Cyprus Alternative Investment Funds

The Cyprus Perspective: analysis of the law, setup procedures, and benefits.
Investment Funds in Europe and in Cyprus.
European Union Investment Funds:
The European Directive 85/611/EEC on Undertakings for Collective Investment in Transferable Securities (UCITS) known as UCITS IV [Annex 1] is the main European framework covering collective investment schemes. This category of investment funds accounts for around 75% of all collective investments by small investors in Europe.
The European Directive 2011/61/EU on Alternative Investment Fund Managers (AIFM) [Annex 2] is the main European framework covering managers of alternative investment schemes designed for professional investors. Alternative investment funds are all investment funds that are not already covered by the European Directive on Undertakings for collective investment in transferable securities (UCITS) funds and are therefore not regulated at EU level but are left to be regulated at state level according to domestic legislation. They include hedge funds, funds of hedge funds, private equity funds, venture capital, real estate funds and a wide range of other types of institutional funds.
The new Laws offer an EU-harmonized solid framework specifically designed to assist fund managers targeting emerging markets and to facilitate Private Equity and other specialized Fund structures.
Uses of AIFs: AIF’s can be used for a variety of business purposes such as:
- As Shipping and Real Estate Funds. Both these industries have been affected by the financial crisis and Cyprus AIFs can be ideal for deleveraging and buying distressed assets. AIFs can help to replace the traditional models of small family owned businesses with low capital and need for financing by banks with high costs of lending.
- Tenders in big projects. AIFs can be used to provide a tender or a joint venture vehicle with a group of investors to participate in big projects both in the country of its formation and abroad. As AIFs are regulated and transparent, this is a big advantage when tendering for big projects, especially for those investors that are already under regulation by statutory bodies.
- Mergers and Acquisitions. Being a product of EU legislation, an AIF within the eurozone is a much easier vehicle to use so as to proceed with investment opportunities in EU both by EU investors and non EU investors. The fact that AIFs are monitored by a regulated body (e.g. in Cyprus this would be the Capital Committee of Cyprus) gives the investors the needed safety and security for filtering their funds via AIFs to ensure that all needed safeguards and reporting will be available to make sure that proper controls and procedures will be in place.
- Inheritance purposes. The AIF may be used for wealthy individuals and their families for holding all their diverse business assets. The father/mother of the wealthy family may assign as at any time the split of his or her wealth to any specific child and or family member, during his lifespan
- Another layer of separation. AIF’s can preserve anonymity. The fund manager is only obliged to disclose to the overseeing authority (e.g. Cysec for Cyprus) the unit holders of those holding over 10 %.
- Ring-Fencing: All assets of a business may be placed under one Fund which shall operate as an umbrella structure by having sub funds. Each sub-fund will hold different assets or be involved in different activities. E.g. sub-fund A may only deal in ships, sub-fund B may only deal to invest in shares, sub-fund C may only deal in loans, sub-fund C may only deal in real estate. So each fund compartment will only be liable for its own activities and no liability may extend to the other compartments in case of failed investments.
- Easy exit route for unit holders Redemption of any unit is secured so the investor can easily liquidate its fund if needed for other investment purposes. This is safeguarded by the fund manager who is responsible to preserve adequate liquidity in the fund.
- Financing company: A fund may collect money from several investors and strategic overseas funds and proceed with lending of part of the money collected either within the group or to third parties provided the proper due diligence is followed.
- Special rights of foreign AIF unit holders in Cyprus:
- Substance for tax residence purposes in Cyprus: Having a Fund as a shareholder of both Cyprus and non-Cyprus companies, will ensure that the Group has a substance in Cyprus and that it is transparent for tax purposes. Thus because the Fund (which will act as the Group’s holding company) will be managed in Cyprus via the Fund manager under CySEC’s license this will ensure that the substance of being a tax resident transparent company is met. Thus foreign unit holders and their family may apply for Cypriot residence or citizenship if certain other criteria are met.
- Cyprus tax resident investors, tax burden: The defence tax currently payable by Cyprus tax resident persons on their dividends is 17 %. This is the general rule while if the taxpayer is a unit holder in a Cyprus fund, then the tax burden on dividends being declared to him drops to only 3%. Non Cyprus resident unit holders pay zero tax on their dividends from the fund.
