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MinterEllison’s funds management team is experienced in establishing and advising funds management clients across a range of asset and industry sectors including equities, fixed income, securities, development capital, property (commercial, retail and industrial), integrated tourism and residential, minerals and energy, healthcare and infrastructure. We have strong industry understanding and extensive experience in wholesale, retail and ASX listed products.
Our clients include issuers and distributors of retail funds, wholesale funds, master trusts, super funds, life products and ‘wrap accounts’, as well as listed A-REITs and foreign managers acting under mandates for local institutions.
Working across a range of industries and asset classes, and multiple jurisdictions, our funds management team covers all aspects of fund formation, structuring, investments, exits and the resolution of disputes.
We have established funds in Australia and all key international locations including Luxembourg, Ireland, the Cayman Islands, Jersey, US (Delaware) and Guernsey. We have structured funds as segregated portfolio companies and limited liability partnerships, dealing with foreign fund administration and foreign regulation.
We advise on promoting and marketing funds to all types of investors on a global basis and deal with jurisdiction specific investor issues for European, US and Asian investors. We use our transaction experience to provide sound commercial and legal understanding of both the investment manager’s objectives, and investor requirements.
Our experience covers assisting with regulatory issues relating to investments and fund operation, including foreign investment regulation and financial services licensing and regulation. We assist our clients in bringing innovative products to market – hedge fund structures, derivatives-based products, exchange-traded funds and private equity funds – which often require careful negotiation with regulators such as the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulatory Authority (APRA), the Australian Securities Exchange (ASX) and the Australian Taxation Office (ATO). Our knowledge of and relationships with regulators enables us to tailor our applications and deal more efficiently with these matters.
The 2016-17 Federal Budget, delivered on 3 May, included a number of announcements affecting businesses operating across international jurisdictions, including a new Diverted Profits Tax and two new types of collective investment vehicles. Our team dissects those key issues and more, exploring their impact on businesses in Australia.
The Government has announced the introduction of two new types of collective investment vehicles (CIVs) as a tax-effective alternative to current Australian pooled investment trusts. The availability of these new CIVs is expected to significantly enhance the ability of Australian fund managers to offer their products to international investors.
The Senate Economics References Committee has released 'Bitter Harvest', a comprehensive report on agribusiness managed investment schemes (Agribusiness Schemes). The report has been prepared in response to the recent collapse of a number of major Agribusiness Schemes and is primarily concerned with the significant and widespread financial losses incurred by the retail investors of those schemes.
The outlook for Australia's corporate/M&A markets in 2016 is positive, with the increased deal volumes of 2015 likely to drive continued appetite for activity across most sectors in the next 12 months. Read our top 10 predictions for M&A in 2016.
The trend towards divestment of stand-alone derivative portfolios, primarily as a result of increasing capital charges being required for some derivative positions, has opened up an opportunity for non-prudentially regulated entities – such as managed funds – to invest directly in this asset class.
There is momentum behind the recognition of financial risks and opportunities associated with climate change and environmental, social and governance (ESG) factors in over the horizon investment decisions. This is driven not only by ethical shareholder groups but increasingly on the international scene by leading institutions who are proactively engaging with the associated valuation, risk management and disclosure issues. These changes shape debate around the investment of client funds in Australia (where there is no member-direction) and could be the tipping point that mainstream trustees and portfolio managers would be ill-advised to ignore.
Recent amendments to extend the profits tax exemption for offshore funds to private equity funds is a proactive move by the Hong Kong Government to encourage private equity fund managers to set up new, and expand existing, businesses in Hong Kong.
Private equity managers can now perform more asset management activities in Hong Kong without the risk of their offshore private equity funds incurring a Hong Kong profits tax liability, although they still need to keep in mind the licensing implications of increasing management activity conducted in Hong Kong.
The rules have been released that govern the new Significant Investor Visa (SIV) regime and introduce the Premium Investor Visa (PIV) regime. The new rules came into effect on 1 July 2015.
Austrade and the Department of Immigration and Border Protection (DIBP) have announced the new framework for complying investments for significant investor visa (SIV) and premium investor visa (PIV) applications to take effect on 1 July 2015.
The ASX has amended its Operating Rules to enhance disclosure requirements and facilitate the expansion of non-conventional exchange traded funds (ETFs), such as synthetic products and foreign collective investments, on ASX AQUA. Current and prospective issuers of ETFs and Managed Funds on ASX AQUA need to understand the new requirements and ensure compliance with them.
Significant Investor Visa (Subclass 188) nominations (and invitations to lodge a formal application) will be temporarily suspended from 24 April 2015 until 30 June 2015, the Department of Immigration and Border Protection (DIBP) has announced.
Austrade and the Department of Immigration and Border Protection (DIBP) are developing a new framework for the Significant Investor Program (SIV) visa, including a new Premium Investor Visa (PIV) category).
The Australian Government has released a draft of the internationally negotiated rules and operational arrangements for the Asia Region Funds Passport for public consultation.
