The Private Equity Review: United Kingdom
I General overview
The fundraising environment in 2021 reached new heights, despite the challenges posed by the continuing covid-19 pandemic, with private equity funds raising US$732.57 billion across 1,384 funds.2 This represents a 19.38 per cent increase year on year compared with 2020 and 1.83 per cent uptick as compared to pre-covid levels in 2019.3 In this context, the US$732.57 billion of capital raised shows a market recapturing, and continuing, its pre-covid growth trajectory. In 2021, the average private equity fund size globally rose by approximately 13.27 per cent to US$529.3 (compared with US$467.3 million in 2020) as investors appeared to double down on larger ticket, more established sponsors amid the general market uncertainty.4 Dry powder has also been spent at a record rate in what has the makings of a banner year: 2021 saw an increase in both the aggregate value of buyout deals announced, increasing to US$814.2 billion in 2021 compared with US$481.9 in 2020, and the number of deals increasing to 8,361 as compared to 6,340 in 2020.5
Drilling into these numbers, it becomes increasingly evident that the increase in both deal size and volume is being facilitated by the increasing size of buyout funds, with companies choosing to stay private for longer in light of the availability of capital. For instance, in 2021, over 37 per cent of capital raise for buyout strategies was raised by the eight largest funds, with blue chip names such as Hellman & Friedman, EQT, Clayton, Dubilier & Rice, Bain and Apax all returning to market with their flagship products. This marks a step change from 2020, where four of the largest funds raised that year were secondaries funds. In 2021, the focus was firmly back on traditional buyout funds, with this strategy accounting for eight out of the 10 largest funds raised. The foregoing can easily overshadow the continued rise of both venture capital and growth equity funds, with these strategies representing 17 per cent (2020: 15 per cent) and 20 per cent (2020: 11 per cent) of total fundraising.6 Growth equity in particular appears to be an area of focus, with specialist firms such as TA Associates raising record size funds (TA XIV raised US$12.5 billion in 2021) and banner names such as KKR, Carlyle, Thoma Bravo and EQT raising dedicated growth equity vehicles.7
The European private equity fundraising landscape has largely mirrored this trend to larger funds, with European-focused funds raising US$71.5 billion in 2021, representing a strong increase over 2020's figure of US$63.27 billion.8 This was largely driven by several European managers seeking to raise ever larger mega-funds, such as EQT IX (US$18.46 billion raised) and Apax X (US$11 billion raised). From an investor's perspective, there is little indication that the flow of capital into private markets will slow down in 2022, not least due to persistently low (and sometimes negative) interest rates and increasing inflationary pressures meaning that investors are seeking the higher risk-adjusted returns that private markets are able to offer, including even retail investors.9 In this regard, the continued strength of European funds in the mid-market space cannot be overlooked: for instance, GHO Capital III (€2 billion), FSN Capital VI (€1.8 billion) and IK Small Cap Fund III (€1.2 billion) all had strong fundraisings in a crowded market where a strong track record and differentiated strategy are key. These points of differentiation will be key in what is expected to be a very busy and crowded fundraising market in 2022.
As the evidence above suggests, and in much the same vein as recent years, investors remain focused on consolidating their general partner (GP) relationships and committing larger amounts of capital to fewer managers, with fundraises for large, experienced sponsors targeting US$5 billion or more taking on average six months to close, compared with an average of 14 months for smaller or first-time funds.10 Having said this, there is still appetite among investors to initiate new relationships where the opportunities present themselves. The long-term impacts of the covid-19 pandemic are of course still playing out, but we believe that there are two qualitative changes of particular note going into 2022:
- The normalisation of virtual processes: during the covid-19 pandemic, investors and sponsors became much more willing to adopt virtual diligence processes, particularly as a result of changeable travel restrictions. This allowed certain managers to build new relationships where distance or time commitments might have previously have made this impractical. It is not expected that fundraising will remain entirely virtual in the future – 76 per cent of LPs have indicated that they expect some reversal of covid-induced changes in the fund marketing process – but the pandemic has shown that not all aspects of the fundraising process need to be done in person and any streamlining of processes by GPs will likely be welcomed.11
- Fundraising velocity and LP capacity: the drive by managers to raise new capital going into the next stage of the economic cycle has led to sponsors coming back to market sooner than LPs may have expected, with multibillion-dollar funds being raised in a matter of weeks. While this velocity is not necessarily a new phenomenon, the rise of virtual diligence, combined with investor regression towards established relationships and a particular focus on those managers with strong track records, has facilitated the speed of these funds through the market and, ultimately, the continued disparity between the haves and have-nots, as we have consistently reported on since 2015. This increased velocity of fundraising processes has also highlighted the human capital constraints as even larger LPs can struggle to meet the timetables that some sponsors are setting, with the consequential impact of newer sponsors finding it even harder to secure allocations. Accordingly, it will be incumbent on all sponsors (and particularly newer sponsors) to be flexible in their fundraising processes and to ensure that they have a marketing message than cuts through with LPs.
In short, with private markets expected to continue their growth into 2022, new funds will continue to raise capital, but investors are increasingly focused on both familiarity (in the form of larger, more established sponsors, often deemed safer by virtue of their size) and quality, focusing in particular on sponsors with strong track records and differentiated strategies.12
II Legal framework for fundraising
i Jurisdiction and legal form
The key drivers in any fund structure are generally those of limited liability, tax transparency and efficiency, ease of use and flexibility. Notwithstanding the wide range of possible structures that could be utilised, a limited partnership structure is the vehicle of choice for most fundraisings being led out of the UK.13 As expanded upon further below, the general trend is for the fundraising market to adopt two main strategies for structuring: (1) being located within the European Economic Area (EEA) (thus being subject to the full range of applicable tax and regulation, including – in whole or part – the Alternative Investment Fund Managers Directive (AIFMD)) or (2) being located offshore (thereby being outside of the EEA VAT and regulatory net). While Brexit has not prevented managers from continuing to do business out of the UK (as further detailed below), it has impacted the choice of jurisdiction when structuring funds.
The former strategy would generally utilise an onshore limited partnership, historically an English (potentially together with a Scottish) limited partnership, but in light of Brexit (in particular the UK ceasing to be part of the European Union (EU) – a 'third country' for AIFMD purposes – and accordingly not being able to rely on the AIFMD marketing 'passport'), managers have generally favoured the Luxembourg limited partnership (SCSp), which is modelled on the Anglo-Saxon limited partnership. Other structures, including Luxembourg SICARs, SIFs, RAIFs and French FCPIs or offshore companies, can also be used, although these structures are not the focus of this chapter. There may be a reversion back to English limited partnerships in the event that the EU grants the UK equivalence or otherwise access to the 'third country passport' regime, resulting in UK managers being able to market UK-based structures freely across the EU, but any such development is not expected in the near future (see Section III.i at 'Extension of AIFMD Passport').
