Investment Limited Partnerships (Amendment) Act 2020
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Amendment of Act of 1994 - insertion of new Part VIII relating to migration-in and migration-out of investment limited partnerships | ||
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40. The Act of 1994 is amended by the insertion of the following Part after section 59 (inserted by section 39): | ||
“PART VIII | ||
Migration-in and migration-out of investment limited partnerships | ||
Chapter 1 | ||
Migration-in to become an investment limited partnership | ||
Definitions and supplemental (Chapter 1) | ||
60. (1) In this Chapter— | ||
‘general partner’, in relation to a migrating partnership, means the entity which acts as a general partner of the migrating partnership or performs an equivalent role to that of general partner in respect of it; | ||
‘investment limited partnership’ means an investment limited partnership authorised under this Act; | ||
‘migrating partnership’ means a partnership which is formed and where relevant registered under the laws of a relevant jurisdiction and which is an alternative investment fund within the meaning of Regulation 5(1) of the European Union (Alternative Investment Fund Managers) Regulations 2013; | ||
‘registration documents’ has the meaning given by section 61; | ||
‘relevant jurisdiction’, in relation to a migrating partnership, means the place, outside the State, prescribed under subsection (2) where the migrating partnership is formed and where relevant registered at the time of its application under section 62. | ||
(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 partnerships to continue under the laws of the State or for investment limited partnerships to continue under the laws of that place in a substantially similar manner to continuations under section 62. | ||
Registration documents | ||
61. (1) In this Chapter ‘registration documents’, in relation to a migrating partnership, means the following documents: | ||
(a) a copy, certified and authenticated in such manner as may be specified by the Bank, of the certificate of formation or registration or equivalent certificate or document issued with respect to the migrating partnership 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 partnership agreement of the migrating partnership; | ||
(c) a list setting out particulars in relation to each of the one or more general partners of the migrating partnership; | ||
(d) a statutory declaration of a general partner of the migrating partnership 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 62, to the effect that— | ||
(i) the migrating partnership is, as of the date of the declaration, formed and where relevant registered under the laws of the relevant jurisdiction and that no petition or other similar proceeding to wind up or liquidate the migrating partnership has been notified to any general partner of it and remains outstanding in any place, and no order has been notified to any general partner of it or resolution adopted by it to wind up or liquidate the migrating partnership in any place, | ||
(ii) the appointment of a liquidator or other similar person to the migrating partnership has not been notified to any general partner of it and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the migrating partnership or its property or any part of its property, | ||
(iii) the migrating partnership 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 any general partner of it in respect of the migrating partnership with creditors in any place, | ||
(iv) at the date of the declaration a general partner of the migrating partnership has served notice of the proposed authorisation on the creditors of the migrating partnership, | ||
(v) any consent or approval to the proposed authorisation in the State required by any contract entered into or undertaking given by a general partner in respect of the migrating partnership has been obtained or waived, and | ||
(vi) the authorisation is permitted by and has been approved in accordance with the partnership agreement of the migrating partnership; | ||
(e) a declaration of solvency prepared in accordance with Chapter 3; | ||
(f) if a general partner of the migrating partnership is a body corporate, a schedule of the charges or security interests granted or created on behalf of the migrating partnership by the general partner that would, if such charges or security interests had been created or granted by a company incorporated under the Companies Act 2014 , have been registrable under Chapter 2 of Part 7 of that Act and the particulars of such charges and interests as are specified in relation to charges by section 414 of that Act; | ||
(g) notification of the proposed name of the migrating partnership if different from its existing name; | ||
(h) a copy of the partnership agreement which the partners of the migrating partnership have resolved to adopt, which shall be in the Irish language or the English language, which shall take effect on authorisation under section 62 and which the general partner or, as the case may be, each general partner of the migrating partnership undertakes not to amend before authorisation without the prior approval of the Bank. | ||
(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. | ||
Continuation of migrating partnership | ||
62. (1) A general partner of a migrating partnership may apply to the Bank for the migrating partnership to be authorised under this Act as an investment limited partnership in the State by way of continuation; subject to the subsequent subsections of this section— | ||
