5/30/2024 2:00:00 PM | 9 minute read

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Policy in practice: FCA's naming and shaming proposals (buzzsprout.com)

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thanjHR briefing - September 2024vH2 Intro text - I've formatted to “Heading”. I'm guessing this should come through as the standfirst.

The Labour Party broadly accepts the current Government’s proposed reforms.
Some of the transitional provisions proposed by the current Government (such as the 50% relief on income tax in 2025/26) may well not materialise and should not be relied upon.

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Some more text…Other favourable provisions, for example a UK investment incentive for individuals within their first four years of UK residence and concessions to encourage former remittance basis users to remit their foreign income and gains, may well materialise.

Trusts may not provide inheritance tax protection for long-term UK resident settlors from 6 April 2025.
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100%	In a court hearing on 5 February 2024 AIMA and its fellow petitioners – the National Association of Private Fund Managers, the American Investment Council, the Loan Syndications & Trading Association, the Managed Funds Association and the National Venture Capital Association – argued that, in adopting the rules, the SEC exceeded its authority, since the US Investment Advisers Act of 1940 (the legislation which the SEC asserts gives it the right to adopt the private fund adviser rules) does not in fact confer power on the SEC to regulate the relationship between private fund sponsors and their funds’ end investors. The SEC, on the other hand, considers that the general “anti-fraud” and investor protection provisions contained in the 1940 Act provide a sound legal grounding for it to adopt the rules. Interestingly, the challenge was brought in the Fifth Circuit Court, which is seen as having a conservative, pro-business record, and as a result has become a favoured jurisdiction for groups wanting to challenge regulations passed under the current Biden administration.	1200%
In this recent case, the High Court granted a summary judgment in which it concluded that, for an assignment to be a valid legal assignment under s.136 of the Law of Property Act 1925, the assignment had to be signed by the assignor personally (and not by an agent or attorney on the assignor’s behalf).	i. While this decision was on a summary judgement application (and not after a trial), market participants may wish to adopt a prudent approach and ensure that assignments are signed by assignors themselves, and not by agents or attorneys on their behalf. This may be particularly relevant for fund secondary transactions, which typically involve the assignment of partnerships interests from sellers to buyers.	The article considers some of the key drivers behind this development as well as the challenges private credit sponsors must navigate to deliver a successful continuation fund transaction.

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published in May 2024, ESMA published the official translations of the guidelines in August 2024, which determined the deadlines for compliance (as detailed below).

Scope
1. The Guidelines apply to Alternative Investment Fund Managers (including internally managed AIFs), UCITS management companies, (including any UCITS which has not designated a UCITS management company), EuVECA, EuSEF and ELTIF and MMFs managers.
2. The obligations under the Guidelines apply to all fund documentation and marketing communications addressed to investors or potential investors for UCITS and AIFs, including when they are set up as EuVECAs, EuSEFs, ELTIFs and MMF.
3. ESMA expects fund managers to make “every effort” to comply with the Guidelines and expects competent authorities (such as the CBI and CSSF) to ensure, through their supervision, that fund managers are complying with the Guidelines.
4. It is expected that around 1,702 of EU-domiciled AIFs will be affected by the new rules, including many private funds.

Timing considerations

National competent authorities have until 21 October 2024 to notify ESMA whether they: (i) comply (ii) do not comply but intend to comply; or (iii) do not comply and do not intend to comply with the Guidelines.
The Guidelines will apply from 21 November 2024. For any funds in existence prior to this date, a transitional period of six months applies, and these funds must comply with the Guidelines by 21 May 2025.
The Guidelines
1. If using certain terms within a fund name, under the Guidelines, this could trigger both asset allocation thresholds and asset exclusions.

The key general requirements of CPR Part 35 and its practice direction are:

expert evidence must be independent and uninfluenced by litigation pressures;
experts should provide objective, unbiased opinions within their expertise and refrain from acting as advocates;
experts must consider all material facts, including those that might detract from their opinions; and
experts should clarify when an issue falls outside their expertise or when they cannot reach a definite opinion due to insufficient information.

There are also formalities as to the form of expert report, which must include an acknowledgement of the expert’s overriding duty to the court and curriculum vitae.
Care must also be taken with communications with the expert.
The instructions they receive may be disclosable and it would be counter-productive to compromise their independence.

