A guide to Jersey Private Funds

With the publication of the Jersey Private Funds Guide in April 2017, Jersey introduced a welcome simplification of its funds regime, by providing for a single Jersey private fund product, called the "Jersey Private Fund". The Jersey Private Fund Guide was further updated as at 2 July 2024.

The total number of registered Jersey Private Funds is now well over 700, highlighting their continuing appeal to investors and managers as a flexible alternative fund structuring product.

Every Jersey Private Fund (JPF) must have a consent issued under the Control of Borrowing (Jersey) Order 1958 (COBO) and, subject to meeting the eligibility and structuring requirements of the Jersey Private Funds Guide (JPF Guide) summarised in this briefing note, may be established using a streamlined authorisation approach.

A key feature of the JPF is the requirement for the JPF to appoint a Jersey-based regulated "Designated Service Provider", which assumes responsibility for a number of key functions, and which facilitates the streamlined authorisation process. 

Scope of JPF guide

A JPF is a private investment fund involving the pooling of capital raised for the fund and which operates on the principle of risk spreading. In order to fall within the scope of the JPF Guide, therefore, there would need to be both (1) at least two investors pooling their capital and (2) a number of assets being acquired, such that there would be "risk spreading". 

Importantly, however, the following are expressly stated as not being intended to fall within the definition of a JPF:

1. holding companies

2. joint ventures
3. securitisation vehicles
4. family office vehicles and / or
5. carry/incentivisation vehicles

Eligibility criteria

In order to satisfy the requirements of the JPF Guide, the following marketing considerations and investor requirements will need to be met.

Marketing considerations

1. offers to invest in the JPF may not exceed 50 – for these purposes an "offer" means an "offer that is capable of acceptance" by an investor and so pre-marketing materials sent to prospective investors will not constitute an offer for these purposes
    
2. where a JPF is marketed to investors in the European Union or European Economic Area and is an "Alternative Investment Fund" (AIF) for the purposes of Regulation 3 of the Alternative Investment Funds (Jersey) Regulations 2012 (AIF Regulations), Jersey's AIFMD legislation and Code of Practice for AIFs and AIF Services Businesses will apply
    
3. there is no requirement for a JPF to have an offer document (although it can do so, in which case, that document must contain all material information required by investors and their professional advisers for the purposes of making an investment in the JPF)
    
4. the offering materials of the JPF must contain the investment warning and disclosure statement prescribed for within the JPF Guide

Target investors

1. the number of investors shall not exceed 50, with each investor being either "a professional investor" (as defined in the JPF Guide) or an "eligible investor" (fitting one of the descriptions below). In either case, such investors need to acknowledge in writing their receipt and acceptance of a stipulated investment warning and disclosure statement (which is in the form set out in part E of the JPF Guide).

An "eligible investor", in that it either:

1. • invests a minimum initial investment of commitment of not less than £250,000 (or other currency equivalent)
   • is the holder of non-participating founder/management shares or interests, is an involuntary transferee of an interest in the JPF (for example, a personal representative or trustee in bankruptcy of a registered holder) or is a carry vehicle
   • or is a discretionary investment manager investing on behalf of their clients, for whom, they are satisfied, can bear the economic consequences of the investment
     
     
2. retail investors are not permitted to invest in a JPF (directly or indirectly), unless as a consequence of being an involuntary transferee or through a discretionary investment manager investing on behalf of its clients

Investor eligibility is determined at the time of admission to the JPF and can continue to be relied on despite any change of status in the investor.

Where all of the above eligibility criteria are met:

1. a JPF will not be a collective investment fund under the Collective Investment Funds (Jersey) Law 1988 and is not required to comply with the Code of Practice for Certified Funds
    
2. personal questionnaires are not required of any director, beneficial owner, controller, key persons/compliance staff or service provider to the JPF, aside from the Designated Service Provider
    
3. the promoter of a JPF will not need the prior approval of the Jersey Financial Services Commission (the JFSC)
    
4. the JFSC's outsourcing policy will not apply to the JPF (but will apply to the Designated Service Provider), except where a JPF outsources anti-money laundering, counter-terrorist financing and counter-proliferation financing (AML / CFT / CPF) responsibilities to a service provider other than an Anti-Money Laundering Services Provider (AMLSP) authorised by the JFSC

Structure of JPF

A JPF may be established in Jersey or overseas and may be open-ended or close-ended, provided that the "50 or fewer test", set out below is met. The JFSC's expectation is that a JPF will be established in Jersey and/or have its governing body and management and control in Jersey.

