AIFMD Co-operation Arrangements Are Agreed with 34 Regulators

by Proskauer Rose LLP
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In an important further step towards the implementation of the Alternative Investment Fund Managers Directive (AIFMD) in the European Economic Area (EEA) on July 22, 2013, the European Securities and Markets Authority (ESMA) announced on May 30, 2013 that it had reached agreement on co-operation arrangements with regulators in a number of countries outside of the EEA (so-called "Third Countries").

Country

Regulator

Albania

Financial Supervisory Authority of Albania

Australia

Australian Securities and Investment Commission

Bermuda

Bermuda Monetary Authority

Bosnia and Herzegovina

Republic of Srpska Securities Commission

Brazil

Comissão de Valores Mobiliários do Brasil

BVI

British Virgin Island Financial Securities Commission

Canada

Alberta Securities Commission

Canada

Authorité des Marchés Financiers du Quebec

Canada

British Columbia Securities Commission

Canada

Office of the Superintendent of Financial Institutions

Canada

Ontario Securities Commission

Cayman Islands

Cayman Islands Monetary Authority

Dubai

Dubai International Financial Centre Authority

Guernsey

Guernsey Financial Services Commission

Hong Kong

Hong Kong Monetary Authority

Hong Kong

Hong Kong Securities and Futures Commission

India

Securities and Exchange Board of India

Isle of Man

Financial Services Commission of the Isle of Man

Israel

Israel Securities Authority

Jersey

Jersey Financial Services Authority

Kenya

Capital Markets Authority of Kenya

Labuan

Labuan Financial Services Authority

Mauritius

Financial Services Commission of Mauritius

Montenegro

Securities and Exchange Commission of Montenegro

Morocco

Conseil Déontologique des Valeurs Mobilières of Morocco

Pakistan

Securities and Exchange Commission of Pakistan

Singapore

Monetary Authority of Singapore

Switzerland

Financial Market Supervisory Authority

Tanzania

Capital Markets and Securities Authority of Tanzania

Thailand

Securities and Exchange Commission Thailand

UAE

Emirates Securities and Commodities Authority

USA

Federal Reserve Board

USA

Office of the Comptroller of the Currency

USA

Securities and Exchange Commission

Why are co-operation arrangements important?

Some of the areas of AIFMD that relate to Third Countries require that co-operation agreements are in place between individual EEA countries and the relevant Third Country. The most important example is the facility given under Article 42 AIFMD to non-EEA alternative investment fund managers to market funds into the EEA. For example, as a result of the U.S. and Cayman Islands co-operation agreements being in place, a U.S. manager of a U.S. or Cayman Islands fund would be able to market that fund into the EEA under the applicable national private placement regimes.

What are the other key elements of the co-operation arrangements?

The key elements of the co-operation arrangements are:

  • EEA and non-EEA authorities will be able to supervise fund managers that operate on a cross-border basis both within and outside the EEA;
  • The co-operation between authorities includes the exchange of information, cross-border on-site visits and assistance in the enforcement of the respective laws;
  • EEA securities regulators will be able to share relevant information received from non-EEA authorities with other EEA authorities, ESMA and the European Systemic Risk Board, provided appropriate safeguards apply; and
  • The existence of co-operation arrangements between the EEA and non-EEA authorities is a precondition of the AIFMD for allowing managers based outside the EEA to access EEA markets or perform fund management by delegation from EEA managers.

Will co-operation arrangements be put in place in relation to other Third Countries?

ESMA is continuing to negotiate with regulators in other Third Countries with a view to putting in place further co-operation arrangements with those Third Countries.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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