Adoption of the Directive ISA, Was it a compromise? Part.IV

The burden of proof is reversed, the depositary and will be responsible for loss of assets under custody unless he can prove that the loss is the result of an external event, beyond its reasonable control and the inevitable consequences. The proposal adopted, which evokes a "reasonable control" of custodian, is less severe than the original text. The depository will retain the option of using the sub-delegation, initially excluded, to transfer its contractual responsibilities, which will be accompanied by due diligence work and reporting to the authorities further.

The lobbying industry seems to have paid to alleviate the new obligations. The profession can still expect some changes coming about the chain of responsibility, because it seems that the Commission expected the adoption of the Directive before opening the ISA site clarifying the responsibilities of the holders of UCITS, and this is likely to make changes at least as demanding.


The vote by the European Parliament Directive ISA shows how the negotiations were laboring among the proponents of a regulatory status quo and those seeking tighter control of the financial industry. As usual all the European players have found a compromise of the confession of all is a "lesser evil". But unlike the UCITS IV Directive which was carried by the entire profession, this directive was made reluctantly ISA and its scope is thereby limited. While hedge funds are going to have a regulatory framework in Europe but it is relatively flexible. Nevertheless, the establishment of ESMA is a breakthrough that will require the supervisor to give the EU means to realize its ambitions to acquire a globally recognized authority. The problematic status of depositories is idle and this will invite themselves to the agenda of the future Directive UCITS V. The vote of the Directive ISA is a first step and the path is far from complete.

Adoption of the Directive ISA, Was it a compromise? Part.III

The agreement on the principle of supervision by ESMA passport allows France to take the chairmanship of the G20 in a strong position on the progress of work relating to the supervision of European financial markets.

Directive ISA ruled on the delegation of function of management companies and hedge funds of their depositors. Overall it adds considerably to its terms.

The delegation function is to use a third party to perform the tasks for which an actor is originally mandated. At the management company of AIF, the delegation of two types of functions, portfolio management and risk management, will now be regulated by the Directive. A management company will want to use will now justify an objective reason to use it in order to increase efficiency in the conduct of its business. But it should also be noted that the legislative framework has eased since the adopted version includes the possibility of using the sub-delegation, the possibility of missing the European Commission proposal of April 2009. However, the reporting requirements are considerably increased and the Directive specifies that the management company may delegate to the verge of becoming a "mailbox company", a term already used in the UCITS Directive.

At the depository, the Directive makes a significant change in its area of responsibility by delegating its functions. It is imposed an obligation of result as it was until now under an obligation of means (having led the due diligence necessary to meet the quality standards expected). Although Made off has already dramatically changed the spirit of the obligations to be met by depositories, with the conviction in France of two players to repay funds whose assets were delegates at Lehman Brother, nothing was previously written in this form. The consultation on UCITS depositaries, led by the European Commission during the summer of 2009, had already identified a need for clarification of the responsibilities of trustees. It seems that the message was taken up for hedge funds.

Adoption of the Directive ISA, Was it a compromise? Part.II

The main idea of the Directive is to oversee the marketing within the EU funds alternative:

* Non-European societies and non-domiciled in Europe;
* European societies but not domiciled in Europe;

through the award of a European passport attached to the funds must undergo an enhanced transparency, the image of what the UCITS IV Directive (Undertakings for Collective Investment in Transferable Securities) is doing for European UCITS funds.

Few countries has long opposed a plea in the European passport, claiming that only a passive marketing of these funds along with the status of private placement is appropriate, given their investment strategy and level of risk. The main risk cited to support this position was to see a licensing procedure more or less flexible according to each European country. Some might be tempted to offer a more flexible regulatory framework to capture the domiciliation of funds at the expense of other countries, with the consequence of pulling down the quality of the passport. In the final stages of negotiations, France has finally decided on the European passport, provided that it is more strict, that is to say, supervised by the future European authority market supervision (ESMA) who will take office on 1 January 2011 (and not only by the public authorities of member countries). The passport will be introduced from 1 January 2013 to cohabit with the national authorities until 2016 to allow time for ESMA to adjust its standards. ESMA will ensure that non-European countries, host of hedge funds, comply with the principles of the regulations in force within the EU. It is also anticipated that in 2015 the Commission makes an assessment of the implementation of the directive and to pronounce on a possible extension of the powers of ESMA.

Adoption of the Directive ISA, Was it a compromise? Part.I

Proposed by the European Commission in April 2009, Directive ISA on hedge funds (Alternative Investment Fund Managers) was passed overwhelmingly by Parliament 11 November 2010.

The draft Directive is that born of the political will to increase the transparency and regulation of the financial sector following the 2008 crisis.

In this general hedge funds have been pilloried particularly because of their opacity and systemic risks they might pose to financial markets and on whole sectors of the economy. Designated block, the funds "alternative" yet includes wide range of industries: venture capital, buyout capital, real estate funds and hedge funds, which had all the complicated drafting of common rules in these sectors. The main projects of the Directive focused on reducing systemic risk, on increasing the power of supervisory authorities on the improvement of investor protection on earnings and on the development of a European regulated alternative management.

