Updated guidance for CCIVs

summary

The Australian Securities and Investments Commission (“ASIC”) released two key materials regarding the licencing and additional requirements for corporate collective investment vehicles (“CCIVs”), effective from 1 June 2022. ASIC initially published CP360: Corporate Collective investment vehicles: Preparing for the commencement of the new regime (CP360) in March 2022, seeking feedback on proposed guidance regarding assessing license applications for CCIVs. Responses for these submissions were published in June 2022 in Report 278: Response to submissions on CP 360 Corporate Collective investment vehicles: Preparing for the commencement of the new regime (REP 728) as the first of two documents providing updated guidance around licencing of CCIVs. The second document, Information Sheet 272 How to register a corporate collective investment vehicle and sub-fund (INFO 272) provides guidance on the requirements that must be met before a CCIV or a sub-fund can be registered, specifically providing information on the registration requirements and the formalities of applying and lodging applications as well as registering further sub-funds.

what are ccivs & sub-funds?

A CCIV is a type of company limited by shares, with a single corporate director, that must be a public company and is a separate legal entity designed to be an alternative to a trust-based managed investment scheme. CCIVs must have at least one sub-fund, which is not its own separate legal entity, with at least one member and each security issued by a CCIV must be referable to a sub-fund.  CCIVs were primarily established to encourage foreign investments into the Australian fund management industry by creating a familiar structure for foreign investors to engage with.

what are ccivs & sub-funds? key takeaways from rep728 & info272

rep728

The following provides the key takeaways highlighted within REP728:

  • If an Australian financial services (“AFS”) licensee is approved as an authorised licensee, ASIC will apply a reasonable degree of scrutiny when assessing whether to grant a corporate director authorisation to the licence.
  • ASIC now will accept re-lodgements of documents regarding competence in operating registered or unregistered management investment schemes of the same asset type as proposed to be held by the CCIV.
  • AFS licence applications from prospective corporate directors will be held in priority for an initial period of at least six months following commencement of the CCIV regime.
  • ASIC will not be posing any limitations of single sub-funds on corporate directors of wholesale CCIVs. A limit may be imposed on a single sub-funds of a corporate director of retail CCIVs where the corporate director has failed to demonstrate that it has the organisational competence and capacity to conduct broader operations.
  • AFS licence holders that are both corporate directors and responsible entities will be required to hold adequate professional indemnity insurance regarding the nature of activities carried out by the licensee.
  • There is a single net tangible asset requirement for AFS licence holders that are both corporate directors and responsible entities.

 info272

Info272 provides guidance on registering CCIVs and initial sub-funds and registering sub-funds of a CCIV.

Notably INFO272 sets out the CCIV registration requirements that must be met which includes that:

  • The sole proposed director of the company (i.e., the corporate director of the CCIV) must be a public company that holds an AFS licence, authorising it to operate the business and conduct the affairs of a retail CCIV, wholesale CCIV or both. The AFS licence authorisation will also specify the particular asset types that can be held by the CCIV.
  • The company must, on registration, have at least one sub fund.
  • Each sub fund of the company must, on registration, have at least one member.
  • If the company is intended at the time of registration to be a retail CCIV, the company must have a compliance plan and compliance plan auditor.
  • Notice must be given on the CCIV registration application form about whether the CCIV is intended to be a retail CCIV or a wholesale CCIV.

Further, it is highlighted that CCIVs must have a constitution and retail CCIVs must have a compliance plan.

To register further sub-funds, ASIC requires a CCIV to have at least one registered sub-fund. AFS licences must be varied to remove conditions that limit operations of retail CCIVs to operate a single sub-fund before registering for additional sub-funds.  Further, a sub-fund of a CCIV can be registered as an Australian passport fund for the purposes of the Asia Region Funds Passport. If the sub-fund of a CCIV registers as an Australian passport fund, the corporate director of the CCIV will be the passport fund operator.

Please click here to read our previous article on CCIVs, which includes a useful table of the comparative features of CCIVs with other investments fund structures in various jurisdictions.

For any more guidance or advice on CCIVs, Cleveland & Co External in-house counsel™, your specialist outsourced legal team is here to help.

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