Jersey Law 6/1988
COLLECTIVE INVESTMENT FUNDS (JERSEY) LAW, 1988.
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Arrangement of Articles
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1.
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Interpretation.
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2.
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Collective investment funds.
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3.
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Functionaries.
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4.
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Requirement for functionary to hold permit.
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5.
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Application for permit.
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6.
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Grant or refusal of permit, imposition of conditions
and cancellation of permit.
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7.
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Procedure and right of appeal on refusal or
cancellation etc., of permit.
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8.
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Power to obtain information and require production of
documents.
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9.
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Misleading statements and practices.
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10.
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Classification of collective investment funds.
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11.
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Compensation
schemes.
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12.
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Directions.
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13.
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Prospectuses.
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14.
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Offences and penalties.
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15.
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Legal proceedings.
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16.
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Accessories and abettors.
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17.
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Orders.
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18.
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Service of notices.
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19.
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Investigation by Committee.
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20.
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Applications to court.
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21.
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Actions for damages.
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22.
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Disclaimer of liability.
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23.
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Power to amend Article 2.
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24.
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Transitional provisions.
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25.
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Citation and commencement.
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SCHEDULE – Functionaries.
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COLLECTIVE INVESTMENT FUNDS (JERSEY) LAW, 1988.
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A LAW to
prohibit unauthorised persons from being functionaries of collective investment
funds; to regulate such functionaries and funds; and for connected purposes,
sanctioned by Order of Her Majesty in Council of the
17th day of FEBRUARY, 1988.
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(Registered on the 8th day of April, 1988.)
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STATES OF JERSEY.
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The 8th day of
December, 1987.
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THE STATES, subject to the sanction of
Her Most Excellent Majesty in Council, have adopted the following Law –
ARTICLE
1
Interpretation
(1) In
this Law, unless the context otherwise requires –
“books and papers” and “books or papers”
includes –
(a) accounts,
deeds, writings and documents, including microfilm; and
(b) matters
recorded otherwise than in legible form, but capable of being reproduced in
legible form;
“collective investment fund” has the meaning given in
Article 2;
“Committee” means the Finance and Economics Committee;
“company” means a body corporate wherever incorporated;
“court” means the Inferior Number of the Royal Court;
“functionary” means a functionary to whom this Law
applies;
“permit” means a permit granted under this Law;
“prescribed” means prescribed by an Order made by the
Committee;
“prospectus” means any prospectus, notice, circular,
advertisement, or other invitation, offering to the public for subscription,
sale or exchange any units; and also means any document or advertisement issued
by or on behalf of a functionary presenting to the public a description of, or
other information about, a collective investment fund;
“register” includes a register of issued bearer share
certificates or issued bearer unit certificates;
“Schedule” means the Schedule to this Law;
“unit” means any material representation of the rights
of participants with regard to the assets of a collective investment fund
whether such rights are represented –
(a) by
securities issued by the collective investment fund; or
(b) by
the entry of names of participants in a register kept in relation to the
collective investment fund; or
(c) by
any other means.
(2) A
reference in this Law to a numbered Article without further identification is a
reference to the Article so numbered in this Law.
(3) A
reference in any Article or other division of this Law to a paragraph,
sub-paragraph, or clause by number or letter only, and without further
identification, is a reference to the paragraph, sub-paragraph or clause of
that number or letter contained in the Article or other division of this Law in
which such reference occurs.
(4) Unless
the context otherwise requires, a reference in this Law to an enactment, is a
reference to that enactment as amended, extended or applied by or under any
other enactment, and to any enactment which repeals and re-enacts the first
mentioned enactment with or without further amendment.
ARTICLE
2
Collective investment funds
(1) For
the purposes of this Law any scheme or arrangement for the investment of money
is a collective investment fund if –
(a) it
has as its object or one of its objects the collective investment of capital
acquired by means of an offer to the public of units for subscription, sale or
exchange; and
(b) the
circumstances referred to in any sub-paragraph of paragraph (2) apply to the
fund.
