The continuing threat of money laundering is most effectively managed by understanding and addressing the potential money laundering risk associated with our customers and their transactions.
FUNDTREE has developed this Policy to assist mutual funds and other purpose investment vehicles (together referred to in this Policy as "Purpose Vehicles", "PV" or "PVs") to manage their money laundering risk.
Investors in many jurisdictions invest in PVs to seek professional management, diversification, and access to investment opportunities that might otherwise not be available. PVs include unit investment trusts, hedge funds, private equity funds, and funds-of-funds. They vary greatly in the legal forms they take (e.g., corporations, trusts, partnerships, or contract), the investment objectives they pursue, the jurisdictions in which they are organised, the level of regulation to which they are subject, the type of investor they solicit, and the manner in which their shares, units or interests (collectively referred to in this Policy as “Shares”) are distributed.
Given the variety of PVs and the different levels of money laundering risk, PVs should develop and tailor their anti-money laundering ("AML") policies and procedures to address the particular risks of their business. It should be understood that this Policy is not intended to discourage PVs from engaging in activities that may be perceived to be higher risk. Rather this Policy sets out relevant considerations for PVs to consider in identifying and dealing with situations entailing different levels of money laundering risk. This Policy does not supersede applicable laws and regulations where they are more stringent.
It is the responsibility of the PV’s management (e.g., directors, trustees, or partners) to establish, implement and monitor the operation of an appropriate AML program. This Policy may assist in that process. Depending on applicable legislation, the AML program, including the Customer Due Diligence (“CDD”) process set forth in Section 3, will be conducted either by the PV or by its designated Service Providers, such as transfer agents, investment advisors, registrars, banks, etc. (collectively referred to in this Policy as “Service Provider”). This Policy does not address the relationship between the PV and any such Service Provider in any detail in respect of AML responsibilities, except to note that where such arrangements are in place, and where applicable legislation does not otherwise regulate this situation, a clear understanding should be reached on the respective roles and responsibilities of the PV and the Service Provider, and the PV should exercise due care to ensure that the Service Provider is capable of carrying out the role agreed.1. Money Laundering Risk
This Policy is intended to apply to all PVs generally, notwithstanding the variety noted above. However, such variety means that the money laundering risk associated with respect to particular PVs differs. While it is difficult to generalise, many PVs are perceived to entail a lower risk of money laundering for a number of reasons, including the following:
- assets typically flow into PVs from (and interests in PVs are typically distributed by) other financial institutions which are themselves regulated for AML purposes; this reduces the risk of a PV being involved in money laundering activities;
- many PVs have measures and controls in place that make them less attractive for money laundering purposes – such as restrictions on cash withdrawals from, or on transactions with, parties other than the investor; and
- PVs are commonly used for long term investment purposes (and some may have minimum investment periods and/or weighted fee structures) making high turnover or short term investment unattractive and/or unusual.
However, because of the sheer size of the PV industry, the ready accessibility of PVs to investors, and the ease with which money launderers can simulate the behaviour of legitimate investors, it is possible that PVs will be used by criminals laundering the proceeds of their crimes in a manner that may be extremely difficult (at times impossible) to detect. To mitigate these risks, PV's should consider how to implement a reasonably designed risk based AML program taking into account the factors mentioned in this Policy.2. Relationships between PVs and Investors
Fundamental to an understanding of any PV's, AML obligations is a recognition that the overall arrangements by which Shares in PVs are offered to investors and the overall arrangements under which a PV consequently deals with investors will fall into one of two broad categories as described below. One PV may have both categories of relationships, and the relationship used in any particular case depends on a variety of characteristics, including the nature of the PV and the jurisdiction in which such Shares are issued or distributed.
The two categories of relationships between PVs and investors can be summarised, as follows:Direct Relationships
In these cases, the PV has a direct relationship with the investors because the PV processes their applications and/or receives funds directly from the investors. Applications for Shares can be received either by the PV or by a Service Provider to which the PV has delegated the activity of processing the application and/or receiving the funds.Indirect Relationships
In these cases, the PV does not directly process the application and/or receive the funds directly from the investor. Shares are distributed by or through intermediaries such as banks, broker-dealers, insurance companies/agents, investment advisers, financial planners, or other financial institutions (collectively referred to in these principles as “Intermediaries”). Shares may be held by or through the Intermediaries in so-called “omnibus accounts”
. In such situations, and subject to the considerations set out in Section 4 of this Policy, the PV’s customer is the Intermediary. Accordingly, the PV has no direct relationship with the investors (regardless of whether the investors are the shareholders of record or not).
This Policy, therefore, differentiates between direct and indirect relationships between the PV and the investors – although in all cases, a risk-based approach should be considered in implementing the AML standards described.3. Customer Due Diligence 3.1. Introduction
There is no one approach to CDD that can, as a matter of general principle, be adopted by all PVs, due to the variety of characteristics of PVs and due to the different distribution channels through which Shares may be offered to investors as described above
In general terms, CDD commonly includes:
- identification and verification of the identity of the investor and the beneficial owner;
- understanding the purpose of the investment (which may be self-evident in the case of certain specific products and services); and
- conducting ongoing due diligence on investors and scrutiny of their transactions.
