钱伯斯（Chambers）：2022年投资基金报告（英文版）（10页）.pdf

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1、Investment Funds 2022 Definitive global law guides offering comparative analysis from top-ranked lawyers USA:Law&PracticeDavid B.Parrish and Nicole Brennig DLA Piper LLPUSA2Law and PracticeContributed by:David B.Parrish and Nicole Brennig DLA Piper LLP see p.9WashingtonUnited States of AmericaMexico

2、CanadaC O N T E N TS1.Market Overview p.31.1 State of the Market p.32.Alternative Investment Funds p.32.1 Fund Formation p.32.2 Fund Investment p.52.3 Regulatory Environment p.52.4 Operational Requirements p.72.5 Fund Finance p.72.6 Tax Regime p.73.Retail Funds p.73.1 Fund Formation p.73.2 Fund Inve

3、stment p.83.3 Regulatory Environment p.83.4 Operational Requirements p.83.5 Fund Finance p.83.6 Tax Regime p.84.Legal,Regulatory or Tax Changes p.84.1 Recent Developments and Proposals for Reform p.83USA Law and PracticeContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP 1.M A R K E T O

4、V ERV I EW1.1 State of the MarketThe private markets asset class continued its impressive rise from the early depths of the pan-demic throughout 2021.Venture capital,growth and private credit funds were raised at a robust pace during 2021,continuing the trends seen in the second half of 2020,and lev

5、erage dynam-ics between sponsors and investors remained largely unchanged.Despite the ongoing effects of the pandemic and growing concerns about inflation,in most respects the level of fundrais-ing and deal-making activity in 2021 exceeded activity levels in recent years.With continued confidence in

6、 the returns possible in private mar-kets and the strong growth experienced in the public markets in 2021,many institutional inves-tors maintain their high conviction to continue to invest(and,in many cases,increase their expo-sure)in private equity,venture capital,growth and private credit.2.A LT E

7、 R N ATI V E IN V E S T M E N T F U N D S2.1 Fund Formation2.1.1 Fund StructuresLimited PartnershipThe limited partnership continues to be the structure of choice in the private markets indus-try(regardless of jurisdiction).Of course,this is not surprising given that the industry partici-pants fully

8、 understand the limited partnership structure,the varied roles of the participants in a limited partnership and the legal consequences thereof(ie,the general partner has control and unlimited liability for the debts and obligations of the fund and the limited partners are not involved in the active

9、management of the fund and,as a result,have limited liability).Investors and sponsors prefer not to have to perform diligence and understand uncommon structures(even if those structures ultimately provide the same fundamental outcome),as doing so adds unnecessary time and expense to the already burd

10、ensome process inves-tors undertake to commit to new fund invest-ments.The process of underwriting a sponsor,team,strategy,opportunity and the like from an investment,operational and legal perspective is both time-consuming and expensive.Sponsors understand that introducing additional complex-ity in

11、to this process by using uncommon legal structures does nothing more than complicate and protract the fundraising process.“Parallel Fund”and“MasterFeeder”StructuresPrivate equity funds and growth funds focused on North America continue to predominately use the“parallel fund”structure for raising cap

12、ital.The parallel fund structure involves forming two or more limited partnerships,each of which is controlled by the fund sponsor as the general partner.Each limited partnership is structured to address the tax,legal,regulatory or similar needs of the relevant domestic and international investors w

13、ho desire to participate in the fund.Each limited partnership formed then invests side by side(in parallel)with the other limited partnership(s).This structure enables institu-tional investors to invest in the fund opportunity in as efficient a manner as possible.While the parallel fund structure is

14、 the most common approach for private equity funds and growth funds,other structures can be used,including the“masterfeeder fund”structure.Under the masterfeeder structure,the sponsor forms limited partnerships designed to address legal,tax,regulatory or similar needs of poten-tial investors.Investo

