Talk:Alternative Investment Fund Managers Directive 2011/Archive 1

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Proposing updates for this article

Hi there! I'm looking to find some editors to help me make some changes to improve this article. I'm looking to discuss changes here rather than making the edits myself as I have a conflict of interest since I'm proposing updates on behalf of the Managed Funds Association, as a paid consultant.

As you might be aware, there are a couple of issues in the current article, including:

• The information is largely presented as a bulleted list. Per MOS:LIST, bullet points are discouraged in preference for prose.
• The information on the history of the AIFMD isn't presented chronologically, and most subsections are very short.

To address all these concerns and to flesh out some areas of AIFMD's development, content and history that hadn't been fully discussed in the article, I've put together newly drafted suggestions for several of the article's sections. For now, I'll focus on my proposed edits to the Overview section.

This new version of the Overview section addresses the following problems with the current AIFMD Overview:

• It eliminates all bulleted lists and converts information into prose
• It pares down all the repetitive information in the current Overview and streamlines the description into a more succinct summary of AIFMD and what it covers
• It also adds WP:RS sourcing

Here's the updated section I'd like to propose:

Overview

Overview

The AIFMD was prompted as part of a wider regulatory effort undertaken by G20 nations following the global market downturn of 2008. Provisions of the AIFMD include increasing transparency by AIFMs and assuring that national supervisors, the European Securities and Markets Authority (ESMA), and the European Systemic Risk Board (ESRB) have the information they need to monitor financial systems in the EU. The AIFMD also is intended to protect investors.

The directive came into force on July 21, 2011. On November 16, 2011, ESMA issued technical advice to the European Commission (EC) on possible implementation measures for the AIFMD. On December 19, 2012, the EC added a series of new regulations to supplement the AIFMD text. EU Member States were required to write the AIFMD into national law by no later than July 22, 2013. As of July 2014, not every EU Member State had transposed the AIFMD into national law. Some, but not all, Member States provided for a one-year transition period, beginning July 22, 2013, before AIFMs would become subject to the AIFMD requirements.

Requirements under the AIFMD include authorisation of an AIFM with the AIFM’s home state regulator for AIFMs that have assets under management in AIFs above the thresholds of: (1) 100 million EUR, if the AIF uses leverage; or (2) 500 million EUR, if the AIF does not use leverage. The AIFMD also includes capital obligations, organizational and governance requirements, and the regular disclosure of information to investors. Further, the AIFMD's reporting regulations assert that each AIF should be named using a series of codes, including its national identification code, the Bank Identifier Code (BIC) and the Legal Entity Identifier code. The AFIMD requires AIFMs to select only brokers and counterparties that are subject to regulatory supervision, that are financially sound, and that have the necessary organizational structure to provide services to the AIFM or the AIF. Finally, all AIMs must submit quarterly, semi-annual, or annual reports to their respective Member State regulator with information about the AIFM and its AIFs as well as an annual report with information such as the fund's financial statements, activities, and information about the total amount of remuneration paid by the AIFM to its staff.

Under the AIFMD, special requirements apply to AIFMs using leverage. AIFMs are required to disclose the extent of the leverage employed within their funds, and prove that leverage in any fund has been limited to a reasonable amount. The scope of AIFMD requirements that apply to AIFMs are different, depending on whether the AIFM is engaged in portfolio or risk management activities within the EU or markets its funds (AIFs) to EU investors. Under the AIFMD, each fund can only have one AIFM, though the AIFM can delegate certain functions to other entities. EU AIFMs became subject to all of the provisions of the AIFMD once it was implemented at the EU Member State level. Authorised fund managers located within the EU are permitted to market their EU funds to professional investors in any EU member state under what the AIFMD calls a passport.

The AIFMD outlines several changes in regards to the regulation of non-EU AIFMs, although non-EU AIFMs managing non-EU AIFs and not marketing them in the EU are not subject to AIFMD. Non-EU AIFMs marketing AIFs within the EU will be required to comply with disclosure requirements to both investors and EU regulators. Non-EU AIFMs must provide an annual report for each AIF they market in the EU. Beginning in 2015, non-EU AIFMs may acquire a passport to market units or shares in AIFs within the EU but will require authorisation within the EU.

Annex IV reporting

The reporting requirements of the AIFMD apply to all AIFMs who manage or market alternative funds within the EU. To fulfill the reporting requirements, AIFMs must file an Annex IV report within 30 days of the end of the applicable reporting period, which is determined by the amount of an AIFM's assets under management. Reporting periods range from quarterly to half-yearly to annually. The Annex IV report is a government regulatory document comprising 41 questions, analyzing a fund's investment portfolios, exposures, leverage ratios, liquidity and risk analysis.

