Headlines

Luxembourg best centre for fund administration

Luxembourg was awarded “Best Centre for Fund Administration” at the Investment Week Fund Services Awards 2016, held in London on 4 October. The Awards are designed to celebrate cutting edge services and solutions in the fund management industry.

Marc-André Bechet, who collected the award on behalf of the Association of the Luxembourg Fund Industry, said: “This award is a great honour for us and recognition of the work we are doing to support asset managers. Luxembourg’s fund centre is committed to helping asset managers to grow their business globally and we continually look to ensure that we offer leading-edge support.  This year, for example, we have set up the "ALFI FinTech Forum" to identify and analyse the effect of digital and financial technologies on the industry and to identify challenges and opportunities for the fund management industry. Investment Week’s award is welcome recognition of the work we are doing in Luxembourg and indeed globally to support the industry.”

Our picture shows Marc-André Bechet, Director Legal & Tax at ALFI collecting the award.

©Photo by Investment Week

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ALFI comments on alleged structural vulnerabilities from asset management

On 21 September 2016, ALFI responded to the consultation “Proposed Policy Recommendations to Address Structural Vulnerabilities from Asset Management Activities” issued by the Financial Stability Board (FSB) in June this year.

ALFI confirmed its support regarding efforts to promote resilient and transparent financial markets and welcomed that the FSB has focused in this consultation on asset management activities. In general, ALFI believes asset management activities do not entail structural vulnerabilities and stressed that, in Europe, the sector is already highly regulated. As such, ALFI does not believe that some of the scenarios envisaged by the FSB, such as securities lending activities, if conducted in accordance with current European standards, or transfer of accounts, present a systemic risk to the functioning of markets.

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Clarifications on the VAT treatment of directors’ fees issued

On 30 September 2016, the Luxembourg Indirect Tax Administration issued Circular No 781 dealing with the VAT treatment of directors’ fees. The Circular generally confirms that the activity of a director of a Luxembourg company is subject to VAT at the standard rate (currently 17%). The reverse-charge principle applies in the situation where a director in a Luxembourg company is not established or resident in Luxembourg.

The Circular does not specifically deal with the situation of directors of Luxembourg investment funds. It is however understood that the VAT exemption relating to the management of investment funds as set out in article 44 1 d) of the VAT Code should be applicable to the extent that these services could qualify as “specific and essential” for the activity of the fund.

In practical terms, this means that directors fees paid to directors of corporate entities should be exempt from VAT.

Directors fees paid to directors of management companies should be exempt only for the portion that relates to the management of the funds of the management company (common funds but also corporate entities that have designated a management company) while the portion that relates to the management of the management company as such would be subject to VAT. Directors of management companies must be in a position to substantiate the application of the VAT exemption.

On the same date, the Luxembourg Indirect Tax Administration also issued Frequently Asked Questions which provide useful guidance on this subject.

Click here to access the text of the Circular and here for the text of the FAQs (both in French).

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RAIFs to be inscribed on a list with the Trade and Companies Register

As per article 34 (3) of the Law of 23 July 2016 on Reserved Alternative Investment Funds (RAIF), a RAIF must be inscribed on a list held by the Trade and Companies Register within 20 working days from its constitution by notarial deed. On 1 August 2016, a Grand-Ducal Regulation was published in Memorial A No. 149, amending the Grand-Ducal Regulation of 23 January 2003 on the implementation of the Law of 19 December 2002 on the Trade and Companies Register and the accounting and annual accounts of companies, as amended. As set out in article 10bis of this Grand-Ducal Regulation, a RAIF which does not have the legal form of a SICAV or a common fund is subject to the same requirement to become inscribed on that list. Click here for the text of the Regulation (in French). Please also refer to our newsflash of 29 July 2016.

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Taxe d'Abonnement: Law on Electronic Filing of Tax Returns

On 28 July 2016, the Law of 23 July 2016 on electronic filing of tax returns for the taxe d’abonnement (subscription tax) was published in Memorial A No 139. The Law introduces an obligation for all investment funds to electronically file tax returns from 1 January 2018. Click here for the text of the law (in French).

