The Conundrum of Hedge Fund Definition

Nabilou Hossein
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Nabilou Hossein: Postdoctoral Researcher in Banking and Financial Law; Faculty of Law, Economics and Finance, University of Luxembourg; LL.M., University of Pennsylvania Law School; E-mail: hossein.nabilou@uni.lu.Luxembourg

European Company and Financial Law Review, 2017, vol. 14, issue 1, 149-186

Abstract: This Article attempts to define hedge funds and to distinguish them from a variety of similar investment funds. After reviewing the hedge fund definition in the U. S. and the EU, this Article argues that the current regulatory framework, which defines hedge funds by reference to what they are not rather than to what they are, is prone to regulatory arbitrage. Even in the presence of a statutory definition, due to the ineluctable indeterminacy of language and regulatory arbitrage problems, borderline issues will persist, which makes statutory definitions of hedge funds neither possible nor desirable. Therefore, regulators should avoid the temptation of proposing such statutory definitions. Instead, they should rely on regulatory discretion within a broad principles-based regulatory framework to do so. For such a principles-based regulatory regime to work, regulators should rely on a functional definition of hedge funds. Accordingly, this Article defines hedge funds as privately organized investment vehicles with a specific fee structure, not widely available to the public, aimed at generating absolute returns irrespective of market movements (Alpha) through active trading and making use of a variety of trading strategies. This functional definition is likely to help address regulatory problems that might originate from statutory definitions of hedge funds.

Date: 2017
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DOI: 10.1515/ecfr-2017-0006

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