References

Markup

==Overview==
The AIFMD was prompted as part of a wider regulatory effort undertaken by [[G-20 major economies|G20 nations]] following the [[Global financial crisis in September 2008|global market downturn of 2008]].<ref name=Boening12>{{cite book |title=The EU as a Global Player |author=Astrid B. Boening |authorlink= |year=2012 |publisher=Fundación Univ. San Pablo |location= |isbn= |page=36 |pages= |url=https://books.google.com/books?id=7isDBQAAQBAJ&pg=PA971&lpg=PA971&dq=aifmd+esma+esrb&source=bl&ots=nvzi--bkdD&sig=Eh1tmdw-4w6wEntb-Rj3YbrDajc&hl=en&sa=X&ei=NWU1Vc6oK5CbyATYoYCABw&ved=0CFMQ6AEwBw#v=onepage&q=aifmd%20esma%20esrb&f=false |accessdate=20 April 2015}}</ref><ref name=Gogna14>{{cite news |title=Industry grapples with regulatory changes |author=Monica Gagna |url=http://www.ftadviser.com/2014/12/15/investments/uk/industry-grapples-with-regulatory-changes-2vsLhqkuU99mxFub3ICQ6N/article.html |work=Financial Times Advisor |date=15 December 2014 |accessdate=20 April 2015}}</ref><ref name=g20>{{Cite report |author= |authorlink= |coauthors= |date=September 2013 |title=G20/OECD High-Level Principles of Long Term Investing Financing by Institutional Investors |url=http://www.oecd.org/finance/private-pensions/G20-OECD-Principles-LTI-Financing.pdf |publisher=Organization for Economic Cooperation and Development |page= |docket= |accessdate= |quote= }}</ref> Provisions of the AIFMD include increasing transparency by AIFMs<ref name=Boening12/><ref name=ECEuropa>{{cite web |url=http://ec.europa.eu/internal_market/investment/docs/20121219-directive/delegated-act_en.pdf |title=COMMISSION DELEGATED REGULATION (EU) supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision |author= |date=19 December 2012 |work= |publisher=European Commission |accessdate=20 April 2015}}</ref><ref name=MIFIDdoc>{{cite web |url=http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1398325978410&uri=CELEX:02004L0039-20110104 |title=Directive 2004/39/EC of the European Parliament and of the council |author= |date=21 April 2004 |work= |publisher=European Commission |accessdate=16 April 2015}}</ref><ref name=FCA14>{{cite web |url=http://www.fca.org.uk/firms/markets/international-markets/aifmd |title=Alternative Investment Fund Managers Directive (AIFMD) |author= |date=12 November 2014 |work=Financial Conduct Authority |publisher= |accessdate=13 January 2015}}</ref> and assuring that national supervisors, the [[European Securities and Markets Authority]] (ESMA),<ref name=Schmerken14>{{cite news |title=Hedge Funds Face Compliance Hurdles of AIFMD |author=Ivy Schmerken |url=http://www.wallstreetandtech.com/compliance/-hedge-funds-face-compliance-hurdles-of-aifmd-/d/d-id/1297680 |work=Wallstreet and Tech |date=30 July 2014 |accessdate=15 December 2014}}</ref><ref name=Boyd13ESMA>{{cite news |title=ESMA clarifies final guidelines on reporting obligations under AIFMD |author=Jonathan Boyd |url=http://www.investmenteurope.net/other/esma-clarifies-final-guidelines-on-reporting-obligations-under-aifmd/ |work=Investment Europe |date=1 October 2013 |accessdate=20 April 2015}}</ref> and the [[European Systemic Risk Board]] (ESRB) have the information they need to monitor financial systems in the EU.<ref name=Boyd13ESMA/><ref name=Moloney14>{{cite book |title=EU Securities and Financial Markets Regulation |author=Niamh Moloney |authorlink= |year=2014 |publisher=Oxford University Press |location= |isbn= |page= |pages= |url=https://books.google.com/books?id=iS4DBQAAQBAJ |accessdate=20 April 2015}}</ref> The AIFMD also is intended to protect investors.<ref name=Waller14>{{cite web |url=http://www.businesslife.co/Features.aspx?id=the-long-and-winding-road |title=The long and winding road |author=Dave Waller |date= |work=BusinessLife.co |publisher= |accessdate=15 December 2014}}</ref>

