Preface
In accordance with Tenth Questions and Answers relating to Private Fund Registration and Filing (hereinafter referred to as “Q&A 10”) promulgated by Asset Management Association of China (hereinafter referred to as “AMAC”) on June 30, 2016, those qualified wholly foreign-owned and Sino-foreign securities fund management institutions will be able to operate private securities fund management business in domestic China upon the approval of China Securities Regulatory Commission (hereinafter referred to as “CSRC”) as well as being registered as private securities fund operator with AMAC. Given private equity fund management institutions have not been set any restrictions on shareholding ratio of foreign investors by China regulators before, the release of Q&A 10 means there shall be no any legal barriers for those qualified foreign financial institutions (hereinafter referred to as “QFFIs”) to enter into China’s Fund Industry as a whole.
It was promulgated by AMAC on April 18, 2016 three contract guidelines respectively for three kinds of private investment fund, namely contractual private investment fund, corporate private investment fund and partnership private investment fund (hereinafter referred to as “Fund Contract Guidelines”). Such guidelines include those essential terms of three kinds of private investment fund contract which will be formally implemented on July 15, 2016. Therefore, to better facilitate QFFIs to initiate their fund management business here in China, we intend to list down those key guidelines as well as essential terms hereunder.
1. Guidelines for Contractual Private Investment Fund Contract
No. | Essential Terms | Brief Descriptions |
1 | Name of contract | including words such as “Private Fund” or “Private Investment Fund” |
2 | Trusteeship | trusteeship mode: 3-party contract signed by private fund operator, fund trustee and investors non-trusteeship mode: measures to ensure safety of assets and dispute resolution terms clearly identified |
3 | Preface | purpose, basis and principle for conclusion of contract |
4 | Definitions | explanations and instructions on words/expressions with specific legal meanings |
5 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund |
6 | Fund Trustee: properly manage fund assets in the principle of integrity, caution and diligence | |
7 | Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding; aware of no commitment or guarantee on the profit of fund assets | |
8 | Basic Information of Private Fund | name, operation method, planned total raising amount (if any), investment target and scope, term, original par value, structure (if any), trusteeship (if any), outsourcing (if any), etc. |
9 | Raising of Private Fund | institution, target, method and term of raising, subscription matters, cooling-off period of investment and returning visit, special account for fund raising and settling, etc. |
10 | Establishment and Filing of Private Fund | method of signing contract, conditions of establishment, management of failure of fund raising, forbidden to make investment before AMAC filing |
11 | Subscription, redemption and transfer of Private Fund | subscription and redemption: open day and time, method/price/process/confirmation/authority, amount limitation (with exception), costs, calculation method, recognition and management of large amount redemption, situations and management of rejection or stop; Transfer (optional term): method/process, responsibilities of private fund operator, registration of transfer |
12 | Rights and obligations | name/registered address/contact person and address/telephone number of contract parties; detailed rights and obligations of contract parties in accordance with Provisional Measures on Supervision and Administration of Privately-offered Investment Funds and relevant regulations |
13 | General meetings of fund-units holders and agency thereof | situations of convening general meetings of fund-units holders; authorities, appointment, personnel structure and change procedures of the agency of general meetings of fund-units holders; matters relating to general meetings of fund-units holders and agency thereof (convener and method of convening, time/content/method of meeting notice, relevant procedures, etc.) |
14 | Registration of fund units | all matters relating to registration of fund units |
15 | Investment of private fund | Investment target/scope/strategy/limitation, interest conflict and its management; performance benchmark (if any); financing/ securities lending and OTC securities businesses (if any) |
16 | Assets of private fund | Custody and disposition of fund assets, opening and management of relevant accounts of fund assets, safety measures and dispute resolution of fund assets under non-trusteeship mode |
17 | Arrangements on transaction and liquidation | procedures on the selection of securities and futures broker, arrangement on liquidation; check of capital; securities accounts and transaction records; capital liquidation of subscription or redemption; such matters relating to the investment orders of capital allocation and the receipt/settlement of the other payment under trusteeship mode only |
18 | Evaluation and accounting of fund assets | purpose, time, method, target, process, mistake management, suspension situation of evaluation; confirmation of the net value of fund units; management of special situations; accounting policies |