The latter strategy would generally involve the use of an offshore-domiciled limited partnership – generally Guernsey or Jersey – although the former seems to be the favoured jurisdiction for offshore private equity funds, albeit with increasing competition from Jersey. Other possibilities include Delaware, the Cayman Islands and Bermuda, but these are very much the exception in the context of a UK or European fundraising, primarily because of time zone, strength of local service providers, investor familiarity and, increasingly, the inclusion of some on certain European jurisdictions' tax 'blacklists' (despite the removal of the Cayman Islands from the 'EU Blacklist' in October 2020).14 Post-Brexit, the UK may grow as a rival 'onshore' alternative to the aforementioned 'offshore' jurisdictions given its newfound 'third country' status with regard to the EEA and continuing investor sentiment to move away from what the perceived reputational risks of utilising 'offshore' jurisdictions; however, any structuring decisions would need to be tempered against the other tax and regulatory benefits that offshore jurisdictions might afford.
Some investors have preferences as to the location of the fund (usually because of the applicable regulatory or tax regime), and this may have an impact on the jurisdiction of the fund or its structure, or both; feeder vehicles or tax 'blockers' may have to be incorporated into the structure to cater for the specific needs of a single investor or a group of investors.
While each GP will claim to have a set of unique terms relating to its fundraising, there are a number of themes that are common to all, albeit with different formulations and treatments between various funds. While not comprehensive, the main negotiated terms of a private equity fund are as follows.
Target size or cap
The target size of the offering is of relevance to investors as they may wish to impose limits on the size of the fund to ensure that it is not too large for the team to manage, thereby ensuring that they focus on transactions of an appropriate size and in appropriate volume for their investment strategy. Thus, investors may seek to cap the size of a fund and, conversely, seek to subject their commitments to a size precondition (i.e., they would only be bound to invest if the fund reaches a 'viable' size), thereby ensuring that they would not be over allocated to that fund or that the fund would have to make smaller investments in size or number.
The size of the personal commitment made by the executives and its form (i.e., whether financed personally, by waiver – uncommon in the UK and European market and increasingly uncommon globally as investors seek to ensure that managers and their executives' commitments are in 'cash' – or by some other method) is also very pertinent to prospective investors who want to ensure they have 'skin in the game'. Because of investor pressure, the expected number has been steadily increasing and is now likely to start at 2 per cent of fund commitments, although there is wide variation.15 GPs are increasingly focused on their personal commitment, and means of financing the same, as fund sizes continue to grow at a significant rate.
This is the period during which more investors can be admitted to the fund. The 'market' position tends to be 12 months from the first closing of the fund; however, managers have argued for an increase as a response to the increase in time required to fund raise and deal with investor due diligence, etc. Investors have generally accepted this extended period, notwithstanding their concerns that the management team would be distracted from deal sourcing and investment activity by their fundraising efforts, with a limited partner advisory committee consent mechanism being included if required. While the very best GPs will raise new funds with relative ease when compared to other market participants, on the whole, GPs are being made to work harder than ever before to win commitments, with more firms and funds than ever before working across a broad spectrum of strategies.16
This is the period during the fund's life reserved for investing. The manager will have full discretion to draw down all the funds available during this period (subject to relevant limitations such as investment policy and borrowing restrictions). Here, the old status quo of a five-year investment period is also being modified. Managers, in an attempt to avoid failing to invest their funds fully in the allotted period have argued for the ability to extend their investment periods. This has been met with a variety of responses from investors, some of whom were sympathetic provided that the approval mechanisms were satisfactory, and others who were unmoved and wanted to ensure that their commitments were time-limited to five years. If the investors wish to retain the five-year investment period, other points of compromise may be a widening of the ability for managers to complete deals 'in process' at the end of the investment period.
It is usual for the management fee to be calculated as a flat percentage of committed capital during the investment period, stepping down to a (in many cases reduced) percentage of drawn-down or invested capital after the end of the investment period or on the raising of a successor fund. Investors are very sensitive regarding the scale of management fees and their impact on returns, and thus there has been some downward pressure and heightened scrutiny by investors, albeit with relatively limited success to date.
Investment strategy and limitations
The offering will specify the appropriate investment strategy to be followed by the fund and relevant limitations providing, for example, limits in relation to maximum exposure to any one investment sector, jurisdiction or industry limitations, as applicable. The investment strategy and limitations are an essential part of any fundraising, and investors are focused on ensuring that they understand any risks and to ensure that there is no 'strategy drift'. The growth in importance of certain sovereign wealth funds, state-aided funds or political agencies has resulted in a number of pools of capital (e.g., EU regional aid) that are solely focused on a single jurisdiction or that are prohibited from investing in certain regions. To cater for this demand, a number of exclusions to the investment policy may be negotiated, 'sidecar' vehicles with a restricted investment mandate for investing alongside the main fund established or, if demand is sufficient, dedicated separately managed accounts formed to cater to the bespoke requirements of these specific investors.
In most cases all transaction fees, break-up fees, directors' fees or monitoring fees would be set off against the management fee so that the investors would receive some or all the benefit thereof, and investors have been pushing strongly, and often successfully, for a full set-off in their favour.17 These types of fees, and critically the full and accurate disclosure of such fees to investors, are also under increasing regulatory scrutiny, notably by the US Securities and Exchange Commission (SEC), which is affecting some major managers' readiness to charge such fees, and hence affecting the market position more generally. Innovation has been seen in certain managers developing in-house capabilities to provide consulting, corporate finance and other 'value-add' services to their portfolio companies, with the manager able to leverage their familiarity with the portfolio companies to provide services at or below a market-rate that third-party service providers might be able to provide. Provided that the rationale is adequately explained to investors, managers may be able to retain all or a portion of such arm's-length fees, provided that there is full transparency to investors regarding the services provided and the fees charged.
There is a general lack of movement with the preferred return, notwithstanding the continuing low/negative-interest-rate economic environment, and it remains relatively constant in buyout funds, at 8 per cent per annum. Although some funds, most notably some of the largest private managers, have created more bespoke arrangements, they are still very much in the minority, and generally investors prefer less creativity in the structuring of the preferred return mechanism.
Carried interest or distribution mechanism
The standard carried interest payable to the manager, its executives, or both, in private equity funds is 20 per cent of the fund profits. There are two main methodologies for calculating the carried interest – the 'fund-as-a-whole' mechanism and the 'deal-by-deal' mechanism. The former method is most common in Europe, while the latter is most common (although its popularity is dwindling) in the United States. The fund-as-a-whole model is the main European model and is deemed to be investor-friendly in comparison with the deal-by-deal method; and although some high-demand European managers are moving towards the US model, most investor negotiations are based around mitigating the risk of any overpayment of carried interest (see below). Premium carry (where a manager is rewarded with an increased carry percentage above certain performance thresholds) or a movement (in whole or in part) to a deal-by-deal as opposed to a fund-as-a-whole waterfall is a signature of some of the best performing funds; however, neither mechanism is commonplace across the industry as yet.