(a) such an application shall be regarded as an application under this Act for authorisation of the migrating partnership as an investment limited partnership, and | ||
(b) the provisions of this Act in relation to— | ||
(i) an application for such authorisation, | ||
(ii) the conditions for such authorisation, | ||
(iii) the grant of such authorisation, | ||
(iv) all of the other requirements of this Act in respect of the authorisation of an investment limited partnership and of matters precedent and incidental to such authorisation and all of the provisions of this Act concerning an investment limited partnership that have effect on and from the grant of an authorisation in relation to it, | ||
shall apply in respect of, as appropriate— | ||
(I) the application referred to in this subsection or, as appropriate, the granting of the authorisation, on foot thereof, and | ||
(II) every other matter concerning the investment limited partnership, as provided by or under this Act, on and from the grant of the authorisation. | ||
(2) For the purposes of an application referred to in subsection (1) — | ||
(a) the general partner concerned shall notify, in writing, the Bank of its intention to make such an application, | ||
(b) the Bank, on receipt of that notification, shall request the general partner to make an application for an authorisation under section 8 in respect of the migrating partnership, | ||
and | ||
(i) the consideration by the Bank of the documentation specified in subsection (3) shall be postponed until such time as the Bank has notified the general partner, as provided under paragraph (ii), of the decision referred to in that paragraph (but this paragraph does not apply if the decision of the Bank, with regard to the relevant application, is otherwise than as stated in paragraph (ii) and, in the latter case, the foregoing documentation shall not be considered by it), and | ||
(ii) the Bank, following the relevant application made to it under section 8, shall (where such is the decision that it has made) notify the general partner that it proposes to grant the relevant authorisation under that section. | ||
(3) The notification under subsection (2) in respect of the application concerned shall be accompanied by— | ||
(a) a statement, in such form as may be specified by the Bank, and signed by a general partner of the migrating partnership, | ||
(b) the registration documents, and | ||
(c) a statutory declaration, in such form as may be specified by the Bank, made by a solicitor engaged for this purpose by the migrating partnership, or by the general partner, and stating that the list and schedule specified in paragraphs (c) and (f), respectively, of the definition of ‘registration documents’ in section 61(1) are accurate in all material respects, | ||
and the Bank may accept the declaration referred to in paragraph (c) as sufficient evidence as to the accuracy, as referred to in that paragraph, of the list and schedule concerned. | ||
(4) Subsection (5) applies unless, on foot of its consideration of the documentation specified in subsection (3), the Bank has grounds to doubt, as appropriate— | ||
(a) the authenticity of, or | ||
(b) the accuracy in any material respect of any fact stated in, | ||
that documentation. | ||
(5) Where this subsection applies, the Bank shall issue under section 8(6) a certificate of authorisation in respect of the migrating partnership following the notification to the general partner of its decision as referred to in subsection (2)(ii); that certificate shall include an indication that the authorisation granted under this Act in respect of the migrating partnership is an authorisation as an investment limited partnership in the State by way of continuation. | ||
(6) A general partner of the migrating partnership shall, as soon as may be after the certificate referred to in subsection (5) has been issued in respect of the migrating partnership, apply for the migrating partnership to be de-registered (if applicable or required) in the relevant jurisdiction. | ||
(7) From the date of the issue of the certificate referred to in subsection (5) in respect of it, the migrating partnership shall be deemed to be an investment limited partnership authorised under this Act and shall continue for all purposes under this Act, and the provisions of this Act shall apply to the migrating partnership, 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 partnership as previously formed and where relevant registered under the laws of the relevant jurisdiction for the period that the migrating partnership was formed and where relevant registered under the laws of the relevant jurisdiction, | ||
(c) to affect any contract made, resolution passed or any other act or thing done in relation to the migrating partnership during the period that the migrating partnership was so formed and where relevant registered, | ||
(d) to affect the rights, authorities, functions and liabilities or obligations of the migrating partnership or any other person, or | ||
(e) to render defective any legal proceedings by or against the migrating partnership. | ||
(8) Without prejudice to the generality of subsection (7) — | ||
