David Naughton, and Shane Coman of Nexus Governance, consider key questions for directors of regulated funds during the current challenging times.
Directors of an externally managed investment fund (“Fund”) in Ireland are monitors of the appointed management company and associated delegates. The directors typically also monitor investment performance, delegate service performance and the level of risk created by the investment management of the portfolio of the Fund. In these times of market turbulence, caused by the COVID-19 pandemic, this brief article sets out some suggested questions for directors to consider.
Due to the COVID-19 pandemic, most boards of Funds are not meeting in person. Some questions to ask in order to maintain effective board communication include:
What is the process in the constitution of the Fund to hold and participate in remote meetings?
How can decisions be made remotely? Can we pass written resolutions? Generally, written resolutions must be signed by all directors, requiring unanimous agreement.
If all the directors of the Fund are not attending a meeting in person in Ireland, is the alternative meeting arrangement in compliance with Fund tax residency rules?
The Central Bank of Ireland (“CBI”) has recently confirmed it has no rules regarding in-person voting for contractual or other arrangements.
In these times of market turbulence, we are supporting a range of Fund boards in having informal weekly calls or email exchanges with the ManCo and any delegate investment manager, to discuss issues including:
Some Fund boards deem it appropriate to hold formal board meetings to discuss these issues instead.
Remember this is a time where service providers may have limited capacity for ad-hoc meetings and reporting. It is important that information and meeting requests are focused and relevant in order to support the fund rather than hinder ongoing services.
The primary means of CBI supervision of Fund activities is through a review of board minutes. Are all discussions and key decisions being appropriately documented from a legal and regulatory perspective?
Where relevant, be conscious of coming into possession of inside information. Is the Fund in compliance with the applicable market abuse rules, during these discussions?
Some Fund boards are recommending more active communication with Fund investors, as the industry navigates market turbulence caused by the COVID-19 pandemic. For example, can the Fund strike a more frequent NAV, after consultation with the ManCo and administrator, to share with investors, thereby giving them increased transparency?
The suspension of dealing in a Fund is a big decision. Some questions to ask in considering making this decision include:
Has the ManCo and delegate investment manager considered the rules in the constitution and prospectus of the Fund which detail the circumstances in which there can be a suspension of dealing?
If a recommendation to suspend dealing is made to the board of the Fund, what notifications are required, to whom and how are these notifications completed?
In considering such a recommendation, under what circumstances can a suspension of dealing be lifted, and what is the process to be followed, to include required timing?
As noted at the start of this article, one of the main functions of a Fund board is to monitor its principal delegate, the ManCo. Some questions to ask a ManCo during these times, driven by CBI expectations, include:
How is your business continuity policy operating at present? Have any service delivery issues been encountered during the COVID-19 pandemic?
Likewise, are any issues coming to light as the risk management policies and procedures are being complied with?
Some questions that a Fund board may wish to consider among themselves in this area, include:
Have we properly assessed the material operational, investment and legal risks to the Fund, caused by the COVID-19 pandemic? Is there a material risk that some services cannot continue to be provided?
Has any material issue arisen which triggers a report being made to the CBI?
Nobody currently knows how long the COVID-19 pandemic will last or the extent of the market turbulence that will ultimately be caused. Fund directors can control how they navigate a way through, and some of the suggested questions in this article may assist them on this journey.
For more information please contact David Naughton (Partner, Financial Services at LK Shields) at email@example.com or Shane Coman (Founding Partner at Nexus Governance) at firstname.lastname@example.org.
We regularly publish useful content on a wide range of legal and business topics. Please click the button below if you would like to receive these by email.Subscribe