15、rs then select which limited partnership is most appropriate for the investor.Each of these limited partnerships is considered Law anD PRacTIcE USAContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP 4a“feeder”vehicle that in turn makes commit-ments to an underlying limited partnership co

16、m-monly referred to as a“master”vehicle.The aggregate commitments of each feeder vehicle to the master vehicle equals the total commit-ments made to the feeder vehicle by the feeder vehicles underlying investors.The investments are then made by the master vehicle.Like private equity,certain private

17、credit funds that are in the business of originating debt investments will likely use a variant of the par-allel fund structure given certain negative tax implications that may arise for participating international investors if they participated in an investment vehicle that is active in a trade or

18、business in the United States.Under this vari-ant structure,the limited partnership formed for domestic investors to participate will originate the investment and,after a certain period of time,the limited partnership will sell a participa-tion in the investment to the limited partnership formed for

19、 international investors.This structure mitigates potentially negative consequences for participating international investors while allow-ing them to participate in the strategy.Preferred Structure for Venture Capital FundsVenture capital funds will often be formed as a single limited partnership an

20、d will not utilise either the parallel fund structure or the feeder fund structure.As such,both domestic and international investors will invest in a single lim-ited partnership that will make all investments in the portfolio.This difference relative to private equity funds and growth funds is drive

21、n by the fact that the securities held by a venture capi-tal fund will be in entities that are corporations for income tax purposes.Private equity funds and growth funds will invest in securities in both corporations and also limited liability compa-nies and limited partnerships that are treated as“

22、flow-through”entities for federal income tax purposes,meaning that the tax consequences of their operations will be taxable at the level of the partners or members of such entity.2.1.2 Common Process for Setting Up Investment FundsStrategy continues to play a substantial role from a regulatory persp

23、ective and the requirements will vary accordingly.Venture capital continues to benefit from an exemption from registration under the Investment Advisers Act,while cer-tain real estate-focused sponsors may have the opportunity to be exempted entirely.Private equity,of course,will continue to be subje

24、ct to registration requirements for the investment manager and,thus,be subject to the fiduciary obligations imposed on registered advisers and the related disclosure requirements.The registration requirements do require enhanced disclosure and regular updates requir-ing appropriately trained and com

25、petent compli-ance personnel.2.1.3 Limited LiabilityInvestors in limited partnerships generally have limited liability for the debts and obligations of the limited partnership,with their exposure limited to their interest in the limited partnership(inclusive of their unfunded capital commitments)so

26、long as the limited partner(i)does not participate in the“management and control”of the limited partnership,(ii)hold itself out as a general part-ner,or(iii)deal with third parties who reasonably believe the limited partner is acting as a general partner.The limited partners are also subject to any

27、contractually agreed obligations,including the obligation to return distributions previously received from the limited partnership pursuant to“recycling”and“LP give-back”provisions contained in the limited partnership agreement.Investors need to carefully review terms to ensure that the governing do

28、cuments of their investments do not expose them to unlimited 5USA Law and PracticeContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP liability by contract.This is particularly relevant in the context of co-investment vehicles,which frequently charge fees and expenses outside an investor

29、s capital commitment.Finally,most jurisdictions include limited statuto-ry return obligations.For example,in Delaware,limited partners may be obligated to return dis-tributions to the extent the limited partnership is insolvent at the time of receipt of the relevant distribution.2.1.4 Disclosure Req

30、uirementsThe governing law of the jurisdiction under which the limited partnership is formed effec-tively provides that all disclosures and reporting may be determined and qualified in their entirety pursuant to the terms of the limited partnership agreement.As a result,investors must negoti-ate for

31、 any necessary or desired disclosure and reporting.Note,however,that certain regulator regimes,such as the Investment Advisers Act of 1940(the“Advisers Act”),impose certain dis-closure and reporting obligations.Investment advisers subject to the Advisers Act may be required to prepare and file certa

32、in reports with the US Securities and Exchange Commission(SEC).In addition,investment advisers subject to the Advisers Act may be required to provide certain clients and prospective clients with dis-closure statements.Sponsors should carefully consider their obligations with legal counsel and other