(a) the failure of a general partner of a migrating partnership to send to the Bank the particulars of a charge or security interest created before the date of issue of the certificate referred to in subsection (5) 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 partnership or any general partner of it in respect of that migrating partnership before the date of issue of that certificate may, notwithstanding the issue of that certificate, be continued or commenced by or against the migrating partnership or a general partner of it in respect of that migrating partnership after the date of issue of that certificate. | ||
Supplementary provision in relation to section 62 | ||
63. (1) A general partner of the migrating partnership shall notify the Bank, within 3 days after the date of de-registration in the relevant jurisdiction, of that de-registration in such manner and, where relevant, form as may be specified by the Bank. | ||
(2) If there is any material change in any of the information contained in the statutory declaration specified in paragraph (d) of the definition of ‘registration documents’ in section 61(1) after the date of the declaration and before the date of the issue of the certificate referred to in section 62(5), the general partner who made that statutory declaration, and any other general partner who becomes aware of that material change, shall forthwith deliver a new statutory declaration to the Bank relating to the change. | ||
(3) If a general partner of the migrating partnership fails to comply with any provision of section 62 or this section, the Bank may give notice to the general partner 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, the Bank may, with view to exercising its powers under section 29(1)(c) to revoke the authorisation of the migrating partnership, publish a notice, as referred to in subsection (4), that states its intention to so revoke the migrating partnership’s authorisation and indicates, in brief terms, the grounds on which it will rely for such revocation. | ||
(4) If the failure mentioned in subsection (3) is not rectified within 30 days after the date of the giving of the notice referred to in that subsection, the Bank may publish a notice stating that, at the expiration of 1 month after the date of that notice, the Bank, unless the matter is resolved, may exercise its powers under section 29(1)(c) to revoke the authorisation of the migrating partnership and indicating, in brief terms, the grounds on which it will rely for such revocation. | ||
(5) At the expiration of the time mentioned in the notice the Bank may, unless cause to the contrary is previously shown by the migrating partnership, revoke the authorisation of the migrating partnership under section 29(1)(c). | ||
(6) The provision made by this section imposing requirements— | ||
(a) in relation to a proposed revocation under section 29(3) of an authorisation, as concerns the giving of a particular notice to a general partner of a migrating partnership, or | ||
(b) in relation to such a proposal, as concerns publishing a particular notice as respects the proposal, | ||
shall not be construed as imposing like requirements in cases generally of the proposed exercise of the power of revocation under section 29(3) (which cases shall, instead, be governed by the general law regarding procedural fairness). | ||
Chapter 2 | ||
Revocation of authorisation following migration-out | ||
Definitions and supplemental (Chapter 2) | ||
64. (1) In this Chapter— | ||
‘exiting partnership’ means an investment limited partnership that is the subject of the application under section 65 to have its authorisation revoked; | ||
‘relevant jurisdiction’, in relation to an exiting partnership, means the place, outside the State, prescribed under subsection (2) in which the partnership proposes to be registered; | ||
‘transfer documents’, in relation to an exiting partnership, means the following documents: | ||
(a) a statutory declaration, in such form as may be specified by the Bank, of a general partner of the partnership made not more than 28 days before the date on which the application is made to the Bank to the effect that— | ||
(i) the partnership will, upon registration, continue as a partnership under the laws of the relevant jurisdiction, | ||
(ii) no petition or other similar proceeding to wind up or liquidate the partnership has been notified to any general partner of it and remains outstanding in any place, and no order has been notified to any general partner of it or resolution adopted to wind up or liquidate the applicant in any place, | ||
(iii) the appointment of a liquidator or other similar person to the partnership has not been notified to any general partner of it and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the partnership or its property or any part of its property, | ||
(iv) the partnership 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 any general partner of it in respect of the partnership with creditors in any place, | ||
(v) the application for revocation of the authorisation of the partnership is not intended to defraud persons who are, at the date of the declaration, creditors of the partnership, | ||
(vi) any consent or approval to the proposed revocation required by any contract entered into or undertaking given by any general partner of it in respect of the partnership has been obtained or waived, and | ||
(vii) the revocation is permitted by the partnership agreement of the partnership; | ||
(b) a declaration of solvency by a general partner in respect of the exiting partnership prepared in accordance with the provisions of Chapter 3; | ||
(c) a copy of a resolution of the partners of the exiting partnership passed in accordance with the terms of the partnership agreement that approves the proposed revocation of the partnership’s authorisation and the migration of the partnership to the relevant jurisdiction. | ||
