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Hedge Fund Monthly

Hedge Funds - Hong Kong Legal Perspective
James Walker / Mark Shipman, Clifford Chance

December 2003

Introduction

This article explains the types of investment vehicles most commonly used for establishing hedge funds and sets out the possible regulatory requirements imposed on hedge fund managers/investment advisers under the Securities and Futures Ordinance ("SFO"). The article assumes that the hedge funds will not be marketed or offered "to the public" in Hong Kong and therefore will not need to be authorised by the Securities and Futures Commission ("SFC"), nor comply with the SFC Hedge Fund Guidelines, which regulates the "public" offering of hedge funds in Hong Kong.

Hong Kong investor preference and the limitations imposed by Hong Kong law and legislation have meant that onshore Hong Kong hedge fund vehicles have not been established. However, offshore hedge funds, that is, investment vehicles incorporated, registered or domiciled in a jurisdiction other than Hong Kong have been offered to high net worth investors and financial institutions in Hong Kong on a private placement basis.

Legal Entities and Structures Available

It is not currently possible to establish locally incorporated "open-ended" investment vehicles in Hong Kong with a corporate structure given restrictions contained in the Companies Ordinance ("CO") on redeemable shares, although amending the CO to allow for open ended investment companies has been the subject of recent discussion in Hong Kong. In addition, although in certain jurisdictions it is possible to establish hedge funds as unit trusts, for a variety of reasons these are not a common structure for hedge funds offered in Hong Kong. However, it is possible that Hong Kong unit trusts could be used for this purpose. The limited partnership is a vehicle favoured by United States investors although in Asia the limited partnership structure has historically also been attractive to some Japanese investors. It should be noted that interests in limited partnerships (and, in fact, units in unit trusts) do not fall within the definition of shares or debentures of a "company" under the CO and therefore may be offered to investors in Hong Kong without any restriction under the CO (i.e., the prospectus requirements under the CO will not apply). However, offers of interests in limited partnerships will be regulated under the SFO as they will constitute interests in a "collective investment scheme". See "Legislative Developments" section below for further details on "Collective Investment Schemes".

Accordingly, the preferred structures for Hong Kong investors have been offshore hedge funds established as companies. The main factor in determining which of these vehicles is the most appropriate in each particular case is likely to be (i) tax; (ii) investor familiarity; and (iii) operational simplicity.

Investment Companies

Investment companies continue to be the main vehicle of choice for Hong Kong investors in hedge funds. Aside from investor familiarity, this type of vehicle also has the advantage of being relatively low risk to the hedge fund manager (i.e. having a separate legal identity distinct from the management functions) and easy to operate with respect to day-to-day subscription and redemption of shares.


The investment company will typically be incorporated in a jurisdiction that imposes minimal or no taxation; for example, Hong Kong managers and investors in recent years have established hedge fund corporate vehicles in the Cayman Islands and the British Virgin Islands.

Legislative Developments

Securities and Futures Ordinance

The SFO, which came into force on 1 April 2003, has been an important development in the legal and regulatory environment of Hong Kong. The SFO consolidates and modernises ten existing ordinances and introduces some new concepts that impact significantly on both the provision of management and investment advisory services out of Hong Kong and the marketing and offering of securities and other interests of hedge funds for sale in Hong Kong.

If the hedge fund is established as a corporate entity, the CO will also be relevant to the offer of its shares in Hong Kong.

Licensing Requirements

Under the SFO, a new "single licence" regime is established, and permits a business entity to carry on different regulated activities under the one licence.

Of the nine "regulated activities" in the SFO, the most relevant to hedge funds include asset management (Type 9) in relation to both securities and futures contracts, advising on securities (Type 4) and futures contracts (Type 5), leveraged foreign exchange trading (Type 3) and dealing in securities (Type 1). The SFO defines "securities" very widely and expressly includes interests in any collective investment scheme . Accordingly, marketing or distribution activities in respect of shares or interests in a hedge fund will generally amount to the Type 1 regulated activity of "dealing in securities" for the purposes of the SFO.

Licensing Exceptions

There are various exceptions to what will constitute regulated activities under the SFO. The most relevant to hedge fund managers / advisers include:

  1. "wholly-owned group" exceptions (this is a new exception available under the SFO) available to Types 4, 5 and 9 regulated activities, applicable where a corporation provides services solely to any of its wholly owned group companies. However the SFC has recently attempted to give a narrower interpretation to this exemption by importing words into the SFO - providing asset management or advice to its group company (on a wholly-owned basis) but only "in respect of that group company's assets". Unfortunately, this has therefore cast some doubt on the usefulness of this exemption. Some caution should therefore be used when relying on this exemption and its use should be considered on a case-by-case basis;

  2. a person who is licensed for Type 9 (asset management) activities may buy and sell securities (or futures contracts), without being licensed to conduct Type 1 (or Type 2 dealing in futures contracts) activities, provided that the dealing is performed solely for the purposes of asset management. This exception is not, however, available where the manager undertakes a fund distribution function, which will generally require the manager to hold a licence permitting it to conduct Type 1 activities;

  3. where offers of securities are made to, and transactions effected through, a person who is licensed or registered for Type 1 regulated activity which would not constitute "dealing in securities";

  4. in terms of Type 3, under the SFO there is a "class" exception, under which persons who satisfy certain requirements in relation to average transaction size or where the principal business is not in leveraged foreign exchange spot transactions and who also satisfy minimum credit rating requirements may be exempted from the licensing requirement on notification to the SFC.

