King & Wood Mallesons

Asia-Pacific 100 position: 3

Managed investment scheme constitution requirements to change from 1 October 2013

The Australian Securities and Investments Commission (ASIC) has finalised its amended regulatory guidance on the content requirements for registered managed investment schemes.

ASIC acted in response to industry submissions that argued that they should not require all existing managed investment scheme constitutions to be amended to comply with their new content requirements, as proposed in Consultation Paper 188 (September 2012). The new policy, set out in new Regulatory Guide 134 (Managed investments: constitutions) released on 5 June 2013, will only apply to constitutions lodged for scheme registration from 1 October 2013.

For provisions in a scheme constitution that allow discretions to decide unit prices, ASIC has introduced a ‘safe harbour’ approach. New constitutions lodged for registration that comply with the new ASIC Class Order [CO 13/655] can expect to be processed without undue challenge. The alternative of making submissions to ASIC before lodging the registration application, arguing that alternative drafting complies with section 601GA(1)(a) of the Corporations Act, is also available. The earlier Class Order [CO 05/26] has not been revoked and can be relied upon for schemes registered before 1 October, unless the responsible entity publishes a notice on its website that it relies on [CO 13/655]…

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