Irish Collective Asset-management Vehicle [ICAV] – Legal Office Notice 2 of 2015

image_printPrint Page

Legislation

  1. The commencement date of the Irish Collective Asset-management Vehicles Act 2015 [2015 Act] was the 12th March 2015.
  2. Part 1 Chapter 2 of the 2015 Act enables a body corporate known as an ICAV to be formed and Part 2 Chapter 1 of the 2015 Act provides for the registration and authorisation of an ICAV by the Central Bank.
    1. Section 12 of the 2015 Act provides for the Central Bank making a “registration order” in respect of an ICAV.
    2. Section 15 of the 2015 Act provides from the coming into operation of a registration order an ICAV shall constitute a body corporate.
  3. An investment company or UCITS constituted as a company in accordance with Regulation 4(6)(b) or (c) of the European Communities (Undertakings for Investment in Transferable Securities) Regulations 2011 (S.I. 352 of 2011) can be converted to an ICTV under Part 8 of the 2015 Act [sections 140 to 142]. Where a company applies to the Central Bank under Section 140 of the 2015 Act the company shall
    1. Make an application to the Registrar of Companies under Section 142(2) and
    2. Under Section 142(3) of the 2015 Act the Registrar of Companies shall issue a “certificate of de-registration” of the company.
  4. Part 6 of the 2015 Act is largely the same as Part 7 of the Companies Act 2014 [Charges and Debentures (including judgment mortgages see Section 92(1) of the 2015 Act)].
  5. The Central Bank is required to keep a register of inter alia
    1. Under Section 14 of the 2015 Act details of the registration order and other matters
    2. Under Section 98 a register of charges [including judgment mortgages]

This register “shall be kept in such a 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”.

  1. Receivers – Section 153 of the 2015 Act provides that the provisions of Part 8 of the Companies Act 2014 apply with necessary modifications to ICAV’s.
  2. Winding Up – Section 154 of the 2015 Act provides that the provisions of Part 11 of the Companies Act 2014 apply with necessary modifications to ICAV’s. In this regard note
    1. Section 614 of the Companies Act 2014 re the vesting of property in the liquidator [formerly Section 230 of the 103 Act] and
    2. Section 627(3) of the Companies Act 2014 re power of the liquidator to sell company property and execute deeds on behalf of the company [formerly Section 231 of the 1963 Act].
  3. Execution of documents
    1. An ICAV may provide itself with a common seal but there is no requirement to do so – Section 33 of the 2015 Act
    2. Whether the ICAV has a common seal or not a document has the same effect as if executed under the common seal of the ICAV if it is expressed (in whatever form of words) to be executed by the ICAV and it is signed on behalf of the ICAV [Section 32(5) of the 2015 Act] by
      1. 2 authorised signatories or
      2. By a director of the ICAV in the presence of a witness who attests the signature
    3. Each of the following is an authorised signatory [Section 32(6) of the 2015 Act]
      1. A director of the ICAV
      2. The secretary or any joint secretary of the ICAV
  • Any person authorised by the directors of the ICAV in accordance with the ICAV’s instrument of incorporation.
  1. If the secretary is a firm then an individual authorised by the firm to sign on its behalf – Section 32(8) of the 2015 Act.

PRA Practice

  1. The proof the PRA require for registration of an ICAV
    1. Is a certified copy of the Registration Order [see paragraph 2 above] from the Central Bank.
    2. In addition in the case of a converted company a certified copy of the Certificate of De-Registration of the company [see paragraph 3 above] should be lodged.
  2. In relation to first registration applications searches of the register maintained by the Central Bank [see paragraph 5(b) above] are required in the same manner that they are required in the CRO in relation to companies registered under the Companies Act 2014.
  3. In relation to execution of documents [if not under seal]
    1. By authorised signatories [see paragraph 8(b)(i) above] the PRA require evidence that the signatories are authorised e.g. solicitor’s certificate.
    2. By an individual authorised by a firm who is the secretary of the ICAV [see paragraph 8(d) above] the PRA require evidence of the authorisation e.g. solicitor’s certificate.

 

John Murphy
Deputy Registrar
2nd December 2015