Cyprus Investment Funds:
In Cyprus, the enactment of the Alternative Investment Funds Law in 2014 (hereinafter the “AIF Law”) [Annex 3] has replaced in its entirety the previous International Collective Investment Schemes (ICIS) Law which was out dated and not in accordance to modern economic standards and practices. The AIF Law is also complemented by the transposition in 2012 of the European Directive UCITS IV [Annex 1] in the Cypriot Open-Ended Undertakings for Collective Investment (UCI) Law 78(I) of 2012 [Annex 4] (hereinafter the “UCITS Law”) and the transposition in 2013 of the European Directive on AIFM [Annex 2] in the Cypriot Alternative Investment Fund Managers Law of 2013 (hereinafter the “AIFM Law”) [Annex 5]. These three laws have given effect to the modernization of the legal framework regarding investment funds in Cyprus. The Cypriot AIF Law complies fully with the aforementioned European Union (EU) directives on alternative investment funds.
The Cypriot legislators have taken competitive and attractive elements from other jurisdictions to create a modern framework to be implemented within Cyprus, with extensive options in terms of structuring flexibility, investor reach and Custodian/Depositary appointment, to name a few. These structuring elements combined with tax incentives, listing and distribution possibilities (privately or to the general public) and traditional relationships with strong emerging markets, create a regional jurisdiction in the eurozone with a strong focus in maximizing value for all participants and protection to the investors.
The Cyprus Securities and Exchange Commission (hereinafter “CySEC”) is an independent public supervisory Authority established as a public legal entity in accordance with section 5 of the Securities and Exchange Commission (Establishment and Responsibilities) Law of 2001. The operation of CySEC is governed by the Laws regulating the Structure, Responsibilities, Powers, Organization of the Cyprus Securities and Exchange Commission and Other Related Matters Law N73(I) of 1009 [Annex 6]. CySEC is responsible for exercising effective supervision of the investment services market and transactions in transferable securities carried out in the Republic of Cyprus to ensure investor protection and the effective and the healthy development of the securities market.
Thus CySEC is dutifully involved with Cypriot professional bodies to actively increase Cyprus’ appeal as a fund domicile, having recognized the importance of the sector and the opportunity to co-create an industry that has seen tremendous growth in the last few years. The regulator’s contribution via their flexibility and accessibility without compromising on any of the important areas surrounding Funds and in particular investor protection, are key to this effort. Regulatory power for investment funds was previously shared between the CySEC and the Central Bank of Cyprus however with the implementation of the new framework for alternative investment funds, the regulation has been brought under the aegis of CySEC. CySEC now regulates AIFs, UCITS funds and Management Companies, as well as MiFID regulated investment firms.
The new Cyprus funds legal framework and regime constitutes a dramatic improvement from the previous investment funds regime, in that it brings the jurisdiction in full alignment with the European acquis communautaire. The European acquis communautaire is a very important legal concept in the European Union. It encompasses all law that is common among the European Union Member States, and it covers all treaties, all EU legislation, all international agreements, standards, all European Union Court decisions, all fundamental human and economic rights provisions including the European Court of Hunan Rights decisions and horizontal principles in the treaties such as equality and non-discrimination. In short the European acquis communautaire is all EU-law.
EU law provides a plethora of advantages for Cyprus-based investment funds and fund managers. These include, without limitation, the following:
- The Law introduces structuring options such multiple investment compartments (Umbrella Funds), enabling the management of different pools of assets in ring-fenced sub-funds within a fund, each being subject to distinct policies.
- The introduction of a Mutual Fund (or Common Fund) which are contractual fund structures where investors participate as co-owners of the assets of the AIF, a form extensively used in various suitable circumstances, such as structuring investments of pension funds.
- The role of the depository is no longer reserved for credit or banking institutions and can be undertaken by other entities (investment firms, etc.).
- An exemption for a requirement to appoint a custodian is available for cases where an AIF’s assets are under €5m or its investors are limited to 5 or the nature of the assets is not subject to custody, this allowing for significant cost-efficiency.
- AIFs (as well as UCITS) can be listed on the Cyprus Stock Exchange, where applicable, and other stock exchanges.
Why set up an AIF in Cyprus:
- Lower set up and running costs of funds in comparison to other jurisdictions.
