Consultation heralds change in beneficial ownership transparency
Those working in cross-border information exchange have become used to operating in an environment where obligations around reporting and transparency are subject to frequent change – particularly with Governments and global authorities often turning to new regulatory regimes in response to disruptive market events.
The COVID-19 pandemic may well prove to be such a trigger event, with cash strapped Governments keen to ensure they are collecting every tax dollar they can after a period of high public spending, whilst at the same time focusing on rooting out criminal activity.
In recent years, approaches to capturing, managing and sharing ultimate beneficial ownership information (UBO) have very much been in the spotlight as a critical area in the fight against financial crime.
Transparency moves centre stage again
Now it seems that UBO transparency will move centre stage once again. Remarks made by the Financial Action Taskforce (FATF), the global standard-setter for UBO information management and sharing, suggest a further significant change in international standards could be on the horizon.
Speaking at the G20 Finance Ministers meeting in February, FATF President Dr Marcus Pleyer commented that ensuring transparency of beneficial ownership is "critical for everything from a fair tax system to stopping money laundering". Dr Pleyer confirmed that the FATF is now "reviewing the standard to consider how it can be strengthened further".
Further steps in this agenda have been taken, with a pre-consultation white paper issued concerning potential amendments to FATF Recommendation 24 and its implementation. An additional white paper on Recommendation 25 is anticipated in the autumn, ahead of further consultation.
There is still some way to modify international norms in the UBO space. Still, this consultation phase marks a significant milestone in the evolution of global standards in this critical area – from capturing and recording UBO information to sharing it consistently and responsibly.
So what does this consultation phase mean in practice for practitioners, and what might be on the horizon for UBO information management?
The Transparency Journey
The history of information exchange is complex, with a wide variety of measures such as TIEAs, FATCA, Common Reporting Standard (CRS) and UBO registers introduced or augmented over the last two decades, often in response to prominent examples of criminal abuse of the financial or tax system.
Information exchange on request emerged via the OECD's Global Forum Working Group on Effective Information Exchange, with nations launching throughout the early 00s into signing rafts of 'Tax Information Exchange Agreements' (TIEAs).
Since then, hundreds of TIEAs have been signed based on the principle of supplying information on request, where an overseas authority had a legitimate reason for considering an individual to be a financial crime risk.
The transparency agenda evolved into an increasingly sophisticated framework, with a gradual movement towards the automatic exchange of information and central registers. The fight against financial crime received fresh impetus during the 2008-2009 financial crisis - with all G20 nations keen to plug widening deficits, the London Summit was the driver for thinking around exchanging information to accelerate rapidly.
The debate over the accuracy, timeliness and quality of beneficial ownership information and the misuse of financial and legal instruments were recurring themes – the introduction of FATCA by the US followed in 2010. The development in 2014 of the OECD's Common Reporting Standard was a significant initiative to encourage swifter automatic exchange of information between firms and the relevant authorities.
Since then, key debates have been around data accuracy, who has access, and the benefits and workability of public registers. The G8 Summit of 2013 saw public registers firmly on the agenda, with the G8 countries ultimately endorsing core principles on UBO consistent with the FATF standards and that adequate, accurate and timely information on the ultimate beneficial ownership of corporate vehicles should be available and readily accessible by competent authorities in a timely fashion.
Nevertheless, debates around public access to UBO have persisted – and most recently, the EU has made commitments, through the 5th Anti-Money Laundering Directive, to work towards public registers, with a number of the Crown Dependencies and Overseas Territories making similar commitments. Generally, however, implementation and progress in this space remain mixed worldwide.
So what can we expect from the FATF over the coming months?
Looking at the detail further, the FATF has already published a pre-consultation white paper around Recommendation 24, which indicates the areas where there could be some change, particularly around the transparency of beneficial ownership (BO) of 'legal persons'.
Through its white paper and subsequent consultation, the FATF's objective is to strengthen the international standard on beneficial ownership of legal persons to ensure greater transparency about ultimate ownership and control. The aim is to provide competent authorities timely access to adequate, accurate and up-to-date beneficial ownership information and take more effective action to mitigate the risks of misuse.
More specifically, the review will consider measures to improve the understanding of risks posed by all types of legal person created in a country (as currently required) and also to certain foreign-created legal persons; how a multi-pronged approach to the collection of BO information can be achieved; how to ensure adequate, accurate, and up-to-date information is obtained; and who should have access to this information, and finally, how confidentiality and privacy can be safeguarded.
The consultation will run until 20 August 2021. It will undoubtedly attract industry feedback, including clarification that it is common for a company to be owned by a trust or other legal arrangement, and with the ability to have a nexus with a financial intermediary proving to be a significant additional benefit in terms of the gathering of BO information.
Meanwhile, a similar white paper looking at Recommendation 25 - focusing on 'legal entities' - is expected later this year. It is expected to examine the definition of trusts across both common law and civil law jurisdictions, consider complex ownership structures and assess the obligations of other countries. The role of registries will also no doubt come under the spotlight once more.
Following the white paper and consultation exercise, the FATF will then consider the views received and propose revisions to the recommendations for discussion at its October 2021 meetings.
Whilst it may seem to some that these consultations are going over familiar ground, the fact that the FATF is reviewing its approach is a significant development. It reflects that policy in this area rarely stands still and that financial crime will remain at the top of the agenda for the trust and private client sector for the foreseeable future. Professionals in this space will be well-advised to participate in the consultations and to track any resulting change, given the implications for clients are potentially quite profound.
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June 2021 / G7 Pact on Tax - What does it mean?
The G7 announcement on tax has made world headlines, but the agreement's substance falls well short of the PR.
It's not too surprising that seven countries whose corporation tax rate is already over 15% have been able to agree they would like large Multi-National Corporations (MNCs) to pay business tax on foreign earnings at least at that rate..
Read more here.
May 2021 / Global Business Tax
Business taxation has recently made the news headlines following the announcement by US Treasury Secretary Janet Yellen of her support for a Global Minimum Corporation tax of 21%, coupled with a proposal to raise the US domestic corporation tax rate to 28%. The US has committed to funding a $2.2trn domestic infrastructure and social welfare spending plan. And a global agreement on a minimum corporation tax would lessen the chances of US firm inversions and relocation of activities to lower-tax countries, paving the way for the Biden administration to pursue revenue-raising measures at home.
Read more here.
Wealth taxes have become a popular subject lately, as the world faces up to repairing public finances in the wake of the pandemic.
In the lead up to the UK's recent budget, many speculated that the UK Chancellor would introduce measures to replenish depleted national coffers by placing a more significant tax burden on wealth. Chancellor Sunak was encouraged by some groups to levy a wealth tax on millionaire couples, aimed at raising £260bn over five years.
Read more here.
February 2021 / Global Britain: Beyond Brexit
IFCs can play a valuable role in building 'Global Britain'.
There have been polarised views of how a post-Brexit Britain might emerge.
For some, separating from the EU bloc risks leaving Britain isolated and companionless. For others, it removes the shackles, freeing Britain to plough its furrow as a Global player and G7 member.
The reality is probably somewhere in the middle, but there are good reasons to believe that the idea of a Global Britain is not too fanciful.
Read the blog, Global Britain: Beyond Brexit here.
Offshore centres with significant experience in cross-border real estate and robust digital strategies are well placed in a new era of real estate investment. Our blog post sets out how short term pandemic-driven changes are likely to stick. And the future looks positive, underpinned by innovation, a focus on health and safety and a rapidly accelerating ESG agenda.
If 2020 has taught us anything, speculating about what may or may not happen in the year ahead, in an uncertain and complex world is fraught with difficulty. Nevertheless, some clear trends are emerging that will have an impact on International Finance Centres (IFCs) and the world in which they operate. These trends will influence and shape the IFCs strategic approach and priorities.
Here are the Top Ten themes that we anticipate will give IFCs food for thought in 2021.
November 2020 / Inclusion - more than a base-line for the global-conscious business
Many jurisdictions have acknowledged (or are moving towards acknowledging) that discrimination on the basis of ethnicity, gender, sexuality, and/or age is unacceptable and are striving to improve by implementing inclusion legislation and policy. Within the corporate world, a steady focus on diversity and inclusion (D&I), manifested in policy, has become the norm. But does this really affect behaviour, especially when it comes to issues of recruitment and choosing suppliers? And have the last nine months, where the world has experienced unprecedented change caused by the COVID-19 pandemic, shifted the agenda when it comes to inclusion?
While the COVID-19 crisis led to unprecedented levels of soul-searching as many firms reassessed the wider benefits of employee focused work/life balance, with working from home at its core, it also ran parallel with global events of another nature such as the 'Black Lives Matter' movement which emphasised, and in many cases accelerated, a focus on racial equality across corporates worldwide.
Independent research carried out by Mourant in June 2020 among those with an organisation-wide remit for D&I, revealed that for many corporates and professional services firms, COVID-19 has been far from a distraction when it comes to evolving and implementing their own inclusion strategy, and in some areas, like neurodiversity, it has increased in priority.
Nine in ten firms surveyed by Mourant said an adviser's approach to D&I is a significant factor in making purchasing decisions and over two thirds said that a lack of a diverse team being put forward is a barrier to doing business with a supplier or adviser.
While ethnicity, gender and age remain high priorities for inclusion-conscious IFCs, an increased focus on neurodiversity was apparent with 38% of our respondents choosing it as their highest priority post-COVID. That is up 13% compared to the pre-pandemic era.
Whilst rapidly diverting resources to cope through the pandemic, IFCs around the world will quickly return to the regulatory agenda in this area. Some, most notably Guernsey and Jersey, are already well on the way to modernising legislative frameworks to ensure businesses are accountable, specifically when it comes to the equality agenda. Waiting for legislation in this area versus 'doing the right thing' and proactively moving to self-regulate is however a continuing debate.
Wherever an individual jurisdiction 'lands' in this environment, globally-conscious businesses with operations in the IFCs are already carving a progressive path. Being inclusive has a base-line for these firms that the current regulations perhaps haven't quite attained yet. And these businesses can see the benefits of leading on inclusion. Some of which are simply amplified by the social and economic dynamics triggered by the COVID-19 pandemic.
An unlimited talent pool?
The short-term effect of COVID-19 on the talent pool, particularly in the IFCs that are dominated by the financial and professional services sector, is clear. Limitations of travel alone will temporarily prevent the migration of talent into these IFCs. Add this to movement of talent returning to 'home' jurisdictions from the offshore IFCs as emotions pull them towards family added to anxiety about availability and cost of travel/movement between jurisdictions, and we have a 'Perfect Storm' where a talent void could easily appear. A progressive approach to inclusion will play a critical role in releasing the limitations caused by a seemingly contracting talent pool.
Having a diverse workforce is also proven to drive innovation, and is reflected in a business's bottom line. In short, embracing inclusion makes simple business sense. But there is also a clear move to place a high priority on ensuring inclusion is actively achieved and demonstrated by businesses, and not just a strategy document drawn up to tick a box. While conducting their due diligence, 90% of those surveyed told Mourant that investors would ask about D&I while 60% stated that investors already ask to see proof of it – a figure which could rise further as D&I continues to be a factor in strategic business decisions.
Businesses operating in the IFCs may need to widen recruitment pools, to forge ever-stronger business relationships with referrers and clients that are placing a high value on the strength of their own inclusion policies. Aligned interests, practice areas and client bases already help strengthen bonds and demonstrating the impact of an inclusion practice will drive those relationships even closer, particularly when considered alongside the data which shows nearly 90% of firms feel it is important that suppliers/advisers have a formal inclusion policy and slightly more told Mourant D&I is a factor in their purchasing decisions.
Power of decision-making
With many global firms now recognising all aspects of inclusivity as a 'significant factor' in a business's purchasing decisions, showing a commitment to equality in every area will position a firm at the forefront of its sector.
Demonstrating an active inclusion strategy is important for offshore firms for seven out of ten of contacts according to our survey. This infers that not having an inclusion strategy could potentially be a barrier to doing business. In addition, respondents indicated that any perceived evidence of gender imbalance would be an undesirable attribute in the procurement process.
With the knowledge that gender, as well as neurodiversity, ethnicity, sexual orientation and age remain important for investors placing high levels of accountability on their suppliers, an offshore law firm can create a competitive protective bubble around itself by addressing any imbalances immediately.
Diversity still matters
However inclusive a community perceives itself to be, shockwaves can be sent around the world when the reality is proven – and the unsavoury truth that many people still face discrimination is presented for all to see.