33、service providers with the relevant experi-ence and expertise.2.2 Fund Investment2.2.1 Types of Investors in Alternative FundsInvestor appetite for alternative funds(primarily private markets)is substantial and continues to grow given the returns historically provided in the private market asset cla

34、sses returns that many studies show outperform public markets.Investors include corporate strategic investors,corporate pensions,public pensions,develop-ment finance institutions,single and multi-family offices,foundations,endowments,sovereign wealth funds,high net worth individuals,insur-ance compa

35、nies,funds of funds,discretion-ary account managers,banks and financial institutions.In addition,as regulators contem-plate changes to the rules that have historically blocked access by retail investors to private equity funds,the appetite for alternative funds in the United States is poised to incr

36、ease dra-matically.2.2.2 Legal Structures Used by Fund ManagersThe primary legal structure utilised is the limited partnership,with the sponsor serving as the gen-eral partner and the investors as limited partners.Occasionally,a limited liability company will be used,though it is very rare.2.2.3 Res

37、trictions on InvestorsUnder applicable laws and regulations,depend-ing on the particular exemption the fund will uti-lise under the Investment Company Act of 1940,investors will be required to be either“accredited investors”or“qualified purchasers”.Further,if the sponsor is a registered investment a

38、dviser,the investors must also be“qualified clients”.2.3 Regulatory Environment2.3.1 Regulatory RegimeGenerally,private markets funds must be raised under an available exemption from the Securi-ties Act of 1933,as amended.Further,depend-ing on the strategy pursued by the sponsor,the SEC may have ove

39、rsight pursuant to registration under the Investment Advisers Act of 1940,as amended.Law anD PRacTIcE USAContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP 62.3.2 Requirements for Non-local Service ProvidersLegal providers are subject to oversight of the licensing authorities pursuant t

40、o which they are authorised to practise law.Accounting firms are likewise subjected to licensing requirements and oversight by the SEC.Any custodian financial institution will be subject to regulatory oversight and applicable laws.2.3.3 Local Regulatory Requirements for Non-local ManagersIf required

41、 or otherwise eligible to register as a registered investment adviser under the Invest-ment Advisers Act of 1940,as amended,there will be no state-level registration requirements.However,applicable regulatory filings in connec-tion with relying on a regulatory exemption under the Securities Act of 1

42、933,as amended,may be required.Non-US sponsors offering investment opportunities within the USA may well be sub-ject to US federal and state regulatory require-ments depending on the scope of their offering.Non-US sponsors should carefully consider their regulatory obligations with legal counsel and

43、 other service providers with the relevant experi-ence and expertise.2.3.4 Regulatory Approval ProcessLimited partnerships are not required to be reg-istered.2.3.5 Rules Concerning Marketing of Alternative FundsCompliance with private offering exemptions under Regulation D or Regulation S promulgate

44、d under the Securities Act of 1933,as amended,will be required in order to avoid the offering of the interests in the limited partnership as a pub-lic offering with attendant filing requirements.2.3.6 Marketing of Alternative FundsAlternative funds may only be marketed to inves-tors who have a suffi

45、cient level of sophistica-tion and wealth.Depending on the anticipated exemption the fund sponsor is seeking from hav-ing the fund being deemed to be an investment company under the Investment Company Act of 1940,investors will need to be either“accredited investors”under promulgated regulations and

46、 guidance from the SEC or a“qualified purchaser”under prevailing applicable laws and regulations.In addition,if the alternative investment spon-sor is a registered investment adviser under the Investment Advisers Act of 1940,the investors will have to be“qualified clients”,meaning they have sufficie

47、nt assets managed by the alterna-tive fund sponsor(inclusive of their commitment to the alternative investment fund).Sponsors should carefully consider the regula-tory requirements with legal counsel with rele-vant experience and expertise to ensure that the prospective investors are appropriately q

