Legal Updates

 Asset Management and Investment FundsJuly 16, 2020

Redomiciling your Investment Fund to Ireland

Share this

Download PDF

For further information on any of the issues discussed in this publication please contact the related contact(s) on this page.

Introduction

Over the course of the last 30 years, Ireland has earned a deserved reputation as a premier location in which to establish a regulated investment fund, ranking amongst the most trusted, flexible and advantageous international fund domiciles. This reputation is due in no small part to the variety of funds from traditional long only to sophisticated alternatives which may be established under the Irish legal and regulatory system.

At present over 1,000 asset managers from over 50 countries manage in excess of Euro 3,000 billion of assets in Irish regulated funds.

Ireland’s ability to react to the product demands of both fund promoters and investors contributes to the success of the industry. The recently appointed Irish government will enable us to offer the market an enhanced product range when appropriate Investment Limited Partnership legislation is passed in the near future.

The application to and authorisation by the Central Bank of Ireland (“CBI”) of new funds structured either as ICAVs, Unit Trusts, Common Contractual Funds, PLCs and shortly ILPs will continue to be the primary driver of fund industry growth here in Ireland. We do however anticipate that funds seeking to redomicile from other jurisdictions will also continue to contribute to this growth.

Background to Redomiciliation of funds to Ireland

Redomiciliation of offshore funds to Ireland was always possible either by the in specie transfer of assets from an existing offshore fund to a new or existing Irish fund or through a scheme of amalgamation. While these methods were functional they were somewhat cumbersome. Consequently, the process was streamlined by the enactment of Companies (Miscellaneous Provisions) Act, 2009 (the “Act”).

The Act enabled funds from the following jurisdictions to re-domicile to Ireland in a far more efficient manner:

Bermuda

The British Virgin Islands

The Cayman Islands

Jersey

Guernsey

The Isle of Man

When the Irish Collective Asset-management Vehicles Act 2015 (the “ICAV Act”) was enacted legislators were mindful to ensure adequate provisions were included to enable funds choosing to redomicile to Ireland by continuation1 to do so by application to the CBI. The ICAV Act continuation process aims to ensure minimal disruption to the management and distribution of the redomiciling fund.

The UCITS Regulations of course permit existing UCITS funds from other European Union (“EU”) member counties to merge with existing or new Irish UCITS funds. This has enabled many asset managers to consolidate their fund ranges to Ireland and will facilitate any asset managers seeking to migrate UCITS funds to Ireland post Brexit. We have separately prepared a detailed publication on the UCITS merger process which is available here.

Reasons for Re-Domiciling an Investment Fund to Ireland

There are many reasons why fund promoters may make the decision to re-domicile their investment fund to Ireland, including the desire to be based in a regulated jurisdiction, the desire to leverage off the availability of experienced and highly professional service providers or simply as a reaction to investor demand.

Regulation

Ireland is a regulated jurisdiction offering both UCITS and alternative investment fund (“AIF”) products across the whole spectrum from plain vanilla long only products through to UCITS alternatives, hedge funds, ETFs and fund of funds, real estate and private equity schemes. The CBI has many years of experience in authorising and regulating sophisticated investment strategies and products and has adapted and developed its regulations to keep pace with developments in the funds industry internationally.

Legal Environment

Ireland operates under a common law legal system with a variety of fund structures available.

Service Providers

All of the leading fund depositaries and administrators have significant operations in Ireland staffed by experienced teams with in depth experience across the full range of fund products. The market is very competitive and asset managers can provide a real value for money service offering for the investors in their Irish fund ranges.

International Status

Ireland is and will continue to be a member of the EU, the Organisation for Economic Co-Operation and Development (“OECD”) and the Financial Action Task Force (“FATF”).