While communities pulled together in the face of the COVID-19 pandemic, social distancing measures were dropped by thousands of people who instead came together to protest against the circumstances surrounding the death of American, George Floyd.
So if hundreds of thousands of people feel the need to take the knee in demonstrations across the world, it is safe to say that until everyone agrees that black lives matter, the inclusive society we'd like to live in doesn't exist yet. The Black, Asian and Minority Ethnic (BAME) agenda has never been more apparent or more important.
Seeing inclusion as an area of employer policy which was a priority for many businesses pre-COVID, is growing in importance for many more post-COVID.
With many industries facing up to a different market place than they had planned for when looking ahead to the 'roaring '20s', inclusion will be one focal point which will seemingly grow more important rather than fall away.
A growing number of purchasing decisions rest on a supplier's approach to D&I.
Simply saying 'we must be more inclusive' is never going to be enough again. The economic landscape has shifted massively in an incredibly short space of time, and with lockdown measures now a recognisable tool in the global fight against contagious viruses, employers and employees must be ready and willing to make quick changes under the 'new normal'.
To ensure an inclusive workplace has a D&I strategy is merely a first step. Regularly reviewing it and making relevant and timely updates is a necessary second step and remaining committed to and in-tune with making diversity friendly initiatives an enhanced part of an existing strategy is essential.
Acknowledging the diverse advantages that an inclusive work force can bring to a business including additional levels of integrity, attention to detail and new ways of communicating, will soon bring those perceptible benefits to the forefront
October 2020 / IFCs: digital to the core
At the beginning of this year, we forecast in our January blog that “2020 will no doubt bring new challenges”. Of course, hindsight is a wonderful thing, but it’s possibly the biggest understatement we ever made!
But actually, some of the themes that we suggested would be key this year in our January blog, have not changed. If COVID-19 has underlined anything, the importance of digital innovation is undoubtedly one of them.
For some years, IFCs have made big plays about how digital innovation is one of the biggest drivers, and we've commented previously that early and meaningful investment in innovation - for instance in the fund servicing space – should be the focus for IFCs.
The sound business platform that IFCs have created place them in a good position – Jersey, for instance, has the third fastest broadband speed in the world. But digital is not just about broadband speed, blockchain and cryptocurrencies, there needs to be more progress and a more profound appreciation of the diverse application of digital to support the IFC offering not least in the spheres of client service and regulatory compliance.
The digital imperative
COVID-19 has reinforced just how critical digital is across the board - not only in operational terms such as managing a remote workforce. Businesses in IFCs have a good deal of experience in successfully managing teams dispersed across different geographical locations, and their contingency plans have been implemented effectively.
That’s important in terms of reinforcing the stability message that is a central pillar in the IFC proposition. Still, the COVID crisis has prompted an even greater and more fundamental focus on embedding digital at the core of the international financial services platform, better to serve the needs of their global client base.
Recent research has sought to drill home just how important this is. KPMG for example, has found that companies that make moderate investments in digital capabilities are 2.1 times as likely to deliver a customer experience that exceeds expectations, and Deloitte found that 35% of customers increased their online banking usage through COVID-19.
The IFC and broader corporate world are now full of references to ‘new realities’, ‘transformative digital landscapes’, ‘new staff and customer experiences’ and ‘new-look sustainable supply chains’.
Smart targeting & long term investment
None of this should be particularly surprising. Investment in digital is a long-term trend and a journey that IFCs have been on for some time. According to Finextra, the fintech sector raised $4.9bn of capital in the UK last year, surpassing the $3.6bn of the previous year.
Speed, efficiency, accessibility, sustainability, transparency – these are all essential qualities that digital innovation was addressing pre-COVID The pandemic has accelerated IFCs thinking into how digital is going to be their main play.
The consequences of inaction could be dramatic. PwC recently produced a report that found that in the Channel Islands’ finance industries, “thousands of existing jobs could be at risk between now and 2035 through the impact of artificial intelligence and automation if no action is taken”. Whilst this prediction is not a consequence of COVID-19; as the report states, the pandemic has “made it even more of an imperative that action is taken”.
The big question is, of course, where IFCs should direct their digital investment. Widespread digital adoption does little if it isn’t targeted or doesn’t underpin the IFC’s purpose. The focus needs to be on being smart in digital adoption and forecasting the macro trends shaping the international finance space, not just about adopting wholesale change.
So where should that focus be?
First, there is a focus on cementing what IFCs already do. In many ways, digital adoption allows IFCs to reinforce their original purpose – to connect people and investments to facilitate the flows of capital around the world seamlessly and securely. Ultimately IFCs are about enabling connections, and this has very close ties with digital capabilities as we have seen through the pandemic.
Relationships will continue to be fundamental to an IFC’s proposition and, whilst AI and automated services can support this, digital adoption needs to be mindful that relationships will continue to be the bread and butter of the IFC model.
A positive RegTech reputation
Then there is the regulatory capability. IFCs currently have a massive opportunity to export their regulatory and governance capabilities, given their extensive experience of participating in regulatory forums and implementing regulatory initiatives. Centres such as Guernsey, Jersey, BVI and Cayman for example, have invested significantly in embedding a digital-first approach at a jurisdictional level, creating sandbox environments geared to nurturing start-ups and venture projects.
Digital technologies, enabling regtech, cybersecurity and electronic ID and KYC services can support this drive – and deliver a positive reputational boost in the process. With the number of digital transactions growing at an estimated 12.7 % annually and with an estimated 60% of global GDP being digitised by 2022, it’s understandable that the FATF is so focused on electronic ID. IFCs have the opportunity to be part of that conversation and solution.
By harnessing their digital strengths, IFCs can clearly evidence they are helping to fight financial crime. The JFSC’s digital registry, due to come online later this year, is an excellent example of that in practice.
But digital also offers an opportunity to explore new areas too. For instance, through technology, IFCs can diversify; building on their traditional strengths in HNW and institutional markets, whilst tapping into a broader, more retail market to give them access to international opportunities. It’s an evolution from the very origins of IFCs, to democratise financial services and fight financial exclusion.
There is an ability to leverage the value of back-office and knowledge-driven services too. Specialisation in data analytics – such as embedding data-driven services to provide insights and drive understanding of international investor needs, or providing data analysis to support investment performance in the ESG space - are distinctive competencies that lend themselves to digital delivery.
Seize the opportunity
McKinsey found that during the space of around eight weeks of the pandemic, the world had “vaulted” forward around five years in terms of consumer and business digital adoption
In a new VUCA (Volatile, Uncertain, Complex and Ambiguous) world, IFCs need to seize the opportunity to be bold, smart and ambitious; to build on what they had already been doing so well up till now and flex their digital muscle.
Bringing digital from the periphery to the core will support the overarching IFC proposition and build on existing capabilities, whilst also opening up new opportunities that can not only create revenue streams, but will provide substantial reputational dividends too.
August 2020 / New Law in a new era: the IFC perspective
Even before the onset of COVID-19, the approach to buying legal services was changing, as individuals and institutions explored what the concept of 'new law' meant to them.
Increased regulatory risk is generating significant growth in demand for external legal advice, with Deloitte reporting that 49% of buyers are growing spend on regulatory compliance. Add in the pressure from budgetary constraints, Fintech disruption and the globalisation of business, and it's clear that there are new emerging trends in the legal world.
With an emphasis on legal services generated and delivered through new technology (so called Legaltech), alternative legal service providers, novel pricing models and exciting new legal careers have emerged. As a consequence, law firms have picked up the pace on the innovation engine in response to a rapidly changing climate.
It's telling that, according to research by Acritas, purchasers of legal services above and below the age of 50 demonstrate quite distinct buying behaviours across the full spectrum of corporate, litigation, wealth, governance and regulatory functions.
Above 50 the emphasis is on the quality of expertise and the individual strength and character of the lawyer. Below 50, buyers lean far more into how proactive the law firm is at providing advice that drives competitive advantage and better mitigates risk.
For the next generation and looking to the future, there are definite shifts in the value proposition when it comes to legal support. Demand for a multidisciplinary approach that brings together bespoke and specialist services, digital accessibility and a fresh and independent perspective is an emerging trend in a VUCA (Volatile, Uncertain, Complex and Ambiguous) world.
Interestingly, and despite the current anti-globalisation agenda, international capability remains fundamental to this. In today's cross-border world, 85% of firms with a revenue figure exceeding $1bn need international legal services. Perhaps more surprising is that 67% of these companies need legal advice in eight or more countries, and no less than 35% require information covering more than 25 countries.
With 55% of the buyers of legal services indicating they are in the middle of, or are considering, a significant review of their suppliers, it's clear that the traditional model is under threat.
In a post-COVID19 world, we can expect an evolutionary acceleration as, across the board, technology becomes even more deeply embedded in the delivery of professional services. Sustainable, diverse and inclusive supply chains will gain prominence, and agile and remote working will lay the foundations for a more global, diverse and flexible access to expertise.
The legal sector is no exception to these trends. As experts in international connectivity and cross-border advice, the providers of offshore legal advice are right in the thick of this service evolution.
For offshore firms, there is now more than ever an opportunity to press home their advantages and strengths, given the focus that IFCs have placed on areas such as digital innovation, sustainability and agile working.
Centres such as Guernsey, Jersey, BVI and Cayman for example, have invested significantly in embedding a digital-first approach at a jurisdictional level, creating sandbox environments geared to nurturing start-ups and venture projects. The same centres have developed robust and sustainable finance strategies, while their resilience during the pandemic has been impressive, underlining their ability to adapt in a hugely challenging environment.
Also, IFCs demonstrate high levels of intra-sector collaboration, with firms, particularly during the lockdown, having come together to support each other, tap into and share resources, along with cooperation to deliver adapted or even new service lines. That sort of adaptability and social capital will be a considerable asset as new law develops further.
Law firms in the IFC world need to demonstrate their alignment with these jurisdictional strengths and that they are brave enough and have the foresight to depart from traditional norms and embark on this evolutionary journey. Success will require more than tinkering around the edges or investment in off the shelf software, but in contrast will require comprehensive, wholesale and fundamental strategic evolution.
This change in approach will involve being proactive to client needs and developing new service lines, new ways of engaging with clients, new approaches to recruitment and nurturing talent, new ways of charging for services, new digitally-enabled internal processes, and new ways of positioning in the broader IFC ecosystem. Each of these initiative areas will need to be infused with Environmental, Social and Governance principles, responding to changing social mores in a post-pandemic world.
Offshore law firms like Mourant are frequently the source of intellectual property that is the creative engine of the IFC world. Mourant has differentiated itself by fusing legal and technological expertise through an innovation network within the firm and the launch of an 'ideas hub'.
Both initiatives encourage firm-wide ideas on improving efficiency and effectiveness in internal processes and external engagement to create a better client experience. Global Managing Partner, Jonathan Rigby, actively encourages innovation and risk-taking, with lawyers undertaking Lean Six Sigma training and transfers of legally qualified team members into the information technology area.
Digital upskilling has produced significant results, with the complete digitisation of new business take on processes, the launch of an intelligent decision tool for economic substance assessments, and the use of automation to massively reduce the time taken to produce initial drafts of legal documents.
Those who can develop the vision required, and who have the will to devote the resources that are needed, will appeal to the next generation of individuals and institutions. The winners will position themselves firmly to capture new markets and growth opportunities, earning themselves a seat at the table, and playing a vital role in the evolution of the 'new law' as it enters the post-pandemic era.
July 2020 / IFCs can play a decisive role in mitigating the COVID-19 insolvency challenge
Even before the COVID-19 pandemic, Western Europe was seeing an upswing in business failures, driven principally by slowing economic growth, the escalation of the US-China trade war, and looming uncertainty surrounding Brexit.
At the beginning of 2019, figures forecast that, after nearly a decade of improvement in the number of corporate insolvencies in developed markets, 2019 was to mark the first year of insolvency growth since the global financial crisis. The deteriorating outlook was most pronounced in Western Europe and, while there was a more stable outlook for both North America (0%) and Asia-Pacific (+1%), both were subject to downside risks.
This uncertain corporate environment stretched back to the fallout of the 2008 global financial crisis. It enabled IFCs like the Channel Islands, BVIs, and the Cayman Islands to assert the strength of their corporate legislative frameworks and wealth of experience in restructuring and insolvency.
The unstable environment prompted a flight to quality amongst corporates with international operations and interests as they looked for support in jurisdictions that offered stability, certainty, and a strong rule of law to help protect their assets, underpinned by a commitment to upholding shareholder rights.