Escrow or carried interest clawback
These provisions can be rather bespoke, as a number of facts and circumstances are relevant – for example, the distribution mechanism of the fund (see above), the creditworthiness of the carry recipients and the likelihood, in light of the investment strategy, of losses post receipt of carry. The fund-as-a-whole distribution model provides that the carried interest is payable only after investors receive an amount equal to the aggregate drawn capital and the preferred return thereon, thereby reducing the risk of any carry overpayment. As such, in Europe, despite the efforts of certain larger LPs, European managers are increasingly relying on clawback mechanisms rather than escrow accounts, which are more commonplace for funds with deal-by-deal waterfalls, as carry can be paid ahead of investors' total aggregate drawn capital being returned to investors. Whether one or the other is used is often in response to the nature of the investors' likely return or drawdown profile and the executives' attitude to risk (i.e., whether they prefer an escrow or subjecting themselves to a later clawback risk).
The ability for a fund to redraw prior distributions is of great importance to the manager to ensure that the fund manager has access to the full amount of investor commitments for the purpose of making investments, including amounts that may have originally been drawn down for management fees or other expenses, bridging investments, etc. The limited partnership agreement will typically set out the type of distributions that can be redrawn and for how long. Certain investors, such as a fund of funds, may be unable to redraw from their own investors and thus push back strongly in this regard, but certain other investors will appreciate managers' use of reinvestment to reduce the spread between 'gross' and 'net' performance figures.
This regulates what other funds the manager can raise, and when. This provision comes under discussion as management houses contemplate setting up bespoke side funds or managed accounts, or when the manager attempts to diversify into a multi-product asset management platform (an issue particularly relevant in light of the continued proliferation of managers seeking to raise complementary products (e.g., credit funds) alongside more traditional buyout strategies).
These set out the suite of remedies in relation to investors who default on drawdowns. In light of experiences since the most recent global financial crisis, and threatened and actual defaults, these provisions have become more extensive in scope. The increased protection for managers, and subsequent investor scrutiny of the knock-on effects to the fund in the event of an investor default, include provisions around management fee coverage and assignment of defaulting investors' interests in the fund.
Key-man or suspension-of-investment-period provisions
These provisions have received a lot of investor attention over the past few years. They protect the investors from a 'key-man event' (i.e., if one or more of the key management personnel ceases to be involved in the management of the relevant fund). As expected, the trigger event is heavily negotiated and specific to each fund and manager, and thus much time and attention is given to this particular provision in fund documentation. This term is often linked with the exclusivity provisions, as the ability for a team to perform different functions for different funds is often curtailed.
Removal of the GP on a fault or no-fault basis
These provisions, alongside the key-man provisions (see above), are governance provisions, which have been developing in fund documentation. The relevant voting thresholds and the implications for management fees and carried interest in the event of the removal of the GP are often fiercely negotiated as investors seek to ensure that they are sufficiently protected from a manager that has lost its way.
Most-favoured nation (MFN)
The MFN provision entitles other investors to benefit from rights given by side letter or otherwise to other investors. Given the increased proliferation of side letters, managers seek to limit applicability by size of commitment, legal status, timing of admission, etc., to both prevent against an ever-increasing administrative burden, but also to ring-fence the terms offered to larger, cornerstone or 'first-mover' investors.
Other negotiable terms
The high level of competition for investors' capital and the enhanced due diligence referred to above has resulted in increased investor attention and negotiation on a number of key terms (most mentioned above). The main themes behind investors' negotiations have been increased alignment of interest, governance and transparency – indeed, these are the three guiding principles enunciated in the ILPA Private Equity Principles Version 3.0 published in June 2019 – and while, in ILPA's own words, the Principle should not 'be applied as a checklist, as each partnership should be considered separately and holistically', taken together with the ILPA Model Limited Partnership Agreement, they are revealing as to the concerns of the investor community and serve as a useful basis for discussions on terms.18 The ILPA is increasingly influential as its members also press managers to report in accordance with its standard format. Another theme in this market that is having an impact on terms is that of incentives for first closers or large investors. This is often given in the form of a reduced management fee or other economic incentive, although other incentives can be utilised, such as preferred access to co-investments alongside the fund or other enhanced rights. This is increasingly becoming a permanent feature for fundraisings in this market, and a number of funds currently in the market are reported to be offering such incentives.19
ii Key items for disclosure
The legislative backdrop set out in the UK Financial Services Act 2012 (FSA) makes it a criminal offence for any person knowingly or recklessly to make a statement, promise or forecast that he or she knows to be misleading, false or deceptive; or dishonestly to conceal any material facts, if he or she does so for the purpose of inducing, or is reckless as to whether it may induce, another person to engage in investment activity.20
Furthermore, a misrepresentation can occur under English law when an untrue statement of fact or law is made that induces the other party to enter into a contract and suffer a loss. An action for misrepresentation can be brought in respect of a misrepresentation of fact or law. There are three types of misrepresentation: fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation. If a party is found to have made a misrepresentation that induced another party into entering in a contract, there are various remedies that may be awarded by the courts depending on which type of misrepresentation has been found to have occurred. Generally, the remedies for misrepresentation are rescission or damages according to the form of misrepresentation.
In addition, it is usual for a UK-domiciled manager to be authorised by the UK financial services regulator, the Financial Conduct Authority (FCA). It would also have to comply with the FCA's rules, including the wide-ranging Principles for Business, which include obligations to pay due regard to the information needs of clients and to communicate information to them in a clear, fair and non-misleading manner, and with legislation and rules implementing the AIFMD that prescribe certain information disclosure requirements (including post-Brexit).
US securities laws and other legislation relating to disclosure and fiduciary duties, while outside the ambit of this chapter, would also be pertinent, as most UK offerings would be extended to US investors, and thus misstatements, omissions or other misleading content may lead to SEC enforcement, federal or state action or civil action. European jurisdictions typically also impose similar 'anti-fraud' requirements.
As such, it is important that the manager performs a verification exercise to ensure that the investor has subscribed on the basis of the best available facts; the manager thereby minimises the risk of damages claims, recession claims or regulatory sanctions should the fund fail to perform as anticipated. As part of this, the manager will review the offering documents and other related promotions to ensure that all facts and circumstances that will be relevant to a potential investor have been adequately disclosed without material omissions, that all statements of fact are accurate, that statements of opinion are reasonable and are honestly held by those to whom they are attributed, and that all inferences that can be drawn from any of those statements are themselves accurate.
As a matter of best practice, this verification process should be performed by the manager before issuance of any promotional documents.