(2) The
circumstances to which reference is made in sub-paragraph (b) of paragraph (1)
are as follows –
(a) units
are or are to be bought back or redeemed, directly or indirectly, out of the
assets of the fund; or
(b) units
are or have been or will be issued continuously or in blocks at short
intervals; or
(c) the
fund operates on the principle of risk spreading.
(3) For
the purposes of this Law –
(a) an
offer for subscription, sale or exchange of units constitutes an offer to the
public where the offer is not addressed exclusively to a restricted circle of
persons; and
(b) an
offer shall not be considered to be addressed to a restricted circle of persons
unless –
(i) the
offer is addressed to an identifiable category of persons to whom it is
directly communicated by the offeror or his appointed agent; and
(ii) the
members of that category are the only persons who may accept the offer and they
are in possession of sufficient information to be able to make a reasonable
evaluation of the offer; and
(iii) the
number of persons in the Bailiwick or elsewhere to whom the offer is so
communicated does not exceed fifty.
(4) For
the purposes of this Law –
(a) a
company which anywhere carries on long term insurance business of any class
specified in the First Schedule to the Insurance Business (Jersey) Law, 1983 (except Class V or Class VII) is deemed to be a
company issuing units of a collective investment fund; and
(b) the
contracts of any description in that Schedule (other than those referred to in
Class V and Class VII) are deemed to be units of a collective investment fund,
if money received from the public through the effecting of such contracts is
not received exclusively from a restricted circle of persons and such contracts
shall in the aggregate be deemed to be a collective investment fund.
(5) For
the purposes of paragraph (4) –
(a) money
shall not be considered to be received exclusively from a restricted circle of
persons unless –
(i) the
opportunity to invest money through such contracts is afforded exclusively to
an identifiable category of persons to whom the existence of the opportunity is
directly communicated by the insurer or his appointed agent; and
(ii) the
members of that category are the only persons who may invest money in such
contracts and they are in possession of sufficient information to be able to
make a reasonable evaluation of the investment; and
(iii) the
number of persons in the Bailiwick or elsewhere to whom the existence of such
opportunity is so communicated does not exceed fifty; and
(b) the
reference in paragraph (1) to capital acquired by means of an offer to the
public of units for subscription, sale or exchange shall be read as a reference
to capital acquired by means of the advertising or promotion of the opportunity
to invest money through such contracts.
(6) Without
prejudice to the generality of the foregoing provisions of this Article, a
company which by virtue of paragraph (4) is deemed to be a company issuing
units shall itself be deemed to be a collective investment fund.
ARTICLE
3
Functionaries
(1) The
Schedule shall apply for determining who is, or is to be treated as, a
functionary.
(2) The
Committee may by Order amend the provisions of the Schedule.
(3) An
Order made under this Article shall not come into operation before the
expiration of six months beginning on the date on which the Order is made.
ARTICLE
4
Requirement for functionary to hold permit
(1) Subject
to the provisions of this Law, no person shall in or from within the Bailiwick
be, or hold himself out as being, a functionary of a collective investment fund
except under a permit unless his function in relation to that collective
investment fund is to be performed wholly outside the Bailiwick and paragraph
(2) does not apply to him.
(2) Subject
to the provisions of this Law, no company incorporated under the “Loi
(1861) sur les Sociétés à Responsabilité
Limitée” shall in
or from within a country or territory outside the Bailiwick be, or hold itself
out as being, a functionary of a collective investment fund except under a
permit.
(3) Any
person who contravenes this Article shall be guilty of an offence but the
rights of the persons concerned in any transaction shall not be affected by
such contravention.
(4) Paragraph
(1) shall not apply to such persons or class of persons as may be prescribed.
ARTICLE
5
Application for permit
(1) An
application for a permit shall –
(a) be
in the form required from time to time by the Committee;
(b) describe
the function of the applicant;
(c) specify
the collective investment fund and the class thereof (if any) to which his
function relates;
(d) contain
or be accompanied by such other particulars as the Committee may require;
(e) be
verified in such manner and to such extent as the Committee may require; and
(f) be
accompanied by such fee as may be prescribed.
(2) Without
prejudice to the generality of sub-paragraph (d) of paragraph (1) the Committee
may require an applicant to furnish any information about the collective
investment fund to which his function relates which the Committee needs for the
purposes of paragraph (3).
