The Evolution of Offshore Investment Funds (Part One of Three): In Interview with the Hedge Fund Law Report, Ogier Partner Colin MacKay Discusses Drafting of Offshore Fund Documents; NAV Adjustments; Clawbacks; Managed Accounts; and Payment-in-Kind Provisions
During this past spring and summer, global law firm Ogier hosted its Second Annual Ogier Global Investment Funds Seminar, titled “The Evolution of Offshore Investment Funds,” for over 300 hedge fund professionals in New York, Boston, the Cayman Islands, Chicago and San Francisco. Colin MacKay, one of the presenting partners at the seminar, spoke at length to the Hedge Fund Law Report about the most important issues addressed in the seminar, including: (1) How regulatory developments, recent economic events and caselaw in offshore financial centers is affecting drafting of specific provisions in fund documents (including net asset value adjustments, “clawbacks” of performance fees for subsequent underperformance); (2) Managed accounts, and the amount of assets required to be in a managed account for such an account to be economically viable, in light of the various administrative costs involved in creating and maintaining such an account; (3) Side letters; (4) Liquidity management tools (such as gates, redemption suspensions, payments in kind, etc.), and how the increasing use of such tools is affecting the drafting of payment-in-kind provisions in Cayman and BVI fund documents; (5) Indemnification of fund directors and the evolution of the “gross negligence” standard; (6) Caselaw developments in offshore financial centers (including cases addressing when a redeeming shareholder becomes a creditor of a fund and cases dealing with attempts by liquidators to adjust net asset value); (7) Clawback principles and mechanics; (8) Regulatory developments in offshore financial centers, and in other jurisdictions that may affect funds organized in offshore financial centers (such as the EU’s AIFM Directive); and (9) The relative advantages and disadvantages of various offshore financial centers. This issue of the Hedge Fund Law Report includes the first of three parts of the full transcript of our interview with MacKay.