- The set up and obtaining of the license of funds, is done in the shortest possible time.
- A Very favourable tax system. No tax on dividends received by the fund.
- No withholding tax on income repatriation or dividends paid to unit holders.
- On the white list of the OECD.
- EU and OECD compliant tax system.
- Well-regulated jurisdiction.
Cyprus Alternative Investment Funds (AIFs): Characteristics, Uses, Investors, Tax Regime, Advantages and Management.
An alternative investment fund (AIF) and its investment compartments is a collective investment entity, which is not an Undertaking for Collective Investments in Transferable Securities (UCITS). An AIF may collect funds from a number of investors and invest them according to a predetermined investment policy, for the benefit of its investors.
Characteristics of AIFs: Below follows a brief summary of the forms, types and general characteristics of AIFs with references to the relevant sections of the AIF Law.
- Transitional Provisions for Existing ICIS (Sections 120 of the AIF Law): International Collective Investment Schemes (ICIS), which were licensed by the Central Bank of Cyprus before the enactment of the AIF Law, can, provided they meet the requirements of the AIF law, apply to CySEC by the 27 November 2014 to obtain a license to continue operations as an AIF. If any ICIS did not apply or failed to obtain a license after application, then it should be dissolved by the 26 May 2015. Therefore today there are no ICIS’s in Cyprus, but only AIFs.
- Forms of AIFs (Section 4 of the AIF Law): An AIF can be set up as:
- A common fund (CF).
- An investment limited liability company with shares (ILLC) with fixed or variable capital.(this is the most preferred and common route of set up).
- A limited liability partnership (LLP)
- Types of AIF (Section 7 of the AIF Law): An AIF can be set up as an open-ended AIF or a close-ended AIF.
- An open-ended fund can be established where investors have the right to redeem/repurchase their units upon request:
- At any time, or
- At regular intervals not exceeding one year;
- A closed-ended fund can be established where investors have the right to redeem or repurchase their units upon request:
- At regular intervals exceeding one year but less than five years [with the exception of venture capital funds constituted in accordance with EU Regulation 345/2013 in which the initial period of redemptions may be extended up to 10 years from their incorporation date] or
- At a specific point of time which is defined in the fund rules or the instruments of incorporation of the AIF.
- Listing & Public Offering of AIF Units and Shares (Section 8 of the AIF Law).
- The units and shares of AIFs may be admitted for listing, with or without trading, on a stock exchange, in Cyprus or abroad. [The usual practice is that AIFs are listed but not traded in the Cyprus stock exchange.]
- Also allowed, under certain conditions, is the admission of units or classes of units of an AIF in a regulated market of tradable AIFs, or on a multilateral trading facility of tradable AIFs.
- More than one investment compartment in an AIF [umbrella funds] (Section 10 of the AIF Law). An AIF can be setup with more than one investment compartment, each of which is subject to the provisions of the law and is treated as a separate AIF. Thus each compartment issues units which correspond to its assets and the value of the units could be different for each compartment. Also, each compartment is accountable only for its own debts and each compartment could be dissolved separately without affecting other compartments of the AIF.
- A Cyprus company can be converted to an ILLC with one or more compartments (Section 10 of the AIF Law).
- Marketing of Units (Sections 36 and 37 of the AIF Law). AIFs may market their units to professional, well informed/institutional or retail investors.
- Common Funds [CF] (Sections 42 to 50 of the AIF Law).
- An AIF can be set up as a Common Fund with multiple investment compartments. The common fund is not a legal entity and the administration of its portfolio is the responsibility of its external manager.
- AIFs structured as pools of assets in which investors participate on the basis of a single contractual document known as the “Common Fund Rules” (which they deem to accept by virtue of their subscription into the units of the fund). Investors are co-owners of each of the assets comprising the portfolio of the AIF and are liable only to the amount of their contribution.
- Investment Company [ILLC] (Sections 51 to 61 of the AIF Law).
- An AIF can be set up as an open-ended or closed-ended limited liability company with shares. The ILLC can be set up with multiple investment compartments.
- It can be self-managed or can appoint an external manager. If self-managed, it should have a minimum capital of €300.000, otherwise if it is non-self-managed the minimum capital is only €125.000.