Reflecting the lower risk of money laundering described above, simplified CDD measures may be applied in many cases when accepting investors into a PV.
To determine the appropriate level of CDD required in the context of any particular PV, the PV should consider the following factors:
- Investor Risk - The type of investors it will deal with e.g. whether the investors will be financial institutions or otherwise regulated or public companies (including publicly traded companies and government entities – but see below on country risk) (all lower risk of money laundering) compared with complex and non-transparent investors e.g. trusts, foundations or other private investment vehicles (higher risk of money laundering). Similarly, given the nature of the investors to which the PV is directed, retirement pension funds will generally undertake simplified CDD on investors;
- Country Risk - The breadth of distribution of its Shares (e.g. direct distribution to investors resident in the same jurisdiction as the PV will generally involve a lower risk of money laundering when compared to direct distribution to investors resident in a large number of different countries or even distribution globally);
- Condition Risk - The characteristics of the PV itself. Some PVs entail higher risk of money laundering (e.g. funds allowing redemption without limitation of time, amounts, etc.); and
- Value Risk - The amounts of any investment (which may be affected by any minimum investment requirements) and any restrictions on methods of payment of subscriptions (e.g. a PV receiving comparatively small investments and restricting subscriptions and redemptions to funds transferred to it from (or by it to) accounts with financial institutions held in the name of the relevant investor will generally present lower risk of money laundering).
In a direct relationship, the PV should perform risk-based CDD on the investor.
In an indirect relationship, the PV should consider the level of due diligence that should be performed on the Intermediary, as described in Section 4, taking into account the regulatory environment in the relevant jurisdiction, and the Intermediary’s responsibilities in respect of AML policies, procedures, and controls. Depending upon the outcome of the PV's due diligence on the Intermediary, (and also depending on the requirements of local law), the PV should determine the level of CDD
(if any) that it should undertake on the investor. Where the PV considers it necessary to perform its own CDD measures on the investor, but is unable successfully to do so, the investment should not be accepted by the PV.
Sections 3.2, 3.3, and 3.4 apply to PVs in direct relationships and in indirect relationships in which PVs determine that they should perform a level of CDD on the investor.3.2. Identification of Investors and Verification of Identity
The PV (or the Intermediary in cases described in Section 4) should take reasonable measures to identify and verify the identity of the investor.
The extent of identification procedures undertaken by the PV should be risk-based, reflecting the nature of the investor, the PV and/or the particular transaction. In lower risk situations, simplified identification procedures may be applied.
The identity of investors must be verified at least in accordance with applicable laws and regulations. Appropriate verification methodologies may include documentary or non- documentary (e.g. electronic database screening) methods and/or include cross-checks to verify information via reporting agencies, public databases, or other reliable sources (e.g. ensuring that tax identification or social security number information is valid and corresponds to the investor). Appropriate verification methodologies may also include checking that funds are received from an account held in the name of the investor with an appropriately regulated financial institution.
Where they are required to be obtained, identification documents should be current at the time of account opening.
The PV should normally have obtained all required documentary (or non-documentary) evidence of the identity of the investor by the time of account opening. In cases where the documentation is not provided promptly and remains incomplete, then on any redemption request (and subject to applicable law and regulation), the PV should retain the redemption proceeds and should not accept any further transactions as long as the required documentary evidence has not been received. In addition, in such cases, the PV should also consider making a suspicious activity report to the appropriate authorities.3.3. Beneficial Ownership
A PV should apply a risk-based approach (taking into account the factors mentioned at Section 3.1) in determining whether identification of the beneficial owner and/or enhanced due diligence (see Section 3.4) is required on an investor.
The PV should identify the beneficial owner only where this is reasonable and practicable taking into account the particular circumstances of the investment (type of investor, product, transactions etc.) and the PV's overall risk based approach and where it is apparent that the investor is acting on behalf of another party.
A person responsible for identifying the UBO(s), where practical, should use the UBO Service Portal declaration diagram to put together current, accurate, and reliable information about the true beneficial owners of a company.
“Omnibus accounts”, which may also be called “nominee” or house accounts, are used when an Intermediary acquires the Shares on behalf of its customers (i.e., the investors). In such cases, the Shares are usually acquired in the name of the Intermediary, but there may be cases where the Intermediary establishes an account with the PV that specifies sub-accounts on behalf of the investors. Even in such cases, the customers of the Intermediary would not be treated as customers of the PV.
Where this Policy refers to "CDD" or "customer due diligence" in the context of an indirect relationship, where the PV should perform its own CDD measures on an investor, performance of such due diligence does not render the investor a customer of the PV. In such situations, the investor remains the Intermediary's customer.