Investment Limited Partnerships Act , 1994

PART I Preliminary

1. Short title.

1.—This Act may be cited as the Investment Limited Partnerships Act, 1994.

2. Commencement.

2.—This Act shall come into operation on such day as the Minister shall fix by order.

3. Interpretation.

3.—In this Act unless the context otherwise requires—

“the Act of 1890” means the Partnership Act, 1890;

F1["Act of 2010" means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;

"alternative foreign name" shall be construed in accordance withsection 8(4B);]

F2["the Bank" means theF3[Central Bank of Ireland];]

F4["beneficial owner", in relation to an investment limited partnership, means any individual who—

(a) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the partnership or more than 25 per cent of the voting rights in the partnership, or

(b) otherwise controls the partnership;

"beneficial ownership register" shall be construed in accordance withsection 46(1);

"central register" shall be construed in accordance withsection 50(1);

"competent authority" means a competent authority as that expression, by virtue of sections 60 and 61 of the Act of 2010, is to be construed for the purposes of Part 4 of that Act;

"designated person" has the meaning assigned to it by section 25 of the Act of 2010;]

“the court” means the High Court;

F5["depositary" means a person maintaining a place of business in the State, appointed pursuant to the partnership agreement, eligible to act as depositary in accordance withsection 8and discharging its functions in accordance withsection 5(1)(c);]

“general partner” means a person who has been admitted to an investment limited partnership as a general partner in accordance with the partnership agreement, and who shall be personally liable for the debts and obligations of the investment limited partnership;

F6["Higher Executive Officer" means the position of Higher Executive Officer, or a position equivalent to it, in the public body concerned;]

“investment limited partnership” means a partnership which holds a certificate of authorisation issued in accordance with this Act;

F7["limited partner" means a person who has been admitted to an investment limited partnership as a limited partner (or as a category of such a partner) in accordance with the partnership agreement and who shall, as provided for in that agreement and at such time or times as are specified therein, contribute or undertake to contribute a stated amount to the capital of the partnership and as provided for insection 20(1)(c), but subject to the exceptions insections 6,12and38(4), shall not be liable for the debts or obligations of the investment limited partnership beyond the amount so contributed or undertaken;]

F8["Member State" means a Member State of the European Union and, where relevant, includes a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993);]

“partner” means a limited partner or a general partner;

“partnership agreement” means any valid written agreement of the partners governed by the law of the State and subject to the F9[…] jurisdiction of the courts of the State, as to the affairs of an investment limited partnership and the conduct of its business as may be amended, supplemented or restated from time to time;

F10["PPS number", in relation to an individual, means the individual’s Personal Public Service Number within the meaning of section 262 of the Social Welfare Consolidation Act 2005;

"presenter" shall be construed in accordance withsection 53(1);

"Principal Officer" means the position of Principal Officer, or a position equivalent to it, in the public body concerned;

"senior managing official" includes a director and a chief executive officer;]

“property” means real or personal property of whatever kind (including securities) and wherever located;

F11["the Minister" means the Minister for Finance.]

4. Savings and disapplications of laws and enactments.

4.—(1) Subject to the provisions of this Act, the Act of 1890, and the rules of equity and of common law applicable to partnerships, except so far as they are inconsistent with the express provisions of the last-mentioned Act, shall apply to investment limited partnerships.

(2) The provisions of the Limited Partnerships Act, 1907, shall not apply to investment limited partnerships.

(3) In the case of any investment limited partnership with two or more general partners, provisions of this Act requiring or authorising a thing to be done by or to a general partner shall be satisfied, except where the context otherwise indicates, by it being done by or to any one general partner.

(4) For the avoidance of doubt, the provisions of section 376 of the Companies Act, 1963 shall not apply to an investment limited partnership.

PART II Constitution

5. Constitution of investment limited partnership.

5.—(1) An investment limited partnership may be formed by two or more persons and shall—

(a) have as its principal business, to be expressed in the partnership agreement establishing the investment limited partnership, the investment of its funds in property;

(b) consist of one or more general partners and one or more limited partners;

(c) F12[have appointed aF13[depositary]being a person maintaining a place of business in the State, and eligible to act asF13[depositary]in accordance withsection 8of this Act], in whom the assets of the investment limited partnership shall be entrusted for safe keeping, who is charged with verifying that the business of an investment limited partnership is conducted in accordance with the partnership agreement and with such powers or duties of a F13[depositary] with regard to the investment limited partnership as are specified by the Bank and in section 24 F14[and in the European Union (Alternative Investment Fund Managers) Regulations 2013 where relevant];

(d) have specified in the partnership agreement, the conditions under which there may be effected, and the procedure to be followed with respect to, the replacement of a general partner or a F13[depositary] to the partnership with another general partner or F13[depositary] including a replacement by the Bank under section 30 and the admission of additional general partners or F15[depositaries] and shall contain provision to ensure the protection of limited partners in the event of any such replacement;

(e)comply with such further and other requirements made by the Bank from time to time under section 7 hereof;

(f) hold a certificate of authorisation issued in accordance with Part III of this Act.

