Alternative Funds 2023 Comparisons

In the past two decades, Mauritius has gained wide recognition, from both fund managers and investors, as a leading jurisdiction for setting up and administering global investment funds. In its annual report 2021–2022, the Financial Services Commission (FSC) recorded approximately 1,004 investment funds (including both open-end and closed-end funds) at the end of June 2022. According to the monthly global business data sheet published by the FSC, there were 946 active global funds as of January 2023.

Mauritius has proved itself as a jurisdiction of substance for sizeable inward and outward investments from Asia to Africa, and it adopts international norms and best practices and promotes a business-friendly environment. The island boasts a modern and innovative legal system and regulatory framework, state-of-the-art infrastructure and a wide range of international banks and professional firms. Furthermore, Mauritius is a politically stable jurisdiction with a legal system inspired by English common law and French civil law, with a final right of judicial recourse to the Judicial Committee of the Privy Council of the United Kingdom.

By virtue of its geographical and cultural proximity to countries in Africa and Asia, Mauritius has positioned itself as a favourable platform for setting up holding entities in African and Asian emerging markets. Mauritius is also a member of the Southern African Development Community (SADC), the Common Market for Eastern and Southern Africa (COMESA), and the Indian Ocean Rim Association (IORA).

The Securities Act 2005 was recently amended by the Finance (Miscellaneous Provisions) Act 2023, enabling Mauritius-based funds to invest via loans. This change has put Mauritius on par, in terms of its financial products offering, with other domiciliation jurisdictions where debt as an investment instrument is quite common. Furthermore, the partial exemption granted in respect of interest earned by a fund established in Mauritius, which is currently at 80%, has been increased to 95%. This will result in interest income of a fund being effectively taxed at a rate of 0.75%, and such change will be effective as from the year of assessment commencing on 1 July 2024.

The two common types of alternative investment funds (AIFs) formed in Mauritius are collective investment schemes and closed-end funds.

Collective Investment Schemes (CIS)

A CIS is an open-end fund which has, as its principal feature, an obligation to redeem the investors’ shares at their request (at a price corresponding to the net asset value of that participant’s investments). Investors in a CIS generally do not have day-to-day control over the fund’s management.

A CIS is set up mainly to invest in portfolios of securities, or other financial assets, real property or non-financial assets, subject to the approval of the FSC. CISs are typically structured as companies, trusts or protected cell companies.

CISs can be further categorised into professional collective investment schemes (PCISs) or expert funds.

PCISs

A PCIS is a CIS where shares or interests are offered by way of private placement or only to “sophisticated investors”, that is, investors which include the government of Mauritius or of a foreign country; a statutory authority established by an enactment; a bank, fund manager or insurer; a CIS; or a closed-end fund. It also includes an investor that warrants, at the time of entering into a securities transaction, that:

• its ordinary business or professional activity includes entering into securities transactions, whether as principal or agent;
• in the case that the investor is a natural person, their individual net worth or joint net worth with their spouse exceeds USD1 million, or its equivalent in another currency; or
• it is an institution with a minimum amount of assets under discretionary management of USD5 million, or its equivalent in another currency.

Expert funds

An expert fund is a fund where the shares or interests are only offered to expert investors, that is, investors who make an initial investment, for their own account, of no less than USD100,000, or sophisticated investors (as previously described), or any similarly defined investor in any other securities legislation.

Specialised funds

A specialised fund is a fund which invests in high-risk or illiquid assets such as commodities, derivatives and real estate, subject to the approval of the FSC.

Closed-End Funds (CEFs)

A CEF is an arrangement or a scheme which, as opposed to a CIS, has no obligation to redeem an investor’s shares at their request, that is, investors do not have control over exiting the fund.

Like CISs, CEFs are formed to invest funds in a portfolio of securities or in other financial or non-financial assets, or real property, subject to the approval of the FSC. CEFs are typically structured as companies or limited partnerships.

CEFs are known to be the preferred structures for private equity funds and are subject to lighter regulations compared to CISs.

CEFs can be further categorised into professional collective investment schemes (PCISs), as previously described.

