Investment products
Two principal types of investment products (as distinct to superannuation or pension products) are offered in the Australian market: securities (including shares and debentures in a body corporate) and interests in managed investment schemes.
Each entity that provides financial services to people located in Australia in relation to a product must consider whether they are required to be covered by a licence or can rely on an exemption. This includes the issuer or operator of the interests in the product, together with any promoter, distributer or manager of the product.
There is also a separate requirement that a foreign financial services provider (including an issuer/operator of an offshore collective investment) register as a foreign company in Australia. The provider must also appoint a local agent if it is a body corporate and carries on business in Australia.
Investment companies
Regulations likely apply to the offer of interests in an investment vehicle that is structured as a body corporate (meaning that, broadly, it has a legal personality - ie. it can sue and be sued, hold assets in its own name, contract in its own name and has perpetual succession), be they shares or debentures, to persons in Australia. As such, it is necessary for both the investment vehicle and distributor to consider what licensing and registration requirements might apply.
As a general observation it is significantly easier from a licensing perspective to offer interests in an investment company to persons located in Australia than interests in a managed or collective investment scheme.
Managed or collective investment schemes
Collective investment vehicles generally exhibit the characteristics of a managed investment scheme, which can take various legal forms. Some managed investment schemes are mere contract-based schemes in which the promoter gives a personal promise that the investor will receive benefits under certain conditions. However, the most common legal form is a unit trust. Unit trust products exist for each of the traditional and alternative asset classes including direct property, property securities, equity (domestic and foreign), cash, private equity, hedge funds and infrastructure.
Under a managed investment scheme, investors contribute funds that are pooled or used in a common enterprise to produce financial benefits for the investors.
Setting it apart from shares and debentures, investors do not have day-to-day control over the operation of the scheme, and instead leave this task to a professional manager.
To obtain an Australian financial services licence to operate a managed investment scheme, an entity must meet financial requirements, as well as several general licensing requirements that set minimum standards of competency, educational levels and experience for participants. In addition to this licensing requirement, if interests in a scheme are offered on a retail basis, the scheme will generally require registration. However, if interests in the scheme are only offered to Australian wholesale investors, there is no requirement for the scheme to be registered.
There is a clear distinction between retail and wholesale investors. Unless classified as wholesale, investors will be deemed to be retail. Typical wholesale investors include institutional investors; investors who are regarded as being sophisticated; or experienced investors making large investments.
A scheme that requires registration is highly regulated and must comply with the Corporations Act. Included in these regulatory requirements is the need for a responsible entity, being a public company, to operate the scheme. The responsible entity fuses the role of trustee and manager into one.
Many foreign asset managers have established funds in Australia under Australian law and operate on the same basis as domestic managers. Alternatively, a foreign manager may market established foreign schemes directly in Australia, either exclusively to Australian wholesale investors, or to retail investors as well. To do so, the manager must consider the relevant financial services licensing requirements and the need for registration as a foreign company in Australia.
Where the target market is Australian wholesale investors, several exemptions from certain provisions of the Corporations Act may be available. These include licensing relief for operators who are regulated in certain foreign jurisdictions (such as the United Kingdom, the United States, Singapore and Hong Kong). If the target market is Australian retail investors, then exemptions are much more limited and some Australian regulation of the foreign scheme or manager or both will generally be inevitable.
Typically, a strategic alliance is entered into by foreign managers with Australian licensees to minimise the Australian regulatory burden and gain access to Australian retail distribution.