The main key items for disclosure to investors are usually set out in the final form offering memorandum, which would typically set out:
- the investment highlights, providing a detailed discussion of the investment strategy for the fund and the process by which investments will be made;
- the track record of the manager or of the relevant executives comprising the management team;
- the resume of the key executives and relevant experience;
- a market overview, so as to provide investors with a macro view of the investment therein;
- the summary of key terms (see above);
- legal and tax matters, describing various regulatory and tax considerations in making an investment in the fund;
- risk factors, so as to make the investors aware of the risks inherent in an investment in the fund; and
- a summary of the investments referred to in the track record of the manager, thereby providing the investors with further data and other experience at a granular level.
The most common method of solicitation is by way of an offering memorandum, although this document evolves through a number of stages. It is first conceived as a 'teaser' pitchbook, which is distributed to potential investors to solicit their initial interest or as a follow up to preliminary meetings or due diligence. This is then developed into a draft offering memorandum, which is usually circulated to potential investors and is the main promotional document used for the 'soft-circling' or 'hard-circling' process before concluding discussions and circulating a final form offering memorandum to investors before the fund's first closing. This process would also take into account the relevant AIFMD marketing strategy of the firm (see Section III).
In parallel to this process, it is common for the manager to establish a data site (usually electronic) containing further information on the manager, track record, executives, legal documentation and structure of the offering. Certain investors also tend to issue their own document and information requests in the form of a due diligence questionnaire (DDQ), which the manager must complete and return. Indeed, so common has the DDQ approach become that many managers now pre-complete a 'standard' DDQ for inclusion in the data site so as to expedite the due diligence process. The same considerations as to the accuracy of information provided in the offering memorandum apply to the information provided in the data site or DDQ responses.
Any changes to the terms or other relevant parts of the offering (e.g., track record or revised valuations) that arise as the fundraising progresses are typically communicated to investors by way of an addendum to the offering memorandum.
The manager may also appoint a placement agent who would assist in the preparation of the suite of offering documents and in identifying and soliciting potential investors.
Throughout this process the manager and the placement agent, if applicable, must ensure that they comply with the AIFMD and the relevant marketing regulations of the pertinent jurisdiction of the investor (including the UK), make any required filings and disclosures, and obtain any required authorisation. While not the subject of this chapter, this body of law has been developing and is becoming more extensive (including with various lobbyist and 'pay-to-play' restrictions in the United States), and sophisticated placement agents or managers will now generally seek access (through their legal or marketing advisers) to regularly updated global surveys of the marketing or pre-filing and registration rules of each jurisdiction to ensure that the offering complies with local laws and regulations.
III Regulatory developments
i Regulatory developments
Overview of AIFMD
The AIFMD is the principal legislation constituting the regulatory framework applicable to the marketing and management of private equity funds in the UK and the rest of the EU. The AIFMD broadly applies to managers under the following two circumstances: non-EU managers who intend to market a fund to investors in the EU; and EU onshore managers who intend to either market a fund to investors in the EU or manage a fund in the EU.
At present, non-EU managers may continue to rely on existing private placement regimes in individual EU Member States21 to market fund interests to institutional investors, subject to complying with certain minimum requirements under the AIFMD.22 These provisions are a subset of the compliance obligations applicable to fully authorised EU managers, and include:
- prescriptive requirements detailing the information to be disclosed to investors prior to investment and on an ongoing basis;
- a requirement to produce an annual fund report with certain prescribed content;
- regulatory reporting requirements; and
- certain portfolio company transparency, disclosure and 'anti-asset stripping' provisions aimed at preventing private equity firms from making distributions from portfolio companies acquired by the fund other than out of profits.
For those EU jurisdictions that permit non-EU managers to actively raise capital under existing national private placement regimes, there is typically a requirement to register the fund in the respective jurisdiction ahead of any marketing. The level of detail involved in completing marketing registrations varies by jurisdiction, from straightforward notifications (after which a non-EU manager can commence marketing) to rigorous applications for marketing approval requiring extensive supporting documentation. Processing times are similarly varied, with some regulators permitting non-EU managers to market a fund immediately on the submission of a marketing notification, and others taking potentially three months to vet and approve applications for marketing approval.
The AIFMD gives EU Member States the discretion to impose stricter requirements on non-EU managers in addition to the minimum requirements set out above. These stricter 'gold-plated' requirements may flow from other provisions of the AIFMD (otherwise not applicable to non-EU managers). For instance, non-EU managers intending to market a fund in Denmark or Germany are required to appoint a depositary for that fund, an obligation that otherwise applies only to fully authorised EU managers (see below).
As a consequence of these registration requirements, a non-EU manager must consider, for each fund that it proposes to raise in the EU, the point in time at which it will have to register the fund for marketing with a local regulator. This in turn will depend on how local regulators interpret the term 'marketing' under the AIFMD.23 In the UK, for instance, the FCA has taken the view that certain 'soft marketing' activities, such as the circulation of a promotional presentation on the fund or a draft private placement memorandum to UK investors, do not constitute marketing for AIFMD purposes. Consequently, firms may carry on such activities in the UK ahead of registering the fund with the FCA (on complying with the UK financial promotion regime). Regulators in other EU Member States may (and some do) adopt a different interpretation of marketing, potentially leaving a non-EU manager with a narrower range of permissible soft-marketing activities that can be undertaken in those jurisdictions before registration. To the extent permitted by a local regulator, soft marketing enables a non-EU manager to gauge whether there is sufficient investor interest in a particular jurisdiction to justify the initial registration and ongoing AIFMD compliance costs for marketing a fund in that jurisdiction.
The preamble text to the AIFMD clarifies that the requirements under the AIFMD are not intended to apply to situations where an EU investor invests in a fund of its own initiative. This 'reverse solicitation' carve-out is (depending on facts and circumstances) being relied on by non-EU managers who receive indications of interest and requests for additional information from investors in an EU jurisdiction who have not otherwise been solicited by the manager.
The concepts of 'soft' or 'pre-marketing' and 'reverse solicitation' under the AIFMD have been harmonised across the EU Member States as a part of the recent implementation of the EU cross-border distribution of investment funds legislation, as further discussed below.
EU managers whose assets under management exceed certain thresholds (see below) are subject to the AIFMD's full requirements. These requirements include applying for and obtaining permission to manage alternative investment funds from local regulators, and thereafter complying with a wide range of ongoing requirements on matters such as regulatory capital, internal governance, systems and controls, remuneration and, significantly, the appointment of a depositary to perform cash monitoring, safe custody, asset verification and oversight functions in relation to managed funds. In addition, the minimum disclosure and transparency obligations discussed above that apply to non-EU managers also apply to onshore managers. EU managers receive an important trade-off for complying with these onerous obligations, in that they benefit from an EU-wide 'passport' under the AIFMD that they can use to market EU funds to EU professional investors or manage funds across the EU, or both, without registering with local regulators. Despite the passport's intention of giving EU managers the freedom to market or manage EU funds without complying with local requirements, some national regulators have placed additional requirements on onshore firms using a marketing passport, which currently include appointing a local agent or paying a passporting fee, or both.
