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Contents
- Preliminary Material
- Main Text
- 1 Introduction to Private Investment Funds
- Preliminary Material
- A Introduction
- B The governance challenge
- C Corporate governance
- D Companies and partnerships
- E Fund manager as agent of the fund
- F Consequences of governance failures
- G Addressing the governance challenge
- H The function of private investment funds
- I Terminology
- J Structuring private investment funds
- K Legal and regulatory issues
- L Legal and fiduciary duties of the investment manager
- M Fiduciary duty in the financial services regulatory regime
- N Alternatives to centralized, top-down regulation
- O Conclusion
- 2 Marketing Private Investment Funds
- Preliminary Material
- A Introduction
- B Distribution approaches
- C Financial promotion in the United Kingdom
- D Exemptions to the financial promotion restrictions
- E Promotion of collective investment schemes
- F The consequences of CIS categorization
- G AIFMD
- H Marketing in the United States
- I Conclusion
- 3 Taxation of Private Investment Funds
- Preliminary Material
- A Introduction
- B UK taxation of limited partnerships
- C UK taxation of offshore companies
- D US taxation of limited partnerships
- E US taxation of offshore entities
- F Conclusion
- 4 The Legal Duties Arising from the Provision of Investment Advisory and Management Services
- 5 The Regulatory Duties Arising from the Provision of Investment Advisory and Management Services
- Preliminary Material
- A Introduction
- B FCA regulation
- C FCA’s regulatory response to private investment funds
- D SEC compliance
- 5.57
- 5.58
- ‘Investment advisers’ definition
- Exemptions from registration
- Anti-fraud provisions
- The ‘brochure rule’
- Other disclosure requirements
- Books and records
- Prohibited contractual and fee provisions
- Advertising restrictions
- Suitability requirements
- Duty of best execution
- Aggregation of client orders
- Insider trading procedures and duty of supervision
- Anti-fraud
- E Fiduciary duties in the financial services regime
- F Conclusion
- 6 Governance Issues in Partnerships used as Private Investment Funds
- Preliminary Material
- A Introduction
- B Role and duties of general partners and limited partners
- C English law limited partnerships
- D Delaware law limited partnerships
- E Comparison of English and Delaware law
- F UK limited partnership reform
- G Partnership agreements
- H Duties of partners and the governance challenge
- I Conclusion
- 7 Governance Issues in Offshore Companies Used as Private Investment Funds
- 8 Investor Protection Concerns in Private Investment Funds
- Preliminary Material
- A Introduction
- B The Madoff debacle
- C Multiple vehicle structures
- D The FCA’s concerns about hedge fund fraud
- E The FCA’s concerns about private equity fund conflicts of interest
- F Concerns over particular investment strategies
- G Initial and ongoing diligence and oversight
- H SEC concerns over private fund due diligence
- I Conclusion
- 9 US and EU Regulatory Responses to The Global Financial Crisis
- Preliminary Material
- A Introduction
- B Dodd-Frank
- C US advisers
- D Non-US advisers
- E Distinction between ‘US advisers’ and ‘non-US advisers’
- F Compliance requirements
- G SEC reporting requirements
- H CFTC issues
- I JOBS Act
- J Future outlook for Dodd-Frank
- K AIFMD
- L Scope of application
- M Reverse solicitation
- N Private placement
- O Marketing passport
- P Non-EEA AIFMs and non-EEA AIFs
- Q FCA implementations
- R Reporting
- S AIFMD platforms and governance challenges
- T Brexit
- U Conclusion
- 10 Self-Regulation and Private Actors
- Preliminary Material
- A Introduction
- B The role of financial regulation
- C The limits of financial regulation
- D A role for self-regulation and private actors
- E President’s Working Group’s best practices
- F The Managed Fund Association’s Sound Practices
- G Sir Andrew Large’s consultation on ‘Hedge Fund Standards’
- H ILPA guidelines
- I Comparisons and criticisms of guidelines and standards
- J The role of investors in investor protection failures
- K Private actors and private law
- L Using privately negotiated structural approaches to address the governance challenge
- M Conclusion
- 11 Side Letters as a Means of Mitigating the Governance Challenge
- 12 Board of Directors Composition as a Means to Mitigating the Governance Challenge
- 13 Listings of Private Investment Funds as a Means of Mitigating the Governance Challenge
- 14 Evaluating and Implementing Private Monitoring Solutions
- Preliminary Material
- A Introduction
- B A critique of private monitoring solutions
- C Recognizing the limits of regulators
- D Due diligence as the commercial foundation for private monitoring solutions
- E Implementing structural approaches
- F Conclusions
- 15 Litigation and Enforcement involving Private Funds after the Global Financial Crisis
- Preliminary Material
- A Introduction
- B US enforcement actions before the global financial crisis
- C US civil litigation before the global financial crisis
- D Dodd-Frank and the changing face of SEC examination and enforcement
- E Key SEC enforcement actions after the global financial crisis
- F FCA enforcement priorities after the global financial crisis
- G Key UK litigation involving private investment funds
- H Conclusions
- 16 The Global Frontiers of Private Investment Funds
- 17 Towards a Unified Theory for Private Investment Funds
- 1 Introduction to Private Investment Funds
- Further Material