Lengthy discussions on this Directive have been intense lobbying by supporters of the status quo countries (UK, Ireland ...) and those advocating stronger regulation of the financial system (France, Germany, ...). Michel Barnier, European Commissioner for Internal Market and Services, has spent all his diplomacy to bring together the viewpoints around a unifying text; But at what price?


The treatment of third countries was one of the blocking points of discussion in the Council of the European Union given its potential impact in London, second in from hedge funds, representing one trillion Euros of Assets under management at end 2008.

Time mentioned, a simple refusal of the marketing of hedge funds not registered in Europe would have a major impact on the industry with approximately 60% of hedge funds are domiciled in countries offshore cons less than 5% in Europe.

The Effects of Adoption of Directive ISA Part.III

This framework has become particularly important for investors after the crisis. Indeed, many people who keep a bitter taste for excessively long periods of redemption given by some hedge funds, sometimes by breaking the terms of liquidity initially set. However, the entry of this new type of management strategies in a world hitherto occupied by standardized strategies and has known the risk of blurring the recognition gained by the UCITS label. Alternative strategies in place may pose risks not previously present in UCITS funds, including through use of complex derivatives. When using these instruments has been expanded with the publication in March 2007 of the Directive on eligible assets for UCITS III funds in the funds market Newcits was much narrower. For this reason, the introduction of funds from investors Newcits unskilled, which by definition cannot lead themselves a thorough due diligence on their investments, will likely require a level of information about the risks higher. The principles of Markets in Financial Instruments Directive should nevertheless partly to help distribute these products exclusively to European investors who understand.

The adoption of the Directive ISA has significant effects. By imposing new constraints on the personnel of hedge funds, it sets up very restrictive measures that will harm may be a first step in managing European alternative. But the whole directive, which provides greater transparency, hedge funds could boost the long term. Development funds for its Newcits represent a significant change in the landscape management. But the UCITS label must remain strong and its reputation and why the danger posed by the funds must be Newcits of attention. In fact behind the possibility of allowing individual investors in Europe to access a range of wider product, allowing them to diversify their investments, hides a real risk of cannibalization of the label. However, the readability of UCITS is a major asset for marketing to international investors. It is likely that the industry will look closely at this intrusion of hedge funds that can really tarnish the image of the dearly bought by European management.

The Effects of Adoption of Directive ISA Part.II

The novelty is real alternative for players, but already partially implemented by many of the banks after 2008 under pressure from governments. Part 3 on the CRD remuneration’s extension is to hedge funds relatively quick. A substantial increase in the fixed part is to provide for categories of personnel involved in hedge funds, like what the investment banks have made since 2009 in anticipation of regulatory restrictions bonuses.

In the market for asset management, anticipation of the adoption of the directive has had the effect of fostering the development of a new type of funds, qualified by the industry "Newcits. These funds are in place alternative management strategies usually developed by hedge funds in the regulatory framework.

The combination of an uncertain legal environment and the ability to raise funds from a new segment of investors, have decided the alternative managers to develop their strategy through UCITS vehicles. The entry into force of the UCITS IV Directive in July 2011, and the possibility for UCITS to receive a European passport for marketing in the EU could also weigh in the choice. This enthusiasm is reflected in the numbers: between September 2008 and May 2010 the number of funds Newcits almost doubled, from 270 to 520 funds and assets under administration from 45 to nearly 90 billion Euros.

Symbolizing the development of this type of fund, the index "Ucits HFX Index" to track the overall performance of these funds, was launched in February 2010. In view of investors, this new category of funds has some attractive compared to traditional hedge funds: diversification, leverage, valuation and liquidity are strictly supervised.

The Effects of Adoption of Directive ISA Part.I

Recently adopted by the European Parliament, the directive will come into force ISA in January 2011. All decisions taken under the ISA is a turning point for the industry of hedge funds because of restrictions imposed.


The national authorities of EU countries have a period of two years to transcribe those rules in their legislation, particularly on the issue of the European passport. However there is already fairly immediate impact in some areas. This is particularly the case for compensation in hedge funds and development of a new market, the UCITS alternative points on which we intend to return.


The compensation of hedge funds is generally of the type "2 / 20," that is to say 2% management fee and 20% of the outperformance retained by the manager. In terms of compensation, important work had already been conducted during the update of the directive regulating the implementation of Basel II (CRD 3 - Capital Requirements Directive - adopted by the European Parliament in July 2010). Its conclusions were largely contained in the Directive ISA. The main change is to align the distribution of salaries on the level of risk and lifecycle funds managed, and this with special attention on the variable. It found that 40% to 60% (depending on its size) of the bonus will be deferred over a period of 3 to 5 years and at least 50% should be distributed in shares themselves kept for a minimum period. Thus, for a variable compensation of € 100 K, a maximum of € 30k will be paid in cash the first year. Moreover, in case of negative performance of the fund, the amounts paid by the fund to employees may be partially recovered through mechanisms of penalty. The directive was not set up a ratio between the fixed and variable, merely specify that the two must be balanced, and fixed high enough to allow the non-payment of a variable, which guarantee payment is now banned. Because of work already conducted in CRD 3, Directive already provides a great level of detail through an appendix describing the new remuneration arrangements.