transfer or surrender their interests in UK domestic funds without having to pay stamp taxes. Exceptions to this general position include the transfer of shares in an investment trust or a REIT.
Brexit and its potential impact on the UK financial sector continues to be a key topic of discussion. In December 2020, before the end of the Brexit transition period on 31 December 2020, the United Kingdom reached a Trade and Co-operation Agreement with the European Union. The Agreement contained provision relating to the provision of services generally, as well as provisions relating to financial services specifically; however, the agreement contains only limited and high-level commitments and fails to provide a detailed understanding of the future relationship between the United Kingdom and European Union regarding financial services.
Statements made by ESMA in July 2017 raised doubts about the continuing viability post-Brexit of the 'delegation model' employed by many international fund management groups, in which a fund manager authorised in one country delegates fund management or advisory duties to an affiliate in another jurisdiction (which may be outside the European Union).183 More recently, however, the Chair of ESMA, Steven Maijoor, noted that ESMA is not seeking to undermine or put in doubt the delegation model. ESMA acknowledges that the delegation model is a key feature of the investment funds industry that has contributed to the success of the industry by providing the requisite flexibility to organise centres of excellence in different jurisdictions. ESMA has sought to clarify that it does not envisage changing the legal requirements, but is rather seeking to aid their practical application and help authorities when supervising delegation arrangements so that national regulators would be able to interpret the requirements consistently.184 In August 2020, ESMA published a letter to the Executive Vice-President for an Economy that Works for People, of the European Commission, highlighting areas of the AIFMD that it considers to be in need of improvement.185 In its letter, ESMA noted that it sees merit in providing legislative clarifications on delegation and substance requirements in the AIFMD and UCITS frameworks, including in relation to, among other things: the maximum extent of delegation suitable; which regime is applicable in the case of delegation; and the use of seconded staff. The letter was followed by ESMA's review of the AIFMD, which launched in October 2020 and in respect of which a proposal for a directive is planned for 2021's third quarter.186
ii Regulatory scrutiny
In its business plan for 2020 to 2021, the FCA identified certain priority themes. The areas that are of particular significance to the asset management industry are:
- investment management (including assessing the impact of remedies implemented following the Asset Management Market Study, and assessing asset managers' compliance with the SMCR and the transition away from LIBOR);
- retail investment (including ensuring investment products are appropriate for consumer needs, a consumer harm campaign to help consumers make better choices about retail investments, and strengthening regulatory standards applicable to firms and the network of individuals operating in them);
- climate change (including continuing policy research into retail investment product design and hosting the CFRF);
- operational resilience (including requirements on firms to take ownership of their operational resilience, put in place contingency plans and to prioritise plans and investments based on their public interest impact);
- wholesale financial markets (including the replacement of LIBOR, and enhancing governance and accountability through the SMCR); and
- its continuing work on the post-Brexit regulatory regime.
One of the most significant regulatory changes is the plan to transition from LIBOR by the end of 2021, which was announced by the FCA in 2017.187 For US dollar LIBOR this was subsequently extended to end-June 2023. Sterling LIBOR will be replaced by a benchmark administered by the Bank of England known as the Sterling Overnight Index Average (SONIA). The FCA and the PRA published a joint statement in June 2019 outlining eight examples of desirable transition planning that are of relevance to all firms, including asset managers.188 In February 2020, the FCA published a 'Dear CEO' letter to UK regulated asset management firms setting out their expectations for preparations for the end of LIBOR.189 The FCA and PRA also published a joint 'Dear CEO' letter in March 2021 setting out their expectation for firms to comply with the targets of the Working Group on Sterling Risk Free Reference Rates and other working groups in order to mitigate risks relating to exposure to LIBOR.
The Fifth Anti-Money Laundering Directive (5MLD) was transposed into UK law in January 2020. There are a number of changes that are of relevance including: explicit customer due diligence requirements to understand control structures of corporate customers; requirements to identify CEOs and chief executives; and requirements to establish the source of funds for individuals and business based in high-risk third countries.190
iii Review of tax regime
In March 2020, the UK government announced its intention to conduct a review of the UK funds regime that 'will consider taxation and relevant areas of regulation to ensure the ongoing competitiveness and sustainability of the UK regime'.191 One of the first steps in this review was the publication of a consultation on how the United Kingdom could be made more attractive as a location for alternative investment funds to establish asset holding companies. While the industry has been asked to comment on how the United Kingdom's tax system could be changed to achieve this, the consultation suggests that the UK government may be slow to make any changes, unless it can be shown that the associated benefits outweigh costs and risks.
