Authorised Closed-ended Investment Schemes
Under the Protection of Investors (Bailiwick of Guernsey) Law, 2020 ("the POI Law") closed-ended schemes are declared as authorised or registered under Section 8 of the POI Law.
The term 'Scheme' in investment regulatory laws, rules and regulations has similar meaning to the term 'Fund'. By means of illustration, a mutual fund and a collective investment scheme have similar attributes.
Specific criteria and principles
The following information is in addition to the guidance found at New Applicants.
Three-stage application process
Unless applications can be classed as Qualifying Investor Funds or Registered Collective Investment Schemes, there is a three-stage process which applies to all classes of Closed-Ended Investment Schemes.
- Stage One: Outline Authorisation, following a review of Form GFA;
- Stage Two: Interim Authorisation, following a review of Form APC;
- Stage Three: Formal Authorisation, once all issues have been resolved and final documentation has been received.
Incorporated Cell Companies (“ICCs”) and Protected Cell Companies (“PCCs”)
Funds to be established as an ICC or a PCC require our separate formal consent in order that the vehicle can be registered with the Guernsey Registry. Once we have issued outline authorisation, the applicant may request our consent to establish the ICC or PCC.
Every Guernsey authorised closed-ended investment scheme must appoint a designated administrator/manager to conduct day-to-day administration. The designated administrator/manager must be established in Guernsey and licensed under the POI Law.
Designated administrators/managers are normally selected from firms with an established track-record in the business. Where an applicant seeks to appoint a newly licensed entity, the proposal to appoint must be discussed with Authorisations in advance of a formal application being submitted.
Applicants must engage with the prospective designated administrator/manager at an early stage in the application process, as those parties are required to countersign the application forms: this is to signify their support of the application, and also demonstrates to the Commission that they are fully aware of the disclosures contained within the prospectus.
There is no requirement to appoint a designated custodian/trustee to undertake custodial duties. However, arrangements for the custody of assets must be provided, and details of the same disclosed in the fund's documentation.
Where Promoters and their principals are not known to the Commission but are to be associated with the scheme, additional documentation will need to be submitted, as specified on the New Promoter’s Introductory Checklist.
If the promoter is already known to the Commission, or has received a positive response after submitting a New Promoter's Introductory Checklist, the amount of documentary information required by Form GFA (and the time taken for it to be processed) should be considerably reduced.
Scheme particulars (or equivalent offer document) must evidence:
- An adequate spread of risk;
- Comprehensive risk warnings;
- That the investor profile is consistent with the fund’s objectives and minimum subscription levels;
- That all material facts, including fees and the names of associated parties, are fully disclosed in the scheme's particulars.
The above is indicative rather than being an exhaustive list; other criteria may need consideration.
Fund application pack
Application form and supporting documentation: Scan the fully completed application form signed and dated by the relevant officers of the applicant and supporting documentation, as itemised in the application form, together with an explanatory covering letter scheduling the contents and send electronically to [email protected].
Stage One: Form GFA;
Stage Two: Form APC;
Stage Three: Final documents as requested by Authorisations.
The non-refundable application fee must be submitted at Stage Two.
Stage One - Outline Authorisation
Outline Application Form
A fully completed, signed, and dated Form GFA together with the supporting documentation required by the form. Submission is usually made by the designated manager, fund manager, or legal adviser acting for the applicant.
Plans should be well advanced prior to the application's submission. Any provisional matters should be clearly stated. Late changes to a scheme may result in the application being delayed, or in extreme cases, refused.
No prospectus (or equivalent offer document) should be submitted at Stage One, as such data will not be reviewed.
No application fee is to be submitted at this stage.
If all parties meet the policy of selectivity and the detailed proposals appear acceptable, the scheme will receive a letter granting Outline Authorisation. If Outline Authorisation cannot be granted, a letter requesting further information or clarification will be sent.
Stage Two - Interim Authorisation
A fully completed, signed, and dated Form APC. The form includes disclosure checklists which adhere to the requirements of the scheme's rules. The applicant must state how each requirement of the disclosure checklist is satisfied: this is done by identifying the page number of the prospectus upon which a relevant disclosure may be found. Where documents do not adequately satisfy a stated requirement, we will seek clarification and expansion. This will delay the assessment process.
If material changes have been made to the proposals since the completion of Form GFA this must be clearly stated when the application form is submitted. Such changes may result in the application being delayed.
- Prospectus: A near-final draft of the prospectus (or equivalent offer document) must be submitted. Multiple re-drafts are indicative of insufficient preparation by the applicant in advance of submission and will delay the assessment process. If amendment is necessary, the revised prospectus must be black-lined with reference to the previous copy submitted to us. Revised drafts which are not black-lined will not be reviewed;
- Investor application form: A copy of any form that the fund will employ.
Derogations or modifications
The onus is on the applicant to identify whether there is a need to apply for derogations from, or modifications of, the rules. Detailed requests are to be made at this stage explaining the necessity and demonstrating how investor protection will be maintained.
The non-refundable application fee is payable at this stage.
If all the proposals appear acceptable, the fund will receive a letter granting Interim Authorisation. If Interim Authorisation cannot be granted a letter requesting further information or clarification will be sent.
Stage Three – Formal Authorisation
Clarification and submission of:
All points raised in the Outline and/or Interim letters must be resolved to the satisfaction of the Commission before Formal Authorisation is considered.
Late changes to the scheme (for example, the introduction of new parties) will cause proportionate delays to any Formal Authorisation and may, in extreme cases, result in Formal Authorisation being refused.
Evidence that the scheme has been formed, e.g. a certificate of establishment or incorporation.
Receipt of dated and signed, or certified copies of all final documents:
Constitutive documents: These may include:
- Trust Deed;
- Memorandum and Articles of Incorporation;
- Management Agreement;
- Administration Agreement;
- Custody Agreement;
- Investment Advisory Agreement;
- Registrar's Agreement;
- Delegation Agreement.
If all the proposals appear acceptable, the application will be referred to a decision-maker.
We aim to respond as follows:
Stage One: issue Outline Authorisation within 28 business days of receipt;
Stage Two: issue Interim Authorisation within 10 business days of receipt;
Stage Three: issue Formal Authorisation within 7 business days of receipt.
The timeframes are indicative only; we are not in any way bound by them.
Successful applicants will be issued with authorisation in the form of a letter.
Conditions and derogations
Any formal conditions to be imposed upon the authorisation of closed-ended investment schemes, along with any derogations from, or modifications of, the rules will be incorporated into the final authorisation letter.
Upon authorisation, the annual fee becomes due. This is reduced pro rata in the first year: an invoice will be sent with the authorisation letter.
The designated administrator/manager is normally deemed responsible for the payment of all fees.