EU managers that are authorised under the AIFMD are currently not entitled to use a passport to market a non-EU fund in the EU. Rather, EU managers of such funds are placed on the same footing as non-EU managers in being required to register a non-EU fund for marketing in a particular jurisdiction under national private placement rules.
EU managers whose aggregate assets under management fall below the AIFMD's authorisation threshold are not required to be authorised under the AIFMD and are only subject to a limited number of requirements under the AIFMD.24 They are not entitled to benefit from the marketing or management passport under the AIFMD.
Following the departure of the United Kingdom from the European Union (see 'Brexit' below), the UK's national private placement regime will apply to all non-UK managers, including those from the EU. The regime continues to provide for a relatively straightforward registration procedure, where non-UK managers may commence marketing a fund once a short marketing notification is completed and filed with the UK FCA. In carrying on any marketing activities in the UK, firms are required to continue complying with the UK's pre-AIFMD national marketing rules, the financial promotions regime.
The requirements under EU Regulation No. 1286/2014 on key information documents for packaged retail and insurance-based investment products (the PRIIPS Regulation) became applicable on 1 January 2018. The PRIIPS Regulation requires firms to produce a key information document (KID) if they 'make available' a packaged retail and insurance-based investment product (PRIIP) to retail investors in the EU. The KID is meant to set out the risks, costs and expected returns of the underlying product in a standardised format, and is intended to help retail investors compare products. The rules have extraterritorial application, so they apply to both EU and non-EU managers who make PRIIPs available to retail investors in the EU.
The definition of a PRIIP is extremely wide and covers investment funds and related investment pooling vehicles. The rules do not contain express carve-outs for carried interest and co-investment vehicles, which managers might choose to make available to retail investors such as 'friends and family'-type investors and EU-based executives within their own organisations. Managers continue to review the application of the rules to these structures on a case-by-case basis.
These requirements will not be applicable to firms who market funds exclusively to large institutional investors in the EU, as such investors are likely to be treated as professional rather than retail investors. The rules state that retail investors may elect to be treated as professional investors in relation to a particular investment fund or type of investment fund, and they permit managers to treat such investors as elective professional investors (therefore not requiring managers to produce a KID in respect of such investors) subject to following a mandatory assessment and 'opt-up' procedure. In particular, this procedure requires managers to undertake adequate assessments of: (1) the expertise, experience and knowledge of the retail investor, to ensure that the investor is capable of making its own investment decisions and understanding the risks involved; and (2) the retail investor's recent investment activity, financial instrument portfolio and professional background, to ensure that these meet certain minimum prescribed criteria. In addition, the manager is required to make written disclosures regarding the protections that the retail investor might lose as a result of being treated as an elective professional investor.
Finally, following the implementation of the revised Markets in Financial Instruments Directive in the EU on 3 January 2018, local authorities in the EU and the UK (including local government pension schemes and their administrators) are treated as retail investors by default, and managers seeking to market investment funds to such investors without producing a KID would have to follow a different opt-up procedure to treat them as elective professional clients. The opt-up procedures for local authority investors may differ by EU jurisdiction, and managers should check the requirements on a case-by-case basis.
Following consultations, the EU PRIIPS Regulation was amended by Commission Delegation Regulation (EU) 2021/2268, which was published in 20 December 2021. The amendments seek to make a number of changes to the content of KIDs, including setting out: (1) new methodologies for the calculation of performance scenarios and a revised presentation of these scenarios; (2) revised summary cost indicators and changes to the content and presentation of information on the costs of PRIIPs; and (3) a modified methodology underpinning the calculation of transaction costs. The changes will apply from 1 July 2022.
Extension of AIFMD passport
According to the AIFMD, the European Securities and Markets Authority (ESMA) may recommend that the benefit of the AIFMD marketing passport be extended to non-EU managers who choose to register with an appropriate EU regulator (their 'Member State of reference') and comply with the AIFMD in full. Pursuant to the AIFMD, the EU lawmakers are empowered to take the necessary legislative steps to extend the passport on a voluntary basis to non-EU managers within three months of receiving a 'positive' opinion from ESMA. After this time, non-EU managers choosing not to become fully authorised and compliant with the AIFMD may continue to market funds to EU investors on complying with local national private placement registration requirements, as well as the minimum requirements under the AIFMD applicable to them.
Under the AIFMD, this voluntary regime was initially expected to come to an end in late 2018 or early 2019, when it was anticipated that all national private placement regimes in the EU would be terminated and all non-EU managers would be required to become fully authorised under and compliant with the AIFMD.
ESMA has taken certain preliminary steps in publishing advice and opinions on the extension of the AIFMD passport to firms and funds in various non-EU jurisdictions on two separate occasions. On 30 July 2015, it concluded that Jersey, Guernsey and Switzerland presented no significant obstacles to the extension of the AIFMD passport. On 19 July 2016, ESMA issued positive advice with respect to the extension of the passport to Canada, Guernsey, Hong Kong, Japan, Jersey, Singapore and Switzerland and caveated opinions with respect to Australia and the United States.
The Commission, Parliament and the Council have been considering ESMA's advice and are yet to issue any formal communication on when they will take the necessary legislative steps to implement ESMA's advice. At the time of writing, the general view among industry participants is that these steps are not likely to be taken in the near future.
New rules on marketing funds in Europe
On 1 August 2019, the cross-border directive on distribution of collective investment undertakings and a related regulation came into force across the EU. Both pieces of legislation started to apply from 2 August 2021, following a period of two years. The key changes under the new rules include:
- permitting authorised EU managers to undertake certain defined 'pre-marketing' activities, with a view to testing investors' interest in an investment fund, prior to obtaining a marketing passport for that fund. An AIFMD marketing passport will not be required where no subscription documents (including in draft form) are distributed, and no final form constitutional or offering documents are distributed to investors;
- EU managers will be required to notify their home state regulator within two weeks of commencing pre-marketing in any EU Member State;
- a formal limitation on managers' ability to rely on reverse solicitation, where a subscription within 18 months of the commencement of any pre-marketing activity will be deemed to have resulted from active marketing, triggering the passporting requirement under the AIFMD;
- allowing for the discontinuation of marketing and the removal of funds from EU regulators' registers (subject to certain conditions being met, including conditions relating to investor participation levels); and
- requiring EU managers seeking to appoint a third party to carry out pre-marketing on their behalf to ensure that such third party is a Markets in Financial Instruments Directive (MIFID) investment firm (or a tied agent of a MIFID investment firm, a Capital Requirements Directive IV credit institution, an Undertakings for Collective Investment in Transferable Securities management company or another EU AIFM).