(3) The
Committee, when considering an application for a permit, shall have regard to
the protection of the public and to the best economic interests of the Bailiwick
and to this end –
(a) shall
consider the function to be performed by the applicant, the reputation of the
applicant and the collective investment fund to which his function relates; and
(b) shall
also take into account any other functionaries there are or may be of the
collective investment fund to which the application relates.
ARTICLE
6
Grant or refusal of permit, imposition of conditions and
cancellation of permit
(1) The
Committee may grant a permit either unconditionally or subject to such conditions
as it considers appropriate, or may refuse to grant a permit.
(2) Every
permit shall specify the collective investment fund and the class of fund (if
any) to which the holder’s function relates.
(3) The
Committee may from time to time vary any condition attached to the grant of a
permit or attach a new condition.
(4) The
Committee may prescribe conditions applicable to –
(a) all
permits; or
(b) certain
classes of permits; or
(c) all
permits granted to certain functionaries or groups of functionaries; or
(d) all
permits granted in relation to collective investment funds of a certain kind.
(5) In
exercising its powers under paragraphs (3) and (4) of this Article, the
Committee shall have regard to the matters referred to in paragraph (3) of
Article 5.
(6) The
Committee may cancel a permit –
(a) if
the holder of the permit has not commenced his function in or from within the
Bailiwick within one year of the date of the grant of the permit; or
(b) if
the holder of the permit ceases to perform his function in or from within the
Bailiwick; or
(c) at
the request of the holder of the permit; or
(d) if
it appears to the Committee that any requirements of the Committee in respect
of the collective investment fund or the class thereof to which the
holder’s function relates are no longer satisfied; or
(e) if
it appears to the Committee that the holder of the permit has contravened any
provision of this Law, or any Regulation or Order made, or a condition of any
permit granted, under this Law or, in purported compliance with any such
provision, has furnished the Committee with false, inaccurate or misleading
information; or
(f) if
in the opinion of the Committee the cancellation of the permit is advisable for
the protection of the public or of the participants or potential participants
in the collective investment fund.
(7) If
the Committee acting under paragraph (3) varies a condition attached to a
permit or attaches a condition to a permit or acting under paragraph (6)
cancels a permit, it shall give notice thereof in writing to the holder of the
permit.
(8) The
Committee may prescribe fees to be paid by the holder of a permit and the
intervals at which such fees are to be paid.
ARTICLE
7
Procedure and right of appeal on refusal or cancellation, etc., of
permit
(1) Subject
to any order of court made under Article 20, if a condition attached to a
permit is varied, or a new condition is attached to a permit, or a permit is
revoked, such variation or such new condition, or such revocation, as the case
may be, shall not take effect before the expiration of –
(a) a
period of ninety days from the date on which notice in writing of the decision
of the Committee to make such variation or attach such new condition or revoke
such permit is given to the holder of the permit; or
(b) the
date on which an appeal (if any) is determined or abandoned;
whichever is later (but if may take effect earlier at the request
of the holder of the permit).
(2) Where
the Committee refuses the grant of a permit, or attaches any condition to the grant
of a permit, or varies any such condition, or revokes a permit, the applicant
or the holder of the permit, as the case may be, may by notice in writing
require the Committee to furnish to him within thirty days a statement in
writing of its reasons for that decision.
(3) Nothing
in paragraph (1) or (2) derogates from or otherwise affects a condition
prescribed under paragraph (4) of Article 6.
(4) Any
person aggrieved by such decision of the Committee may appeal to the court,
within ninety days after the notification of the decision of the Committee was
given, on the grounds that the decision of the Committee was unreasonable
having regard to all the circumstances of the case.
ARTICLE
8
Power to obtain information and require production of documents
(1) The
Committee may require a holder of a permit to furnish the Committee, at
specified times or intervals, with information about specified matters being,
if the Committee so requires, information verified in a specified manner.
(2) The
Committee may –
(a) require
a holder of a permit to produce, at such time and place as the Committee may
specify, such books and papers as it may specify; or
(b) authorise
any person, on producing (if required to do so) evidence of his authority, to
require a holder of a permit to produce to him forthwith any books or papers
which that person may specify.
