Mauritius Investment Funds

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Foreword

This memorandum has been prepared for the assistance of those who are considering

the formation and regulation of Mauritius investment funds. It deals in broad terms

with the requirements of Mauritius law. It is not intended to be exhaustive but

merely to provide brief details and information which we hope will be of use to our

clients. We recommend that our clients and prospective clients seek legal advice on

Mauritius law in respect of their specific proposals before taking steps to implement

them.

Before proceeding with the formation of an investment fund in Mauritius, persons are

advised to consult their tax, legal and other professional advisers in their respective

jurisdictions.

This memorandum has been prepared on the basis of the law and practice as at the

date referred to below.

Conyers Dill & Pearman

February 2013

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TABLE OF CONTENTS 1. INTRODUCTION 2. COLLECTIVE INVESTMENT SCHEMES 2.1 Generally

2.2 Categories of Collective Investment Schemes

3. CLOSED-END FUNDS 3.1 Generally

3.2 Categories of Closed­end Funds

4. CONCLUSION SCHEDULES Annexure A: Summary of Regulations pertaining to Fully Regulated Collective

Investment Schemes

Annexure B: Summary of Regulations pertaining to Regulated Global Collective

Investment Schemes

Annexure C: Summary of Regulations pertaining to Professional Collective

Investment Schemes

Annexure D: Summary of Regulations pertaining to Expert Funds

Annexure E: Summary of Regulations pertaining to Closed­end Funds

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1. INTRODUCTION

Investment funds in Mauritius are governed by The Securities Act 2005 (the “Act”),

the Securities (Disclosure Obligations of Reporting Issuers) Rules 2007, The Securities

(Licensing) Rules 2007, the Securities (Public Offers) Rules 2007 and The Securities

(Collective Investment Schemes and Close­ended Funds) Regulations 2008 (the

“Regulations”).

Investment funds are divided into two broad categories, those that are Collective

Investment Schemes and those that are Closed­end funds.

2. COLLECTIVE INVESTMENT SCHEMES

2.1 Generally

Collective Investment Schemes are defined by the Act and can be constituted as a

company, trust or other such entity approved by the Financial Services Commission

(the “FSC”).

The four key features of a Collective Investment Scheme are as follows:

� The sole purpose of the entity is the collective investment of funds in a portfolio of

securities or other financial assets, real property or non­financial assets approved by

the FSC;

� The operation of the entity must be based on the principle of the diversification of

risk;

� The investors must be entitled to redeem their interests; and

� The investors do not have day­to­day control over the operations of the entity.

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It should be noted at this stage that the definition of a Collective Investment Scheme

in the Act also includes Closed­end Funds that are listed on a securities exchange.

This is dealt with in more detail in the discussion of Closed­end Funds below.

2.2 Categories of Collective Investment Schemes

In terms of the Regulations, Collective Investment Schemes can be broken down into

the following categories:

(a) Fully Regulated Collective Investment Schemes

Fully Regulated Collective Investment Schemes (“Fully Regulated CIS”), which are

mainly offered to the public, are Collective Investment Schemes that (i) do not fall

within any of the exemptions applicable to Professional, Specialised and Expert

Collective Investment Schemes as set out below and (ii) generally do not hold a

Global Business licence. All of the Regulations and none of the exemptions apply to

such Fully Regulated CIS. A short summary of the Regulations that apply to such

Fully Regulated CIS is set out in Annexure A.

(b) Regulated Global Collective Investment Schemes

A Global scheme is a Collective Investment Scheme that holds a Category 1 Global

Business Licence and it may or may not be regulated in another jurisdiction. A

Regulated Global Scheme is a Global Scheme that is authorised to carry out the

activities of a Collective Investment Scheme by the FSC, however it does not fall

within the specific categories of a Professional, Specialised or Expert Collective

Investment Scheme (“Regulated Global Scheme”). Most of the Regulations apply to

Regulated Global Schemes, but there are significant exemptions and a summary of

these is set out in more detail in Annexure B.

(c) Professional Collective Investment Schemes

Professional Collective Investment Schemes (“Professional CIS”) are Collective

Investment Schemes that offer their shares (i) to sophisticated investors, or (ii) as a

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private placement. In addition, the FSC also has the discretion to classify Collective

Investment Schemes that do not fall within (i) and (ii) as a Professional CIS.