	ESG or sustainability-related term in the fund’s name	List of terms	Threshold	Required exclusions
1	Transition, social and governance-related terms	Transition-related terms encompass any terms derived from the base word “transition”, e.g. “transitioning”, “transitional” etc. and those terms deriving from “improve”, “progress”, “evolution”, “transformation”, “net-zero” etc. Social-related terms mean any words giving the investor any impression of the promotion of social characteristics, e.g., “social”, “equality”, etc. Governance-related terms mean any words giving the investor any impression of a focus on governance, e.g., “governance”, “controversies” etc.	Meet an 80% threshold linked to the proportion of investments used to meet environmental or social characteristics or sustainable investment objectives in accordance with the binding elements of the investment strategy as disclosed in the SFDR pre-contractual disclosure.	Exclude investments in the following companies: companies involved in any activities related to controversial weapons; companies involved in the cultivation and production of tobacco; and companies that fund managers find in violation of the UNGC principles or the OECD Guidelines for Multinational Enterprises.
2	Environmental or impact-related terms	Environmental-related terms mean any words giving the investor any impression of the promotion of environmental characteristics, e.g., “green”, “environmental”, “climate” etc. These terms may also include “ESG” and “SRI” abbreviations. Impact-related terms mean any terms derived from the base word “impact”, e.g., “impacting”, “impactful” etc.	Meet an 80% threshold linked to the proportion of investments used to meet environmental or social characteristics or sustainable investment objectives in accordance with the binding elements of the investment strategy as disclosed in the SFDR pre-contractual disclosure.	Exclude investments in the following companies: companies involved in any activities related to controversial weapons; companies involved in the cultivation and production of tobacco; companies that fund managers find in violation of the UNGC principles or the OECD Guidelines for Multinational Enterprises; companies that derive 1% or more of their revenues from exploration, mining, extraction, distribution or refining of hard coal and lignite; companies that derive 10% or more of their revenues from the exploration, extraction, distribution or refining of oil fuels; companies that derive 50% or more of their revenues from the exploration, extraction, manufacturing or distribution of gaseous fuels; and companies that derive 50% or more of their revenues from electricity generation with a GHG intensity of more than 100g CO₂e/kWh.
3	Sustainability-related terms	Sustainability-related terms mean any terms only derived from the base word “sustainable”, e.g., “sustainably”, “sustainability” etc.	Meet an 80% threshold linked to the proportion of investments used to meet environmental or social characteristics or sustainable investment objectives in accordance with the binding elements of the investment strategy as disclosed in the SFDR pre-contractual disclosure. Commit to invest meaningfully in sustainable investments referred to in Article 2(17) of SFDR – in effect, the Fund will need to be a strong Article 8+ or Article 9 fund to achieve this.	Exclude investments in the following companies: companies involved in any activities related to controversial weapons; companies involved in the cultivation and production of tobacco; companies that fund managers find in violation of the UNGC principles or the OECD Guidelines for Multinational Enterprises; companies that derive 1% or more of their revenues from exploration, mining, extraction, distribution or refining of hard coal and lignite; companies that derive 10% or more of their revenues from the exploration, extraction, distribution or refining of oil fuels; companies that derive 50% or more of their revenues from the exploration, extraction, manufacturing or distribution of gaseous fuels; and companies that derive 50% or more of their revenues from electricity generation with a GHG intensity of more than 100g CO₂e/kWh.

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SDLT

The change of Chancellor on 14 October 2022 resulted in the much-reported series of U-turns from the announcements made in the ‘mini-budget’ on 23 September 2022. However, a handful of those announced changes survived, one being the changes to the rates of SDLT payable on the purchase of residential property.

In summary, the nil rate threshold has been raised from £125,000 to £250,000 and first-time buyers will now not pay any SDLT on the first £425,000 of their purchase price (an increase from £300,000) and will be eligible for this benefit on purchases of properties up to £650,000 (up from £500,000).

These changes are, for the moment, enshrined by The Stamp Duty Land Tax (Reduction) Act 2022-23 which came into force on 24 October 2022. Prior to this the measures were temporarily governed by a Provisional Collection of Taxes Motion.

The interest rates rise on 3 November 2022 (to 3%) resulted in an increase to mortgage repayments. The SDLT relief is a welcome respite particularly for first time buyers however the effect is relatively fleeting – the greater challenge being the more enduring issue of affordability of repayments over time. On that basis the relief may be of more limited effect than it first appears. It is also directed predominantly at first time buyers and maintaining demand, however the incentive for more mature homeowners perhaps seeking to downsize or move into later living properties is less apparent. The announcement today that the SDLT relief is a temporary measure which will endure until 31 March 2025 before being “‘sunset” is a further limitation.

Online Sales Tax

A topic of discussion in previous budgets, the Chancellor has been under pressure to introduce an online sales tax (OST) and which could be used as a tool to alleviate business rates or to put businesses on a more even par with online sellers. It has been reported that internal Government calculations predicted that a potential £1bn could be raised per annum based on a 1% tax on sales of online goods by companies exceeding a £2mn revenue threshold. However, the Government has decided not to introduce this tax given “concerns raised about an OST’s complexity and the risk of creating unintended distortion or unfair outcomes between different business models.” The Government has promised a response to the OST consultation “shortly” which we anticipate will elaborate on the policy decisions to dispose of this proposal.

Business Rates

Setting out an ambition for the UK to be the “next Silicon Valley” the Chancellor announced “innovation” as a growth priority and singled out sectors such as digital, green technology and life sciences as being those with the most potential. They will be “supported through measures to reduce unnecessary regulation and boost innovation and growth.”

By the end of 2023 changes will be announced to EU regulations and the Government will legislate to give the Digital Markets Unit new powers to challenge monopolies and to encourage competition.

The UK’s research and development budget will be protected and increased to £20bn a year by 2024-25, a cash increase of around a third compared to 2021-22.

These announcements, and the Chancellor’s reference to the country as being a “science superpower”, will be welcome news for real estate clients operating in the life sciences sector where there have been concerns that cuts to R&D investment would impact the UK’s status as the leading life sciences centre in Europe.

The Statement also announces the final Solvency II reforms, which will “unlock tens of billions of pounds of investment across a range of sectors.” Melanie Leech of the BPF has commented that “the reforms of Solvency II have the potential to unlock further institutional investment.” However, she cautions that “the lack of necessary investment in local authorities and continued uncertainty about planning reform are a fundamental risk for the Government’s ambitions for levelling up.” Click here for a link to our podcast on Solvency II and the Big Bang.