As drafted, these requirements only apply to EU managers. However, individual EU Member States have the flexibility to extend the application of these requirements to non-EU managers marketing under national private placement regimes. Several Member States, notably Germany, Finland and Luxembourg, have already extended the application of some or all of these requirements to non-EU managers. Sponsors should check the status of the local implementing rules in individual EU Member States and carefully consider the implications prior to commencing fundraising.
In a related development, ESMA has published guidelines on marketing communications that were applicable from 2 February 2022. The guidelines apply to marketing communications made by fund managers to investors in the EEA, and provide guidance on how managers should present information on risks and rewards of the investment in a fund, and information on past performance, costs and sustainability. The guidelines apply to 'marketing communications', and as such exclude pre-marketing materials and legal and regulatory documents or information of a fund (including a prospectus and any mandatory investor disclosures required to be made under Article 23 of the AIFMD). As drafted, the guidelines apply to just EU managers, but sponsors are advised to consider the local position in individual EU Member States.
Article 69 of the AIFMD requires the European Commission to review the functioning of the AIFMD, in particular, its impact on investors within the EU and in third countries, and the degree to which its objectives have been met. Following a letter sent by ESMA in August 2020 raising certain priority topics for consideration by the European Commission in its review of the AIFMD, the Commission published its draft proposals to amend the AIFMD on 25 November 2021. The Commission's proposals do not appear to call for an overhaul of the AIFMD, but instead focus on amending certain specific areas. The key changes are in respect of: (1) minimum substance considerations that EU regulators will need to take into account during the AIFM authorisation process; (2) enhanced requirements around delegation; (3) new requirements applying to AIFMs managing funds that originate loans; and (4) increased investor pre-contractual disclosure requirements, notably around fees, charges and expenses. In addition, while there have been no material changes to existing third-country marketing regimes, non-EU AIFMs will now need to ensure that the relevant AIFM and fund entities are not established in jurisdictions identified as 'high risk' countries under the European Anti-Money Laundering Directive (as amended). Additionally, those jurisdictions must not be on the revised EU list of non-cooperative tax jurisdictions, and the jurisdiction in which the non-EU fund or non-EU AIFM is established must have signed an agreement with the Member State in which the shares of the fund are intended to be marketed that complies with the standards set down in the OECD Model Tax Convention on Income and on Capital and that ensures an effective exchange of information in tax matters.25
Following the departure of the United Kingdom from the European Union, UK-based financial services firms no longer benefit from 'passporting rights' under EU legislation, including the marketing and management passporting rights previously available to UK managers authorised under the AIFMD. Instead, UK managers are treated as 'third country' firms and are subject to the same fundraising regime applicable to other non-EU managers. As such, to fundraise in the EU, UK managers will have to comply with the initial registration and ongoing AIFMD obligations required under the national private placement regimes of individual EU Member States (as set out above).
EU sustainable finance regulatory initiatives
The EU, as part of a broader action plan, has introduced recent regulations that require EU managers to integrate sustainability considerations into its decision-making process, and provide investors and consumers transparency in this regard. The key regulations that affect EU and non-EU managers are Regulation (EU) 2020/852 (the Taxonomy Regulation), Regulation (EU) 2019/2088 (the Disclosure Regulation) and the amendments to various existing sectoral directives, including AIFMD and MIFID relating to the integration of sustainability into existing organisational rules and conduct of business rules.
The Taxonomy Regulation came into force in July 2020. With the primary aim of reducing 'greenwashing', the Taxonomy Regulation provides a framework or 'taxonomy' for a pan-European classification system for environmentally sustainable economic activities, which will allow investors to identify and compare the sustainability credentials of relevant asset managers. The key obligation under the Taxonomy Regulation is that if a manager is deemed to be within scope, it will need to provide pre-contractual and periodic reports on if and how a fund, and its underlying investments meet the criteria for environmental sustainability under the Taxonomy Regulation. A number of requirements under the Regulation started to apply from 1 January 2022, as applicable to climate change mitigation and climate adaption environmental objectives, with the same provisions expected to apply from 1 January 2023 as they relate to other environmental objectives contained in the Taxonomy Regulation.
The Disclosure Regulation came into force in December 2019 and most of its provisions have applied since 10 March 2021. The Disclosure Regulation applies at the firm level (i.e., manager-related disclosures) and the level of the fund (i.e., product-related disclosures). At the level of the manager, firms are required to disclose on their websites and in pre-contractual disclosures, the manager's policies on the integration of 'sustainability risks' in its investment decision-making processes, whether the manager considers principal adverse impacts of its investment decisions and where relevant, provide information on how the manager's existing remuneration policy consistent with integration of sustainability risks. At the fund level, the manager is required to describe the manner in which sustainability risks are integrated, for each fund where the manager considers principal adverse impacts, then include information of how this is being considered and confirmation of making this information available through periodic reports. There are additional disclosure requirements for those funds that are considered to be 'promoting' an environmental, social or governance (ESG) characteristic or funds that have a sustainable objective. Although the majority of these new requirements relate to transparency, the regulations in turn require managers to make strategic and policy decisions regarding their approach to ESG and will necessitate significant changes to existing data gathering processes.
The Disclosure Regulation contemplates that the detail on the content and presentation of reported information be set out in certain delegated acts, and after a series of delays, these delegated acts are expected to apply from 1 January 2023.
Non-EU managers, especially those registering funds under the national private placement regimes of EU Member States, should consider the application of the Disclosure Regulations, as it is likely that they will have some impact on them.
ii Tax developments
One of the main fund structuring objectives is to ensure that the investors in the fund suffer no additional taxes as a result of investing through the fund rather than investing directly in the underlying assets. For this reason, private equity funds in the UK are typically established as limited partnerships so that they are viewed as transparent for most UK tax purposes and do not fall into tax and generate tax leakage at the fund entity level.
On the basis that the fund is treated as tax transparent, the characterisation of the receipts of the fund as income (e.g., interest or dividends) or capital (e.g., sale proceeds) should be preserved for UK-resident investors (and some other categories of investors – although this is jurisdiction-specific and on a case-by-case basis). While this means that withholding tax issues can arise without appropriate planning, it historically enabled UK-based investment executives to secure capital treatment for any carried interest. With a current difference in rates of up to 45 per cent (for income) against up to 28 per cent (for capital), securing such capital treatment is an important objective for most UK-resident carried interest holders. For those carried interest holders who are UK-resident but domiciled outside the UK, there is also the possibility to defer or keep the proceeds outside the purview of the UK tax regime with appropriate structuring (known as the 'remittance basis' of taxation), although this planning has been somewhat eroded in recent years .
However, there are several regimes in the UK that can treat at least part of a carried interest return as income rather than capital. These relate to: (1) disguised investment management fees (DIMF); (2) income-based carried interest (IBCI); and (3) employment-related securities (ERS).
