Investment Limited Partnerships Act , 1994

Type Act

Publication 1994-07-12

Last updated 2022-12-07

State In force

Source Irish Statute Book

articles 75

(4)Subsection (3)shall be complied with by the individual not later than whichever of the following periods is the last to expire—

(a) the period of 2 months beginning with the day on which the relevant change occurred, or

(b) the period of one month beginning with the day on which facts have come to the notice of the individual from which he or she could reasonably conclude that the relevant change has occurred.

(5) An individual who—

(a) fails to comply with this section, or

(b) in purported compliance with this section, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false,

shall be guilty of an offence.]

28C. F78[Offence for failure to comply with notice under section 27B, 27C or 28.

28C.(1) A person to whom a notice undersection 27B,27Cor28is given shall be guilty of an offence if the person—

(a) fails to comply with the notice, or

(b) in purported compliance with the notice, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false.

(2) In proceedings for an offence under this section it shall be a defence to prove that the requirement (in the notice concerned) to give information was frivolous or vexatious.]

29. Revocation of authorisation.

29.—(1) The Bank may revoke the authorisation of an investment limited partnership if it appears to the Bank—

(a) that any of the requirements for the authorisation of the investment limited partnership are no longer satisfied,

(b) that it is undesirable in the interests of the limited partners that the investment limited partnership should continue to be authorised,

(c) without prejudice to paragraph (b), that the general partner or F79[depositary] of the investment limited partnership has contravened any provision of this Act or conditions imposed hereunder or, in purported compliance with any such provision, has furnished the Bank with false, inaccurate or misleading information or has contravened any prohibition or requirement imposed under this Act.

(2) The Bank may revoke the authorisation of an investment limited partnership at the request of the general partner or F79[depositary], but it may refuse to do so if it considers that any matter concerning the investment limited partnership should be investigated as a preliminary to a decision on the question of whether the authorisation should be revoked or that revocation would not be in the interests of the limited partners.

(3) F80[…]

30. Replacement of general partner and F81[depositary].

30.—(1) The Bank may replace a general partner or F81[depositary] with another general partner or F81[depositary] where—

(a) it is satisfied that the general partner or F81[depositary] has failed to demonstrate the competence, probity or experience in the discharge of their functions reasonably required of them,

(b) it is satisfied that they are not of sufficiently good repute,

(c) it is satisfied that it is undesirable in the interests of the limited partners that the person should remain as general partner or F81[depositary],

(d) without prejudice to paragraph (c), it is satisfied that the general partner or F81[depositary] has contravened any provision of this Act or regulations made thereunder or, in purported compliance with any such provision, has furnished the Bank with false, inaccurate or misleading information or has contravened any prohibition or requirement imposed under this Act or regulations made hereunder.

(2) Upon replacement by the Bank under this section of a general partner or F81[depositary], that general partner or F81[depositary] as the case may be shall cease to be a partner of or F81[depositary] to the investment limited partnership, without prejudice to the general partner's liabilities in respect of the debts and obligations of the partnership and the powers and duties of the general partner or F81[depositary] under the partnership agreement or this Act shall be exercised and carried out by the new general partner or F81[depositary], as the case may be.

(3) The Bank may, by application to the Court, seek such interim or interlocutory relief preventing a general partner or F81[depositary] from acting as such or appointing a person to carry out their functions and the court on such application, having regard to the matters set forth in subsection (1) and the protection of the limited partners, may make such order as it deems appropriate.

31. Notification by Bank of revocation or replacement.

31.—(1) Where the Bank proposes to revoke the authorisation of an investment limited partnership other than at the request of the general partner or F82[depositary] under section 29, or to replace a general partner and F82[depositary] under section 30, it shall give the general partner and F82[depositary] notice of its intention to act and, where it proposes to replace a general partner or F82[depositary] under section 30 the identity of the proposed new general partner F83[or depositary].

(2) Upon receipt of such notification, the general partner shall cause forthwith the limited partners to be informed of the receipt of such notice from the Bank.

(3) A partner or F82[depositary] may, within fifteen days of the date of service of a notice pursuant to subsection (1), make written representations to the Bank which period, in the case of representations by a limited partner, the Bank may extend.

(4) The Bank shall have regard to any representations made in accordance with subsection (3) in determining whether to revoke the authorisation of an investment limited partnership or to replace the general partner or F82[depositary], as the case may be.

(5) A general partner who fails to comply with subsection (2) shall be guilty of an offence and shall indemnify any person who thereby suffers loss.

32. Application to court in case of refusal of authorisation, revocation of authorisation or replacement of general partner or F84[depositary].

32.—(1) Where the Bank refuses an application for authorisation under section 8, fails to take a decision on an application within three months of the date hereof, revokes or refuses to revoke an authorisation under section 29, or determines to replace a general partner or F84[depositary] under section 30, any aggrieved party (including a limited partner) may apply to the Court to have the matter reviewed.