The most common structures used to set up alternative funds are companies, limited partnerships, protected cell companies and trusts, features of which are set out below. As of last year, it is also possible to establish a fund under the variable capital company (VCC) regime.

Companies

Companies are incorporated under the Companies Act 2001 and may be formed as private or public companies. Participants are issued with “shares” in the company.

Companies have the following features:

• legal personality;
• investors are liable only up to the extent of their investment;
• a board of directors is responsible to investors for its actions under the doctrine of fiduciary responsibility;
• statutory rules of filing and reporting ensure transparency and accountability; and
• income is distributed as long as the company remains solvent.

Protected Cell Companies (PCCs)

A PCC is a single legal entity consisting of segregated cells that have separate assets and liabilities. The PCC is governed by the Protected Cell Companies Act 1999 and the Companies Act 2001. For compliance purposes, each cell will usually require the approval of the FSC in order to be created. PCCs have the same features as companies.

Limited Partnerships

Limited partnerships are governed by the Limited Partnership Act 2011. Participants are issued with “partnership interests”. A partnership must have at least one general partner, who is responsible for the management of the limited partnership, and one or more limited partners.

Limited partnerships have the following features:

• they can elect to have legal personality;
• the general partner has unlimited liability for the debts and obligations of the partnership;
• a limited partner has limited liability, provided that the limited partner does not take part in the management of the partnership (where a limited partner does participate in the management of the partnership, they will be treated as a general partner and will be liable for the debts of the partnership to the extent of their involvement in the management); and
• limited partnerships are tax transparent.

A limited partnership is commonly the preferred structure for private equity funds, given the relative flexibility of the vehicle, its tax transparency, lack of fiduciary risk, and the fact that it is possible to account for profits and losses at limited partner level.

Trusts

Trusts are set up in Mauritius under the Trusts Act 2001 and participants are issued with units in the trust. A trust can have up to four trustees, of which at least one should be a qualified trustee, that is, a person who is authorised by the FSC to provide trusteeship services.

Trusts have the following features:

• no legal personality;
• they are not required to be incorporated or registered;
• they may be structured as a non-resident trust resulting in no tax liability in Mauritius;
• the trustees are subject to fiduciary duties; and
• no corporate filings are required.

Variable Capital Companies (VCCs)

VCCs were introduced by the Variable Capital Companies Act 2022.

They permit the setting up of sub-funds and special purpose vehicles (together, the “sub-entities”) within the same entity, facilitating the segregation and ring-fencing of the assets and liabilities of each of the sub-entities. Furthermore, a sub-fund may be set up as a CIS or CEF. As such, under one single entity, that of the VCC, fund managers are able to manage a CIS sub-fund and a closed-end sub-fund. The VCC structure may be used for all types of investment funds, including mutual funds, hedge funds, private funds, private equity and real estate funds.

VCCs have the following features:

• A VCC carries out its business through its sub-entities.
• Each sub-entity may elect to have a legal personality, which will be distinct from that of the VCC. The sub-entity is not a subsidiary of the VCC merely by reason of being part of the VCC structure. However, each sub-fund is entitled to have an investment that is distinct from the VCC.
• Where winding-up proceedings are being initiated, every asset attributable to a sub-fund can only be made available to the creditors of that sub-fund. As such, the assets of the other sub-funds are protected from the creditors of that sub-fund, irrespective of whether the creditor is a statutory, regulatory or government body.

Regulatory Regime

The regulatory regime applicable to AIFs in Mauritius consists of the following:

• Financial Services Act 2007;
• Securities Act 2005;
• Securities (Collective Investment Schemes and Closed-end Funds) Regulations 2008;
• Financial Services (Consolidated Licensing and Fees) Rules 2008 (in respect of licence fees);
• Financial Intelligence and Anti-Money Laundering Act 2002 (in respect of anti-money laundering provisions);
• United Nations (Financial Prohibitions, Arms Embargo and Travel Ban) Sanctions Act 2019;
• Companies Act 2001 (for funds structured as companies);
• Trusts Act 2001 (for funds structured as trusts);
• Limited Partnerships Act 2011 (for funds structured as limited partnerships);
• Protected Cell Companies Act 1999 (for funds structured as protected cell companies);
• Variable Capital Companies Act 2022;
• Guidelines for Advertising and Marketing of Financial Products 2014;
• Code of Business Conduct 2015; and
• National Code of Corporate Governance for Mauritius 2016.

