UK Law and Practice Contributed by: Sam Kay, Philippa List, Mark Stapleton and Nicolas Kokkinos, Dechert LLP
2.3.8 Marketing Authorisation/Notification Process Under the UK’s national private placement regime (NPPR) for AIFs, the following notifica - tion requirements need to be satisfied: • the AIFM must submit a notification to the FCA using the FCA’s online system, Connect; and • appropriate pre-investment disclosures need to be made in accordance with the provisions of the UK AIFM Regime. There is a fee for AIFMs making a notification. Marketing can commence once the FCA has received the notification. 2.3.9 Post-Marketing Ongoing Requirements Non-UK AIFMs marketing in the UK under the NPPR must report transparency information to The two main investor categories in relation to the distribution of funds in the UK are “profes - sional investors” and “retail investors”. A “professional investor” is one who is consid - ered to be a “professional client” (ie, a “per se professional client” or an “elective profession - al client”, in each case within the meaning of MiFID). An investor will be a “per se professional client” if it fulfils one of a number of objective criteria listed in MiFID. Such entities include regulated financial entities, large undertakings, governments and public bodies, and inves - tors whose main activity is to invest in financial instruments. Any investor that does not satisfy any of the “per se” criteria in MiFID will be categorised as a “retail client”, unless it can be treated as an the FCA using the Gabriel system. 2.3.10 Investor Protection Rules
with specific permission for the relevant activity, to the extent that it is deemed to carry on such activities in the UK. 2.3.7 Marketing of Alternative Funds In practice, marketing activities in relation to a fund will also often involve the regulated activi - ties of making arrangements with a view to another person buying or subscribing for inter - ests in the fund. In view of this, fund market - ing activities in the UK are generally conducted by authorised persons. Any person conducting marketing activities in relation to a fund should consider whether authorisation is required and, if it is authorised, whether it has the appropriate permissions from the FCA to undertake these activities. The promotion of an interest in an unregulated collective investment scheme (such as a limited partnership interest) is restricted in the UK. Such a scheme cannot be promoted to the general public and, even for a private placement, there are broad restrictions on its promotion to dif - ferent categories of recipients. The persons to which a limited partnership interest can be pro - moted include: • investment professional organisations; • high net worth organisations; and • in limited circumstances, some certified high net worth individuals and sophisticated indi - viduals. In the UK, the FCA permits the marketing of a private fund to a wider group of recipients than the category of “professional investors” referred to in the AIFMD if the financial promotion rules referred to above are complied with throughout the entire marketing process.
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