(a) any person in accordance with whose directions or instructions the directors of an ICAV are accustomed to act shall be deemed to be a director of the ICAV; (b) a person shall be deemed to hold, or to have an interest in or right over, any shares or debentures in which the person has an interest jointly or in common with any other person or a limited, reversionary or contingent interest or an interest as the object of a discretionary trust; (c) a person shall be deemed to hold, or to have an interest or right in or over any shares or debentures if a body corporate other than the ICAV holds them or has that interest or right in or over them, and either— (i) that body corporate or its directors are accustomed to act in accordance with the person’s directions or instructions; or (ii) the person is entitled to exercise or control the exercise of one-third or more of the voting power at any general meeting of that body corporate.
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Disclosure for purposes of section 81 82. (1) It shall be the duty of every director of an ICAV to give notice in writing to the ICAV of such matters relating to himself or herself as may be necessary for the purposes of section 81 .
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(2)If any such notice is not given at a meeting of directors, the director or secretary, as the case may be, giving it shall take reasonable steps to secure that it is brought up and read at the next meeting of the directors after it is given.
\n
(3)A person who fails to comply with this section commits a category 3 offence.
\n
Declaration of interest in contracts 83. (1) It shall be the duty of a director of an ICAV who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the ICAV to declare the nature of his or her interest at a meeting of the directors of the ICAV.
\n
(2)Subsection (1) does not apply in relation to an interest that cannot reasonably be regarded as likely to give rise to a conflict of interest.
\n
(3)The declaration required by this section to be made by a director shall— (a) in the case of a proposed contract, be made at the meeting of the directors at which the question of entering into the contract is first taken into consideration, or if the director was not at the date of that meeting interested in the proposed contract, at the next meeting of the directors held after he or she became so interested, (b) in a case where the director becomes interested in a contract after it is made, be made at the first meeting of the directors held after the director becomes so interested.
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(4)Subject to subsection (5), for the purposes of this section, a general notice given to the directors of an ICAV by a director to the effect that— (a) he or she is a member of a specified ICAV, company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with that ICAV, company or firm, or (b) he or she is to be regarded as interested in any contract which may after the date of the notice be made with a specified person who is connected with him or her (within the meaning of section 77 ), shall be deemed to be a sufficient declaration of interest in relation to any such contract.
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(5)No such notice such as is mentioned in subsection (4) shall be of effect unless either it is given at a meeting of the directors or the director takes reasonable steps to secure that it is brought up and read at the next meeting of the directors after it is given.
\n
(6)This section applies in relation to a shadow director of an ICAV as it applies in relation to a director of an ICAV, except that the shadow director shall declare his or her interest, not at a meeting of the directors but by a notice in writing to the directors which is either— (a) a specific notice given before the date of the meeting at which, if he or she had been a director, the declaration would be required to be given, or (b) a notice which under subsection (4) is deemed to be a sufficient declaration of that interest or would fall to be so treated apart from subsection (5), and section 88 shall have effect as if the declaration had been made at the meeting in question and had accordingly formed part of the proceedings at that meeting.
\n
(7)A copy of every declaration made and notice given in pursuance of this section shall, within 3 days after the date of the making or giving of it, be entered in a book kept by the ICAV for this purpose.
\n
(8)The book shall be open for inspection without charge by any director, secretary, auditor or member of the ICAV at the registered office of the ICAV and shall be produced at— (a) every general meeting of the ICAV, and (b) any meeting of the directors if any director so requests in sufficient time to enable the book to be available at the meeting.
\n
(9)An ICAV shall, if required by the Director of Corporate Enforcement, produce to the Director for inspection the book kept by it in accordance with subsection (7) and shall give the Director such facilities for inspecting and taking copies of the contents of the book as the Director may require.
\n
(10)If an ICAV fails to comply with subsection (7), (8) or (9) the ICAV and any officer of it who is in default commits a category 3 offence; and if any inspection or production required under any of those subsections is refused, the High Court may by order compel an immediate inspection or production.
\n
(11)Any director who fails to comply with this section commits a category 3 offence.
\n
(12)Nothing in this section shall be taken to prejudice the operation of any enactment or rule of law restricting directors of an ICAV from having any interest in contracts with the ICAV.
\n
(13)Any reference in this section to a contract: (a) shall be read as excluding a contract the decision as to whether to enter into which is taken otherwise than by the board of directors or a committee of which the director concerned is a member; (b) shall be read as including a transaction or arrangement whether or not constituting a contract (but subject to a similar limitation as that imposed by paragraph (a)).
\n
(14)For the purposes of this section a transaction or arrangement of a kind described in section 75 made by an ICAV for, or for a person connected with, a director of the ICAV shall, if it would not otherwise be so treated (and whether or not prohibited by that section), be treated as a transaction or arrangement in which that director is interested.
\n
Breaches of certain duties: liability to account and indemnify 84. (1) Subject to section 85 , where a director of an ICAV acts in breach of his or her duty unde r section 79
\n
(1)(a), (c), (d), (e), (f) or (g), he or she shall be liable to do either or both (as the corresponding common law rule or equitable principle relating to bodies corporate with respect to the matter would have required) of the following things: (a) account to the ICAV for any gain which he or she makes directly or indirectly from the breach of duty; (b) indemnify the ICAV for any loss or damage resulting from that breach.
\n
(2)Subsection (1) is without prejudice to— (a) the ICAV’s right at common law to claim damages for breach of duty, or (b) the ICAV’s right to make an application seeking the grant of equitable relief, but subsection (1) and this subsection shall not be read as having the combined effect of enabling the ICAV to be afforded more compensation for any damage or injury, or more protection of any proprietary right, than is just and equitable in all the circumstances.
\n
Power of court to grant relief to officers of ICAV 85. (1) This section applies to any action for negligence, default, breach of duty or breach of trust against an officer of an ICAV.
\n
(2)In proceedings to which this section applies the court hearing the proceedings has the power of granting relief provided under subsection (3) if it appears to the court that the officer is or may be liable in respect of the negligence, default, breach of duty or breach of trust (the “wrong concerned”) but that he or she has acted honestly and reasonably and that, having regard to all the circumstances of the case (including those connected with his or her appointment), he or she ought fairly to be excused for the wrong concerned.
\n
(3)The power referred to in subsection (2) is to relieve the officer, either wholly or partly, from his or her liability in respect of the wrong concerned, on such terms as the court may think fit.
\n
Restrictions on directors of insolvent ICAVs 86. (1) The provisions of Chapter 3 of Part 14 of the Companies Act 2014 , and the other provisions of that Act relating to restrictions on directors of an insolvent company (within the meaning of section 818), have effect in accordance with subsection (2).
\n
(2)Those provisions have effect as if— (a) the following references: (i) the reference to a company referred to in section 819(6) in the definition of “company” in section 818(1) ; (ii) the references to a company in section 818(3) ; (iii) the final 3 references to a company in section 819(1) ; (iv) the references to an investment company in section 819(5) ; (v) the references to a company in sections 821(1) (a) and (b), 825(1) and (2) and 836; (vi) the references to a company in the definition of “restriction” in section 849; (vii) the references to a company in sections 853(5), 855(1), 858 and 859, included an ICAV, and (b) the reference in section 828(2) to the constitution of a company included the instrument of incorporation of an ICAV.
\n
(3)The provisions of the Companies Act 2014 mentioned in subsection (1) apply, subject to necessary modifications and to the specific modifications specified in subsection (4), in relation to directors of an insolvent ICAV as if they were directors of an insolvent investment company.
\n
(4)The modifications are that— (a) references to a company in the definitions of “director of an insolvent company” and “insolvent company” in subsection (1) of section 818 and subsection (2) of that section are to an ICAV, (b) references to the Registrar are to the Bank, (c) the reference to prescribed particulars in sections 819(7) and 823(2), and to the prescribed form and manner in section 819(7), are to particulars, and to the form and manner, specified by the Bank, and (d) the reference in section 823(5) to section 894 is to section 14 of this Act.
\n
Disqualification of directors etc.
\n
87.(1) The provisions of Chapter 4 of Part 14 of the Companies Act 2014 , and the other provisions of that Act relating to the disqualification of a person from being appointed or acting as a director or other officer, statutory auditor, receiver or liquidator, or being in any way (whether directly or indirectly) concerned or taking part in the promotion, formation or management of a company, have effect in accordance with subsection (2).
\n
(2)Those provisions have effect as if— (a) in the definition of “company” in section 837 after “Act” there were inserted “(including an Irish Collective Asset-management Vehicle)”, (b) in the definition of “relevant requirement” in that section the reference to that Act included this Act and the reference to the Registrar included the Bank, (c) the references to a company within the meaning of section 819(6) in sections 838, 848, 849 and 851 included an ICAV, (d) the reference to that Act in section 839(1) (a) included this Act, (e) in section 840— (i) the references to section 149(8) included section 65
\n
(6)of this Act, (ii) the references to section 150(1) included section 66
\n
(1)of this Act, (iii) the reference to section 150(3) included section 66
\n
(3)of this Act, and (iv) the references to the Registrar included the Bank, (f) in section 841— (i) the references to section 23 included section 11
\n
(3)(a)(ii) of this Act, (i) the references to section 150(2) included section 66
\n
(2)of this Act, and (ii) the reference to section 149(8) included section 65
\n
(6)of this Act, (g) in section 842— (i) the reference to section 286 included section 114 of this Act, (ii) the reference to section 727 included section 157 of this Act, (iii) the reference to Chapter 1 of Part 12 included Chapter 1 of Part 11 of this Act, and (iv) the reference to section 733 included section 163 of this Act, (h) in section 844(3) the reference to the Registrar included the Bank, (i) in section 846 the reference to the Director of Corporate Enforcement included the Bank, (j) in section 851(3) the references to the Registrar included the Bank, (k) the references in sections 855(1), 858, 859 and 862 to a company included an ICAV, (l) in section 863(2), in the case of an offence in relation to an ICAV— (i) the reference to the Registrar were a reference to the Bank, and (ii) the reference to prescribed particulars being given at such time and in such form and manner as may be prescribed were to particulars specified by the Bank being given at such time and in such form and manner as may be so specified, and (m) in section 864 the references to the Registrar included the Bank.
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PART 5
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Meetings Minutes of meetings 88. (1) An ICAV shall as soon as may be cause minutes of all proceedings of general meetings of the ICAV and all proceedings at meetings of its directors or committees of directors to be entered in books kept for that purpose.
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(2)Any such minute if purporting to be signed by the person chairing the meeting, or by the person chairing the next following meeting, shall be evidence of the proceedings.
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(3)Where minutes have been made in accordance with this section of the proceedings at any general meeting of the ICAV or meeting of directors or committee of directors, then, until the contrary is shown, the meeting shall be deemed to have been duly held and convened, and all proceedings at the meeting to have been duly had, and all appointments of directors or liquidators shall be deemed to be valid.
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(4)An ICAV shall, if required by the Director of Corporate Enforcement, produce to the Director for inspection the book or books kept in accordance with subsection (1) and shall give to the Director such facilities for inspecting and taking copies of the contents of the book or books as the Director may require.