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AEI on advance cross-border rulings and pricing arrangements transposed

The Luxembourg law dated 23 July 2016 transposing Council Directive (EU) 2015/2376 of 8 December 2015 modifying Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (so-called “DAC3”) has been published in the Mémorial. Click here to access the text of the law.

The law will apply as from 1^st January 2017 and extends the mandatory automatic exchange of information to a list of specific information on advance cross-border rulings and advance pricing arrangements issued, amended or renewed after 31 December 2016.

As for advance cross-border rulings and advance pricing arrangements issued before 31 December 2016, some specific measures are provided for as follows:

• for advance cross-border rulings and advance pricing arrangements issued, amended or renewed between 1^st  January 2012 and 31 December 2013, exchange of information will apply under the condition that they were still valid on 1^st January 2014;
• for advance cross-border rulings and advance pricing arrangements issued, amended or renewed between 1^st January 2014 and 31 December 2016, exchange of information will apply irrespective of whether they are still valid.

Information must be exchanged at the latest within 3 months following the end of the half of the calendar year during which the advance cross-border rulings and advance pricing arrangements have been issued, amended or renewed.

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New provisions on withholding tax on interest

The Luxembourg law dated 23 July 2016 implementing Council Directive (EU) 2015/2060 dated 10 November 2015 which repeals Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (so-called “EU Savings Directive”) and consequently the Luxembourg law dated 21 June 2005 which introduced the EU Savings Directive in Luxembourg legislation has been published in the Mémorial. Click here to access the text of the law.

This law also amends the law dated 23 December 2005 which has introduced a 10% final withholding tax on certain interest payments made to private persons who are Luxembourg tax residents.

The amendments introduced by the law dated 23 July 2016 are applicable as from 1^st January 2016.

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ESMA updates Q&As on the application of the AIFMD

The European Securities and Markets Authority (ESMA) has published an updated Q&A document on the application of the Alternative Investment Fund Managers Directive (AIFMD). The following question and answer has been added:

Question: Article 13 of Regulation (EU) 2015/2365 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012, requires UCITS management companies, UCITS investment companies, and AIFMs to provide information to investors on the use made of SFTs and total return swaps in the annual report of each UCITS/AIF under management, as well as in each half-yearly report for UCITS. As Article 13 applies from 13 January 2017, which report should be the first to include this disclosure?

Answer: The information should be included in the next annual or half-yearly report to be published after 13 January 2017 which may relate to a reporting period beginning before that date.

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ESMA consultation paper on MiFID II product governance requirements

On 5 October 2016 ESMA issued a consultation paper seeking stakeholders’ views on draft guidelines on MiFID II product governance requirements. The paper focuses mainly on the “target market assessment”, distinguishing between the obligations of product manufacturers (identification of the potential target market, differentiation on the basis of the nature of the products, articulation with the distribution strategy)  and of distributors (timing and relationship between target market assessment and other product governance processes, identification of the potential target market, client specific features, interaction with other investment services etc.). It also addresses transversal issues, namely the identification of the “negative” target market and the application of the target market requirements to investment firms dealing in wholesale markets. Deadline for responding to this paper is January 5, 2017.

To access the ESMA consultation click here.

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ESMA publishes responses to Call for evidence on asset segregation

On 23 September 2016, ALFI responded to the Call for evidence on asset segregation and custody services issued by the European Securities and Markets Authority (ESMA) in July this year.

In the meantime, ESMA has published the responses received to the Call for evidence on asset segregation and custody services.

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Extension of the AIFMD passport

On 19 July 2016, ESMA published its advice on the extension of the AIFMD passport to non-EU AIFMs and AIFs in accordance with article 67 of the AIFMD. The advice covers twelve non-EU countries: Australia, Bermuda, Canada, Cayman Islands, Guernsey, Hong Kong, Isle of Man, Japan, Jersey, Switzerland, Singapore and the United States. The advice will now be considered by the European Parliament, the Council and the Commission.

Click here to access ESMA’s advice and the related press release.