Tried & tested insolvency regimes
Those IFCs that could demonstrate tried and tested insolvency regimes and expert legal advice around restructurings ticked all those boxes, providing some much-valued certainty for businesses and institutions as they looked to navigate rough waters.
IFCs such as Guernsey and Jersey, for instance, earned a reputation as experts in managing and implementing ‘Schemes of Arrangement,’ as institutions looked to restructure their operations securely and swiftly, to maintain their long-term viability.
Jersey cash box structures, too, earned a reputation in the years following the financial crisis, as a leading tool for enabling institutions to raise capital quickly and efficiently and boost their liquidity when it became urgent.
The commercial dispute resolution capabilities of IFCs such as the BVIs and Cayman Islands, meanwhile, saw a significant uptick in corporate restructuring activity, with those jurisdictions acting as attractive neutral locations to resolve often complex, multi-jurisdictional issues.
By late 2019, indicators of financial instability were growing, driven by ongoing trade uncertainties, the introduction of tariffs, and Brexit related concerns. This cocktail of issues continued to pose a threat to corporate solvency into 2020, mainly in Western Europe, with North America also set to see a reversal in its downward trend of annual insolvencies.
The economic impact of COVID-19
The coronavirus (COVID-19) pandemic has caused a significant shock to markets and served to exacerbate the potential for corporate insolvency further.
Figures from the International Monetary Fund, for instance, suggest that the global economy will contract by 4.9% this year, as the economies of countries around the world shrink at the fastest rate in decades. It predicts that around $9 trillion could be knocked off global GDP over the next two years as a result of the pandemic, with China expected to expand by just 1.2% this year – its slowest growth since 1976 – and the UK expected to shrink by 6.5%.
Figures from Coface, meanwhile, suggest that the pandemic will push 68 of the world's economies into recession. The impact will be universal and widespread across sectors, severely disrupting global trade and manufacturing, and there is added complexity compared to previous global recessions, which had financial origins. The unique conditions created by the pandemic, and its universal impact, mean that uncertainty in global financial systems will test all economies to the maximum over the coming months and years.
Against this backdrop, global corporate insolvencies are expected to surge over the coming years, and forecast to grow 2.4% in 2020, up from the 1.4% increase ultimately recorded in 2019. According to projections, the UK is facing another year-on-year 7% increase in corporate failures, the highest rate in Western Europe. In comparison, the Asia Pacific region will see increased insolvencies in 2020 (+4.2%), in part due to its close ties to China.
Governments have moved quickly to introduce unprecedented levels of support, heading off economic collapse. Businesses have been given as good a chance as possible to remain viable and to safeguard jobs. In the UK, for instance, the Corporate Insolvency and Governance Bill has been introduced to amend insolvency and company law to support business to address the challenges resulting from the impact of coronavirus, but the reality is that business failures are inevitable.
Despite these unprecedented measures, famous and lesser-known names have already struggled, as the economic impact of 'The Great Lockdown' has taken hold. Not all have gone to the wall; Rolls Royce in Derby, for example, has shed 9,000 jobs to safeguard its future, anticipating a structural change in long haul travel. Meanwhile, the iconic Cirque Du Soleil has filed for creditor protection in Montreal, and German-based Wirecard has been declared insolvent, with $2bn of client funds thought to have gone missing. In the US the car rental giant, Hertz Global Holdings, is grappling with its creditors over bankruptcy arrangements.
The Geneva-based International Labour Organisation (ILO) estimates there was a 14% drop in global working hours in the second quarter of 2020, equivalent to the loss of 400 million full-time jobs, (based on a 48-hour working week). A sharp increase in their previous estimate.
All the indicators are that substantial numbers of companies are in difficulty, with varied outcomes likely in terms of survival through a restructuring of business models, debt, and creditor arrangements. Ultimately solutions will need to be found to protect livelihoods and to secure the future of those companies that can be returned to good health.
The increased prospect of insolvency brings back into focus the pivotal role that IFCs offshore can play in providing advice and support to businesses that are facing significant financial impact through these challenging times. Through delivering the benefit of their accumulated experience and proven expertise in business restructuring, these centres can offer positive solutions to give businesses the best chance of surviving and mitigating negative impacts.
Attributes that made IFCs attractive pre-coronavirus will continue to make them the go-to jurisdictions to support struggling businesses over the coming months. Stable legal frameworks, high standards of regulation and governance, commitments to international cooperation, and unparalleled experience of working with complex multi-jurisdictional structures will ensure their continuing appeal.
In this massively uncertain and continually evolving environment, those qualities are all too rare and will be highly prized. And IFCs must be proactive in clearly asserting those strengths.
The fallout of the Covid-19 pandemic will be vast and complex. IFCs will need to evidence more than ever the decisive role they can play in supporting global recovery.
The provision of secure, expert, restructuring and insolvency solutions, to the thousands of businesses that will be affected by the coronavirus over the coming months, will ensure that IFC firms make a genuinely positive contribution to one of the most significant challenges of modern times.
In so doing, they can help sustain the livelihoods of business owners and employees all over the world.
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June 2020 / PE & RE – Emerging from the Great Lockdown
Even as US COVID-19 related deaths topped 100,000, and confirmed cases worldwide surpassed 5.6m, attention has turned to the economic harm wreaked by the crisis. With almost a third of the global population in some form of lockdown during April, the real extent of this economic damage is only now becoming apparent.
The UK Chancellor, Rishi Sunak, reacted to the Office of Budget Responsibility (OBR) forecast of a 35% drop in GDP for Q2 2020 - potentially leading to two million job losses - by admitting that he was 'deeply troubled' by the forecasts. The US and Chinese economies both contracted sharply in the first quarter of 2020, making a global recession inevitable. Unemployment in both countries climbed rapidly despite stimulus measures running into trillions of dollars.
The UN international labour organisation has warned that the continued sharp decline in working hours globally, due to the COVID-19 outbreak, means that 1.6 billion workers in the informal economy – that is nearly half of the global workforce – stand in immediate danger of having their livelihoods destroyed.
No wonder then, that the early entrants into the crisis in Asia, and more recently in Europe, have announced plans to phase in measures to ease lockdown restrictions while maintaining public health measures, such as social distancing and enhanced hygiene practices. And this, despite countries such as South Korea, re-imposing lockdown measures in response to fresh outbreaks of the virus, highlighting the dilemma between saving lives and saving livelihoods.
So, how has the Private Equity (PE) and Real Estate (RE) world fared through the crisis, and as the prospect of 'easing' gathers pace, what steps should PE and RE boards and directors be considering as they emerge from the Great Lockdown?
Putting the safety of colleagues and their families first, contributing to the public health effort, ensuring regulatory compliance, business continuity, and supporting portfolio companies and investors, will undoubtedly all be at the heart of PE and RE firms' COVID-19 strategy and decision-making.
The agenda for PE and RE is focused, demanding, and urgent. Planning and implementing working from home securely, portfolio reviews and protection measures, liquidity management, operational reviews, sectoral impact assessments, interventions through increased management input, debt refinancing, and or selective applications for state-funded business interruption schemes have all been on the runway.
For Private Equity, the experience has varied significantly by portfolio company mix, with hotels, travel, and retail leisure especially impacted. And conversely, healthcare, protective equipment, online, logistics, and food have generally been in a much better place. Firms applying for support through the CARES Act in the US and the COVID Business Interruption Loan schemes in the UK should ensure robust communication plans, as they may become the target of wrong-headed media attention. In Europe, the EU State Aid rules appear to impede meaningful access for PE due to leverage restrictions, although opportunities may arise around unleveraged EU Venture Capital portfolios. The BVCA and Invest Europe continue to make representations on behalf of the PE industry as a whole. There is work still to do in the EU in explaining the job creation and job retention benefits of private capital, and its constructive use of leverage.
The volume of work flowing out of these actions is substantial and conducted in a fast-moving environment where essential obligations such as determining valuations and progressing audits are challenging given working environment constraints. Add to this, the need for higher frequency investor reporting and communication and the resource 'stretch' is self-evident. Despite all of this, PE and RE firms have dug deep and contributed significantly to COVID-19 community-oriented programmes.
Support from IFC professional services firms, administrators and non-executive directors will be mission-critical to delivering on these obligations over the coming months. Vitally, the need to avoid selective disclosures and conflicts of interest remains paramount, and there is little doubt that firms' actions will be scrutinised via regulatory sweep and themed supervisory reviews post-event. Consideration of whether or not moves meet the 'no regret' test, and access to more significant internal and external compliance advice would seem more than prudent, in laying down the appropriate legal and regulatory audit trails. Information security, working practices, and responsible business conduct will also need to stand up to inspection now more than ever.
Real Estate Asset Class
Real Estate as an asset class has seen substantial market disruption, with a few exceptions (e.g. logistics). Supplying high-quality space in a way that's responsive to client need with meaningful ESG hallmarks, has been a recipe for success over the last five years in the institutional investor end of the market, whether it be the office, industrial, commercial or residential sectors.
In contrast to earlier crises, COVID-19 has turned real estate usage on its head. Offices with no workers, malls with no shoppers, and universities with no students. A change so radical it must surely qualify as a Black Swan event. The occupiers will return, but will they return in the same numbers? The Facebook precedent would indicate not, and the evaluation of what work is, and it's location, is already underway.
Following the Super Trends
Some of the super trends of recent years identified by the Global Real Estate giant, JLL, will survive the crisis. Corporate outsourcing will continue, but firms will demand more health-oriented workspaces, with densification challenged by distance, and workplaces required to be more flexible and more digital. Real estate will flourish as an asset class, with cash at zero and government bond yields unattractive. Given its relative risk profile and favourable income streams, real estate will remain attractive to long term capital allocators. Urbanisation will continue, but smart city planners will think more carefully about design, air quality, virus filtration, and the infrastructure supporting public spaces and travel. The 4th Revolution, like an athlete on steroids, will accelerate to warp speed in terms of innovation, adoption, and application. Sustainability, already a dominant trend before COVID-19, will receive a massive boost with billions of people confronted by their own, and our planet's ‘pandemic’ fragility.
There is no doubt that COVID-19 disruption will continue to buffet the PE and RE industries. The consensus view around the attainment of post-recession recovery is hard to find, and scenarios appear to be the best we can achieve at this point. Whether or not recovery is V-shaped, U, W or L, one thing is certain and that it that both PE and RE will indeed reassert their pre-eminence as preferred channels for the deployment of private capital, due to their superior returns, and ability to perform during good economic times and bad.
April 2020 / Succession planning through a new lens
The growing influence of the next generation, combined with a newfound understanding of stewardship amongst the wealthy, is prompting more and more families to look at the concept of succession planning in a different light.
With the next generation, set to inherit from what is labelled ‘the great wealth transfer’; Accenture estimates that in North America alone, £30trn will pass between families in the next 30 years. This new generation has unprecedented opportunity to drive change and shape the future of private and family wealth.
At the same time, the concept of stewardship, as we have previously discussed in this blog, holds increasing sway in the future of family wealth management, as wealthy families engage in social and environmental issues in a world that is increasingly influenced by wealth politics.
But stewardship is not just a simple case of pursuing impact investing, sustainable investments, or green finance. Philosophical questions also arise concerning legacy and the expectations of the next generation, and this is having a significant impact on succession planning.
Scrutinising traditional assumptions
Perhaps the biggest challenge to traditional approaches to family wealth planning is the assumption that assets have to be passed on to the next generation – that at all costs, family wealth is about a dynasty, intending to transfer maximum wealth as efficiently as possible. It’s an assumption that forms the backbone of traditional wealth models.
However, succession planning has begun to take on a different hue, with family offices increasingly asking fundamental questions of themselves around what legacy means to them. The Global Family Office Report 2019, for example, found that 54% of family offices now have a succession plan in place, up from 43% in 2018, indicating that more in-depth conversations are taking place about succession.
The lesson here is that succession planning is not seen universally as the be-all and end-all. It also points to the understanding that there is an underlying complexity bound up in succession planning, with real question marks over control, qualifications, ability, and intent of the next generation.
Assumptions around succession planning are under scrutiny for several reasons.
First, it is not at all clear that the current generation wants to pass their wealth on. Many have worked hard to earn, accumulate and protect assets, and all around them, they see societal, environmental, and health challenges that need addressing – and they have the resources to make an impact now.
Rather than protect wealth for the future in the hope that their wealth may get deployed as they would wish, the view of some is that it is much better to be able to put the wealth a family has to good use today, to help resolve current world problems. No more are we seeing that than in the COVID-19 pandemic, with wealthy philanthropists such as Jack Dorsey, Co-Founder of Twitter, donating significant sums to try and bolster health supplies, support health service capabilities and mobilise community responses.
