Industry Comment

Time is running out if you need to register ...

Wednesday, February 08, 2012

If you haven't yet determined your position in respect of this legislation you must act now!

The Dodd-Frank Act 2010 abolished the previous exemption on registration with the SEC for certain investment advisors and replaced it with three more limited exemptions: the private fund advisers exemption, the venture capital exemption and the foreign private fund advisers exemption.

The private fund advisers exemption is of most use and is applicable to both a US adviser (one which has its principal office and place of business in the United States) and a foreign adviser (one which has its principal office and place of business outside the United States).

What this means in practice is that a foreign adviser can take advantage of the exemption irrespective of the number of US clients that it advises and, provided it is not providing services to those US clients from a place of business in the US, the assets under management (“AUM”) that those clients have. Each of the US clients will however need to be a qualifying private fund.

If the private fund advisers exemption is to be relied on, the foreign adviser will need to complete part 1A of form ADV 1 and will need to file this with the SEC no later than 30 March 2012 registration deadline.

Relying on the exemption will mean that the foreign adviser will not need to register with the SEC nor will it be subject to routine SEC examination, but it will not exempt the adviser from any applicable state registration and as an exempt reporting adviser, the adviser will need to make an annual report to the SEC.