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EU Regulation on interchange fees for card-based payment transactions and Part II Funds

On 29 July 2016, a bill of law No 7024 was deposited with the Luxembourg Parliament, transposing Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions into Luxembourg legislation. The law will amend the law of 17 December 2010 concerning undertakings for collective investment and the law of 12 July 2013 on alternative investment fund managers. The most recent status on the adoption of the law can be accessed on the website of the Luxembourg Parliament here.

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ECON committee rejects PRIIPs Regulatory Technical Standards

On 1 September 2016, the European Parliament’s ECON Committee rejected the PRIIPs Regulatory Technical Standards by voting in favour of its Motion for Resolution by a huge majority (55 MEPs in favour, 0 against and 3 abstentions). The vote was preceded by an exchange of views with the EU Commission and the European Supervisory Authorities (ESAs). ECON members voiced their general unhappiness about how the Commission and the ESAs had cooperated with the Committee. MEPs felt that their concerns on several substantial issues (Multi Option Products, comprehension alert, and calibration of performance scenarios) had been ignored by the Commission.

MEPs added an amendment to the Motion stating that Commission should "consider a proposal postponing the application date of Regulation (EU) No 1286/2014 to ensure a smooth implementation of the requirements set out in the Regulation and the delegated regulation". It is important to note that the rejection by ECON does not delay the Regulation’s coming into force on 31 December 2016. For this to happen, the Commission would have to issue a "quick-fix" similar to MiFID II/MiFIR that would make changes to the Level-1 Regulation and postpone the coming-into-force. Before such a quick fix is adopted, the implementation deadline does not change.

Before the rejection by the Parliament becomes official, the full plenary has to vote on the Motion as well. The official deadline of the scrutiny period is 30 September 2016. Thus, the plenary vote has to take place at the next plenary session taking place in Strasbourg between 12 and 15 September. The Council of the EU on its side asked a while ago to extend the scrutiny period until 30 September 2016.

All institutions publicly expressed their intention to continue the discussions no matter if the Motion was ultimately approved or rejected.

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IOSCO report on good practice for fees and expenses of CIS

On 25 August 2016, IOSCO published its final report on Good Practice for Fees and Expenses of Collective Investment Schemes (CIS), which aims to identify common international examples of good practice that can be applied to CIS fees and expenses. ALFI participated in the previous consultation, click here to access again our response. The examples of good practice in this paper include both those previously published in 2004, and new examples. The key differences and enhancements relate to:

• defining permitted and prohibited costs and how new or increased fees should be approved and/or notified to investors;
• more detail on the calculation of performance fees;
• the provision of summarised information to investors on key elements of fees and expenses;
• the use of electronic media for disclosing information to investors about fees and expenses;
• more disclosure about types of costs charged to CIS as transaction costs;
• ways to manage and disclose conflicts of interest in the use of soft commission arrangements;
• disclosure of how soft commission arrangements are used;
• disclosure of double charging structures when one CIS invests in another; and
• more detail about keeping information on fees and expenses up to date and giving investors adequate notice of material changes.

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EU Commission proposes EuVECA and EuSEF Regulations review

In July 2016, the EU Commission published a proposal for a Regulation amending Regulation (EU) No 345/2013 on European venture capital funds (EuVECA) and Regulation (EU) No 346/2013 on European social entrepreneurship funds (EuSEF). The Proposal is designed to improve existing legislation that governs EuVECA and EuSEF. These are funds supporting young and innovative companies, or enterprises with the intention of generating positive social impact. The Proposal will amend the regulations in three main ways:

• extending the range of managers eligible to market and manage EuVECA and EuSEF funds;
• increasing the range of companies that can be invested in by EuVECA funds; and
• making the registration and cross border marketing of these funds easier and cheaper.

The Proposal is part of the Capital Markets Union (CMU) Action Plan and very well fits with its aim to unlock market-based investments to SMEs and long-term projects.