Regulatory Bodies

The following regulatory bodies are involved in regulating open-end and closed-end funds:

• the FSC, which is the regulator for all non-bank financial services activities (it regulates both domestic and global funds);
• the Registrar of Companies, which is the regulator in respect of all corporate matters; and
• the Registrar of Limited Partnerships, which is the regulator for limited partnerships.

The regulator maintains an “authorisation” regime, which means that all funds are required to be authorised by the FSC, irrespective of whether they are “retail” funds, or funds offered exclusively to “expert” or “sophisticated” investors. The latter funds can take advantage of certain exemptions, which means they are subject to more flexible regulation than that for “retail” funds. For instance, they are exempt from minimum funding requirements, the requirement to prepare and file management reports and annual reports, and the requirement to conduct daily valuations.

In the case of AIFs, no specific disclosure requirements need to be included in fund documentation, but there are best accepted practices in the industry that have become accepted by the regulator. These are usually set out in the fund documentation. As a minimum, the regulator requires the private placement memorandum to specify that:

• investors in the fund are not protected by any statutory schemes in Mauritius; and
• the FSC makes no representation as to the financial soundness of the fund or the suitability of investments in it when it provides its authorisation.

The tax regime applicable to alternative funds established in Mauritius depends on the structure of the alternative investment fund. If the fund is structured as a company and is authorised by the FSC to operate as a CIS or CEF, it will be taxed on its income at a rate of 15%, although it will benefit from an exemption of:

• 80% on all its income derived in the course of its business activities; as well as
• 95% on its interest income effective as from the year of assessment commencing on 1 July 2024;

provided the fund meets the following conditions:

• it carries out its core income-generating activities in Mauritius;
• it employs, directly or indirectly, an adequate number of suitably qualified persons to conduct its core income-generating activities; and
• it incurs a minimum expenditure proportionate to its level of activities.

Alternatively, the fund may claim the foreign tax paid on its foreign source income as credits against the income tax payable in Mauritius – up to a maximum of 15% – in respect of that income where this can be evidenced (foreign tax credits).

If the fund is structured as a limited partnership, the structure will be tax transparent. A partnership that holds a global business licence may opt to be tax-opaque, in which case it will be treated in the same way as a company for tax purposes.

Mauritius-based funds may originate loans for subscription financing and/or leverage. There are currently no special rules or regulations governing borrowing for funds categorised as expert funds or professional collective investment schemes. Any borrowing restrictions will usually be included in the fund documentation.

Funds are expected to invest in a portfolio of “securities”, which includes shares and stocks in share capital, debentures, debenture stocks, loan stocks, bonds, green bonds, convertible bonds or other similar instruments, as well as rights, warrants, options, or interests in connection with the aforesaid securities, securities of a CIS, options, futures, forwards and other derivatives, whether on securities or commodities.

In August 2022, the FSC recognised virtual assets as an asset class suitable for investment by sophisticated and expert investors, expert funds, specialised CISs and PCISs. A virtual asset is defined as a digital representation of value that may be digitally traded or transferred and may be used for payment or investment purposes. However, it does not include digital representations of fiat currencies, securities, and other financial assets covered by the purview of the Securities Act 2005.

The Securities Act 2005 has recently been amended, enabling Mauritius-based funds to invest in money market instruments or debt instruments including loans, debt obligations or similar instruments.

Funds may be allowed to invest in other asset classes, if authorised by the FSC. There is a “specialised” funds regime which allows funds to apply for approval of special asset classes such as debt, digital assets or real estate. Cannabis (other than medical cannabis) is not legal in Mauritius and a fund cannot invest in illegal products. There has been a relaxation of the rules relating to medical cannabis, however, and a fund may invest in an investee company importing medical cannabis, provided that the investee company is authorised to do so under the Mauritius Dangerous Drugs Act 2000.