According to the Act, “a sophisticated investor” means:

� The Government of Mauritius;

� A statutory authority or agency established by an enactment for a public purpose;

� A company wholly owned by the Government of Mauritius, statutory authority or

aforesaid agency;

� The government of a foreign country or agency of such a government; or

� A bank, a Collective Investment Scheme Manager (defined by the Act as a person

holding a Collective Investment Scheme Manager Licence issued under the Act)

(“CIS Manager”), an insurer licensed in Mauritius, an investment adviser licensed in

Mauritius, an investment dealer licensed in Mauritius or a person declared by the

FSC to be a sophisticated investor.

The Act defines a “private placement” as an offer of securities where the total cost of

subscription is an amount in excess of the amount determined by the FSC rules. To

date the FSC has not issued any rules on this point.

Closed­end Funds which are not reporting issuers (see discussion of Closed­end

Funds below for definition of “reporting issuers”) are also classified as Professional

CIS. Closed­end Funds that are reporting issuers are regulated separately and this is

dealt with in more detail below.

Professional CIS are exempt from much of the Regulations, so long as the interests of

the Professional CIS (i) cannot be resold to the public and participants are advised of

this restriction at the moment of subscription and (ii) they are not listed on a securities

exchange, whether in Mauritius or elsewhere.

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A short summary of the Regulations that apply to a Professional CIS is set out in

Annexure C.

(d) Specialised Collective Investment Schemes

Specialised Collective Investment Schemes (“Specialised CIS”) are Collective

Investment Schemes that invest in real estate, derivatives, commodities or other

products authorised by the FSC.

A Collective Investment Scheme that wishes to be designated as a Specialised CIS

must apply to the FSC to be authorised as such. As part of this process, the FSC will

decide which of the Regulations will apply to that Specialised CIS and whether any

further terms and conditions should be applied.

(e) Expert Funds

A Collective Investment Scheme can apply to the FSC to be authorised as an Expert

Fund based on the condition that the scheme is only available to expert investors.

The Regulations define an “expert investor” as either (i) an investor that makes

minimum initial investment for his own account in an amount of not less than

USD100,000 or (ii) a Sophisticated Investor as defined by the Act (see paragraph (c)

above).

The investment manager of an Expert Fund either needs to hold a Collective

Investment Scheme Managers Licence or must hold a licence issued by a regulator in

a jurisdiction having comparable regulation as Mauritius for investor protection.

A Mauritius Collective Investment Scheme seeking to invest on the National Stock

Exchange of India through a Securities and Exchange Board of India sub­account

would normally be categorised as an Expert Fund.

A short summary of the Regulations that apply to Expert Funds is set out in Annexure

D.

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3. CLOSED-END FUNDS

3.1 Generally

Closed­end Funds are required by the Act to be authorised by the FSC, but they are

exempt from most of the Regulations.

A Closed­end Fund is defined by the Act as being an arrangement or scheme, other

than a collective investment scheme, constituted in such legal form approved by the

FSC, whose object is to invest funds either collected from subscribers during an

offering made under Part V of the Act (effectively offers to the public – see below), or

from Sophisticated Investors (see above) and to invest those funds in securities,

financial or non­financial assets, or real property, as may be approved by the FSC. A

Closed­end Fund may be listed on the Mauritius Stock Exchange, which allows

investors to freely buy and sell the shares in the Closed­end Fund on the market.

It should be noted that a the key feature of a Closed­end Fund is that it, while being

similar to a Collective Investment Scheme, does not fall within the definition of a

Collective Investment Scheme. One of the requirements of a Collective Investment

Scheme is that an investor must be able to redeem its interests. Generally an investor

in a Closed­end Fund is not entitled to redeem its investment and therefore they do

not fall within the definition of a CIS. Accordingly, Closed­end Funds are more suited

to Private Equity/Venture Capital type funds than to Hedge Funds.

Part XI, Sub­Part A of the Regulations applies to all Closed­end Funds that are (i)

reporting issuers or (ii) are filing a prospectus in accordance with Part V of the Act,

with the intention of applying for a listing on a securities exchange.