(2) A body corporate with or without limited liability may be a general partner or a limited partner and a partnership may be a limited partner.

(3) The contribution made by a limited partner to the capital of the investment limited partnership may be satisfied in cash or other property provided that in the case of a non-cash contribution, the value of the relevant property shall, for the purposes of satisfying the obligation to contribute to the capital of the investment limited partnership, be the F16[fair and appropriate value of the property] at the time of transfer of the property to the investment limited partnership.

(4) For the avoidance of doubt, the contribution made by a limited partner to the capital of the investment limited partnership shall not be satisfied by the provision of any services or loans by the limited partner.

F17[(5) An investment limited partnership may be established as an umbrella fund, that is to say as an investment limited partnership which is divided into a number of sub-funds (within the meaning of the Schedule).

(6) The provisions of the Schedule shall have effect for the purposes ofsubsection (5).]

6. Modification of general law and liability of limited partner for debts of investment limited partnership.

6.—(1) A limited partner shall not take part in the conduct of the business of the investment limited partnership and in particular shall not have power to contract on behalf of the investment limited partnership and all letters, contracts, deeds, instruments and documents whatsoever shall be entered into by the general partner on behalf of the investment limited partnership.

(2) If a limited partner takes part in the conduct of the business of the investment limited partnership in its dealings with persons who are not partners, that limited partner shall be liable in the event of the insolvency of the investment limited partnership for debts of the investment limited partnership incurred during the period that he so participates in the conduct of the business as though he were for such period a general partner.

(3) A limited partner shall be liable by virtue of subsection (2) only in respect of debts or obligations incurred by the investment limited partnership in favour of a person who at the time the debt or obligation was so incurred reasonably believed, based upon the conduct of the limited partner, that the limited partner was a general partner and whether or not such debts or obligations have since been assigned or otherwise transferred to another person.

(4) A limited partner does not take part in the conduct of the business of an investment limited partnership within the meaning of this Act solely by doing any one or more of the following, irrespective of the frequency of such acts:

(a) being a contractor for, or being an agent or employee of, the investment limited partnership or a general partner or acting as a director, officer or shareholder of a general partner which is a body corporate;

(b) consulting with and advising a general partner with respect to the business of the investment limited partnership;

(c) investigating, reviewing, or being advised as to the accounts or business affairs of the investment limited partnership or exercising any right conferred by this Act;

(d) acting as surety or guarantor or providing any other form of security for the investment limited partnership either generally or in respect of specific obligations;

(e) voting as a limited partner on one or more of the following matters:

(i) the dissolution and winding up of the investment limited partnership;

(ii) the purchase, sale, exchange, lease, mortgage, pledge, or other acquisition or transfer of any asset or assets by or on behalf of the investment limited partnership;

(iii) the incurring or renewal of any indebtedness of the investment limited partnership;

(iv) a change in the objectives or policies of the investment limited partnership;

(v) the admission, removal or withdrawal of a general or limited partner or F18[depositary] and the continuation of the business of the investment limited partnership thereafter;

(vi) transactions in which one or more of the general partners have an actual or potential conflict of interest with one or more of the F19[limited partners;]

F20[(vii) a decision to approve an alteration in the partnership agreement;]

F21[(f) any of the following:

(i) serving on any board or committee (such as an advisory committee) of the investment limited partnership, or established by, or as provided for in the partnership agreement in respect of, a general partner, the limited partners or the partners generally;

(ii) appointing, electing or otherwise participating in the choice of a representative or any other person to serve on any such board or committee;

(iii) acting as a member of any such board or committee either directly or by or through any representative or other person, including giving advice in respect of, or consenting or refusing to consent to, any action proposed by the general partner on behalf of the investment limited partnership and exercising any powers or authorities or performing any obligations as a member of any such board or committee in the manner contemplated by the partnership agreement.]