Another step will be to review the value added tax treatment of fund management fees. It is possible that this review may end up falling within the ambit of an industry working group that the UK government announced in March 2020 would be created to examine VAT on financial services more generally.192 In other VAT developments, the UK's VAT exemption for the management of special investment funds193 has been broadened, in particular, to include the management of certain pension funds.194 It is also possible that the recovery of input VAT attributable to the supply of certain financial and insurance services to EU customers will be permitted after 2020; a statutory instrument to this effect has been made, but it has not yet been brought into force.195
The covid-19 pandemic has resulted in unprecedented disruption to both the real economy and the financial markets, the full extent of which is not yet known and likely will not be for some time to come. However, unlike the 2008 global financial crisis, this crisis is not the result of asset quality or credit concerns and, despite initial spikes in market volatility, the FCA has indicated that the markets have substantially continued to operate in an orderly manner.196
The ESMA stress test in 2019 suggested that 40 per cent of high yield bond funds would not have sufficient liquid assets to meet redemption requests following a severe shock. The covid-19 pandemic has manifested just such a shock. In fact, the most significant challenge faced by asset management, as was the case in the aftermath of the Brexit referendum, will be a fund's ability to manage liquidity, especially when confronted with a higher volume of redemption requests as investors seek to cut losses and preserve, or indeed increase, their cash holdings. The FCA has indicated its intention in the wake of the pandemic to focus on ensuring that redemption arrangements are in the interests of both those remaining in the fund and those wishing to exit.197
Additionally, funds with a focus on illiquid underlying assets, for example property funds, are challenged by valuation uncertainty in the face of covid-19. The combination of sharp falls across many asset classes paired with an increase in investor redemptions has seen some funds having to suspend redemptions. The FCA has recognised that suspensions may, in these circumstances, be appropriate to protect the interests of investors, provided they are implemented in accordance with applicable regulator obligations. In a distressed market, such as the one spurred on by covid-19, funds are likely to face difficult choices between suspension to preserve value for remaining investors or selling in a distressed market to meet an increasing demand for redemption.
1 Paul Dickson is a partner at Slaughter and May. The author would like to thank Chris Hurn, Tamara Raoufi, Tanja Velling and Andrew McCue for their assistance in preparing this chapter.
2 The IA, Asset Management in the UK 2019–2020, The Investment Association Annual Survey, September 2020.
3 Section 19 FSMA.
4 SI 2001/544.
5 Section 22 FSMA.
6 Activities (e) and (f) were introduced from 22 July 2013 by the Alternative Investment Fund Managers Regulations 2013. If a person has permission to manage an AIF or a UCITS scheme, they need not obtain permission to operate a CIS in respect of that AIF or UCITS scheme; however, an investment manager that manages AIFs and UCITS schemes must hold permissions for both activities.
7 Section 23(1)(b) FSMA.
8 Section 21(1) FSMA.
9 Section 21(2) and 21(5) FSMA. The exemptions to the basic prohibition on financial promotions by unauthorised persons are set out in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (SI 2001/1335) (as amended).
10 Section 235(1) FSMA.
11 Section 235(2) FSMA. The meaning of the term day-to-day control was considered by Laddie J in Russell Cooke Trust Co v. Elliott  All ER 197, in which he concluded that the mere fact that investors have a right to be consulted or can give directions to an investment manager of a fund did not necessarily mean that they had day-to-day control over the property of that fund.
12 The glossary in the FCA Handbook makes clear that the term operator means the person or entity responsible for management of the scheme or property within the scheme.
13 Section 235(3) FSMA.
14 SI 2001/1062.
15 Schedule to Article 3, Paragraphs 17, 20 and 21 Collective Investment Schemes Order.
16 Articles 81 and 51ZE Regulated Activities Order.
17 Exemptions from Section 238 FSMA are set out in the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (SI 2001/1060) and the FCA's Conduct of Business Sourcebook (COBS).
18 COBS 4.12.
20 See Section III of the European Overview chapter.
21 FCA, Automated investment services – our expectations, 21 May 2018. See also Finalised Guidance FG 17/8, Streamlined advice and related consolidated guidance, September 2017.
