Autumn has always been associated as a season of rejuvenation which is highly appropriate given that the Gibraltar Funds Industry Association meeting’s central theme in late September was all about how we can move forward with fresh impetus and new ideas to maintain our continued success and attain greater achievements.
It is true to say that the success of our industry to date has been nothing short of spectacular. Nevertheless, rejuvenation is an issue high in the association’s sights, not least because the success of our fund businesses depends on it.
Born in 2005 with the Financial Services (Collective Investment Schemes) Act, the Gibraltar Funds Industry created an immediate impact on the European investment stage with the introduction of the trailblazing Experienced Investor Funds legislation.
The genius behind this legislation lies in its versatility. In essence, it allows fund managers to create a pool of money for investment purposes with a minimum of regulatory fuss. A contribution of E100,000 is all that is needed to enable an investor to participate.
Taking imitation as the highest form of flattery, we should be proud of ourselves indeed. Far larger and more sophisticated jurisdictions such as Luxembourg took no time in producing copycat rules, in the form of Specialised Investment Funds.
But that was then. In the meantime, the Luxembourg competitor product has enjoyed a level of success we in Gibraltar can only still dream of – and we have to ask ourselves why. Why, in the first 6 months further to the introduction of the Luxembourg product did they authorise more of those funds than we have with regards to our own Experienced Investor Funds 3 years down the line?
It was to discus this issue that the industry association met. Each person I approached had his own theory about the causes behind our slow growth in relation to other European centers. The truth is probably to be found in a combination of them all.
Our starting point in the analysis has to be the 2005 Act itself which has 3 fundamental shortcomings.
Firstly, the intention of the Act seems to be transposing the EU’s UCITS directive, making provision for Experienced Investor Funds rules, and little else. No attempt was made when the Act was drawn up to incorporate the necessary flexibility to attract UCITS or non-UCITS retail funds to Gibraltar with, for example, competitive regulatory advantages. In other words, the Act aimed too low.
Secondly, UCITS represent a highly powerful brand. It is an easily recognisable and trusted product internationally. But that is part of the problem. The failure of the Act in question to cast the retail funds legislation by enabling it to renew itself in line with market trends, means that the funds industry simply did not envisage the need for a marketing and administrative infrastructure to be put in place to attract retail funds business to Gibraltar. Neither did anyone see the need for mutual recognition agreements to be put in place with non-EU centres, which are the main markets for UCITS, to make a success of the legislation.
This last point is something both Ireland an Luxembourg have pursued with zeal – and with impressive results.
Thirdly, the aforementioned points have given rise to to a piece of legislation that is in its fourth year – an awfully long time in the Asset Management world. Weeks ago, the Wall Street investment banking landscape looked very different to what it does now, let alone 4 years ago. Selling a Gibraltar retail fund on the basis of such outdated legislation is unrealistic to say the least.
Although I was not involved in drafting this Act, I did head up the government’s legislation unit in those days. Instinctively, I was aware that very often, the best form of legislation is one which we develop on home ground.
My clients clearly understood this when instructing me to introduce another crucial piece of financial services legislation into Gibraltar law, this being the new investment services directive, known by its acronym, MIFID.
With my years of experience in producing legislation in tune with what is actually going on at ground level in Gibraltar, what I came up with was a Markets in Financial Instruments Act, which was widely acknowledged by the world’s top law firms for its ease and simplicity.
Crucially, my knowledge of the market enabled me to advise my clients on how to dote it with competitive advantages, intended to give us an edge over others in the EU.
In this spirit, I believe our funds industry should promote the revision of the 2005 Act. It should also create the necessary mechanisms to advise the government on its regular revision, something which is only now in the process of being carried out.
That we have influenced the investment landscape to the extent we have, stands as testament to Gibraltar’s creativity and tenacity. I am privileged to be a part of it.