Personnel

In terms of complying with the licensing requirements, a fund manager / adviser licensed to conduct regulated activities under the SFO will have to ensure:

  • each individual executive director (a director of the fund manager / adviser who either actively participates in or is responsible for directly supervising the business of a regulated activity for which the fund manager is licensed) is approved by the SFC as a "responsible officer;

  • not less than two individuals, at least one of whom is an executive director, of the fund manager are approved by the SFC as responsible officers of the fund manager in relation to each regulated activity it is licensed to conduct;

  • all investment management staff who are involved in carrying out a function of the regulated activity and responsible officers of the fund manager are licensed as "licensed representatives" accredited to the fund manager.

In order to be a licensed representative or a responsible officer, certain recognised industry qualifications are required and a pass in specified local regulatory framework examinations (provided by the Hong Kong Securities Institute), subject to exemptions. Details of these are contained in the SFC's Guidelines on Competence. Discussions of these are beyond the scope of this article.

Licensing Application

The SFC have issued a set of forms (available on their website (www.hksfc.org.hk) which need to be submitted along with any relevant supporting documents and an application fee. The SFC state that an application may take up to fifteen weeks to process.

Financial Resources

With the introduction of the single licence regime, licensed corporations will be able to engage in a number of different regulated activities through one corporate vehicle, hopefully reducing costs and administrative burdens. In terms of the financial resources requirements for licensed corporations, a licensed corporation, generally, must have and maintain at all times the required amount of paid-up share capital and liquid capital which is applicable to it as set out in the SFC's Financial Resources Rules (or FRRs). Where a corporation is a licensed for more than one regulated activity, the highest amount for the different regulated activities must be maintained. It is not necessary to aggregate the different monetary requirements for the different regulated activities. The amount required is reduced where the licensed corporation does not hold client assets in Hong Kong.

Offers of investments

Part IV of the SFO, establishes the regulatory framework for marketing investment products to the public in Hong Kong. It is an offence for any person to issue, or have in his possession for issue, whether in Hong Kong or elsewhere, any advertisement (which is widely defined), document or invitation (which is expressly defined to include an offer and an invitation made by means of oral or electronic forms of media) which contains an invitation to the public (or any class of the public) of Hong Kong, amongst other things, (a) to enter into an agreement to acquire, dispose of or underwrite securities; or (b) to acquire an interest in or participate in a "collective investment scheme".

It should also be noted that an advertisement, document or invitation whose contents are likely to be accessed or read by the public will be regarded as an advertisement, document or invitation which is or contains an invitation to the public.

Exceptions to Part IV of the SFO

One exception to the general prohibition above is the "professional investor" exception: the definition of "professional investor" in the SFO sets out a new and exhaustive list of investors who are categorised as professionals, including intermediaries, authorised financial institutions and insurance companies. The SFC has in the Securities and Futures (Professional Investor) Rules, extended the categories of persons who fall within the definition of "professional investor" in the SFO to include:

  • trustee companies with at least HK$40 million in assets;

  • high net worth individuals with a portfolio of at least HK$8 million; and

  • a corporation or partnership with either a portfolio of at least HK$8 million or not less than HK$40 million in assets.

The classification of these categories should give more certainty as to the types of investor who may buy interests in hedge funds on a "private placement" basis in Hong Kong and thereby reflect the likely target offerees.

Companies Ordinance

The regulatory regime under the CO is not amended by the SFO and, therefore, continues to apply to the offer of shares or debentures in a company, but not to offers of interests in a limited partnership or unit trust. It should be noted that, unlike the SFO, the CO retains the so-called "professional investor" exception for "persons whose ordinary business is to buy or sell shares or debentures, whether as principal or agent", usually considered to include broker dealers, fund managers, investment advisers, banks, financial institutions and insurance companies and would not generally include high-net-worth investors. This exception is more restrictive than the categories of professional investors in the SFO. In light of the discrepancy, until the CO is amended, where a hedge fund is structured as a corporate entity, care will need to be taken to ensure that the investors targeted in Hong Kong do not fall between the "gap" in the two regimes. Under the Companies Amendment Bill (the "Bill") the CO will be amended and will adopt the definition of "professional investor" contained in the SFO. This is advantageous for two reasons: (i) it extends the scope of the exemption as the SFO distribution is wider than the CO distribution; and (ii) it brings the CO in line with the SFO. It is hoped that the Bill will become law before the end of 2003.

Another exception to the general prohibition under the SFO (and the CO) is the so-called "limited persons rule". Although there is no such rule or exception contained in the SFO (or currently under the CO), the SFC has taken the view that an offer or invitation should not be deemed to be made to the public if it involves a distribution of numbered documents to a limited number of named persons in Hong Kong, ideally between 20 and 30 offerees, depending on all the circumstances of the offer. The Bill however proposes to permit an offer to 50 persons along with a suitable warning statement included in the offer document. As yet we are not aware of any proposed amendments to the SFO in this respect or that the SFC has expressed a view on this yet. Consequently, either there is an intention that the SFO should continue to be construed as it is now with respect to offers of and marketing collective investment schemes to a limited number of persons, or, alternatively, and perhaps the better approach, the SFC will relax the position under the SFO in line with CO once the Bill is passed and in force.

Conclusion

Whilst the SFO has introduced a new licensing regime, the regulated activities for which a hedge fund manager may be required to be licensed are distinct and there are a number of useful exemptions. Additionally, the SFO introduces much welcomed clarity as to the meaning of "professional investor", an advance that will be particularly worthwhile when the CO is amended to mirror the new SFO definition.


If you have any comments about or contributions to make to this newsletter, please email advisor@eurekahedge.com

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