48、ualified to hold the interests and will not cause any regu-latory concerns in the formation,management and operation of the alternative investment fund.2.3.7 Investor Protection RulesIn addition to the fiduciary and disclosure obliga-tions imposed upon the sponsor of the alterna-tive investment fund

49、 under the applicable provi-sions of the Investment Advisers Act of 1940,investors are provided protections under the anti-fraud requirements of the Securities Act of 1933,as amended,as well as the laws of the jurisdiction under which the alternative invest-ment fund is formed.It is important to not

50、e that the fiduciary obligations imposed on the general partner under the laws of the jurisdiction in which the fund is formed may be enhanced,restricted,modified and eliminated pursuant to the terms of the limited partnership agreement.As such,investors must carefully review and negotiate the terms

51、 of the limited partnership agreement to ensure they understand the relationship.It should be noted further,however,that the gen-eral partner of a limited partnership is not permit-7USA Law and PracticeContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP ted to eliminate the implied contr

52、actual covenant of good faith and fair dealing.2.3.8 Approach of the RegulatorThe SEC regulates investment advisers primar-ily under the Investment Advisers Act of 1940 and rules adopted pursuant thereto.The SEC provides published guidance in connection with the registration requirements and process

53、es required to register as an investment adviser and maintain compliance therewith.Face-to-face meetings would generally occur only in connection with inspections and examinations conducted by the SEC.2.4 Operational RequirementsOperational requirements as to the manage-ment of alternative funds wil

54、l be determined in accordance with the terms of the limited partner-ship agreement governing the management and operation of the alternative investment fund and applicable provisions of the Investment Advis-ers Act of 1940,as amended.The provisions of the limited partnership agreement,among other ma

55、tters,will set forth:the strategy and applicable investment restrictions for the fund;the form and timing of reports to be provided to the limited partners;the valuation methodology for the assets of the alternative investment fund;the expenses properly chargeable to the alternative investment fund

56、and those proper-ly chargeable to the investment sponsor;and any restrictions on borrowing(if any).2.5 Fund FinanceSubscription facilities have become common-place in the private markets area,as they provide sponsors the ability to manage capital calls,act quickly on investment opportunities and mit

57、igate the J-curve,while providing an increased IRR(internal rate of return)to investors(though at a cost to the MOIC(multiple on invested capital)realised given the interest expense of the sub-scription line,as well as the maintenance and set-up costs thereof).While the use of subscription facilitie

58、s is by no means a new phenomenon,the low interest rate environment over the last decade has led to their increased use.Subscription facilities are gener-ally backed by the capital commitment of the limited partners,and financial institutions provid-ing subscription facilities to private equity fund

59、s look to the credit quality of the underlying limited partners to underwrite the borrowing and set lev-erage limitations.Financial institutions generally require the general partner of a private equity fund to which it is providing a subscription facil-ity to pledge the right to call capital from i

60、nves-tors and the assets of the fund and of the general partner as security for the borrowing.2.6 Tax RegimeLimited partnerships formed in the USA are gen-erally structured as flow-through entities,mean-ing the limited partnership itself is not taxed(only subject to informational tax filings),with a

61、ll income,gains,losses and deductions of the lim-ited partnership being reported by the partners(limited partners and general partner)based on their proportionate share thereof.3.RETAIL FUNDS3.1 Fund Formation3.1.1 Fund StructuresRetail funds are generally not common in the United States with respec

62、t to alternative invest-ment funds,and as such no information is avail-able in this chapter.Law anD PRacTIcE USAContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP 83.1.2 Common Process for Setting Up Investment FundsSee 3.1.1 Fund Structures.3.1.3 Limited LiabilitySee 3.1.1 Fund Structu

63、res.3.1.4 Disclosure RequirementsSee 3.1.1 Fund Structures.3.2 Fund Investment3.2.1 Types of Investors in Retail FundsSee 3.1.1 Fund Structures.3.2.2 Legal Structures Used by Fund ManagersSee 3.1.1 Fund Structures.3.2.3 Restrictions on InvestorsSee 3.1.1 Fund Structures.3.3 Regulatory Environment3.3

