4 The Legal Duties Arising from the Provision of Investment Advisory and Management Services

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Private Investment ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Fund Manager ◽  
Investment Funds ◽  
Fund Managers ◽  
Legal Relationship ◽  
Legal Structures ◽  
The Impact ◽  
Management Services

This chapter discusses the legal duties owed by investment managers to their clients arising from the provision of investment advisory and management services. It first considers the key documents that establish the legal relationship between fund managers and investors before explaining the investment manager’s duty of care and fiduciary duty of loyalty to the client. It then examines the contracts involved in private investment funds between the fund vehicle and the fund manager, along with the fiduciary duties of directors of limited companies. It also analyses the impact of structure of investment management firms on legal duties, taking into account multiple management vehicles, the effect of fund management economics on legal structures, and the dividing line between fund manager and investors.

7 Governance Issues in Offshore Companies Used as Private Investment Funds

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Board Of Directors ◽  
Private Investment ◽  
The United States ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Cayman Islands ◽  
Investment Funds ◽  
The Board Of Directors ◽  
The Uk

This chapter examines issues of governance arising from the use of offshore companies as private investment funds. Funds established in offshore jurisdictions are often structured as limited companies that issue shares to investors. Governance issues can arise in offshore companies when voting rights are separated from economic participation. The chapter first considers the role of the board of directors in private investment funds before discussing taxation issues affecting offshore companies used as private investment funds in the UK and in the United States. It then explains the duties of directors under Cayman Islands law, including fiduciary duty, duty of care, diligence, and skill, and duty of confidentiality. It also describes the composition of the board of directors, its meetings, relationship with the fund manager, and responsibility for approval of fund documentation.

5 The Regulatory Duties Arising from the Provision of Investment Advisory and Management Services

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Financial Services ◽  
Public Investment ◽  
Private Investment ◽  
The United States ◽  
Fiduciary Duty ◽  
Regulatory Regime ◽  
Investment Funds ◽  
Investment Advisers ◽  
The Uk ◽  
Management Services

This chapter examines the regulatory duties of investment managers arising from the provision of investment advisory and management services. Managers of private investment funds that are authorised or regulated as investment advisers or managers can owe regulatory duties arising under the Financial Services and Markets Act 2000 (FSMA) in the UK and the Investment Advisers Act of 1940 in the United States. The chapter begins with a discussion of the UK Financial Conduct Authority’s (FCA) regulation of the conduct of firms authorised under the FSMA, including collective investment schemes, public investment funds, and fiduciary duty in the financial services regulatory regime. It then considers the FCA’s regulatory response to private investment funds as well as the U.S. Securities and Exchange Commission’s compliance programme for investment advisers and managers primarily under the Advisers Act. It concludes with an analysis of financial services regulation of fiduciary duties.

The Law of Private Investment Funds

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Hedge Funds ◽  
Financial Services ◽  
Private Equity ◽  
Global Financial Crisis ◽  
Private Investment ◽  
Investment Fund ◽  
Investment Funds ◽  
Fund Managers ◽  
The Global Financial Crisis ◽  
The Impact

This book provides a clear and concise dual US/UK and pan-asset analysis on the legal and regulatory issues that arise in connection with private investment funds. The book advises on the structuring, formation, and operation of a range of asset classes, including hedge funds, private equity funds, real estate funds, and other non-retail collective investment vehicles. This edition has been revised to reflect the numerous and significant developments in financial services regulation on both sides of the Atlantic since the publication of the second edition. More elements of the Dodd Frank financial regulatory reforms, which increased the scope and reach of regulation applicable to private funds, have been implemented and commented on in this edition. In relation to European regulation, the impact of the commencement of the Alternative Investment Fund Managers Directive (AIFMD) has also now been analysed. The US/UK approach is maintained, but this edition now also includes consideration of third countries, particularly the Middle East and Asia. An entirely new chapter is dedicated to litigation and regulatory enforcement, and some treatment is given to the effects of the global financial crisis, in particular the regulatory response and the changes to negotiating leverage of fund managers and fund investors. The potential impact of ‘Brexit’ on the United Kingdom private funds industry and the future of the AIMFD and European private funds is also examined.