- Limited Liability Partnerships [LLPs] (Sections 62 to 64 of the AIF Law). An AIF can be set up as an LLP. Such an LLP is allowed to have only one general partner, who must also act as its external manager.
- Mergers of AIFs (Sections 82 and 94 of the AIF Law).
- With the permission of CySEC, mergers of AIFs, or of AIF compartments, are allowed, provided that the participating AIFs operate as CFs or ILLCs, and all participants address the same category of investors.
- The transfer of assets and liabilities resulting from the merger are exempt from all taxes and duties.
- AIFs Managers (Sections 6, 20, 53 and 64 of the AIF Law). AIFs can be either self-managed or non-self-managed.
- Self-managed AIFs must fulfil the following specifications:
- The assets of the portfolio of the AIF, including any assets acquired through use of leverage, in total do not exceed a threshold of €100.000.000.
- The assets of the portfolio of the AIF, where the AIF does not employ leverage, and its unit-holders have no redemption rights exercisable during a period of 5 years following the date of initial investment in each AIF, do not exceed a threshold of €500.000.000.
- If not self-managed, the AIFs must appoint an external manager. External managers need to be licensed and the licensing authority is the Cyprus Securities & Exchange Commission (CySEC).
- AIF Depositary (Sections 23, 25 of the AIF Law and section 87(5) of the AIFM Law).
- A Depositary is assigned with the safekeeping of the assets and has the function of the treasurer
- When a depositary needs to be appointed, he must be licensed.
- The depositary can be based in Cyprus or, until 22 July 2017, in another EU member state. The depositary may delegate his custody functions to an eligible third party, in Cyprus or abroad.
- An AIF may not appoint a depositary if;
- The total assets are not eligible for custody.
- If the AIF assets are not financial instruments, a suitable organization may act as depositary.
- Transfer of the Domicile of an AIF to and from Cyprus (Sections 112 and 113 of the AIF Law).
- An AIF, irrespective of whether it operates as a CF or ICCL, can transfer its domicile to Cyprus, or its domicile can be transferred from Cyprus to an EU member state, or third country.
- CySEC has the authority to issue directives that will state the conditions under which permission for a transfer will be granted.
- Licensing and Regulation of AIFs (Sections 13, 100 and 109 of the AIF Law).
- The licensing and regulating authority is CySEC.
- CySEC will issue licenses to all AIFs, and an electronic register of all licensed entities will be maintained by CySEC and open to the public, free of charge.
- CySEC has the authority to issue directives on all provisions of the AIF law.
- CySEC will grant a license within three months from the date of the submission of the completed application.
- AIFs with a Limited Number of Investors [LNI AIF] (Sections 114 to 118 of the AIF Law)
- An LNI AIF can be set up only as an ILLC or an LLP and operate as small AIF with one or more compartments, provided that:
- Its investors are only professional and/or sufficiently informed investors and
- The number of investors does not exceed at any time and for all compartments, 75 persons, and
- It does not issue shares to bearer.
- A small AIF which is an ILLC can be self-administered, or can appoint an external manager. AIFs which are LLPs are managed by the general partner.
- If certain conditions are met, a depositary does not have to be appointed.(this is when the exemption has been previously been authorised by Cysec,at least 80 % of the shares are marketed through exchange,any trades are made at the prices listed on the exchange)
Types of AIF Investors: Definitions regarding professional investors follow those given under European Directive 2014/65/EU on Markets in Financial Instruments (MiFID) known as MiFID. It should be noted that MiFID II [Annex 7A] and European Regulation No 600/2014/EU on Markets and Financial Instruments (MiFIR) [Annex 7B] have been adopted in Cyprus
- Professional Investors. A Professional Investor for the purposes of the Law is any investor that is considered, or may be treated on request, as an investor falling under the definition of a ‘professional client’ as defined in MiFID II. A professional client is a client who possesses the experience, knowledge and expertise to make its own investment decisions and properly assess the risks that it incurs. In order to be considered a professional client, the client must comply with the criteria prescribed in Annex II of the MiFID.
- Well-informed investors: Α Well-informed Investor is an investor not considered to be a Professional Investor who meets the following criteria:
- An investor confirming in writing that he is a well-informed investor and has been notified of the risks associated with investing in the AIF in question, and
- Either his investment in the AIF is at least EUR125.000 or has been evaluated as a well-informed investor by either a bank or an investment firm or a UCITS manager or AIFM and further has the appropriate expertise and required knowledge to assess the suitability of the investment.
