General Scheme of the. Irish Collective Asset-management Vehicle. Bill 2014

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1 General Scheme of the Irish Collective Asset-management Vehicle Bill 2014 Part 1 Preliminary and General 1. Citation 2. Commencement 3. Interpretation 4. Limitation of liability 5. UCITS incorporated as ICAVs Part 2 Incorporation, Registration and Authorisation Chapter 1 Incorporation and Consequential Matters 6. Registration of ICAVs 7. Registration by the Central Bank 8. Applications for authorisation 9. Particulars to be delivered with instrument of incorporation 10. Authorisation 11. Effect of granting authorisation 1

2 12. Requirements for authorisation 12A Requirement for ICAV to have a registered office Chapter 2 Powers of the Central Bank 13. Powers of the Central Bank 14. Representations against refusal of authorisation 15. Certificates 16. Ending of authorisation 17. Bank to give reasons for decisions, etc 18. Filings to be made in Bank Chapter 3 ICAV Name 19. Approval of names by Registrar of Companies 20. Prohibition of registration of ICAVs by undesirable names 21. Bank's notification to Registrar of Companies of ICAV names 22. The Central Bank s approval for certain changes in respect of an ICAV Chapter 4 Common Seal and Execution of Documents 23. Execution of documents 24. Common seal 2

3 25. Official seal for share certificates Chapter 5 Segregated Liability / Umbrella funds 26. Segregated liability of ICAV sub-funds 27. Requirements to be complied with by, and other matters respecting, an umbrella fund to which section 26 applies Part 3 Depositary 28. Safekeeping of ICAV property 29. Shareholder rights of action not affected Part 4 Share Capital, Shares and certain other Instruments 30. Share Capital of ICAV 31. Power of the ICAV to purchase own shares 32. Treatment of Purchased Shares 33. Power to Issue Shares 34. Share certificates 35. Evidence of Share Certificate 36. Exceptions from Section General 38. Transfer of registered shares 3

4 39. Refusal to Register Transfer 40. Certification of a Transfer of Shares 41. Miscellaneous Part 5 Corporate Governance Chapter 1 Directors and Secretaries 42. Number of Directors 43. Secretary 44. Prohibition of body corporate being a director. 45. Avoidance of acts done by person in dual capacity as director and secretary. 46. Validity of acts of directors. 47. Appointment of directors to be voted on individually. 48. Removal of directors. 49. Prohibition of undischarged bankrupt acting as company officer etc of an ICAV. 50. Further provision regarding prohibition of undischarged bankrupt acting as company officer etc. of an ICAV. 51. Register of directors and secretaries. 52. Particulars relating to directors to be shown on all business letters of the ICAV. 53. Provisions as to assignment of office by directors. Chapter 2 Service Contracts 4

5 54. Prohibition of tax free payments to directors 55. ICAV may have directors with unlimited liability. 56. Power of ICAV to make liability of directors unlimited Chapter 3 Proceedings of Directors 57. Minutes of proceedings of meetings of company and directors Chapter 4 Members 58. Member 59. Register of Members 60. Index of members 61. Consequences of failure to comply with requirements as to register owing to agent s default 62. Rectification of register 63. Trusts not to be entered on the register 64. Register as evidence Chapter [5] General Meetings 65. General meetings 5

6 Chapter [6] Protection for Minority 66. Shareholder rights Part 6 Duties of Directors and Other Officers 67. Placeholder 68. Approval of ICAV necessary for payment by it to director for loss of office. 69. Approval of ICAV necessary for payment to director of compensation with transfer of property. 70. Duty of director to disclose to ICAV payments to be made to him in connection with transfer of shares in an ICAV. 71. Provisions supplementary to Sections Avoidance of provisions exempting officers and auditors of ICAV from liability. 73. Register of directors shareholdings. 74. General duty to make disclosure for the purposes of sections 73 and Duty of director to disclose his interest in contracts made by the ICAV. 76. Transactions Involving Directors: Interpretation 77. Connected persons 78. Shadows Directors 79. Prohibition of loans, etc. to directors and connected persons. 80. Civil Remedies for breaches of Section Contracts of employment of directors. 6

7 81A Directors to have regard to interests of employees. Part 7 Financial Statements Chapter 1 Accounting and Records 82. Keeping of Books of Account 83. Liability of officers of an ICAV to penalty where proper books of account not kept. 84. Personal liability of officers of an ICAV where proper books of account not kept 85. Duty of auditors if proper books of account not being kept Chapter 2 Statutory Financial Statements 86. Preparation of Annual Accounts Chapter 3 Directors Report (Chapter 9) 87. Directors' report to be attached to balance sheet and contents of such report. 88. Information to be included in directors' report. Chapter 4 Obligation to have accounts audited (Chapter 10) and Statutory Auditor s Report (Chapter 11) 7