3.2 Categories of Closed-End Funds

In terms of the Regulations, Closed­end Funds can be broken down into the

following categories:

(a) Closed­end Funds that are reporting issuers

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According to the Act, a “reporting issuer” is an issuer:

� who has by way of a prospectus, made an offer of securities;

� who has made a takeover offer by way of an exchange of securities or similar

procedure;

� whose securities are listed on a securities exchange in Mauritius; or

� who has not less than 100 shareholders.

An “issuer” means a person or any other entity that issues, has issued or is going to

issue securities.

A “prospectus” means a notice, circular, advertisement or request inviting

applications or offers from the public to subscribe for or purchase, or offering to the

public for subscription or purchase, a share in, or debenture of, a company or

proposed company; and includes a statement attached to or intended to be read with

the prospectus. Accordingly, Closed­end Funds that are reporting issuers are

primarily those that are listed, make a public offering or have 100 or more

shareholders.

(b) Closed­end Funds subject to Part V

Part V of the Act requires that no person shall make an offer to the public, or

distribute to the public an application for an offer of securities unless a prospectus in a

prescribed form has been provisionally registered with the FSC. For the purposes of

the Act, a person makes an offer or distribution to the “public” where that person

invites or solicits another person:

� to purchase or subscribe to securities that have never been issued;

� to enter into an agreement for the underwriting of securities;

� to purchase securities underwritten;

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� to distribute securities previously offered without a prospectus; or

� to purchase securities, other than securities acquired on a securities exchange in

normal market operations, previously issued and held by a person, including an

issuer,

and where the offer or distribution is made from Mauritius, or received in Mauritius.

Section 70 of Part V of the Act goes on to exempt issuers of securities through private

placement from the prospectus requirement, provided that such an issuer complies

with the FSC Rules relating to the issue of such securities.

Therefore, much like Closed­end Funds that are reporting issuers, Closed­end Funds

that are subject to Part V are those that make public offerings rather than private

placements.

A summary of the regulations applying to Closed­end Funds that are reporting

issuers and to Part V Closed­end Funds is set out in Annexure E.

(c) Closed­end Funds that are not reporting issuers

Closed­end Funds which are Closed­end Funds that are neither listed nor do they

make a public offering, nor do they have 100 or more shareholders. In terms of

Regulation 75(2)(a) they are classified as Professional CIS and are subject to the

requirements relating to Professional CIS as set out above and in Annexure C.

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ANNEXURE A

REGULATIONS APPLYING TO FULLY REGULATED COLLECTIVE INVESTMENT SCHEMES (“FULLY REGULATED CIS”)

� The constitutive documents of a Fully Regulated CIS must contain details of the

matters contained in the first or second schedule to the Regulations, as well as

conditions for replacement of the CIS Manager, custodian, directors, trustee or a

member of the governing body.

� Except in limited circumstances where the FSC allows the Board of Directors to

manage a Fully Regulated CIS, it must have a CIS Manager incorporated in

Mauritius, with its place of business in Mauritius and (unless otherwise authorised)

the CIS Manager must be engaged solely in the business of the management of

Collective Investment Schemes.

� The assets of a Fully Regulated CIS cannot be held for safekeeping other than by

someone licensed as a custodian who shall be independent of the CIS Manager and

who must have a licence issued by the FSC.

� There are detailed rules relating to the application for the authorisation of a Fully

Regulated CIS which require that the following documents be filed at the time of the

application:

o constitutive documents of the scheme,

o prospectus in the form set out in the 4th schedule to the Regulations,

o personal questionnaires completed by each of the officers of the Fully

Regulated CIS,

o letter of acceptance to act as custodian, and

o audited financial statements.

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� The FSC can grant the application for authorisation, subject to any terms and

conditions that the FSC considers desirable for the protection of investors.

� The prospectus must set out details with regards to a minimum amount of

subscriptions and at least 5% of the total amount must be raised within 6 months

failing which the funds raised shall be returned to the investors. The FSC may on

application grant a further 6 months.

� Costs of formation can be borne by Fully Regulated CIS, the manager or promoter.

� The FSC can withdraw its authorisation of a Fully Regulated CIS if conditions of

authorisation are no longer satisfied, it is undesirable for investors or potential

investors that the Fully Regulated CIS should continue to be authorised or the

applicant for the authorisation has provided false information to the FSC.

