Each Guernsey domiciled authorised/registered Open-Ended Investment Scheme must have a designated manager (who conducts the day-to-day administration of the fund) and a designated trustee/custodian (who undertakes custodial duties and conducts oversight on the manager). Both these designated persons must be resident in Guernsey and are subject to the Commission's regulation. Normally, a new fund will choose its service providers from the existing designated persons.
Applying for the Authorisation of an Open-Ended Collective Investment Scheme
Rules which apply to the operation of authorised open-ended collective investment schemes:
Unless they can be classed as Qualifying Investor or Registered Funds, which are both subject to a turnaround time of 3 working days, (see Fast Track Application Regimes), there is a three-stage process which applies to Class A, Class B, and Class Q Open-Ended Investment Schemes.
Stage One: Outline Authorisation, following a review of Form GFA
Stage Two: Interim Authorisation, following a review of Form APA
Stage Three: Formal Authorisation, once all issues have been resolved
Stage One - Outline Authorisation
This entails the submission of a fully completed Form GFA and such supporting documentation as required by the Form.
Form GFA is usually submitted by the designated manager, fund manager or advocate acting for the promoter, but requires the supporting signature of the proposed designated manager and the proposed trustee/custodian. Completion of the Form requires basic details of the scheme structure and objectives, the promoters and associated parties, fees to be charged and any unusual features of the scheme. All questions should be completed and the form signed and dated. If information cannot be provided at this stage (for example, if plans are provisional) this should be stated, but late changes to a scheme may result in the application being delayed, or in extreme cases, refused. Where parties not known to the Commission are to be associated with the scheme, additional documentation will need to be submitted, as specified on the form. If the promoter is already known to the Commission, or has received a positive response after submitting a New Promoters Introductory Checklist, the amount of information required by Form GFA (and the time taken for it to be processed) should be considerably reduced.
It is not necessary to submit a prospectus (scheme particulars, or equivalent offer document) at this stage as it will not be reviewed by the Commission.
If all parties meet the policy of selectivity and the detailed proposals otherwise appear acceptable to the Commission, the scheme will receive a letter granting 'Outline Authorisation'.
If outline authorisation is not to be granted immediately, a letter requesting further information or clarification will be sent.
Stage Two - Interim Authorisation
The applicant should submit a near-final draft of the prospectus for the scheme (or equivalent offer document), together with a copy of any application form the scheme will employ and the non-refundable application fee. Applicants are advised not to submit multiple redrafts of the prospectus, as this absorbs IBD staff time, requires several rounds of correspondence and will delay the application. Any additional drafts which are submitted must be black-lined with reference to the previous copy submitted to the Commission. Revised drafts which are not black-lined will not be reviewed.
The applicant should also submit a fully completed and signed Application Form with the prospectus:
APA For a Class A scheme, plus drafts of all constitutive documents
APB For a Class B scheme
APQ For a Class Q scheme
The application forms include disclosure checklists which adhere to the requirements of the Class A, Class B or Class Q Rules. Any matter specified by the schedules to be included in the prospectus must be so included. The applicant is asked to indicate on the disclosure checklist how each requirement is satisfied: this is done by identifying the page number of the prospectus upon which a relevant disclosure may be found. Where the documents do not adequately satisfy a stated requirement (or IBD staff have been unable to find adequate reference) a point will be raised with the applicant.
The Application form requires a signature by each of the proposed designated persons for an open-ended scheme which will demonstrate to the Commission that all parties are fully aware of the detail contained within the prospectus.
If the proposals have changed to a material extent since the completion of Form GFA, this should be brought to the attention of IBD staff at the time the application form is submitted. Such changes may result in the application being delayed.
The general criteria the Commission will consider when reviewing the scheme particulars are:
• Is there is an adequate spread of risk?
• Are there comprehensive risk warnings?
• Is the investor profile consistent with the scheme's objectives and minimum subscription levels?
• Are all material facts, including fees and the names of associated parties fully disclosed in the scheme particulars?
Please note that the above is not exhaustive and other criteria may need consideration.
It is the Commission's intention to review the prospectus and disclosure checklist and issue a letter granting Interim Authorisation within ten working days of receipt. The ten-day period is indicative and, although every effort will be made to adhere to it, the Commission cannot in any way be bound by it.
Any requests for derogations or modifications from applicable rules should be made to the Commission at this stage. Please note the onus is on the applicant. The Class A Rules may not be modified and no derogations will be granted.
All points raised in the Outline or Interim letter must be resolved to the satisfaction of the Commission before formal authorisation can be considered. Applicants should be aware that late changes to the scheme (for example, the introduction of new parties) will cause proportionate delays to any final authorisation, and may in extreme cases result in authorisation being refused.
Stage Three - Formal Authorisation
Formal authorisation is granted only when all the following conditions are satisfied:
• All outstanding points and queries have been resolved to the satisfaction of the Commission and all requested information received.
• The Commission has received a certified copy of the final version of the prospectus.
• Evidence that the scheme has been formed, e.g. a certificate of incorporation.
• The Commission has received signed or certified copies of all final constitutive documents. Constitutive Documents would include, for example: Trust Deed, Memorandum and Articles of Incorporation, Management Agreement, Custodian agreement, Administration Agreement, Investment Advisory/Management Agreement, Registrar's Agreement, Sub-Custodian Agreement, Delegation agreement.
• In the case of a Class A or Class B scheme, the Commission has received a certificate from an approved law firm confirming that the principal documents and scheme particulars comply with such rules as relate to their contents or giving such confirmation subject to such exceptions as are detailed in the certificate
• In the case of a Class Q scheme, the Commission has received a letter from the Manager certifying that the prospectus complies with the Class Q Rules or giving such confirmation subject to such exceptions as are detailed in the certificate.
Any formal conditions to be imposed upon the authorisation of Open-Ended Investment Schemes or any derogations from or modifications of the Rules will be incorporated into this letter. Applicants should note that the Class A Rules may not be modified and no derogations will be granted. An annual authorisation fee is payable, but is reduced pro rata in the first year of authorisation. The amount due will be stated in the authorisation letter and will be followed by the posting of an invoice within five business days.
The designated manager is normally deemed responsible for payment of all fees. Current fee scales are set out here
Incorporated Cell Companies and Protected Cell Companies
For an Incorporated Cell Company (ICC) or Protected Cell Company (PCC) a separate formal approval needs to be issued following outline authorisation in order that the vehicle can be registered with the Guernsey Registry. This will not normally be granted until the scheme has reached "outline" stage and requires a specific request from the applicant.