The hedge find industry has expressed general and overall support for the IOSCO principles on liquidity risk management for collective investment funds, but at the same times urges IOSCO to make a number of modifications to accommodate hedge fund practices and structures. In a letter to IOSCO, the Managed Funds Association totally agreed with the principle that a fund’s liquidity risk management must be supported by effective governance, including an appropriate degree of independent oversight. Since it is unclear what independent oversight means in this context, the MFA urged IOSCO to clarify that the proper degree of independent oversight will vary for investment funds based on differences in business models and size.
Importantly, the MFA agrees with the principle that material information about liquidity risk and the management of such risk should be disclosed to investors. But, noted the MFA, IOSCO’s recommendation that day-to-day liquidity information should be readily accessible would be overly burdensome for funds without providing significant value to investors, particularly with regard to funds with limited redemption rights. The MFA asked IOSCO to modify the recommendation to provide that investment funds disclose material liquidity risk in light of the redemption rights of investors in the fund. IOSCO also provides that responsible entities should not provide preferential disclosure to select investors.
But sophisticated investors often negotiate investment terms, noted the MFA, including the type of reporting the investor will receive, through side letter arrangements, which are permitted in many jurisdictions. To the extent permitted by law, investment funds should be permitted to negotiate terms with individual investors. Thus, the hedge fund association urged IOSCO to clarify that such negotiated terms may be limited in certain jurisdictions and permitted in other jurisdictions and that investment funds and their responsible entities should only provide such disclosure to the extent permitted under applicable law.
While agreeing with the IOSCO principle that investment funds and their responsible entities should develop a liquidity risk management process that creates a robust view of possible risks, the hedge fund group is concerned with the recommendation that the responsible entity should consider quantitative and qualitative factors to ensure that in all but exceptional circumstances the investment fund can always meet its liabilities as they fall due. Investment funds and their responsible entities can develop reasonable policies, reasoned the MFA, but they cannot ensure outcomes. Thus, the MFA encouraged IOSCO to modify this recommendation to provide that investment funds and their responsible entities should reasonably design processes intended to achieve the desired outcomes.
The IOSCO principles provide that responsible entities should avoid using tools or exceptional measures that may affect redemption rights. The MFA asked IOSCO to distinguish between the use of liquidity tools and extraordinary measures so as not to discourage the use of liquidity risk management tools. Tools such as notice periods, limited periods for redemption, and gates are used by many investment funds and their responsible entities as part of the normal liquidity risk management process.
More broadly, while agreeing with the principle that liquidity risk management plays an important role in the investment activities of an investment fund, the MFA is concerned that the recommendations following the principle would be unworkable for many funds. Specifically, there is concern about the recommendation that the responsible entity should consider the liquidity of instruments it intends to purchase and the impact on the investment fund’s liquidity before transacting. The MFA noted that it is not practical for fund managers to consider the impact on overall liquidity on a trade-by-trade basis prior to executing every investment transaction. The hedge fund group urged IOSCO to provide that an investment fund’s liquidity risk management process should contain provisions reasonably designed to ensure that investment decisions are consistent with the overall liquidity profile established for the fund.
The MFA also agrees that the party responsible for the liquidity risk management process should regularly monitor and assess the liquidity of the portfolio. But the discussion following this principle provides that the liquidity risk management process should enable the responsible entity to continuously measure, monitor and manage the investment fund’s liquidity. The MFA is concerned that this recommendation would be difficult, if not impossible, to meet for many hedge funds, particularly if continuous measurement is interpreted to require real-time measurement. Thus, the MFA asked IOSCO to provide that the appropriate timing and frequency of the review of the portfolio will vary from fund to fund based on a variety of factors, including the strategy, type of assets, and overall liquidity profile of a fund’s portfolio.