� Exculpation clauses in respect of manager, administrator, custodian or any other

person which reduce liability for failure to exercise due care and diligence in the

discharge of their functions are null and void.

� Amendments and alterations to a Fully Regulated CIS must be notified to FCS and

where required, approved by investors.

� The FSC must grant prior approval to (which it must do within 10 days unless

further information is required):

o the appointment of officer, CIS Manager or custodian; or

o the change in ownership/acquisition of managers.

� The FSC must also grant approval to change of custodian or CIS Manager as must

shareholders in terms of constitutive documents.

� A Fully Regulated CIS must appoint a custodian holding a custodian licence granted

in terms of the Act, who shall keep the assets in Mauritius, unless they need to be

held outside of Mauritius, then they can be held by a sub­custodian appointed with

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the approval of the FSC. The custodian and any sub­custodian must be independent

of the CIS Manager and the Fully Regulated CIS. The custody agreement must cover

certain matters relating to the custody, location, method of holding of the assets,

standard of care to be exercised and further must limit encumbrances to claims for

fees and expenses.

� In terms of the Regulations, the custodian has enhanced liability for failure to

perform or properly perform its obligations and further it has reporting

responsibilities to the FSC in relation to certain breaches by the CIS Manager or the

Fully Regulated CIS.

� A Fully Regulated CIS must appoint a CIS Manager licensed by the FSC, unless the

FSC on application allows the board of directors of the Fully Regulated CIS to

manage the assets of the Company. In terms of the Regulations, there are permitted

activities relating to the operation of the Fully Regulated CIS, as well as restrictions

on the activities of a CIS Manager. The Regulations also set out the liability and

general duties of a CIS Manager and impose extensive conduct of business rules on

CIS Managers.

� All Fully Regulated CIS are to be audited. The auditors must be independent and

they are required to report certain matters to the FSC such as material defects in

internal control.

� The CIS Manager is required on behalf of the Fully Regulated CIS to file with the

FSC, the prospectus, the audited annual accounts and quarterly interim financial

statements. The audited annual accounts and quarterly interim financial statements

are made public.

� Constitutive documents form an integral part of the prospectus which is required to

cover certain matters and contain such information necessary to make an informed

decision as to whether to invest in the Collective Investment Scheme.

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� Significant changes and new information are required to be updated in the

prospectus and filed with FSC. This can be done by way of an addendum, but FSC

can require a new prospectus if it deems it appropriate.

� The Net Asset Value of the Fully Regulated CIS is to be calculated once a week

unless a longer period is approved by the FSC.

� Suspensions of the redemption and repurchase of shares can only be for a maximum

of 30 days and subscriptions are not allowed during this period. Notice must be

given to the FSC and must also be published in 2 daily papers (or notice must be

given to investors by other reasonable means).

� The prospectus must set out valuation procedures as well as procedures for valuing

illiquid assets.

� The advertising of the offering of shares in Mauritius must be approved in advance

by the FSC.

� Except under limited circumstances the constitutive documents cannot be amended

without the consent of the FSC and the shareholders.

� General meetings of participants are required and there are prescribed proxy,

quorum and voting rules. A special meeting is required to amend the constitutive

documents, to terminate the Fully Regulated CIS and to increase or add fees.

� There are prescribed investment restrictions and investment practices including a

limitation on borrowing, but the FSC can grant exemptions to these restrictions and

practices.

� A fund of funds investing into a foreign fund is required to file the prospectus of

that fund with the FSC. There are also diversification requirements in respect of

fund of funds which do not apply if the Fully Regulated CIS is designated as a

feeder fund.

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� The Fully Regulated CIS must give notice to the FSC of any bankruptcy or winding

up petitions served on the CIS Manager or custodian and of any steps taken to

protect the interests of participants.

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ANNEXURE B

REGULATIONS APPLYING TO REGULATED GLOBAL COLLECTIVE INVESTMENT SCHEMES (“REGULATED GLOBAL SCHEME”)

� The constitutive documents must contain details of the matters contained in the first

or second schedule to the Regulations, as well as conditions for replacement of CIS

Manager, custodian, directors, trustee or a member of the governing body.

� A Regulated Global Scheme may appoint an investment manager established in a

foreign jurisdiction, subject to the approval of the FSC.

