Traditional and Digital Limits of Collective Investment Schemes

Abstract

157 This article discusses the regulatory definition of collective investment undertakings (CIUs) as provided for by Article 4 (1) (a) AIFMD and Article 1 (1) UCITSD in the context of traditional family offices, holding companies, and joint ventures, and distinguishes them from more recently observed digital asset pools such as digitally managed accounts, crypto lending, crypto staking, and decentralized autonomous organizations.Testing the legal definition of CIUs in the context of traditional and digital pooled investments allows not only for the delineation of the scope of AIFMD (and to a lesser extent, UCITSD), but also provides insights on the desirable content of Level 2 regulation under MiCA. While ESMA guidance based on many years of supervisory experience sets the limits on traditional use cases, the digital boundaries of collective investment schemes are largely untested and to some extent uncertain, resulting in high costs for legal advice, as demonstrated by our brief look into MiCA set out in this article. To address these matters, we argue in favor of broad default rules on pooled finance, paired with exemptive powers from individual or all rules where a disparity exists between the purpose of regulation and the regulated activities. If paired with carve-outs for applications below EUR 5 million (where retail investors are present) and EUR 100 million (sophisticated clients only), these default rules would assist supervisory authorities in setting adequate boundaries for investment fund regulation of innovative financial products. After the introduction (Pt. I), Pt. II outlines the legal definition(s) of CIUs; Pt. III discusses the regulatory limits in the context of traditional use cases; Pt. IV analyzes the limits for digitally managed accounts, decentralized autonomous organizations (DAOs), and decentralized finance as a whole (referred to collectively as “digital limits”); Pt. V presents our policy considerations; and Pt. VI concludes.