Apex Fund Services Guernsey

Apex Fund Services (Guernsey) Limited will provide fund set up, portfolio valuations, fund accounting, shareholder services, corporate secretarial services, directorships and listing sponsorship to a wide range of assets classes in particular Private Equity, Property, Debt, Alternative Energy and Hedge Funds

Guernsey as a Jurisdiction

More managers have their funds domiciled and administered in Guernsey than any other jurisdiction, according to the results of a new survey carried out independently by www.funddomiciles.com. It shows that 24% of managers have their funds domiciled in Guernsey compared with 21% in the UK, 18% in Jersey, 12% in Cayman and 9% in Luxembourg. Malta, Ireland, the Isle of Man, BVI, Cyprus and the US make up the rest of the fund domiciles.

The survey results also reveal that 24% of managers have their funds serviced from Guernsey, followed by the UK (20%), Ireland (18%) and Jersey (16%). The rest of the managers have their funds serviced in Luxembourg, Malta and the Isle of Man.

Another survey undertaken by the ‘The Banker’ (part of the Financial Times group of business publications) has also recognised the continued increases in the number of closed-ended funds being established in Guernsey which has resulted in it being placed first in Europe and second globally in the latest rankings of specialist finance centres. A key finding from the interviews with fund managers is that Guernsey has built a strong position in the property and private equity space in particular.

In addition new figures released by from the Guernsey Financial Services Commission (GFSC) show that the total net asset value of funds under management and administration in the Island at the end of September 2012 was £274.4 billion. This represents an increase of £3.3 billion (1.2%) year on year, a rise of £31.3 billion (12.8%) on the same time two years ago and an increase of £92.9 billion (51.2%) since the end of September 2009.7

The figures from the GFSC also show that the Guernsey closed-ended sector was valued at £130.3 billion at the end of September - up £4.2 billion (3.3%) during the third three months of 2012 and up £4.6 billion (3.7%) compared to twelve months earlier, with property (28%) and private equity (41%) funds accounting for the majority of the increase."

 

Regulation of Investment Funds in Guernsey  

The Guernsey Financial Services Commission (the "Commission") regulates investment funds to protect investors and to maintain the island's reputation. Guernsey has established a sophisticated infrastructure to foster the establishment of investment funds. The criteria for granting an authorisation or consent to a fund and the manner in which that fund will be regulated largely depends on whether the fund is open or closed-ended and the type of investor targeted. The Commission also regulates the licensing of fund service providers in Guernsey.

The formation and operation of investment funds in Guernsey is regulated by the Commission pursuant to the Protection of Investors (Bailiwick of Guernsey) Law, 1987 as amended (the "POI Law") and certain rules and regulations made there under. In granting authorisation or consent, the Commission will consider the status, reputation and track record of the promoter, the scope of the fund's investment activities and the nature of its business. It will also consider the protection and/or enhancement of Guernsey's reputation as a financial centre.

As of November 2008, the two types of fund, open-ended and closed-ended, may make application for authorisation or consent under one of three routes:

  • Authorised Fund by standard application;

  • Authorised Fund by Qualifying Investor ("QIF") application;

  • Registered Fund application.

The distinction between open-ended and closed-ended funds is based on redemptions: open-ended funds will allow investors to have their holdings redeemed or repurchased at a price related to the value of the underlying property or assets, whereas closed-ended funds will allow only discretionary redemptions, if any.

There is no requirement to establish a Guernsey fund manager, but all Guernsey funds must have a local administrator. Open-ended funds, whether Authorised or Registered, must also have a Guernsey-based custodian. An application fee is payable on submission of the initial fund application and an annual authorisation fee is payable on receipt of final consent or authorisation.

New Promoters

Where the promoter of a fund is not known to the Commission, it must submit a new promoter check list, which gives information on the track record of the promoter or its principals, the proposed investment business to be undertaken in Guernsey and personal information on the directors, managers and shareholders of the promoter, the shareholders and directors of any management company and the directors of the proposed fund.

Authorised Funds by Standard Application

The standard application for authorisation of an open-ended or closed-ended fund in Guernsey is a three-stage process, comprising outline, interim and final authorisation.

Non retail Open-ended funds can be structured as one of the following which, to a large extent, will determine the applicable level of regulation:

•  Class B funds are regulated by the Commission under the Collective Investment Schemes (Class B) Rules 1990 (the "Class B Rules") and allow greater flexibility in investment and borrowing powers. Class B funds vary in scope from retail funds through to strictly private funds established as vehicles for a single institution, but have historically been targeted at institutional investors and high net worth individuals. Certain derogations from the Class B Rules are available on application to the Commission.

•  Class Q funds, regulated under the Collective Investment Schemes (Qualifying Professional Investors) (Class Q) Rules 1998 (the "Class Q Rules"), are restricted to professional investors and allow the investment manager an even greater degree of flexibility.

Closed-ended funds are regulated under the Authorised Closed-Ended Investment Schemes Rules 2008 (the "Closed-Ended Rules"), which set out such matters as administration and custodian (if any) duties in relation to such funds, disclosures required to be made in the prospectus and the requirements to notify the Commission in respect of changes to the fund or its service providers.

Where a local fund manager is used in the structure of an authorised fund, it must apply for a licence to conduct restricted activities under the POI Law, the approval process for which typically takes four to six weeks.