� The assets of a Regulated Global Scheme cannot be held for safekeeping other than

by someone licensed as a custodian who shall be independent of the CIS Manager

and who may subject to the approval of the FSC be established in a foreign

jurisdiction.

� Applications for the authorisation of a Regulated Global Scheme are made to the

FSC and shall include:

o A prospectus in the required form;

o The constitutive documents of the Regulated Global Scheme;

o Measures relating to anti­money laundering;

o Audited accounts if applicable; and

o A personal questionnaire from all officers.

� The authorisation of a Regulated Global Scheme is contingent on:

o Provision of required information on manager and custodian;

o Appointment of an administrator in Mauritius;

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o Accounting and reporting to be done in Mauritius;

o Required health warning in the prospectus;

o Details of regulation in any other jurisdiction;

o The FSC being satisfied with anti­money laundering procedures.

� The prospectus must set out details with regards to a minimum amount of

subscriptions and at least 5% of the total amount must be raised within 6 months

failing which the funds shall be returned to the investors. The FSC may on

application grant a further 6 months.

� Costs of formation can be borne by the Regulated Global Scheme, the manager or

promoter.

� The FSC can withdraw their authorisation of a Regulated Global Scheme if the

conditions of authorisation are no longer satisfied, or if it is undesirable for

investors/potential investors that the Regulated Global Scheme should continue to

be authorised or if the applicant for the authorisation has provided false information

to the FSC.

� Exculpation clauses in respect of the manager, administrator, custodian or any other

person which reduce liability for failure to exercise due care and diligence in the

discharge of their functions are null and void.

� Amendments and alterations to a Regulated Global Scheme must be notified to FCS

and where required, approved by investors.

� The FSC must grant prior approval to (which it must do within 10 days unless it

requires further information):

� the appointment of an officer or CIS, CIS manager, or custodian; or

� the change in ownership/acquisition of CIS Managers.

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� The FSC must also grant approval to a change of custodian or CIS Manager as must

shareholders in terms of constitutive documents.

� All Regulated Global Scheme must appoint a custodian holding a custodian licence

granted in terms of the Act, but they are not required to keep the assets in Mauritius.

The custodian and any sub­custodian must be independent of the CIS Manager and

the Regulated Global Scheme. The custody agreement must cover certain matters

relating to the custody, location, method of holding of the assets, standard of care to

be exercised and further must limit encumbrances to claims for fees and expenses.

� In terms of the Regulations, the custodian has enhanced liability for any failure to

perform or properly perform its obligations and further it has reporting

responsibilities to the FSC in relation to certain breaches by the CIS Manager or the

Regulated Global Scheme.

� A Regulated Global Scheme is not required to appoint a CIS Manager licensed by

the FSC.

� All Regulated Global Schemes are to be audited. The auditors must be independent

and they are required to report certain matters to the FSC such as material defects in

internal control.

� The CIS Manager is required on behalf of the Regulated Global Scheme to file with

the FSC, the prospectus, the audited annual accounts and quarterly interim financial

statements. For Regulated Global Schemes the audited annual accounts and

quarterly interim financial statements are not made public unless the FSC deems it

to be required.

� The constitutive documents form an integral part of the prospectus which is

required to cover certain matters and contain such information necessary to make an

informed decision as to whether to invest in the Collective Investment Scheme.

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� Significant changes and new information are required to be updated in prospectus

and filed with the FSC. This can be done by way of an addendum, but the FSC can

require new prospectus if it deems it appropriate.

� The calculation of the net asset value of the Regulated Global Scheme is to be done

once a week unless a longer period is approved by the FSC.

� Suspensions of the redemption and repurchase of shares can only be for a maximum

of 30 days and subscriptions are not allowed during this period. Notice must be

given to the FSC and must also be published in 2 daily papers (or notice must be

given to investors by other reasonable means).

� The prospectus must set out valuation procedures as well as procedures for valuing

illiquid assets.

� The advertising of the offering of shares in Mauritius must be approved in advance

by the FSC.

� Except under limited circumstances the constitutive documents cannot be amended

without the consent of the FSC and the shareholders.

� Regulated Global Schemes are not required to conduct their general meetings in

accordance with the Regulations.

� There are prescribed investment restrictions and investment practices including a

limitation on borrowing, but the FSC can grant exemptions to these restrictions and

practices.

