Investor Compensation Act, 1998
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Amendment of section 2 of Act of 1995. |
52.—Section 2 of the Act of 1995 is hereby amended— | |
(a) in subsection (1)— | ||
(i) in the definition of “investment advice” by the insertion in paragraph (d) after “and the purchase” of “or sale” and the paragraph as so amended is set out in the Table to this paragraph. | ||
TABLE | ||
(d) advice to undertakings on capital structure, industrial strategy and related matters and advice relating to mergers and the purchase or sale of undertakings, | ||
(ii) in the definition of “investment advice” in paragraph (e) by the substitution for “is a necessary part of” of “arises from” and the paragraph as so amended is set out in the Table to this subparagraph. | ||
TABLE | ||
(e) advice given by persons in the course of the carrying on of any profession or business not otherwise constituting the business of an investment business firm, where the giving of such advice arises from other advice or services given in the course of carrying on that profession or business, and where the giving of investment advice is not remunerated or rewarded separately from such other advice or services; | ||
(iii) in the definition of “investment business firm” by the insertion after “credit institution” of “or member firm (within the meaning of the Stock Exchange Act, 1995 )” in each place it occurs and the definition as so amended is set out in the Table to this subparagraph. | ||
TABLE | ||
“investment business firm” means any person, other than a member firm within the meaning of the Stock Exchange Act, 1995 , who provides one or more investment business services or investment advice to third parties on a professional basis and for this purpose where an individual provides an investment business service and where that service is carried on solely for the account of and under the full and unconditional responsibility of an investment business firm or an insurance undertaking or a credit institution or member firm (within the meaning of the Stock Exchange Act, 1995 ) that activity shall be regarded as the activity of the investment business firm, insurance undertaking or credit institution or member firm (within the meaning of the Stock Exchange Act, 1995 ) itself; | ||
(iv) in the definition of “investment instruments”— | ||
(I) in paragraph (a) by the insertion after “certificates representing securities,” of “or money market instruments,”, | ||
(II) in paragraph (g) by the substitution for “financial instruments” of “investment instruments”, | ||
(III) by the insertion after paragraph (j) of the following paragraph: | ||
“(jj) a rolling spot foreign exchange contract,”, | ||
(IV) by the insertion after paragraph (k) of the following paragraph: | ||
“(kk) a tracker bond or similar instrument,”, | ||
and | ||
(V) by the insertion after subparagraph (III) of “and the Minister may, by regulation, having consulted the supervisory authority, amend this definition from time to time by adding to the list of instruments in this definition any other instruments which, in the opinion of the Minister, have characteristics similar to the instruments listed in this definition.”, | ||
and the definition as so amended is set out in the Table to this subparagraph. | ||
TABLE | ||
“investment instruments” includes— | ||
(a) transferable securities including shares, warrants, debentures including debenture stock, loan stock, bonds, certificates of deposits and other instruments creating or acknowledging indebtedness issued by or on behalf of any body corporate or mutual body, government and public securities, including loan stock, bonds and other instruments creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority, bonds or other instruments creating or acknowledging indebtedness, certificates representing securities, money market instruments, | ||
(b) non-transferable securities creating or acknowledging indebtedness issued by or on behalf of a government, local authority or public authority, | ||
(c) units or shares in undertakings for collective investments in transferable securities within the meaning of European Communities (Undertakings for Collective Investments in Transferable Securities) Regulations, 1989 ( S.I. No. 78 of 1989 ), and any subsequent amendments thereto, units in a unit trust, shares in an investment company, capital contributions to an investment limited partnership, | ||
(d) financial futures contracts, including currency futures, interest rate futures, bond futures, share index futures and comparable contracts, | ||
(e) commodity futures contracts, | ||
(f) forward interest rate agreements, | ||
(g) agreements to exchange payments based on movements in interest rates, currency exchange rates, commodities, share indices and other investment instruments, | ||
(h) sale and repurchase and reverse repurchase agreements involving transferable securities, | ||