Burden of responsibility
Second, there is no guarantee that the next generation, and the generation after that, will want to have the responsibility of vast wealth thrown upon them – and it is a significant responsibility. The indications are that the next generation is much more entrepreneurial and more inclined to pursue emotive, personal objectives.
Some find the weight of a family legacy placed upon them, bound up in a set strategy or family vision, to be confining.
The Global Family Office Report, for example, suggests that 39% of family offices are projecting when the next generation takes control of their families’ wealth, they will increase their allocation to sustainable investing – and that can take form in multiple and very personal ways. Next Generation ambitions, motivated by the pursuit of their objectives, prefer to be unencumbered by the baggage of family legacy.
They are also much more conscious of growing up in a world that is intensely aware of wealth politics and populist movements toward wealth distribution. At one level, this is a broad societal issue. In essence, the populist narrative presented by some politicians and academics points to a world where the rich are becoming wealthier at the expense of the mass, less affluent population, and it is a narrative that has gained real traction in recent years. It's hardly surprising that the next generation is nervous about living in a world where they are ostracised for exacerbating inequality.
These ideas were reinforced in a survey Mourant recently undertook amongst its private client contacts. In essence, it found that around half of respondents felt that the current generation of settlors is creating structures for the different reasons compared to previous generations.
All this has fundamental implications for private wealth professionals and the IFCs that house them, and the answers are not straight forward.
Family wealth dynamics are far more complicated than they were a decade ago, and practitioners need to be alive to that. The assumption that wealth planning is all about shareholder maximisation, ensuring a seamless legacy and succession, is no longer a given.
Conversations around these issues will be encouraged, leading to a better understanding of what wealth transfer, legacy, and succession planning mean. And Advisers will need to be adaptable and will be expected to contribute their insights.
IFCs that have traditionally approached wealth management through the lens of the traditional trust, company and foundation structure, precisely because of their strengths in terms of succession planning, will be well advised to rethink how their proposition and market positioning is playing out. IFCs need to be alive to the evolving dynamics and respond to them positively, by actively tackling and addressing these issues, which are not straightforward and may require new and different skillsets.
The core strengths of IFCs – their stability, dependable environment, experience, robust legislative, and regulatory frameworks – will continue to be hugely attractive in addressing the newly-framed objectives of different generations of families. The big question will be how family advisers, law firms, and service providers adapt traditional strengths into a world where succession planning is a much more complex and multi-faceted activity.
March 2020 / COVID-19 IFC implications
Is it only a couple of months since the word 'Corona' conjured up pictures of expensive cigars and Mexican beer? With the addition of just five letters, 'Coronavirus' has burst into our lives, as the most talked about subject on the planet.
It's a cruel irony that globalisation, the force that saved hundreds of millions from abject poverty and life prematurely cut short by illness, should play such a critical role in the rapid spread of this new pandemic, as world travellers returned home accompanied by a deadly but invisible companion.
There is currently no treatment, and health systems around the world have come under tremendous strain. The search for a vaccine is in overdrive, meanwhile 'social-distancing' and 'lockdowns' have taken on a new significance in our everyday language, as we rapidly adopt a way of life that most of us would never have thought possible.
Much has been made of the way society has adjusted (or not) given the imperative to tackle this new threat.
Early reactions have revealed some fault lines with supermarket shelves stripped bare, and weekend retreats overrun as a departure from the main centres of infection has seen second homeowners flee.
In Europe and the US, we are now mostly locked away to protect us from ourselves, while Asia has passed the peak of the bell curve, and life is just beginning to normalise.
How will we social animals cope with periods of prolonged isolation, will we see a new epidemic of depression, or will we take the opportunity to reflect, press the pause button and celebrate the positive impact on climate change?
Tough dilemmas for business
The reaction to the crisis from all sections of society has been significant, and few would argue that business has an important role to play.
Across the business world, continuity plans have been dusted off and re-evaluated. Disaster recovery sites have not been a panacea, moving the problem to another location doesn't help. The difficulty of planning for Black Swan events is in sharp relief.
Working from home (WFH) is the new normal in financial and professional services, and building resilience in home – working and remote access has paid handsome dividends for those who were far-sighted enough to 'invest and test' before the crisis.
But COVID-19 asks tougher questions, than "can I continue to operate and serve my customers?", hugely important though that is. Fundamentally, governments around the world and businesses are faced with a dilemma – Saving lives or Saving livelihoods, but thankfully the choices aren't as binary as they might first appear.
Universally business sees the imperative to put people first, with WFH substantially mitigating the risk from the disease. Prioritising health and wellbeing doesn't just mean minimising the chances of infection. For some, and particularly those with vulnerabilities around disability, or mental health, social isolation in and of itself can be hugely challenging, not to speak of the tremendous stress and worry arising from being let go by a firm that decides to close completely.
The bigger picture
The advance of Environmental, Social, and Governance (ESG) frameworks as a means to express the purpose of business in society could not be more timely. While it is critically important to address all aspects of business operations, operating within the guard rails of a sound ESG policy will ensure the firm doesn't lose sight of the bigger picture.
When purpose, priorities, and principles are aligned, they will provide an anchor for the firm that prevents them from being blown off course and a guide to making the right decisions for themselves and society.
Values breed sound principles, which in turn give rise to sound actions. There will be casualties from this crisis in the business community. Still, they are most likely to arise in the ranks of a small minority who seek to exploit the situation for short term advantage and to put profit before people.
Of course, we must do everything possible to suppress the virus, but while we are, we must act to mitigate the biggest shock to our economic system since the 1930s. The fall-off in production, sales, and general prosperity will likely be more dramatic than the Global Financial Crisis, from which we are only just recovering a decade later. The reduction in lives lost from disease through responsible action must not come at the price of grave economic harm, leading to a permanent loss of employment as businesses fail beyond viable recovery.
So, what role should business play? The behavioural protocols for slowing and then extinguishing the pandemic are culturally tricky for westerners, but the Asian experience makes their value clear. Firms encouraging their adoption and observance in Europe and the US will assist in bringing the pandemic under control faster, with significant benefits in damping down the impact on the economy, and allowing the path to normality to be resumed sooner than would otherwise be the case.
On the front foot
IFC financial services businesses developed a great deal of creativity in holding onto talent during the financial crisis. Firms now need to reapply those skills, through flexible remote access home working, keeping parental support responsibilities to the fore, and through providing maximum protection for team members, at home and in the workplace.
IFC firms are well equipped to meet these challenges. With a diverse institutional and UHNW client base located in multiple geographies around the world, safe, reliable remote working, enabling employees to operate securely on the move, has been the norm for many years.
Capacity is robust, cyber protections strengthened, and many firms now have 100% of their workforce digitally enabled for "anywhere, anytime" working. Add innovations around company law in respect of virtual board meetings, pragmatic tax authority guidance to enable compliance with economic substance requirements where physical meetings are prevented, and expertise in the adoption of electronic means of document signing, and the ability to support teams and customers is both comprehensive and reassuring.
IFC firms facilitate the fast and efficient flow of institutional-grade capital around the globe. Their access to capital markets and their trusted carrier status provides a vital and robust contribution to keeping the wheels of trade and investment turning, as the world works through the most significant challenge to life and livelihoods of the last century.
March 2020 / Exporting regulatory competence: the double dividend for IFCs
For decades, IFCs have had to respond to, manage and implement an incredibly broad range of global regulatory, transparency and, cooperation initiatives – and they have done so, by and large, with success.
For example, the Channel Islands signed their first Tax Information Exchange Agreement (TIEA) with the US almost 20 years ago, in 2002. Since then, they have each signed TIEA and DTA agreements with around 50 different jurisdictions. The Cayman Islands have been early adopters, too, with a requirement for verified ownership information to be captured and made available for sharing with the appropriate authorities, in place for more than 15 years. And the BVI has contributed to the transparency agenda through the development of electronic capture and sharing of Ultimate Beneficial Ownership information, through their BOSS system.
Financial crises tend to be the stimulus for regulatory change, and since the crash of 2009, the pace of change in international regulation has been impressive.
As far as cooperation agreements are concerned, to add to the TIEA ‘information on request approach’, we’ve seen the introduction of the US’s Foreign Account Tax Compliance Act (FATCA); the introduction (and subsequent partial repeal) of the US Dodd-Frank legislation; automatic exchange of information under the OECD’s Common Reporting Standard (CRS); the EU’s 5th Anti-Money Laundering Directive, and with it progress on public registers of beneficial ownership; the OECD’s Base Erosion and Profit Shifting (BEPS) project; and, most recently, economic substance laws, prompted by the EU’s formalisation of its list of uncooperative jurisdictions.
It’s a pretty exhausting list, and these are just the main cooperation initiatives pertinent to IFCs like BVI, Guernsey, and Jersey! Alongside these, are all the other international regulatory initiatives IFCs have had to be alive to – MiFID II, Volcker, AIFMD, bank ringfencing, EMIR, to name but a few.
Progress with consequences
It’s been a decade of opening up the books and strengthening global financial systems – and the progress achieved in terms of transparency and cooperation across jurisdictions and governments has been commendable as a result. But it’s been one heck of a slog, and the result is a cross-border environment that is now enormously complex and resource-heavy, both in terms of time and expertise.
And don’t think for one minute it will stop there - the rate of change shows no signs of easing.
It didn’t take the EU long to get over the festive season, only to emerge with its updated list of non-cooperative jurisdictions, notwithstanding the progress that has been made on economic substance by administrations outside of the bloc. It’s safe to say that substance will continue to dominate as a regulatory concept across the IFC world in 2020.
Meanwhile, Mandatory Disclosure regimes have lumbered into view; a consultation is under way on registers of trusts and directors; new benchmarks and regulatory frameworks are likely to standardise reporting in the Environmental, Social & Governance (ESG) sector; and the UK Financial Conduct Authority (FCA) has the alternatives sector in its sights, having written last month to CEOs on governance, oversight and purpose. The list goes on.
Potential and opportunity?
IFCs and the firms operating within them, have done exceptionally well in dealing with this tsunami of regulatory initiatives. They will need to continue to be alive to the dynamics of a financial system that is fixated on regulatory change, as the preferred means of making things safer and more secure.
But there’s a wider opportunity here – being at the front of the queue in adopting new regulation is all well and good in demonstrating good citizenship; but if IFCs can be proactive in explaining the specific, deep and technical knowledge and experience they have gained in regulatory competence over this sustained period, then that could carry some considerable additional advantages.
What if compliance with international regulation turned on its head, and IFCs could help other jurisdictions with their obligations – and in doing so turn from being the followers to the champions of best practice and excellence?
Apart from making good business sense, expertise in this area is in high demand, particularly in markets where compliance and governance is less developed. A study published by Jersey Finance in 2018 found that 75% of family offices in the GCC were adapting ‘slowly and painfully’ to the new world of transparency. Strength in regulatory competence also brings with it the double dividend of reputational advantage. And that has the potential to be very powerful as IFCs seek new ways to assert the value of what they do.
Few can claim to have as much experience as the British IFCs in dealing with key regulatory fora, such as the FATF or OECD, in managing cross-border information exchange and reporting obligations, and in ensuring compliance with governance and oversight criteria – one need only look at MONEYVAL and OECD assessments to see how impressive the performance of IFCs is in this area. That experience is hugely valuable in a world of significant and increasing regulatory complexity.
Just last month, Guernsey’s government published its National Risk Assessment, highlighting its approach to combatting financial crime. At the same time the Jersey Financial Services Commission (JFSC), at its four-year strategic roadmap event, highlighted the need to have a ‘deep understanding of international financial markets’, noted an ‘erosion of global coherence’, highlighted impressive diversity in terms of regulatory and supervisory initiatives, including developing a world-leading digital registry, and pointed to its ongoing commitment to demonstrating high regulatory standards. It’s reflective of the approach and experience of firms across the jurisdictions.
As IFCs develop clarity of purpose in this new era of transparency, doubling down on what they are clearly good at makes a lot of sense - safe harbour IFCs, with an architecture of good governance and broad regulatory experience will undoubtedly prove increasingly attractive as the political world fragments. With the increasing use of civil penalties and criminal prosecutions for regulatory shortcomings, firms such as Mourant, with significant regulatory expertise, have the capacity to support fiduciaries and their clients across the globe, as they seek to comply with ever more demanding international standards.
Good IFCs and the advisers in them that offer these qualities are in short supply, and those that can leverage their expertise and nurture the sort of environment that is not only receptive to global regulation but that can proactively demonstrate excellence in it will be the winners.