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(5)If an ICAV fails to comply with subsection (1) or (4), the ICAV and any officer of it who is in default commits a category 3 offence.
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Annual general meetings 89. (1) Subject to subsections (2) and (4), an ICAV shall in each year hold a general meeting (in this Act referred to as an “annual general meeting”) in addition to any other meetings, whether general or otherwise, it may hold in that year.
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(2)If an ICAV holds its first annual general meeting within 18 months after the date on which the registration order made by the Bank in respect of the ICAV comes into operation,subsection (1) does not require the ICAV to hold any other meeting as its annual general meeting in the year of its incorporation or in the following year.
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(3)Subject to subsections (2) and (4), not more than 15 months may elapse between the date of one annual general meeting of an ICAV and the date of the next.
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(4)The directors of an ICAV may elect to dispense with the holding of an annual general meeting by giving 60 days’ written notice to all of the ICAV’s shareholders.
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(5)An election under subsection (4) has effect for the year in which it is made and subsequent years, but does not affect any liability already incurred by reason of default in holding an annual general meeting.
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(6)But where an election under subsection (4) has effect for a year— (a) one or more members of the ICAV holding, or together holding, not less than 10 per cent of the voting rights in the ICAV, or (b) the auditor of the ICAV, may require the ICAV to hold an annual general meeting in that year by giving notice in writing to the ICAV in the previous year or at least one month before the end of that year and the ICAV shall hold the required meeting.
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(7)Annual general meetings of an ICAV shall be convened in accordance with the ICAV’s instrument of incorporation.
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(8)If an ICAV fails to comply with this section, the ICAV and any officer of it who is in default commits a category 3 offence.
\n
Extraordinary general meetings 90. (1) All general meetings of an ICAV, other than annual general meetings, are to be known as “extraordinary general meetings”.
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(2)The directors of an ICAV may, whenever they think fit, convene an extraordinary general meeting.
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(3)If at any time in the case of an ICAV there are not sufficient directors capable of acting to form a quorum, any director or member of the ICAV may convene an extraordinary general meeting of the ICAV in the same manner as nearly as possible as that in which meetings may be convened by the directors.
\n
Convening of extraordinary general meetings by members 91. (1) The rights conferred by subsection (2) on a member or members of an ICAV have effect, except where the instrument of incorporation of the ICAV provides otherwise, and the rights conferred by subsections (3) to (7) on a member or members of an ICAV (and the corresponding duties on the part of its directors) have effect despite anything in the instrument of incorporation of the ICAV.
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(2)One or more members of an ICAV holding, or together holding, at any time not less than 50 per cent (or such other percentage as may be specified in the instrument of incorporation) of the voting rights in the ICAV may convene an extraordinary general meeting of the ICAV.
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(3)The directors of an ICAV shall, at the request of one or more members holding, or together holding, at the date of the making of the request, not less than 10 per cent of the voting rights in the ICAV, proceed to convene an extraordinary general meeting of the ICAV.
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(4)The request shall state the objects of the meeting and shall be signed by those making the request and deposited at the registered office of the ICAV and may consist of several documents in like form each signed by one or more of those making the request.
\n
(5)If the directors do not within 21 days after the date of the deposit of the request proceed to convene a meeting to be held within 2 months after that date, those making the request, or any of them representing more than 50 per cent of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held more than 3 months after the date the request was first made.
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(6)Any reasonable expenses incurred by those making the request by reason of the failure of the directors duly to convene a meeting shall be repaid to those making the request by the ICAV and any sum so repaid shall be retained by the ICAV out of any sums due or to become due from the ICAV by way of fees or other remuneration in respect of their services to such of the directors as were in default.
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(7)For the purposes of subsections (3) to (6), the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such due notice of it.
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(8)A meeting convened under subsection (2) or (5) shall be convened in the same manner as nearly as possible as that in which meetings are to be convened by directors.
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PART 6
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Charges and Debentures
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Chapter 1
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Interpretation Definitions 92. (1) In this Part— “charge”, in relation to an ICAV, means a mortgage or a charge, in an agreement (written or oral), that is created over an interest in any property of the ICAV (and in section 93
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(8)and sections 98 to 103 includes a judgment mortgage) but does not include a mortgage or a charge, in an agreement (written or oral), that is created over an interest in— (a) cash, (b) money credited to an account of a financial institution, or any other deposits, (c) shares, bonds or debt instruments, (d) units in collective investment undertakings or money market instruments, or (e) claims and rights (such as dividends or interest) in respect of any thing referred to in any of the foregoing paragraphs; “property”, in relation to an ICAV, includes any assets or undertaking of the ICAV.
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(2)Any exclusion provided in subsection (1) to what is defined in that subsection as constituting a “charge” may be varied by order made by the Minister if the Minister considers that it is necessary or expedient to do so in consequence of any Community act adopted after the commencement of this section relating to financial collateral arrangements.
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(3)For the avoidance of doubt, in the case of a mortgage or charge created over both— (a) an interest in anything specified in any of paragraphs (a) to (e) of subsection (1), and (b) any property, assets or undertaking not falling within any of those paragraphs, the mortgage or charge shall, other than to the extent to which it is created over an interest in anything specified in any of the foregoing paragraphs of subsection (1), be regarded as a charge within the meaning of this Part.
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Chapter 2
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Registration of charges and priority Registration of charges created by ICAVs 93. (1) Every charge created by an ICAV shall be void against the liquidator and any creditor of the ICAV unless either the procedure set out in— (a)subsection (3) (the “one-stage procedure”), or (b)subsection (4) (the “two-stage procedure”), with respect to the charge’s registration is complied with.
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(2)If, in purported compliance with the requirements of this Part as to the taking of steps in that behalf, there is received by the Bank particulars of a charge that omit the required particulars in respect of one or more properties to which the charge relates,subsection (1) shall be read as operating to render void (as against the liquidator and any creditor of the ICAV) the charge as it relates to the particular property or properties in respect of which that omission occurs but not otherwise.
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(3)The procedure for registration under this subsection referred to in subsection (1) as the one-stage procedure consists of the taking of steps so that there is received by the Bank, not later than 21 days after the date of the charge’s creation, particulars, in such form as may be specified by the Bank, of the charge.
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(4)The procedure for registration under this subsection referred to in subsection (1) as the two-stage procedure consists of the following, namely the taking of steps— (a) so that there is received by the Bank a notice stating the ICAV’s intention to create the charge (being a notice in such form and containing such particulars as may be specified by the Bank, of the charge), and (b) so that, not later than 21 days after the date of the Bank’s receipt of the notice under paragraph (a) (the “first-mentioned notice”), there is received by the Bank a notice, in such form as may be specified by the Bank, stating that the charge referred to in the first-mentioned notice has been created.
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(5)If the requirement under paragraph (b) of subsection (4) is not complied with, within the period specified in that paragraph, the notice received under paragraph (a) of that subsection in relation to the charge shall be removed by the Bank from the register.
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(6)Subsection (1) is without prejudice to any contract or obligation for repayment of the money secured by the charge concerned and when a charge becomes void under that subsection, the money secured by it shall immediately become payable.
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(7)Where a charge comprises property outside the State, such particulars, in such form as may be specified by the Bank, (and, as the case may be, the notice under subsection (4)(b)) may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.
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(8)If there is a change among the one or more persons entitled to a charge registered under this Part, the fact of that change having occurred, and particulars of the person or persons now entitled to the charge, may be delivered, in such form as may be specified by the Bank, to the Bank and registered by it.
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(9)Nothing in this section or any other provision of this Part authorises the delivery to the Bank of a deed, or any supplemental document to it, and this Part does not impose or confer any duty or power on the Bank to examine any deed or any supplemental document to it.
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Duty of ICAV with respect to registration under section 93 and right of others to effect registration 94. (1) It shall be the duty of the ICAV that creates the charge to comply with the procedure under section 93
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(3)or (4) with respect to the charge’s registration but this is without prejudice to subsection (2) .
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(2)Any person interested in the charge may use the procedure under section 93
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(3)or (4) with respect to its registration and the person’s using that procedure (and in compliance with section 93
\n
(3)or (4)) shall have the same effect as if the ICAV had used that procedure (and in compliance with section 93
\n
(3)or (4)).
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(3)Where such a person uses that procedure (and in compliance with section 93
\n
(3)or (4)), the person may recover from the ICAV the amount of fees properly paid by that person to the Bank in respect of the registration of the charge concerned.
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Duty of ICAV to register charges existing on property acquired 95. (1) Where an ICAV acquires any property which is subject to a charge that, if it had been created by the ICAV after the acquisition of the property, would have given rise to the duty under section 93
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(1)on the part of the ICAV with respect to the charge’s registration, then the ICAV shall have the following duty.
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(2)That duty is to take steps so that there is received by the Bank, not later than 21 days after the date on which acquisition of the property concerned is completed, such particulars of the charge, in such form, as may be specified by the Bank.
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(3)If default is made in complying with this section, the ICAV and any officer of it who is in default commits a category 3 offence.
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Priority of charges 96. (1) For the purposes of this section— (a) “relevant rule of law” means any applicable rule of law that governs the priority of charges created by a body corporate, and for the avoidance of doubt, any enactment governing the priority of such charges is not encompassed by that expression; (b) the reference in subsection (2) to any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges shall be deemed to include a reference to any priority that an advance made on foot of a charge, by virtue of a person’s not having notice of a matter, enjoys over a subsequent charge or charges.
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(2)Any relevant rule of law shall stand modified in the manner specified in subsection (3), but not so as to displace any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges.
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(3)That modification is that, for the part of the rule that operates by reference to the time of creation of the 2 or more charges concerned, there shall be substituted a part that operates by reference to— (a) the dates of receipt by the Bank of the specified particulars of the 2 or more charges concerned, or (b) if the date of receipt by the Bank of the specified particulars of the 2 or more charges is the same, the respective times, on the date concerned, of receipt by the Bank of those particulars.
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(4)References in subsection (3) to the date, or time, of receipt of particulars are references to— (a) if the procedure under subsection (3) of section 93 is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the specified particulars, in the specified form, of the charge, or (b) if the procedure under subsection (4) of section 93 is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the notice, in the specified form and containing the specified particulars, in relation to the charge under paragraph (a) of that subsection (4).
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(5)Subsections (2) and (3) shall not affect any agreement between persons in whose favour charges have been created in relation to the priority that those charges shall, as between them, have.
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(6)In relation to particulars of a charge received by the Bank pursuant to section 93
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(3)or (4), the following provisions apply so far as those particulars consist of particulars of a negative pledge, any events that crystallise a floating charge or any restrictions on the use of any charged asset (and particulars of any such matter are referred to subsequently in this subsection as “extraneous material”): (a) the Bank shall not enter in the register under section 93 particulars of the extraneous material pursuant to that section; (b) the fact that the Bank has received the particulars of the extraneous material shall have no legal effect; but nothing in the foregoing affects the validity of the receipt by the Bank of the other particulars of the charge.