22 FCA, Robo Advice: an FCA perspective, 2 November 2017.
23 FCA, The Impact of Effectiveness of Innovate, April 2019.
25 FCA, Market Study MS17/1.3 – Investment Platforms Market Study Final Report, March 2019.
26 See, e.g., FCA, Brexit: Our approach to EU non-legislative materials, October 2020.
27 Section 237(3) FSMA.
28 Section 238(4)(a) FSMA, which disapplies the general restriction on the promotion of CISs in Section 238(1).
29 Section 100 Taxation of the Chargeable Gains Act 1992.
30 Traditionally, English company law has resisted the idea of companies having variable capital, and has imposed relatively strict maintenance of capital rules that have prevented companies from being suitable open-ended investment vehicles. Prior to the development of OEICs, closed-ended investment trusts (which are actually companies under English law) were the typical form of body corporate employed as a collective investment vehicle.
31 Regulation 5 OEIC Regulations.
32 See Chapter 6 of COLL, which sets out the ongoing operating duties and responsibilities of the authorised corporate director of an OEIC.
33 Section 262 FSMA.
34 SI 2001/1228.
35 Regulation 3(1) OEIC Regulations.
36 These include, for example, that the OEIC's shareholders are not liable for its debts (Paragraph 2(c)), and that the charges and expenses of the OEIC may be taken out of the scheme property (Paragraph 2(e)). In addition, the instrument of incorporation must contain provisions stating the object of the OEIC (Paragraph 3(1)(a)), the currency in which its accounts are to be prepared (Paragraph 3(1)(c)), the maximum and minimum sizes of its capital (Paragraph 4(1)(c)), and the rights attaching to each class of its shares (Paragraph 4(1)(f)).
37 Regulation 15(11)(a) OEIC Regulations.
38 Regulation 15(11)(b) OEIC Regulations.
39 Section 238(4)(b) FSMA disapplies the general restriction on the promotion of CISs in Section 238(1) FSMA.
40 SI 2013/1388.
41 Section 235A FSMA.
42 Section 237(3) FSMA.
43 Section 261D(1) FSMA.
44 Section 238(4)(aa) FSMA disapplies the general restriction on the promotion of CISs in Section 238(1).
45 Section 261E FSMA.
46 SI 2011/1613.
47 Transferable securities are defined in COLL 5.2.7 as shares, debentures, alternative finance investment bonds, government and public securities, warrants or certain certificates conferring contractual or property rights in connection with such securities. However, under COLL 5.2.7(2), investments will not constitute transferable securities if the title to them cannot be transferred, or cannot be transferred without third-party consent (except, in the case of a body corporate, any consent required by the body corporate itself, its members or its debenture holders, which may be excluded under COLL 5.2.7(3)).
48 COLL 5.2.6A sets out the permitted types of property that may be included in the portfolio of a UCITS scheme. This includes transferable securities, approved money-market instruments (broadly speaking, liquid instruments normally traded on money markets), units in CISs, derivatives and forward transactions, and deposits. In the case of OEICs, this also includes any movable or immovable property that is essential for the direct pursuit of the OEIC's business.
49 COLL 1.2.2 and COLL 3.2.8.
50 COLL 5.2 to COLL 5.5.
51 COLL 5.2.
52 COLL 5.8.2.
53 COLL 5.6.4 and COLL 5.6.5.
54 COLL 5.6.7(6).
55 See COLL 5.2.11(9).
56 COLL 5.6.7(5).
57 COLL 5.2.11(7) (although the limit for UCITS schemes is raised to 10 per cent if the derivative counterparty is a financial institution recognised by the FCA rules as an approved bank).
58 A feeder NURS is a NURS that invests in units only in a single CIS that is itself a NURS, a UCITS scheme or a recognised overseas scheme.
59 COLL 5.6.10.
60 COLL 5.6.22.
61 COLL 5.5.3.
62 COLL 5.5.4(1)–(3) and (8), although significantly a NURS's borrowing powers are not limited only to borrowings on a temporary basis, as COLL 5.5.4(4) and (5) do not apply to a NURS.
63 COLL 5.5.6 and COLL 5.5.7(1), (2) and (4).
64 COLL 5.5.9.
65 FCA, Consultation Paper CP18/27, Consultation on illiquid assets and open-ended funds and feedback to Discussion Paper DP17/1.
