The Commission announced the immediate revocation of the Non-Guernsey Scheme regime on 11 May 2021. This means that the regime which applied to licensees providing management, administration or custody services to collective investment schemes not established or incorporated in the Bailiwick of Guernsey (and therefore not authorised or registered by the Commission) has been withdrawn.
Exempt Non-Guernsey Schemes
Section 25 of The Protection of Investors (Bailiwick of Guernsey) Law, 2020 (POI Law) enables regulations to be issued which prescribe circumstances where controlled investment business shall be deemed not to have been carried on and where no licence under the POI Law will be required.
Regulations have granted “Designated Territory” status to:
• United Kingdom;
• Isle of Man; and
• Republic of Ireland.
An applicant carrying on business in relation to collective investment schemes with a main place of business in a Designated Territory does not require a licence under the POI Law to promote certain collective investment schemes in the Bailiwick, but must give prior notice to the GFSC by completion of Form EX.
Fees are payable for funds other than those domiciled in Jersey, an application fee and an annual fee which is reduced pro rata in the first year of approval. Current fee scales are detailed here.
Form EX should be completed by potential applicants which must list all applicable schemes the applicant intends to promote within the Bailiwick. The following must also be provided in respect of each fund:
• a copy of the latest prospectus and other promotional material;
• a copy of the latest annual report of the scheme;
• documentary evidence from the regulatory authority in the designated country or territory that the scheme is of a class or description specified in Schedule 2 to the Investor Protection (Designated Countries And Territories) Regulations 1989 and 1992; and
• the fees specified in the fee schedule. It should be noted that no fee is payable in respect of Jersey funds.
The completed Form EX must be accompanied by the signed Declaration and Undertaking.
Promotion of Non-Guernsey Schemes to POI licensees
A wider exemption is available in respect of the promotion of controlled investments (i.e. collective investment schemes, general securities and derivatives) to POI licensees and certain regulated entities.
The provision under the POI Law which restricts a person from carrying on, or holding himself out as carrying on, any “controlled investment business” in or from within the Bailiwick of Guernsey does not apply to a person (other than a Guernsey body or an individual ordinarily resident in Guernsey) promoting a controlled investment to a POI licensee or to a person licensed to carry on business under any of the Banking Supervision (Bailiwick of Guernsey) Law, 2020, the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. (Bailiwick of Guernsey) Law, 2020, the Insurance Business (Bailiwick of Guernsey) Law, 2002 (as amended), or the Insurance Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law, 2002 (as amended) (Regulatory Laws) provided that person:
• carries on that activity in or from within Guernsey in a manner in which he is permitted to carry it on in or from within, and under the law of, a Designated Territory;
• has his main place of business in that Designated Territory and does not carry on any restricted activity from a permanent place of business in Guernsey;
• is recognised as a national of that Designated Territory by its law (and has provided evidence of the same),
and such person has given written notice to the GFSC of the date from which it intends to carry out the promotional activity by completion of the following webpage form: https://www.gfsc.gg/overseas-promotions-form (the Webpage Notification).
A person satisfying these requirements may promote controlled investments to POI Licensees and persons regulated under one of the Regulatory Laws immediately following submission of the Webpage Notification (i.e. the procedure is “notification only” and the GFSC’s confirmation of the exemption is not required as in the case of the Form EX procedure noted above).