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ALFI issues FAQs on UCITS V

ALFI published a Questions and Answers document regarding the implementation of the Law of 10 May 2016 transposing Directive 2014/91/EU of the European Parliament and of the Council of the Council of 23 July 2014 (“UCITS V”) and timeline

The document covers the following aspects:

1. Amendments to depositary contracts;
2. Disclosure of policies on the management of conflicts of interest in the prospectus and/ or on a website;
3. Circular 2014/ 587 and more particularly, Appendix 2;
4. Increase of fees of depositaries in the context of the conversion to UCITS

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ALFI issues guidelines for the management of operational risks associated with fund distribution

With its Considerations for the Management of Operational Risks Associated with the Distribution of Funds, ALFI aims so present board members and senior management those areas that they may wish to consider when looking at the management of Operational Risks associated with the Distribution/Marketing of funds and when the developing their risk management functions by:

• highlighting the key sources of legal and regulatory guidance in relation to RM in order to get a common understanding thereof; and

• outlining a potential approach to:

- the identification of relevant operational risks associated with Distribution/Marketing to which the Funds and/or their ManCos are or may be exposed;

- the measurement and management of these identified operational risks; and

- the reporting with regard to these risks and related information to senior management and the Board by the risk management function.

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New Q&A document: Risk Management for AIF under AIFMD

ALFI's Risk Management Technical Committee updated the Q&A Risk Management for AIF under AIFMD covering all key dimensions of Risk Management activities under AIFMD (including, e.g. aspects in relation to key risk categories such as, Market risk, Credit risk, Liquidity risk etc. as well as governance/delegation topics).

The answers are not necessarily definitive and they might not be suitable for every circumstance. This document is not meant to be an industry standard or a guide to best practice but it represents the view of a group of market participants.

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News from ALFI's Asia Rep Office

Mainland China: WFOEs to be allowed to offer private fund management

In its 10^th Frequently Asked Questions (FAQs, in Chinese only), the Asset Management Association of China (AMAC) announced that, after registering themselves with the AMAC, wholly foreign owned enterprises (WFOEs) may be able to carry out private fund management business in China, rather than relying on a minority shareholder joint venture with a Chinese partner.

The FAQs provide that a WFOE should satisfy the following requirements in order to register with AMAC:

a. It shall be a company incorporated within the territory of the PRC;

b. Its foreign shareholder shall be a financial institution licensed by the financial regulatory authorities in its home jurisdiction, and the securities regulatory authorities of such jurisdiction shall have signed a memorandum of understanding on securities regulation cooperation with the CSRC or other institutions recognized by the CSRC;

c. It and its foreign shareholder have not been subject to any material penalty by a regulatory or judicial department in the past three years; and

d. Its foreign de facto controller (if any) shall meet the requirements set forth in items b and c above.

Recently, J.P. Morgan Asset Management has become the first WFOE licence holder with the term “asset management” in its business scope.

Beside the WFOE, an entity owned by a foreign party, solely and wholly, two other common structures are currently used: The Joint Venture (JV), a partnership entity between a foreign company/enterprise/other economic organization/individual and a Chinese company/enterprise/other economic organization, and the Representative Office (RO), an office established by a foreign company without a separate legal status.

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Thailand confirms joining the Asia Region Funds Passport (ARFP)

The Securities and Exchange Commission of Thailand has signed a Memorandum of Cooperation (MOC) confirming the official participation of Thailand in the Asia Region Funds Passport (ARFP) in late July.  The MOC is entered into force on 30 June. There are 18 months (from 30 June) for the signatories to set up domestic procedures.

Thailand is one of seven countries (beside Australia, Japan, Korea, New Zealand, the Philippines and Singapore) that support the APEC’s Asia Region Funds Passport.  As of end of July 2016, five countries have signed the MOC (except the Philippines and Singapore). The ARPF aims to provide a streamlined authorization platform for funds of the signatory countries to operate.

The announcement can be found on APAC official website.

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The Philippines approved the creation of Personal Management Trust

On 18 August 2016, the Central Bank of the Philippines, Bangko Sentral ng Pilipinas, approved the guidelines regarding the introduction of a new trust product, the Personal Management Trust (PMT) for the purpose of estate planning and asset management.

A person with a minimum of Ps 100,000 (USD 2,154) is eligible to open a PMT for managing and preserving his funds and properties to answer current and future needs of the designated beneficiaries.

