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Businesses and their internal and external lawyers face a mixture ofchallenge and opportunity in the wake ofBrexit, with access to markets concerns high on fund managers’ agenda. Tom Dunn and Anna Davis, ofBurges Salmon, assess where change will be felt most keenly.
The UK economy is expected to experience continued uncertainty and volatility both prior to and post the triggering ofArticle 50 TEU. For fund managers, this carries with it the risk ofcapital outflows from their funds, such as those witnessed in the aftermath ofthe referendum result which forced many property asset and fund managers to suspend withdrawals by investors and/or invoke gating mechanisms.
Such decisions create legal and reputational risk (in particular where competitors are not doing the same) and we have identified a number ofkey strategic steps that managers who are worried about outflows should consider. In the first instance, policies for handling suspensions and the gating ofredemptions should be revisited and updated where appropriate. The directors ofthe fund/fund managers are ultimately responsible for any decision to suspend or gate so they should be involved in this process. Consideration should be given to applying fair value pricing where this is appropriate. Fund managers should be following recent Financial Conduct Authority guidance issued on 8 July 2016 and watching out for new regulatory developments in this area (eg regarding open ended property funds). Above all, fund managers should ensure they protect and treat fairly both redeeming and remaining investors, and maintain open lines ofcommunications with their investors.
As an overarching concept, adopting EU law directly into UK legislation appears
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