It is common for funds structured as partnerships to use holding companies for investment purposes. Given that partnerships are tax-transparent, they are not eligible to take advantage of preferential tax rates available under tax treaties. As such, the partnership may establish one or more underlying special purpose vehicles (SPVs) in the form of tax-resident companies that hold a global business licence, which will act as holding companies for investments. The added advantage of using such a holding company is the possibility of an exit at the holding company level, which can be both expedient and tax efficient.       

Typically, a fund is required to be managed by an investment manager licensed as a CIS manager by the FSC, or a fund that is constituted as a company may be self-managed, that is, it can be managed by its board of directors, with the approval of the FSC.

Nevertheless, a fund may also be managed by a foreign investment manager, provided that it holds a global business licence and has received prior approval from the FSC to appoint that foreign manager.

There are no local substance requirements applicable for setting up a fund in Mauritius. Funds licensed by the FSC, which are tax-resident in Mauritius, may benefit from an exemption of 80% on the applicable tax rate of 15%. To qualify for this exemption, they must meet certain substance requirements, which can be found in 2.5 Tax Regime for Funds.

Funds are required to appoint a money-laundering reporting officer, a deputy money-laundering reporting officer and a compliance officer, who are conversant with the anti-money laundering laws of Mauritius.       

Administrator

There is no requirement under Mauritius law to have a local administrator, and a CIS manager is generally able to perform the necessary administrative services. These services include accounting, valuation and reporting, as well as provision of a registered office, all of which are related to the fund’s operations and administration.

However, where the fund or the CIS manager wishes to appoint a third party to provide administrative services, that third party must be licensed as a CIS administrator by the FSC.

Typically, given that all entities holding a global business licence are required under Mauritius law to appoint a “management company” in Mauritius, administrative services are then usually provided by that management company.

Custodian

Except in respect of a global scheme, where a foreign custodian may be appointed with the approval of the FSC, CISs are required to appoint a local custodian, which must be a bank or a trust company that is a subsidiary of a bank, and independent from the CIS manager.

There are no anticipated changes in relation to the regulation of funds in Mauritius.

Mauritius has a global approach and welcomes sponsors and promoters globally. However, the country attracts mainly African and European fund sponsors.       

Under the laws of Mauritius, any body corporate may apply for a CIS manager’s licence from the FSC, provided that they comply with the requirements set out in 3.8 Local Substance Requirements. However, fund managers are typically structured as private companies in Mauritius under the Companies Act 2001.

A fund manager is required to be licensed by the FSC.

A fund may be self-managed or may appoint a foreign manager with the prior authorisation of the FSC.

Where a fund is self managed, this implies that its board of directors is responsible for the day-to-day operations of the fund’s investment activities. As such, all the duties and functions assigned to a fund manager by the securities regulations are to be performed by the board of directors.

See also 3.5 Rules Concerning Permanent Establishments for when funds appoint a foreign manager.

The fund manager and its officers have prescribed duties which include the duty to act honestly, to exercise the degree of care and diligence that would reasonably be expected of a person in that position, to act in the best interests of the investors of the fund and, where there is a conflict between the interests of the investors and their own interests, to give priority to the investors’ interests and not misuse information acquired through being the fund manager or an officer of the fund manager.

Where a fund manager is structured as a company, it is liable to pay tax on its chargeable income at the rate of 15%. However, a licensed fund manager may be entitled to benefit from a partial exemption of 80% on all its income if it satisfies the following conditions relating to the substance of its activities:

• it carries out its core income-generating activities in Mauritius, which include management of a collective investment scheme, taking decisions on the holding and selling of investments, calculating risks and reserves, taking decisions on currency or interest fluctuations and hedging positions, and preparing relevant regulatory or other reports for government authorities and investors;
• it employs, directly or indirectly, an adequate number of suitably qualified individuals to conduct its core income-generating activities; and
• it incurs a minimum expenditure proportionate to its level of activities.