F22[(5) Without prejudice to the generality of the provision made bysubsection (4)in relation to acts, on the part of a limited partner, that do not constitute the limited partner taking part in the conduct of the business of an investment limited partnership, neither—

(a) the reference insection 38(4)to any limited partner holding himself or herself out as conducting or purporting to conduct the business of an investment limited partnership, nor

(b) the reference insection 39to a limited partner purporting to take part in the conduct of the business of an investment limited partnership,

shall be construed as including a reference to the limited partner, in and of itself, holding himself or herself as doing, or purporting to do, one or more of the acts specified insubsection (4)(irrespective of the frequency with which that holding out, or that purported doing of the act or acts concerned, occurs).]

(5) Subsection (4) shall not import any implication that the possession or exercise of any other power by a limited partner will necessarily constitute the taking part by such limited partner in the business of the investment limited partnership.

PART III Formation

7. Conditions for authorisation.

7.—(1) Notwithstanding any other powers which may be available to the Bank under any other enactment, order or regulation, the Bank may impose such conditions for the authorisation of an investment limited partnership as it considers appropriate and prudent for the purposes of the orderly and proper regulation of investment limited partnerships.

(2) (a) Conditions imposed under subsection (1) may be imposed generally, or by reference to particular investment limited partnerships, or by reference to any other matter the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment limited partnerships.

(b) The Bank may impose such conditions on general partners or F23[depositaries] or investment limited partnerships as it considers appropriate and prudent for the purposes of the orderly and proper regulation of general partners, F23[depositaries] or investment limited partnerships or all of these.

(3) (a)The power to impose conditions referred to in subsection (1) shall include a power to impose such further conditions from time to time as the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment limited partnerships.

(b) The Bank may amend or revoke a condition imposed by it under this section.

(4) Without prejudice to the generality of subsections (1), (2) and (3) hereof, conditions imposed by the Bank on an investment limited partnership may make provision for any or all of the following matters:

(a) the investment policies of the investment limited partnership, including its policies regarding diversification and gearing and including the type of property in which an investment limited partnership may invest;

(b) the issuing and content of prospectuses and other information disseminated by the investment limited partnership;

(c) the criteria for appointment of any F24[depositary] under section 5;

(d) the vesting of the assets or specified assets of the investment limited partnership in a F24[depositary];

(e) the periodicity and contents of reports issued by the investment limited partnership;

(f) such other supervisory and reporting requirements and conditions relating to its business as the Bank considers appropriate and prudent to impose on the investment limited partnership from time to time for the purposes referred to in the aforesaid subsections.

(5) An investment limited partnership, general partner and F24[depositary] shall comply with any conditions relating to its authorisation or business imposed by the Bank which are applicable to them.

(6) A company incorporated outside the State shall not be considered solely by reason of being a limited partner in an investment limited partnership as having established a place of business within the State within the meaning of Part XI of the Companies Act, 1963.

(7) Where a general partner or a F24[depositary], as appropriate, of an investment limited partnership fails to comply with subsection (5), it shall be guilty of an offence.

8. Application for, and grant of, authorisation.

8.—F25[(1) The Bank shall not authorise an investment limited partnership—

(a) unless either—

(i) the proposed general partners or any one of them under the partnership agreement is authorised by the Bank under Part 2 of the European Union (Alternative Investment Fund Managers) Regulations 2013 or by the competent authority in its home Member State in accordance with Chapter II of Directive 2011/61/EC of the European Parliament and of the Council of 8 June 2011 or in its Member State of reference in accordance with that Chapter II; or

(ii) the proposed general partners or any one of them under the partnership agreement satisfies the Bank as to their competence and probity,

(b) save where the proposed general partners or any one of them under the partnership agreement is or are authorised as mentioned inparagraph (a)(i)if, in the opinion of the Bank, they are not of sufficiently good repute or lack the experience required for the performance of their duties; and

(c) unless the proposedF26[depositary]is a depositary as specified in Regulation 22(3) of the European Union (Alternative Investment Fund Managers) Regulations 2013.]

(2) No single person shall act as both general partner and F26[depositary].

(3) The application by a partnership for authorisation as an investment limited partnership shall be made in writing by the person proposed as general partner under the partnership agreement to the Bank subject to subsection (5).

F27[(4) The application must be in a form approved or provided by the Bank and be accompanied by—

F28[(a) the fee prescribed under section 32E of the Central Bank Act 1942 for the purposes of this subsection, and]

(b) a copy of the partnership agreement, and

(c) subject tosubsection (5), a statement signed by or on behalf of a person proposed as a general partner under the partnership agreement containing the particulars specified insubsection (4A), and

(d) such further particulars or information as the Bank may specify for the purposes of determining the application, and

(e) such additional information as the Bank may specify in the course of determining the application.]