(3) where
by virtue of paragraph (2) the Committee or a person authorised by it has power
to require the production of any books or papers from any holder of a permit,
the Committee or that person shall have the like power to require production of
those books or papers from any person who appears to the Committee or that
person to be in possession of them, but where any person from whom such
production is required claims a lien on books or papers produced by him or
claims that such books or papers are subject to legal professional privilege,
the power to require production shall be without prejudice to the lien or the
privilege, as the case may be.
(4) Any
power conferred by or by virtue of paragraphs (2) or (3) to require a holder of
a permit or other person to produce books or papers shall include power –
(a) if
the books or papers are produced –
(i) to
take copies of them or extracts from them; and
(ii) to
require a company holding a permit, or any other person, who is a present or
past director, controller or auditor of, or is or was at any time employed by,
the company in question, to provide an explanation of any of them;
(b) if
the books or papers are not produced, to require the person who was required to
produce them to state, to the best of his knowledge and belief, where they are.
(5) Nothing
in this Article shall empower the Committee or a person authorised by it to
require information, books or papers unless it is relevant to any investigation
relating to the holder of a permit.
(6) Subject
to the provisions of paragraph (7), any person who fails to comply with, or
with a requirement imposed under, this Article shall be guilty of an offence.
(7) Where
a person is charged with an offence in respect of his failure to comply with a
requirement imposed under paragraph (2) or (3) to produce any books or papers
it shall be a defence to prove that they were not in his possession or control
and that it was not reasonably practicable for him to comply with the
requirement.
(8) References
in paragraphs (2) to (4) to a holder of a permit include references to any
person who appears to the Committee to be acting in contravention of the
provisions of paragraphs (1) or (2) of Article 4 (Requirement for functionary
to hold permit).
ARTICLE
9
Misleading statements and practices
(1) Any
person who –
(a) makes
a statement, promise or forecast which he knows to be misleading, false or
deceptive or dishonestly conceals any material facts; or
(b) recklessly
makes (dishonestly or otherwise) a statement, promise or forecast which is
misleading, false or deceptive.
is guilty of an offence if he makes the statement, promise or
forecast or conceals the facts for the purpose of inducing, or is reckless as
to whether it may induce, another person (whether or not the person to whom the
statement, promise or forecast is made or from whom the facts are concealed) to
enter or offer to enter into, or refrain from entering or offering to enter
into, an investment agreement or to exercise, or refrain from exercising, any
rights conferred by units.
(2) Any
person who does any act or engages in any course of conduct which creates a
false or misleading impression as to the market in or the price or value of any
units is guilty of an offence if he does so for the purpose of creating that
impression and of thereby inducing another person to acquire, dispose of,
subscribe for or underwrite those units or to refrain from doing so or to
exercise, or refrain from exercising, any rights conferred by those units.
(3) In
proceedings brought against any person for an offence under paragraph (2) it
shall be a defence for him to prove that he reasonably believed that his act or
conduct would not create an impression that was false or misleading as to the
matters mentioned in paragraph (2).
(4) Paragraph
(1) does not apply unless –
(a) the
statement, promise or forecast was made in or from, or the facts are concealed
in or from, the Bailiwick; or
(b) the
person on whom the inducement is intended to or may have effect is in the
Bailiwick; or
(c) the
agreement is or would be entered into, or the rights are or would be exercised,
in the Bailiwick.
(5) Paragraph
(2) does not apply unless –
(a) the
act is done or the course of conduct is engaged in the Bailiwick; or
(b) the
false or misleading impression is created there.
(6) In
paragraph (1) “an investment agreement” means –
(a) any
agreement for or with a view to acquiring, disposing of, subscribing for or
underwriting units; or
(b) any
agreement under which a person is to receive advice as to the acquisition,
sale, subscription for or underwriting of units or as to the exercise of the
rights conferred by units.
(7) A
person guilty of any offence under this Article shall be liable to a fine or to
imprisonment for a term not exceeding seven years, or both.
