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02.02.16

ESMA clarifies the depositary’s liability regime under AIFMD

On 15 December 2015, ESMA published an updated version of its AIFMD Q&A (ESMA/2015/1873) including on the depositary’s liability regime regarding its safe keeping duties.

ESMA confirms that the depositary is liable for all assets that is related to its safe keeping duties, which includes, according to the look through provision of Articles 89(3) and 90(5) of the AIFMD Level 2 Regulation (AVAILABLE HERE):

« Underlying assets held by financial and, as the case may be, or legal structures controlled directly or indirectly by the AIF or the AIFM acting on behalf of the AIF; and « Underlying assets held by financial and, as the case may be, or legal structures established by the AIF or by the AIFM acting on behalf of the AIF for the purposes of investing in the underlying assets and which are controlled directly or indirectly by the AIF or by the AIFM acting on behalf of the AIF.

Look-through provisions do not apply to funds of funds or master-feeder structures provided they have a depositary which safe keeps the fund’s assets appropriately.