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(7)In this section “negative pledge” means any agreement entered into by the ICAV concerned and any other person or persons that— (a) provides that the ICAV shall not, or shall not otherwise than in specified circumstances— (i) borrow moneys or otherwise obtain credit from any person other than that person or those persons, (ii) create or permit to subsist any charge, lien or other encumbrance or any pledge over the whole or any part of the property of the ICAV, or (iii) alienate or otherwise dispose of in any manner any of the property of the ICAV, or (b) contains a prohibition, either generally or in specified circumstances, on the doing by the ICAV of one or more things referred to in one, or more than one, provision of paragraph (a).
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(8)The registration of an investment company as an ICAV by continuation under Part 8 does not affect the priority of charges created by the investment company.
\n
(9)The registration of a body corporate as an ICAV by continuation under Part 9 does not affect the priority of charges created by the body corporate before its registration as an ICAV.
\n
Registration of judgment mortgages 97. (1) If judgment is recovered against an ICAV and that judgment is subsequently converted into a judgment mortgage affecting any property of the ICAV, the judgment mortgage shall be void against the liquidator and any creditor of the ICAV unless the procedure set out in subsection (2) with respect to the judgment mortgage’s registration is complied with.
\n
(2)The procedure for registration under this subsection consists of the taking of steps so that there is received by the Bank, together with the relevant judgment mortgage document, such particulars of the judgment mortgage, in such form, as may be specified by the Bank, not later than 21 days after the following date.
\n
(3)That date is the date on which notification by the Property Registration Authority of the judgment mortgage’s creation is received by the judgment creditor.
\n
(4)In subsection (2) the “relevant judgment mortgage document” means a certified copy of, as appropriate— (a) Form 60, 60A or 60B set out in the Schedule of Forms to the Land Registration Rules 2012 ( S.I. No. 483 of 2012 ) as amended by the Land Registration Rules 2013 ( S.I. No. 389 of 2013 ), or (b) Form 16 set out in the Schedule to the Registration of Deeds (No. 2) Rules 2009 ( S.I. No. 457 of 2009 ), used for the purposes of converting the judgment concerned into a judgment mortgage.
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(5)For the purposes of this section, it shall be presumed, until the contrary is proved, that the judgment creditor received notification, of the judgment mortgage’s creation, from the Property Registration Authority on the third day after the date on which that notification is sent by it to the judgment creditor or his or her agent.
\n
(6)If rules are made under section 126 of the Registration of Title Act 1964 or, as the case may be, section 48 of the Registration of Deeds and Title Act 2006 — (a) replacing a form that is referred to in subsection (4)(a) or (b), as appropriate, the reference in that provision to the form shall be read as a reference to the form as so replaced, or (b) amending a form that is so referred to, the reference in that provision to the form shall be read as a reference to the form as it stands so amended.
\n
Register of charges 98. (1) The Bank shall keep, in relation to each ICAV, a register of the charges requiring registration under this Part, and shall, on payment of the fee (if any) prescribed under section 32E of the Central Bank Act 1942 , enter in the register, in relation to such charges, the following particulars: (a) without prejudice to paragraphs (d) and (e), in the case of a charge created by the ICAV, the date of its creation and— (i) where the procedure for registration under section 93
\n
(3)is complied with, the date and time of receipt by the Bank under that provision of such particulars of the charge, in such form, as is specified by the Bank, and (ii) where the procedure for registration under section 93
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(4)is complied with, the respective dates and times of receipt by the Bank of the notices under paragraphs (a) and (b) of that provision in relation to the charge; (b) without prejudice to paragraphs (d) and (e), in the case of a charge existing on property acquired by the ICAV, the date of the acquisition of the property by the ICAV; (c) without prejudice to paragraphs (d) and (e), in the case of a judgment mortgage, the date of the mortgage’s creation and the date and time, in relation to it, of receipt by the Bank, under section 97
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(2), of the particulars specified by the Bank in such form as is so specified, together with the relevant judgment mortgage document referred to in that provision; (d) short particulars of the property charged; and (e) the persons entitled to the charge.
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(2)The register referred to in subsection (1) shall be kept in such form as the Bank considers appropriate and shall be made available for inspection free of charge on a website maintained or used by the Bank.
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Certificate of registration 99. (1) The Bank shall give a certificate of the registration of any charge registered in pursuance of this Part.
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(2)Subject to subsection (3), such a certificate shall be conclusive evidence that the requirements of this Part as to the registration of the charge have been complied with.
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(3)To the extent that the particulars of a charge delivered to the Bank in purported compliance with this Part omit the required particulars in respect of one or more properties to which the charge relates, the evidential effect of the certificate provided under subsection (2) shall not extend to the particular property or properties in respect of which that omission occurs.
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(4)Without prejudice to the generality of the definition, in section 92 , of that expression, in subsection (3) “property” includes an interest in, or right over, property.
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Entries of satisfaction and release of property from charge 100. (1) The Bank may exercise the powers under subsection (2), on evidence being given to its satisfaction with respect to any charge registered under this Part— (a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part, or (b) that part of the property charged has been released from the charge or has ceased to form part of the ICAV’s property, and, where the satisfaction or release has not been signed by or on behalf of the chargee, after giving notice to the person who, for the time being, stands registered as the person entitled to such charge or to the judgment creditor, as the case may be.
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(2)Those powers are to enter on the register a memorandum— (a) of satisfaction in whole or in part, or (b) of the fact that part of the property has been released from the charge or has ceased to form part of the ICAV’s property, as the case may be.
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(3)Where the Bank enters such a memorandum of satisfaction in whole, it shall, if required, furnish the ICAV with a copy of it.
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(4)The Bank may accept as evidence of a satisfaction or release referred to in subsection (1) (a) or (b) a statement in such form as may be specified by the Bank, signed by a director and secretary of the ICAV, or by 2 directors of the ICAV, stating that the satisfaction or release has occurred.
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(5)Where a person signs a statement referred to in subsection (4) knowing it to be false, the person commits a category 2 offence.
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(6)Where a person signs a statement referred to in subsection (4) and in doing so did not honestly believe on reasonable grounds that the statement was true, and the High Court considers that the making of that statement— (a) contributed to the ICAV being unable to pay its debts, (b) prevented or impeded the orderly winding-up of the ICAV, or (c) facilitated the defrauding of the creditors of the ICAV, the High Court, on the application of the liquidator or receiver of the property of, or any creditor or contributor of, the ICAV, may, if it thinks it proper to do so, make the following declaration.
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(7)That declaration is that that signatory shall be personally liable, without limitation of liability, for all or such part as the High Court may specify of the debts and other liabilities of the ICAV.
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Extension of time for registration of charges and rectification of register 101. (1) The High Court may grant the following relief where it is satisfied that the omission to register a charge within the time required by this Part or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfaction— (a) was accidental or due to inadvertence or to some other sufficient cause, or (b) is not of a nature to prejudice the position of creditors or shareholders of the ICAV, or that on other grounds it is just and equitable to grant that relief in respect of such an omission or misstatement.
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(2)That relief is to order, on such terms and conditions as seem to the High Court just and expedient, that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.
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(3)An application for relief under this section may be made on behalf of the ICAV or any other person interested.
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Copies of instruments creating charges to be kept 102. (1) An ICAV shall keep a copy of every instrument creating any charge in relation to it and requiring registration under this Part, including, in the case of a judgment mortgage, a copy of the relevant judgment mortgage document that was received by the Bank.
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(2)All such copies kept by the ICAV shall be kept at the same place.
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(3)Such copies shall be kept at the same office as the register of members is kept and shall be open during business hours to the inspection of any member or creditor of the ICAV without charge.
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(4)If default is made in complying with subsection (1) or (2), the ICAV concerned and any officer of it who is in default commits a category 3 offence.
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Netting of Financial Contracts Act 1995 not to affect registration requirements 103. Nothing in section 4
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(1)of the Netting of Financial Contracts Act 1995 affects— (a) the requirement to register a charge under this Part, or (b) the consequences of failing to register a charge under this Part.
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Chapter 3
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Provisions as to debentures Liability of trustees for debenture holders 104. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision contained— (a) in a trust deed for securing an issue of debentures, or (b) in any contract with the holders of debentures secured by a trust deed, in so far as it would have the effect of exempting a trustee of it from, or indemnifying him or her against, liability for breach of trust where he or she fails to show the degree of care and diligence required of him or her as trustee, having regard to the provisions of the trust deed conferring on him or her any powers, authorities or discretions.
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(2)Subsection (1) shall not invalidate— (a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release, or (b) any provision enabling such a release to be given— (i) on the agreement to the provision of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and (ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.
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Perpetual debentures 105. A condition contained in any debentures or in any deed for securing any debentures shall not be invalid by reason only that the debentures are by those means made irredeemable or redeemable only on the happening of a contingency however remote, or on the expiration of a period however long, notwithstanding any rule of law to the contrary.
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Power to re-issue redeemed debentures 106. (1) Where an ICAV has redeemed any debentures then— (a) unless any provision to the contrary, whether express or implied, is contained in the instrument of incorporation of the ICAV or in any contract entered into by the ICAV, or (b) unless the ICAV has, by passing a resolution to that effect or by some other act, shown its intention that the debentures shall be cancelled, the ICAV shall have power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place.
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(2)On a re-issue of redeemed debentures, the person entitled to the debentures shall have the same priorities as if the debentures had never been redeemed.
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(3)Where an ICAV has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the ICAV having ceased to be in debit whilst the debentures have remained so deposited.
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Specific performance of contracts to subscribe for debentures 107. A contract with an ICAV to take up and pay for any debentures of the ICAV may be enforced by an order for specific performance.
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Chapter 4
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Prohibition on registration of certain matters affecting shareholders Registration against ICAV of certain matters prohibited 108. (1) Subject to subsection (3), the Bank has, in relation to any ICAV, no jurisdiction to accept receipt of, or to register in the register— (a) an order of any authority (whether judicial or otherwise) affecting a shareholder of the ICAV, or (b) any notice of the making thereof.
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(2)Any jurisdiction of an authority (whether judicial or otherwise) subsisting before the commencement of this section to make an order requiring that there be registered in the register, or that there be received by the Bank— (a) an order of that authority affecting a shareholder of an ICAV, or (b) a notice of the making of an order referred to in paragraph (a), shall, after that commencement, cease to be exercisable.
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(3)Nothing in this section affects the jurisdiction of any authority (whether judicial or otherwise) by virtue of section 173 .
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PART 7
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Accounts, Reports and Auditing
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Chapter 1
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Accounting records Obligation to keep adequate accounting records 109. An ICAV shall keep or cause to be kept adequate accounting records.
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Basic requirements for accounting records 110. (1) For the purposes of this Part, adequate accounting records are those that are sufficient— (a) correctly to record and explain the transactions of the ICAV, (b) to enable at any time the assets, liabilities, financial position and profit or loss of the ICAV to be determined with reasonable accuracy, (c) to enable the directors to ensure that any balance sheet, profit and loss account or income and expenditure account of the ICAV complies with the requirements of this Act, and (d) to enable the accounts of the ICAV to be readily and properly audited.
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(2)The accounting records shall be kept on a continuous and consistent basis, that is to say, the entries in them shall be made in a timely manner and be consistent from one year to the next.
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(3)If accounting records are not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating discovery of falsification should it occur.