Taxation

One of the key drivers behind the growth and development of the Irish funds industry has been Ireland’s favourable tax regime for regulated investment funds. Our separate tax publication, which can be read here, covers this in detail. In brief, the key benefits of the tax regime are that investment funds themselves are not chargeable to Irish tax in respect of their income and/or gains. Furthermore, non-Irish resident investors are not taxed in Ireland on either (i) a disposal of their shares/units in the fund or (ii) distributions from the fund. In addition, Ireland has a wide (and expanding) network of double taxation treaties. Combined with an attractive SPV tax regime, alternative investment funds are increasingly using Ireland as a domicile because of the ability to access Ireland’s double tax treaties to mitigate foreign taxes.

It should also be noted that simplification measures exist to ensure that no unintentional Irish tax arises on the re-domiciliation and also to reduce the administrative burden in respect of existing investors in the fund. The investment fund may make a simple declaration within 30 days from the date the investment fund re-domiciles to Ireland stating that to the best of its knowledge and belief that at the time of the re-domicile it has no Irish resident investors (other than such investors whose name and addresses are set out on the schedule to the declaration). Alternatively, investment funds may be able to obtain non-resident declarations from existing investors at the time of the redomicile.

Benefits of Re-Domiciling your Investment Fund to Ireland as an ICAV

We have set out below some of the possible benefits of redomiciliation to Ireland by continuation to an ICAV.

  • registration in Ireland by way of continuation means that your existing fund vehicle continues to operate as if it had always been registered in Ireland as an ICAV with minimal disruption.
  • the track record of your existing fund can be maintained.
  • no portfolio rebalance or realisation will need to occur provided compliance with either UCITS or AIFMD Regulations are complied with.
  • existing material contracts to which the migrating fund is a party are not impacted, ensuring continuity of those contractual arrangements and activities.
  • shareholders ,depending on the tax laws in their own jurisdiction, may be able to avoid a tax charge on the fund redomiciling as investors will not have disposed of their shares in the fund upon it redomiciling to Ireland / no tax event occurs.
  • maintaining the accounting records and maintaining assets within the migrating fund.
  • minimum impact, if any, on the existing rights of the shareholders in the migrating fund.

Process for Re-Domiciling an investment fund as an ICAV

In advance of re-domiciling your investment fund, there are some practical matters that should be considered in conjunction with the migrating fund’s local legal and tax advisers. The approval from the existing shareholders in the migrating fund is to be obtained in home jurisdiction in accordance with the constitutive document of the migrating fund. Shareholders’ approval should also be sought, subject to the constitutive document of the migrating fund, in the event that any amendments to either the investment objective policy, dealing frequency, or consequential fee increase. The constitutive document of the migrating fund will need to be reviewed to ensure that it complies with Irish law and meets the requirements of the CBI.

The existing asset manager of the migrating should seek approval as a discretionary asset manager from the CBI if not previously approved. This process is straightforward for asset managers currently regulated in countries which the CBI deems to be equivalent to Ireland. The migrating fund will need to formally de-register in its existing home jurisdiction and ensure the payment of any regulatory fees owing.

The migrating fund may already use an administrator based in Ireland, if not, it will need to select one and also appoint an Irish depositary. Two Irish resident directors are selected for appointment to the Irish fund, at least 50% of the ICAV board should be resident in EEA. The migrating fund may also decide to appoint a management company prior to its authorisation by the CBI. A local auditor and company secretary should also be selected. Many migrating funds continue with the local Irish office of the migrating fund’s existing auditor.

You should ensure that a plan, paying particular regard to the specific timing considerations for the execution of the statutory declarations, the declaration of solvency, as well as for the preparation of the independent person’s report of the migrating fund is agreed with all relevant stakeholders of the migrating fund, prior to the initiation of the project.

The application by the migrating fund to the CBI to migrate to Ireland and to simultaneously register as an ICAV occurs on the same day. This application to the CBI for registration of the migrating Fund as an ICAV will differ depending on whether the migrating fund is seeking CBI approval as either a UCITS fund or as an AIF for either retail of qualifying investors. In the case of a UCITS or retail investor AIF, the CBI will require a prior review of the fund documentation. Whereas for a qualifying investor AIF this will not be required, although in the event that the migrating qualifying investor AIF has unusual features a pre-authorisation submission may be required.

