Global Investment Law Watch – Page 22 – Exploring the legal and regulatory issues affecting the worldwide investment community.

Australia: Greenwashing Crackdown – ASIC Sues Superannuation Giant in Landmark Case

Mar 08 2023

By Matthew Watts, Rebecca Mangos and Bernard Sia

For the first time, the Australian Securities and Investments Commission (ASIC) has launched court action against a major superannuation trustee for allegedly making misleading statements about the sustainable nature and characteristics of some of its investment products (known as “greenwashing”). ASIC claims the corporate pension fund misled consumers by investing in companies involved with the alcohol, gambling and fossil fuel sectors, contrary to the fund’s marketed sustainable and ethical credentials.

People’s Republic of China: Standard Contractual Clauses for Export of Personal Information Were Officially Released

Mar 07 2023

By Grace Ye and Chloe Duan

China has promulgated a series of laws and regulations governing data protection, in particular data export in past years.

The People’s Republic of China (PRC) law currently provides three routes for data export, i.e., (1) Cybersecurity Administration of China (CAC) assessment, (2) certification (by professional institutions), and (3) standard contractual clauses (SCC). Depending on the nature and volume of data to be exported and the identity of the exporter, the exporter must pick at least one route in order to export data.

APAC: Managed Accounts and Conflicts – An Overview

Mar 07 2023

By Scott Peterman

Over the last 20 years, managed accounts have become increasingly popular. A managed account is a portfolio of securities managed by a single manager on behalf of a single investor. These special arrangements are especially popular among institutional investor seeking:

More control over investment decisions (positive or negative control; veto rights);
Access to institutional quality investment managers;
Direct ownership of underlying assets;
Better fee terms;
Longer investment horizons; and
Other considerations, such as Sharia compliance, special portfolio “tilts” such as ESG.

Europe: Gains From Crypto Trading Are Taxable, German Court Decides

Mar 06 2023

By Hilger von Livonius

In a recent decision of 14 February 2023, the Federal Fiscal Court (Bundesfinanzhof, BFH), the highest German tax court, has ruled that privately held cryptocurrencies such as Bitcoin (BTC), Ethereum (ETH) and Monero (XMR) are – notwithstanding the fact that there are no physical goods in which a traditional form of legal ownership can be established – taxable assets for German income tax purposes. As a consequence, any gains from their acquisition (against fiat currency or otherwise) and sale (or exchange) within a one-year period will be taxable (at the owner’s personal tax rate); if, however, the relevant cryptocurrency has been held for more than one year, any gains will be tax exempt. For these purposes, the holder of the “private key” will be considered as legal owner of the cryptocurrency. The tax treatment of a realization of an increase in value of cryptocurrencies is therefore, in Germany, substantially the same as for fiat currency.

Europe: Is ELTIF 2.0 a More Viable Structure for Long-Term Investment in the EU?

Mar 03 2023

By Philipp Riedl

Version 1 of the European Long-Term Investment Fund (ELTIF) has not been a huge success story with only a few relatively small funds launched to date. However the development of a well-supported fund structure for retail investors to invest in illiquid long-term assets remains a key priority for EU legislators.

Europe: Important Issues Still Open for Debate in EU’s AIFMD and UCITS Reviews

Feb 28 2023

By Giovanni Campi

On 24 January 2023, the ECON Committee of the EU Parliament adopted its report on proposed amendments to the EU’s main fund rules, AIFMD and the UCITS Directive, ahead of trilogue negotiations with the EU Council and Commission set to begin in March. When agreed, the revised Directives are expected to come into force in 2025 in light of the 24 months transposition period. Notable proposals include:

Europe: Central Bank of Ireland Confirms Fast Track approval in Relation to New SFDR RTS

Feb 24 2023

By Áine Ní Riain and Gayle Bowen

On the 17th February 2023, a new Delegated Regulation was published which amends and corrects the existing Sustainable Finance Disclosure Regulation (SFDR) regulatory technical standards with the main changes introducing disclosure requirements for Article 8 and Article 9 funds in respect of fossil gas and nuclear energy related activities to ensure alignment with the EU Taxonomy. The Delegated Regulation does not provide for a transition period and entered into force on 20 February.

The Central Bank of Ireland in order to accommodate the Delegated Regulation published their Process Clarification which confirms that the Central Bank will facilitate a fast-track filing process for the update of pre-contractual disclosure documents pursuant to the Delegated Regulation. Compliance with the Delegated Regulation is now a matter of priority for financial market participants and funds sponsors.

For more information on this regulatory update we suggest a read of our full Article or contact one of our authors.

Europe: FCA Sets Ambitious Goal to Improve Asset Management Regulation in the UK

Feb 24 2023

By Robert Lloyd, Maya Ffrench-Adam and Philip Morgan

On 20 February 2023, the FCA published a discussion paper (DP23/2) on improving the UK asset management regime. Key themes include:

Alignment with Relevant International Standards

The FCA does not want to create unnecessary complexity for firms operating in multiple jurisdictions. It aims to develop the regime to interact effectively with international requirements, while promoting the international competitiveness of the UK economy.

Australia: Quality of Advice Report to be Stress Tested

Feb 20 2023

By Jim Bulling, Anabelle Weinberg and Oliver Herrmann

The Australian Government has released Michelle Levy’s Quality of Advice Review Final Report (Final Report) after a year-long consultation process that includes 22 recommendations across 13 areas to improve the regulatory framework of financial advice.

Australia: ASIC Reveals 2023 Enforcement Priorities

Feb 20 2023

By Matthew Watts and Rebecca Mangos

The Australian Securities and Investments Commission (ASIC) has revealed its key enforcement priorities for 2023. This year, ASIC has signalled an expanded focus on enforcement activity targeting:

sustainable finance practices and disclosure of climate risks;
financial scams;
cyber and operational resilience; and
investor harms involving crypto-assets.