66 FCA, Policy Statement, PS 19/24, Illiquid assets and open-ended funds and feedback on Consultation Paper CP 18/27.
67 COLL 5.7.2 and COLL 5.7.7.
68 COLL 5.7.9.
69 COLL 5.7.11.
70 QISs fall within the definition of non-mainstream pooled investment and therefore are subject to the marketing restrictions in COBS 4.12 (see Section II.i).
71 COLL 8.1.3.
72 COLL 8.4.3.
73 COLL 8.4.4.
74 COLL 8.4.2.
75 COLL 8.4.5.
76 COLL 8.4.10.
77 FCA Consultation Paper CP 21/12: A new authorised fund regime for investing in long term assets, May 2021.
78 Although LR 15 is stated to apply only to closed-ended investment funds with a premium listing, LR 1.5.1 makes clear that investment trusts will require a premium listing for their equity shares.
79 LR 15.2.2.
80 LR 15.2.11.
81 LR 15.4.2 and LR 15.4.8.
82 SI 2001/1062.
83 See Paragraph 21 of the Schedule to the Collective Investment Schemes Order.
84 Section 4 LPA 1907.
85 Section 6(1) LPA 1907.
86 HM Treasury consultation on draft legislation, Proposal on using Legislative Reform Order to change partnership legislation for private equity investments, July 2015.
88 SI 2017/514.
89 Section 6A(2) LPA 1907 (amended by the PFLP Order).
90 Section 1(2) Limited Liability Partnerships Act 2000. As such, they may hold property and enter into contracts in their own name.
91 Section 3 Limited Liability Partnerships Act 2000.
92 LLPs are specifically excluded from being able to take advantage of the general exclusion for bodies corporate in Paragraph 21 of the Schedule to the Collective Investments Schemes Order.
93 The FCA's Perimeter Guidance Manual (PERG) 16.2, question 2.2.
94 SI 2013/1773.
95 PERG 16.2, question 2.15 provides further guidance on the definition of a collective investment undertaking. Broadly, the following characteristics should, if all apply, show that an undertaking is a collective investment undertaking: it does not have a general commercial or industrial purpose; it pools together capital raised from its investors with a view to generating a pooled return; and the investors, as a collective group, have no day-to-day discretion or control.
96 Regulation 3(1) AIFM Regulations.
97 Regulation 3(2) AIFM Regulations.
98 Regulation 4(1) AIFM Regulations.
99 Regulation 4(2) AIFM Regulations.
100 Regulation 4(3) AIFM Regulations.
101 Regulation 5(3)(c) AIFM Regulations and Article 9 AIFMD.
102 Regulation 9 AIFM Regulations.
103 Broadly, Regulation 10 allows for the registration of: internally managed, closed-ended investment companies (such as investment trusts); external managers of certain property funds; and managers of European social entrepreneurship funds and European venture capital funds. Schedule 8 of the Regulated Activities Order provides for small registered UK AIFMs to be excluded from the regulated activity of managing an AIF.
104 These reporting requirements are contained in the FCA's Supervision Sourcebook (SUP) 16.18.
105 FUND 3.6.3 and 3.7.
106 Senior Management Arrangements, Systems and Controls (SYSC) 10.1.
107 SYSC 19B.1.2 and 19B.1.3.
108 SYSC 19B.1.18.
109 FUND 3.10.
110 FUND 3.10.2.
111 FUND 3.11.4.
112 FUND 3.9.
113 Directive (EU) 2019/2033.
114 Directive (EU) 2019/2034.
115 FCA, Discussion Paper DP20/2: Prudential requirements for MiFID investment firms, 23 June 2020; FCA, Consultation Paper CP20/24: A new UK prudential regime for MiFID investment firms, December 2020; FCA, Consultation Paper CP21/7: A new UK prudential regime for MiFID investment firms, April 2021.
116 FUND 3.3.
117 Regulation 38 AIFM Regulations.
118 Regulation 43(1) AIFM Regulations.
119 Regulation 43(2) AIFM Regulations.
120 Regulations 57 and 59 AIFM Regulations.
121 IA, Asset Management in the UK 2019–2020, The Investment Association Annual Survey, September 2020.
122 All figures in this section are taken from the IA, Asset Management in the UK 2019–2020, The Investment Association Annual Survey, September 2020.