Reporting Exemptions of AIF’s to its Investors:
- AIFs shall send to investors, free of charge, the annual accounts and report only upon their request (Section 74(4) of the AIF Law).
- AIFs and their subsidiaries are not obliged to prepare consolidated financial statements (Section 76(2) of the AIF Law).
Advantages of using AIFs as vehicles for investment in Cyprus:
- AIFs can buy back their own units, which is not possible with an ordinary Cyprus company.
- Anyone can be a unit holder, (even offshore companies) and their names do not have to be reported to any public body.
- Units of AIFs are easily transferable.
- An ILLC is a Cyprus limited liability company and can take advantage of Cyprus’ Double Tax Treaties and European Union Directives.
- High reputation as AIFs because these are licensed by CySEC and can be freely marketed. No license or approval is required for approaching investors in the EU to invest in an existing AIF.
- Flexibility: Any asset can be included in the investment strategy of the AIF.
- Transparency: Annual audited and half yearly reports to be sent to the CySEC and the investors (reports to contain financial statements, information on borrowing, portfolio information, NAV, etc.)
- Tax Incentives: Cyprus AIFs benefit from significant tax incentives.
- Modern legislation designed to take into consideration new market realities and conditions.
- Regulation: EU directives / business friendly jurisdiction (no onerous reporting requirements) and accessible regulator.
- Low set-up and operational costs: Easy and cost efficient to set up manage and operate.
Key Players of an AIF Structure [Annex 8 – Flow Diagram]:
- Board of Directors:
- The fund must have its own directors of its choice.
- There must be at least 2 executive and 2 non-executive directors.
- The board must be balanced between executive and non-executive directors.
- The majority of the directors should be resident in Cyprus to ensure that the company is managed and controlled from Cyprus.
- At least one of the directors must have CySEC advanced license and CySEC may request two.
- One of the executive directors would normally include an officer of the Fund manager.
- Fund Manager:
- This includes the investment Committee and the Investment advisor.
- It supervises the fund’s functions.
- Coordinates with the investment advisor ,administrator ,custodian ,banks, and any other third party service organizations employed by the fund.
- It is accountable in the eyes of the law so it has the legal responsibility.
- Liaison with auditors, financial and tax authorities.
- Compliance role.
- Cost management activities with other third party service providers.
- Legal update to investment advisers and investment committee.
- Also the fund manager has several investment management services like:
- Investment advice.
- Orders placing and execution.
- Investment performance reports.
- The fund manager is involved in promotion and distribution and in particular in:
- Global representation.
- Capital raising.
- Corporate banking.
- PR-by agreements.
- Review and screening on the eligibility of any potential investors.
- Investment advisor:
- This advisor will charge a fixed fee and a performance fee to accommodate a supervisory role over the specific roles he has in the AIF.
- The AIF cannot get a license from CySEC unless the investment advisor is approved by it.
- The IA can employ the services of other consultants, at its own costs and on such terms as he thinks fit to assist him in his role.
- It should be pointed out that the marketing and promotion of Funds is closely monitored by CySEC and the ultimate responsibility for the conduct of the marketing and distribution efforts lies with the IA.
- The marketing material to be used needs to be approved by the IA ,so he will ensure that they are in accordance with the Law and Cysec directives.
- The IA must have strict control over the release of subscription forms, prospectus and other material so as no invitation is done to invest in ,to persons ,without first making sure that such persons meet the investor eligibility criteria (i.e. being treated as professional investors).
- Under the Law, the AIF is not able to carry out any marketing or promotion activities prior to licensing and activation.
- Also no marketing material can be distributed prior to licensing and activation.
- A web site can be set up but a very strict control is needed to satisfy the regulator, that the fund is marketed only to knowledgeable professional investors.
- The information to be included to the web site is regulated by Law and would need to be approved by CySEC and the manager.
- Funds Administrator:
- This role has to do with the NAV calculation(net assets value).
- Maintaining the shareholders register.
- Performs KYC and AML checks on the shareholders.
- Supplies to the investors of the fund, all statements ,circulars, reports, notices, and documents required by law or by the articles of the incorporation of the fund.