February 2020 / A new narrative for funds transparency
IFCs are no strangers to the concept of transparency. From the signing of TIEAs and complying with the US’ FATCA, to being early signatories to the OECD’s Common Reporting Standard (CRS) and committing to establishing accessible registers of beneficial ownership and directors, IFCs have a good track record in responding to transparency issues and are in most cases ahead of many other jurisdictions.
Now, however, there is a new form of transparency emerging that looks set to shake up the cross-border investment funds landscape. It's a new narrative for transparency that is founded not on regulatory compliance, but on an ability to proactively demonstrate value, ethics, purpose, and impact.
It has resonance right across the international financial services arena, but it has particular relevance for the funds industry - in areas like ESG investment, being able to demonstrate measurable impact, and respond robustly to accusations of green-washing and value-signalling; for private equity and real assets sectors, which face increasing scrutiny around their ethical behaviours; and in being able to demonstrate authentically that, across the board, an organisation can justify and back up its actions.
As we look forward through 2020 and beyond, it's clear that this approach to transparency is not going to be an additional ‘nice to have’, it’s becoming the licence that gives service providers, legal advisers and IFCs themselves a remit to operate.
With the January 2020 deadline for EU Member States to transpose the 5th Anti Money Laundering Directive (AMLD5) – a directive with transparency at its heart - into national law having now passed, the ongoing march of transparency continues.
Only the reality is that the ‘march’ is more accurately described perhaps as more of a ‘stagger’. In the EU, the picture is a very chequered one, with some Member States nowhere near as advanced in implementing the Directive as others.
But for IFCs, with their strong track record on transparency and an ability to act quickly, there’s a real opportunity.
To seize that opportunity, it will be important for IFCs to stay alive to the overriding dynamics and respond to them positively, by asserting the value of what they do and providing solutions to transparency challenges - so that they can play a key part in engendering trust and understanding, not just in what they stand for as IFCs themselves, but in instilling confidence in markets more widely.
Positioning themselves as secure, tax neutral investment hubs that encourage cross-border investment and capital pooling is one thing, but drilling down to a more granular level to demonstrate what impact that is having and what the benefit is to society more widely, beyond the benefit to themselves, will be more powerful.
How, for instance, are IFCs helping to address the climate crisis, find solutions for social challenges and champion good governance?
Some centres are already addressing these questions through specialist regimes, expertise and infrastructure for green finance, ESG investing and philanthropy. The Guernsey Green Fund is enabling Guernsey to build a solid platform for a sustainable finance proposition whilst the Jersey Private Fund has seen exceptional growth since it was introduced in 2017 – more than 350 established to date – and is showing particular appeal for impact investment.
This is a good start, and building on those capabilities and exploring new avenues to help define their ‘purpose’ will be crucial, so that they not only talk about what they are doing, but build their sophistication and show demonstrably that what they are doing is valuable, helpful to other jurisdictions and essential to society and the environment.
Strengths open up opportunities
If IFCs and IFC firms can play to their strengths, then the opportunities are significant.
For the Channel Islands, for example, trends in the real estate, infrastructure and private equity space – areas where those IFCs have excelled traditionally - are hugely positive. Preqin figures show that 2019 was a strong year in these sectors, with global real estate fundraising reaching $151bn, the highest amount ever recorded, some of the largest infrastructure funds ever closing to push infrastructure dry powder to $212bn, twice the figure at the end of 2015, and private equity fundraising exceeding half a trillion dollars ($595bn) for the fourth year in a row.
Appetite to continue to allocate to these asset classes remains strong too - there is a high likelihood of a post-UK election uplift in UK FDI as uncertainties around Brexit reduce, whilst private capital is starting to outstrip traditional listed capital. This pent-up investment will need to be put to work in an environment that is likely to be highly scrutinised and managed against new transparency criteria, and IFCs that are already ahead of the game should be well placed to support that.
Pushing the envelope
But this is an evolving narrative and IFCs need to be proactive.
More could be done, for example, on the governance side, where there is an opportunity for those jurisdictions that have well-established substance laws in place to push that experience and competence to help firms and other jurisdictions deliver the ‘G’ in ESG.
IFCs are also experts in reporting – we've previously argued that when it comes to ESG, the real gap is in benchmarking and reporting to enable the industry to provide clarity around meeting impact targets. Investors and managers are screaming out for progress in this area – and it's another area where IFCs have expertise.
Now more than ever, there's an opportunity for IFCs to use their experience so that they lead the transparency agenda, setting the pace in a new, fresh and exciting way rather than being just the supporting cast.
If IFCs can get to grips with this new narrative – and they have the tools in their toolkit to do so - then they will be in a very strong position to enhance their reputation, as responsible, trustworthy centres that are integral to a new transparent funds ecosystem that is founded on the twin pillars of ethics and compliance.
December 2019 / Driving Innovation and Delivering Value - An IFC Roadmap for the 2020s
2019 was a watershed year for IFCs.
The year began under the EU and OECD's tax transparency microscope, leading to the introduction of economic substance legislation and calls for public registers of beneficial ownership. IFCs had to contend with a series of challenges in 2019 – and those that met the challenges head-on have turned them into positive differentiators seeing a return to record business levels.
2020 will no doubt bring new challenges. Of course, the landscape is complex and multi-faceted, but there are some overarching themes for IFC firms to reflect upon as we begin a new decade.
Sunshine is the best disinfectant
Transparency has been a growing consideration over the last decade, with IFCs responding through adherence to Tax Information Exchange Agreements (TIEAs), the US's FATCA legislation and the OECD's Common Reporting Standard.
With the EU's 5th Anti Money Laundering Directive undergoing implementation by Member States, and with the UK's Overseas Territories and Crown Dependencies committing to create public corporate beneficial ownership registers in step with the EU, the onward march of transparency looks unstoppable.
There will be new transparency targets – trusts were featured in the recently defeated Labour party manifesto, and we can expect civil society to continue to apply pressure to expose the affairs of the wealthy albeit in counterpoint to developing data protection and security principles. Private wealth firms will need to be sensitive to the direction of travel, and make a case for compliant confidentiality.
Conversations around the role of IFCs in 2020 will continue to relate to the low tax environment they provide. In the eyes of larger nations, highly focused on finding ways to boost their tax receipts, low-tax is often misrepresented as predatory.
As the EU looks to protect its financial hubs with the UK going it alone post-Brexit, there will be a renewed focus on the mechanics of cross border financial services. We have already seen this with the introduction of economic substance laws in 2019 – but it will not be the end of the matter, as a new narrative on corporate tax develops through the OECD's digital tax proposals.
IFCs need to be alive to these dynamics and respond to them positively, by asserting and demonstrating the value of what they do as secure, tax neutral hubs which encourage positive cross-border investment and capital pooling. We are already seeing some centres offering tailored regimes, expertise and infrastructure to support positive investment initiatives such as green finance, ESG investing and philanthropy.
For IFCs, 2020 will be about building on these core capabilities, whilst exploring new avenues which will help redefine their 'purpose' and demonstrate the positive value of their contribution to society and the environment, through fostering sustainable growth.
In 2020, for instance, we will see new developments as the OECD-driven corporate tax proposals move forward. IFCs have an opportunity here to come together and create a platform to demonstrate the benefits of tax neutrality and their role in adding value to cross-border investment flows.
A further area where leading IFCs offer huge potential is the exportation of regulatory competence and best practice. Few can claim to have as much expertise as the Crown Dependencies in dealing with international regulatory fora, such as the FATF or OECD. That experience is hugely valuable in a complex regulatory world. IFC firms can leverage this advantage by demonstrating how other jurisdictions can thrive whilst bolstering their own regulatory frameworks to meet international standards.
The Political Landscape will be challenging
Political dynamics will continue to be pivotal in shaping global markets. While the UK election outcome has provided a clearer direction in terms of Brexit, there is still a long way to go, and the UK's future trade arrangements are still unknown. Crossing the Atlantic, the US election campaign trail will undoubtedly create a degree of instability, at least for a time. All this against a backdrop of global unrest more widely, with strife in the Middle East, Hong Kong and other Asian centres, and US-China trade wars – all exacerbated by the likelihood of a widely anticipated global market slowdown.
But, more than ever, governments will be under tremendous pressure to deliver on the social contracts they have made with their citizens. More and better schools, hospitals, and progress on climate change will all be in sharp relief. Without free-flowing global investments, countries are likely to fall short, and a focus on supporting large FDI projects will be an excellent opportunity for IFC legal and structuring firms, with some $50trn of investments already planned across the coming decade.
In this context, the core stability of leading IFCs and their firms – their calm, steady, secure environment; the tried and tested rule of law; respect for property rights and democracy – will all be hugely attractive. Safe harbour IFCs, with an architecture of good governance, will prove increasingly attractive as the political world continues to fracture. IFCs that offer these qualities are in short supply, and those that can nurture the right environment will be the winners over the coming decade.
Innovation - working with change
There will be new considerations for IFCs in the digital innovation space in 2020, and plenty of opportunities. We have previously argued that IFC firms need to focus on long-term investment in digital technology if they are to expand their role in cross-border trade and investment against a back-drop of growing regulatory and operational complexity. A rapidly emerging data-driven financial services environment; that is both modular and bespoke, will require IFCs to be ambitious and agile in their adoption of ground-breaking technologies. With the right investment, they can work smarter, boost their productivity, and better support their clients.
IFCs like Guernsey, Jersey, and Cayman, which have pre-existing digital jurisdictional strategies, are well placed to make the most of the opportunities in this area – but one big question for 2020 might well revolve around the scope to explore new markets.
Should IFCs serving HNW and institutional markets so well, for so long, continue their exclusive focus on these core groups? Or, given the significant investment they are making in technology at a jurisdictional, industry, and firm-level, could they apply their skills and technology innovations into other, more retail markets?
Tapping into extensive retail opportunities, by providing access to international markets through digital delivery – gold markets through blockchain for example - maybe a break from the norm, but offers diversification and reputational benefits through extending the service focus to the many, and not just the few.
New Attractions for a New Decade - built on strong foundations
Global Perspectives is a commentary by a legal services firm on events that shape the cross border world, so the start of a new decade is a timely opportunity to devote a few lines in this last blog of a closing decade to the future of legal services in IFCs and other centres.
The 'Out with the Old' and 'In with the New' philosophy implied in the innovation section of this piece may lead you to believe that robots will rule the legal world, with legal precedents and laws relentlessly mined by an army of AI bots who don't need pay, sleep, food or rest!
Not a bit of it
According to comprehensive research by Acritas, purchasers of legal services above and below the age of 50 demonstrate quite distinct buying behaviours across the full spectrum of corporate, litigation, wealth, governance, and regulatory functions.
Above the age of 50 and the emphasis is on the quality of expertise and the individual strength and character of the lawyer. Buyers under 50 lean in to how proactive the legal firm is at providing advice that drives competitive advantage and better mitigates risk. Interestingly, a quality that both groups share is the value they place on international capability.
In today's cross-border world, 85% of firms with a revenue figure exceeding $1bn need international legal services. Perhaps more surprising is that 67% of these companies need legal advice on eight or more countries, and no less than 35% require information covering more than 25 countries!
The Path to Success
The transparency and equality agenda, purpose and value, political turmoil, and digital innovation look set to be the defining macro drivers of change for IFCs in 2020.
For IFC firms, including legal services firms, the path to success will be augmented by innovation, but the core competencies of managing cost and complexity when connecting international investors that have made IFCs so successful will continue to be highly prized.
Generating thought leadership that demonstrates insight and intellectual capacity will differentiate the leading firms from the rest, enabling them to identify business opportunities and risks before their clients do, and ensuring they are part of their client's strategic development, binding in the relationship through their trusted adviser status.
Identifying and tuning in to client needs in an uncertain and turbulent world will sort the winners from the losers and will be achieved by doing three things well; Listening, Understanding, and then Delivering.
We'll be looking more closely at some of these themes as 2020 progresses so please watch this space!
November 2019 / IFCs must contribute to the evolution of the corporate tax landscape
In the IFC world, we are used to the concept of unintended consequences with instances that start as one thing morphing subtly but considerably into something else – the AIFMD, BEPS, and Brexit, to name a few.
Significant changes to the global corporate tax landscape are underway – what started as a means of tackling digital giants, has moved to look at multinationals more widely and consequently, potentially has far-reaching ramifications.
If this steams ahead, there is the potential for a seismic shift that could have a significant impact on cross-border trade and investment.