Although no express rule exists on this, as per established tax practice, the mere fact that a foreign manager has managed a Mauritius-based fund does not in itself create a permanent establishment for the fund manager in Mauritius if the FSC has approved the appointment of a fund manager in another jurisdiction.

Carried interest is deemed to be income of the beneficiary of that interest and is taxed as follows:

• if the beneficiary is not tax-resident in Mauritius (as understood under the Income Act 1995), the carried interest is not subject to tax in Mauritius;
• if the beneficiary is not tax-resident in Mauritius, but derives the carried interest from any service performed in Mauritius, the carried interest is subject to income tax at the rate of 15%; and
• if the beneficiary is tax-resident in Mauritius, the carried interest is subject to income tax at the rate of 15%.

As previously explained, if carried interest is paid to a licensed manager, the 15% headline rate is liable to be reduced through partial exemptions, provided substance conditions are met.

Fund managers can outsource some of their business operations; however, the core investment activities must remain vested in the fund manager.

A fund manager typically appoints investment advisers to provide advisory services in the jurisdiction of the investee companies and fund administrators to provide back-office accounting, NAV computation and registry services. These advisory agreements will need to be submitted to the FSC for vetting and approval.

As a general rule, a fund manager must have appropriate qualified staff and directors who are fit and proper persons. In terms of local substance, a fund manager seeking to benefit from the partial-exemption regime must employ, either directly or indirectly, an adequate number of appropriately qualified persons to conduct its core income-generating activities. The number of these local employees must be commensurate with the nature and level of activities of the fund manager.

Any change in ownership or acquisition of shares in the fund manager requires the prior approval of the FSC.

It is also customary that the constitutive documents of a fund provide that the prior approval of investors (of a prescribed threshold) be required for a change in control of the fund manager.

There are no anticipated changes in relation to the regulation of fund managers in Mauritius.

There is a wide range of investors in Mauritius, including institutional investors, development finance institutions (DFIs), family offices and financial institutions. DFIs tend to use Mauritius mostly for investments on the African continent. The jurisdiction still needs to work to attract private high net worth investors.

Side letters or side arrangements are permitted and are usually bilateral, standalone agreements that amend the terms of the fund documents between the fund and a particular investor.

Some common side letter terms are the following:

• most-favoured nation rights;
• right to appoint a member on the advisory board or committee of the fund;
• excuse rights in relation to certain type of investments;
• co-investment opportunities;
• specific reporting rights;
• environment, social and corporate governance (ESG); and
• disclosure and confidentiality rights.

The investor may request that the fund specifically requests its consent before disclosing its name or other information relating to it, or may request that certain confidentiality provisions in the fund documentation be amended or disapplied for such investor.

AIFs that have been authorised as PCISs or expert funds can offer their securities to specific types of investors.

The following restrictions on offering apply:

• an expert fund is only available to either an investor making an initial investment on its own account of no less than USD100,000, or a sophisticated investor or any similarly defined investor in the securities legislation of another country; and
• a PCIS is only available to a sophisticated investor, or on a private placement basis in the case of an open-end fund where the minimum subscription amount is at least USD200,000, and in the case of a closed-end fund where the subscription amount is generally more than USD200,000.

The Securities Act 2005 and the Rules and Regulations thereunder, as well as the Guidelines for Advertising and Marketing of Financial Products 2014 issued by the FSC (the “Guidelines”), regulate the content and distribution of marketing materials. The Guidelines set out the requirements for the content of advertisements and marketing materials, including specific disclosures and disclaimers on the product and the persons promoting it, and require that all marketing materials be submitted to the FSC prior to dissemination.

Securities of expert funds and PCISs may only be marketed to investors as specified in the regulations relating to these funds.

As per recent amendments in 2021, foreign AIFs may be marketed to “sophisticated investors” in Mauritius without the need for any regulatory approval.

Only locally licensed intermediaries (such as investment advisers, investment dealers or investment bankers duly licensed by the FSC) are authorised to solicit retail investors.