8 89. Auditor Reports on Accounts 90. Consideration by auditors of consistency of directors' report with ICAV s accounts. 91. Duty of Auditors re suspected commission of an indictable offence 92. Auditors Chapter 5 Miscellaneous 93. Particulars of directors salaries and payments to be given in accounts. 94. Sub-fund accounts 95. Reports: voluntary revision Part 8 Charges and Debentures 96. Charges and Debentures Part 9 Reorganisation, Acquisition, Merger and Division 97. Schemes of Arrangement, Mergers, Divisions and other Reorganisations Part 10 Conversion and Migration 98. Conversions 8

9 99. Migration and De-Registration Part 11 Receivership 100. Receivership Part 12 Winding-up 101. Winding up Part 13 Strike-off and Restoration 102. Placeholder Part 14 Enforcement 103. Prosecution of Offences 104. Powers and Duties of the ODCE Part 15 Miscellaneous 105. Amendments to UCITS Regulations 106. Amendments to Central Bank Act 9

10 107. Tax Treatment Applicable to an ICAV 10

11 The provisions in these heads are based primarily on appropriate precedents from Irish company law and other legislation. Head 1 Citation This Act may be cited as [ ] Explanatory Note General citation provision. 11

12 Head 2 Commencement This Act comes into operation on [ ] Explanatory Note The commencement date will determine date legislation comes into effect. 12

13 Head 3 Interpretation Bank means the Central Bank of Ireland; Debenture includes debenture stock, bonds, debt securities, and any other form of transferable securitised debt securities of an ICAV whether constituting a charge on the assets of the ICAV or not, with the exception of securities which are equivalent to shares in companies or which, if converted or if the rights conferred by them are exercised, give rise to a right to acquire shares or securities equivalent to shares; dormant means in respect of any period during which no significant transaction occurs; ICAV means an Irish Collective Asset-management Vehicle; instrument of incorporation means [ ] management company means a company designated by an ICAV to undertake the management of the ICAV; Minister means the Minister for Finance; Principal Companies Act means the Companies Act 1963, as amended property means real or personal property of whatever kind (including securities); sub-fund means a separate portfolio of assets maintained by an ICAV in accordance with its instrument of incorporation; UCITS Regulations means the European Communities (Undertakings for Investment in Transferable Securities) Regulations 2011 (SI 352 of 2011) as amended; umbrella fund means an ICAV which has one or more sub-funds and which is authorised 13

14 by the Central Bank pursuant to section 10 of this Act. Explanatory Note This head sets out the defined terms used in the draft legislation. 14

15 Head 4 Limitation of liability (1) Any two or more persons, associated for any lawful purpose may, by subscribing their names to an instrument of incorporation and otherwise complying with the requirements of this Act relating to registration, form an incorporated ICAV, with limited liability. (2) Such an ICAV shall have the liability of its members limited by the instrument of incorporation to the amount, if any, unpaid on the shares respectively held by them (in this Act termed an ICAV limited by shares. Explanatory Note This heads reflects provisions in the Companies Acts. 15

16 Head 5 UCITS incorporated as ICAVs For the avoidance of doubt, UCITS may be constituted as ICAVs. Explanatory Note This head clarifies that UCITS may be established through the ICAV vehicle. 16

17 Head 6 Registration of ICAVs (1) An ICAV shall not carry on business in the State unless it has been registered as an ICAV in the Central Bank. (2) An application by an ICAV for the registration referred to in subsection (1) shall be made in writing to the Central Bank and contain such information as the Minister may prescribe in regulations made under this Act. (3) An ICAV shall not carry on business in the State unless it has been authorised to do so by the Central Bank on the basis of criteria approved by the Minister. (4) The Central Bank shall not authorise an ICAV to carry on business in the State unless the ICAV has paid up share capital which, in the opinion of the Central Bank will be sufficient to enable it to conduct its business effectively and meet its liabilities. (5) An application by an ICAV for the authorisation referred to in subsection (3) shall be made in writing to the Central Bank and contain such information as the Central Bank may specify for the purpose of determining the application (including such additional information as the Central Bank may specify in the course of determining the application). (6) The name of an ICAV is the name mentioned in the authorisation order made in respect of the ICAV or, if it changes its name in accordance with this Act and Bank rules, its new name. 1. (7) A person shall not carry on business on behalf of an ICAV, insofar as relates to the purchase or sale of the shares of the ICAV, unless the ICAV has been authorised in the manner referred to in this section this section. (8) An ICAV or other company incorporated outside the State which, if it were incorporated in the State, would be an ICAV to which this Act applies, shall not advertise or market its shares in any way in the State without the approval of the Central Bank, which approval may be subject to such conditions as the Central Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of so much of the business of ICAVs or companies of that type as is conducted in the State Explanatory Note 17