ARTICLE
10
Classification of collective investment funds
(1) The
Committee may by Order –
(a) classify
collective investment funds; or
(b) specify
requirements which must be satisfied by a collective investment fund for
inclusion in a particular class or for remaining in such a class; or
(c) impose
requirements in respect of a class; or
(d) make
provision for the grant by the Committee of a certificate to the effect that a
collective investment fund satisfies the requirements for inclusion in the
class named in the certificate and is so included at the date of issue of the
certificate.
(2) Without
prejudice to paragraph (1), the Committee may by Order provide for the
constitution, management, control and winding up of a collective investment
fund, or any class of such fund, and prescribe the powers and duties of the
functionaries of any such fund and the rights and obligations of the
participants in any such fund.
(3) Without
prejudice to the generality of paragraph (2), Orders made thereunder may make
provision –
(a) as
to the issue and redemption of units;
(b) as
to the expenses of the collective investment fund and the means of meeting
them;
(c) for
the appointment, removal, powers and duties of an auditor for the collective
investment fund;
(d) for
restricting or regulating the investment and borrowing powers exercisable in
relation to the collective investment fund;
(e) requiring
the keeping of records with respect to the transactions and financial position
of the collective investment fund and for the inspection of those records;
(f) requiring
the preparation of periodical reports with respect to the collective investment
fund and the furnishing of those reports to the participants in the collective
investment fund and to the Committee; and
(g) with
respect to the amendment of the collective investment fund.
(4) Orders
under paragraph (2) may make provision as to the contents of the documents
constituting the collective investment fund (and as to contents which if
included shall be of no effect) including provision requiring any of the
matters mentioned in paragraph (3) to be dealt with in the documents; but
Orders under paragraph (2) shall be binding on the functionaries of and the
participants in the collective investment fund independently of the contents of
the documents and, in the case of the participants, shall have the effect as if
contained in them.
(5) For
the purposes of paragraph (4) “documents constituting the collective
investment fund” includes any agreements entered into between the
functionaries of the collective investment fund with each other and with the
collective investment fund.
ARTICLE
11
Compensation schemes
The States may by Regulations establish in relation to any class of
collective investment fund schemes for compensating investors in cases where
functionaries or former functionaries are unable, or likely to be unable, to
satisfy claims in respect of any description of civil liability incurred by
them in connexion with collective investment funds in that class.
ARTICLE
12
Directions
(1) Without
prejudice to Article 10, the Committee may give a direction under paragraph (2)
in respect of a collective investment fund, or any class of such fund.
(2) A
direction under this Article may –
(a) require
a functionary of the collective investment fund to cease the issue or
redemption, or both the issue and redemption, of units on a date specified in
the direction until such further date as is specified in that or another
direction;
(b) require
a functionary of the collective investment fund to wind it up by such date as
is specified in the direction or, if no date is specified, as soon as
practicable.
ARTICLE
13
Prospectuses
(1) The
Committee may, by Order, prohibit, restrict or control the promotion by or on
behalf of any person, of collective investment funds, or any class of such
funds.
(2) Without
prejudice to the generality of paragraph (1), or otherwise, Orders made under
this Article may –
(a) require
functionaries of collective investment funds –
(i) to
publish or make available to the public on request prospectuses containing such
information about the funds and complying with such requirements as are
prescribed;
(ii) to
provide for such a prospectus to contain such further information as is
necessary to give investors an informed assessment of any investment proposed
in the prospectus;
(iii) to
publish or make available a revised or further prospectus if –
(1) there
is a significant change affecting any matter contained in a prospectus
previously published or made available; or
(2) a
significant new matter arises the inclusion of information in respect of which
would have been required if it had arisen when the previous prospectus was
prepared;
(b) prohibit
the issue of prospectuses unless they have been filed with, or filed and
approved by, the Committee;
(c) provide
for the payment, by the person who is treated by the Order as being responsible
for the prospectus, of compensation to any person who has become or agreed to
become a participant in the fund and suffered loss as a result of any untrue or
misleading statement in the prospectus or the omission from it of any matter
required under the Order to be included;
(d) provide
for exemptions of any persons or class of persons from compliance with such an
Order, or a particular provision thereof;
(e) provide
generally for carrying such Orders into effect.