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(4)Without prejudice to the generality of subsections (1) and (2), accounting records kept pursuant to section 109 shall contain— (a) entries from day to day of all sums of money received and expended by the ICAV and the matters in respect of which the receipt and expenditure takes place, (b) a record of the assets and liabilities of the ICAV, and (c) a record of the services provided by the ICAV and of all the invoices relating to them.
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(5)For the purposes of subsections (1) to (4), adequate accounting records shall be deemed to be kept if they comply with those subsections and facilitate the preparation of accounts which show the assets and liabilities of the ICAV.
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(6)The adequate accounting records required to be kept by section 109 shall be kept— (a) either in written form in an official language of the State, or (b) so as to enable the accounting records to be readily accessible and readily convertible into written form in an official language of the State.
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Where accounting records are to be kept 111. (1) Subject to subsection (2), an ICAV’s accounting records shall be kept at the registered office of the ICAV or at such other place as the directors think fit.
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(2)If accounting records are kept at a place outside the State, there shall be sent to and kept at a place in the State and be at all reasonable times open to inspection by the directors such information and returns relating to the business dealt with in the accounting records so kept as will— (a) disclose with reasonable accuracy the financial position of that business at intervals not exceeding 6 months, and (b) enable to be prepared in accordance with this Act the ICAV’s balance sheet, its profit and loss account or income and expenditure account and any document annexed to any of those documents giving information which is required by this Act and is thereby allowed to be so given.
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Access to accounting records 112. An ICAV shall make its accounting records, and any information and returns referred to in section 111
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(2), available in written form in an official language of the State at all reasonable times for inspection without charge by the officers of the ICAV and by other persons entitled pursuant to this Act to inspect the accounting records of the ICAV.
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Retention of accounting records 113. Accounting records required to be kept by section 109 , and any information and returns referred to in section 111
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(2), shall be preserved by the ICAV for a period of at least 6 years after the latest date to which they relate.
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Accounting records: offences 114. (1) An ICAV that contravenes any of sections 109 to 113 commits a category 1 offence.
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(2)A director of an ICAV who fails to take all reasonable steps to secure compliance by the ICAV with the requirements of any of sections 109 to 113, or has by his or her own intentional act been the cause of any default by the ICAV under any of them, commits a category 1 offence.
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(3)In any proceedings against a person in respect of an offence under subsection (2) consisting of a failure to take reasonable steps to secure compliance by an ICAV with the requirements of any of sections 109 to 113, it shall be a defence to prove both of the following: (a) that the defendant had reasonable grounds for believing and did believe that a competent and reliable person was— (i) charged with the duty of ensuring that those requirements were complied with, and (ii) in a position to discharge that duty; (b) that the discharge of that duty by such competent and reliable person was monitored by the defendant by means of reasonable methods properly used.
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Personal liability of officers where adequate accounting records not kept 115. (1) Subject to subsection (2), if— (a) an ICAV that is being wound up and that is unable to pay all of its debts has contravened any of sections 109 to 113, and (b) the High Court considers that such contravention— (i) has contributed to the ICAV’s inability to pay all of its debts, (ii) has resulted in substantial uncertainty as to the assets and liabilities of the ICAV, or (iii) has substantially impeded the orderly winding up of the ICAV, the High Court, on the application of the liquidator or any creditor or contributory of the ICAV, has the following power.
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(2)The power of the High Court is to declare, if it thinks it proper to do so, that any one or more of the officers and former officers of the ICAV who is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the High Court, of the debts and other liabilities of the ICAV.
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(3)On the hearing of an application under this section, the person bringing the application may give evidence or call witnesses.
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(4)Where the High Court makes a declaration under subsection (1), it may give such directions as it thinks proper for the purpose of giving effect to the declaration.
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(5)In particular the order providing for the declaration, or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on— (a) any debt or obligation due from the ICAV to the respondent, or (b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the ICAV held by or vested in— (i) the respondent or any person on the respondent’s behalf, or (ii) any person claiming as assignee from or through the respondent or any person acting on the behalf of any such person.
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(6)The High Court may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under subsection (5) .
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(7)In subsection (5)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable under the declaration, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
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(8)The High Court shall not make a declaration under this section in respect of a person if it considers that— (a) the person took all reasonable steps to secure compliance by the ICAV with sections 109 to 113, or (b) the person had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director of the ICAV who has been formally allocated such responsibility, was— (i) charged with the duty of ensuring that those sections were complied with, and (ii) in a position to discharge that duty.
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(9)This section shall have effect even if the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made.
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Chapter 2
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Annual accounts Annual accounts 116. (1) The directors of an ICAV shall prepare accounts for each financial year.
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(2)The accounts shall include the following: (a) a balance sheet or statement of assets and liabilities; (b) a detailed income and expenditure account for the financial year; (c) the other information provided for in the Schedule.
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(3)The annual accounts shall give a true and fair view of the assets, liabilities and financial position of the ICAV at the end of the financial year and of the profit or loss of the ICAV for the financial year.
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(4)The annual accounts may be prepared in accordance with— (a) generally accepted accounting practice in the State, (b) international financial reporting standards, or (c) subject to subsection (5), an alternative body of accounting standards.
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(5)To the extent that the use of any alternative body of accounting standards does not contravene any provision of this Part, a true and fair view of the assets and liabilities, financial position and profit or loss of an ICAV may be given by the use by the ICAV of those standards in the preparation of its annual accounts.
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(6)In this section “alternative body of accounting standards” means standards that accounts of bodies corporate are to comply with which are laid down by any such body or bodies having authority to lay down standards of that kind in— (a) the United States of America, (b) Canada, (c) Japan, or (d) any such other country or territory as may be prescribed by regulations made by the Minister, as may be prescribed by regulations so made.
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(7)Before making regulations under subsection (6), the Minister— (a) shall consult with the Bank, and (b) may consult any such other persons as he or she considers appropriate.
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(8)Separate accounts may be prepared and presented in respect of a sub-fund or sub- funds; and all references to an ICAV be read as, where appropriate, referring to the sub-fund or sub-funds in respect of which the separate accounts are to be prepared.
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(9)The requirement for annual accounts prepared in accordance with International Financial Reporting Standards to present fairly the assets, liabilities, financial position, financial performance and cash flow of the ICAV at the end of the financial year is deemed to be equivalent to the true and fair view required to be given by subsection (3) .
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(10)If the directors of an ICAV fail to comply with subsection (1), (2) or (3) they commit a category 2 offence.
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(11)In this section “international financial reporting standards” means the international financial reporting standards, within the meaning of Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 20021 adopted from time to time by the Commission of the European Union in accordance with that Regulation.
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Accounts to include information about directors 117. (1) In the annual accounts of an ICAV there shall be shown so far as the information is contained in the ICAV’s accounting records or the ICAV has the right to obtain it from the persons concerned— (a) the aggregate amount of the directors’ emoluments, (b) the aggregate amount of directors’, or former directors’, pensions, and (c) the aggregate amount of any compensation to directors or former directors in respect of loss of office.
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(2)The amount to be shown under paragraph (a) of subsection (1) — (a) shall include any emoluments paid to or receivable by any person in respect of his or her services as director of the ICAV or in respect of his or her services, while director of the ICAV, as director of any subsidiary of the ICAV or otherwise in connection with the management of the affairs of the ICAV or any subsidiary of the ICAV, and (b) shall distinguish between emoluments in respect of services as director and other emoluments.
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(3)The amount to be shown under paragraph (b) of subsection (1) — (a) shall not include any pension paid or receivable under a pension scheme if the scheme is such that the contributions under it are substantially adequate for the maintenance of the scheme, but subject to that, shall include any pension paid or receivable in respect of any such services of a director or former director whether to or by him or her or, on his or her nomination or by virtue of dependence on or other connection with him or her, to or by any other person, and (b) shall distinguish between pensions in respect of services as director and other pensions.
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(4)The amount to be shown under paragraph (c) of subsection (1) — (a) shall include any sums paid to or receivable by a director or former director by way of compensation for loss of office as director of the ICAV or for the loss, while director of the ICAV, or on or in connection with ceasing to be a director of the ICAV, of any other office in connection with the management of the ICAV’s affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary of the ICAV, and (b) shall distinguish between compensation in respect of the office of director and compensation in respect of other offices.
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(5)The amounts to be shown under each paragraph of subsection (1) — (a) shall include all relevant sums paid by or receivable from— (i) the ICAV, (ii) the ICAV’s subsidiaries, and (iii) any other person, except sums to be accounted for to the ICAV or any of its subsidiaries or to former or present members of the ICAV or any of its subsidiaries or any class of those members, and (b) shall distinguish, in the case of the amount to be shown under paragraph (c) of subsection (1), between the sums respectively paid by or receivable from the ICAV, subsidiaries of the ICAV and persons other than the ICAV and its subsidiaries.
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(6)The amounts to be shown under this section for any financial year shall be the sums receivable in respect of that year, whenever paid, or, in the case of sums not receivable in respect of a period, the sums paid during that year, so, however, that where— (a) any sums are not shown in the accounts for the relevant financial year on the ground that the person receiving them is liable to account for them as mentioned in paragraph (a) of subsection (5), but the liability is thereafter wholly or partly released or is not enforced within a period of 2 years, or (b) any sums paid by way of expenses allowance are charged to income tax after the end of the relevant financial year, those sums shall, to the extent to which the liability is released or not enforced or they are so charged, be shown in the first accounts in which it is practicable to show them and shall be distinguished from the amounts to be shown in those accounts apart from this subsection.
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(7)Where it is necessary so to do for the purpose of making any distinction required by this section in any amount, the directors may apportion any payments between the matters in respect of which they have been paid or are receivable in such manner as they think appropriate.
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(8)If in the case of any accounts the requirements of this section are not complied with, it shall be the duty of the auditors of the ICAV to include in the report on the accounts, so far as they are reasonably able to do so, a statement giving the required particulars.
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(9)If an ICAV fails to comply with subsection (1), the ICAV and any officer of it who is in default commits a category 3 offence.
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(10)In this section, any reference to an ICAV’s subsidiary— (a) in relation to a person who is or was, while a director of the ICAV, a director also, by virtue of the ICAV’s nomination (direct or indirect), of any other body corporate shall, subject to the following paragraph, include that body corporate, whether or not it is or was in fact the ICAV’s subsidiary, and (b) shall, for the purposes of subsections (2) and (3), be taken as referring to a subsidiary at the time the services were rendered, and, for the purposes of subsection (4), be taken as referring to a subsidiary immediately before the loss of office as director of the ICAV.
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(11)For the purposes of this section— (a) references to compensation for loss of office shall include sums paid as consideration for or in connection with a person’s retirement from office; (b) “emoluments”, in relation to a director, includes fees and percentages, any sums paid by way of expenses allowance in so far as those sums are charged to income tax, any contribution paid in respect of the director under any pension scheme, and the estimated money value of any other benefits received by the director otherwise than in cash in so far as they are charged to income tax; (c) “pension” includes any superannuation allowance, superannuation gratuity or similar payment; (d) “pension scheme” means a scheme for the provision of pensions in respect of services as director or otherwise which is maintained in whole or in part by means of contributions and “contribution”, in relation to a pension scheme, means any payment (including an insurance premium) paid for the purposes of the scheme by or in respect of persons rendering services in respect of which pensions will or may become payable under the scheme, except that it does not include any payment in respect of 2 or more persons if the amount paid in respect of each of them is not ascertainable.