The DIMF rules took effect from 6 April 2015 and, very broadly, are designed to ensure that individuals involved in the management of certain investment schemes are taxed on the receipt of management fees from investment funds as either trading income or employment income (in both cases, at rates currently of up to 47 per cent, rising to 48.25 per cent from April 2022 reflecting the new UK health and social care levy). The rules seek to address structures that would otherwise result in a portion of any management fees being taxed as investment returns in the hands of the individuals (often at capital gains tax rates or lower).
The IBCI rules took effect from 6 April 2016 and, if applicable, tax carried interest as DIMF trading income (as above) if it constitutes IBCI (as opposed to capital gains). In summary, the extent to which carried interest is IBCI depends on the average holding period of the underlying investments of the scheme that gives rise to the carried interest. There is currently an exclusion from the IBCI rules for carried interest that constitutes an employment-related security (see below).
The ERS rules (which, unlike the more recent DIMF and IBCI regimes, have existed since 2003) may bring profits on certain 'securities' into charge as employment-related earnings (and taxed at current rates of up to 47 per cent, or 48.25 per cent from April 2022). Securities for these purposes include units in a collective investment scheme, which, under the ERS rules, include partnership interests in a carried interest partnership. Employment includes any former or prospective employment and includes 'office-holders' (which extends to directors). In addition, 'salaried members' of UK limited liability partnerships are also treated as employees for these purposes. However, the ERS rules may not be relevant to partners in a partnership (other than salaried members – as above – or partners who are also directors of companies within the fund structure or fund portfolio companies).
In addition to the DIMF and IBCI rules described above, further changes were made in 2015 to the way UK capital gains tax rules are applied to carried interest. From 8 July 2015, 'base cost shift' was abolished and a new minimum level of taxation imposed on carried interest. These changes were designed to ensure carried interest holders are taxed on their true economic gain – whereas historically base cost shift would have given certain carried interest holders deductions in excess of the sums actually given by them as consideration for the acquisition of the right to that carried interest. The effect of the rules is that all carried interest arising on or after 8 July 2015 is subject to a minimum level of taxation of 28 per cent. The rules do not, however, displace pre-existing income tax rules, so when carried interest comprises income amounts (e.g., interest, dividends), income tax is due (at rates of up to 45 per cent) as well as capital gains tax. Relief may be claimed to prevent double taxation, but particular care has to be taken with regard to UK-resident carry holders who are also US taxpayers to ensure double taxation between the UK and the United States does not arise. Consequently, it remains critical to ensure that, on first principles, carried interest retains the character of underlying returns in the form of capital gains, and that underlying capital returns are not reclassified as income.
While real estate funds are not the focus of this chapter, the extension of the UK non-resident capital gains tax rules in April 2019 represented a significant change for funds (and their investors) investing in UK real estate. From April 2019 all non-UK residents are within the charge to UK capital gains tax or corporation tax on chargeable gains (as applicable) on the direct disposal of any type of UK real property, whether residential or commercial property. In addition, the sale of certain interests in entities that hold UK real property by non-UK residents is subject to UK capital gains tax (or corporation tax on chargeable gains), subject to the entity's assets being substantially made up of UK real property (the 75 per cent profit richness test) and the non-UK resident having a sufficient interest in the entity being disposed of (the 25 per cent ownership (substantial investor) test). There is an exemption for property-rich companies that are trading and specific provisions apply to partnerships and other transparent collective investment schemes.
More generally, the impact of the Organisation for Economic Co-operation and Development (OECD) base erosion and profit shifting (BEPS) project, and of the EU anti-abuse directives, ATAD I and ATAD II, is now being seen across many jurisdictions, particularly in the response to the BEPS treaty-abuse and anti-hybrid measures, in response to which the UK implemented detailed and far-reaching anti-hybrid rules with effect from 1 January 2017. Likewise, the ECJ Danish cases on the interpretation of beneficial ownership and abuse of rights have made a significant impact, from a withholding tax perspective, on most international fund structures and the flow of funds from EU subsidiaries ultimately to fund investors.
Looking ahead, there are a number of significant developments on the horizon influencing the typical UK private equity fund structure. Notably, in April 2022 the UK will introduce a new and specific tax regime for asset-holding companies in alternative fund structures (the qualifying asset holding company, or QAHC, regime). Where the regime's eligibility criteria are met, generous tax benefits are afforded to QAHCs that should more readily allow funds to base their investment holding structures in the UK. While the new UK regime is unlikely to signal an immediate shift away from jurisdictions such as Luxembourg and Ireland, it should make the UK a more attractive holding company platform jurisdiction in terms of the tax treatment of asset-holding companies. This is likely to be particularly the case for asset managers with existing substance in the UK (for example, staff, business premises or other infrastructure) or who already have UK funds or investors. In turn, bolstering substance in a single jurisdiction may prove to be beneficial in light of the European Commission's recent 'Unshell' proposal.
The development of the QAHC regime, alongside a series of changes to the UK REIT regime, flowed from the UK government's 2021 tax and regulatory review of the UK funds regime, more of which is expected in 2022 including a much anticipated consultation on options to simplify the UK VAT treatment of fund management fees.
Internationally, the latest OECD 'BEPS 2.0' initiative should not be underestimated; changing the global tax landscape significantly by altering how profits are allocated between jurisdictions (Pillar One) and introducing a new global minimum corporate tax rate (Pillar Two). Under Pillar One, multinational enterprises (MNEs) with an annual global turnover of at least €20 billion will be subject to rules allocating 25 per cent of profits in excess of a 10 per cent profit margin to the jurisdictions within which they carry on business (subject to threshold rules). MNEs carrying on specific low-risk activities are excluded, including 'regulated financial services' (at the time of writing, yet to be defined, and unclear whether they will be broad enough to include typical private equity fund structures). Pillar Two imposes a minimum effective tax rate of 15 per cent on MNEs that have consolidated revenues of at least €750 million in at least two out of the last four years (i.e., broadly those MNEs that are required to undertake country-by-country reporting). Pillar Two introduces two related tax measures (the GloBE rules): the income inclusion rule (IIR) imposes a top-up tax on a parent entity where a constituent member of the MNE group has low-taxed income while the undertaxed payment rule (UTPR) applies to intra-group payments if the constituent member's income is not taxed by an IIR. Additionally, a subject-to-tax rule (STTR) will permit source jurisdictions to impose limited withholding taxes on low-taxed related party payments, which will be creditable against the GloBE rules tax liability. Specified classes of entities that are typically exempt from tax are outside the scope of Pillar Two, including investment funds and real estate investment vehicles (as respectively defined) which are the ultimate parent entity of the MNE group (and certain holding vehicles of such entities). The implementation of the Pillar One and Pillar Two proposals is scheduled for 2023, with the UTPR coming into effect in 2024. An implementation plan on BEPS 2.0 was agreed in the latest OECD Statement of 8 October 2021. Pursuant to this plan, on 20 December 2021 the OECD released Pillar Two model rules providing a template for jurisdictions to translate the GloBE rules into domestic law, although much more detail (including implementation details on Pillar One) is still to be provided over coming months. At the time of writing, the UK is currently consulting on its plan to implement the OECD Pillar Two model rules into domestic law; the expectation is that such implementation will closely follow the model rules.