123 IA, Asset Management in the UK 2017–2018, The Investment Association Annual Survey, September 2018.
124 IA, Asset Management in the UK 2019–2020: The Investment Association Annual Survey, September 2020.
126 ibid., and IA, Asset Management in the UK 2012–2013: The Investment Association Annual Survey, August 2013.
127 IA, Asset Management in the UK 2019–2020: The Investment Association Annual Survey, September 2020.
128 IA, Stewardship in Practice – Asset Managers and Asset Owners at 30 September 2016, September 2017.
129 FRC, Revised and strengthened UK Stewardship Code sets new world-leading benchmark, October 2019.
130 See NAPF, UK Stewardship Code: Guidance for Investors, November 2010, and Principle 8 of FRC, UK Stewardship Code 2020, October 2019.
131 See NAPF, Stewardship Policy 2012, November 2012, and Principle 8 of FRC, UK Stewardship Code 2020, October 2019.
132 COBS 6.1B and 6.2B, and the 'Training and Competence' manual of the FCA Handbook.
133 FCA PS19/20: Optimising the Senior Managers & Certification Regime and feedback to CP19/4.
134 FCA MS15/2.3, Asset Management Market Study Final Report.
135 FCA, Policy Statement PS18/8, Asset Management Market Study remedies and changes to the handbook – Feedback and final rules to CO17/18, April 2018.
136 CMA, Investment Consultants Market Investigation, Final Report, 12 December 2018.
137 FCA, Policy Statement PS19/4, Asset Management Market Study – further remedies, February 2019.
138 FCA, Unit-linked funds' governance review (follow up to PS18/8): findings and next steps, 24 September 2019.
139 Association of British Insurers, UK Insurance & Long-term Savings – Key Facts, February 2021.
140 Office of National Statistics, Ownership of UK Quoted Shares: 2018, 14 January 2020.
141 Office of National Statistics, Ownership of UK Quoted Shares: 2016, 29 November 2017.
142 Directive 2009/138/EC.
143 Principally an index that is calculated independently, transparently and based on constituents that are permitted links.
144 See FCA, Policy Statement PS15/8, Solvency II, March 2015 and FSA, Consultation Paper CP11/23, Solvency II and linked long- term insurance business, November 2011.
145 FCA, Policy Statement PS20/4: Amendment of COBS 21.3 permitted link rules, March 2020.
146 Investments 5.1 and 5.2 of the PRA Rulebook for Solvency II firms.
147 See Section II.i.
148 Section 34 Pensions Act 1995.
149 Section 35 Pensions Act 1995 (as amended by the Pensions Act 2004). Regulation 2(1) of the Occupational Pension Schemes (Investment) Regulations 2005 specifies that the statement of investment principles should be reviewed at least once every three years, and in any event following any significant change in investment policy.
150 Regulation 2(3) Occupational Pension Schemes (Investment) Regulations 2005.
151 Section 36 Pensions Act 1995.
152 Regulation 4(2) Occupational Pension Schemes (Investment) Regulations 2005.
153 Regulation 4(3) and (7) Occupational Pension Schemes (Investment) Regulations 2005.
154 Regulation 4(5) and (6) Occupational Pension Schemes (Investment) Regulations 2005.
155 Regulation 4(8) Occupational Pension Schemes (Investment) Regulations 2005.
156 Regulation 4(9)(a) Occupational Pension Schemes (Investment) Regulations 2005.
157 As defined in the Occupational Pension Schemes (Investment) Regulations 2005.
158 Regulations 4(9)(b) and 4(10) Occupational Pension Schemes (Investment) Regulations 2005.
159 Department for Work and Pensions, The Occupational Pension Schemes (Investment and Disclosure) (Amendment) Regulations 2018, June 2018.
160 Department for Work and Pensions, The Occupational Pension Schemes (Investment and Disclosure) (Amendment) Regulations 2019/982, June 2019.
161 Formerly, an entry charge based on the real estate asset value also had to be paid, but this was abolished under Finance Act 2012.
163 Investment Property Forum, The Size and Structure of the UK Property Market: End-2018 Update, December 2019.
164 Property Industry Alliance, Property Data Report 2017, September 2017.
165 See the discussion of CISs in Section II.
166 FSA, CP13/9, Implementation of the Alternative Investment Fund Managers Directive, March 2013 and PERG 16.2, question 2.30.
