Since the implementation of AIFMD, managers seeking to raise capital in the EU have seemingly been left facing a patchwork of marketing requirements. What we see is diverging national approaches in a number of important areas, leaving managers dealing with significant practical issues when trying to implement a cross-EU marketing strategy.
WHAT IS AIFMD MARKETING?
Reflecting on these first two years of AIFMD, it is still surprising the lack of clarity that exists on some quite fundamental concepts, particularly what exactly is marketing. For example, is there certain promotional activity you can carry on before coming within the scope of AIFMD? Is there a certain level of soft or pre-marketing that is acceptable? Unfortunately, the answers can still vary from one EU jurisdiction to another.
Because of the challenges of AIFMD registration in many jurisdictions, when and how a manager can rely on reverse-enquiry from an EU investor is a hot topic. And yet this is as equally challenging as defining AIFMD marketing. Other than an understanding that reverse-enquiry is interpreted narrowly under AIFMD, there has been a lack of clear regulatory guidance (or examples) of what in the regulators’ eyes would constitute a genuine reverse-enquiry.
What we have seen this translate into, again, is managers targeting those EU jurisdictions which are more certain in their scope on pre-marketing, and more straightforward in terms of AIFMD registration. For other EU jurisdictions, it is becoming a watching brief, monitoring any developments or regulatory guidance which can provide more certainty as to the permissibility of approaching investors.