IFCs at the coal face of cross border investment, possess the knowledge and experience to evaluate these changes and to play a vital role in understanding their impact. Experience tells us that significant change, delivered at this speed, risks unintended consequences, which may be harmful to the global economy.
The context of how we have got to the current environment is critical. Corporate tax rates have been falling over the past couple of decades as countries have competed for corporate business. Since 2018, statutory corporate tax rates have fallen in 76 jurisdictions around the world, stayed the same in 12, and increased in just six.
Meanwhile, fiscal positions across the OECD have worsened as national debt has risen consistently across OECD members – for example, today the UK's national debt is equivalent to 113% of GDP, compared to 62% ten years ago.
It's important to point out that these two trends are not correlated, with corporate tax receipts increasing despite lower rates in many countries.
At the same time, effective rates of tax – the rates multinationals are paying on average as a result of varying rates across their global operations and their tax domicile arrangements – have been in freefall. There have been well reported instances concerning some of the larger digital firms paying minimal or no tax at all in the UK, despite significant turnover.
Against this backdrop, the underlying narrative is not that surprising. The drive towards a new international corporate tax framework is rooted in the conviction that the current tax rules, established in the 1920s, are no longer fit for purpose in the post-industrial world. Most would agree that concerns around profits generated with little to no physical presence have been building for some time, and that reform is inevitable.
It's also symptomatic of the post-global financial crisis drive amongst larger countries – particularly in the EU - to clamp down on perceived tax avoidance to tackle their widening national debt issues and increase tax receipts. They see territories around the world who can maintain lower corporate tax rates, are questioning how they can do this, and surmising that having lower tax rates leads to profit-shifting.
Low tax territories may come into focus despite the majority of IFCs committing to transparency measures and cooperation initiatives. Confidence can be drawn from the fact that many have had their tax regimes endorsed in the not too distant past by the very same organisations who are now pushing the new agenda forward.
With France, the UK, and the US (with its GILTI legislation) having all gone it alone to tackle the global digital players, the OECD put forward proposals in October this year in an attempt to take control of the direction of travel at a multilateral level. The aim is to coordinate global tax developments to head off a harmful proliferation of unilateral tax measures.
Pillar I, the consultation on how and where profits are taxed, has concluded; and Pillar II on a global minimum rate of taxation, a top-up tax, and several other new rules is expected to complete by January 2020. All achieved on an impressive timescale, but one which carries considerable risk given the scale and complexity of the task.
Overall, the proposal would seek to re-allocate profits and corresponding taxing rights to countries and jurisdictions where multinationals have their markets. And to ensure that those multinationals conducting significant business in places where they do not have a physical presence, be taxed in such jurisdictions, through the creation of new rules.
Those rules, if approved, would introduce a minimum corporate rate of tax, with firms earning profits in any territory offering a rate below that threshold (yet to be determined) being obliged to pay an additional 'top-up' tax payment. The proposals suggest that in some circumstances, treaty benefits would be disapplied, with amounts remitted to low-tax centres subject to a withholding tax.
Importantly for IFCs and investors, the proposals are silent at this stage between trading and investment or fund vehicles and therefore have the potential to challenge the concept of tax neutrality and alter the face of cross-border investment.
The Silver Lining
However, a number of factors will mitigate the impact of these measures on IFCs.
First the favoured basis of assessment is consolidated financial statements. This idea has a lot going for it in that it is probably the least complicated to implement, and avoids the expense and complexity of assessing at individual jurisdiction or even at entity level. Whilst IFRS and GAAP are not universal, there is greater convergence than with national corporate tax systems. Provided timing issues and differences in accounting standards are addressed; this approach should gain support. If zero or low tax rates are blended at a group level, the overall rate the multinational is paying will be assessed at a more realistic level and will be less subject to distortion.
Furthermore, it would be logical to borrow from the BEPs action 13 Country by Country (CbC) reporting model, by setting the de minimis levels for assessment at the same level of €750m of group revenues. The real target here is the large multinational enterprise with significant global activities. There would be no sense in ensnaring smaller export companies or passive investment companies in a complex and expensive system designed to capture substantive footloose digital and IP profits, not to speak of the enormous compliance burden for SMEs.
Leveraging expertise in the IFC world
With the OECD looking to build a consensus-based solution, there is real traction for this initiative. For IFCs, though, there is a significant opportunity here to collaborate and provide experienced and meaningful input into crucial bodies like the Global Forum and Inclusive Framework, to set out a clear counter-narrative and argue the case for tax neutrality.
The principle of avoiding the multiple taxation of investment funds is near universal and supported by the OECD. A funds carve-out is a likely 'no regret' move that would see investment vehicles and funds distinguished from trading companies in the overall proposals. Ultimately, there is a need to uphold the principle of not taxing investors multiple times, a policy that forms the bedrock of tax neutrality.
Aiming for a fairer system to ensure global trading companies are operating in a clear corporate tax framework is a sensible aim, but this is a once in a generation opportunity to get this right, in an area where IFCs can play a meaningful and positive role.
The expertise and understanding IFCs have of the international investment environment, and of tax neutrality in particular, should be instrumental in helping to shape a workable new tax framework.
An equitable corporate tax system that helps stimulate much–needed, high-quality cross-border investment in businesses and infrastructure around the world, leading to the creation of jobs, growth, and prosperity for all, must be a uniting goal.
October 2019 / Alternatives Rising Part II: Playing the Long Game
Counterintuitively, the most significant challenge currently facing the alternative funds community in IFCs is that they have been so successful over recent years.
Recent figures posted by Guernsey and Jersey, have shown strong growth, thanks to their ability to meet the demands of investors and managers, provide a stable environment and offer vast amounts of specialist experience.
High demand for alternatives to enable investors to pursue strategies of asset protection, diversification and growth, has led to an influx of alternative funds work. With the US and Europe dominating, and Asia emergent, innovative IFCs like the Channel and Cayman Islands have put in place targeted overseas market strategies and supported a burgeoning funds sector, and they have reaped the rewards.
As 2020 comes into view, the alternatives world is finely balanced, with a mixed bag of trends across the spectrum. The long-term prospects for alternatives are good, but understanding what is going on under the bonnet is vital. IFCs cannot take anything for granted if they are to maintain their positions as leading alternative fund hubs.
Headwinds are building - geopolitical disruption, trade wars, the prospect of a market downturn, and the actions of central banks are all contributing to an uncertain outlook.
Fold in AIFMD and CRS regulation, the rise of ESG investing, and the evolution of the family office, and it is clear disruptive forces are impacting on the future of the alternatives industry.
Anticipating and mitigating the disruption posed by these forces will be pivotal if IFCs are to continue to play such a central role in the cross-border alternative fund space.
Add to this, a record US$2.1trn of dry powder, stretching valuations, and targets increasingly hard to find, it is clear that there is a vast amount for cross-border funds communities to consider.
But this is only part of the story – the reality is we may be on the threshold of a new era in alternatives that could usher in long-term change.
The current generation will live longer than any other, driving societal change on a scale never before seen as pension funds grapple with enormous public sector pension liabilities, and strive to meet the needs of a global population that is getting older.
According to the OECD, average public sector pension cost-to-GDP is set to rise from 9.5% in 2015 to 12% by 2050. It is an enormous challenge that is unlikely to be resolved in years or even decades – the horizons stretch long into the future.
With fully engaged public sector stakeholders, closer scrutiny of the bottom line of pension funds is an inevitability, and costs could become the new long-term battleground. Promoters will look for efficiencies in all stages of the supply chain, putting even greater pressure on fees and margins. In short, the alternatives market will be demanding more for less.
Navigating choppy waters ahead
We are already seeing that valuations and competition for assets are the top two challenges reported by private equity investors, according to Preqin (June 2019).
Only this summer, the AICPA published a comprehensive guide to private equity and venture capital valuations, with a view to establishing an industry standard on the issue.
Regulatory reporting and transparency obligations continue to rise. Firms are dealing with data protection and cross border reporting challenges through CRS, and there are moves to give investors greater visibility on performance. This summer, industry bodies ANREV, INREV and NCREIF announced plans to publish an ‘internal rate of return’ index, to boost transparency for investors. Greater sophistication, a focus on data quality and more complex processes all come with higher costs.
With a possible market correction on the horizon there is a real need for service providers to play the long game and invest. Consideration needs to be given to structural change now – and the risk is that, because IFCs have enjoyed, and continue to enjoy, such good growth in their funds industries, the urgency to act is not recognised.
Adding people will not deliver increased productivity. The focus has to be on working smarter, achieving operational efficiencies and investing in digital platforms. AI, software robotics and processes to make all stages of the alternatives supply chain more cost-effective, from administrators and lawyers to custodians and auditors, must become the focus – and not just tinkering around the edges. It needs fundamental thought to ensure that service providers and the IFCs that house them are ready for the prospect of a market that looks very different in the future.
This challenge was highlighted in a recent survey by Funds Europe and Temenos, which found that some custodians and fund administrators are not keeping pace with the changing requirements of asset managers.
Just over half of the respondents reported legacy technology amongst service providers was a major problem, whilst over 90% said that investment in operational systems had become essential for asset managers to improve efficiencies and reduce costs, with data analytics a particular priority.
The message is clear, asset managers faced with a profitability squeeze and intense scrutiny, expect a commitment to investment from firms if they are to be part of their long-term supply chains.
Digital capability will add value
The good news for centres like the Channel Islands and Cayman is the criteria that have made them successful till now, will continue to prove attractive – stability, good governance, reputation, and substance, will all be viewed favourably. But it is their focus at a jurisdictional level on their digital capabilities through the creation of digital development agencies which should increasingly put them in a leadership position.
Jersey alone has 400 digital businesses and over 3,000 professionals working in digital roles. A network of digital entrepreneurs is developing a tech hub enabling business growth and the rapid adoption of technology solutions that are lowering costs, improving reporting and delivering substantial operational efficiencies.
The initial investment for service providers is considerable, but it is vital that eyes are on the long game, so that a solid, future-proof platform is put in place now. With millions invested in world-beating gigabit broadband, digital skills academies and 'Sandbox' capabilities, the Channel Islands and other IFCs that follow suit can look to the future confident in their continuing relevance and long-term success.
September 2019 / Alternatives Rising
The alternative fund sector is one of the biggest success stories for International Finance Centres (IFCs) – since the rise of cross-border funds some four decades ago, IFCs like the Crown Dependencies and the Cayman Islands have positioned themselves as centres of choice.
The focus has been on high levels of service, an institutional style approach and a suite of appropriate vehicles to facilitate smooth, efficient, big-ticket capital flows.
Today Guernsey and Jersey alone service fund assets valued at around £600bn – assets that are put to work through private equity to help support and grow businesses all over the world. Essential investment is going into supporting infrastructure, developments in retail and commercial property, and in fostering innovation in technology and life sciences.
Mid-way through 2019, though, the alternatives world is finely balanced, with a mixed bag of trends across the spectrum.
Recent Preqin figures paint a picture of a real estate fund sector that is slowing following a period of positive growth. While just over half (52%) of investors are planning to make a new commitment to the asset class over the next year, many investors are also expecting to commit less capital overall as they anticipate a potential slowdown.
Within private equity, meanwhile, fundraising slowed last year compared to record levels in 2017, (although 2018 was still the third-highest on record), and 61% of investors consider we are now at the peak of the equity market cycle.
In the long-term, the future for alternates is bright, with over $2trn in the dry powder locker. Institutional investors are allocating capital as they pursue diversification and higher returns. More than a third of real estate investors, 46% of private equity investors and 50% of infrastructure investors, are all planning to increase their allocation to the asset class in the long-term.
Of course, the alternative funds' community cannot take anything for granted. It must continue, notwithstanding the success seen in recent years, to evolve and to demonstrate that it is fully tuned-in to the trends driving the disruption of the global economy. In this respect allocating capital to the right assets, driving down costs and increasing operational efficiency will be the keys to mitigating these disruptive forces.
According to Capital Economics, forces such as geopolitics and the weaponising of trade have seen protectionist measures more than triple since 2010. The risk of unwelcome interventions is eating away at investor confidence, while Brexit if a no-deal scenario is played out, will cause further disruption in cross-border fund distribution.
That said the continuation of market access through national private placement regimes provides assured safe harbour status for Channel island funds.
With a significant proportion of institutional investment booked in US Dollars, even more of a challenge is the US/China trade war, which risks upending cross border trade considerably.
This is hurting capital flows, with a perceived movement away from global flows to a more intra-regional picture.