19 | Costs and taxation of private fund | Relevant matters of fund related costs; tax paying arrangement of contract parties |
20 | Income distribution of private fund | principle of income distribution; confirmation and notice of income distribution plan; execution method of income distribution |
21 | Information disclosure and report | variety, content, frequency and method of information disclosure; such information which is statutorily disclosed under Measures on Administration of Information Disclosure of Private-offered Investment funds; periodical disclosure to fund investors the net value of fund units reviewed by fund trustee; filing of disclosed information |
22 | Revelation of risks | potential risks during the management, operation or disposition of fund assets such as risks relating to delegated raising, outsourcing, hiring investment advisor, capital loss, fund operation, liquidity, failure of raising, investment target, taxing, etc. |
23 | Effectiveness, revision, cancellation and termination of fund contract | effective date; term; conditions and procedures of revision; situations of cancellation and termination |
24 | Liquidation of private fund | composition and responsibilities of liquidation team; procedures of liquidation; source and payment method of liquidation fee; distribution of remaining assets; notice arrangement of liquidation report; keeping of account books and files of liquidation; write-off of relevant accounts |
25 | Breach of contract | liabilities of the breaching party |
26 | Dispute resolution | negotiation; arbitration/litigation |
27 | Other matters | other necessary matters under fund contract |
2. Guidelines for Corporate Private Investment Fund Contract
No. | Essential Terms of Article of Associations | Brief Descriptions |
1 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund |
| Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding | |
2 | Basic information | Name; registered address; registered capital; term; scope of business (including words such as “fund management”, “investment management”, “asset management”, “equity investment”, “venture investment”, etc.); name/address/legal representative of shareholder(s); conditions on the revision of such information |
3 | Contribution of shareholder(s) | method, amount, ratio and term of contribution |
4 | Rights and obligations of shareholder(s) | basic rights and obligations of shareholder(s); ways to exercise the right to know |
5 | Investment, withdrawal and equity transfer | Conditions and procedures on capital increase and decrease, investment, withdrawal and equity transfer |
6 | Shareholders meeting/General meeting of shareholders | Duties, procedures of convene and convention rules thereunder |
7 | Senior management | methods, duties, procedures of convene, term of office and convention rules of board of directors/executive director, board of supervisors/supervisor(s) and the other senior management personnel |
8 | Investment matters | scope/strategy/operation/method/limitation of investment; decision-making procedures; identification criteria of affiliates; evading system relating to investment of affiliates; sustained post-investment supervision/investment risk prevention/investment exit of invested enterprise |
9 | Management method | management structure and investment strategy procedures under self-management mode; name of operator, limitation of management, calculation and payment method of management fee under delegated management mode |
10 | Trusteeship | name of trustee or authorization scope on the trusteeship made by all shareholders to board of directors/executive director under trusteeship mode; safety measures for fund assets and dispute resolution mechanism under non-trusteeship mode |
11 | Income distribution and loss allocation | principle and execution method thereof |
12 | Tax assumption | relevant matters thereof |
13 | Costs and expenses | Standard and accrual method of relevant costs (including tax), remuneration of delegated operator and trustee |
14 | Financial and accounting rules | bookkeeping, fiscal year, annual financial report audited by accounting firm, basic situation of yearly investment and operation, draft and submission of important events, conditions for access to accounting book |
15 | Information disclosure | content, method and frequency thereof |
16 | Termination, dissolution and liquidation | procedures thereof |
17 | Revision of Article of Associations | causes and procedures thereof |
18 | Conformity | prevailing of content of Article of Associations in case of its inconformity with content of contribution agreement between/among shareholders or the other documents; prevailing of content of filed Article of Associations in case of inconformity between/among different versions of Article of Associations |
19 | Backup of fund units information | fund units information being backed up by fund operator, fund units registration authority or the other fund units registration obligators |
20 | Report of disclosed information | disclosed information being backed up by fund operator or the other information disclosure obligators |
3. Guidelines for Partnership Private Investment Fund Contract
No. | Essential Terms of Partnership Agreement | Brief Descriptions |
1 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund |
| Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding | |
2 | Basic information | name (including the word of “partnership”); main business premise; term; scope of business (including words such as “fund management”, “investment management”, “asset management”, “equity investment”, “venture investment”, etc.); conditions on the revision of such information |
3 | Partners and their Contribution | name and address of general partner(s) and limited partner(s); method, amount, ratio and term of contribution; procedures of change of such information |
4 | Rights and obligations of partners | basic rights and obligations of general partner(s) and limited partner(s) |
5 | Executive partner(s) | general partner(s) being executive partner(s) to make investment of, manage, utilize, dispose partnership assets under the supervision of the other general partner(s) and limited partner(s); qualification, selection procedure, extent of power, breaching treatment, removal conditions and change procedure of executive partner(s) |
6 | Limited partner(s)
| no directly/indirectly involvement in implementation of partnership affairs except for the eight kinds of behaviors under Article Sixty-eight of Partnership Enterprise Law of P.R.C |
7 | Partners’ meeting | convening conditions, procedures and voting methods thereof |
8 | Management method | fund operator (can be executive partner or any other delegated private fund management institution); management method; extent of power of fund operator; calculation and payment method of management fee |
9 | Trusteeship | name of trustee or authorization scope on the trusteeship made by all partners to executive partner(s) under trusteeship mode; safety measures for fund assets and dispute resolution mechanism under non-trusteeship mode |
10 | Participation and withdrawal, transfer of partnership interest and identity change | Conditions, procedures and relevant responsibilities of participation and withdrawal, transfer of partnership interest and identity change; procedures on interconversion between limited partner(s) and general partner(s) |
11 | Investment matters | scope/operation method/limitation/decision-making procedures of investment; identification criteria of affiliates; evading system relating to investment of affiliates; sustained post-investment supervision/investment risk prevention/investment exit of invested enterprise; guarantee measures/leverage/guarantee limitations on invested enterprise |
12 | Income distribution and loss allocation | principle and execution method thereof |
13 | Tax assumption | relevant matters thereof |
14 | Costs and expenses | accrual principles, scope of expenses borne, calculation and payment method of expenses thereof partnership enterprise as well as such expenses to be borne by general partner(s) |
15 | Financial and accounting rules | bookkeeping, fiscal year, audit, annual financial report, conditions for access to accounting book, etc. |
16 | Information disclosure | content, method and frequency thereof |
17 | Termination, dissolution and liquidation | conditions of termination and dissolution; liquidation procedures; liquidator and condition of its appointment; repayment and distribution |
18 | Revision of partnership agreement | causes and procedures thereof |
19 | Dispute resolution | Methods of dispute resolution |
20 | Conformity | prevailing of content of partnership agreement in case of its inconformity with content of the other agreement(s) or documents among partners; prevailing of content of filed partnership agreement in case of inconformity between/among different versions of partnership agreements |
21 | Backup of fund units information | fund units information being backed up by fund operator, fund units registration authority or the other fund units registration obligators |
22 | Report of disclosed information | disclosed information being backed up by fund operator or the other information disclosure obligators |
Closing
With China’s easing away of legal barriers on foreign-invested private fund management entities and with the formal implementation of Fund Contract Guidelines, we firmly believe that more and more overseas financial institutions will grab China’s Private Fund Management Market which may boost relevant industries. Meanwhile, with the formal implementation of Administrative Measures for the Fundraising by Private Investment Funds on July 15, 2016, it can be expected that more relevant feasible laws and regulations will be continuously published to better regulate private fund industry of China. Therefore, it will be of vital importance for such overseas financial institutions to pay close attention to the latest laws and regulations for more smooth and efficient investment in China.
Chambers Yang chambers.yang@dentons.cn
Senior partner at Dentons Shanghai with more than 20 years of professional experiences. Chambers has been award as “Recommended Lawyer” by Asia Pacific Legal 500 and Asia Law Profiles for many years, and has been shortlisted for Finance Monthly’s 2016 Award on Corporate Lawyer of China. In addition, he is Qualified Independent Director for listing company, Off-campus Supervisor of Law School of Fudan University and Off-campus Post-graduate Supervisor of East China University of Politics & Law. Chambers specializes in Corporate, Investment, M&A, PE/VC, Real Estate and Construction, TMT, Intellectual Property and Dispute Resolution of the aforesaid fields.