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Chapter 3
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Directors’ reports Directors’ report 118. (1) The directors of an ICAV shall for each financial year prepare a report (a “directors’ report”) dealing, so far as is material for the appreciation of the state of the ICAV’s affairs (and, if it has subsidiaries, of the affairs of the ICAV and its subsidiaries as a group), with— (a) any change during the financial year in the nature of the business of the ICAV or of the ICAV’s subsidiaries in the classes of business in which the ICAV has an interest whether as a member of another ICAV or a company or otherwise, and (b) the amount, if any, which they recommend should be paid by way of dividend and the amount, if any, which they propose to carry to reserves.
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(2)The report shall be approved by the board of directors and signed on behalf of the directors by 2 directors.
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(3)The report shall contain a list of bodies corporate in relation to which either of the following conditions is fulfilled at the end of the ICAV’s financial year: (a) the body corporate is a subsidiary of the ICAV; (b) although the body corporate is not a subsidiary of the ICAV, the ICAV is beneficially entitled to more than 20 per cent in nominal value of its shares carrying voting rights (other than voting rights which arise only in specified circumstances).
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(4)The list referred to in subsection (3) shall distinguish between bodies corporate falling within paragraph (a) and paragraph (b) of that subsection and shall state in relation to each such body corporate— (a) its name, (b) where it is incorporated, and (c) the nature of the business carried on by it.
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(5)The report shall contain the following information: (a) a fair review of the development and performance of the ICAV’s business and of its position and, in relation to its subsidiaries, if any, of the development and performance of their business and of their position, during the financial year ending with the relevant balance sheet date together with a description of the principal risks and uncertainties that they face; (b) particulars of any important events affecting the ICAV or any of its subsidiaries, if any, which have occurred since the end of that year; (c) an indication of likely future developments in the business of the ICAV and of its subsidiaries, if any; (d) in relation to the use by the ICAV and its subsidiaries, if any, of financial instruments and where material for the assessment of the assets, liabilities, financial position and profit or loss of the ICAV and, as the case may be, the group— (i) the financial risk management objectives and policies of the ICAV and the group, including the policy for hedging each major type of forecasted transaction for which hedge accounting is used, and (ii) the exposure of the ICAV and the group to price risk, credit risk, liquidity risk and cash flow risk.
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(6)The review mentioned in subsection (5)(a) — (a) shall be a balanced and comprehensive analysis of the development and performance of the ICAV’s business and of its position and, in relation to its subsidiaries, if any, of the development and performance of their business and of their position, consistent with the size and complexity of the business, and (b) to the extent necessary for an understanding of the ICAV’s development, performance or position, and that of its subsidiaries, if any, shall include an analysis of financial, and, where appropriate, non-financial key performance indicators relevant to the particular business, including information relevant to environmental and employee matters, and, where appropriate, shall include additional explanations of amounts included in the annual accounts.
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(7)If an ICAV fails to comply with this section, the ICAV and any officer of it who is in default commits a category 1 offence.
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Revised directors’ reports 119. If it appears to the directors of an ICAV that a directors’ report of the ICAV did not comply with the requirements of this Act or Bank regulations, they may prepare a revised report.
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Chapter 4
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Audit Auditor reports on accounts 120. (1) An ICAV shall, in respect of its annual accounts, arrange to have an auditor— (a) audit them, and (b) make a report on the audit, to the shareholders of the ICAV.
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(2)The auditors’ report shall state clearly the statutory auditors’ opinion as to— (a) whether the annual accounts give a true and fair view— (i) in the case of a balance sheet, of the assets, liabilities and financial position of the ICAV at the end of the financial year, (ii) in the case of a profit and loss account, of the profit or loss of the ICAV for the financial year, and (b) whether the annual accounts have been properly prepared in accordance with the relevant financial reporting framework.
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(3)A copy of the auditor’s report shall be attached to the annual accounts and the directors’ report for the financial year of the ICAV to which the report relates.
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(4)If an ICAV fails to comply with subsection (1) or (3), the ICAV and any officer of it who is in default commits a category 1 offence.
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Consideration by auditor of consistency of directors’ report with ICAV’s accounts 121. In preparing the report in relation to an ICAV required by section 120
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(1)(b), the auditor shall— (a) consider whether the information given in the directors’ report relating to the financial year is consistent with the accounts prepared by the ICAV for that year, and (b) state in the report whether, in the auditor’s opinion, that information is, or is not, consistent with those accounts.
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Duty of auditor in relation to suspected commission of indictable offence 122. (1) Where, in the course of, and by virtue of, carrying out an audit of the accounts of an ICAV, information comes into the possession of the auditor that leads the auditor to form the opinion that there are reasonable grounds for believing that the ICAV, or an officer or agent of it, has committed an indictable offence under this Act, the auditors shall, without delay after having formed such opinion, notify that opinion to the relevant enforcement agency and provide that enforcement agency with details of the grounds on which they have formed that opinion.
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(2)Where the auditor of an ICAV notifies the relevant enforcement agency of any matter pursuant to subsection (1), the auditor shall, in addition to performing the obligations under that subsection, if requested by that enforcement agency— (a) furnish that enforcement agency with such further information in the auditor’s possession or control relating to the matter as that enforcement agency may require, including further information relating to the details of the grounds on which the auditor formed the opinion referred to in that subsection, (b) give that enforcement agency such access to any documents in the auditor’s possession or control relating to the matter as that enforcement agency may require, and (c) give that enforcement agency such access to facilities for the taking of copies of, or extracts from, those books and documents as that enforcement agency may require.
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(3)Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession.
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(4)No professional or legal duty to which an auditor is subject by virtue of appointment as an auditor of an ICAV shall be regarded as contravened by, and no liability to the ICAV, its shareholders, creditors or other interested parties shall attach to, an auditor by reason of compliance with an obligation imposed by or under this section.
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(5)The Bank and the Director of Corporate Enforcement are enforcement agencies for the purposes of this section; and in this section “relevant enforcement agency” means— (a) for the offences specified in subsection (1) of section 176 , the Bank; (b) for the offences specified in subsection (2) of that section, the Director of Corporate Enforcement; (c) for the offences specified in subsection (3) of that section, both the Bank and the Director of Corporate Enforcement.
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(6)If an auditor fails to comply with this section the auditor commits a category 1 offence.
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Eligibility to be auditor 123. (1) No person other than an approved statutory auditor or audit firm under Part 4 of the Audits Regulations shall be eligible for appointment as auditor of an ICAV.
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(2)No person shall be eligible for appointment as auditor of an ICAV if— (a) the person is an officer or employee of the ICAV concerned, (b) the person is a partner or employee of such a person, or a partnership of which such a person is a partner, or (c) there exists between the person and the ICAV a connection of any such description as specified in Part 7 of the Audi ts Regulations.
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(3)For the purposes of subsection (2), an auditor of an ICAV shall not be regarded as an officer or employee of the ICAV.
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(4)Where during a person’s term of office as an auditor of an ICAV the person becomes ineligible for appointment to the office, the person shall without delay vacate the office and give notice in writing to the ICAV of having vacated the office by reason of ineligibility.
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Auditor acting where ineligible 124. (1) No person shall act as auditor of an ICAV if ineligible for appointment to the office.
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(2)If a person acts as auditor of an ICAV when ineligible for appointment, the person commits a category 2 offence.
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Appointment of auditors 125. (1) An ICAV shall, at each annual general meeting appoint an auditor or auditors to hold office from the conclusion of that meeting until the conclusion of the next annual general meeting.
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(2)The first auditors of an ICAV may be appointed by the directors of the ICAV at any time before the first annual general meeting of the ICAV and auditors so appointed are to hold office until the conclusion of that meeting.
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(3)Where no appointment is made under subsection (2), the first auditors of any ICAV may be appointed by the ICAV in general meeting.
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(4)On the date on which the holding of an annual general meeting is dispensed with in accordance with section 89
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(4), any auditor or auditors appointed in accordance with subsection (2) or (3) cease to hold office and the directors shall immediately re-appoint the auditor or auditors or appoint a new auditor or auditors.
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(5)The directors of any ICAV which does not hold annual general meetings shall appoint the auditor or auditors.
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(6)Where, in any case, no auditors are appointed as required by this section, the Bank may appoint a person eligible for appointment as auditor under section 123 to fill the vacancy.
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Casual vacancy 126. (1) The directors of an ICAV, or the ICAV in general meeting, may fill a casual vacancy in the office of auditor.
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(2)While a vacancy in the office of auditor continues, any surviving or continuing auditor may continue to act.
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Partnerships 127. (1) Subsections (3) to (6) apply to the appointment, as auditor of an ICAV, of a partnership constituted under the law of the State, or under the law of any country or territory in which a partnership is not a legal person.
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(2)Subsections (4) to (6) apply to the appointment, as auditor of an ICAV, of a partnership constituted under the law of any country under which a partnership is a legal person.
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(3)The appointment of an auditor in the case of a partnership is, unless the contrary intention appears, an appointment of the partnership as such and not of the partners.
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(4)Where a partnership ceases, the appointment of the partnership as an auditor is to be treated as extending to— (a) any partnership which succeeds to the practice of that partnership and is eligible for the appointment, and (b) any person who succeeds to that practice having previously carried it on in partnership and is eligible for the appointment.
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(5)For the purpose of subsection (4) — (a) a partnership is to be regarded as succeeding to the practice of another partnership only where the members of the successor partnership are substantially the same as those of the former partnership, and (b) a partnership or other person is to be regarded as succeeding to the practice of a partnership only if succeeding to the whole or substantially the whole of the business of the former partnership.
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(6)Where a partnership ceases and no person succeeds to the appointment under subsection (4), the appointment may with the consent of the ICAV be treated as extending to a partnership or other person eligible for the appointment who succeeds to the business of the former partnership or to such part of it as is agreed by the ICAV to be treated as comprising the appointment.
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Auditor’s access to records 128. (1) The auditor of an ICAV shall have a right of access at all times to the ICAV’s accounting records and is entitled to require from the ICAV’s officers such information and explanations as they think necessary for the performance of their duties as auditors.
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(2)An officer of an ICAV who knowingly makes to an ICAV’s auditor a statement (whether written or oral) which— (a) conveys or purports to convey any information or explanations which the auditor requires, or is entitled to require, as auditor of the ICAV, and (b) is misleading, false or deceptive in a material particular, commits a category 2 offence.
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Rights of auditors 129. (1) The auditor of an ICAV is entitled— (a) to receive all such notices of, and other communications relating to, any general meeting of the ICAV as a shareholder of the ICAV is entitled to receive, (b) to attend any general meeting of the ICAV, and (c) to be heard at any general meeting on any part of the business of the meeting which is of concern to him or her as auditor.
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(2)The right of an auditor to attend and be heard at a general meeting is exercisable in the case of a body corporate or partnership by an individual authorised by it in writing to act as its representative at the meeting.
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Remuneration of auditors 130. (1) The remuneration of an auditor of an ICAV who is appointed by the ICAV in general meeting shall be fixed by the ICAV in general meeting or in such manner as the ICAV in general meeting may decide.
