NORWAY Law and Practice Contributed by: Daniel Nygaard Nyberg, Karoline Ulleland Hoel, Ole Andenæs and Jens Fredrik Bøen, Wikborg Rein Advokatfirma AS
In the longer term, changes to the AIFMD and the UCITS Directive were enacted earlier in 2024 – referred to as AIFMD II – and will apply in the EU from April 2026. The last-mentioned amendments, especially concerning the proposed increased flexibility on loan originations, without imposing stringent investment restrictions, could significantly influence Norway’s investment landscape, considering the prevailing credit monopoly as described in 2.5 Loan Origination . Moreover, other initiatives seeking to promote super - visory convergence across Europe, especially in the realms of sustainable finance and anti-money launder - ing measures, are set to leave their imprint on Nor - way’s regulatory framework. However, it is pertinent to note that Norway, not being an EU member, must first await incorporation of EEA-relevant legislation into the EEA Agreement and subsequently enact it into national law. This process often causes signifi - cant delays in adopting EU regulations in Norway, and given the current backlog, predicting the timeline for implementation is challenging. The majority of promoters or sponsors of alternative funds in Norway typically originate from within Norway itself. However, there are no legal requirements with respect to the origin of sponsors. Nevertheless, it is also a widespread practice to manage funds on a cross-border basis, extending to other jurisdictions within the EEA. In circumstances where sponsors have funds located outside Norway, the Norwegian entity may either assume the role of the AIFM, directly managing the fund, or it may offer investment services and marketing under MiFID rules, with a distinct local entity serving as the AIFM, as fur - ther described under 2.8 Local/Presence Require- ments for Funds . 3. Fund Managers 3.1 Origin of Promoters/Sponsors of Alternative Funds Furthermore, the industry does include several spon - sors whose funds are located outside both Norway and the EEA, such as in the Cayman Islands. In such scenarios, a common structure is to have the man -
ager, typically the general partner, established in a jurisdiction outside the EEA, with the Norwegian entity providing advisory services to the general partner. 3.2 Legal Structures Used by Managers Norwegian funds are normally managed by an exter - nal AIFM incorporated as a Norwegian private limited company, which is either registered or authorised. Some funds are internally managed funds (by their board of directors), but this is less common for larger funds or managers that sponsor a series of funds. For above-threshold AIFMs, the AIFM in Norway is struc - tured as a private limited company or a public limited company that has its registered business office and head office in Norway. 3.3 Regulatory Regime for Managers Overview In Norway, the AIFM Act implements the AIFMD, reg - ulating the management and marketing of AIFs, as further detailed in 2.2 Regulatory Regime for Funds . Since the pre-marketing rules under the amended AIFMD came into force in Norway on 1 October 2024, pre-marketing has become a regulated activity. A sig - nificant portion of AIFMs in Norway manage assets that remain beneath the stipulated threshold values necessitating authorisation, which are EUR100 mil - lion or EUR500 million, depending on the specific fund terms. Several managers do however opt in for authorisation, due to their cross-border activities or marketing, or to enable them to market units in funds to non-professional investors. AIFMs are subject to several disclosure and reporting requirements, as set out and further described under 2.2 Regulatory Regime for Funds . Whether the disclosures have to be made publicly available depends on the circum - stances. Certain disclosures, including pre-contrac - tual disclosures required under the SFDR, must be made publicly available. Fiduciary Duty Managers have a legal regulated fiduciary duty to the fund, the investors and the market. The scope of fidu - ciary duties that an AIFM owes to fund investors is dif - ferent for authorised AIFMs and for registered AIFMs. Authorised AIFMs are subject to overarching business conduct rules, as further specified in the AIFM Act and
223 CHAMBERS.COM
Powered by FlippingBook