64、.1 Regulatory RegimeSee 3.1.1 Fund Structures.3.3.2 Requirements for Non-local Service ProvidersSee 3.1.1 Fund Structures.3.3.3 Local Regulatory Requirements for Non-local ManagersSee 3.1.1 Fund Structures.3.3.4 Regulatory Approval ProcessSee 3.1.1 Fund Structures.3.3.5 Rules Concerning Marketing of

65、 Retail FundsSee 3.1.1 Fund Structures.3.3.6 Marketing of Retail FundsSee 3.1.1 Fund Structures.3.3.7 Investor Protection RulesSee 3.1.1 Fund Structures.3.3.8 Approach of the RegulatorSee 3.1.1 Fund Structures.3.4 Operational RequirementsSee 3.1.1 Fund Structures.3.5 Fund FinanceSee 3.1.1 Fund Struc

66、tures.3.6 Tax RegimeSee 3.1.1 Fund Structures.4.LEGAL,REGULATORY OR TAX CHANGES4.1 Recent Developments and Proposals for ReformGiven the current political climate in the United States,it would be reasonable to expect chang-es in applicable tax laws and in the applicable regulatory environment.9USA L

67、aw and PracticeContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP DLA Piper LLP is a global law firm with lawyers located in more than 40 countries throughout the Americas,Europe,the Middle East,Africa and Asia Pacific,positioning it to help clients with their legal needs around the wor

68、ld.DLA Piper strives to be the leading global busi-ness law firm by delivering quality and value to clients.The investor-side Investment Funds Group provides legal services to many of the worlds leading sophisticated institutional in-vestors.Globally,the practice represents more than 200 institution

69、al investors,including some of the largest and most active sovereign wealth funds,endowments,insurance companies,public pension plans and financial institutions.The attorneys in the Investment Funds Group are known for their depth of experience repre-senting public and private fund clients with a mi

70、ssion-driven approach that focuses on prac-tical advice and long-term funding.The team counsels clients from start to finish,represent-ing them in a wide range of investments,from direct investments to exotic,strategic struc-tures,coinvestments and secondaries.AU T H O R SDavid B.Parrish focuses on

71、alternative investments,including fund formation and investment matters.He represents domestic and foreign investors in reviewing and negotiating investment documentation,including limited partnership agreements,subscription agreements and private placement memoranda,and in negotiating and preparing

72、 side letters.In addition,David advises investors in co-investments,general partner removal matters,acquisitions of manager stakes,advisory board matters,single-investor funds,fund dissolution and secondary transactions.Davids experience involves all types of alternative investment strategies,includ

73、ing buyout,credit,real estate,venture capital,growth,energy,real estate,timber and infrastructure.He is recognised as a“world-class instructor”and regularly speaks at industry conferences throughout the world.Nicole Brennig focuses on advising many of the worlds largest and most active pension plans

74、,endowments,insurance companies,private market solutions providers,family offices and other financial institutions on all aspects of their business.Nicky is actively involved in domestic and foreign alternative investment representation,including advising clients with respect to private investment f

75、unds,syndicated and direct co-investments,fund restructurings,general partner removals,advisory board matters,fund and adviser acquisitions and other consolidations,and fund dissolutions.Nicky also represents institutional investors in connection with the acquisition and sale of partnership interest

76、s in large secondary market transactions.Nicky has been an active member of the alternative investment funds industry for over a decade.She is frequently invited to speak at major industry events and is involved in investor-education efforts with respect to alternative investments.Law anD PRacTIcE USAContributed by:David B.Parrish and Nicole Brennig,DLA Piper LLP 10DLA Piper LLP(US)303 Colorado StreetSuite 3000Austin,Texas 78701USATel:+1 512 457 7240Fax:+1 512 457 2240Email:DLA-InvestmentFWeb: