Article 36 of AIFMD - Depositary Guidance Notes and Feedback Statement

Article 36 of AIFMD provides that EEA Member States may allow an authorised EEA AIFM to market to professional investors, units or shares of a non-EEA AIF in their territory. This marketing is subject to a number of restrictions including amongst other things, a requirement that the AIFM ensures that one or more entities are appointed to carry out the duties referred to in Article 21(7) (monitoring of cash flows of the AIF), (8) (safe-keeping or asset verification of the AIF assets, if applicable) and (9) (oversight of the AIFM operations) of AIFMD. 

The Commission, in conjunction with the GIFA Custodian and Depositary Committee, sought to identify the most efficient means of accommodating Article 36 of AIFMD into the Bailiwick’s regulatory framework with a view to minimising the impact on fund products which are not in scope. Accordingly, the Guidance Notes, which provide guidance on how Article 36 of AIFMD interacts with the Bailiwick of Guernsey’s existing regulatory regime for collective investment schemes, were released for consultation in July 2014. The Guidance Notes, which have been approved by Commissioners, together with a feedback statement relating to the consultation responses, have been placed on the Commission’s website today.

Thank you to those of you who contributed to the consultation process, in particular, the GIFA Custodian and Depositary Committee and Carey Olsen’s response based on comments received from their clients.