167 For example, such managers are likely to be managing investments under Article 37 of the Regulated Activities Order, advising on investments under Article 53 of the Regulated Activities Order or managing an AIF under Article 51ZC of the Regulated Activities Order.
168 See, for example, FCA, Hedge Fund Survey, June 2015.
169 The CityUK, Hedge Funds, May 2013.
171 The SBAI, The Hedge Fund Standards (11/2015), 5 November 2015.
172 The SBAI, Annual Report 2019.
173 TheCityUK, UK Fund Management, April 2018.
174 Preqin, 2021 Preqin Global Private Equity & Venture Capital Report, 2021.
175 See, for example, the statement by Simon Walker, Chief Executive of the BVCA, on the AIFMD on 26 October 2010, in which he referred to the AIFMD as a 'defective Directive', and argued that the EU had taken a 'hostile interest in the wrong industry at the wrong time and for the wrong reasons'.
176 Sir David Walker, Guidelines for Disclosure and Transparency in Private Equity, November 2007.
177 Under the Walker Guidelines, a private equity firm is defined as 'a firm authorised by the FSA that is managing or advising funds that either own or control one or more UK companies or have a designated capability to engage in such investment activity in the future where the company or companies are covered by the enhanced reporting guidelines for portfolio companies'. In turn, a portfolio company is defined as 'A UK company (a) acquired by one or more private equity firms in a public to private transaction where the market capitalisation together with the premium for acquisition of control was in excess of £300 million, more than 50 per cent of revenues were generated in the UK and UK employees totalled in excess of 1,000 full-time equivalents; [or] (b) acquired by one or more private equity firms in a secondary or other non-market transaction where enterprise value at the time of the transaction is in excess of £500 million, more than 50 per cent of revenues were generated in the UK and UK employees totalled in excess of 1,000 full-time equivalents'.
178 Regulation 345/2013.
179 ETFGI, ETFGI reports assets invested in ETFs and ETPs listed globally reach a new record of US$ 8.56 trillion at the end of the first quarter 14 April 2021.
180 In Section VCM55180 of HMRC's Venture Capital Schemes Manual, HMRC indicates that shares traded on AIM are regarded as unquoted for the purposes of the VCT regime.
182 Sections 1142 and 1146 Corporation Tax Act 2010. See also HMRC Statement of Practice 1 (2001) (as amended).
183 European Securities and Markets Authority, Opinion to support supervisory convergence in the area of investment management in the context of the United Kingdom withdrawing from the European Union, 13 July 2017.
184 ESMA, Keynote Address, CMU, Brexit and ESA review – What's next?, 20 March 2018.
185 ESMA, Letter to Mr Valdis Dombrovskis, Review of the Alternative Investment Fund Managers Directive, 18 August 2020.
187 FCA, The future of LIBOR (Speech by Andrew Bailey, Chief Executive of the FCA, at Bloomberg London), 27 July 2017.
188 FCA, Feedback on the Dear CEO letter on LIBOR transition, June 2019.
189 FCA, Dear CEO letter to Asset Management firms on LIBOR transition, February 2020.
190 5MLD was transposed into UK through the Money Laundering and Terrorist Financing (Amendment) Regulations 2019.
191 HM Treasury, Paragraph 1.5 of the consultation on the 'Tax treatment of asset holding companies in alternative fund structures', 11 March 2020, available at the following link: https://www.gov.uk/government/consultations/tax-treatment-of-asset-holding-companies-in-alternative-fund-structures.
192 HM Treasury, Paragraph 2.239 of the Budget 2020 Red Book, 11 March 2020, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/871799/Budget_2020_Web_Accessible_Complete.pdf.
193 This exemption is covered in more detail from an EU perspective in Section XIV.v of the European Overview chapter.
194 The Value Added Tax (Finance) Order 2020 (SI 2020/209).
195 Value Added Tax (Input Tax) (Specified Supplies) (EU Exit) (No. 2) Regulations 2019 (SI 2019/408).
196 FCA, Statement on UK markets, 23 March 2020.
197 FCA, The role of investment managers in the post covid-19 recovery (Speech by Christopher Woolard, Interim Chief Executive at the FCA, delivered at a webinar hosted by The Investment Association), 8 July 2020.