Recent publicity surrounding the exclusion or divestiture of stocks in carbon-intensive industries shows that leading investors are reviewing the financial risks (and opportunities) associated with climate change. However, with debate on climate change often pitched around ideological poles, many superannuation fund trustees are struggling to translate these developments into prudent governance practice, consistent with their statutory and general law duties. This article looks beyond the political debate to consider what recent developments on climate change mean for the legal obligations of fund trustees, and the implications for boardroom practice. In doing so, they note that focus on the outcomes of investment (or divestment) decisions may have obscured the key legal issue – that of diligent process.
The Corporations and Markets Advisory Committee (CAMAC) has released a broad discussion paper to review the establishment and management of schemes, which opens up all aspects of the legislative structure. This is a continuation of the review which produced the CAMAC July 2012 Report, and may provide a useful indication of the issues that the Financial System Inquiry will consider in relation to managed investment schemes.
ASIC issued Class Order [CO 13/1621] on 7 January 2014 to exempt responsible entities (REs) from the application form requirements of section 1016A.
Today, the Treasurer announced an order under the Foreign Acquisitions and Takeovers Act 1975 (Cth) blocking Archer Daniels Midland's proposed acquisition of GrainCorp on the basis that it is contrary to Australia's national interest. The Treasurer could have allowed the proposed acquisition to proceed with or without conditions but chose not to do so.
The recent launch of Shanghai Pilot Free Trade Zone (SHFTZ) is set to bring great business opportunities for both foreign and domestic investors in relation to their inbound and outbound investments.
The Australian Securities and Investments Commission (ASIC) has released class order relief for AQUA market exchange traded funds (ETFs) as proposed and described in its consultation paper (CP196) released in December 2012.
The new 'hedge fund' definition as set out in ASIC's Class Order 12/749 (as amended from 3 October 2013) is set out below together with some comments in relation to the changes.
In a move that will be welcomed by the managed funds industry, the Australian Securities and Investments Commission (ASIC) has narrowed the definition of 'hedge fund' in Class Order 12/749 with effect from 3 October 2013. ASIC has also amended and re-issued Regulatory Guide 240 – Hedge Funds: Improving Disclosure (RG 240) to reflect the changed definition.
On August 22 2013, the Ministry of Commerce announced that the State Council of China had approved the establishment of the Shanghai Pilot Free Trade Area (SHFTA) with the intention of formally establishing the area by the end of September 2013. The SHFTA will create potential investment opportunities for foreign investors across industry sectors in China. International companies should monitor its evolution and consider taking advantage of favourable investment conditions as they arise.
Earlier this week the Corporations and Markets Advisory Committee released a discussion paper, Crowd Sourced Equity Funding.
On 12 June 2013, Senator Stephen Conroy and Ministers Greg Combet and David Bradbury issued a joint media release announcing two reviews to support Australia's burgeoning capabilities in cutting edge digital innovation. As part of these reviews, the Government will undertake consultation on Australian crowd-sourced equity funding that will consider 'whether Australia’s corporations law properly regulates and facilitates [equity crowd funding]'.
Minter Ellison is at the forefront of developments in the complex, dynamic and highly regulated financial services sector. Our financial services team members are active participants in key services industry associations, contributing to the policy debate and providing input on regulatory change. Here, some of our leading practitioners analyse and comment on the latest tranche of regulations, proposed reforms and reports that are laying the foundations for a stronger financial services sector in Australia.
On 28 April 2013, the State Administration of Foreign Exchange in China together with its local counterparts, issued the Measures for Administration of Foreign Debt and the Operating Guidelines for Administration of Foreign Debt Registration. The Measures and Guidelines are designed to simplify approval processes for and strengthen monitoring of foreign debts in China.
On 6 May 2013, the Australian Securities Exchange issued proposed amendments to the Listing Rules to facilitate rights issues. The Exposure Draft includes amendments to shorten the timetables for entitlement offers and to reduce the number of circumstances in which issuers would need to apply to the ASX for waivers. The amendments intend to facilitate capital raisings by addressing recent market developments and regulatory innovations.
As part of the federal government's 'Stronger Super' package of reforms, new portfolio holdings disclosure obligations will be imposed on trustees of registrable superannuation entities (RSEs). The federal government has now released draft regulations which set out the manner in which portfolio holdings will need to be disclosed.
The Personal Property Securities Act 2009 (Cth) and new legislative regime governing security interests in personal property have presented an interesting challenge to our clients and the broader legal community. In this update we discuss the key practical issues facing businesses operating under the new regime and provide tips on how to deal with them.
A further tranche of tax legislation to exempt eligible foreign funds from Australian income tax has been released for public comment. This legislation (once enacted) will extend the Investment Manager Regime (IMR) exemption, to apply from 1 July 2011 (for the 2011- 2012 and later income years).
As part of the federal government's 'Stronger Super' package of reforms, from 1 July 2013 new portfolio holdings disclosure obligations will be imposed on trustees of registrable superannuation entities and other parties investing or holding superannuation monies.
The Australian Securities & Investments Commission has released ASIC Consultation Paper 194 setting out proposed financial requirements for custodians, responsible entities holding scheme assets, IDPS providers and wholesale trustees.
