We should now work from the assumption that the question is "how" rather than "when" or "if" implementation of the AIFMD will occur. The AIFM Directive was published in the Official Journal on 1 July 2011. ESMA published its technical advice to the European Commission on possible implementing measures on 16 November 2011 and a Discussion Paper in February 2012 regarding Key Concepts of the Alternative Investment Fund Managers Directive and types of AIFM. We also have the FSA's Discussion Paper on implementation of the Directive in the UK (DP12/1).
In the relatively near future, AIFMs should be in a position to plan ahead to accommodate the AIFMD. A key challenge is to focus efforts on ensuring that the level 2 and 3 implementing measures, and consequential implementing provisions in the UK are workable. Many interesting issues had been deferred to the Level 2 underlying levels and so they will need some careful consideration during 2012. The expectation is that the Commission will issue proposals for these implementing measures soon and there will be delegated and implementing acts by mid-2012. It is also expected that some measures may be enacted as regulations that are directly applicable in Member States.
There is though an aggressive and tight timetable for implementation. Consequently there is a need for alternative fund managers to plan ahead quite quickly. AIFMs, and also depositaries, valuers and administrators, now need to review the details of the likely provisions and consider how they can best adjust so as to comply with the Directive – and what if any amendments are required for their Funds' documentation for the AIFs with which they are involved.