Redomiciliation of collective investment schemes
The Maltese legislative provision dealing with the continuation of foreign collective investment schemes to Malta is Article 31 of the Investment Services Act, 1994 (the ‘Act‘). This article states that a body corporate formed outside Malta and carrying on the business of a collective investment scheme may be continued as a collective investment scheme under the laws of Malta. This applies in so far as it is similar to a body corporate as known under this Act.
The continuance of a foreign body corporate to Malta shall not be possible unless such continuance is permitted by the applicable laws of the foreign jurisdiction as well as by the statute or other equivalent instrument of the foreign body corporate. The continuance of a foreign body corporate in Malta shall be effected by an instrument of continuance containing, in addition to the declarations relating to the continuance, the equivalent of a memorandum and articles or equivalent constitutive document showing on the face of it that the continuance has been approved.
The body corporate shall cease to be a foreign body corporate upon the delivery of the instrument of continuance and its registration under this Act, and it shall continue its corporate existence under the laws of Malta, and shall retain all its assets, rights and liabilities in Malta.
The relevant steps to be followed are the following:
1. An application shall be submitted in Malta for a Collective Investment Scheme licence under the Act is submitted to the MFSA;
2. The Maltese application should be accompanied by the relevant documentation – This documentation should be submitted in draft form for the Maltese Authority‘s review and should be drafted on the basis of the Scheme post-re-domiciliation to Malta;
3. The Maltese Registrar of Companies is approached at this stage and the relevant due diligence on the CIS wishing to domicile its business in Malta is undertaken by the MFSA;
4. The MFSA reviews and vets the draft documentation provided and reverts with comments to the promoter wishing to domicile in Malta – The proposed structure and documentation to be used by the Scheme would need to be in line with the requirements specified in the Investment Services Rules of the Authority;
5. The MFSA proceeds to issue its ‘in principle‘ decision following resolution of any main issues arising with respect to the scheme, the documentation provided, and also following receipt of sufficient and satisfactory replies to the MFSA‘s due diligence enquiries;
6. Following the communication of the ‘in principle‘ approval, which would list the pre-licensing outstanding issues, the promoters proceed to finalise the relevant documentation required by the Authorisations Unit of the MFSA and the Registrar of Companies;
7. Subject to the satisfaction of all relevant requirements of the Authority and the Registrar, the Scheme would be licensed on the same date it is re-domiciled to Malta.
Other specific documentation requested by the MFSA is the following:
- Recent copies of the audited financial statements of the scheme wishing to red-domicile to Malta;
- A copy of the existing (i.e. pre-domiciliation) Memorandum &Articles of Association and Offering Memorandum;
- A signed resolution from the existing Board of Directors of the Scheme confirming, amongst other things, their intention to re-domicile the Scheme to Malta and that there are no regulatory issues relating to the said re-domiciliation nor any pending litigation or disputes;
- In case of a change in the composition of the Board of Directors, upon re-domiciliation MFSA would also require a signed resolution from the new Board of the Scheme confirming that they endorse the application for a CIS licence in favour of the Scheme and also that they have reviewed the final revised version of the Offering Memorandum and assume responsibility thereof.