Asset management & investment funds monthly update

This edition includes: key dates and deadlines this quarter and Q4; new and compliance expectations set out by the Central Bank; and the impact of AIF Leverage Limit Guidance.

Related briefings

Case of the spectator and the golf ball matters for all kinds of events organisers

Earlier this month the High Court dismissed a claim from a spectator who was struck by a golf ball while attending the West of Ireland Championship at Rosses Point Golf Club in 2016. It was an important decision for sports clubs, tournament organisers and event spectators. The High Court held that the duty of care owed to spectators is not to act in “wanton disregard” for their safety. The decision matters because that is a lesser duty than the duty to act with reasonable care.

The Lugano clock has stalled: what now for dispute resolution clauses?

Since 1 January 2021, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Recast) and the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention) no longer apply to the UK. There is no mechanism allowing the UK to accede to Brussels Recast in its own right. Under the Lugano Convention, however, the UK is entitled to apply for accession following certain conditions specified in Article 72. Although the UK applied for accession in April 2020, it has not yet been ‘invited’ to accede. The European Commission, however, recently notified the Swiss Federal Council (as Depositary of the Lugano Convention) that, representing the EU, it does not consent to the UK’s accession. Whether this is the final decision from the EU, or whether the European Council will vote on the issue, remains to be seen. In the absence of unanimous consent of all contracting parties coupled with the enforcement gap of several months even if accession to the Lugano Convention is permitted, Irish (or indeed EU or EFTA) contracting parties with UK entities should continue to give careful consideration to their dispute resolutions clauses.

SCARP bill passes through Oireachtas

The Companies (Rescue Process for Small and Micro Companies) Bill 2021 (Bill) detailing the government’s proposed rescue process for small and micro companies (SCARP) has successfully passed through the Oireachtas and is expected to be signed into law shortly by the President. The SCARP framework is modelled on examinership but is intended to be more accessible and cost-efficient for small companies because of the reduced role for the court. The Bill also makes miscellaneous amendments to the Companies Act.

Taxand: Strong M&A activity forecast for H2 after fast start to 2021

Taxand, the world’s largest organisation of independent tax advisory firms, has published its 2021 Global Guide to M&A Tax providing insights into the tax treatment of mergers and acquisitions across 30 countries, including commentary with respect to recent developments and Covid measures relevant to deals.

Latest Briefings

Government consults on new competition regime for digital markets

On 20 July 2021, the UK Government published proposals for a new competition regime for digital markets “to make it fairer for smaller businesses, entrepreneurs, and the British public”. These proposals include significant new powers for the Digital Markets Unit which was recently established within the CMA and an enforceable code of conduct for firms with so-called Strategic Market Status (SMS). The Government is also considering new merger control rules for firms with SMS. The proposals are now open for public consultation until 1 October 2021.

Capital gains tax: will deferred proceeds change after the OTS’s recent report?

In July last year, the Chancellor asked the Office of Tax Simplification (OT) to review capital gains tax (CGT). The aim was to “identify opportunities relating to administrative and technical issues as well as areas where the present rules can distort behaviour or do not meet their policy intent”. Following its review, the OTS published its first report in November 2020. Named “Simplifying by design”, it considered the policy design and principles underpinning CGT. In May this year, the OTS published its second report, “Simplifying practical, technical and administrative issues”. We’re focusing on this report throughout this article, in particular, its section on deferred proceeds.

Axminister: another drafting lottery?

Julian Richards and Lynette Lewis discuss the recent High Court decision in relation to the Axminister pension scheme. This podcast touches on what happened, the impact of the decision and what’s next for the ongoing debate over s.37 confirmations.

CSSF clarifies MiFID application to Luxembourg investment fund managers

On 10 June 2021, the Luxembourg Financial Sector Supervisory Authority (the CSSF) issued new versions of (i) its frequently asked questions relating to the Law of 17 December 2010 on undertakings for collective investment and (ii) its FAQs covering the Law of 12 July 2013 on alternative investment fund managers. Both FAQs have been updated following the publication of a FAQ from the CSSF relating to the application of MiFID provisions to Luxembourg Investment Fund Managers.

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