(3) Orders
made under this Article shall not affect any liability which any person may
incur apart from such an Order.
ARTICLE
14
Offences and penalties
(1) Any
person who –
(a) for
the purpose of procuring, whether for himself or another person, a permit; or
(b) in
purported compliance with a requirement imposed by or under this Law;
furnishes information which he knows to be false in a material
particular or recklessly furnishes information which is false in a material
particular, shall be guilty of an offence.
(2) Any
person who, with intent to avoid direction of the commission of an offence
under this Law –
(a) removes
or causes to be removed out of the jurisdiction; or
(b) destroys;
or
(c) conceals;
or
(d) fraudulently
alters,
any books or papers shall be guilty of an offence.
(3) Any
person guilty of an offence under this Law for which no special penalty is
provided shall be liable to a fine or to imprisonment for a term not exceeding
two years or to both such fine and such imprisonment.
(4) Where
a person continues to fail to comply with a requirement imposed under Article 8
(Power to obtain information etc.) after being convicted of that failure, he
shall be guilty of a further offence and liable to a fine for each day on which
the failure so continues or to imprisonment for a term not exceeding two years
or to both such fine and such imprisonment.
ARTICLE
15
Legal proceedings
(1) Where
an offence under this Law committed by a company is provided to have been
committed with the consent or connivance of, or be attributable to any neglect
on the part of, any director, manager, secretary, or other similar officer of
the company, or any person who was purporting to act in any such capacity, he
as well as the company shall be guilty of that offence and shall be liable to
be prosecuted and punished accordingly.
(2) For
the purposes of this Article, a person shall be deemed to be a director of a
company if he occupies in relation thereto the position of a director, by
whatever name called, or is a person in accordance with whose directions or
instructions the directors of the company or any of them act:
Provided that a person shall not, by reason only that the directors
of a company act on advice given by him in a professional capacity, be taken to
be a person in accordance with whose directions or instructions those directors
act.
(3) No
proceedings for an offence under this Law shall be instituted except by or with
the consent of the Attorney General.
(4) Notwithstanding
any enactment or rule of law to the contrary, proceedings which may be taken
against any person for an offence against this Law may be taken within the
period of a year and a day from the date on which evidence, sufficient in the
opinion of the Attorney General to justify the proceedings, comes to the
knowledge of the Committee, or where the person in question was outside the
Bailiwick at that date, within the period of a year and a day from the date on
which he first lands in the Bailiwick thereafter, whichever of the said periods
last expires.
(5) For
the purposes of paragraph (4), a certificate under the hand of the President of
the Committee as to the date on which such evidence as aforesaid came to the
knowledge of the Committee shall be conclusive evidence thereof.
ARTICLE
16
Accessories and abettors
Any person who knowingly and wilfully aids, abets, counsels,
causes, procures or commands the commission of an offence punishable under this
Law shall be liable to be dealt with, tried and punished as a principal
offender.
ARTICLE
17
Orders
(1) The
Committee may by Order make provision for the purpose of carrying this Law into
effect and in particular, but without prejudice to the generality of the
foregoing and subject to paragraph (3) of Article 3 (Functionaries to whom this
Law applies), for prescribing any matter which is to be prescribed under this
Law.
(2) An
Order made under this Law may –
(a) make
different provisions in relation to different cases or circumstances;
(b) contain
such incidental provisions as the Committee may consider to be necessary or
expedient.
(3) The
Subordinate Legislation (Jersey) Law, 1960, shall
apply to Orders made under this Law.
ARTICLE
18
Service of notices
(1) This
Article shall have effect in relation to any notice or other document required
or authorised by or under this Law to be given to or served on any person.
(2) Any
such document may be given to or served on the person in question –
(a) by
delivering it to him; or
(b) by
leaving it at his proper address; or
(c) by
sending it by post to him at that address.
(3) Any
such document may –
(a) in
the case of a company, be given to or served on the secretary, clerk or other
similar officer of the company or any person who purports to act in any such
capacity, by whatever name called;
(b) in
the case of a partnership, be given to or served on a partner or a person
having the control or management of the partnership business.
