CFCL Investment regulation - Argentina
Regulatory structure
Please refer to the CBL Market infrastructure - Australia for the complete information about the regulatory structure.
Holding restrictions
Disclaimer
The information contained in the Holding Restrictions is based on the legal opinion obtained by CBL that was issued on 26 February 2021. CFCL believes the information to be correct as of that date but disclaims any responsibility as to the accuracy and completeness of the information after that date. In the case of discrepancy between the information provided by CFCL and the local laws and regulations, the latter shall prevail. The Holding Restrictions do not constitute legal advice and Clients should seek advice from independent professional counsel.
Clients are responsible for ensuring compliance with the holding restrictions and agree to indemnify and hold harmless, CFCL, for any loss, expense, liability, damage, or claims, whether direct or indirect, against or incurred by CFCL arising out of or resulting from such non-compliance.
Holding restrictions - Register Market
Restrictions on clients
No general restrictions on client residency for holdings held through CFCL. Certain funds may also impose specific restrictions on investor domicile. Clients must refer to and abide by the restrictions (if any) contained in the fund prospectus before entering into transactions.
Restrictions on settlement
There is no general restriction on settlement, however, certain funds may impose specific settlement/transfer restrictions. Clients must refer to and abide by the restrictions (if any) contained in the fund prospectus before entering transactions.
Holding Restrictions – CSD Market
The Corporations Act 2001 and the Foreign Acquisitions and Takeovers Act 1975 govern substantial investment restrictions applying to foreign investors.
Under the general foreign ownership limit, no foreign investor (including any associates) may hold 20% or more of the ownership in an Australian business (or control 20% or more of its voting power) without prior approval from the Foreign Investment Review Board (FIRB) and the Treasurer of Australia's Commonwealth Government.
Similarly, multiple foreign investors (including any associates) holding 40% or more of the ownership in an Australian business (or who are in a position to control not less than 40% of its voting power) must seek approval from the FIRB and the Treasurer of Australia's Commonwealth Government.
The foreign ownership limits apply to businesses that are valued above AUD 261 million (as of calendar year 2018, subject to annual indexation). Except for businesses in prescribed sensitive sectors (sensitive businesses include media; telecommunications; transport; defense and military related industries and activities; encryption and securities technologies and communications systems; the extraction of uranium or plutonium and the operation of nuclear facilities), an AUD 1,134 billion threshold applies to investors from Chile, China, Japan, Korea, New Zealand, Singapore, and U.S.A.
Foreign investors who want to acquire more than 19.99% of a company’s controlling interest are also subject to the takeover provisions of the Corporations Act 2001 (in addition to requiring prior approval from the FIRB and the Treasurer of Australia's Commonwealth Government).
Application forms are available on the website of the FIRB.
Disclosure requirements
Introductory information and categories
This section provides general information about the disclosure requirements for fund securities holdings with which Clearstream Fund Centre must, according to the information available at the time of the present publication, comply with each of the domestic markets and fund markets covered by the Disclosure Requirements.
Fund securities that are held remotely are usually not disclosed by CFCL. A disclosure request received by CFCL regarding such a holding will be forwarded to the relevant client without assessing its validity and the CFCL Client shall handle the request on a voluntary basis.
Disclosure requirements are only available for those countries where CFCL has a link to the respective domestic market or direct access to local domiciled funds that are held in Clearstream’s name on the register.
For fund securities holdings where CFCL has no such link or direct access to the register, clients must be aware that local laws might provide for mandatory disclosure. A disclosure request in this regard will be forwarded to clients without assessing its validity. Clients commit not to unreasonably withhold their consent to such a request and agree to indemnify CFCL for damages resulting directly from non-compliance with mandatory local disclosure requirements.
In most cases, the obligation to disclose is based on the domestic equivalent of a Companies Act, relevant investment funds act or anti-money laundering act and covers all security types.
In some instances, the obligation to disclose is based on stock exchange laws or regulations and only applies to listed domestic and foreign securities.
The Disclosure Requirements do not constitute legal advice and the Clients should seek independent professional advice in relation to fund securities deposited with CFCL, especially as, for those jurisdictions in which no disclosure obligation falls on CFCL, there may be separate disclosure requirements that apply directly to clients of CFCL, shareholders and beneficial owners.
Please note that CFCL is not always given comprehensive information or advised of changes affecting local disclosure requirements.
