Commencing on 22 August 2020, litigation funders will no longer be exempt from the requirement to hold an Australian Financial Services Licence (AFSL) and will have to comply with the relevant financial services and the managed investment scheme regulations.
The removal of the exemption will require litigation funders to operate in a transparent manner enabling them to be held accountable in an industry that is regulated by the Australian Securities and Investments Commission.
The new requirement will come in the form of amendments to the Corporations Regulations 2001 (Cth) removing the exemptions previously inserted regarding litigation funders.
What does this mean?
Litigation funders currently operating in Australia will need to obtain an AFSL in order to continue business. Under the AFSL regime, litigation funders will be required to meet the general obligations of AFSL holders including but not limited to:
- Providing financial services in an efficient, honest and fair manner
- Complying with financial services laws (including taking steps to ensure representatives are complying with financial services laws); and
- Maintaining the competency to provide financial services.
Chapter 7 of the Corporations Act 2001 (Cth) requires an entity carrying on a business involving the provision of a financial service and/or financial product to be appropriately licensed.
At present, litigation funders are exempt from the requirement to hold an AFSL and more specifically exempt from being categorised as a Managed Investment Scheme meaning they are not bound by financial services regulation.
The exemptions are covered through two classes of exemptions in the Corporations Regulations:
- Regulation 7.06.01 of the Corporations Regulations specifically excludes certain litigation funders from the requirement to hold an AFSL (“upstream” funding); and
- Regulation 5C.11.01 of the Corporations Regulations specifically excludes litigation funding arrangements from being considered a managed investment scheme for the purposes of the Corporations Act (“downstream” funding).
The change in requirements relating to litigation funders comes in conjunction with the current inquiry into litigation funding and the regulation of the class action industry by the Parliamentary Joint Committee on Corporations and Financial Services.
- Media Release by the Treasurer of the Commonwealth of Australia
- AFSL Application Process
- Managed Investment Scheme AFSL Applications
- Managed Investment Scheme regulations.
Sophie Grace can assist you in obtaining an AFSL for your litigation funding business. Please contact us to discuss how we can assist you further.