Anticipation of developments in the area of investment funds such as UCITS IV and the Alternative Investment Fund Managers Directive (AIFMD) have triggered an increased trend towards the re-domiciliation of funds to well regulated jurisdictions. The mechanics of how a company could relocate into Ireland until recently involved the incorporation of a new fund company in Ireland and the transfer of assets between the existing fund and a new Irish fund. The tax implications of such transfers and the possible repercussions in terms of distribution networks and transfer agency issues all needed to be taken into account.
The Companies (Miscellaneous Provisions) Act 2009 (the Act) was passed into law on 18 December 2009. Section 3(j) & 5 of the Act provide a framework for streamlining the processes whereby the re-domiciliation of fund companies into and out of Ireland can be dealt with in a more efficient manner. These sections of the Act are not yet in operation and will be commenced by a separate commencement order. Section 3(j) of the Act provides a mechanism for companies to re-register in Ireland by making a single filing in the Companies Registration Office. The migrating company must also make an application to the Financial Regulator for authorisation as a UCITS or non-UCITS, as applicable, in tandem with the application to the CRO. The application to the CRO must also be accompanied by the relevant fees and confirmation by way of statutory declaration that the migrating company has applied to the Financial Regulator for authorisation to carry on business as an investment company under the applicable Irish legislation.
The internal company consents to the re-domiciliation can be dealt with at one meeting of the shareholders of the migrating company held in the jurisdiction of origin.
Once the filing of the application has been made, the CRO must be satisfied that all the requirements of the Companies Acts have been complied with before issuing a certificate of registration to the migrating company. The Financial Regulator will then issue the CRO with a notice of its intention to authorise the migrating company and at that stage the CRO will be in a position to issue a certificate of registration. Once this is complete the Financial Regulator can then issue the company with authorisation to carry on the business of an investment company. It is envisaged that the CRO and the Financial Regulator will work closely to ensure the re-registration (at the CRO) and the authorisation (at the Financial Regulator) will happen simultaneously. The migrating company must then comply with all the laws of its original jurisdiction of domicile to de-register in that domicile and notify the Registrar and the Financial Regulator within three days of its de-registration in the relevant jurisdiction.
The simplified process of re-registration introduced by the Act is a very welcome development for the Irish funds industry and Ireland should be in a good position to take advantage of fund relocations with the "no nonsense" approach to re-registration of fund companies available under this legislation.