On 23 December 2009, the President of Ireland signed into law the Companies (Miscellaneous Provisions) Act 2009, which introduces new provisions specifically for the efficient re-domiciling of investment funds to Ireland. In a climate of strong investor demand for regulated product, this development presents asset managers with a significant opportunity to re-locate funds established in other jurisdictions to one of the world’s most advantageous fund domiciles, using a straightforward regulatory process. James Scanlon discusses the key advantages of the new regime as well as giving an outline of the main practical steps involved in order to effect a re-domiciliation.
Up to now, investment companies in other jurisdictions wishing to relocate to Ireland would have used mechanisms that provided for the incorporation of a new fund in Ireland and the transfer of assets from the existing fund to the new fund. Although this process has worked efficiently for many years, it has obvious drawbacks. The transfer of assets between two legal structures may not be efficient from a tax perspective. Management of transfer agency issues may be complicated. In addition, it becomes necessary to build a distribution network for the new company rather than rely on existing registrations and distribution networks. The new provisions have been prepared with the intention of providing a simple process for investment funds seeking to relocate to Ireland and has the following key advantages:
For Irish law purposes, a migrating company is not treated as a new legal entity, rather the existing corporate identity is retained;
- There is no transfer of assets between funds;
- Re-domiciliation does not affect any of the existing contracts to which the migrating company is a party, ensuring continuity of those contractual arrangements and activities;
- Authorisation of the migrating company by the Financial Regulator will be co-ordinated with the Irish Companies Registration Office (“CRO”) in order to achieve simultaneous authorisation and registration, ensuring that the re-domiciled company benefits from Ireland’s favourable tax regime for investment funds; and
- For the purposes of effecting the re-domiciliation, the new procedure does not require a general meeting of shareholders of the migrating company in Ireland.
An outline of some of the practical steps involved in the new re-domiciliation procedure is as follows:
- A single filing of registration documents is made with the CRO in Ireland. This filing includes a copy of the migrating company’s corporate and constitutive documents; a statutory declaration from a director of the migrating company relating to matters such as solvency of the migrating company and compliance with the laws of its current domicile; and information on matters such as the proposed registered office in Ireland.
- An application is made simultaneously to the Financial Regulator for authorisation of the migrating company either as a UCITS or non-UCITS investment company, depending on the migrating company’s investment policies.
- Where appropriate, notification issues from the Financial Regulator to the CRO and the migrating company that it proposes to authorise the migrating company to carry out business in Ireland. Upon receipt of this notice, the CRO may issue a certificate of registration of the migrating company by way of continuation as a body corporate under Irish law and, simultaneously, the Financial Regulator authorises the migrating company.
- The migrating company applies to be de-registered in its home domicile, and notifies the CRO and the Financial Regulator within 3 days of having been de-registered.
Ireland is widely regarded as the jurisdiction of choice for asset managers seeking to establish regulated fund products for global distribution. The introduction of the new re-domiciliation provisions further enhances the efficiencies of the Irish regulatory framework and enables the re-location of investment fund companies established in other jurisdictions to Ireland pursuant to a simple and efficient procedure - with the aim of minimal disruption to day-to-day management and distribution of the funds.