(4) For
the purposes of this Article and Article 12 of the Interpretation (Jersey) Law,
1954 (meaning of service by post) in its application to
this Article the proper address of any person to or on whom a document is to be
given or served shall be his last known address, except that –
(a) in
the case of a company or its secretary, clerk or other officer or person
referred to in sub-paragraph (a) of paragraph (3), it shall be the address of
the registered or principal office of the company;
(b) in
the case of a partnership or a person having the control or management of the
partnership business, it shall be that of the principal office of the
partnership;
and for the purposes of this paragraph the principal office of a
company registered outside the Bailiwick or of a partnership carrying on
business outside the Island shall be their principal office within the
Bailiwick.
(5) If
the person to be given or served with any document mentioned in paragraph (1)
has specified an address within the Bailiwick other than his proper address
within the meaning of paragraph (4) as the one at which he or someone on his
behalf will accept documents of the same description as that document, that
address shall also be treated for the purpose of this Article and Article 12 of
the Interpretation (Jersey) Law, 1954 as his
proper address.
ARTICLE
19
Investigation by Committee
(1) Where,
in the opinion of the Committee such action is advisable for the protection of
the public, or of participants or potential participants in a collective
investment fund, the Committee may appoint an inspector to investigate the
affairs of all or any of the holders of permits relating to the collective
investment fund and to make such further enquiries as the inspector may
consider necessary.
(2) An
inspector appointed under this Article may examine under oath the holder of a
permit, being an individual, and his servants or agents, and the directors,
officers, servants or agents of the holder of a permit, being a company, for
the purpose of obtaining any information that he considers necessary for the
purpose of his investigation.
(3) References
in paragraphs (1) and (2) to a holder of a permit include references to any
person who appears to the Committee to be acting in contravention of the
provisions of Article 4 (Requirement for functionary to hold permit).
(4) When
an inspector is appointed under this Article, it is the duty of all persons who
are liable to be examined under oath under paragraph (2) to give the inspector
all assistance in connexion with the investigation which they are reasonably
able to give.
(5) If
any person –
(a) refuses
to produce any book or document which it is his duty under Article 8 to
produce; or
(b) refuses
to attend before an inspector when required to do so; or
(c) refuses
to answer any question put to him by an inspector with respect to the affairs
of the functionary;
the inspector may certify the refusal to the court.
(6) The
court may thereupon enquire into the case; and, after hearing any witnesses who
may be produced against or on behalf of the alleged offender and after hearing
any statement which may be offered in defence, the court may punish the
offender in like manner as if he had been guilty of contempt of court.
(7) This
Article is in addition to and does not derogate from Article 8 (Power to obtain
information and require production of documents).
ARTICLE
20
Applications to court
(1) If
on the application of the Committee the court is satisfied that it is desirable
in the interest of the participants or potential participants in a collective
investment fund that paragraph (1) of Article 7 shall not have effect or shall
cease to have effect in any particular case, the court may so order.
(2) An
order under paragraph (1) may be made without notice to and without hearing any
functionary.
(3) If
it appears to the Committee –
(a) that
it is desirable in the interest of the participants or potential participants
in a collective investment fund; or
(b) that
a functionary has failed to comply with any provision of this Law, or of any
Regulation or Order made or permit granted, or with any direction given, under
this Law, or in purported compliance with any such provision has furnished to
the Committee false, inaccurate or misleading information;
the Committee may apply to the court for an order removing the
functionary and replacing him with a person nominated by the Committee and may
also apply for an order that the person nominated by the Committee procures the
winding up of the collective investment fund.
(4) On
an application under paragraph (3) the court may make such order as it thinks
fit, which may include provisions to facilitate the removal or replacement of a
functionary and the winding up of the collective investment fund.
(5) The
Committee shall give written notice of the making of an application under
paragraph (3) to the functionaries of the collective investment fund and take
such steps as it considers appropriate for bringing the making of the
application to the attention of participants in the collective investment fund.