(i) agreements for the borrowing and lending of transferable securities, | ||
(j) certificates or other instruments which confer all or any of the following rights, namely— | ||
(i) property rights in respect of any investment instrument referred to in paragraph (a) of this definition; or | ||
(ii) any right to acquire, dispose of, underwrite or convert an investment instrument, being a right to which the holder would be entitled if he held any such investment to which the certificate or instrument relates; or | ||
(iii) a contractual right (other than an option) to acquire any such investment instrument otherwise than by subscription, | ||
(jj) a rolling spot foreign exchange contract, | ||
(k) options including— | ||
(i) options in any instrument in paragraphs (a) to (jj) of this definition, or | ||
(ii) currency, interest rate, commodity and stock options including index option contracts, | ||
(kk) a tracker bond or similar instrument, | ||
(l) hybrid instruments involving two or more investment instruments, | ||
and includes any investment instrument in dematerialised form, | ||
but this definition shall not be construed as applying to— | ||
(I) any instrument acknowledging or creating indebtedness for, or for money borrowed to defray, the consideration payable under a contract for the supply of goods or services; or | ||
(II) a cheque or other similar bill of exchange, a banker's draft or a letter of credit; or | ||
(III) a banknote, a statement showing a balance in a current, deposit or savings account or (by reason of any financial obligation contained in it) to a lease or other disposition of property, or an insurance policy; | ||
and the Minister, may by regulation, having consulted the supervisory authority, amend this definition from time to time by adding to the list of instruments in this definition any other instruments which, in the opinion of the Minister, have characteristics similar to the instruments listed in this definition; | ||
(b) in subsection (6)— | ||
(i) in paragraph (a) by the insertion after “provides investment business services” of “or investment advice”, | ||
(ii) in paragraph (e) by the substitution for “64/25” of “64/225”, | ||
(iii) by the substitution for paragraph (f) of the following paragraph— | ||
“(f) collective investment undertakings and the depositaries and managers of such undertakings, insofar as the activities of the collective investment undertaking or the depositaries or the managers are subject to regulation by the Bank, or”, and | ||
(iv) by the substitution for paragraph (h) of the following paragraphs: | ||
“(h) credit institutions which provide investment business services or investment advice and which, in so doing, do not exceed the terms of authorisations under Directive No. 77/780/EEC of 12 December 1977(1) as amended by Council Directive 89/646/EEC of 15 December 1989(2) as amended and extended from time to time, or | ||
(i) an investment business firm which the supervisory authority has determined does not require an authorisation because the provision of investment business services is only carried out because it is necessary to the main activities of the investment business firm, and, for these purposes, the determination of the supervisory authority shall be for a fixed period only and shall be subject to whatever reporting requirements the supervisory authority deems appropriate, or | ||
(j) the personal representative of a deceased person in respect of his actions as a personal representative or a trustee in respect of his actions as a trustee of a trust, where ‘personal representative’ has the same meaning as it has in the Succession Act, 1965 , and ‘trustee’ has the same meaning that it has in the Trustee Act, 1893 , provided that this paragraph shall not apply where the principal objective of the trust is to provide investment services to members of the public, or | ||
(k) notwithstanding the obligations imposed on liquidators and receivers under this Act, a person appointed as a liquidator or receiver of a company in respect of any activities relating to the liquidation or receivership, or | ||
(l) any collective investment undertaking including its manager which is not established in the State but which: | ||
(i) has received approval from the Bank, under the powers granted to it under other enactments, to market units of the undertaking in the State; or | ||
(ii) has been authorised by the competent authority of another Member State under Council Directive 85/611/EEC(1) , or | ||
(m) a practising member of an approved professional body, not being a certified person, who holds at his principal place of business, on behalf of clients, share certificates in private limited companies owned by those clients where the member holds the share certificates only in order to facilitate the orderly management of the private limited company's statutory records, where the holding of the share certificates arises from the provision of professional services by the member to the client.”. | ||