An EU sub-threshold AIFM may not market an AIF to investors in Liechtenstein. For marketing a local license is required. Passporting for small AIFM is only available within the realm of Regulation (EU) No. 345/2013 (EuVECA) or Regulation (EU) No. 346/2013 (EuSEF).
Liechtenstein law currently does not define pre-marketing or provide a specific safe harbor for such activities. However, according the Liechtenstein Financial Market Authority (FMA), both, an offer or placing must be related to an existing fund, in order to qualify as marketing. This is particularly the case, if it is already established, ready for offer or already operates („firmiert") under a certain name (hereinafter „existing fund").
If investors involved in the negotiations with respect to a fund project decide to invest on this basis (e.g. by signing a letter of intent) before the fund is an existing fund and subsequently subscribe to this fund, no marketing activities are performed with regard to these investors (FAQ Umsetzung AIFMG, 22.3.2019, 8). In this context, the AIFM may not approach third parties or investors that are not involved in the negotiations (as described above) and/or change committed volumes. Changes to this regime and local interpretation of the term pre-marketing must be expected upon implementation and entry into force of Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 amending Directives 2009/65/EC and 2011/61/EU with regard to cross-border distribution of collective investment undertakings into national law as well as by Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014. Both legal acts have not yet been transposed into the EEA Agreement.
There is no safe-harbor for pre-marketing, soft marketing or market sounding activities under Liechtenstein law with regard to an existing fund. However, such activities are permissible with regard to a fund, which is not yet an existing fund.
Therefore, the distribution of a fundraising deck (slide deck with the fund's name and with a summary of the fund terms, potential assets, exit scenarios, team description) or other documents (such as a term sheet or draft PPM) may be considered marketing.
There is no explicit safe harbor for reverse solicitation under the Liechtenstein Law of 19 December 2012 concerning the Managers of Alternative Investment Funds („AIFMA"). However, the Liechtenstein regulator recognizes the concepts of passive freedom to provide services and reverse solicitation. Thus, if the investor entirely on own initiative requests the subscription of units of an AIF, this does not constitute distribution with-in the meaning of the AIFMA. The applicability of reverse solicitation must be assessed on a case-by-case basis.
The information in our toolbox provides managers of private equity or venture capital funds with an initial overview of certain framework conditions in the respective country. It does not provide advice on the law of any country, neither does it substitute such advice. Before marketing a fund into the respective country, it is at all times necessary to seek expert advice. Our team is happy to assist you with all questions at any time.