Causes of ESMA’s Recommended Delay to Extend AIFMD Passport and Its Impact on Non-E.U. Fund Managers (Part Two of Two)

The European Securities and Markets Authority (ESMA) is responsible for advising the E.U. on whether to extend the marketing passport under the Alternative Investment Fund Managers Directive (AIFMD) and which jurisdictions should receive this opportunity. While ESMA positively recommended several countries in its latest advice (Advice), it ultimately cautioned the E.U. not to extend the passport at this time. ESMA’s Advice and the looming prospect of another postponement of the highly-anticipated AIFMD passport has prompted questions about what caused this delay, as well as how non-E.U. alternative investment fund managers (AIFMs) desiring to market in the E.U. should proceed. Additionally, the Advice has raised doubts about how prominently the passport will factor into those non-E.U. AIFMs’ efforts when it becomes more broadly available, or whether they will continue to rely on national private placement regimes to market in individual E.U. member states. This second article in our two-part series provides industry commentary on issues that likely factored into ESMA’s Advice and discusses the potential implications of the Advice on hedge fund managers. The first article summarized the criteria ESMA used to evaluate the candidates and details the obstacles it identified for the seven jurisdictions for which it did not recommend extending the passport. See “AIFMD Has Increased Compliance Burden on Hedge Fund Managers (Part One of Two)” (Apr. 28, 2016); “AIFMD Is Easier for Non-E.U. Hedge Fund Managers Than Commonly Anticipated” (Oct. 22, 2015); and “Answers to Questions Most Frequently Asked by U.S. and Other Non-E.U. Managers on the Impact and Implementation of the AIFMD” (Jan. 8, 2015).

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