IPRU-INV 11.3 DETAIL OF MAIN REQUIREMENTS

1. (1)

   1The professional liability risks to be covered pursuant to the UK legislation that implemented1 Article 9(7) of Directive 2011/61/EU shall be risks of loss or damage caused by a relevant person through the negligent performance of activities for which the AIFM has legal responsibility.

2. (2)

   Professional liability risks as defined in paragraph 1 shall include, without being limited to, risks of:

   1. (a)

      loss of documents evidencing title of assets of the AIF;

   2. (b)

      misrepresentations or misleading statements made to the AIF or its investors;

   3. (c)

      acts, errors or omissions resulting in a breach of:

      1. (i)

         legal and regulatory obligations;

      2. (ii)

         duty of skill and care towards the AIF and its investors;

      3. (iii)

         fiduciary duties;

      4. (iv)

         obligations of confidentiality;

      5. (v)

         AIF rules or instruments of incorporation;

      6. (vi)

         terms of appointment of the AIFM by the AIF;

   4. (d)

      failure to establish, implement and maintain appropriate procedures to prevent dishonest, fraudulent or malicious acts;

   5. (e)

      improperly carried out valuation of assets or calculation of unit/share prices;

   6. (f)

      losses arising from business disruption, system failures, failure of transaction processing or process management.

3. (3)

   Professional liability risks shall be covered at all times either through appropriate additional own funds determined in accordance with Article 14 or through appropriate coverage of professional indemnity insurance determined in accordance with Article 15.

[Note: article 12 of the AIFMD level 2 regulation]

1. (1)

   1This Article shall apply to AIFMs that choose to cover professional liability risks through additional own funds.

2. (2)

   The AIFM shall provide additional own funds for covering liability risks arising from professional negligence at least equal to 0,01 % of the value of the portfolios of AIFs managed.

   The value of the portfolios of AIFs managed shall be the sum of the absolute value of all assets of all AIFs managed by the AIFM, including assets acquired through use of leverage, whereby derivative instruments shall be valued at their market value.

3. (3)

   The additional own funds requirement referred to in paragraph 2 shall be recalculated at the end of each financial year and the amount of additional own funds shall be adjusted accordingly.

   The AIFM shall establish, implement and apply procedures to monitor on an ongoing basis the value of the portfolios of AIFs managed, calculated in accordance with the second subparagraph of paragraph 2. Where, before the annual recalculation referred to in the first subparagraph, the value of the portfolios of AIFs managed increases significantly, the AIFM shall without undue delay recalculate the additional own funds requirement and shall adjust the additional own funds accordingly.

4. (4)

   The FCA1 may authorise the AIFM to provide additional own funds lower than the amount referred to in paragraph 2 only if it is satisfied - on the basis of the historical loss data of the AIFM as recorded over an observation period of at least three years prior to the assessment - that the AIFM provides sufficient additional own funds to appropriately cover professional liability risks. The authorised lower amount of additional own funds shall be not less than 0,008 % of the value of the portfolios of AIFs managed by the AIFM.

5. (5)

   The FCA1 may request the AIFM to provide additional own funds higher than the amount referred to in paragraph 2 if it is not satisfied that the AIFM has sufficient additional own funds to appropriately cover professional liability risks. The competent authority shall give reasons why it considers that the AIFM's additional own funds are insufficient.

[Note: article 14 of the AIFMD level 2 regulation]

1. (1)

   1This Article shall apply to AIFMs that choose to cover professional liability risks through professional indemnity insurance.

2. (2)

   The AIFM shall take out and maintain at all times professional indemnity insurance that:

   1. (a)

      shall have an initial term of no less than one year;

   2. (b)

      shall have a notice period for cancellation of at least 90 days;

   3. (c)

      shall cover professional liability risks as defined in Article 12(1) and (2);

   4. (d)

      is taken out from an EU or non-EU undertaking authorised to provide professional indemnity insurance, in accordance with Union law or national law;

   5. (e)

      is provided by a third party entity

   Any agreed defined excess shall be fully covered by own funds which are in addition to the own funds to be provided in accordance with the UK legislation that implemented1 Article 9(1) and (3) of Directive 2011/61/EU.

3. (3)

   The coverage of the insurance for an individual claim shall be equal to at least 0,7 % of the value of the portfolios of AIFs managed by the AIFM calculated as set out in the second subparagraph of Article 14(2).

4. (4)

   The coverage of the insurance for claims in aggregate per year shall be equal to at least 0,9 % of the value of the portfolios of AIFs managed by the AIFM calculated as set out in the second subparagraph of Article 14(2).

5. (5)

   The AIFM shall review the professional indemnity insurance policy and its compliance with the requirements laid down in this Article at least once a year and in the event of any change which affects the policy's compliance with the requirements in this Article

[Note: article 15 of the AIFMD level 2 regulation]