18 Subsection (1) provides that an ICAV cannot carry on business in Ireland unless properly registered and authorised under the Act. Subsection (2) provides for a dual registration / authorisation regime under which the ICAV is registered and authorised by the Central Bank. Subsections (3) and (4) prohibit unauthorised investment companies. Subsection (6) will prevent the carrying out of delegated acts on behalf of an ICAV unless the ICAV is properly authorised. Subsection (7) will prevent the marketing into Ireland of investment funds organised as corporate entities unless such marketing is done in accordance with Central Bank requirements. 18

19 Head 7 Registration by the Central Bank (1) Upon making an authorisation order by the Central Bank under section 10, the Central Bank must forthwith register: (a) the instrument of incorporation of the ICAV; (b) a statement of the address of the ICAV s head office; (c) a statement, with respect to each person named in the application for authorisation as director of the ICAV, of the particulars set out in section 9; and (d) a statement of the corporate name and registered or principal office of the person named in the application for authorisation as the depositary of the ICAV. (2) In this section any reference to the instrument of incorporation of an ICAV is a reference to the instrument of incorporation supplied for the purposes of section 10(1)(c). Explanatory Note This head sets out the documents to be registered by the Central Bank when the Central Bank makes an authorisation order. 19

20 Head 8 Applications for authorisation (1) Any application for an authorisation order in respect of a proposed ICAV (a) must be made in such manner as the Minister may prescribe in regulations made under this Act or in such manner as the Central Bank may direct; (b) must state with respect to each person proposed in the application as a director of the ICAV the particulars set out in section 9; (c) must state the corporate name and registered or principal office of the person proposed in the application as depositary of the ICAV; and (d) must contain or be accompanied by such other information as the Central Bank may reasonably require for the purpose of determining the application. (2) At any time after receiving an application and before determining it the Central Bank may require the applicant to furnish additional information. (3) Different directions may be given and different requirements imposed in relation to different applications. (4) Any information to be furnished to the Central Bank under this section must be in such form or verified in such manner as it may specify. (5) A person commits an offence if: (a) for the purposes of or in connection with any application under this section; or (b) in purported compliance with any requirement imposed on him by or under this section; 20

21 (c) he furnishes information which he knows to be false or misleading in a material particular or recklessly furnishes information which is false or misleading in a material particular. (6) A person guilty of an offence under subsection (5) is liable (a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both; (b) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both. Explanatory Note This head provides that the manner of the application for authorisation should be set out in regulations made by the Minister under the Act, or in notices issued by the Central Bank. The application must provide details of the proposed directors of the ICAV, the proposed depositary of the ICAV and such other information as the Central Bank may require in order to decide upon the application for authorisation. The Central Bank may request additional information at any time after receipt of the application and before it is determined. The head permits the Central Bank to impose different requirements in respect of different applications. The Central Bank may specify the form of the information to be provided to it, or the manner in which it should be verified. The head also provides that the provision of false or misleading information in an application for authorisation shall be an offence and sets out the penalties applicable to that offence. 21

22 Head 9 Particulars to be delivered with instrument of incorporation (1) Subject to sections 6 and 7, there shall be delivered to the Central Bank together with every instrument of incorporation of an ICAV delivered to it pursuant to section 7 of this Act a statement in the prescribed form containing the name and the particulars specified in subsection (2) of this section in relation to- (2) (a) the persons who are to be the first directors of the ICAV, (b) (c) the person who is, or the persons who are, to be the first secretary or joint secretaries of the ICAV, and the situation of the ICAV's registered office. (3) The particulars referred to in subsection (1) of this section are- (a) in relation to a person named as director of the ICAV concerned, all particulars which are, in relation to a director, required pursuant to section 51(2) to be contained in the register kept under that section, (b) (c) in relation to a person named as secretary, or as one of the joint secretaries, all particulars which are, in relation to the secretary or to each joint secretary, required pursuant to section 51(4) to be contained in the register kept under that section, and in relation to the registered office of the ICAV, the particulars which are required to be given to the Central Bank pursuant to [ ]. (3) The statement required to be delivered pursuant to this section shall be signed by or on behalf of the subscribers and shall be accompanied by a consent signed by each of the persons named in it as a director, secretary or joint secretary to act in that capacity. (4) Where the instrument of incorporation is delivered to the Central Bank pursuant to section 7 of this Act by a person as agent for the subscribers to the instrument of incorporation the statement required to be delivered to the Central Bank r pursuant to this section shall so specify and shall specify the name and address of the person by whom the instrument of incorporation is delivered. (5) The persons who are specified in the statement required to be delivered to the Central Bank pursuant to this section as the directors, secretary or joint secretaries of the ICAV to which the statement refers shall, on the incorporation of the ICAV, be deemed to have been appointed as the first directors, secretary or joint secretaries, as the case may be, of the ICAV, and any indication in any instrument of incorporation 22