The directive came into force on July 21, 2011.<ref name=FCA14/><ref name=Lawyer14>{{cite news |title=UCITS V — an update |author= |url=http://www.thelawyer.com/briefings/ucits-v-an-update/3029418.article |work=The Lawyer |date=9 December 2014 |accessdate=16 December 2014}}</ref> On November 16, 2011, ESMA issued technical advice to the [[European Commission]] (EC) on possible implementation measures for the AIFMD.<ref name=ESMA11>{{Cite report |author=European Securities and Markets Authority (ESMA) |authorlink= |coauthors= |date=16 November 2011 |title=ESMA's technical advice to the European Commission on possible implementing measures of the Alternative Investment Fund Managers Directive |url=http://www.esma.europa.eu/system/files/2011_379.pdf |publisher= |page= |docket= |accessdate=17 December 2014 |quote= }}</ref> On December 19, 2012, the EC added a series of new regulations to supplement the AIFMD text.<ref name=FCA14/><ref name=EC2>{{Cite report |author=The European Commission |authorlink= |coauthors= |date=19 December 2012 |title=Regulations |url=http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0231&from=EN |publisher=Official Journal of the European Union |page= |docket= |accessdate=17 December 2014 |quote= }}</ref> EU Member States were required to write the AIFMD into national law by no later than July 22, 2013.<ref name=FCA14/><ref name=Boyd13>{{cite news |title=ESMA approves Guernsey AIFMD cooperation agreement |author=Jonathan Boyd |url=http://www.investmenteurope.net/other/esma-approves-guernsey-aifmd-cooperation-agreement/ |work=Investment Europe |date=31 May 2013 |accessdate=19 December 2014}}</ref><ref name=Clipstone14>{{cite news |title=The British Virgin Islands – AIFMD one year on |author=Tim Clipstone |url=http://www.hedgeweek.com/2014/06/27/205833/british-virgin-islands-%E2%80%93-aifmd-one-year |work=Hedgeweek |date=27 June 2014 |accessdate=18 December 2014}}</ref><ref name=COO14>{{cite web |url=http://cooconnect.com/news/half-of-managers-yet-to-apply-for-aifmd-authorisation-survey-finds |title=Half of managers yet to apply for AIFMD authorisation, survey finds |author= |date=14 July 2014 |work=COOConnect.com |publisher= |accessdate=15 December 2014}}</ref> As of July 2014, not every EU Member State had [[Transposition (law)|transposed]] the AIFMD into national law.<ref name=KPMG14>{{Cite report |author= |authorlink= |coauthors= |date=22 July 2014 |title=AIFMDTransposition |url=http://www.kpmg.com/LU/en/IssuesAndInsights/Articlespublications/Documents/AIFMD-Transposition-overview-22-July-2014.pdf |publisher=KPMG |page= |docket= |accessdate=17 December 2014 |quote= }}</ref> Some, but not all, Member States provided for a one-year transition period, beginning July 22, 2013, before AIFMs would become subject to the AIFMD requirements.<ref name=Lawyer14/><ref name=FCA14/>

Requirements under the AIFMD include authorisation of an AIFM with the AIFM’s home state regulator for AIFMs that have assets under management in AIFs above the thresholds of: (1) 100 million [[euro|EUR]], if the AIF uses leverage; or (2) 500 million EUR, if the AIF does not use leverage.<ref name=Robson14>{{cite news |title=AIFM Directive for US Private Fund Managers |author=Neil Robson |url=http://www.natlawreview.com/print/article/aifm-directive-us-private-fund-managers |work=The National Law Review |date=24 October 2014 |accessdate=20 April 2015}}</ref> The AIFMD also includes capital obligations,<ref name=Robson14/> organizational and governance requirements,<ref name=Robson14/> and the regular disclosure of information to investors.<ref name=ESMAconsult13/><ref name=EC2/> Further, the AIFMD's reporting regulations assert that each AIF should be named using a series of codes, including its national identification code, the Bank Identifier Code (BIC) and the Legal Entity Identifier code.<ref name=ESMAconsult13/><ref name=EC2/> The AFIMD requires AIFMs to select only brokers and counterparties that are subject to regulatory supervision, that are financially sound, and that have the necessary organizational structure to provide services to the AIFM or the AIF.<ref name=EC2/> Finally, all AIMs must submit quarterly, semi-annual, or annual reports to their respective Member State regulator with information about the AIFM and its AIFs as well as an annual report with information such as the fund's financial statements, activities, and information about the total amount of remuneration paid by the AIFM to its staff.<ref name=EC2/>