Where established in Jersey, a JPF can be established in the form of:

1. a company (including a protected cell company, an incorporated cell company or any cell thereof)
    
2. a partnership (including a limited partnership, limited liability partnership, separate limited partnership, or incorporated limited partnership)
    
3. a unit trust

Where established overseas, a JPF may be formed in the equivalent forms available in the relevant overseas jurisdiction.

While there is no explicit requirement for the governing body and management and control to be in Jersey, the JPF Guide does state that the JFSC's expectation is that there would be one or more Jersey resident directors on the board of a JPF or its governing body.

If a private investment structure is a JPF, it is likely to involve a Jersey entity (for example, a corporate general partner of a JPF or a self-managed JPF) which will be conducting "fund management business" and which will therefore fall within the scope of either the Taxation (Companies - Economic Substance) (Jersey) Law 2019 (the Companies Economic Substance Law) or the Taxation (Partnerships - Economic Substance) (Jersey) Law 2021 (the Partnership Economic Substance Law), as set out in further detail below.

A JPF established in Jersey or having its governing body and management and control in Jersey is required to comply with all relevant requirements of Jersey's AML / CFT / CPF regime and is a Schedule 2 business for the purposes of the Proceeds of Crime (Jersey) Law 1999 and the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008.

A JPF must appoint a Jersey Designated Service Provider. The Designated Service Provider may also act as AMLSP to the JPF. If the AMLSP and Designated Service Provider are not the same entity, appropriate controls must be put in place and documented to ensure that the division of AML/CFT/CPF responsibilities and conflicts of interest are properly managed and mitigated between the Designated Service Provider and the AMLSP. 

Any outsourcing by a JPF of its AML / CFT / CPF obligations will be subject to the JFSC's Outsourcing Policy, except where the service provider is an AMLSP or the arrangement is otherwise exempt in accordance with the Outsourcing Policy.

A JPF may not be a listed fund, and this prohibition also extends to technical listings.

50 or fewer test

The JPF Guide provides guidance around the application of the "50 or fewer test", as follows:

1. a transfer of an interest from one investor to another will not be permitted if it means that the number of investors exceeds 50 at any one time
    
2. a top-up investment by an investor shall be treated as part of the original offer to that investor
    
3. a split (transfer) of part of an investor's holding of an interest to another will not be permitted if it means that the number of investors exceeds 50 at any one time
    
4. where a person acquires an interest with no rights attaching to it other than management or control rights (for example, acquires a non-participating interest in the profits of the JPF), that person shall not be counted as an investor
    
5. a carried interest and / or co-investment vehicle shall not be counted as an investor, but each participant in the carried interest vehicle must be a "professional investor" or an "eligible investor" (or the governing body of the vehicle must be satisfied that the investment is suitable for the underlying investors and that the underlying investors are able to bear the economic consequences of investment in the JPF, including the potential loss of their entire investment)
    
6. a general partner of a JPF shall count as an investor where it commits capital to the limited partnership for the purposes of co-investment (other than as part of a carried interest and/or co-investment structure of which the general partner is also the governing body)
    
7. where a "professional investor" acquires an interest for, or on behalf of, one or more retail investors, it will not be necessary to look through to the number of underlying investors. A "professional investor" may, therefore, acquire interests on behalf of retail investors, but it is expected that the retail investors will not be active participants in the JPF
    
8. feeder funds associated with a JPF are permitted provided their investors are "professional investors" or "eligible investors" will only be permitted with the consent of the JFSC
    
9. where feeder funds whose investors are "professional investors" or "eligible investors" invest in a JPF, there is a look through to each underlying investor for the 50 or fewer test, however the feeder fund itself will not be counted for these purposes

The JPF Guide provides that derogations from the above may be permitted by the JFSC in exceptional circumstances.

Application procedure, timescale and ongoing obligations

The Designated Service Provider must complete and file an application form for authorisation (the JPF Form) in respect of the JPF.

The JPF Guide provides for a 48 hours streamlined authorisation process for all JPFs which meet the eligibility criteria, provided that the JFSC's authorisation team receives the fully completed JPF Form and requisite application fee.