23 delivered to the Central Bank with the instrument of incorporation specifying a person as a director or secretary of an ICAV shall be void unless such person is specified as a director or as secretary in the said statement. (6) If any of the persons named in the statement to be delivered pursuant to this section as directors of the ICAV concerned is a person who is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, that person shall ensure that that statement is accompanied by (but as a separate document from that statement) a statement in the prescribed form signed by him specifying- (a) (b) (c) the jurisdiction in which he is so disqualified, the date on which he became so disqualified, and the period for which he is so disqualified. (7) Sub-section (7) is without prejudice to sub-section (3) of this section or the requirements of any other enactment with regard to the registration of [companies]. Explanatory Note This head requires certain details to be sent to the Central Bank when the vehicle is being incorporated. It is only those directors and secretary for whom such information is provided that will be recognised as having been appointed to their respective positions. Should either the director or secretary be disqualified from acting in another state in such a position pursuant to the law of that other state, they must provide details regarding their disqualification at the same time as sending the above information. 23

24 Head 10 Authorisation (1) Where an application is duly made under section 8, the Central Bank may make an authorisation order in respect of an ICAV if: (a) (b) (c) it is satisfied that the ICAV will, on the coming into effect of the authorisation order, comply with the requirements in section 12; it is satisfied that the ICAV will, at that time, comply with the requirements of the Central Bank s notices and guidance notes; it has been provided with a copy of the proposed ICAV s instrument of incorporation and a certificate signed by a solicitor to the effect that the instrument of incorporation complies with Schedule [1] to this Act and with such of the requirements of the Central Bank s notices and guidance notes as relate to the contents of that instrument of incorporation; and (2) If the Central Bank makes an order under subsection (1), it must give written notice of the order to the applicant. (3) Subject to subsection (4), an application must be determined by the Central Bank before the end of the period of six months beginning with the date on which it receives a completed application. (4) Where the application relates to an ICAV which is a UCITS, it must be determined by the Central Bank before the end of two months beginning with the date on which it receives the application. (5) The Central Bank may determine an incomplete application if it considers it appropriate to do so and, if it does so, it must determine the application within the period of twelve months beginning with the date on which it first receives the application. (6) The applicant may withdraw his application, by giving the Central Bank written notice, at any time before the Central Bank determines it. (7) An authorisation order must specify the date on which it is to come into effect. (8) Schedule [1] to this Act makes provision with respect to the contents of the instrument of incorporation of an ICAV. Explanatory Note This head sets out the conditions under which the Central Bank will make an authorisation 24

25 order, and adds detail to the requirements referred to in section 8. The Central Bank will make the authorisation order where it is satisfied that the ICAV will comply with the requirements in section 12 and with the Central Bank s notices and guidance notes. The Central Bank must also be provided with a copy of the ICAV s instrument of incorporation and solicitor s certificate to the effect that the instrument of incorporation complies with the requirements of the Act and the Central Bank s notices and guidance notes. The Central Bank must give written notice to the applicant of the making of the authorisation order. The head provides that the application for authorisation must be decided upon by the Central Bank within six months of the date of receipt of the application. Where the application relates to an ICAV which is established as a UCITS, a shorter period of two months will apply. The Central Bank may also determine an incomplete application if it chooses to do so. Where it chooses to do so, it must determine the application with twelve months of the date of receipt of the application. An applicant may withdraw the application for authorisation at any time before the application is determined by the Central Bank by giving notice in writing to the Central Bank. The authorisation order will specify the date upon which it comes into effect. 25

26 Head 11 Effect of granting authorisation Immediately upon the coming into effect of an authorisation order, the body to which the authorisation order relates is incorporated as an ICAV (notwithstanding that, at the point of its incorporation by virtue of Section 10, the body will not have any shareholders or property). Such a body will be capable of exercising all of the functions of an ICAV with perpetual succession (common seal optional) but with such liability on the part of the members to the assets of the ICAV, in the event of its being wound up, as is mentioned in the Act. Explanatory Note This head provides that an authorised ICAV may carry out its functions notwithstanding the fact that it is newly incorporated. 26

27 Head 12 Requirements for authorisation (1) The requirements referred to in section 10(1)(a) are as follows. (2) The ICAV and its instrument of incorporation must comply with the requirements of this Act and the Central Bank s notices and guidance notes. (3) The head office of the ICAV must be situated in Ireland. (4) The ICAV must have at least two directors. (5) The directors of the ICAV must be fit and proper persons to act as such. (6) If the ICAV has more than two directors, the combination of their experience and expertise must be such as is appropriate for the purposes of carrying on the business of the ICAV. (7) The person appointed as the depositary of the ICAV. must be a body corporate incorporated in the Ireland or another EEA State; (a) must have a place of business in Ireland; (b) must have its affairs administered in the country in which it is incorporated; (c) must be an authorised person; (d) and must have permission under section 28(3) to act as the depositary of an ICAV; 27

