Independent offshore directors (“independent directors”) are appointed to offshore structures to undertake two equally compelling and, at times, competing functions. First, the independent director must exercise effective oversight of actions taken by investment managers. Second, and arguably the more critical function, the independent director must ensure that all decisions are made based upon the best interests of investors, and in some circumstances, potential creditors.
Inherent in the independent director’s responsibility to the investor is the need to exercise heightened scrutiny of the fund at critical times. Indeed, to ensure that the responsibilities owed to the investor are fully satisfied, the director must be vigilant in overseeing the fund’s operations while concurrently ensuring proper reporting to investors in accordance with the offering documents. It is imperative to acknowledge that while a fund's constitutive documents may well give the investment manager the discretion to impose certain measures including, for example, the power to suspend redemptions, the managers must consult and work with the directors to achieve a decision that lies in the best interests of the investors as a whole.
An expansion of the professional director services sector coupled with the unprecedented upheavals in the banking and credit sectors over the past year and a half, has contributed to an industry-wide reassessment. At the micro-level, the appropriate number of directorships assumed by an individual or organisation has become a hotly debated topic. However, efforts to regulate the number of directorships lack any level of practicality and should be rejected. Instead, given the uniqueness of each fund it is incumbent upon the director to identify and satisfy the requirements of that particular fund. Indeed, the director is in the best position to properly manage the number of relationships while acting in the best interests of investors. Proponents of enforcement of a hard cap on the number of directorships neglect the fundamental premise that different relationships require varying needs. For instance, it may require less time and resources to oversee a number of institutional funds which may share service providers or strategy, compared with oversight of a large number of single manager funds. However, there may come a point when the independent director no longer has the resources available to accept new appointments given the responsibilities of his existing portfolio.
Ultimately, the individual director bears the responsibility of determining whether he has the capacity to assume the directorship in conjunction with exercising the requisite due diligence prior to joining a board. Upon completion of a thorough risk assessment, and based upon a wealth of experience, the director must then determine whether he can properly fulfill his fiduciary duties. It is equally important for the investment managers and investors to gain assurance from the director that expectations regarding service levels and operations will be satisfied.
The bedrock of the relationship between the independent director, fund managers, and investors is confidence. Especially in such trying times where investors are grappling with their investments in distressed funds, the independent director together with the board of directors must assume a leading role in assuaging the concerns of anxious shareholders.
The risks faced by independent directors are numerous and real. Uncertainty and unprecedented losses in the industry have magnified the potential threat of litigation. Now more than ever, the same scrutiny exercised by directors is also borne by the directors themselves. Today, directors are forced to justify and undergo rigorous examination of every decision that they make. Directors are expected to demonstrate precisely how each decision was taken with the best interest of the fund, its investors and potential creditors in mind.
However, investors and investment managers critical of decisions made by directors need to be mindful that the role of the director is wholly independent. Decisions made by the director are intended to benefit all interested parties. Thus, the director is not commissioned to advocate the position or interests of one party, i.e. the fund manager, to the exclusion of the other, namely the investor. Rather, the director must strike the right balance of making appropriate decisions for the fund while safeguarding the interests of shareholders.
In the face of developing challenges in the marketplace, the industry is anticipating a new wave of onshore-led regulatory directives in 2010. In respect of onshore investment managers, a more comprehensive system of registration appears to be a likely implementation. Where offshore funds are concerned, any changes are likely to be focused on issues relating to transparency and disclosure, as well as more oversight on funds marketed to retail investors. In response, all service providers, particularly the independent director, will need to ensure that transparency is at the forefront of any relationship going forward.
The expanded use and application of the due diligence questionnaire typifies the increased disclosure demands made by investors today. Indeed, institutional investors, encouraged by the regained stability in the marketplace, are demanding specific details on board composition, frequency of meetings, and conflicts of interest before investing. In some instances, potential investors want to interview the board to discuss, among other things, the interaction between the directors and the investment manager. Such inquiries make clear that investors are more acutely aware of the powers vested in the investment manager and the board of directors under the terms of the offering memorandum.
The credit crisis forced the industry to scrutinise and consider readdressing its regulations. Notwithstanding the efforts to implement change, the role of the independent director remains a constant. The director's duty is to act in good faith in the best interests of the fund's investors while overseeing the fund's operations. Measured against these duties, the independent director is in a position to contribute experience and direction to a fund during difficult and changing times; the benefits of which are ultimately reaped by investors.
Scott is a member of the Institute of Chartered Accounts of Ontario (Canada), the American Institute of Certified Public Accountants, and he holds the Chartered Financial Analyst designation. Scott has been involved in the investment funds industry since 1995 and holds Directorships on various types of investment funds.