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(2)The remuneration of an auditor of an ICAV who is appointed by the directors or the Bank shall be fixed by the directors or the Bank (and be payable by the ICAV in the case where it is fixed by the Bank).
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Power of competent authority 131. The power of a competent authority, referred to in Regulation 75 of the Audits Regulations, to ensure that its standards include provisions in respect of statutory audit fees is to be exercisable in relation to auditors of Irish collective asset-management vehicles— (a) for the same purposes, and (b) subject to the same conditions.
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Removal of auditor 132. (1) An ICAV may by resolution remove an auditor from office despite the terms of any agreement between it and the auditor.
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(2)Where a resolution removing an auditor is passed at a general meeting of an ICAV, the ICAV shall, not later than 14 days after the date of the holding of the meeting, notify the Bank in writing of the passing of the resolution.
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(3)Nothing in this section is to be taken as depriving a person removed under it of compensation or damages payable in respect of the termination of the person’s appointment as auditor or of any appointment terminating with that as auditor.
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Resolution for removal of auditor 133. (1) A resolution at a general meeting of an ICAV— (a) removing an auditor before the auditor’s period of office expires, or (b) appointing as auditor a person other than the retiring auditor, is not effective unless notice of the intention to move it has been given to the ICAV at least 28 days before the date of the meeting at which it is moved.
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(2)On receipt of notice of an intended resolution under subsection (1), the ICAV shall without delay send a copy— (a) in a case within subsection (1)(a), to the person proposed to be removed, (b) in a case within subsection (1)(b), to the person proposed to be appointed and to the retiring auditor.
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(3)The auditor proposed to be removed, or the retiring auditor, may make with respect to the intended resolution representations in writing to the ICAV (not exceeding a reasonable length) and request their notification to the shareholders of the ICAV.
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(4)The ICAV (except where the representations referred to in subsection (3) are received by the ICAV too late for it to do so) shall— (a) in any notice of the resolution given to the shareholders of the ICAV, state that the representations have been made, and (b) send a copy of the representations to each of the shareholders whose name appears on the register of shareholders and to whom notice of the meeting is or has been sent.
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(5)Where a copy of any representations referred to in subsection (3) is not sent out as required because they were received too late or because of the ICAV’s default or if, for either of those reasons, any steps required by subsection (4)(a) or (b) are not taken, the auditor may (without prejudice to a right to be heard orally) require that the representations be read out at the meeting.
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(6)Copies of the representations need not be sent out, the steps required by subsection (4)(a) or (b) need not be taken and the representations need not be read out at the meeting where, on the application of the ICAV or any other person claiming to be aggrieved, the High Court is satisfied that the rights conferred by this section are being abused by any person to secure needless publicity for defamatory matter and the High Court may order the costs of the ICAV on such an application to be paid in whole or in part by the auditor, even if the auditor is not a party to the application.
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Auditor who has been removed 134. (1) An auditor who has been removed from office has, despite the removal, the rights conferred by section 129 in relation to any general meeting of the ICAV at which— (a) the auditor’s term of office would otherwise have expired, or (b) it is proposed to fill the vacancy caused by the auditor’s removal.
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(2)The reference in section 129 to business which is of concern to a person as auditor is to be construed in relation to an auditor who has been removed from office as a reference to business concerning such an auditor as former auditor.
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Resignation of auditor 135. (1) An auditor of an ICAV may resign office by depositing a notice in writing to that effect at the ICAV’s head office.
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(2)A notice referred to in subsection (1) is not effective unless it is accompanied by the statement required by section 138 .
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(3)An effective notice of resignation operates to bring the auditor’s term of office to an end as of the date on which the notice is deposited or on such later date as may be specified in it.
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(4)An ICAV shall, not later than 14 days after the date of the deposit of a notice of resignation, send a copy of the notice to the Bank.
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(5)If an ICAV fails to comply with subsection (4), the ICAV and any officer of it who is in default commits a category 3 offence.
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Statement of circumstances 136. (1) This section applies where a notice of resignation of an auditor is accompanied by a statement of circumstances which he or she considers ought to be brought to the attention of the shareholders or creditors of the ICAV.
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(2)An auditor may deposit with the notice, referred to in subsection (1), a signed requisition that a general meeting of the ICAV be convened forthwith for the purpose of receiving and considering such explanation of the circumstances connected with his or her resignation as he or she may wish to place before the meeting.
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(3)The ICAV shall, not later than 21 days after the date of the deposit of a requisition, referred to in subsection (2), proceed to convene a meeting for a day not later than 28 days after the date on which the notice convening the meeting is given.
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(4)An auditor may request the ICAV to circulate a statement in writing (not exceeding a reasonable length) of the circumstances connected with the resignation to each of the shareholders of the ICAV whose name appears on the register of shareholders— (a) before the general meeting convened pursuant to the requisition, or (b) before any general meeting at which the auditor’s term of office would otherwise have expired or at which it is proposed to fill the vacancy caused by the resignation.
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(5)The ICAV (unless the statement is received by it too late for it to do so) shall— (a) in any notice or advertisement of the meeting given or made to shareholders of the ICAV, state that the statement has been made, and (b) send a copy of the statement to every shareholder of the ICAV to whom notice of the meeting is, or has been, sent.
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(6)Where a copy of the statement, referred to in subsection (5), is not sent out or provided as required because it was received too late or because of the ICAV’s default the auditor may (without prejudice to the right to be heard orally) require that the statement be read out at the meeting.
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(7)Copies of a statement, referred to in subsection (5), need not be sent out or provided and the statement need not be read out at the meeting where, on the application of the ICAV or any other person claiming to be aggrieved, the High Court is satisfied that the rights conferred by this section are being abused by any person to secure needless publicity for defamatory matter and the High Court may order the costs of the ICAV on such an application to be paid in whole or in part by the auditor, even if the auditor is not a party to the application.
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Auditor who has resigned 137. (1) An auditor who has resigned has the rights conferred by section 129 in relation to any such general meeting of the ICAV as is mentioned in section 136
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(4)(a) or (b).
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(2)The reference in section 129 to business which is of concern to a person as auditor is to be construed in relation to an auditor who has resigned as a reference to business concerning such an auditor as a former auditor.
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Requirements consequent on ceasing to hold office 138. (1) Where an auditor of an ICAV ceases for any reason to hold office, he or she shall deposit at the head office of the ICAV a statement of any circumstances connected with his or her ceasing to hold office which he or she considers should be brought to the attention of the shareholders or creditors of the ICAV or, if he or she considers that there are no such circumstances, a statement that there are none.
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(2)The statement referred to in subsection (1) shall be deposited— (a) in the case of resignation, along with the notice of resignation, (b) in the case of failure to seek re-appointment, not less than 14 days before the end of the time allowed for next appointing auditors, and (c) in any other case, not later than the end of the period of 14 days beginning with the date on which he or she ceases to hold office.
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(3)Where the statement referred to in subsection (1) is of circumstances which the auditor considers should be brought to the attention of the shareholders or creditors of the ICAV, the ICAV shall, not later than 14 days after the date of the deposit of the statement, either— (a) send a copy of the statement to each of the shareholders whose name appears on the register of shareholders, or (b) apply to the High Court, and, where an application is made under paragraph (b), the ICAV shall notify the auditor.
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(4)Unless the auditor receives notice of an application to the High Court before the end of the period of 21 days beginning with the day on which the statement referred to in subsection (1) was deposited, the auditor shall, not later than 7 days after the end of that period, send a copy of the statement to the Bank.
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(5)Where the High Court is satisfied that the auditor is using the statement referred to in subsection (1) to secure needless publicity for defamatory matter— (a) it shall direct that copies of the statement need not be sent out and that the steps required by Bank rules need not be taken, and (b) it may further order the costs of the ICAV on the application to be paid in whole or in part by the auditor even if the auditor is not a party to the application, and the ICAV shall, not later than 14 days after the date of the High Court’s decision, send a copy of a statement setting out the effect of the order to each of the shareholders whose name appears on the register of members.
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(6)Where the High Court is not so satisfied, the ICAV shall, not later than 14 days after the date of the court’s decision, send to each of the shareholders a copy of the auditor’s statement and notify the auditor of the court’s decision.
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(7)The auditor shall, not later than 7 days after the date of receiving the notice referred to in subsection (6) send a copy of the statement referred to in subsection (1) to the Bank.
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(8)Where notice of appeal is filed not later than 14 days after the date of the High Court’s decision, any reference to that decision in subsections (5) and (6) is to be construed as a reference to the final determination or withdrawal of that appeal.
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(9)Where a person ceasing to hold office as auditor fails to comply with this section he or she commits a category 2 offence.
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(10)In proceedings for an offence under subsection (9), it is a defence for the person charged to show that he or she took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
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Withdrawal of approval 139. Chapter 3 of Part 4 of the Audits Regulations applies in relation to auditors of Irish collective asset-management vehicles.
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PART 8
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Conversions of Investment Company or UCITS to ICAV Conversion of investment company or UCITS to ICAV 140. (1) An investment company or an UCITS constituted as a company with fixed capital or variable capital in accordance with Regulation 4(6) (b) or (c) of the UCITS Regulations may apply to the Bank to be registered as an ICAV by way of continuation.
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(2)The application shall be in such form as may be specified by the Bank and signed by a director of the company.
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(3)The application shall be accompanied by— (a) a copy of the certificate of incorporation issued by the Registrar, (b) a copy, certified in such manner as may be specified by the Bank, of— (i) the memorandum of association and the articles of association of the company, and (ii) the instrument of incorporation in respect of the proposed ICAV, (c) a list setting out particulars of the registered office, directors and secretary of the company, (d) a statutory declaration of a director of the company made not more than 28 days before the date on which the application is made to the Bank to the effect that— (i) no petition or other similar proceeding to wind up or liquidate the company has been notified to it and remains outstanding in any place and no order has been notified to the company, or resolution adopted, to wind up or liquidate it in any place, (ii) the appointment of a receiver, liquidator, examiner or other similar person has not been notified to the company and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the company or its property or any part of its property, (iii) the company is not, at the date of the declaration, operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the company with creditors in any place, (iv) the conversion is permitted by and has been approved in accordance with the memorandum of association and articles of association of the company, and (v) any consented approval to the proposed conversion required by any contract entered into or undertaking given by the company has been obtained or varied, (e) a declaration of solvency prepared in accordance with section 141 , (f) a schedule of charges or security interests created or granted by the company showing their priority which shall be as it would be were it to remain a company, and (g) where different from its existing name, notification of the proposed name of the ICAV (other than where the only change is to delete the words “public limited company” or “plc” from the company’s existing name).
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(4)The application shall be accompanied by a statutory declaration, in such form as may be specified by the Bank, made by— (a) a practising solicitor engaged for this purpose by the company, or (b) a director of the company, stating that the requirements referred to in subsection (3) have been complied with and the Bank may accept such a declaration as sufficient evidence of compliance.
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(5)The Bank shall, as soon as is practicable after receipt of an application under subsection (1) in relation to which subsections (2) to (4) are complied with, publish notice of it in the Iris Oifigiúil.