28 (e) must be independent of the ICAV and of the persons appointed as directors of the ICAV. (8) The name of the ICAV must not be undesirable or misleading. (9) The aims of the ICAV must be reasonably capable of being achieved. (10) The ICAV must meet one or both of the following requirements: (a) (b) shareholders are entitled to have their shares redeemed or repurchased upon request at a price related to the net value of the scheme property and determined in accordance with the ICAV s instrument of incorporation and Bank notices and guidance notes; or shareholders are entitled to sell their shares on an investment exchange at a price not significantly different from that mentioned in sub-subsection (a). Explanatory Note This head sets out the requirements to be met before an authorisation order will be made by the Central Bank and adds detail to the requirements referred to in section 10. These include that the ICAV and its instrument of incorporation must comply with the Act and with the Central Bank s notices and guidance notes. the head office of the ICAV must be located in Ireland, and the ICAV must have at least 2 directors who are fit and proper person to act as a director. The head also sets out the requirements which apply to the depositary of the ICAV. The name of the ICAV must not be undesirable or misleading, and the aims of the ICAV must be reasonably capable of being achieved. The shareholders of the ICAV must be entitled to redeem their shares on request at a price related to the net value of the scheme property or be entitled their shares on an investment exchange, or both. 28

29 Head 12A Requirement for ICAV to have a registered office Placeholder Explanatory Note Standard text to be applied. 29

30 Head 13 Powers of the Central Bank (1) Notwithstanding any other powers which may be available to the Central Bank under any other enactment, order or regulation, the Central Bank may impose such conditions for the granting of an authorisation to an ICAV under section 10 as it considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of the ICAV. (2) Conditions imposed under subsection (1) may be imposed generally, or by reference to particular classes of ICAV or business (including, but not limited to, whether or not an ICAV is a designated ICAV), or by reference to any other matter the Central Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of the ICAV. (3) The power to impose conditions referred to in subsection (1) shall include a power to impose such further conditions from time to time as the Central Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of ICAV. (4) Without prejudice to the generality of subsections (1), (2) and (3), conditions imposed by the Central Bank on an ICAV may make provision for any or all of the following matters: (a) the prudential requirements of the investment policies of the ICAV, (b) prospectuses and other information disseminated by the ICAV, (c) the vesting of the assets or specified assets of the ICAV in a person nominated by the Central Bank with such of the powers or duties of a trustee with regard to the ICAV as are specified by the Central Bank, 30

31 (d) such other supervisory and reporting requirements and conditions relating to its business as the Central Bank considers appropriate and prudent to impose on the ICAV from time to time for the purposes referred to in the aforesaid subsections, (e) supervisory and reporting requirements and conditions relating to the business of a management ICAV as the Central Bank considers appropriate or prudent to impose on the management ICAV from time to time. (5) A ICAV shall comply with any conditions relating to its authorisation or business imposed by the Central Bank. Explanatory Note Subsection (1) clarifies the powers of the Central Bank with regard to the authorisation of an ICAV, including the ability to impose conditions on any such authorisation. Subsection (2) provides further clarification of powers of the Central Bank to impose conditions which are of general application or specific to certain categories of ICAV. Subsection (3) provides further clarification of powers of the Central Bank to impose conditions which are appropriate and prudent to proper regulation of ICAVs. Subsection (4) deals with specific matters, in respect of which the Central Bank may impose conditions relating to ICAVs, such as investment policies, prospectuses and reporting requirements. 31

32 Head 14 Representations against refusal of authorisation (1) If the Central Bank proposes to refuse an application made under section 8, it must give the applicant a warning notice. (2) If the Central Bank decides to refuse the application: (a) it must give the applicant a decision notice; and (b) the applicant may appeal the decision in accordance with section 17(2). Explanatory Note This head provides that the Central Bank must give the applicant written notice if it proposes to refuse an application for authorisation. If the Central Bank refuses an application, it must give the applicant a decision notice and the applicant may appeal the decision. These provisions allow for an appeal to the Financial Services Appeals Tribunal rather than the High Court. 32

33 Head 15 Certificates (1) If an ICAV which complies with the conditions necessary to enable it to enjoy the rights conferred by [the UCITS directive] so requests, the Central Bank may issue a certificate to the effect that the ICAV complies with those conditions. (2) Such a certificate may be issued on the making of an authorisation order in respect of the ICAV or at any subsequent time. Explanatory Note This head provides that where an ICAV complies with the conditions necessary to enjoy the rights conferred by the UCITS directive, it may request the Central Bank to issue a certificate to the effect that it complies with those conditions. This certificate can be issued upon authorisation or requested by the ICAV at any later date. 33

34 Head 16 Ending of authorisation (1) The Central Bank may revoke an authorisation order if it appears to it that: (a) (b) any requirement for the making of the order is no longer satisfied; the ICAV, any of its directors or its depositary: (c) (i) (ii) has contravened any relevant provision; or has, in purported compliance with any such provision, knowingly or recklessly given the Central Bank information which is false or misleading in a material particular; (d) (e) no regulated activity has been carried on in relation to the ICAV for the previous twelve months; or it is desirable to revoke the authorisation order in order to protect the interests of shareholders or potential shareholders in the ICAV. (2) For the purposes of subsection (1)(d), the Central Bank may take into account any matter relating to (a) (b) (c) (d) (e) (f) (g) the ICAV or its depositary; any director or controller of the depositary; any person employed by or associated, for the purposes of the business of the ICAV, with the ICAV or its depositary; any director of the ICAV; any person exercising influence over any director of the ICAV or its depositary; any body corporate in the same group as any director of the ICAV or its depositary; any director of any such body corporate; 34

35 (h) (i) any person exercising influence over any such body corporate; any person who would be such a person as is mentioned in section 9(3) were it to apply to a director as it applies to a proposed director. (3) Before revoking any authorisation order that has come into effect, the Central Bank must ensure that such steps as are necessary and appropriate to secure the winding up of the ICAV (whether by the court or otherwise) have been taken. Explanatory Note This head sets out the conditions under which the Central Bank may revoke an authorisation order. These conditions include that where the ICAV no longer satisfies any of the requirements for making the order or where the ICAV, one of its directors or its depositary has contravened a relevant provision or provided false or misleading information. Authorisation may also be revoked where the ICAV has not carried out any regulated activity for the previous twelve months. The Central Bank may also revoke an authorisation where it is desirable in order in order to protect the interests of shareholders or potential shareholders in the ICAV. The head sets out the matters which the Central Bank may take into account in reaching this determination. The Central Bank must ensure that such steps as are necessary and appropriate to secure the winding up of the ICAV have been taken before revoking an authorisation order. 35

36 Head 17 Bank to give reasons for decisions, etc (1) The Central Bank shall give reasons in writing for any decision to refuse authorisation, or any negative decision taken in the implementation of the general measures adopted in application of this Act, and communicate them to applicants. (2) Any decision taken under the laws, regulations or administrative provisions adopted in accordance with this Act shall be properly reasoned. The following decisions of the Central Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942: (a) decision refusing an application for authorisation under section 8; (b) a failure to decide an application within the period prescribed by section 10; (c) decision revoking or refusing an application to revoke an authorisation. Explanatory Note This head provides that the Central Bank shall give reasons in writing to the applicant for any decision to refuse authorisation or any negative decision made under the Act. The head sets out the decisions of the Central Bank which may be appealed to the Financial Services Appeals Tribunal established under Part VIIA of the Central Bank Act

37 Head 18 Filings to be made in Bank The ICAV shall make such filings in the Central Bank [as the Minister may provide in regulations made under this Act or] as the Central Bank may provide in notices or guidance notes. Explanatory Note Self Explanatory 37

38 Head 19 Approval of names by Registrar of Companies (1) Where, in respect of a proposed ICAV, it appears to the Central Bank that the requirements of section 20(1)(a) to (c) are or will be met, the Central Bank must notify the Companies Registration Office of the name by which it is proposed that the ICAV should be incorporated. (2) Every ICAV must obtain the Central Bank s approval to any proposed change in the name by which the ICAV is incorporated and the Central Bank must notify the Companies Registration Office of the proposed name. (3) If it appears to the Companies Registration Office that the provisions of section 20(1) are not contravened in relation to the proposed name, it must notify the Central Bank to that effect. Explanatory Note This head provides that the Central Bank must approve any change of name and must notify the Companies Registration Office of any such change of name. 38

39 Head 20 Prohibition of registration of ICAVs by undesirable names No ICAV shall be registered by a name which, in the opinion of the Registrar of Companies, is undesirable but an appeal shall lie to the court against a refusal to register. Explanatory Note The head provides that an ICAV will not register a name which is deemed undesirable by the Companies Registration Office. The ICAV has the option to appeal a decision of the Companies Registration Office that any particular name is deemed undesirable. See comments on previous Head. 39

40 Head 21 Bank's notification to Registrar of Companies of ICAV names Upon making an authorisation order in respect of an ICAV or upon approving any change in the name of such an ICAV, the Central Bank must notify the Registrar of Companies of the name by which the ICAV is incorporated or, as the case may be, of the ICAV s new name. Explanatory Note This head requires the Central Bank to inform the Companies Registration Office of the name any newly authorised ICAV, or of any change in name of an existing authorised ICAV.. 40

41 Head 22 The Central Bank s approval for certain changes in respect of an ICAV (1) No alteration in the instrument of incorporation of an authorised ICAV or change in the name of such scheme shall be made without approval of the Central Bank and any person who makes an alteration or change as aforesaid without such approval shall be guilty of an offence. (2) Within 21 days after the making of an alteration in the instrument of incorporation of an authorised ICAV or a change in the name of such ICAV the ICAV shall deposit with the Central Bank a copy of the instrument of incorporation as so altered or containing the alterations or (as the case may be) particulars of the change in name. (3) Where an ICAV fails to comply with subsection (2), it shall be guilty of an offence. Explanatory Note The head provides that the ICAV must obtain approval for any change in its instrument of incorporation. 41