Authorised Funds by QIF Application

Promoters of authorised funds which will be offered to professional or experienced investors, knowledgeable employees or persons willing to invest a minimum of US$100,000, may take advantage of the qualifying investor fund or "QIF" fast-track application process. An appropriately licensed Guernsey administrator must certify to the Commission that it has performed sufficient due diligence on the promoter and the procedures for offering the scheme (including procedures for effectively restricting the offer to qualifying investors) and that the requisite disclosures are made in the offering document of the scheme. By placing much of the onus of due diligence on the administrator, the Commission has been able to reduce substantially its period for processing such applications. Once all requisite documentation and the administrator's certification have been submitted, the Commission has a guaranteed response time of three working days.

The QIF regime is complemented by a fast track process for consideration of any local fund manager's licence application. A local fund manager is not legally required, but where the fund structure includes a Guernsey fund manager or the fund is structured as a limited partnership and has a Guernsey general partner, the Commission will process the application for the licence of such entity (again with reliance on the administrator's certification) under the fast track licensee application process and put it before the Commission's Licensing Committee within 10 business days of receipt.

Open-ended Qualifying Investor Funds are subject to the Class A, Class B or Class Q Rules and the QIF Guidelines published by the Commission. Closed-ended Qualifying Investor Funds are subject to the Closed- Ended Rules and the QIF Guidelines.

Registered Funds

Guernsey's Registered Fund regime provides a lighter regulatory touch and a fast-track process to obtain consent from the Commission. As with QIF applications, the Commission's reliance on the administrator's certificate of due diligence on the promoter and the principal documents of the fund reduces the Commission's response time to three working days.

Registered funds may not be offered directly to the public in Guernsey, but may be offered to regulated entities in Guernsey or offered to the public by entities appropriately licensed under the POI Law.

The Registered Fund regime is complemented by a fast track process for consideration of a licence application for a local fund manager (if any). Where the fund structure includes a fund manager or the fund is structured as a limited partnership and has a Guernsey general partner, the Commission will process the application (again with reliance on the administrator's certification) under the fast track licensee application process and put it before the Commission's Licensing Committee within 10 business days of receipt.

Registered funds, whether open-ended or closed-ended, are subject to The Registered Collective Investment Scheme Rules 2008 and The Prospectus Rules 2008 (the "Prospectus Rules"). The former set out such matters as administration and custodian duties (optional for closed-ended funds), disclosures required to be made in the prospectus and the requirements to notify the Commission in respect of changes to the fund or its service providers, and the latter set out information for inclusion in the prospectus of any Registered fund.

Structures available

Funds in Guernsey can be structured as limited liability companies, protected or incorporated cell companies, unit trusts or limited partnerships.

• Companies

All Guernsey companies, whether cellular or non-cellular, are incorporated under the Companies (Guernsey) Law, 2008 (the "Companies Law"), and are subject to that law and to their memorandum and articles of     incorporation. Companies may elect a stated or unstated share capital and par or no par value shares.

• Protected Cell Companies (PCCs)

In a PCC assets are segregated into cellular and non-cellular assets and held in individually created cells, or the core respectively. The assets of each individual cell include the share capital and reserves (including retained earnings, capital reserves and share premiums) attributable to that cell.

The non-cellular assets are, in effect, the general assets of the company. Importantly, the assets of each individual cell are only available to the creditors of that particular cell. The segregation of assets and liabilities in one legal entity readily lends PCCs to be used for guaranteed or protected products.

• Incorporated Cell Companies (ICCs)

An ICC is similar to a PCC, but in an ICC each individual cell is an incorporated company with separate legal personality. The incorporated cells are not subsidiaries of the ICC and cannot bind the ICC but must contract in their own individual names. Each incorporated cell will have the same directors as the ICC.

Only certain regulated businesses may be incorporated as, or converted into, an ICC. The conversion provisions under the Companies Law are very flexible permitting an existing PCC or ICC to convert into a company and vice versa.

• Unit Trusts

A unit trust is constituted by an instrument of trust, usually between the manager and the trustee (or in certain circumstances made by a managing trustee only) and is subject to the Trusts (Guernsey) Law, 2007. A unit trust is not a separate legal entity in itself but is based on the concept of a trustee who has legal title to the assets and who holds them on trust for the benefit of the unit holders. There is no capital duty on the establishment of a unit trust and no annual registration fee. A unit trust may obtain exemption from Guernsey tax on all income except income arising in Guernsey (other than bank interest). Distributions to unit holders are not subject to Guernsey tax unless the unit holder is Guernsey resident.

• Limited Partnerships

The Limited Partnerships (Guernsey) Law, 1995 as amended provides an enabling framework for the establishment and operation of Guernsey limited partnerships. A Guernsey limited partnership is not a legal entity in its own right (unless it elects to have legal personality), but is a partnership managed by a general partner, the limited partners of which are not liable over and above the amounts which they have agreed to contribute to the partnership. There is no limitation on the number of limited partners and the general partner will ordinarily have unlimited liability for the debts of the partnership.

Profits and losses of a partnership are attributed to the partners according to their proportionate share. A partner who is not resident in Guernsey will not be liable to any Guernsey income tax except to the extent that any part of that share is derived from Guernsey source income (other than bank interest), which includes profits from a trade carried on in Guernsey but excludes profits from international activities carried on outside of Guernsey.  Limited partnerships are a popular vehicle in the constitution of private equity funds.