UK: introducing a protected cell regime for OEICs - HM Treasury consultation

HM Treasury have published a consultation paper containing proposals for the introduction of a protected cell regime for open-ended investment companies (OEICs). These changes were suggested in 2007 in a consultation on better regulation measures for the asset management sector. In the consultation paper published this week, which contains a draft of the Open-Ended Investment Companies (Amendment) (No. 2) Regulations 2009, HM Treasury explains (paras. 2.1 and 2.1): 

OEICs are investment funds structured as bodies corporate. Large fund managers generally operate a small number of OEIC umbrella companies with a large number of sub-funds within each umbrella, allowing them to operate a large range of funds more efficiently. The sub-funds do not have a separate legal personality, but are separately managed, charged, accounted for and assessed for tax. Under current law there is no segregation of liabilities between different sub-funds. For example, if an umbrella fund contained one cautious UK bond fund and one high-risk Far-east equity fund and the Far-East equity fund collapsed with liabilities exceeding its assets, creditors could have a claim on the assets of the UK bond fund. Investors in the cautious fund therefore bear some of the risk of the riskier fund.

In practice the probability of an OEIC collapse is small, as OEICs must comply with borrowing limits imposed by the FSA, but not zero. Current FSA rules require disclosure of the contagion risk in the fund prospectus and periodic reports, although there is a danger that some OEIC investors do not fully understand it. Thus, provided adequate protection of existing creditors can also be achieved, segregating liabilities so that the liabilities of any one sub-fund could only be met out of the assets of that sub-fund appeared desirable".