� A fund of funds investing into a foreign fund is required to file the prospectus of

that fund with the FSC. There are also diversification requirements in respect of

fund of funds which do not apply if the Regulated Global Scheme is designated as a

feeder fund.

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� A Regulated Global Scheme must give notice to FSC of any bankruptcy or winding

up petitions served on the CIS Manager or custodian and of steps taken to protect

the interests of participants.

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ANNEXURE C

REGULATIONS APPLYING TO PROFESSIONAL COLLECTIVE INVESTMENT SCHEMES (“PROFESSIONAL CIS”)

� Professional CIS are exempted from Parts II – X of the Regulations (effectively most

of the Regulations governing Fully regulated CIS and Regulated Global Schemes as

set out in annexures A and B above), provided that the shares acquired by the

investors are not resold to the public (the investors must be told of this restriction at

the time) and further provided that the Professional CIS is not listed for trading on a

securities exchange.

� A Professional CIS must notify the FSC of its offering a minimum of 15 days before

the offering is made and it must file a copy of its prospectus with the FSC at the

same time.

� At the conclusion of the offering, the Professional CIS must advise the FSC of the

total amount and value of the shares sold.

� A Professional CIS must give notice to FSC of any bankruptcy or winding up

petitions served on the CIS Manager or custodian and of steps taken to protect the

interests of participants.

The FSC has the authority to allow a departure from these rules.

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ANNEXURE D

REGULATIONS APPLYING TO EXPERT FUNDS

� Application shall be made to the FSC to be authorised as an Expert Fund.

� The following documents and information shall be submitted along with the

application:

o A copy of the prospectus;

o The constitutive documents of the expert Fund;

o Measures relating to anti­money laundering;

o Latest audited accounts if applicable; and

o Information relating to the manager

� An Expert Fund may appoint a licensed CIS Manager in Mauritius or a manager

with a licence granted in a jurisdiction having comparable regulation for investor

protection.

� The prospectus of an Expert Fund shall contain the definition of “Expert Investor”,

shall state that the offering is only available to expert investors and shall contain a

disclosure in a prescribed to form to the effect that the FSC does not vouch for the

financial soundness of the fund or any of the contents of the prospectus and further

that investors are not protected any investor compensation scheme in Mauritius.

� Expert Funds are required to file audited financial statements with the FSC.

� Expert Funds must give notice to FSC of any bankruptcy or winding up petitions

served on the CIS Manager or custodian and of steps taken to protect the interests of

participants.

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ANNEXURE E

REGULATIONS APPLYING TO CLOSED-END FUNDS THAT ARE REPORTING ISSUERS AND TO CLOSED-END FUNDS THAT ARE SUBJECT TO PART V (“CEF”)

� A CEF which does not hold a Category 1 Global Business Licence must apply to be

authorised by the FSC in the same way that a Fully Regulated Collective Investment

Scheme would. There are detailed rules relating to the application for the

authorisation of such a CEF which require that the following documents be filed at

the time of the application:

o constitutive documents of the scheme,

o prospectus in the form set out in the 4th schedule to the Regulations,

o personal questionnaires completed by each of the officers of the CEF,

o letter of acceptance to act as custodian, and

o audited financial statements.

� Applications for the authorisation of a CEF that will hold a Category 1 Global

Business Licence are made to the FSC in the same way that a Global Collective

Investment Scheme would and shall include:

o a prospectus in the required form;

o the constitutive documents of the CEF;

o measures relating to anti­money laundering;

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o audited accounts if applicable; and

o personal questionnaires completed by each of the officers of the CEF.

� CEFs are required at all times to have a CIS Manager in accordance with the

regulations and the CIS Manager is subject to the provisions relating to CIS

Managers under the Act and the Regulations, including certain of the conduct of

business rules.

� Unless the CEF holds a Category 1 Global Business Licence, its annual audited

financial statements and it quarterly financial statements shall include the

disclosures required by the sixth and seventh schedules to the Regulations.

� The prospectus of a CEF must comply with the provisions of Part V of the Act and

shall include the disclosures set out in the fifth schedule to the Regulations.

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This publication is not a substitute for legal advice nor is it a legal opinion. It deals in broad

terms only and is intended merely to provide a brief overview and give general information.

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