(6) If
on the application of the Committee the court is satisfied –
(a) that
there is a reasonable likelihood that a person will fail to comply with a
provision of this Law, or of any Regulation or Order made or permit granted, or
with any direction given, under this Law; or
(b) that
a person has failed to comply with any such provision or direction and that
there is a reasonable likelihood that the failure will continue or be repeated;
or
(c) that
any person has failed to comply with any such provision or direction and that
there are steps that could be taken for remedying the failure;
the court may make an order preventing the failure or requiring
that person and any other person who appears to the court to have been
knowingly concerned in the failure to take such steps as the court may direct
to remedy it.
(7) If
on the application of the Committee the court is satisfied –
(a) that
profits have accrued to a person as a result of his failure to comply with any
provision of this Law, or of any Regulation or Order made, or permit granted,
or with any direction given, under this Law; or
(b) that
one or more investors have suffered loss or been otherwise adversely affected
as a result of that failure;
the court may make an order requiring the person concerned to pay
into court for distribution as the court may direct such sum as appears to the
court to be just having regard to the profits appearing to the court to have
accrued and to the extent of the loss or other adverse effect.
(8) On
an application under paragraph (7) the court may require the person concerned
to furnish it with such accounts or other information as it may require for
establishing whether any and, if so, what profits have accrued to him as
mentioned in sub-paragraph (a) of that paragraph and for determining how any
amounts are to be paid or distributed under that paragraph; and the court may
require any such accounts or other information to be verified in such manner as
it may direct.
ARTICLE
21
Actions for damages
A failure to comply with such provisions of this Law, or any
Regulation or Order made under it, as the States may by Regulations specify
shall be actionable at the suit of a person who suffers loss as a result of the
failure, subject to the defences and other incidents applying to actions for
breach of statutory duty; but no such failure shall invalidate any transaction.
ARTICLE
22
Disclaimer of liability
Neither the States, nor the Committee, nor any person who is a
member of the Committee, or who is or is acting as an officer, servant or agent
of the Committee, or who is an inspector appointed by the Committee under
Article 19, shall be liable in damages for anything done or omitted in the
discharge or purported discharge of any functions under this Law or any
Regulations or Order made, or purportedly made, under this Law, unless the act
or omission is shown to have been in bad faith.
ARTICLE
23
Power to amend Article 2
The States may make Regulations amending the provisions of Article
2 (Collective investment funds).
ARTICLE
24
Transitional provisions
(1) Notwithstanding
Article 4, a person whose application for a permit is received by the Committee
before the commencement of Article 4 in relation to him may, until the
Committee disposes of his application, but subject to paragraphs (2) and (3),
be, or hold himself out as being, a functionary of a collective investment
fund.
(2) Notwithstanding
Article 6, the Committee may, in relation to persons to whom paragraph (1)
applies, prescribe conditions which will apply to –
(a) all
such persons;
(b) certain
classes of such persons;
(c) a
particular person;
until the Committee has disposed of the application.
(3) Article
8 (Power to obtain information and require production of documents) and Article
19 (Investigation by Committee) shall apply to a person to whom paragraph (1)
applies, as though he were the holder of a permit, until the Committee disposes
of his application.
ARTICLE 25
Citation and
commencement
(1) This
Law may be cited as the Collective Investment Funds (Jersey) Law, 1988.
(2) This
Law shall come into operation on such day as the States may by Act appoint and
different days may be appointed for different purposes of the Law.
R.S. GRAY
Deputy Greffier of the States.
SCHEDULE
(Article 3)
Functionaries
PART I
Functionaries are those persons referred to in Part II of this
Schedule.
PART II
|
Group
|
Description
|
|
1
|
Any company issuing units.
|
|
2
|
Manager, administrator, registrar, investment manager,
investment adviser.
|
|
3
|
Distributor, subscription agent, redemption agent,
premium receiving agent, policy proceeds paying agent, purchase agent,
repurchase agent.
|
|
4
|
Trustee, custodian, depository.
|
|
5
|
Member of a partnership, (except a limited partner).
|
PART III
1. In
this Schedule “group” means a group of the kind specified in Part
II.
2. A
reference in this Schedule to a numbered group is a reference to the group so
numbered in Part II.
3. A
group or part of a group may be described in an Order or permit by reference to
a group specified in Part II.