Where the migrating fund is a non EU fund and is seeking approval in Ireland as a UCITS, we would estimate between three to four months for a re-domiciliation process. The redomiciliation process for a qualifying investor AIF can be significantly reduced.

We have set out the documents required to be filed with the CBI pursuant to the CBI’s AR3 Application form and as part of the registration application in Appendix 1.

The Dillon Eustace Asset Management and Investment Funds Team has a broad experience in assisting a number of asset managers with redomiciliation and merger projects.

APPENDIX 1

Documentation to be Submitted to the CBI by migrating fund in support of an Application for Registration as an ICAV by way of Continuation.

(i)an authenticated copy of the certificate of registration, or equivalent, of the migrating fund;
(ii)

an authenticated copy of the existing constitutional document of the migrating fund;

(iii)a list setting out certain details in relation to the directors and secretary of the migrating fund;
(iv)a schedule of charges or security interests created by the migrating fund;
(v)

a statutory declaration of a director of the migrating fund2 sworn at a date that is not more than 28 days prior to the date on which the application is made to the effect that;

  • the migrating fund is currently established and registered in the relevant original jurisdiction, no petition or other similar proceeding to wind up or liquidate the company has been notified to it and remains outstanding in any place, and no order has been notified to the migrating fund or resolution adopted to wind-up or liquidate the migrating fund in any jurisdiction;
  • the appointment of a receiver, liquidator examiner or other similar person has not been notified to the migrating fund and no such person is acting in that capacity in any place with respect to the migrating fund or its property or any part thereof;
  • the migrating fund is not operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the migrating fund with creditors in any jurisdiction;
  • the migrating fund has served notice of the proposed registration on its creditors;
  • any consent or approval to the proposed registration in Ireland required by any contract entered into or undertaking given by the migrating fund has been obtained or waived, as the case may be; and
  • the registration is permitted by and has been approved in accordance with the constitutive document of the migrating fund.

(vi)

a statutory declaration of solvency of a director of the migrating fund sworn as at a date that is not more than 28 days prior to the date on which the application is made. It is important to note that this declaration must be accompanied by a statement of assets and liabilities and the director must confirm that, having made a full enquiry into the affairs of the migrating fund, it has formed the opinion that the migrating fund is able to pay its debts as they fall due. This must be accompanied by a report of an independent person (i.e. any person qualified to act as auditor to the migrating fund) that the statement of assets and liabilities and the opinion of the director as to solvency are reasonable3. A statement must also be provided by the independent person confirming that he/she has given and has not withdrawn consent to the making of the declaration with the report attached to it;
(vii)

a statutory declaration made by a practising solicitor engaged for the purpose by the migrating fund, or a director of the migrating fund, stating that the requirements4 in relation to the documents to accompany the application to the CBI have been complied with and the CBI may accept such declaration as sufficient evidence of compliance;

(viii)a schedule and details of charges or security interests created by the migrating fund that would, if they had been created by a company incorporated in Ireland, have been registrable in Ireland.
(ix)notification of the proposed name of the ICAV, which must not in the opinion of the CBI be undesirable or misleading.

1 Section 147, Part 9, Chapter 1 of the ICAV Act.

2 In accordance with Section 146 (1) Part 9, Chapter 1 of the ICAV Act.

3 In accordance with Section 152, Part 9, Chapter 3 of the ICAV Act.

4 Section 147 (2) of Part 9, Chapter 1 of the ICAV Act.

DISCLAIMER: This document is for information purposes only and does not purport to represent legal advice. If you have any queries or would like further information relating to any of the above matters, please refer to the contacts above or your usual contact in Dillon Eustace.

Copyright Notice: © 2021 Dillon Eustace. All rights reserved.