While North America, Western Europe and the UK are considered to offer the best opportunities for investors, developing markets are also providing opportunities. In terms of developed markets, 88% of private equity investors see North America as offering the most favourable opportunities followed by Europe (42%), and the Nordics (22%). China and India continue to lead as investment destinations in the developing markets, but a close analysis is vital in identifying investment patterns that are increasingly more regional than global.
Then there's regulation. The AIFMD was, for years, the major challenge faced by the alternatives community in Europe, but regulatory reporting, the Common Reporting Standard, beneficial ownership models and cybersecurity protocols are now substantive considerations for an industry where rising regulatory costs are such an issue. It's one reason why there has been so much consolidation in the alternative fund service provider market, as firms have sought economies of scale to manage these trends.
Then there's the move of private capital into the institutional space. Family offices are now estimated to allocate more than 50% of portfolios to alternatives (Family Wealth Report) and, given that they are sitting atop a mountain of readily investable dry powder, they have the potential to shape alternatives in the coming years significantly.
An emerging trend is the rise of ESG investing. A report by Newsweek Vantage last year found 78% of fund managers think their organisation should be making investments that aim to create positive value for society if they reduce long-term financial risks.
Given their expertise in governance and back-office administration, IFCs have a fantastic opportunity to provide the essential support to ensure fund managers can meet investor expectations in the ESG space.
The alternative fund communities in IFCs have batted themselves into a commanding position over the years, but navigating the coming decade will require all their skill and experience. Despite the near term headwinds, the structural demand for alternatives continues to grow. The primary driver is substantial pension funds in need of returns, with more than 10,000 baby boomers retiring every day, and average life expectancy 10 – 25 years better than the preceding generation.
Anticipating the disruption posed by economic and political volatility, regulatory change, investor demands and evolving fund models, will be vital if IFCs are to play such a central role in the cross-border alternative fund space.
Those IFCs that adjust their sails and navigate the short-term headwinds whilst delivering on the long-term promise can be confident they will succeed.
August 2019 / IFCs can bridge the ESG investment reporting gap
As Environmental, Social, and Governance (ESG) investment continues to evolve in the alternative asset world, International Finance Centres (IFCs) have a fantastic opportunity to provide some essential support to ensure fund managers can meet investor expectations.
However, firms will need to be quick to immerse themselves in this area, gain the expertise they need, and learn to speak the language if they are to prove their value.
Wealth is the new social battleground, prompting wealthy individuals to evidence better stewardship of their assets, by looking increasingly at strategies that can demonstrate social conscience.
Moreover, social conscience is just as relevant to the institutional investment world.
A Newsweek Vantage report published in 2018 found that more than three-quarters (78%) of fund managers agreed that their organisation should make investments that create positive value for society.
In another survey, members of the CFA Institute felt strongly that institutional investors should take ESG factors into account when making investment decisions.
This strong ESG movement in the world of alternative assets is particularly prevalent amongst the large players, the quasi-public pension funds. There's a good reason for this.
Pension funds exist to generate returns for millions of working people. Increasingly their members are the same protagonists demanding action on climate change, greater social equality, and better corporate behaviours.
Pension fund boards are acutely aware of this and are introducing measures to keep in step with the attitudes of their stakeholders.
In that vein, Mourant has helped blue-chip fund managers launch a number of ESG focused investment funds that have been supported by some sizeable pension firms.
The ESG investments are varied. Some of these funds have helped tackle issues such as urban regeneration, water-related infrastructure projects and, in one case, acquiring UK properties to be leased by high performing social sector organisations to deliver front line services to vulnerable individuals.
The common theme is that these funds have the usual financial return targets but these are coupled with delivering a positive social impact.
Governance structures now include the same 'millennial' generation that is increasingly focused on sustainability, purpose, and social value. Studies show that 84% of millennials cite investing with a focus on ESG impact as a central goal.
Given public pension fund investments constitute 44% of total worldwide private capital funding, private equity houses are understandably keen to reflect the changing attitudes of their prime investor base.
However, it's not a simple solution. The world of ESG continues to evolve; ESG itself has been around for decades, but the language, as well as the attitudes surrounding it, continue to change.
Larry Fink's annual letter to CEOs in 2017 was reflective of a growing movement amongst the world's largest investors when it comes to ESG investing.
With private capital moving increasingly into alternatives, courtesy of family offices, we can expect the evolution to continue. However, the convergence of individual and institutional investor aims, and varying geographical and cultural attitudes, have created challenges.
ESG terminology can be complicated; terms such as 'Impact investing,' 'socially responsible investing,' and 'green investing' are often used interchangeably, but have quite different meanings.
A notable change has been the evolution of negative screening, the 'do no harm' approach, which has morphed into a more positive 'do good' approach to investment selection.
So where do IFCs fit?
Institutional investors are demanding greater clarity around ESG performance and credentials. The experience and expertise of alternative fund service providers in IFCs, built up over the years in terms of reporting and governance, could be critical in meeting a perceived gap in service delivery.
Changes in attitude, for example, have certainly helped install a basic set of parameters, but the focus is now on standardisation, data management, reporting, and integrating approaches to ESG investment.
Notably, the BNP Paribas ESG Global Survey 2019 found that the most significant barrier to ESG investing is data (66% of institutional investors), while the cost of technology, analytical skills and the risk of greenwashing are all top challenges too. The same report found that ESG reporting capabilities were one of the critical factors attached to ESG manager selection – up from 11% in 2017 to 29% in 2019.
Administrators in the likes of Guernsey and Jersey have built up exceptional capabilities in cross-border reporting for private equity, real estate, infrastructure, and other alternative assets, but they must now adapt the experience they have and apply it in an ESG context.
Reporting, evidencing performance, and demonstrating impact will be vital in the ESG field, and there's no doubt that there's an opportunity here for administrators. While metrics and information are getting better and better, the overall picture is still quite fragmented, with different standards and reporting initiatives employed in different markets. A study by Guernsey Finance recently found, for instance, that greater transparency and certification around ESG focused alternative funds were essential to investors and managers.
Of course, there are serious questions administrators need to ask themselves to achieve that. Are they sufficiently equipped to be able to apply and develop the UN's Principles of Responsible Investment (PRIs) or Sustainable Development Goals (SDGs) to their reporting? Do administrators have the analytical skills to provide meaningful assessments around impact and performance? Do they need to develop new metrics and benchmarks of evaluation to be able to stand out as experts in the ESG field?
Some remain sceptical about the progress of ESG into the mainstream, but compelling and dramatic evidence of its impact continues to emerge.
European PE house Permira's investment in Dr. Martens saw a sparkling 2019 performance, with 30% revenue growth and 70% improvement in EBITDA. The boost to revenues was primarily attributed to the surge in demand for the groups innovative 'vegan boots,' demonstrating that an ESG driven approach to what consumers want can produce spectacular results.
Mourant assisted Generation Investment Management, the firm co-founded by environmentalist and former Vice President Al Gore, on the close of Guernsey domiciled US$1 billion Generation IM Sustainable Solutions Fund III. The firm's third fund focuses on growth-stage businesses with well-established technology and commercial traction in three areas: planetary health, people health, and financial inclusion.
IFCs who 'tune in' to societal change in this way, nurture skills in the right areas, and take proactive steps in bringing new products and services to market, such as Guernsey's 'green fund' wrapper, can undoubtedly capture the 'ESG' opportunity.
A proactive approach to evolving specialist ESG governance and reporting services presents a real opportunity to play a pivotal role in ESG's ongoing development, and to support fund managers in meeting the ESG appetite of institutional investors.
July 2019 / Stewardship is key as global wealthy embrace self-awareness
A call for the introduction of a wealth tax from some of the US’ wealthiest individuals including George Soros, Facebook's co-founder Chris Hughes and Molly Munger was perhaps, on the face of it, one of the more surprising developments on the US presidential trail last month.
But it shouldn’t really be that surprising – this open letter, which suggested that a wealth tax could ‘help address the climate crisis, improve the economy, improve health outcomes, fairly create opportunity, and strengthen our democratic freedoms’, is really symptomatic of changing attitudes amongst the wealthy towards their place in a world of shifting societal norms.
It’s an attitude that is informed, quite rationally, by decades of experience. Recent history tells us that, in the aftermath of economic downturns, governments have always sought to cast blame on the wealthy and the agents of the wealthy – the wealth advisers, the investment banks, the private client lawyers and the tax advisers – in order to maintain some sort of appeal amongst the masses.
The global financial crisis which started in 2008 is a case in point – something that has its roots in widespread unsustainable property debt resulted in the public bailout of banks, fuelling resentment against banking institutions, wealth advisers, the speculative hedge funds and the wealthy themselves.
We’re still seeing the repercussions of that today – cuts in public services in the UK as a result of the financial crisis and an era of austerity, for instance, have driven further resentment, a backlash against globalisation, a move towards protectionism and a political agenda that has become increasingly polarised – a split world symbolised by ‘Trump’s wall’: Remain and Leave, globalisation and protectionism …the rich and the poor.
Wealth has become the new battleground, and the wealthy are acutely aware of that, and responding – not in defiance, but in an attempt at understanding. Stewardship has become the watchword as wealthy individuals and their families look increasingly at strategies that can demonstrate social conscience, responsibility to the community at large, and transparency.
It’s a trend we have seen emerging for some years – philanthropy, Environmental, Social and Governance (ESG), ethical and impact investing have become increasingly central to the strategies adopted by wealthy individuals and families – the Global Family Office Report suggests that 39% of family offices are projecting when the next generation takes control of their families’ wealth, they will increase their allocation to sustainable investing.
Really only in recent years, has this discourse cemented itself in the corporate world. Larry Fink, CEO of Blackrock, the world’s largest investor, sparked the corporate world into life when he published his annual letter to CEOs in 2017, underlining the importance of a shared focus on long-term sustainability and ESG investing.
More recently, a survey of CFA Institute members revealed a growing tendency towards ESG, with 85% of respondents claiming institutional investors should take ESG factors into account when making investment decisions.
As family offices become more and more institutional in their approach, as the next generation of wealthy individuals take control of family wealth, and as a new breed of entrepreneur emerges, the ‘old’ principles that guided the baby boomers are being challenged.
Millennials seem to be voting with their feet and buying into sustainability, purpose and social value – studies show that millennials are nearly twice as likely to have made a purchase because of a brand's environmental or social impact whilst 84% of millennials cite investing with a focus on ESG impact as a central goal.
For the International Financial Centres (IFCs) that have typically supported the strategies of wealthy individuals, there are some fundamental issues to consider in light of these trends that go right to the heart of a modern approach to wealth management.
Stewardship clearly has to be at the core if they are to continue to reflect the attitudes of the wealthy. Traditional models of wealth and succession planning are not enough. Trustees need to be alive to the subtleties of societal trends; have the right structures and advisers in place to support the needs of the wealthy; and bring their offering together in a much more holistic way that recognises the sensitive and complex dynamic between the wealthy and society more widely.
The ramifications of investment and philanthropic activity needs to be carefully thought through, for instance, if it is to have the desired positive impact and win back the trust of the people - as the wealthy French donors to Notre Dame discovered earlier this year.
In addition, IFCs that have so long trumpeted the merits of globalisation and wealth creation need to think carefully about how they can adapt to defend and articulate a new style of ‘responsible capitalism’ that reinforces their legitimacy in the modern age of stewardship, working for the long-term benefit of the general public – whether that’s through developing niche ‘green fund’ products or by specialising in helping millions in the broader population with their savings for retirement.
Just as the wealthy have shown a greater self-awareness in this new era of stewardship, so too IFCs must continue to rise to the challenge.
May 2019 / Capturing Synergies in an Evolving Family Office Landscape
Today, the requirements of families can be complex, often global and increasingly digital with families often behaving as if they are institutions in their own right. They invariably have multiple cross-border business interests, different generations are taking a much more active interest in family affairs, and financial and lifestyle objectives are increasingly diverse and intertwined.
These are the ‘internal drivers’ that are proactively shaping family office behaviours.
At the same time, the investment, tax and commercial environment families are operating in has become more and more complex. Geopolitics is creating uncertainty and volatility, whilst international regulation and tax are impacting investment and structuring decisions.
These are the ‘external drivers’ that family offices are having to react to.
These internal and external forces are, of course, hugely pertinent to the infrastructures that support families and family offices too. For the advisers and service providers (and the IFCs that house them) that are smart and alive to the implications of this evolution, there are real opportunities to capitalise on the institutionalisation of the family office and capture the resulting synergies between ‘traditional’ wealth management and institutional investment.
