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Ireland - Update – CBI Issues Prohibition Notice for Breach of the Fitness & Probity Regime

Executive Summary
On 27 September 2019, the Central Bank of Ireland (“CBI”) published details of a prohibition notice issued to an individual pursuant to the Fitness and Probity regime (the “Prohibition”). The CBI issued the Prohibition following its determination that the individual provided false or misleading information to the CBI during their pre-approval control function (“PCF”) application. The Prohibition restricts the individual from performing any control function within an Irish regulated financial services provider (“RFSP”) for a period of two years.

Background
The Fitness and Probity regime requires individuals performing control functions in RFSPs to meet the CBI’s Fitness and Probity Standards. Applicants for PCF roles (e.g. directors and other senior roles) must submit an individual questionnaire (“IQ”) and receive CBI approval before commencing their position.

Prohibition Notice
The individual obtained PCF authorisation from the CBI. However, in their IQ and subsequent responses to CBI queries, the individual provided inaccurate information and ultimately the CBI determined, per the Prohibition notice, that the individual:

“provided information which he knew or ought to have known was false and misleading”.

The Prohibition notice further states:

“Honesty and integrity are explicit requirements for those seeking regulatory approval. This encompasses the fundamental requirement of truthfulness in an application for approval. The Central Bank is entitled to expect and insist on absolute candour and honesty and otherwise will not be in a position to fulfil the crucial gatekeeping function which is expected of it in its role of protecting both consumers and the financial system. An applicant for approval, seeking both the advantages and responsibilities for approval, must be taken to understand the unambiguous requirement for truthfulness, and candid and accurate information.”

The CBI states the rationale for the Prohibition as being twofold. Firstly to demonstrate to the individual the seriousness of the infraction and to deter them from future similar behaviour; and secondly to demonstrate the gravity of providing false and/or misleading information to the CBI to other RFSPs, individuals performing and applicants for PCF roles, and the financial services industry as a whole.

It is also useful to note the CBI’s determination of certain proposed mitigating factors put forward on behalf of the individual. Amongst other points, the CBI rejected the argument that the individual’s cooperation with the CBI’s investigation constituted a mitigating factor, noting that cooperation with the CBI is an expectation of a PCF.

 

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Ireland - Investment Limited Partnerships Bill 2019 Progresses to Committee Stage

Following on from our July 2019 article on the Investment Limited Partnerships (Amendment) Bill 2019 (the “Bill”) (link here), the Bill progressed to the next stage of the Irish legislative process, known as Oireachtais Committee Stage, on 18 September 2019. This is a positive step in the direction of making Ireland a more attractive domicile for private equity and venture capital funds.

What is Committee Stage?
At Committee Stage, a detailed examination of each section of the Bill will be undertaken and the Government and opposition members will be given an opportunity to make changes to the text. If each section of the Bill is agreed to, the Bill will be set down for the next stage, Report Stage.

Committee Stage is the third stage of five stages in Dáil Éireann. If the Bill passes Committee Stage, it will still need to pass two further stages in the Dáil and five further stages in the Seanad (Senate) before being signed into law by the President of Ireland. The exact timing of this process is still unclear.

Background to the Bill
The purpose of the Bill is to reform Ireland’s existing investment limited partnership regime by amending the Investment Limited Partnerships Act 1994 (the “1994 Act”), which governs the existing regime. Investment limited partnerships under the 1994 Act were not as successful a fund structure as had been initially anticipated by its advocates.

The reforms which are contained in the Bill are predominantly aimed at (i) redefining certain rights and obligations relating to LPs and the GP; (ii) harmonising the rules relating to, and the characteristics of, the ILP structure with other Irish regulated fund structures and certain legal and regulatory developments since the Act was introduced; and (iii) adopting market standard practices and features from other popular fund domiciles.

Please see our July 2019 article for a more detailed summary of the key areas of reform and enhancements included in the Bill.

 

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Walkers Guide to Setting Up a Cayman Islands Cryptocurrency or Blockchain Fund

Partner Melissa Lim and associate Tom Hagger have assembled the 'Walkers Guide to Setting Up a Cayman Islands Cryptocurrency or Blockchain Fund' to tell you everything you need to know about setting up a Cryptocurrency or Blockchain fund in the Cayman Islands.

Why Cayman For Your Fund?