Under the AIFMD, special requirements apply to AIFMs using leverage. AIFMs are required to disclose the extent of the leverage employed within their funds, and prove that leverage in any fund has been limited to a reasonable amount.<ref name=PDF>{{cite journal |last1= |first1= |last2= |first2= |year=2013 |title=Alternative Investment Fund Managers Directive: AIFMs managing leveraged AIFs |journal= |volume= |issue= |pages=3-5 |publisher=Financial Services Commission |doi= |url=http://www.fsc.gi/download/AIFMD/AIFMDManagingSpecificTypesOfAIFsAIFMsManagingLeveragedAIFs.pdf |accessdate=13 January 2015}}</ref> The scope of AIFMD requirements that apply to AIFMs are different, depending on whether the AIFM is engaged in portfolio or risk management activities within the EU or markets its funds (AIFs) to EU investors. Under the AIFMD, each fund can only have one AIFM, though the AIFM can delegate certain functions to other entities.<ref name=Clipstone14/> EU AIFMs became subject to all of the provisions of the AIFMD once it was implemented at the EU Member State level.<ref name=Yonge13>{{cite news |title=AIFMD's Impact on Non-EU Managers of Non-EU Alternative Investment Funds |author=William Younge |url=http://www.highbeam.com/doc/1G1-338211304.html |work=Mondaq Business Briefing |date=30 July 2013 |accessdate=18 December 2014}}</ref> Authorised fund managers located within the EU are permitted to market their EU funds to professional investors in any EU member state under what the AIFMD calls a passport.<ref name=Yonge13/>

The AIFMD outlines several changes in regards to the regulation of non-EU AIFMs, although non-EU AIFMs managing non-EU AIFs and not marketing them in the EU are not subject to AIFMD.<ref name=Yonge13/><ref name=AIFMDtext/> Non-EU AIFMs marketing AIFs within the EU will be required to comply with disclosure requirements to both investors and EU regulators. Non-EU AIFMs must provide an annual report for each AIF they market in the EU.<ref name=Yonge13/><ref name=AIFMDtext/> Beginning in 2015, non-EU AIFMs may acquire a passport to market units or shares in AIFs within the EU but will require authorisation within the EU.<ref name=Yonge13/>

===Annex IV reporting===

The reporting requirements of the AIFMD apply to all AIFMs who manage or market alternative funds within the EU. To fulfill the reporting requirements, AIFMs must file an Annex IV report within 30 days of the end of the applicable reporting period, which is determined by the amount of an AIFM's assets under management. Reporting periods range from quarterly to half-yearly to annually. The Annex IV report is a government regulatory document comprising 41 questions, analyzing a fund's investment portfolios, exposures, leverage ratios, liquidity and risk analysis.</nowiki>

Just to reiterate, while drafting up proposed changes to the article, my client at the Managed Funds Association has provided input and reviewed drafts, but I have aimed throughout to keep these suggested updates to the article objective and neutral. Can anyone take a look at this and offer any feedback? I'm up for discussion and welcome any input from editors. I'm hoping that someone will be able to make the proposed changes in the live article, if they look appropriate. Thanks, 16912 Rhiannon (Talk · COI) 20:15, 7 April 2015 (UTC)

References

I'll take a closer look later. The first thing I noticed is that (IMO) the first sentence has too many references (especially as some appear to be promoting services without verifying the referenced statement) and contains too much procedural detail, while still not doing its job of identifying what the directive is. It also uses the word "regulation", which is confusing because EU legislation clearly distinguishes between regulations and directives. --Boson (talk) 18:37, 15 April 2015 (UTC)

PS: The article uses European date format. I have added an infobox (also indicating EEA relevance) and changed the first sentence. --Boson (talk) 19:22, 15 April 2015 (UTC)

Hi Boson, thank you so much for replying here—it can be like a ghost town on some financial articles... I am so embarrassed to say this, but I pasted in the wrong text entirely for the proposed update to the Overview; what I'd included there before was actually some text I was thinking might help clarify the introduction and had planned to offer later. I'm glad to see, therefore, that you were able to use it to update the first line of the article. I've just updated the proposed text above, so now it definitely is the new text that I'm suggesting in place of that bulleted section and gives a thorough (I think) view of what the AIFMD is. Taking your notes about the date format and sourcing, I've made sure to place the dates in this draft in the European format and where I had used the briefing from The Lawyer, I have replaced it with a HedgeWeek article. Would you be able to take another look? Thanks again, 16912 Rhiannon (Talk · COI) 21:42, 15 April 2015 (UTC)