(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 partnerships that are substantially similar to exiting partnerships to continue under the laws of the State in a substantially similar manner to continuations under section 62 or for investment limited partnerships to continue under the laws of that place. | ||
Revocation of authorisation of investment limited partnerships when continued under law of place outside the State | ||
65. (1) A general partner which proposes its investment limited partnership to be registered in a relevant jurisdiction by way of continuation as a partnership may apply to the Bank for the authorisation of that investment limited partnership to be revoked under section 29(2). | ||
(2) Where an application is made under subsection (1), the Bank shall not revoke the authorisation of the investment limited partnership, the subject of the application, unless it is satisfied that all of the requirements of this Act in respect of that revocation and of matters precedent and incidental to that revocation have been complied with and, in particular, but without prejudice to the generality of the foregoing, it is satisfied that— | ||
(a) the general partner of the partnership has delivered to the Bank an application for the purpose, in such form as may be specified by the Bank and signed by the general partner, together with the transfer documents, | ||
(b) the general partner has paid in respect of the partnership any levies or fees prescribed under section 32D or 32E of the Central Bank Act 1942 which are due, | ||
(c) the partnership complies with any conditions that the Bank may impose on the partnership, and | ||
(d) the general partner of the partnership has delivered to the Bank notice of any proposed change in the name and of proposed registered office or agent for service of process of the partnership in the relevant jurisdiction. | ||
(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 general partner of the partnership 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. | ||
(4) Any partner of an investment limited partnership who complains that— | ||
(a) the procuring, by a general partner, any other partner or any person connected with the management of the partnership, of the passing of the resolution referred to in paragraph (c) of the definition of ‘transfer documents’ in section 64(1), or | ||
(b) the taking of any steps on foot thereof for the migration of the partnership to the relevant jurisdiction, | ||
constitutes conduct that— | ||
(i) is oppressive to him or her or any of the persons who are partners of the investment limited partnership (including himself or herself), or | ||
(ii) is in disregard of his or her or their interests as partners, | ||
may apply to the court for an order under subsection (5). | ||
(5) If, on an application under subsection (4), the court is of opinion that either of the matters referred to in paragraphs (a) and (b) of that subsection has resulted in conduct that falls within paragraph (i) or (ii) of that subsection the court may, with a view to bringing to an end the matters complained of, make such order or orders as it thinks fit. | ||
(6) The orders which the court may so make include an order— | ||
(a) directing or prohibiting any act or cancelling or varying any transaction (including cancellation of the revocation by the Bank of the partnership’s authorisation), | ||
(b) for the purchase of the partnership interest of the partner who has made the application under subsection (4) by other partners of the partnership, and | ||
(c) for the payment by the partnership of compensation to the partner who has made the application under subsection (4). | ||
Chapter 3 | ||
Declaration of solvency | ||
Definitions (Chapter 3) | ||
66. In this Chapter ‘migrating partnership’ and ‘exiting partnership’ have the meaning given, respectively, to them by Chapters 1 and 2. | ||
Statutory declaration as to solvency | ||
67. (1) Where an application is made under Chapter 1 or 2, the general partner of the migrating partnership or the exiting partnership, as the case may be, who makes 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 that partnership’s affairs and has formed the opinion that the migrating partnership or exiting partnership, as appropriate, is able to pay its debts as they fall due. | ||
(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 partnership’s or exiting partnership’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. | ||
(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 general partner mentioned in subsection (1) and the statement of the migrating partnership’s or exiting partnership’s assets and liabilities referred to in subsection (2)(b), are reasonable. | ||
(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 partnership 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 exiting partnership. | ||
(5) A general partner who makes a declaration under this section without having reasonable grounds for the opinion that the migrating partnership or exiting partnership, as appropriate, is able to pay its debts as they fall due shall be guilty of an offence. | ||
(6) Where the migrating partnership or exiting partnership is wound up within 1 year after the date on which the application is made to the Bank under Chapter 1 or 2 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 general partner referred to in subsection (1) did not have reasonable grounds for his or her opinion.”. |