Once the investment strategy has been determined, and there is the necessary interest from investors, the decision needs to be made on the most optimal way to structure the fund. Often an offshore jurisdiction such as the Cayman Islands comes into play in the event where any of the investors are located outside of the U.S. and are U.S. tax exempt. In these scenarios it is very common for an offshore jurisdiction to form part of the fund structure.

Some of the benefits of using the Cayman Islands include:

  1. Familiarity to Managers and Investors.
  2. Robust and Flexible Legal Framework.
  3. Stable Political Climate.
  4. Availability of High Quality Service Providers.
  5. Proven Record as a World Leading Financial Centre.

Click to download full guide

Ireland - Update – Beneficial Ownership Reporting Commences

The Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies (the “Central Register”) launched on 29 July 2019.

Irish incorporated companies and other legal entities (“Relevant Entities”) are obliged by Part 3 of the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (S.I. 110 of 2019) (the “2019 Regulations”) to file details of their beneficial ownership with the Central Register.

Existing Relevant Entities have until 22 November 2019 to file the details of their beneficial ownership with the Central Register. Relevant Entities incorporated after 22 June 2019 must commence providing information to the Central Register within five months of their incorporation. It is expected that separate regulations will be published providing for the establishment of a central register of beneficial owners of Irish Collective Asset-management Vehicles (“ICAVs”) which will be maintained by the Central Bank.

Relevant Entities must submit their beneficial ownership information through the Central Register’s online registration portal - https://www.rbo.gov.ie/. Paper submissions are not accepted and no fees are charged. Relevant Entities should confirm with their service providers which entity will make the filing on their behalf well in advance of the November filing deadline.

The concept of beneficial ownership in the 2019 Regulations remains unchanged from the 2016 Regulations with respect to companies and captures any natural person who, directly or indirectly, has a greater than 25% ownership or controlling interest in a Relevant Entity. Where it is not possible to identify any natural person who, directly or indirectly, has a greater than 25% ownership or controlling interest in a Relevant Entity, the Relevant Entity’s beneficial ownership register should be populated with the senior managing officials of the Relevant Entity. In the case of investment funds, this will generally be the directors.

For further information relating the requirements of the 2019 Regulations and the functioning of the Central Register, please consult our previous briefings on the topic here and here.

 

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Calling all commitments – capital call security over debt commitments from a Cayman Islands perspective

From a Cayman Islands perspective, capital call or subscription line credit facilities generally follow a well-trodden path. This path allows the Cayman Islands aspects of such deals to be agreed and completed efficiently.
 

A new market trend in the subscription financing space, which Walkers has been at the forefront of, has raised some interesting considerations from a Cayman Islands perspective. This trend features private equity funds formed by way of exempted limited partnerships with investors having made capital commitments which are comprised not only of the traditional equity commitments to the fund, but also debt commitments (sometimes comprising as much as 90% of the overall commitment). Walkers' fund formation team has formed several such funds, which cater to insurance-related investors and seek to address the unique regulatory requirements which apply to such investors and their investment strategies.

The fund documentation itself does not typically need to deviate significantly from the customary documentation that is currently utilised, but some important considerations need to be borne in mind during the drafting stage.
 

As would be expected, a limited partner enters into a subscription agreement in a relatively standard form pursuant to which it agrees to make a capital commitment in the usual manner, and acknowledges that a percentage of its capital commitment will be designated as an equity commitment and the remaining percentage as a debt commitment. The debt commitment is documented in the LPA and is further evidenced by a form of promissory note scheduled to the LPA which would be used to 'call capital' from the investor pursuant to the debt commitment.

During the fund formation stage, it is important for Cayman Islands counsel to consider and include provisions in the LPA to address potential concerns that lenders to the fund may have, which should pre-empt and avoid any issues that could arise during the negotiation of a capital call financing. Such provisions include:

  • wide powers for the fund to incur indebtedness and grant security, including wide powers to provide all forms of credit support in respect of indebtedness of another fund in the group;
  • a restriction on the limited partner accelerating or calling for repayment of its debt commitment where third party indebtedness of the fund (i.e. pursuant to a subscription facility) is outstanding;
  • limited recourse language to the effect that the limited partner's sole recourse is to the assets of the fund; and
  • non-petition language preventing the limited partner from seeking to wind up the fund (or commencing other insolvency procedures) at a time where third party indebtedness of the fund is outstanding.
Walkers continues to see these types of deals develop and become more commonplace and looks forward to continuing market development resulting in unique and innovative types of structures designed to meet the needs of investors.

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