One of the most powerful forces shaping the family office space is the globalisation of family activity with wealth moving more rapidly around the world as families become increasingly active in their investment strategies.
As the Knight Frank Wealth Report 2019 highlights, for instance, 36 per cent of UHNWIs now hold a second passport, up from 34 per cent last year, with 26 per cent planning to emigrate permanently, up from 21 per cent, reflecting a growing propensity to take an interest in multiple locations.
At the same time, family offices are moving increasingly into alternative investments as they look to diversify their risk portfolios. The latest Family Wealth Report’s Family Office Focus found that family offices now have an aggregated 53 per cent exposure to alternatives with 39 per cent of advisers globally saying that their UHNW clients had increased their private equity holdings in the past year. In addition, the Global Family Office Report 2018 found that half of family offices intend to invest more in direct investments, namely private equity, this year.
And philanthropic activities (up 29 per cent in 2018 globally amongst HNWIs according to Knight Frank); co-investment with other families; and international business ventures are increasingly common features of the modern family –significantly, over a third (39 per cent) of family offices project that when the next generation takes control of their families’ wealth, they will increase their allocation to sustainable investing (Global Family Office Report).
Regulation and Uncertainty
All this, though, is happening against an increasingly complex regulatory backdrop, with fragmented regional approaches to regulation and rafts of reporting requirements, including the Common Reporting Standard (CRS) and FATCA, impacting family offices with cross-border interests.
The indications are that family offices are still grappling with these issues. In particular, there is a real tension between the desire to comply with requirements on the one hand, and the desire to resist intrusion into their privacy as a family on the other. According to Hubbis, three-quarters of families in the Middle East will only adapt to the new world of transparency ‘slowly and painfully’.
Geopolitical uncertainty is a big factor too – 68 per cent of wealth advisers globally think that the political and economic environment will make it harder for their clients to protect and create wealth this year in their home country. That rises to 72 per cent in the Middle East (Knight Frank Wealth Report 2019).
And from an operational perspective, family offices are spending a fifth of working hours on manual processes on average as they struggle with generic software for accounting and investment analysis (Family Wealth Report).
There’s no doubt that the ambitions of family offices are more sophisticated today - but to achieve these ambitions and respond to external pressures there is still a clear reliance on third party expertise and a need for institutional-grade support.
Whilst ‘traditional’ wealth management expertise remains key for IFCs supporting family offices, the diverse expertise they have developed in areas beyond private wealth could provide opportunities to capture synergies in complementary areas too – specifically alternative investments, regulatory compliance, and digital support.
Guernsey and Jersey, for example, have developed formidable experience in alternative fund structuring. When combined, both jurisdictions today service funds valued at more than £0.6trn, enabling investors around the world to put their capital to work in private equity, infrastructure, venture capital and real estate funds, whilst both have also placed a real emphasis on growing their green and wider environmental, social and corporate governance (ESG) credentials - all precisely the areas family offices are looking at.
And this experience is heavily weighted towards institutional investors i.e. pension funds, sovereign wealth funds etc. That level of experience will resonate well with family offices.
Meanwhile, IFCs like the Crown Dependencies and Overseas Territories (CDOTs) have vast experience when it comes to navigating global regulatory obligations and managing cross-border reporting through CRS and FATCA. New substance rules in the CDOTs, in tandem with recognition from authorities such as the OECD, EU, IMF and World Bank, have also created strong, robust platforms that will appeal to family offices looking for locations that can demonstrate good governance and provide an attractive ecosystem for growth.
IFCs that are clearly committed to growing cutting-edge digital sectors will also reinforce that they understand that a successful family office must also consider the technological needs and the cultural values of the next generation – being able to deliver more efficient, automated, on-demand and remote services and advising on cutting-edge areas like AI and blockchain will become more and more important.
The evolution of the family office towards demanding institutional levels of service and infrastructure means that there is now more than ever a need for high quality expertise that can deliver global, multi-disciplinary and digital support. Those IFCs that take a holistic approach, recognise the synergies between traditional family wealth management and cutting edge global investment, and successfully bring them together, will have a bright future.
April 2019 / Brexit - Trick or Treat?
March 2019 / Brexit: Deal or No Deal
The streets of London were packed this weekend with hundreds of thousands of Remain marchers, determined to make their voices heard.
Mrs May has returned from Brussels without the 30th June extension she had hoped for, and instead must make do with 22nd May if her deal is passed in the House of Commons, and 12th April if not.
Fearing another defeat, the PM's Deputy David Lidington was reported to be engaged in a last ditch attempt over the weekend to build a cross party consensus between a no deal and the withdrawal agreement concluded with the EU.
Press reports have speculated on whether or not Mrs May can carry on, having lost the confidence of key Ministers and the European Council. Her searing midweek intervention, laying blame squarely at the feet of British MPs, appears to have misfired. MPs are after all the only people who could vote her deal through.
Can the House of Commons come up with a solution?
Parliament continues to be divided over the terms of the Brexit deal with the backdrop of a majority of MPs originally voting Remain. Rejecting no deal was relatively straightforward. Saying yes to something, and agreeing the detail is another matter entirely.
Deposing Mrs May will be no easy task with the 1922 committee unable to facilitate a leadership challenge until December 2019, and the fixed term Parliament Act providing a strong shield against Corbyn led calls for an election.
Despite losing out to Oliver Letwin’s indicative vote initiative Mrs May will only step down during the Brexit process if she chooses to. Meantime binary votes on different orders of preference will be a complex and difficult process.
Irrespective of who is PM or whether or not Parliament takes the driving seat, any revisions to the withdrawal agreement need to be acceptable to EU Leaders, who have indicated limited appetite for change.
What happens next?
29th March is no longer in play and the period to the 12th April could see a no deal confirmed simply by default through the passage of time. Alternatively, a new House of Commons consensus may emerge, but with no certainty that the EU will agree it.
What is in the withdrawal agreement?
When faced with the extraordinary quantum of information generated over the 1,000 plus days since article 50 was triggered, it's easy to lose sight of the terms of the withdrawal agreement. Ploughing through its 599 pages, not to mention the additional 26 pages in the political declaration, is a daunting task.
Withdrawal Agreement – what are the key points of interest?
When considering the agreement it's important to remember these are withdrawal terms and not the future trade deal. You can find a detailed but accessible summary here.
There are Brexit implications for the devolved administrations, and the Crown Dependencies and Overseas Territories (CDOTs). As the Withdrawal Agreement 'key points' graphic above indicates, they haven’t been forgotten.
Citizens' rights to stay are clearly important as is a stable transition, and it's been confirmed that the common travel area within Britain will continue. In the case of the Crown Dependencies, industries such as fisheries and farming need new solutions.
However, it is UK manufacturing and supply chains that have the most to fear from a no deal crash-out. With the CDOTs largely focused on financial services and not being major manufacturing centres, this should not be a significant concern for them.
The CDOTs governments have been proactively engaged throughout the Brexit process and comprehensive information is available on their Brexit strategies on their official websites.
Examples can be see in the following links published by the Governments of Jersey and Guernsey.
Third country services are unaffected by Brexit
Economies in the CDOTs are heavily skewed to financial services with access to the EU through individual bilateral agreements negotiated sector by sector on an equivalence basis. They are classified as third countries for market access purposes. This means that their legislation, regulation, and investor protection rules must all be assessed as substantially equivalent by the EU before market access is granted.
Equivalence status means that approved third country regimes receive protections through the EU single market rules:-
“In a second step, the Maastricht Treaty, which entered into force in 1994, introduced the free movement of capital as a Treaty freedom. Today, Article 63 TFEU prohibits all restrictions on the movement of capital and payments between Member States, as well as between Member States and third countries.”
Source: EU Parliament
Alternative funds are one of the primary CDOTs' financial services activities in EU markets.
And the CDOTs have the infrastructure in place to enable investment flows to continue seamlessly through tried-and-tested private placement routes into the EU. Whilst there may be a second order impact from any economic slowdown, the CDOTs financial and related professional services market access to Europe is unaffected by Brexit. They continue to provide an attractive safe harbour for promoters through uncertain times.
Estimates of the economic impact of deal or no deal scenarios vary greatly. Whilst many options will be proposed in the indicative votes, there are realistically only four main scenarios: deal, no deal, no Brexit or a longer delay.
In our view, each of these would have a different economic outcome in a range of plus 1.50% to minus 0.5% of GDP in 2019, depending on how hard or soft the Brexit experience. The worst case scenario of no deal would, we believe, trigger a short sharp recession. However, with the British economy currently the strongest in the G7, media predictions of an economic catastrophe are unlikely to materialise.
The CDOTs are part of the British family and a good neighbour to Europe; they are important investment partners to both sides of the Brexit equation. They continue to support and engage constructively as Britain and the EU search for a fair and equitable outcome.
As facilitators of hundreds of billions of internationally mobile capital, the CDOTs will continue to work together with their British and EU partners to build a better future, by providing the essential long term investment needed to develop jobs, growth and prosperity.
As this week unfolds, the shifting sands of the Brexit deal or no deal situation will intensify. Please look out for a further update on our blog during next week.
February 2019 / A middle ground for globalisation
Rewind a year to Davos 2018, and the antagonistic dynamic between protectionism on the one hand and globalisation on the other was a clear theme.
Back then, German Chancellor Angela Merkel pronounced that ‘protectionism is not the answer’ to a prosperous future for global markets, whilst Indian Prime Minister Narendra Modi concurred, suggesting that resisting globalisation is one of the three biggest threats to global economic success.
A year doesn’t seem to have made much of a difference – in fact, fast forward to Davos this year, and if anything the temperature has been notched up yet again. Although the theme of Davos this year was “Globalisation 4.0: Shaping a Global Architecture in the Age of the Fourth Industrial Revolution”, in reality, globalisation was still in the dock.
Rather than fronting an unequivocal endorsement of globalisation as a force shaping a desirable future, Davos this year succeeded in sparking debates around the impact globalisation may or may not have on inequality, climate change, migration and tax. Those attending were cast as elite private jet-setters, detached from the ‘man on the street’, and as the champions of big businesses. President Trump, Prime Minister May and President Macron weren’t even there, leaving Japan and Germany to fight globalisation’s corner.
Challenging the assumptions around globalisation is understandable, because it impacts us all – what we buy, how we buy it, how we interact with each other, where we work, and there’s no doubt that having proper discussions around globalisation is an absolutely vital part of modern economics, politics and society. It involves complex questions that do not just revolve around trade, but impact on culture and society too.
Overall, the impact of globalisation is fairly poorly understood. Globalisation is often accused of benefitting the wealthy at the expense of the poor and yes, its impact on the wealthy is greater than on the poorest in society.
However, it is still the case that globalisation has helped pull millions of people out of poverty; it has provided jobs and employment; and it has provided opportunity for those who might not otherwise have had any. A World Bank study, for instance, has suggested that the number of people in developing countries living in extreme poverty has fallen from more than 50% in 1981 to 21% in 2010, despite a 60% increase in the population in the developing world.
It’s also vital that we have proper discussions about what the alternative means for each and every one of us. Protectionism and global fragmentation is a very real trend too – Capital Economics and the World Trade Organisation note that global trade-restrictive measures have more than tripled since 2010, whist HSBC’s latest global Trade Navigator survey found that 63% of firms think governments are becoming more protective of their home economies. But what does this all mean for our future livelihoods, career prospects and the cost of goods and services?
Again, these are complex questions – but it is all relevant to international finance centres. In fact, I would contend that IFCs have a key role to play in all this.
The world today is very much one of dichotomies – remain and leave; populism and globalisation; rich and poor; small business and multinationals – with proponents of each constantly shouting at each other through Twitter and other fora.
For the forward-thinking IFC, it strikes me that there’s a really crucial role here that goes beyond being passive conduits of international capital. As neutral centres, there’s also an opportunity - an obligation even - for IFCs to play more of a proactive, mediatory role, that can champion a new form of globalisation, promote inclusivity, and provide some balance, impartiality, rationality amongst the noise.
I’d even go as far as to say that, if IFCs don’t realise this opportunity, be bold, assert their value, and start asking themselves questions about what this new role means and how they can provide some middle ground that can encourage global collaboration, debate, and cooperation, they may well find themselves steamrollered by the big hitters in both corners.
And with IFCs providing trillions of dollars of inward investment to support the lives of millions of people around the world, helping to finance the construction of schools, roads and hospitals in countries in all corners of the globe, and doing so in a way that ensures public and private sector capital is put to work in the most efficient way possible, I think for IFCs to not be part of this future would be to the detriment of everyone.
Geoff Cook, Consultant