In addition to the current fund frameworks that are currently available in Malta, which can be categorised into Retail Schemes, Professional Investor Funds (PIFs), and Alternative Investment Funds (AIFs), fund promoters are now witnessing a new fund framework, namely the Notified AIFs (hereinafter referred to as ‘NAIFs’).
NAIFs have been introduced into Maltese legislation by means of Legal Notice 219 of 2016, the Investment Services Act (List of Notified AIFs) Regulations 2016. Malta and Luxembourg are the first two European jurisdictions adopting the NAIF framework.
By means of the NAIF framework, the dual recognition which has been previously imposed on the product and the AIFM has been removed. In a nutshell, this means that due to the fact that a NAIF is an EU product, the AIFMD marketing passport may be availed of and, hence, the NAIF may be marketed on a cross-border basis to professional investors within the European Economic Area (EEA).
NAIFs are alternative investment funds that are compliant with the requirements under the Alternative Investment Fund Manager Directive (‘AIFMD’). A NAIF is established through a notification by the AIFM to the Malta Financial Services Authority (hereinafter referred to as ‘the Authority’), once the pertinent conditions outlined in the regulations and the Investment Services Rules for Investment Services Providers (hereinafter referred to as ‘the Rules’) are fulfilled.
In contrast with the Maltese Professional Investor Funds, a NAIF does not need to go through the Authority’s authorisation process.
As per Article 3 of the abovementioned Legal Notice, an AIFM may submit a request to the Authority for the inclusion in the List of Notified AIFs as an AIF established in Malta, provided that the AIFM fulfils at least one of the following conditions:
- the AIFM is in possession of an investment services licence granted in terms of Maltese law to provide fund management services to AIFs established in Malta; or
- the AIFM is authorised to provide services to an AIF established in Malta in accordance with the pertinent regulations of the Investment Services Act (Alternative Investment Fund Manager) (Passport) Regulations.
Hence, the fund manager that is establishing and effectively managing a NAIF may be either a full-scope AIFM authorised in terms of the Investment Services Act (hereinafter referred to as ‘the ISA’), or a European Union AIFM, being in possession of a management passport. The AIFM has to submit a notification pack to the Authority, which shall include the notification form, within thirty (30) working days from the date of resolution pertaining to the governing body of the AIF which is approving the prospectus.
Once in receipt of the notification pack, the Authority proceeds with adding the given AIF on the List of Notified AIFs within ten (10) working days from the day on which the notification pack is duly submitted. The notification pack inter alia includes a joint declaration by the AIFM and the governing body of the AIF, a declaration by the AIFM which confirms that it has performed the necessary due diligence, and a prospectus which contains the minimum contents that are required in terms of the Rules.
A NAIF can be open-ended or closed-ended and may be established in any form available under Maltese legislation. Such forms include investment companies such as SICAVs or INVCOs, contractual funds or incorporated cells within an incorporated cell company and unit trusts. It is to be noted that collective investment schemes that are already licensed as per the ISA cannot be converted into a NAIF.
The Authority reserves the right to remove a NAIF, including any Sub-Fund, from the List of Notified AIFs, at any time and at its sole discretion, by giving notice to the AIFM. The AIFM may request the removal of a NAIF or any Sub-Fund from the List of Notified AIFs at any time.
WDM International, through its expertise and good standing with the Authority can duly assist you in this regard, including in the preparation of the abovementioned supporting documentation.