Yes, since the introduction is supposed to summarize the rest of the article, it is probably a good idea to fix that later. It might also be sensible, later, to subdivide the overview into several sections (or at least change the heading), since the introduction is supposed to provide an overview. I haven't yet found time to look right through the proposal text, so I will probably add comments here as I find things. Though I haven't checked thoroughly, I couldn't actually find verification for the statement "EU Member States were required to write the AIFMD into national law by no later than 22 July 2013" in the cited source, though it is confirmed in the Hedgeweek article (which also explains the precise date). Perhaps you could change the reference or point me in the right direction. Personally, I would like to provide a reference to a primary source (legislation) as well as a secondary source. Once this statement is sourced in the body of the text, it can be added to the introduction (in my opinion without duplicating the footnote). --Boson (talk) 12:14, 16 April 2015 (UTC)

Hi Boson, thanks for these initial notes, I appreciate your thoroughness! I've updated the draft to change the reference for the 22 July 2013 statement. Did you have any other questions or thoughts about the draft? Thanks, 16912 Rhiannon (Talk · COI) 21:13, 27 April 2015 (UTC)

Sorry, I got distracted by other things. Here are a few more points (mainly on individual statements). I had intended to check them a bit more but, in view of the delay (sorry!) I will post them now:

• "The regulation came into force on 21 July 2011." (and possibly elsewhere)

In view of the strict distinction between EU "directives" and "regulations", I think it would be appropriate to use the words "directive" and "regulation" only in the EU sense and link to the appropriate articles Directive (European Union) and Regulation (European Union). Or, at least, the distinction should be explained. The following sentences in fact refer to the ensuing EU regulation. The importance is that EU regulations are directly binding throughout the EU and may have the force of laws, whereas directives are initially binding only on the national governments

• "As of July 2014, not every EU Member State has adopted the AIFMD."

I'm not sure if "adopted" is the right word. It could be read as implying that the member states have a choice and that the rules do not apply if the AIFMD is not "adopted". There are two potential issues with this:

1. In addition to the directive there was a regulation. A regulation is directly binding as law throughout the EU; it does not need to be adopted.
2. Transposition into national law is a requirement (agreed to by the member states in the Council). If member states fail to adequately transpose a directive into national law, it can in certain circumstances result in liability of member states and have direct effect, potentially establishing rights and duties for individual citizens and companies.

• " above the thresholds of: (1) 100 million EUR, if the AIF uses leverage; or (2) 500 million EUR, if the AIF does not use leverage."

I think we need a specific reference to where this is stated in the cited source.

• The new version seems to have removed any explicit mention of non-EU AIFMs.

--Boson (talk) 19:06, 28 April 2015 (UTC)

Hi there Boson. Thanks so much for your detailed comments and sorry for the delay on my end while I looked into this and made some edits. As you'll see above, I've updated the Overview draft to reflect what you've pointed out, including adjustments to wording to make sure that I'm clearly differentiating regulation and directive and adding in some detail re: non-EU AIFMs. The text on the latter in the current article is cited to a website run by a law firm, which didn't strike me as meeting WP:RS, so I've cited the new details I added to the actual directive and the Mondaq Business Briefing source that I had used elsewhere in the draft. Also, I should note that I also want to propose a new section for this article, later, that focuses on the "passport" for non-EU AIFs and AIFMs, so that will go into more detail about the impact for these particular AIFs and AIFMs. Finally, I've adjusted the references for the state regulator sentence; looking at it again, I felt that the source I've used now states this most clearly. Again, thanks for your input! Let me know if you see anything else of concern or if you think this is ready to go into the live article. Thanks, 16912 Rhiannon (Talk · COI) 21:42, 15 May 2015 (UTC)

I haven't checked it very thoroughly, but I think it's ready to go live. The Moloney14 reference has an access date but no URL. --Boson (talk) 22:30, 15 May 2015 (UTC)

Fantastic, thanks Boson! I've added a URL to the Google Books page for the Moloney text. If you're happy this is good to go, would you mind making the edit in the article? (Where I have a COI, I do not make edits to articles, otherwise I'd be bold and add this myself.) Thanks, 16912 Rhiannon (Talk · COI) 13:28, 19 May 2015 (UTC)

 Done Thanks to Boson for reviewing and moving into the article! I'll be back soon with a new section to propose related to the AIFMD passport. 16912 Rhiannon (Talk · COI) 14:46, 20 May 2015 (UTC)

Archiving

The talk page is getting a bit cluttered. Any objection to setting up automatic archiving for threads with no responses for 30 days? --Boson (talk) 16:44, 22 July 2015 (UTC)