Crowd funding or crowd-sourced fundraising is a new and rapidly evolving form of capital raising that is likely to be actively embraced by small enterprises. Broadly, it encompasses schemes that seek to raise funds, typically for business proposals and 'start up' companies, through donations from internet users.
On 4 October 2012 the Victorian Court of Appeal handed down its appeal decision in 360 Capital RE Limited v James Watts & Ors [2012] VSCA 234 regarding the ability of responsible entities to unilaterally amend scheme constitutions in accordance with section 601GC(1)(b) of the Corporations Act 2001 (Cth).
ASIC has released a consultation paper on the conflicted remuneration provisions under the Future of Financial Advice (FOFA) legislation. Consultation Paper 189 (CP 189) invites public feedback with submissions due by 9 November 2012.
The Government has also finally released grandfathering regulations for payments by platforms. It has also indicated that it will not be making the draft grandfathering regulation released in May 2012.
On 16 July 2009, the Australian and New Zealand Governments entered into the Trans-Tasman Retirement Savings Portability Arrangement (Arrangement).
The Arrangement was stated as having the intention of enhancing a seamless trans-Tasman labour market by providing the ability for retirement savings to be transferred between an Australian complying superannuation fund and a New Zealand KiwiSaver scheme, with minimal compliance and administration costs. The Arrangement is subject to a number of restrictions, as outlined in the Arrangement document.
ASIC has revisited the long standing guidance contained in Regulatory Guide 134: Managed investments: Constitutions and released Consultation Paper 188: Managed investments: Constitutions – Updates to RG 134.
Following discussions and consultation with the industry, the Corporations and Markets Advisory Committee (CAMAC) has published its report on Managed Investment Schemes providing recommendations to the Government on various matters concerning the regulation of managed investment schemes under Chapter 5C of the Corporations Act.
This alert outlines some of the key proposals recommended by the CAMAC.
The Australian Securities and Investments Commission (ASIC) has announced the outcomes of its recent review of responsible entities which addresses registered managed investment schemes in the unlisted property sector.
Recently, the Australian Securities and Investments Commission released Report 291: Custodial and Depository services in Australia, which sets out ASIC's views on 'good practice' for responsible entities, platform operators, brokers and custodians on a range of issues relevant to custody of assets. It also signals other matters that ASIC intends to consult on with a view to updating its current guidance. Shortly prior to the release of ASIC's Report, the European Commission released its proposal for amending Directive 2009/65/EC on the remuneration policies of management companies and depositary functions relevant to undertakings for collective investment in transferable securities We summarise the issues and proposals raised in ASIC's Report and the EC's proposal in this update.
ASIC has issued guidance to assist issuers of superannuation products and simple managed investment schemes comply with the shorter product disclosure statement (PDS) regime. The shorter PDS regime commences fully on 22 June 2012 and is designed to make PDSs shorter and simpler, and help consumers compare financial products more easily. Issuers of new products have been required to comply with the regime since 22 June 2011 and other product issuers have been able to voluntarily opt-in.
In prior years trustees had until 31 August to complete distribution resolutions for the year ended 30 June. In the wake of recent court decisions the Australian Taxation Office (ATO) has scrapped this concession. This year resolutions must be completed by 30 June, which is less than 14 business days time!
The Australian Government has released draft regulations under the yet-to-be-passed Future of Financial Advice (FOFA) legislation. The regulations have been released in two tranches, and cover:
The report by Mr Richard St John into compensation arrangements for consumers of financial services, released on 8 May 2012, has recommended the consideration of key reforms which could have a significant impact on the financial sector. We analyse the report and discuss its key recommendations and their implications for licensees, product issuers and consumers.
The Australian Securities and Investments Commission (ASIC) has released Report 282 Regulation of exchange traded funds which explains its position on various regulatory aspects of exchange traded funds (ETFs) and outlines the key areas it will focus on as the rapidly growing ETF market continues to develop in Australia.
Following a review of the platforms sector conducted in 2011, the Australian Securities and Investments Commission (ASIC) has released a Consultation Paper proposing a number of changes to its investor directed portfolio service (IDPS) policy.
On 10 November 2011, ASIC issued Regulatory Guide 228: Prospectuses: Effective disclosure for retail investors (RG 228) to addresses previous issues with prospectus disclosure, especially the need to provide retail investors with relevant information in a form that can be readily understood. This Alert highlights the key elements of RG 228.
ASIC has issued revised financial requirements for responsible entities of managed investment schemes. The new provisions become operative on 1 November 2012 for both existing and new responsible entities.
The Supreme Court has rejected the application of the Premium Income Fund case interpretation of section 601GC(1)(b) of the Corporations Act 2001 (Cth) (Corporations Act) and confirmed that the responsible entity had the power to make issue price amendments to scheme constitutions without unitholder approval. In doing so, the Court also provided some valuable guidance regarding a responsible entity's fiduciary duties to act in the best interests of members.
Yesterday, the Australian Government released its Stronger Super Information Package. The Assistant Treasurer, The Hon Bill Shorten MP stated that he expects the Stronger Super legislation to be released in tranches over the next 9 months, with consultation to be undertaken on each tranche. The first tranche dealing with MySuper is expected to be released within a month.
Fin 48 certainty for foreign fund managers