13 Listings of Private Investment Funds as a Means of Mitigating the Governance Challenge

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Stock Exchange ◽  
Private Investment ◽  
Investment Fund ◽  
London Stock Exchange ◽  
Investment Funds ◽  
Fund Managers ◽  
Potential Market ◽  
Securities Exchanges ◽  
Regulatory Functions ◽  
Alternative Investment

This chapter explains how the admission to listing of private investment funds on a recognized exchange can provide a means to address the governance challenge. It first considers the regulatory functions of securities exchanges before turning to the Irish Stock Exchange (ISE), taking into account three areas relevant to the governance challenge faced by private investment funds: general obligations of disclosure, notification of interests and key developments, and communications with unitholders. It then examines how an ISE listing can provide a potential market-oriented solution to the governance challenge. It also discusses listing-related developments at the London Stock Exchange, Alternative Investment Fund Managers Directive depositories, and limitations on the effectiveness of exchange listings.

12 Board of Directors Composition as a Means to Mitigating the Governance Challenge

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Board Of Directors ◽  
Private Investment ◽  
Independent Directors ◽  
Investment Fund ◽  
Executive Directors ◽  
Fund Manager ◽  
Investment Funds ◽  
Key Factor ◽  
The Board Of Directors ◽  
Executive Decision Making

This chapter explains how the composition of the board of directors can mitigate the governance challenge in private investment funds. The dependence of a private investment fund on the fund manager is a key factor in the governance challenge. Directors of the fund vehicle must ensure that their fiduciary duties are adequately fulfilled, especially in circumstances that put them in direct conflict with the fund manager. The inclusion of directors who are independent of the fund manager can serve to better address the governance challenge for all participants in a particular investment fund. The chapter first considers the two complementary functions of independent directors—providing specialized advice and expertise to the executive directors and monitoring executive decision-making—before discussing their duties as well as their effectiveness. It also examines the role of directors in general partner vehicles and the limitation on the effectiveness of independent directors.

The increasing popularity of private funds

2020 ◽  
Vol 21 (1) ◽  
pp. 69-75
Author(s):  
Jerry Koh ◽  
Jonathan Lee
Keyword(s):  
Private Equity ◽  
Private Investment ◽  
Business Environment ◽  
Government Support ◽  
Capital Inflows ◽  
Regulatory Regime ◽  
Investment Funds ◽  
Content Type ◽  
Fund Managers ◽  
Wide Range

Purpose To introduce the various private fund structuring options available in Singapore, an important fund management hub that has increasingly also come to be recognized as a popular fund domicile with its pro-business environment, transparent and robust regulatory regime and government support through tailored investment structures, tax incentives and extensive double taxation treaties. Design/methodology/approach This article provides an overview of the available private fund structures as well as the key legal issues and considerations that fund managers and investors should take into account when structuring a private fund. It also provides a brief summary of the available tax incentive schemes for funds in Singapore. Findings With growth in private market assets under management fueled by private equity funds over the last decade, the use of private investment funds established in Singapore has become a popular means to tap the large capital inflows into Asia. Singapore offers a wide range of fund structures to suit different fund strategies and considerations, including the variable capital company (“VCC”) structure, a legal structure tailored for use as investment funds that was introduced in January 2020. Practical implications There are a range of Singapore private fund structures available with different features, including the VCC, which is a corporate structure that allows for umbrella-sub-fund structures with segregated assets and liabilities, and the limited partnership, which is familiar to international investors and permits a large degree of contractual flexibility. Other structures such as unit trusts and private companies may also be suitable depending on the particular circumstances and objectives of the fund. Fund managers who are exploring setting up fund vehicles to tap Asian capital or to invest in Asia should be aware of the possible options, and their pros and cons. Originality/value Practical analysis and guidance and market commentary from experienced investment funds lawyers.

