GUERNSEY Law and Practice Contributed by: Matthew Brehaut, Carey Olsen
respect of each fund type in 2.1.2 Common Pro- cess for Setting Up Investment Funds . 2.3.5 Rules Concerning Pre-Marketing of Alternative Funds There is no legal definition of pre-marketing. However, by convention the GFSC makes a distinction between pre-marketing activities and marketing activities in determining whether the restricted activity of “promotion” is being under - taken by a person. Pre-marketing activities (such as the circulation of “red herring” documentation) are generally permitted without the need for the person under - taking those activities to obtain a licence or rely on an exemption under the POI Law, provided it is made clear that: • no offer is being made to investors to sub - scribe for shares in the collective investment scheme; or • no invitation is being made to apply to partici - pate in the collective investment scheme by any person. The authors note, however, that this is not a mat - ter of law but of regulatory practice, so advice should be taken on the specific facts. 2.3.6 Rules Concerning Marketing of Alternative Funds Pursuant to the POI Law, the promotion of col - lective investment schemes is a restricted activ - ity and requires a POI licence if carried on in or from within the Bailiwick, unless one of the statutory exemptions applies. If certain conditions are met, including registra - tion with the GFSC, the following may be pro - moted in the Bailiwick by an overseas promoter to the public without a POI licence:
• EEA AIFs; • certain UK unit trusts; • certain Jersey collective investment schemes; and • certain Isle of Man and Republic of Ireland authorised schemes. Similarly, if certain conditions are met, including notification to the GFSC, a wider range of funds can be promoted, provided such promotion is restricted to entities licensed by the GFSC. In addition, neither a POI licence nor a notifica - tion to the GFSC would be required by an over - seas promoter if the marketing were carried out on a non-solicitation basis. The GFSC would not normally consider marketing campaigns by an overseas promoter that do not originate from within the Bailiwick and that do not specifically target Bailiwick residents (but might include the Bailiwick as part of a wider population) as con - stituting a restricted activity or requiring a POI licence. 2.3.7 Marketing of Alternative Funds Subject to the regulatory requirements summa - rised in 2.3.6 Rules Concerning Marketing of Alternative Funds and 2.3.8 Marketing Authori- sation/Notification Process , and the restrictions specific to certain types of funds summarised in 2.1.2 Common Process for Setting Up Invest- ment Funds , there are no restrictions on the types of the investors in Guernsey to whom alternative funds may be marketed. 2.3.8 Marketing Authorisation/Notification Process Authorisation or notification is required by the GFSC prior to the marketing of alternative funds, if not relying on reverse solicitation.
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