The related press release can be found here.

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Upcoming ALFI events

12 October 2016: ALFI Leading Edge Conference London - Global Distribution

Register now! Very competitve registration fees (GBP 260/320) plus group discounts and free tickets for Asset Managers. See details.

Highlights:

• The investor of today and tomorrow: A Cerulli research on the end investor
• A world map of the funds’ world – from the hot to the cold spots
• How will fintech impact fund distribution?
• New product opportunities: spoilt for choice?
• A practical guide to KYC & KYD
• Change in global distribution regulations in Europe and beyond
• AIF passport: holy grail or business as usual

Full programme

Sponsorship & exhibition opportunities still available.

Event webpage

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25 October 2016: Leading Edge Conference - The new German Investment Tax Act

Highlights:

Retail Funds

Abolition of tax reporting, new lump sum taxation, partial tax exemptions, taxation of German source income and challenhging WHT-processes.

Special funds

Legal Requirements & Practical Challenges

Operational Topics

Inter alia: extended scope-new template of German tax auditor’s certification, proof of German fund status, involvement of tax-exempt investors

Full programme

Registration  - From € 175 for ALFI members! Send your teams – 10% saving for groups of 6 or more!

Sponsorship still available. Click here for details.

Event webpage

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8 & 9 November 2016: Switzerland Roadshow

Seminars in Geneva & Zurich will be held in English.

Sponsorship opportunities for ALFI members! Please contact events@alfi.lu

Programme and registration

Event webpage

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16 November 2016: TA & Distribution Forum

Highlights:

• What are the key drivers for the future of TA?
• How will FinTech impact the TA and fund distribution operating models?
• How will the rise of KYC utilities impact the end Investor and the TA value chain?
• How will global fund distribution look like in 2020?

Conference programme coming soon

Registration - Rates start at €195 for ALFI and TA Steering committee members! Early bird rate for bookings made by Friday, 7 October. Send your teams! 10% saving for groups of 4 or more! More details.

Interesting sponsorship opportunities such as Badge, Lunch, Cocktail, Wifi Card, Voting System. Rates start at € 1,500. Join our confirmed sponsors: Acolin, CACEIS, Multifonds, PwC.

Event webpage

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22 & 23 November 2016: ALFI European Alternative Investment Funds Conference

In association with AIMA, CAIA, INREV, LPEA

Gain insight from prominent Private Equity, Real Estate and Hedge Fund asset managers on latest market trends, get the supervisors and regulators’ perspective on regulatory initiatives, learn how institutional investors deal with the challenges of a zero interest rate environment, discuss with fund industry professionals about the future of fund ‘brands’, debate about the advantages of direct/indirect investment in Private Equity, Real Estate and Hedge Funds, discover the recent developments of niche products... and seize the valuable networking opportunities at ALFI’s 2016 European Alternative Investment Funds Conference.

Conference programme

Registration - Early bird rate for bookings made by 7 October. Special discounts for ALFI members and for AIMA, CAIA, INREV and LPEA members. More details.

50 FREE TICKETS for asset managers & institutional investors who are not based in Luxembourg. Join us!

Group discount: Register your teams and benefit from a 10% discount! Booking conditions & registration form.

Sponsorship & Exhibition: Join our 48 confirmed sponsors and exhibitors. Details - Do you have an idea for a new sponsorship? - Talk to us!

Event webpage

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10 – 13 January 2017: ALFI Asia Roadshow

Save the Dates!

Tuesday 10th January: Taipei
afternoon seminar in collaboration with Luxembourg for Finance

Wednesday 11th January: Tokyo  
afternoon seminar in the presence of H.E. Pierre Gramegna, Luxembourg Minister of Finance
in collaboration with Luxembourg for Finance

Friday 13th January: Hong Kong 
afternoon seminar in the presence of H.E. Pierre Gramegna, Luxembourg Minister of Finance
in collaboration with Luxembourg for Finance

More details and sponsorship opportunities coming soon! contact events@alfi.lu

Event webpage

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ALFI events calendar 2016/2017

For an overview of all events scheduled or endorsed so far by ALFI, have a look at the ALFI events calendar . Check out all upcoming events. Click on "Search Events" to filter by event type.

