Introduction
Funds and fund services providers
Investment advisers
The Jersey Financial Services Commission (JFSC) has published new disclosure requirements relating to sustainable investment. The requirements aim to address the risk of "greenwashing" (ie, funds being mislabelled as having a sustainable objective) and will apply to:
- certified funds;
- certain fund services businesses;
- Jersey private funds; and
- investment advisers.
Following consultation with the relevant industry stakeholders, the disclosure requirements are a proportionate response to changes driven by evolving international standards in environmental, social and governance.
The requirements will be set out in updated codes of practice applicable, respectively, to certified funds, fund services businesses and investment businesses as well as in the updated Jersey Private Fund Guide.
"Sustainable investment" is defined as investment that contributes to either an environmental or social objective. Notably, the requirements do not replicate equivalent provisions of the EU Sustainable Finance Disclosure Regulation and do not depend on the nature and degree of the fund's sustainable objective. Instead, they apply to all funds that are marketed on the basis of investing in a sustainable investment as part of their investment objective.
Funds and fund services providers
Where a fund is marketed as a sustainable investment, it will have to disclose all material information relating to the sustainable investment strategy and objectives, including:
- alignment with any specific taxonomy or, where there is no alignment to a specific taxonomy, a statement to that effect;
- the proportion of investments that are sustainable;
- the basis on which due diligence, benchmarking and performance measurement and reporting are likely to be conducted; and
- any limitations to methodologies and data.
The JFSC has not issued a prescribed template for the disclosures in order to enable funds to meet their obligations, using existing templates where appropriate.
As far as fund services businesses are concerned (ie, Jersey service providers that are regulated in the conduct of fund services business pursuant to the Financial Services (Jersey) Law 1998 (registered persons)), the obligation to ensure that a fund complies with the disclosure requirements will apply only:
- when the registered persons cannot evidence that the fund has complied with the requirements imposed on the fund under the relevant code of practice; and
- to registered persons that are the governing body of the fund (ie, self-managed funds, general partners or trustees and managing trustees) or that otherwise accept responsibility for the document in which the disclosures are made, in accordance with Jersey regulatory requirements, in that such persons have responsibility around the investment objective and marketing of the fund.
Registered persons will have to notify the JFSC in writing within five business days of becoming aware that the fund has not made the requisite disclosures in relation to the sustainable investment strategy and objectives of the fund.
The effective date for the disclosures for new funds, which may be made via a website, pre-contractual document, prospectus or documents in which the terms of investing in the fund are contained (eg, a subscription agreement) is 15 July 2021. For funds in existence prior to 15 July 2021, a six-month transitional period with an effective date of 17 January 2022 will apply.
Entities that are regulated in the conduct of investment business pursuant to the Financial Services (Jersey) Law 1998 and that provide investment advice to clients in relation to a fund which is marketed based on investing in a sustainable investment will have to:
- inform and make available to the client the appropriate disclosure information in relation to the sustainable investment strategy and objectives of the fund; or
- inform the client if no such disclosure information is available.
The effective date for the disclosures is 17 January 2022.
For further information on this topic please contact Emily Haithwaite at Ogier by telephone (+44 1534 514 000) or email ([email protected]). The Ogier website can be accessed at www.ogier.com.