Laura Sun sun.zhen@dentons.cn
Lawyer at Dentons Shanghai with more than 10 years of experiences on business operation before becoming a lawyer. She is proficient in bilingual communication and coordination and has acquired very rich knowledges and experiences on business operations. Laura specializes in Investment, M&A, PE/VC and Capital Market.
Dentons www.dentons.com
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杨春宝一级律师简介
杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
私募基金合同中关于基金管理人的声明与承诺有哪些核心要求？
①法律概念与规则解释：私募基金管理人的声明与承诺是合同的基础条款，旨在确认管理人资质、明确受托责任并防范误导性销售。核心规则要求管理人必须是在协会登记备案的私募基金管理人，需向投资者充分揭示风险并进行风险评级，且在管理资产时须遵循诚实信用、谨慎勤勉原则，严禁向投资者承诺保本或最低收益。②案件事实与实务场景引用：根据文章列举的契约型私募基金合同必备条款，管理人的声明与承诺被要求以加粗形式显著标识。具体场景中，管理人需在合同中明示已登记的私募基金管理人编码，确认已完成对投资者的风险揭示与评估，并承诺基金资产将按诚信谨慎原则运用。同时，明确不得对基金盈利水平作任何承诺或保证，这直接对应了募集阶段的合规要求。③实务指引与风险提示：实务操作中，管理人在起草该条款时应确保登记编码准确无误，风险揭示书与评估问卷等留痕文件需与合同声明一致。常见争议焦点在于销售环节是否存在承诺收益的违规行为，若合同外协议存在保底承诺，将面临监管处罚与合同效力风险。因此，合同文本必须严格剔除任何疑似保本保息的表述，并在募集过程中通过双录等方式固定合规证据。
私募基金在未托管模式下应如何保障资产安全并处理争议？
①法律概念与规则解释：私募基金托管是指由托管机构保管基金财产，确保资产独立与安全。在非托管模式下，缺乏独立第三方对资金的监督，因此法律与监管规则要求基金合同必须明确替代性的资产安全保障机制及争议解决条款，以防范资金被挪用或侵占的风险，保障投资者合法权益。②案件事实与实务场景引用：文章在契约型私募基金合同必备条款的托管部分指出，若采用非托管模式，合同必须清晰界定保障基金资产安全的措施以及争议解决条款。这意味着合同不能仅简单声明不托管，而需要详细列明资金账户的管理机制、划付指令的审核流程，以及在发生资产被恶意转移或账户被冻结等特定争议情形下的应急处理与责任追究机制。③实务指引与风险提示：实务中，非托管模式极高风险，建议通过引入第三方资金监督机构或设立共管账户来强化资产安全。合同中应详细规定资金划拨的触发条件、审批权限与操作流程，并明确非托管状态下管理人对资产安全的绝对赔偿责任。争议解决条款应明确管辖法院或仲裁机构，避免在发生资产损失时因管辖权异议导致维权迟延，从而有效控制资金失控风险。
私募基金的募集失败应如何处理及备案前有哪些禁止性规定？
①法律概念与规则解释：私募基金的募集失败处理及备案前禁止投资规则，是防范非法集资与未先募后投风险的核心制度。基金成立需满足特定条件，若募集失败，管理人须退还投资者资金。同时，基金在完成协会备案手续前，必须处于资金静止状态，禁止开展任何对外投资运作，以确保监管穿透有效。②案件事实与实务场景引用：文章在契约型基金合同的设立与备案条款中明确指出，合同需约定基金的签署方式与成立条件，并包含募集失败的管理机制。同时，条款强调在完成基金备案前绝对禁止开展投资活动。这对应了实务中募集账户的划付规则，即未达标前资金需原路退回，备案前资金只能停留在募集专用账户，不得进入投资账户。③实务指引与风险提示：实务操作中，合同必须精确设定募集成功的金额与人数门槛，并规定募集失败后的退款期限与利息处理方式。管理人需严格监控募集账户的资金状态，在取得备案证明文件前，任何将资金划转至托管账户或进行证券开户交易的行为均属违规。风险防范的关键在于建立内部投资交易系统的备案拦截机制，确保无备案不投资的红线不被突破。
以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn
