Abstract
Collective investment schemes may have different legal structures. From the practical legal life and business perspective, it is not insignificant how a collective investment scheme is legally structured. Some structures are more suitable for certain purposes than others. Contractual investment and special investment funds are currently the only legal form under the Finnish law that is intended exclusively for collective in- vestment activities. This research aims to study the variable-capital investment company structure, which is a legal form for collective investment schemes currently unknown to Finnish law. The research questions are:
3) What kind of a legal institution is a variable-capital investment company and how is it regulated internationally in leading fund jurisdictions?
4) With regard to the competitiveness of the regulation of funds, is it justified to legislate on variable-capital investment companies in Finland and if so, how should the regulation be implemented?
The research builds on a de lege ferenda method, which aims to assist the legislator by assessing and providing various solutions on which future legislation could be based. Comparative law is used as a supplementary research method.
The notion of variable-capital investment company refers to a fund constituted in the form of a company and having a variable share capital, the amount of which may vary as a result of the subscription and redemption of shares. In a fund constituted in the form of a company, the assets are owned by a special-purpose limited liability company that is intended for collective investment activities and whose shares are held by the fund investors. The shareholder’s liability is limited to the capital that it has invested in the investment company. A variable-capital investment company consists of sub-funds whose assets and liabilities are separate from each other.
The variable-capital investment company has been an international standard structure for open-ended funds since the 1990s, due to which several key fund jurisdictions have included it in their legislation. Regulatory competition concerning the regulation of funds has been very active in Europe. One of the essential aspects of regulatory competition in the regulation of funds is the competition related to the legal structures of funds, where jurisdictions compete with each other to offer the most varied selection of legal structures for funds. As a result of this regulatory competition, during the past decades fund activities have concentrated in jurisdictions that have focused on offering regulatory solutions that are as functional and versatile as possible.
This research concludes that Finland should allow the establishment of funds in the form of a variable-capital investment company in order for the regulation of funds in Finland to keep up with the international regulatory development. Finland has reasonable grounds to practice defensive regulatory competition, where the main goal is to prevent investment fund business from being transferred away from Finland by offering the Finnish fund industry equal operating conditions in comparison to other states. Several potential benefits are related to the investment company structure. When compared to the current situation, the investment company structure offers improvements in, for example, the flexibility of the management structure, investor protection and international marketability. In terms of national economy, competitive regulation of funds leads to an increase in jobs and tax income. The benefits of legislating on variable-capital investment companies exceed the related costs.
The legislation on variable-capital investment companies should be laid down in a separate act on variable-capital investment companies and in accordance with the global standard model that the industry operators and investors are already familiar with. In that case the key characteristics of the investment company structure would be legal personality, variable share capital, shareholders’ limited liability, shareholders’ voting rights, board of directors at the investment company level and sub-fund structure.
3) What kind of a legal institution is a variable-capital investment company and how is it regulated internationally in leading fund jurisdictions?
4) With regard to the competitiveness of the regulation of funds, is it justified to legislate on variable-capital investment companies in Finland and if so, how should the regulation be implemented?
The research builds on a de lege ferenda method, which aims to assist the legislator by assessing and providing various solutions on which future legislation could be based. Comparative law is used as a supplementary research method.
The notion of variable-capital investment company refers to a fund constituted in the form of a company and having a variable share capital, the amount of which may vary as a result of the subscription and redemption of shares. In a fund constituted in the form of a company, the assets are owned by a special-purpose limited liability company that is intended for collective investment activities and whose shares are held by the fund investors. The shareholder’s liability is limited to the capital that it has invested in the investment company. A variable-capital investment company consists of sub-funds whose assets and liabilities are separate from each other.
The variable-capital investment company has been an international standard structure for open-ended funds since the 1990s, due to which several key fund jurisdictions have included it in their legislation. Regulatory competition concerning the regulation of funds has been very active in Europe. One of the essential aspects of regulatory competition in the regulation of funds is the competition related to the legal structures of funds, where jurisdictions compete with each other to offer the most varied selection of legal structures for funds. As a result of this regulatory competition, during the past decades fund activities have concentrated in jurisdictions that have focused on offering regulatory solutions that are as functional and versatile as possible.
This research concludes that Finland should allow the establishment of funds in the form of a variable-capital investment company in order for the regulation of funds in Finland to keep up with the international regulatory development. Finland has reasonable grounds to practice defensive regulatory competition, where the main goal is to prevent investment fund business from being transferred away from Finland by offering the Finnish fund industry equal operating conditions in comparison to other states. Several potential benefits are related to the investment company structure. When compared to the current situation, the investment company structure offers improvements in, for example, the flexibility of the management structure, investor protection and international marketability. In terms of national economy, competitive regulation of funds leads to an increase in jobs and tax income. The benefits of legislating on variable-capital investment companies exceed the related costs.
The legislation on variable-capital investment companies should be laid down in a separate act on variable-capital investment companies and in accordance with the global standard model that the industry operators and investors are already familiar with. In that case the key characteristics of the investment company structure would be legal personality, variable share capital, shareholders’ limited liability, shareholders’ voting rights, board of directors at the investment company level and sub-fund structure.
| Original language | Finnish |
|---|---|
| Place of Publication | Tampere |
| ISBN (Electronic) | 978-952-03-2814-6 |
| Publication status | Published - 2023 |
| Publication type | G5 Doctoral dissertation (articles) |
Publication series
| Name | Tampere University Dissertations - Tampereen yliopiston väitöskirjat |
|---|---|
| Volume | 765 |
| ISSN (Print) | 2489-9860 |
| ISSN (Electronic) | 2490-0028 |