It remains the sole responsibility of the Client to ensure compliance with local disclosure requirements. If a requirement is not met, it is the Client who will be liable to any related penalty. Clients are therefore advised to seek independent legal advice on the existence and interpretation of local disclosure requirements.
In the case of a discrepancy between the general information contained in this document and the information provided by CFCL for a specific market, as applicable (irrespective of whether this information has been obtained from an agent of Clearstream Fund Centre, or, as the case may be, a foreign regulator of a branch of CFCL), the information provided by CFCL for the specific market as applicable, shall prevail.
N.B.: In all countries, if it is suspected that a disclosure obligation has been breached (for example, that a threshold of holdings under custody has been crossed without being reported), the regulators and the authorities may have the power to investigate. Moreover, in all countries, disclosure obligations might be triggered by enforceable judgements of the competent jurisdiction of the country in question.
Disclosure categories
Clearstream Fund Centre classifies disclosure scenarios according to the following market categories:
Category 1
Markets where disclosure by Clearstream Banking as custodian of Clearstream Fund Centre to issuers, investment fund managers and/or to regulators or market authorities is mandatory under applicable law;
Category 2
Markets where disclosure by Clearstream Banking as custodian of Clearstream Fund Centre of account holders to issuers, investment fund managers and/or foreign regulators or market authorities is a legal obligation in respect of securities in specific circumstances;
Category 3
Markets where there is no obligation for Clearstream Banking as custodian of Clearstream Fund Centre to disclose account holders to issuers, investment fund managers and/or regulators, notwithstanding any disclosure requirement falling directly on clients of Clearstream Fund Centre, shareholders and/or beneficial owners or notwithstanding disclosure necessary to obey an enforceable judgement of the country in question.
Disclosure requirements – Register Market - Australia
Disclosure Category: 2
There is no legal requirement requiring Clearstream Fund Centre (CFCL) to disclose the identity, information, and holdings on CFCL clients and ultimate beneficial owner. CFCL may be required, under Australia laws and regulations to disclose the identity and holdings of clients and/or ultimate beneficial owners, upon request, in the case of holding Australia investment funds.
Consent
In order to comply with the applicable legislation, clients with holdings in Australian investment funds or entering into transactions in Australia market must consent, and are hereby deemed to consent, to the required legal disclosure. Such consent includes the appointment of the requestor (for example, the Fund Manager and its agents, the regulators) as their attorney-in-fact, under power of attorney, to collect from CFCL the required information to be disclosed. Clients who do not grant such authority cannot hold such investment funds / financial instruments in their accounts with CFCL.
Disclosure Requirement
Clients are advised that under local laws and regulations, investment funds and its agents may require CFCL, on request, to disclose information on CFCL clients and ultimate beneficial owners.
Under the foreign investment review regime, approval from the Foreign Investment Review Board (FIRB), may be required in certain circumstances.
Background and legal basis
Disclosure of information on CFCL clients and ultimate beneficial owners may arise from the following Australian laws and regulations:
Legal basis for disclosure requirement may arise from the following:
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF)
- Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA)
- Foreign Acquisitions and Takeovers Regulations 2015 (Cth) (FATR)
Sanctions
Non-compliance with the disclosure requirements may result in the fund manager or its agent refusing acceptance of the proposed investment, and/or mandatory redemption of the existing holdings.
Disclosure requirements – CSD link - Australia
Disclosure Category: 1
Clearstream Fund Centre (CFCL) may fall under an obligation, under the Corporations Act 2001, to disclose the identity and holdings of customers.
Consent
In order to comply with the legislation as mentioned below, clients entering into transactions in the Australian domestic market consent and are hereby deemed to consent to disclosure and to the appointment of the requestor (for example, the listed company or its agent) as their attorney-in-fact, under power of attorney to collect from CBL such information as is required to be disclosed.
Background and legal basis
Local laws and regulations (for example Parts 6C.1 and 6C.2 of the Corporations Act 2001) may require CFCL or CFCL's depository to disclose securities holding information with respect to CFCL's securities account.
As part of its application to register itself as an Overseas Clearing and Settlement Facility, CFCL is also obliged, upon request from ASIC, to disclose securities holding information of its Australian customers, including but not limited to the name, type of entity, and whether the customer is acting on behalf of third party clients or not.
Please refer to the CBL Disclosure Requirements - Australia for more information.