Any material changes to the information provided by the Designated Services Provider in the JPF Form prior to launch of the JPF, which would impact the accuracy of the information provided in the JPF Form, must be notified to the JFSC as soon as possible.

Material changes to the JPF occurring following the launch must be notified to the JFSC as soon as reasonably practicable and within 28 days.

The Designated Services Provider is required to submit each year an annual compliance return (the JPF Return) in respect of the JPF.

Audit

There is no obligation under the JPF Guide for a JPF to appoint an auditor or audit its financial statements (although a JPF is free to appoint an auditor, if it so wishes).

Designated service providers

As noted above, a JPF must appoint a Designated Service Provider and there may be no change to the Designated Service Provider without the prior approval of the JFSC.

The Designated Service Provider must be registered with the JFSC under the Financial Services (Jersey) Law 1998 (FS(J) Law) to carry on one or more of class V (administrator), class U (manager), class X (investment manager) or class ZG (trustee) of fund services business. However, where the JPF has 15 or fewer offers and professional and/or eligible investors (to be known as a "very private JPF"), the Designated Service Provider may instead be registered with the JFSC to carry on any class of fund services business or trust company business within the meaning of the FS(J) Law.

The duties and responsibilities of the Designated Service Provider do not replace those of the governing body of the JPF and the Designated Service Provider must assume responsibility for the following:

1. making all reasonable enquiry to ensure that the JPF meets all eligibility criteria, both on its establishment and on a continuing basis
    
2. ensuring that all necessary due diligence on the JPF and all related parties (including the promoter and service providers) is carried out
    
3. ensuring all documents relating to its due diligence enquiries are readily retrievable in Jersey
    
4. ensuring compliance with all necessary Jersey AML/CFT requirements applicable to a JPF established in Jersey or having its governing body and management and control in Jersey
    
5. completing and submitting the JPF form
    
6. notifying the JFSC in writing as soon as reasonably practicable (and within 28 days) of any:
   1. material changes which would reflect the accuracy of the information provided to the JFSC in relation to the JPF
   2. non-compliance with the JPF's Jersey AML/CTF obligations
   3. material/unresolved complaints made in relation to the JPF
   4. qualified audits of the JPF's accounts and financial statements (where the JPF has elected to appoint an auditor)
7. completing and returning the JPF Return

PIRS exemption availability for service providers

Jersey service providers to JPFs may continue to rely upon the Financial Services (Investment Business) (Restricted Investment Business – Exemption) (Jersey) Order 2001 and/or the Financial Services (Trust Company Business) (Exemption No.5) (Jersey) Order 2001 (together the PIRS Orders), so as to not be required to be licensed to provide services to a JPF.

Jersey economic substance requirements for self-managed JPFs and managers of JPFs

Managers of JPFs are in scope of the Companies Economic Substance Law or Partnership Economic Substance Law (as appropriate) where they have gross income in relation to their fund management activities.

Fund vehicles themselves are outside the scope of the Economic Substance Law, other than self-managed funds (for example, corporate funds which do not appoint an external manager but which are managed internally by their board of directors), which are in scope as fund managers after a change to the Companies Economic Substance Law. Notably, however, self-managed funds are not required to satisfy the "directed and managed test" (outlined below) in recognition of Jersey's fund regulatory regime which already requires substance in the Island.

Where a Jersey entity being a corporate or a Jersey resident partnership will be conducting fund management, it will be required to comply with the requirements of the Companies Economic Substance Law or the Partnership Economic Substance Law, as appropriate, and will need to ensure that it is governed and operated in a way that complies with that law (as appropriate), namely that:

• all of its "core income-generating activities" (CIGAs) are carried out in Jersey (fund managers must conduct all of their CIGAs in Jersey and must be able to monitor and control any CIGA outsourced to another entity in Jersey)
• it is "directed and managed" in Jersey in relation to the relevant CIGA (it is expected that the majority of board meetings will be held in Jersey with a quorum of directors being physically present, the board must be the decision-making body, and all company records and board minutes must be retained in Jersey)
• it has adequate employees, expenditure and physical premises in Jersey (these can be provided by an outsourced service provider in Jersey)

Related Links

Jersey Investment Funds – Regulatory Options

Jersey Managers and Funds Marketing into the European Union

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

Regulatory information can be found under Legal Notice