4 │ Regulatory overview 30
Facilitate asset pooling by creating a framework for the system of "master-feeder"
arrangements whereby a fund invests more than 85 % of its assets in another fund;
Strengthen the supervision of UCITS
and of the companies that manage them, by means of
enhanced cooperation between supervisors
UCITS V In the light of the Madoff scandal and collapse of Lehman Brothers, it transpired that the depositary
function was inadequate and the new AIFMD had toughened the depositary’s liability so it seems
likely that a corresponding regime will be applied to UCITS via an amendment to UCITS IV.
4.2 Private equity funds Private equity and venture capital funds are generally regulated by the AIFMD. As previously
mentioned, this section seeks to provide an explanation of the development and nature of
regulations that could prompt behavioural change among private equity funds that might have
systemic implications.
February 2008: The European Commission published a study on "investment funds in the European
Union: comparative analysis of use of investment powers, investment outcomes and related risk
features in both UCITS and non-harmonised markets". It fed into the Commission's preparatory work
for the communication on non-harmonised investment funds published later in 2008.
2 April 2009: G20 Summit Communique in London - “We agree….to extend regulation and oversight
to all systemically important financial institutions, instruments and markets. This will include, for the
first time, systemically important hedge funds….”
29 April 2009: The European Commission proposed a Directive on Alternative Investment Fund
Managers (AIFM). The proposed Directive is an important part of the European Commission's
response to the financial crisis. It aims to create a comprehensive and effective regulatory and
supervisory framework for AIFM in the European Union. AIFM, which include the managers of hedge
funds and private equity funds, managed around €2 trillion in assets at the end of 2008. This is the
first attempt in any jurisdiction to create a comprehensive framework for the direct regulation and
supervision in the alternative fund industry.
November 2010: AIFMD agreed by co-legislators and transposition into national law must be
complete by July 2013. For financial stability, the key issues include depositary liability and the third
country recognition regime. The depositary issue is key because the same rules will probably be
applied to UCITS and any loss of confidence in the basic safety of financial assets approximating to
annual GDP would be highly de-stabilising. The issue of third country “equivalence” is a fundamental
part of global trade negotiations that go far beyond depositaries. But, again, any loss of confidence
in such foreign services by EU investors during a crisis might prompt a sudden repatriation of funds
that would have systemic implication in the EU (as well as for its trading partners).