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Declaration of solvency 141. (1) Where an application is made by a company under section 140 a director of the company making the application shall make a statutory declaration stating that he or she has made a full inquiry into its affairs and has formed the opinion that the company is able to pay its debts as they fall due.
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(2)A declaration is of no effect unless— (a) it is made not more than 28 days before the date on which the application is made, (b) it contains a statement of the company’s assets and liabilities as at the latest practicable date before the making of the declaration, and, in any case, as at a date that is not more than 3 months before the date of the making of the declaration, and (c) a report made by an independent person under subsection (4) is attached to the declaration, along with a statement by the independent person that he or she has given and has not withdrawn consent to the making of the declaration with the report attached to it.
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(3)The report mentioned in subsection (2) (c) shall state whether, in the independent person’s opinion, based on the information and explanations given to him or her, the opinion of the director mentioned in subsection (1) and the statement of the company’s assets and liabilities referred to in subsection (2)(b), are reasonable.
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(4)The independent person shall be a person who, at the time the report is made, is qualified to be auditor of the applicant.
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(5)A director who makes a declaration under this section without having reasonable grounds for the opinion that the company is able to pay its debts as they fall due commits a category 2 offence.
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(6)Where the company is wound up within a year after the date on which the application is made and its debts are not paid or provided for in full within that year, it shall be presumed, unless the contrary is shown, that the director did not have reasonable grounds for his or her opinion.
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Registration pursuant to application for conversion 142. (1) Where the Bank receives an application under section 140 which complies with the requirements of that section, the Bank shall— (a) issue a registration order in respect of the registration of the company as an ICAV, and (b) enter in a register the details of charges and securities interests of the ICAV.
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(2)The company shall then make an application to the Registrar in the form prescribed by the Minister for Jobs, Enterprise and Innovation to be de-registered as a company.
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(3)On receipt of an application under subsection (2) the Registrar shall issue a certificate of de-registration of the company, shall enter in the register of companies that the company is de-registered and shall forthwith publish notice in the Companies Registration Office Gazette of the following matters: (a) the date of the registration of the company as an ICAV under this section; (b) the previous name of the company if different from the name under which it is registered as an ICAV.
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(4)From the date of the registration of the company as an ICAV, the company shall become an ICAV, and shall cease to be a company, for all purposes but this section does not operate— (a) to prejudice or affect the identity or continuity of the company as previously established and registered for the period for which it was established and registered in the State, (b) to affect any contract made, resolution passed or any other act or thing done in relation to the company during the period that it was so established and registered, (c) to affect the rights, authorities, functions and liabilities or obligations of the company or any other person, or (d) to render defective any legal proceedings by or against the company.
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(5)In particular— (a) the failure of the company to send to the Bank the particulars of a charge or security interest created before the date of registration shall not prejudice any rights which any person, in whose favour the charge was made or security interest created, may have under it, and (b) any legal proceedings that could have been continued or commenced by or against the company before its registration under subsection (1) as an ICAV may, despite the registration, be continued or commenced by or against it after registration.
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(6)On the registration of an investment company as an ICAV, the Bank shall immediately authorise it to carry on business.
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(7)On the registration of an UCITS as an ICAV, the UCITS shall continue to be authorised under the UCITS Regulations.
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(8)
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Section 889
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of the Companies Act 2014 has effect as if this section were a provision of that Act.
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Further statutory declarations 143. Where there is any material change in any of the information contained in the statutory declaration referred to in section 141
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(1)after the date of the declaration and before the date of the registration, the director who made that statutory declaration, and any other director who becomes aware of that material change, shall immediately deliver a new statutory declaration to the Bank relating to the change.
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Failure to comply 144. (1) Where a company that has become registered as an ICAV under section 142
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(1)has failed to comply with this Part the Bank may give notice to the ICAV that, unless it rectifies the failure within 1 month after the date of the giving of notice and confirms that it has rectified the failure, a notice may be published in the Iris Oifigiúil with a view to striking it off the register of ICAVs.
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(2)Where the failure mentioned in subsection (1) is not rectified within 1 month after the date of the giving of the notice referred to in that subsection, the Bank may publish in the Iris Oifigiúil a notice stating that, at the end of 1 month after the date of that notice, the ICAV will, unless the matter is resolved, be struck off the register of ICAVs and will be dissolved.
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(3)At the end of the time mentioned in the notice, the Bank may, unless cause to the contrary is previously shown by the ICAV, revoke the relevant authorisation of the ICAV and strike the ICAV off the register, and shall publish notice thereof in the Iris Oifigiúil, and on that publication, the ICAV shall be dissolved.
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PART 9
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Migration
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Chapter 1
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Migration-in to become ICAV Definitions 145. (1) In this Chapter— “migrating body” means a body corporate which is established and registered under the laws of a relevant jurisdiction and which is a collective investment undertaking; “registration documents” has the meaning given by section 146 ; “relevant jurisdiction”, in relation to a migrating body, means the place, outside the State, prescribed under subsection (2) where the migrating body is established and registered at the time of its application under section 147 .
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(2)The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of “relevant jurisdiction” in subsection (1) where he or she is satisfied that the law of the place concerned makes provision for migrating bodies to continue under the laws of the State or for Irish collective asset-management vehicles to continue under the laws of that place in a substantially similar manner to continuations under section 147 .
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Registration documents 146. (1) In this Chapter “registration documents”, in relation to a migrating body, means the following documents: (a) a copy, certified and authenticated in such manner as may be specified by the Bank, of the certificate of registration or equivalent certificate or document issued with respect to the migrating body under the laws of the relevant jurisdiction; (b) a copy, certified and authenticated in such manner as may be specified by the Bank, of the instrument of incorporation, or memorandum and articles, of the migrating body or equivalent constitutive document of the migrating body; (c) a list setting out particulars in relation to the directors and secretary of the migrating body in accordance with the provisions of section 11 ; (d) a statutory declaration of a director of the migrating body made, in such manner and form as may be specified by the Bank, not more than 28 days before the date on which an application is made to the Bank under section 147 to the effect that— (i) the migrating body is, as of the date of the declaration, established and registered in the relevant jurisdiction, no petition or other similar proceeding to wind up or liquidate the migrating body has been notified to it and remains outstanding in any place, and no order has been notified to the migrating body or resolution adopted to wind up or liquidate the migrating body in any place, (ii) the appointment of a receiver, liquidator or other similar person has not been notified to the migrating body and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the migrating body or its property or any part of its property, (iii) the migrating body is not, at the date of the declaration, operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the migrating body with creditors in any place, (iv) at the date of the declaration the migrating body has served notice of the proposed registration on the creditors of the migrating body, (v) any consent or approval to the proposed registration in the State required by any contract entered into or undertaking given by the migrating body has been obtained or waived, and (vi) the registration is permitted by and has been approved in accordance with the instrument of incorporation, or memorandum and articles, or equivalent constitutive document of the migrating body; (e) a declaration of solvency prepared in accordance with Chapter 3;
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(f) a schedule of the charges or security interests created or granted by the migrating body that would, if such charges or security interests had been created or granted by an ICAV, have been registerable under Part 6 and the particulars of such charges and interests as are specified in relation to charges by that Part; (g) notification of the proposed name of the migrating body if different from its existing name; (h) a copy of the instrument of incorporation which the migrating body has resolved to adopt, which shall be in the Irish language or the English language, which shall take effect on registration under section 147 and which the migrating body undertakes not to amend before registration without the prior approval of the Bank.
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(2)If the original of any of the documents referred to in subsection (1) is not written in the Irish language or the English language, then “registration documents” in so far as that expression relates to such a document, means a translation of the document into the Irish language or the English language certified as being a correct translation of it by a person who is competent to so certify.
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Continuation of migrating body 147. (1) A migrating body may apply to the Bank to be registered as an ICAV in the State by way of continuation.
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(2)Where an application is made under subsection (1), the Bank shall not register the migrating body as an ICAV in the State unless it is satisfied that all of the requirements of this Act in respect of the registration and of matters precedent and incidental to the registration have been complied with and, in particular, but without prejudice to the generality of the foregoing, the Bank is satisfied that— (a) the migrating body has delivered to the Bank an application for the purpose, in such manner and form as may be specified by the Bank and signed by a director of the migrating body, together with the registration documents, (b) the name or, if relevant, the proposed new name of the migrating body is not, in the opinion of the Bank undesirable or misleading, (c) the migrating body has delivered to the Bank notice of the address of its proposed registered office in the State, and (d) the migrating body has applied to the Bank for a relevant authorisation and the Bank has notified the migrating body that it proposes to grant the relevant authorisation.
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(3)An application under subsection (1) shall be accompanied by a statutory declaration, in such form as may be specified by the Bank, made by a solicitor engaged for this purpose by the migrating body, or by a director of the migrating body, and stating that the requirements mentioned in subsection (2) have been complied with, and the Bank may accept such a declaration as sufficient evidence of compliance.
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(4)The Bank shall, as soon as is practicable after receipt of the application for registration, publish notice of it in the Iris Oifigiúil.
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(5)Where the Bank notified the migrating body as mentioned in subsection (2)(d) the Bank shall issue a registration order in relation to the migrating body by way of continuation of the migrating body as an ICAV under the laws of the State and, if it issues a registration order shall enter in the register of ICAVs the details of charges and securities interests of the migrating body.
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(6)The migrating body shall, as soon as may be after being registered under subsection (5), apply to be de-registered in the relevant jurisdiction.
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(7)The Bank shall enter in the register of ICAVs the date of registration of the migrating ICAV and shall forthwith publish notice in the Iris Oifigiúil of the following matters: (a) the date of the registration of the migrating body under this section; (b) the relevant jurisdiction; (c) the previous name of the migrating body if different from the name under which it is being registered as an ICAV.
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(8)From the date of registration, the migrating body shall be deemed to be an ICAV formed and registered under this Act and shall continue for all purposes under this Act, and the provisions of this Act shall apply to the migrating body, but this section does not operate— (a) to create a new legal entity, (b) to prejudice or affect the identity or continuity of the migrating body as previously established and registered under the laws of the relevant jurisdiction for the period that the migrating body was established and registered in the relevant jurisdiction, (c) to affect any contract made, resolution passed or any other act or thing done in relation to the migrating body during the period that the migrating body was so established and registered, (d) to affect the rights, authorities, functions and liabilities or obligations of the migrating body or any other person, or (e) to render defective any legal proceedings by or against the migrating body.
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(9)Without prejudice to the generality of subsection (8) — (a) the failure of a migrating body to send to the Bank the particulars of a charge or security interest created before the date of registration shall not prejudice any rights which any person in whose favour the charge was made or security interest created may have under it, and (b) any legal proceedings that could have been continued or commenced by or against the migrating body before its registration under this section may, notwithstanding the registration, be continued or commenced by or against the migrating body after registration.
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Supplementary provision in relation to section 147 148. (1) The migrating body shall notify the Bank, within 3 days after the date of its de- registration in the relevant jurisdiction, of that de-registration in such manner and form as may be specified by the Bank.
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(2)On registration of the migrating body under section 147
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(5)the Bank shall forthwith authorise the migrating body to carry on business.