It is quite common for CIS managers to engage placement agents. Such agents must be licensed if they solicit retail investors in Mauritius.

The fees, costs and expenses of the placement agent are typically borne by the CIS manager, unless they amount to “organisational expenses” or “operating expenses” (in terms of the fund documentation), in which case, they will be borne by the fund.

An investor who is not tax-resident in Mauritius and who does not otherwise derive any income from Mauritius does not have to pay any tax in Mauritius, whether in respect of income or gains (including distributions) received from a fund, its worldwide income or otherwise, and is not required to file any tax returns in Mauritius.

An investor who is tax-resident in Mauritius will be liable to income tax as follows:

• if the investor is a body corporate, at the rate of 15%; or
• if the investor is an individual, income will be taxed incrementally and the income tax rate may range from 0% to 20%.

A tax-resident investor that is a body corporate will be entitled to either:

• foreign tax credits; or
• an exemption of 80% on tax paid on the following types of income, which are typically received from AIFs:
1. a foreign-source dividend, provided that the dividend is not allowed as a tax-deductible item in the source country and the investor satisfies the conditions relating to the substance of its activities as prescribed;
2. interest income, provided that the investor satisfies the conditions relating to the substance of its activities as prescribed.

A tax-resident investor who is an individual will be entitled to the following:

• foreign tax credit;
• to deduct the appropriate amount of the income exemption threshold that is applicable to the investor from their net income in each income year; and
• to any other reliefs, allowances and deductions as applicable to them.

Any dividend income received or capital gains made by any Mauritian investor from a fund established as a company in Mauritius is exempt from income tax.

A fund which is tax-resident in Mauritius is entitled to benefit from double tax treaties to which Mauritius is a party. This includes companies incorporated in Mauritius, and limited partnerships which hold global business licences and have elected to be treated as a company for tax purposes.

So far, Mauritius has concluded 46 tax treaties and is party to a series of treaties under negotiation.

FATCA Compliance

Mauritius has signed a Model 1(a) (non-reciprocal) inter-governmental agreement with the United States to give effect to the FATCA, which came into force in 2014 (the “Mauritius IGA”). Mauritius issued the Agreement for Exchange of Information in Relation to Taxes (United States of America – FATCA Implementation) Regulations in July 2014 to give effect to that IGA (the “FATCA Regulations”). The Mauritius IGA requires that withholding tax of 30% be applied to payments of certain US-sourced income, such as interests, dividends and insurance to investors in certain circumstances (such as non-compliance by the reporting financial institution with its obligations under the Mauritius IGA, which includes failure to disclose substantial US owners or certify that no substantial US owners exist). Following the Mauritius IGA, Mauritius-based financial institutions will not be subject to the 30% withholding tax on US-sourced income if they comply with the requirements of the FATCA.

CRS Compliance

The Republic of Mauritius has also committed, along with around 100 other countries, to the implementation of the CRS. To enable the implementation of the CRS, the Income Tax Act 1995 of Mauritius has been amended accordingly. Financial institutions in Mauritius have to report annually to the Mauritius Revenue Authority on the financial accounts held by non-residents for eventual exchange with relevant treaty partners. Amendments have been made to Mauritius laws to introduce the obligations adopted by Mauritius pursuant to the Convention on Mutual Administrative Assistance in Tax Matters. There may be different and potentially obligatory disclosure requirements applicable to investors in the fund and their beneficial owners as a result of the CRS, local legislation implementing the CRS and/or other legislation similar to the CRS.       

AML

As a financial institution and licensee of the FSC, a fund is under legal and regulatory obligation to comply with the applicable laws related to anti-money laundering, combating terrorist financing and proliferation (“AML/CFT”) in Mauritius and establish policies and internal controls to mitigate and manage the risk of money laundering and terrorism financing.

