The guidelines give further detail on the rules on asset segregation set out in Article 21 of the AIFMD and Article 99 of the AIFMD Level 2 Regulation (Regulation 231/2013) (which gives detail on the segregation requirements where a depositary delegates safekeeping to a third party). ESMA opines that the segregation requirement in Article 99(1)(a) of the Level 2 Regulation means that, where a depositary delegates to the safekeeping of assets to a third party, the third party must distinguish assets of alternative investment fund (AIF) clients from
- its own assets;
- the assets of any other client of the third party;
- the assets belonging to the depositary itself; and
- the assets belonging to clients of the depositary that are not AIFs.
Accordingly, the account where the AIF's assets are to be kept at the level of the delegated third party may only comprise assets of the AIF for which the safekeeping has been delegated to the third party and assets of other AIFs (omnibus accounts). This is of particular concern to AIFMs, depositaries and prime brokers.
The Consultation includes draft guidelines and examines whether the assets that can be held in such an account are only those coming from the same delegating depositary or, alternatively, whether the omnibus account can hold assets for AIF clients coming from different delegating depositaries. In the guidelines (in Annex III), ESMA seeks views on two alternative options:
- First option. The account on which the AIF's assets are to be kept by the delegated third party may only comprise assets of the AIF and assets of other AIFs of the same delegating depositary. Assets of AIFs of other depositaries would be considered as assets of the third party's "other clients" for the purpose of Article 99(1)(a).
- Second option. A delegated third party holding assets for multiple depositary clients would not be required to have separate accounts for the AIF assets of each of the delegating depositaries.
The deadline for responses is 30 January 2015. ESMA intends to finalise the guidelines and publish a final report in the second quarter of 2015.