- Process and distributes of distributions.
- Custodian /depositary:
- Legal responsibility of assets custody.
- Settlement of financial securities and transactions.
- Collect cash obtained from the sales ,transfer, corporate actions, dividends ,interest due to the fund.
- Payment of all invoices, taxes ,commissions.
- Auditor:
- To prepare the annual audited accounts.
- Must be a licensed auditor by ICPAC.
- To be appointed by the board of directors.
Procedure For Set Up and Application for a License;
- Required documentation/service providers is as follows: Depending on the type of AIF, some, or all, of the documents listed in 9 must be prepared, and where necessary, a depositary and manager must be appointed.
- The procedure for obtaining a license from CySEC is as follows:
- Submit the relevant application template for the fund to CySEC, information on the AIF, depositary, external manager, questionnaires for its first shareholders and all directors, officers and senior managers, auditors, investment committee, internal auditor, subcontractors, compliance officer and risk manager.
- Submit a business plan to CySEC, which should include financial information, organisational and shareholder structures and other relevant information.
- The documents will be examined by CySEC in order to ensure their compliance with the Law and regulations. CySEC may also make comments and request amendments to clarify some clauses e.g. borrowing powers.
- CySEC examines the submitted documents to ensure that they outline the investment scheme as far as possible, and also to check that they contain the required information.
- Time Scale for preparation and approval is as follows: The time needed for preparation of the application will depend on the type of AIF and the speed of response of the third parties involved, (proposed officers, other professionals.) It is imperative that a professional firm is engaged to ensure that a complete application that is acceptable to CySEC is submitted. One would expect to receive CySEC approval within three to four months from the date of submission
CySEC Fees (CySEC directive DIR 131/56-2014-01) [Annex 9]
- Obtaining a licence to set up an AIF: This is an optional once-off fee paid with the submission of the application for a “Fast Track” examination amounting to €25.000. By payment of the “Fast Track” fee, CySEC promises to examine the application within a shorter period of time than if not proceeding in this manner.
- Annual CySEC fees: Annual fees of €1.800 for the AIF are payable. If the AIF has additional compartments an annual fee of €400 for each of the 2nd to 15th compartment is payable and an annual fee of €250 for each from the 16th onwards is payable.
- Obtaining an LNI AIF License: This is a once-off fee paid with the submission of the AIF application amounting to €1.300. If the AIF has additional compartments a fee of €300 for each of the 2nd to 15th compartment is payable and a fee of €250 for each compartment from the 16th compartment onwards is payable.
- Annual CySEC fees for LNI AIFs: Annual fees of €1.300 for LNI AIFs are payable. If the LNI AIF has additional compartments a fee of €300 for each of the 2nd to 15th compartment is payable and a fee of €250 for each compartment from the 16th compartment onwards is payable.
Costs of setup and obtaining approval for the seting up an AIF in Cyprus:
- Advice on and assistance with completion of the Application Form for the Fund and the forms for its officers and directors.
- Preparation of the Memorandum and Articles of Association and incorporation of the IILC, or the CFs rules, or partnership agreement.
- Preparation of the appropriate AIF prospectus and key investor information document.
- Assisting with/ arranging for the appointment of a depositary and manager
- Obtaining the necessary permits from CySEC.
- Assistance with set up of the office. Finding the right space, recruitment of employees, licensed individuals, advice and set up of information technology etc.
Once the client knows the type of AIF and its requirements (depositary, manager), he may obtain an inclusive fee quote for all the services that shall be provided to him. The quote shall include acounting fees, lawyers’ fees, other associates fees and all of the Cyprus Government duties and charges.
Cost of Administration and other services: These shall include but not be limited to:
- Management Company Fees.
- Legal Fees.
- Investment advisor.
- Administration and accounting service including calculation of the NAV, handling of all subscriptions, distributions, and redemptions.
- Valuations.
- Board of Director fees.
Important Note
The above information is current as of 2017 and is subject to changes from time to time. Persons interested to form AIF’s in the Republic of Cyprus should seek our updated professional advice before committing themselves into any transaction or decision.
Our services:
If setting up an AIF is what you need we are here to help you through the whole process of setting it up, of obtaining a licence from CySEC, and, through our associates, of offering accounting, legal, investment, management and administration services.