The legal framework related to AML/CFT includes, but is not limited to, the following:

• the Financial Intelligence and Anti-Money Laundering Act 2002 (“FIAMLA”);
• the Financial Intelligence & Anti-Money Laundering Regulations 2018 (the “Regulations 2018”);
• the United Nations (Financial Prohibitions, Arms Embargo and Travel Ban) Sanctions Act 2019 and any regulations made thereunder;
• the Prevention of Terrorism Act 2002;
• the Convention for the Suppression of the Financing of Terrorism Act 2003;
• the Financial Services Act 2007; and
• any code or rules as may be issued by the FSC.

The FSC also issued its Anti-Money Laundering and Countering the Financing of Terrorism Handbook (the “FSC Handbook”) in January 2020. The FSC Handbook is designed to provide guidance and assist financial institutions in complying with legislation. 

The main AML/CFT law in Mauritius is FIAMLA. Offences related to money-laundering are contained within Part II of the FIAMLA and include:

• engaging in a transaction that involves property which is, or either in whole or in part directly or indirectly represents, the proceeds of any crime;
• receiving, being in possession of, concealing, disguising, transferring, converting, disposing of, removing from or bringing into Mauritius any property which is, or either in whole or in part directly or indirectly represents, the proceeds of any crime;
• concealing or disguising property which is, or either in whole or in part, directly or indirectly, represents, the proceeds of any crime, that is, concealing or disguising its true nature, source, location, disposition, movement or ownership of, or rights with respect to it;
• failure to take reasonable measures to ensure that the fund is not capable of being used to launder money;
• failure to report any suspicious transaction; and
• any tipping-off which is committed when a reporting person or one of its officers discloses to a person that a suspicious transaction is being or has been filed, or that related information is being or has been requested by, furnished or submitted to the Financial Intelligence Unit of Mauritius.

Know Your Client (KYC)/Customer Due Diligence (CDD)

CDD is the key element for prevention of money laundering, terrorist financing and proliferation financing. It is important for the fund to know its customers/clients which involves obtaining information and identity documents from them (referred to as the “identification stage”), and by validating the information obtained (referred to as the “verification stage”). The FIAMLA and the Regulations 2018 require the fund to undertake CDD measures with respect to each customer and business relationship.

The CDD measures must be applied to verify the identity of a customer and beneficial owner, especially in the following circumstances:

• before or during the course of establishing a business relationship with a customer;
• while conducting transactions for occasional customers;
• whenever doubts exist about the veracity or adequacy of previously obtained customer identification information;
• whenever there is a suspicion of money laundering, terrorism financing or proliferation financing involving a customer or the customer’s account.

As per the Regulations 2018, the fund must identify and verify the identity of:

• its customers, whether permanent or occasional;
• any person authorised to act on behalf of the customer; and
• the beneficial owner.

Any information supplied by an investor which contains “personal data” as understood in the Mauritius Data Protection Act 2017 may be collected by the fund manager or the fund, whether pursuant to any subscription documents or thereafter (solely for the proper performance of their functions or to fulfil their contractual duty towards the investor or where they have a legal duty to do so). For instance, “personal data” may be required to verify the identity of the investor, to admit the investor to the fund, to provide notices under the fund documentation and to make distributions. Any information amounting to “personal data” will be treated in accordance with the principles contained in the Data Protection Act 2017 which is aligned with the EU General Data Protection Regulation 2016/679. “Personal data” may thereafter be disclosed for the purposes of or incidental to the ordinary business of the fund, to persons such as third-party service providers, banks and regulatory authorities.

The investor will be required to consent to its “personal data”:

• being processed by the fund or any person acting on its behalf for the purposes set out in the fund documentation and any subscription documents, and which are reasonably incidental thereto; and
• being transferred to any associate of the fund manager in a jurisdiction other than Mauritius, provided such jurisdiction has in place safeguards to ensure the protection of personal data which are at least comparable to the level of protection under the Mauritius Data Protection Act 2017 (as may be amended from time to time).

Personal data may be kept for as long as the investor is an investor in the fund and for such period thereafter as required under applicable laws for the fulfilment of the statutory obligations of the fund.

There are no anticipated changes at this juncture. However, there are ongoing consultations in Mauritius with regard to a revision of the Securities Act, including with regard to the regulation of funds.