16 The Global Frontiers of Private Investment Funds

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
United Arab Emirates ◽  
Asset Management ◽  
Financial Services ◽  
Private Investment ◽  
First Century ◽  
Investment Funds ◽  
Private Monitoring ◽  
Fund Managers ◽  
Financial Centre ◽  
Financial Transactions

This chapter discusses the global expansion of private investment funds in the twenty-first century, focusing on two regions: Asia and the Middle East. In particular, it examines questions about the balance of power between fund managers and investors, the role of top-down regulation in non-public financial transactions, and the ability of private monitoring solutions to provide a meaningful alternative to such approaches. The chapter first describes the asset management industry in the United Arab Emirates, with emphasis on the roles of the Dubai International Financial Centre and the Dubai Financial Services Authority, before turning to Saudi Arabia and Islamic investment funds. It also considers Hong Kong and Singapore as centres of private investment funds in Asia, along with passporting and recognition that facilitate the cross-border offering of funds in other participating jurisdictions throughout the continent.

11 Side Letters as a Means of Mitigating the Governance Challenge

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Private Investment ◽  
Fund Manager ◽  
Investment Funds ◽  
Private Monitoring ◽  
Potential Effectiveness ◽  
A Company

This chapter explains how an investor can mitigate the governance challenge by entering a side letter agreement with the fund and/or the fund manager. ‘Side letter agreements’ operate to amend or supplement particular terms within the fund documentation in order to accommodate the particular commercial, legal and regulatory needs of the investors. Side letters can be used to overcome provisions in the constitutional documents of a Partnership PIF or a Company PIF that have been deemed problematic. The chapter first provides an overview of general issues surrounding side letters before discussing the terms of a side letter and how this agreement can help address the governance challenge. It also examines practical issues that must be taken into account when assessing the potential effectiveness of side letters as a private monitoring solution to the governance challenge in private investment funds.

9 US and EU Regulatory Responses to The Global Financial Crisis

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Financial Crisis ◽  
Global Financial Crisis ◽  
Private Investment ◽  
The United States ◽  
Investment Fund ◽  
The European Union ◽  
International Consensus ◽  
Fund Managers ◽  
Investment Advisers ◽  
The Impact

This chapter examines the impact of the 2007–08 global financial crisis on the regulation of private investment funds in the United States and in the European Union. It begins with a review of Dodd-Frank, which can be seen as the U.S. movement towards the international consensus that private fund managers should be directly regulated by the national financial regulator. It then considers Dodd-Frank’s repeal of the so-called ‘private adviser exemption’ previously found in the Investment Advisers Act of 1940, along with its exemption of ‘foreign private advisers’ from registration. It also explains the distinction between ‘US advisers’ and ‘non-US advisers’, Dodd-Frank’s compliance requirements for various types of investment advisers, and Rule 204(b)-1, jointly approved by the Securities and Exchange Commission and the Commodity Futures Trading Commission under the Investment Advisers Act. The chapter concludes with an analysis of the Alternative Investment Fund Managers Directive (AIFMD) and future outlook for Dodd-Frank.

1 Introduction to Private Investment Funds

2018 ◽  
Author(s):  
Spangler Timothy
Keyword(s):  
Corporate Governance ◽  
Hedge Funds ◽  
Financial Services ◽  
Private Equity ◽  
Private Investment ◽  
Fiduciary Duty ◽  
Regulatory Regime ◽  
Investment Funds ◽  
Equity Funds ◽  
Investment Manager

This chapter provides an introduction to private investment funds. It first considers the governance challenge in private investment funds that can be regarded as a need to improve the standard of corporate governance in the legal vehicles that comprise such funds. In particular, it examines the manner in which hedge funds and private equity funds affect the corporate governance of the portfolio companies in which they invest. The chapter proceeds by discussing governance issues arising from the use of partnerships vs. corporations as private fund vehicles, along with the consequences of governance failures and the function of private investment funds. It also analyses legal and regulatory issues surrounding the structuring and operations of private investment funds, the legal and fiduciary duties of the investment manager, and fiduciary duty in the financial services regulatory regime. Finally, it describes alternatives to centralised, top-down regulation of private investment funds.

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