42 Head 23 Execution of documents (1) The following provisions have effect with respect to the execution of documents by an ICAV. (2) A document is executed by the ICAV by the affixing of its common seal. (3) An ICAV need not have a common seal, however, and the following provisions of this section apply whether it does or not. (4) A document has the same effect as if executed under the common seal of the ICAV if expressed to be executed by the ICAV and if it is signed on behalf of the ICAV (a) by two authorised signatories, or (b) by a director of the ICAV in the presence of a witness who attests the signature. (5) The following are authorised signatories for the purposes of subsection (4): (a) every director of the ICAV; and (b) the secretary (or any joint secretary) of the ICAV. (6) In favour of a purchaser, a document is deemed to have been duly executed by an ICAV if it purports to be signed in accordance with subsection (4). (7) In subsection (6), a purchaser means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property. 42

43 (8) Where a document is to be signed by a person on behalf of more than one ICAV, it is not duly signed by that person for the purposes of this section unless he signs it separately in each capacity. (9) References in this section to a document being (or purporting to be) signed by a director or secretary are to be read, in a case where that office is held by a firm, as references to its being (or purporting to be) signed by an individual authorised by the firm to sign on its behalf. (10) A document is validly executed by an ICAV as a deed for the purposes of section 64(4) of the Land and Conveyancing Law Reform Act 2009 if, and only if, (a) it is duly executed by the ICAV in accordance with subsection (4); and (b) it is delivered as a deed. (11) For the purposes of subsection (10)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved. Explanatory Note This head deals with the execution of documents by an ICAV. The head provides that a document shall be deemed to be validly executed if it is executed under the common seal of the ICAV. However, an ICAV will not be required to have a common seal and a document will be deemed to be validly executed if it is executed by two authorised signatories, or by a director of the ICAV in the presence of a witness who attests the signature. The authorised signatories are defined as the directors of the ICAV or the secretary of the ICAV. The head also provides that a deed shall be validly executed for the purposes of the Land and Conveyancing Law Reform Act 2009 if it is executed in accordance with the head and it is delivered as a deed. 43

44 Head 24 Common seal (1) AN ICAV may have a common seal, but need not have one. (2) AN ICAV which has a common seal shall have its name engraved in legible characters on the seal. (3) An officer of an ICAV, or a person acting on behalf of an ICAV, commits an offence if he uses, or authorises the use of, a seal purporting to be a seal of the ICAV on which its name is not engraved as required by subsection (2). (4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding [ ]. Explanatory Note This head sets out the requirements in relation to the ICAV s common seal, while making it clear that it is not a requirement for an ICAV to have a common seal. 44

45 Head 25 Official seal for share certificates (1) An ICAV which has a common seal may have, for use for sealing shares issued by the ICAV and for sealing documents creating or evidencing shares so issued, an official seal which is a facsimile of its common seal with the addition on its face of the word securities. (2) The official seal when duly affixed to a document has the same effect as the ICAV s common seal Explanatory Note This head provides that an ICAV may have an official seal for the purpose of sealing shares issued by the ICAV or for sealing documents creating or evidencing shares so issued. 45

46 Head 26 Segregated liability of ICAV sub-funds Notwithstanding any statutory provision or rule of law to the contrary, but subject to subsection (2), any liability incurred on behalf of or attributable to any sub-fund of an umbrella fund shall be discharged solely out of the assets of that sub-fund, and no umbrella fund nor any director, receiver, examiner, liquidator, provisional liquidator or other person shall apply, nor be obliged to apply, the assets of any such sub-fund in satisfaction of any liability incurred on behalf of or attributable to any other sub-fund of the same umbrella fund, whether such liability was incurred before, on or after the date this section commences. Explanatory Note This head provides for segregated liability of ICAV sub-funds. Sub-funds are separate portfolios of assets maintained by funds (which are called umbrella funds ). While not regarded as separate legal entities from the umbrella fund, sub-funds will be afforded the benefit of limited liability. Where a sub-fund of the ICAV incurs a liability, that liability may only be discharged out of the assets of that sub-fund and the assets of that sub-fund shall not be applied to discharge a liability incurred by any other sub-fund of the umbrella fund. 46

47 Head 27 Requirements to be complied with by, and other matters respecting, an umbrella fund to which section 26 applies (1) Every umbrella fund to which section 26 applies shall be required to include the words An umbrella fund with segregated liability between sub-funds in all its letterheads and in any agreement entered into in writing with a third party, and shall be obliged to disclose that it is a segregated liability umbrella fund to any third party with which it enters into an oral contract. (2) There shall be implied in every contract, agreement, arrangement or transaction entered into by an umbrella fund to which section 26 applies the following terms, that- (a) the party or parties contracting with the umbrella fund shall not seek, whether in any proceedings or by any other means whatsoever or where-so-ever, to have recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund, (b) if any party contracting with the umbrella fund shall succeed by any means whatsoever or where-so-ever in having recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund, that party shall be liable to the umbrella fund to pay a sum equal to the value of the benefit thereby obtained by it, and (c) if any party contracting with the umbrella fund shall succeed in seizing or attaching by any means, or otherwise levying execution against, any assets of a sub-fund of an umbrella fund in respect of a liability which was not incurred on behalf of that sub-fund, that party shall hold those assets or the direct or indirect proceeds of the sale of such assets on trust for the umbrella fund and shall keep those assets or proceeds separate and identifiable as such trust property. (3) All sums recovered by an umbrella fund as a result of any such trust as is described in subsection (2)(c) shall be credited against any concurrent liability pursuant to the 47