Don't wait for event details and topics to be set. Design your annual package now and get early visibility! You can commit to most roadshows and conferences through one single annual agreement form.

Do you have an idea of a new sponsorship? - Talk to us! ALFI events team - +352 223026.1 or events@alfi.lu

Note: the event calendar allows to have events listed either chronologically or by event category. Click on the name of the event for detailed information.

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Past ALFI events

3-5 October 2016: Roadshow to North America

Many participants from both Luxembourg and the US took advantage of the networking opportunities at the cocktail reception that followed the well-attended seminar organised by ALFI in collaboration with the Luxembourg Private Equity and Venture Capital Association (LPEA) and Luxembourg for Finance in New York early this week. Prior to the event in New York, ALFI hosted investment fund seminars in Toronto and Boston.

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29 September 2016: Hong Kong TA & Asset Servicing Seminar

Over 140 people attended the first ALFI Hong Kong TA & Asset Servicing seminar on 29^th September. After having launched the ALFI TA & Distribution working group in Hong Kong, the time was is ripe to “export” ALFI's TA & Distribution Forum to Hong Kong. Amongst other topics, speakers and panelists addressed fund distribution with a focus on key markets in the Asian region, regulatory opportunities for TA, Fintech (with a focus on drivers in the asset servicing space) and the potential transformation of the TA & Distribution operations value chain.

Click here to see the key take-aways from this conference!

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20 & 21 September 2016: ALFI Global Distribution Conference - 25th edition

More than 650 fund industry professionals from Luxembourg and abroad attended the Global Distribution Conference organised by ALFI in association with the Hong Kong Investment Funds Association (HKIFA) and the and the US based National Investment Company Service Association (NICSA). Among the speakers were (clockwise, starting in the upper left corner): Noel Fessey, COO Product Schroders Group and Managing Director, Schroders Luxembourg, and ALFI Board Member; Pascale Leroy, Partner, KPMG, Luxembourg; Guillaume Prache, Managing Director, Better Finance, Brussels; H.E. Pierre Gramegna, Minister of Finance, Luxembourg; Nils Kruse, Head of Legal & Compliance, GAM (Luxembourg) S.A.; Claude Marx, Director General, Commission de Surveillance du Secteur Financier, (CSSF), Luxembourg; Florence Stainier, Partner, Arendt & Medernach S.A., Luxembourg; Oliver Bilal, Head of EMEA, UBS Asset Management (UK) Ltd., London; Viviane Reding, Former Vice President of the European Commission, Member of the European Parliament; and Steve Haswell, Managing Director, Head of EMEA, Macquarie Investment Management, Munich.

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19 September 2016: ALFI Golf Tournament

26 teams took to the course on Monday 19th September to start the ball rolling for the 25th edition of the ALFI Global Distribution Conference in association with NICSA and HKIFA. The profits of the day were donated to the charities « LE RÊVE DU PETIT PRINCE » and « FONDATION AUTISME LUXEMBOURG ». Get an impression of the event by visiting our picture gallery.

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Professional training

Spotlight on the duties and responsibilities of depositaries

The recent implementation into Luxembourg law of the UCITS V Directive has again shed the light on the increased duties and responsibilities of depositaries. This has certainly not come as a surprise to most, since already enforced by the Alternative Investment Fund Managers Directive. However, the extent of increased responsibilities (up to the restitution of assets duty or potential regulatory/civil sanctions) has necessitated complete new procedures and processes within UCITS depositaries. These should be operational very soon to comply with the Law of 10 May 2016 transposing the UCITS V Directive.

The training courses Depositary Bank – Role, Responsibilities and Key Functions – Fundamentals and Depositary Bank – Role and Responsibilities in Practice offered by ALFI and the House of Training will guide you through these new roles and processes. They will provide practical ways of implementing the newly applicable regulations (supervision of counterparts, transactions in financial instruments, investor transactions, NAV computation; collateral management).

More information on www.houseoftraining.lu or at customer@houseoftraining.lu.

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