Luxembourg Authorities Create Fast-Track Procedure for Approval of Transfers of Illiquid Assets to Hedge Fund Side Pockets

The financial regulatory authority in the Grand Duchy of Luxembourg, the Commission de Surveillance du Secteur Financier (CSSF), has approved a new fast-track authorization procedure for the use of side pockets by hedge funds in two specific situations: the spin-off from an existing share/unit class to a new share/unit class and the spin-off from an existing subfund to a new subfund.  The fast track procedure is not to be used if the assets to be side pocketed represent more than 20 percent of the total assets of the relevant fund or subfund.  Also, the procedure requires that the board of directors of the management company of the affected fund confirm that the proposed side pocketing complies with the fund’s articles of incorporation or rules; that the administrator is technically capable of servicing the contemplated side pocket; and that it not be implemented to solve “temporary valuation problems” or to address a merely “potential or presumed illiquidity.”  Managers must also undertake to “promptly realize the asset as soon as the asset is once again liquid.”  We offer additional details on the specifics of the fast-track procedure, and shed light on some of the more complicated definitional questions raised by the terms used in the procedure.  For example, we address how the CSSF is likely to construe, in this context, concepts such as “temporary valuation problems” and “promptly realize the asset as soon as the asset is once again liquid.”

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