48 implied term set out in subsection (2)(b). (4) Any asset or sum recovered by an umbrella fund pursuant to the implied term set out in subsection (2)(b) or (c) or by any other means whatsoever or where-so-ever in the events referred to in those subsections shall, after the deduction or payment of any costs of recovery, be applied so as to compensate the sub-fund affected. (5) In the event that assets attributable to a sub-fund to which section 26 applies are taken in execution of a liability not attributable to that sub-fund, and in so far as such assets or compensation in respect thereof cannot otherwise be restored to that sub-fund affected, the directors of the umbrella fund, with the consent of the custodian, shall certify or cause to be certified, the value of the assets lost to the sub-fund affected and transfer or pay from the assets of the sub-fund or sub-funds to which the liability was attributable, in priority to all other claims against such sub-fund or sub-funds, assets or sums sufficient to restore to the sub-fund affected, the value of the assets or sums lost to it. (6) Without prejudice to the other provisions of section 26 and this section, a sub-fund of an umbrella fund is not a legal person separate from that umbrella fund, but an umbrella fund may sue and be sued in respect of a particular sub-fund and may exercise the same rights of set-off, if any, as between its sub-funds as apply at law in respect of companies and the property of a sub-fund is subject to orders of the court as it would have been if the sub-fund were a separate legal person. (7) Nothing in section 26 and this section shall prevent the application of any enactment or rule of law which would require the application of the assets of any sub-fund in discharge of some or all of the liabilities of any other sub-fund on the grounds of fraud or misrepresentation and, in particular, by reason of the application of - (a) section [ ]; and (b) section [ ]. (8) A sub-fund may be wound up in accordance with the provisions of sections [ ] and [ ] as if the sub-fund were a separate ICAV, provided always that the appointment of the liquidator or any provisional liquidator and the powers, rights, duties and responsibilities of the liquidator or any provisional liquidator shall be confined to the sub-fund or sub-funds which is or are being wound up. (9) For the purposes of subsection (8), all references made in sections [ ] and [ ]and all relevant provisions of this Act relating to the winding up of an ICAV pursuant to sections [ ] and [ ] to one of the following words shall be construed as follows- 48

49 (a) ICAV shall be read as referring to the sub-fund or sub-funds which is or are being wound up; (b) a member or members shall be read as referring to the holders of the shares in that sub-fund or sub-funds; and (c) creditors shall be read as referring to the creditors of that sub-fund or subfunds. Explanatory Note This head provides that an ICAV must disclose on its letterhead and any agreement it enters into that it has segregated liability between sub-funds. This has been included to provide a certain level of investor protection. The head also sets out certain implied terms that will be part of any contract the ICAV enters into including an implied trust where a party contracting with the umbrella fund succeeds in seizing or attaching, or otherwise levying execution against, any assets of a sub-fund of an umbrella fund in respect of a liability which was not incurred on behalf of that sub-fund. The head provides that a sub-fund of an umbrella fund is not a legal person separate from the umbrella fund, but an umbrella fund may sue and be sued in respect of a particular sub-fund. 49

50 Head 28 Safekeeping of ICAV property (1) Subject to subsection (2), all the assets or specified assets of an ICAV must be entrusted for safekeeping to a person appointed for the purpose (a Depositary ). (2) Nothing in subsection (1) prevents a Depositary from: (a) entrusting to a third party all or some of the assets in its safekeeping; or (b) in a case falling within sub-subsection (a), authorising the third party to entrust all or some of those assets to other specified persons. (3) The Central Bank may impose such conditions as to eligibility, powers, duties and liabilities of the depositary of an ICAV as it may consider appropriate and prudent from time to time. Explanatory Note This provision sets out the requirement that the assets of the ICAV must be held by an appointed depositary (also known as a custodian or trustee). This relationship is heavily regulated by the relevant European Directives and Irish funds law. 50

51 Head 29 Shareholder rights of action not affected Nothing in this Act shall limit the rights of shareholders (if any) to take proceedings directly against the Depositary as specified in [the UCITS regulations and [AIFMD] as implemented into Irish law]. Explanatory Note This provision clarifies that the fact that an ICAV, which is the entity which has the legal relationship with the depositary, is a separate legal personality does not mean that shareholders will not have a right to take action against the depositary directly where those rights are provided for under other legislation. 51

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