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(3)If there is any material change in any of the information contained in the statutory declaration mentioned in paragraph (d) of the definition of “registration documents” in section 146
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(1)after the date of the declaration and before the date of the registration under section 147 , the director who made that statutory declaration, and any other director who becomes aware of that material change, shall forthwith deliver a new statutory declaration to the Bank relating to the change.
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(4)If the migrating body fails to comply with any provision of section 147 or this section, the Bank may give notice to the ICAV that, unless it rectifies the failure within 30 days after the date of the giving of notice and confirms that it has rectified the failure, a notice may be published in the Iris Oifigiúil with a view to striking it off the register of ICAVs.
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(5)If the failure mentioned in subsection (4) is not rectified within 30 days after the date of the giving of the notice referred to in that subsection, the Bank may publish in the Iris Oifigiúil a notice stating that, at the expiration of 1 month after the date of that notice, the migrating body will, unless the matter is resolved, be struck off the register of ICAVs, and the migrating body will be dissolved.
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(6)At the expiration of the time mentioned in the notice the Bank may, unless cause to the contrary is shown by the migrating body, revoke the relevant authorisation of the migrating body and strike the migrating body off the register of ICAVs and shall publish notice thereof in the Iris Oifigiúil, and, on that publication, the migrating body shall be dissolved.
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(7)For the purposes of this section section 166 shall apply as if reference in it to Chapter 1 of Part 11 included a reference to this section and, accordingly, the other provisions of Chapter 2 of that Part shall apply with any necessary modifications.
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Chapter 2
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De-registration following migration out Definitions 149. (1) In this Chapter— “applicant” means an ICAV that applies under section 150 to be de-registered under section 151 ; “relevant jurisdiction”, in relation to an ICAV, means the place, outside the State, prescribed under subsection (2) in which the ICAV proposes to be registered; “transfer documents”, in relation to an applicant, means the following documents: (a) a statutory declaration, in such form as may be specified by the Bank, of a director of the applicant made not more than 28 days before the date on which the application is made to the Bank to the effect that— (i) the applicant will, upon registration, continue as a body corporate under the laws of the relevant jurisdiction, (ii) no petition or other similar proceeding to wind up or liquidate the applicant has been notified to the applicant and remains outstanding in any place, and no order has been notified to the applicant or resolution adopted to wind up or liquidate the applicant in any place, (iii) the appointment of a receiver, liquidator or other similar person has not been notified to the applicant and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the applicant or its property or any part of its property, (iv) the applicant is not, at the date of the declaration, operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the applicant with creditors in any place, (v) the application for de-registration is not intended to defraud persons who are, at the date of the declaration, creditors of the applicant, (vi) any consent or approval to the proposed de-registration required by any contract entered into or undertaking given by the applicant has been obtained or waived, and (vii) the de-registration is permitted by the instrument of incorporation of the applicant; (b) a declaration of solvency prepared in accordance with the provisions of Chapter 3; (c) a copy of a special resolution of the applicant that approves the proposed de- registration and the transfer of the applicant to the relevant jurisdiction.
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(2)The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of “relevant jurisdiction” in subsection (1), where he or she is satisfied that the law of the place concerned makes provision for bodies corporate that are substantially similar to applicants under section 150 to continue under the laws of the State in a substantially similar manner to continuations under section 147 or for Irish collective asset-management vehicles to continue under the laws of that place.
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De-registration of ICAVs when continued under law of place outside the State 150. (1) An ICAV which proposes to be registered in a relevant jurisdiction by way of continuation as a body corporate may apply to the Bank to be de-registered in the State.
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(2)Where an application is made under subsection (1), the Bank shall not de-register the applicant as an ICAV in the State unless it is satisfied that all of the requirements of this Act in respect of the de-registration and of matters precedent and incidental to de- registration have been complied with and, in particular, but without prejudice to the generality of the foregoing, it is satisfied that— (a) the applicant has delivered to the Bank an application for the purpose, in such form as may be specified by the Bank and signed by a director of the applicant, together with the transfer documents, (b) the applicant has paid any levies or fees prescribed under section 32D or 32E of the Central Bank Act 1942 which are due, (c) the applicant complies with any conditions that the Central Bank may impose on the applicant, and (d) the applicant has delivered to the Bank notice of any proposed change in its name and of its proposed registered office or agent for service of process in the relevant jurisdiction.
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(3)An application under this section shall be accompanied by a statutory declaration, in such form as may be specified by the Bank, made by a solicitor engaged for this purpose by the applicant, or by a director of the applicant, and stating that the requirements mentioned in subsection (2) have been complied with, and the Bank may accept such a declaration as sufficient evidence of compliance.
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(4)The Bank shall, as soon as is practicable after receipt of the application for de- registration, publish notice of it in the Iris Oifigiúil.
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(5)Where an application is made under subsection (1) a person mentioned in subsection (6) may apply to the High Court, on notice to the applicant, the Bank and all creditors of the applicant, not later than 60 days after the date of the publication of the notice under subsection (4), for an order preventing the proposal or passage of a resolution specified in paragraph (c) of the definition of “transfer documents” in section 149
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(1)from taking effect in relation to the application, and the High Court may, subject to subsection (9) make such an order accordingly.
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(6)The following persons may apply for an order under subsection (5) : (a) the holders of not less than 5 per cent of the issued share capital of the applicant and who have not voted in favour of the resolution; or (b) any creditor of the applicant.
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(7)Notice of an application for an order under subsection (5) may be given to the creditors concerned by publication in at least one national newspaper in the State.
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(8)The Bank and the applicant shall each be entitled to appear and be heard on an application under subsection (5) .
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(9)The court may make an order under this section only if it is satisfied that— (a) the proposed de-registration of the applicant would contravene the terms of an agreement or arrangement between the applicant and any shareholder or creditor of the applicant, or (b) the proposed de-registration would be materially prejudicial to any shareholder or creditor of the applicant and the interests of shareholders and creditors or both taken as a whole would be materially prejudiced.
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(10)An order made under subsection (5) shall specify the period in respect of which it shall remain in force.
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(11)An order of the court under subsection (5) is final and conclusive and not appealable.
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Provisions supplementary to section 150 151. (1) Unless the High Court orders otherwise, when one or more than one application is made under section 150
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(5), a resolution specified in paragraph (c) of the definition of “transfer documents” in section 149
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(1)in relation to an ICAV shall not take effect until— (a) where the application or all the applications to the High Court are withdrawn— (i) the day on which the resolution is passed, (ii) the day next following the day on which the last outstanding application is withdrawn, or (iii) the 31st day following the publication of the notice on the creditors under section 150
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(7), whichever is the latest, and (b) where all applications to the High Court are not withdrawn— (i) the day on which the resolution is passed, (ii) the day specified in the order or, if no date is specified in the order, the day next following the day on which the period for which the order is specified to remain in force expires or otherwise ceases to be in force, or (iii) the day next following the decision of the High Court, whichever is the latest.
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(2)When the applicant is registered as a body corporate under the laws of the relevant jurisdiction, it shall give notice, in such form as may be specified by the Bank, to the Bank of that fact within 3 days after the date of its becoming so registered, including its new name (if any), and as soon as practicable after receiving that notice, the Bank shall revoke the applicant’s relevant authorisation and issue a certificate of de- registration of the applicant.
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(3)The Bank shall enter in the register of ICAVs the date of the de-registration of the applicant and shall, within 7 days of the date of issue of the certificate under subsection (2), publish in Iris Oifigiúil notice of the following matters: (a) the date of the de-registration of the applicant under this section; (b) the relevant jurisdiction; (c) the new name of the applicant if different from the name under which it was registered as an ICAV.
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(4)From the date of registration of the applicant in the relevant jurisdiction, it shall cease to be an ICAV for all purposes of this Act and shall continue for all purposes as a body corporate under the laws of the relevant jurisdiction, but this section does not operate— (a) to create a new legal entity, (b) to prejudice or affect the identity or continuity of the applicant as previously constituted under the laws of the State for the period that the applicant was so constituted, (c) to affect any contract made, resolution passed or any other act or thing done in relation to the applicant during the period that the applicant was constituted under the laws of the State, (d) to affect the rights, authorities, functions and liabilities or obligations of the applicant or any other person, or (e) to render defective any legal proceedings by or against the applicant.
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(5)Without prejudice to the generality of subsection (2) any legal proceedings that could have been continued or commenced by or against the applicant before its de-registration under this Chapter may, notwithstanding the de-registration, be continued or commenced by or against the applicant after registration in the relevant jurisdiction.
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Chapter 3
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Declaration of solvency Statutory declaration as to solvency 152. (1) Where an application is made under Chapter 1 or 2 a director of the migrating body or ICAV making the application shall make a statutory declaration, in such form as may be specified by the Bank, stating that he or she has made a full inquiry into its affairs and has formed the opinion that the migrating body or ICAV is able to pay its debts as they fall due.
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(2)A declaration under subsection (1) shall have no effect for the purposes of this Chapter unless— (a) it is made not more than 28 days before the date on which the application is made to the Bank, (b) it contains a statement of the migrating body’s or ICAV’s assets and liabilities as at the latest practicable date before the date of the making of the declaration and in any event at a date not more than 3 months before the date of that making, and (c) a report made by an independent person under subsection (3) is attached to the declaration, along with a statement by the independent person that he or she has given and has not withdrawn consent to the making of the declaration with the report attached to it.
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(3)The report mentioned in subsection (2) (c) shall state whether, in the independent person’s opinion, based on the information and explanations given to him or her, the opinion of the director mentioned in subsection (1) and the statement of the migrating ICAV’s or applicant’s assets and liabilities referred to in subsection (2)(b), are reasonable.
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(4)For the purposes of subsection (3), the independent person shall be a person who, at the time the report is made, is— (a) in the case of an application under Chapter 1, qualified to be the auditor of the migrating body under the laws of the relevant jurisdiction, and (b) in the case of an application under Chapter 2, qualified to be the auditor of the ICAV.
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(5)A director who makes a declaration under this section without having reasonable grounds for the opinion that the migrating body or ICAV is able to pay its debts as they fall due commits a category 2 offence.
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(6)Where the migrating body or ICAV is wound up within 1 year after the date on which the application is made to the Bank and its debts are not paid or provided for in full within that year, it shall be presumed, unless the contrary is shown, that the director did not have reasonable grounds for his or her opinion.
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PART 10
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Receivers and Winding Up
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Chapter 1
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Receivers Receivers 153. (1) The provisions of Part 8 of the Companies Act 2014 , and the other provisions of that Act relating to receivers, apply, subject to the necessary modifications and to the specific modifications specified in subsection (2), in relation to an ICAV as if it were an investment company.
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(2)The modifications are the following: (a) references to the Registrar are to the Bank; (b) references to the prescribed form are to such form as may be specified by the Bank; (c) references in section 431(1)(e) to such further or other information as may be prescribed are to such further or other information as may be specified by the Bank; (d) in section 439(4) the reference to section 220 is to section 77 of this Act and paragraphs (b) and (c) are omitted; (e) the references in section 447 to the Director of Corporate Enforcement include the Bank.
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Chapter 2
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Winding up Winding up 154. (1) The provisions of Part 11 of the Companies Act 2014