The EU mandatory disclosure regime (or 'DAC6' as it is more commonly known), entered into effect in EU Member States on 25 June 2018, adding to compliance burdens. However, the scope of the UK rules implementing DAC6 were narrowed significantly following the signing of the EU–UK trade and cooperation agreement and the end of the Brexit transition period on 31 December 2020. In the UK, only 'cross-border arrangements' falling under the category D hallmark (broadly, those that have the effect of circumventing the OECD's Common Reporting Standard or obscuring beneficial ownership) are currently reportable. This is intended to be a temporary measure while the UK consults upon and introduces new legislation (which is expected to take effect in summer 2022) to implement mandatory reporting under the OECD Mandatory Disclosure Rules (UK MDR), at such point what is left of the UK rules implementing DAC6 will be repealed. While this step significantly reduces the number of reportable arrangements in the UK (subject to seeing the final UK MDR rules), DAC6 reporting is now live in EU Member States such that procedures for information gathering and reporting should now have been put in place by affected parties.
Top-performing managers and those who are able to differentiate themselves in terms of strategy or sector expertise remain very well positioned for the foreseeable future. Investors have significant liquidity due to legacy funds having made healthy distributions in recent years. Having said this, concerns remain regarding the 'denominator effect' in the event that public markets fall in light of increasing inflationary pressures and central banks rolling back their asset purchase programmes. There continue to be a substantial number of challenged fundraisings, and those managers unable to sufficiently differentiate themselves by strategy, track record or unique selling point may have to adopt alternative strategies such as deal-by-deal financings, single investor mandates (including managed accounts) or bespoke or particularly investor-friendly economic terms, rather than simply benefit from rising asset prices. While a number of first-time fund managers have been successful in the current environment, the bar for entry is set high. Those managers able to differentiate themselves and that have strong relationships with limited partners are able to raise capital in accelerated time frames, with larger funds sponsored by high-performing managers particularly being able to take advantage of the current market.
Other historic trends have also continued:
- Minority stakes in managers: the market for managers selling stakes in themselves to third parties has become part of the mainstream private equity industry. While investor sentiment remains mixed, with 45 per cent of investors believing that managers that sell stakes in themselves to third parties make them a less attractive investment partner, while 12 per cent see such activity as a positive, provided that managers are able to demonstrate continued alignment of interests with their investors, focusing particularly on issues surrounding the control and governance of the broader business (e.g., investment strategy), the challenges are not insurmountable.
- Liquidity solutions: secondaries, fund restructurings and recapitalisations are now entrenched in the industry as an established, adaptable and opportunistic firm or portfolio management tool. The 'GP-led' secondaries market in particular continues to grow, with 2021 seeing US$42 billion of total deal value, up 55 per cent from 2020 and 180 per cent from 2019, with this market segment gaining particular momentum by allowing managers to continue holding and benefiting from longer-term growth of top-performing assets. The pandemic, and the resultant immediate need for follow-on capital has also seen the continued development of more specialist liquidity and capital raising tools, such as 'NAV' facilities and preferred equity.
The outlook for private equity fundraising in 2022 is, in the main, positive, notwithstanding the wider economic headwinds. This is driven by the large number of firms either planning to raise a fund or actively marketing one, with the fundraising cycle increasingly being led by the timing of these larger managers, and their target fund sizes, with the largest investors seeking to consolidate their relationships with 'brand name' managers with strong track records. This is not say that investors are unwilling to invest in smaller funds – the 5 per cent best performing small funds (<US$300 million) outperform the 5 per cent best performing large funds (>US$1 billion) by approximately 700 basis points – however, investor resources are stretched across the large volume of funds in market and manager selection is crucial for smaller funds (conversely to the above, the bottom 5 per cent of small funds (<US$300 million) trail the performance of the bottom 5 per cent of large funds (>US$1 billion) by over 1,000 basis points). In this crowded and bifurcated market, all firms will benefit from carefully managing LP expectations regarding when they expect to come to market, with track record and outperformance a prerequisite for securing allocations.
1 Jeremy Leggate, Prem Mohan and Ian Ferreira are partners at Kirkland & Ellis International LLP. The authors would like to thank David Pritchett for his contributions to this chapter.
2 Annual Fundraising Report 2021, Private Equity International.
6 Annual Fundraising Report 2021, Private Equity International.
7 'PEI 300: Growth Equity offers best of both worlds', Private Equity International, 1 June 2021.
8 Annual Fundraising Report 2020, Private Equity International.
9 See further: 'Goldman arm offers latest route into private equity investing', Financial Times, 17 September 2021.
10 Global Private Equity Report 2021, Figure 1.22, Bain & Company.
11 LP Pulse Survey, Eaton Partners, October 2021.
12 'After Investing More Than $1 Trillion In 2021, Private Equity Firms Are Stocking Up For Their Next Big Spending Spree,' Forbes, 16 January 2022.
13 Structures aimed at the retail market, such as VCTs, are not considered here.
14 The EU list of non-cooperative jurisdictions for tax purposes, as published in the Official Journal of the European Union.
15 ILPA Principles 3.0, 'General Partner Commitment' states that 'the GP should have a substantial equity interest in the fund. The GP commitment should be contributed in cash as opposed to contributed through the waiver of management fees or via specialized financing facilities'.
16 'Have Clasic Buyout Funds Run Their Course', Global Private Equity Report 2021, Bain & Company, 1 March 2021.
17 Institutional Limited Partners Association (ILPA) Principles 3.0, 'Fee Income Beyond the Management Fee'.
20 Section 89 of the FSA.
21 Some jurisdictions (notably Austria, France and Italy) have chosen either to terminate existing private placement regimes following the implementation of the AIFMD or to impose highly onerous compliance requirements that result in effectively precluding a non-EU manager from marketing a fund using private placement.
22 The private placement regimes in Member States were initially expected to be closed in late 2018 or early 2019. However (as explained later in this section), the timetable for these events will now depend on when (if at all) the EU lawmakers complete the necessary steps to extend the passport on a voluntary basis to non-EU managers.
23 The AIFMD defines marketing as a direct or indirect offering or placement, at the initiative of the manager or on behalf of the manager of units or shares of an alternative investment fund it manages, to or with investors domiciled or with a registered office in the EEA.
24 Broadly, aggregate assets under management exceeding €500 million for unleveraged funds that do not have redemption rights exercisable during a period of five years from the initial investment in the fund; or €100 million for leveraged funds.
25 The EU list of non-cooperative jurisdictions for tax purposes, as published in the Official Journal of the European Union.