(2) Where an application is made under subsection (1), the Court shall confirm the decision of the Bank unless it is satisfied that the procedures laid down by, or the requirements of, this Act have not been complied with in any material respect or that there was no material before the Bank on which the Bank could reasonably conclude—

(a) in the case of a refusal of authorisation or a failure to authorise within three months, that the criteria set forth in section 8 (1) or section 8 (9) have not been established,

(b) in the case of a decision to revoke the authorisation of an investment limited partnership, that the matters set forth in section 29 (1) have been established,

(c) in the case of a decision to replace a general partner or F84[depositary], that the matters set forth in section 30 (1) have been established.

(3) Where the Court does not confirm the decision of the Bank on an application made to it under subsection (2), it may set aside the decision of the Bank or, if the Bank has failed to take a decision within three months, direct it to take a decision within such time as the court may direct, and in any such case, remit the matter to the Bank which shall thereupon reconsider the matter and make a decision in accordance with such procedures and requirements.

(4) Any application under this section shall be made on notice to the Bank, the general partner and the F84[depositary].

(5) Where a general partner brings an application under this section or receives notice of such an application, he shall forthwith cause the limited partners to be informed thereof, and any limited partner shall be entitled to appear before the court and be heard thereon.

(6) A general partner who fails to comply with subsection (5) shall be guilty of an offence.

33. Directions by the Bank.

33.—(1) Where the Bank is of the opinion that it is in the public interest to do so or in the interests of the proper and orderly regulation of investment limited partnerships, or that any of the requirements for authorising an investment limited partnership are no longer satisfied, or that the investment limited partnership, F85[depositary] or the general partner—

(a) has become or is likely to become unable to meet his obligations to his creditors, or

(b) has contravened this Act, or has failed to comply with any condition or requirement imposed under this Act by the Bank on the F85[depositary] or the general partner, or in purported compliance with any such provision, has furnished the Bank with false, inaccurate or misleading information, or

(d) no longer complies with the capital or other financial requirements imposed by the Bank from time to time,

the Bank may give a direction in writing to that F85[depositary] or general partner requiring it to take such steps, including the winding-up of the investment limited partnership or the suspension of the assignment of any partnership interest, as in the opinion of the Bank are necessary in the interests of the proper and orderly regulation of investment limited partnerships or for the protection of limited partners, creditors of the investment limited partnership or creditors of the partners in an investment limited partnership.

(2) For the purposes of subsection (1), the Bank may take into account any matter relating to the investment limited partnership, the general partner or F85[depositary], a director or controller of the general partner or F85[depositary] or any person employed by or associated with the general partner or F85[depositary] in connection with the investment limited partnership.

(3) F86[On the receipt of such a direction, the general partner shall thereupon (or immediately after)] cause all limited partners of the investment limited partnership to be informed thereof.

(4) The Bank may revoke a direction under subsection (1) of this section unless an order under subsection (8) of this section has been made in respect of the direction.

(5) A F85[depositary] or partner on whom a direction has been imposed under subsection (1) of this section, and any limited partner of an investment limited partnership in respect of which such a direction has been issued, may apply to the Court for, and the Court may grant, an order setting aside the direction.

(6) Upon an application made to it under subsection (5) of this section, the court shall not set aside a direction given by the Bank unless it is satisfied that the procedures laid down by, or the requirements of, this Act have not been complied with in any material respect, or that—

(a) there was no evidence upon which the Bank could reasonably conclude that the public interest or the interests of the proper and orderly regulation of investment limited partners required such a direction, or

(b) there was no evidence upon which the Bank could reasonably conclude that the state of affairs set forth in subsection (1) existed, or

(c) having regard to the matters established before the court and the proper and orderly regulation of investment limited partnerships, that the direction was not reasonably proportionate to those matters so established.

(7) An application under subsection (5) of this section shall not be entertained after the expiry of twenty one days from the date of making of the direction.

(8) The Bank may apply to the court for, and the court may grant, an order confirming a direction given under subsection (1) of this section or confirming and extending the period of operation of the direction for such period as the court may consider appropriate.

(9) A direction to which subsection (8) of this section applies shall cease to have effect—

(a) where the direction was confirmed, upon the expiration of the period to which the direction relates,

(b) where the direction was confirmed and the period of its operation was extended, upon the expiration of that extended period,

(d) upon the making of a winding-up order in respect of the investment limited partnership, or the dissolution of the investment limited partnership,

(e) where the court is of the opinion that the circumstances which gave rise to the direction have ceased to exist and that it would be unjust and inequitable not to make an order to that effect, from such date as the court determines,

which ever occurs first.

(10) (a) Where the Bank is of the opinion that even if the F85[depositary] or partner on whom a direction has been imposed appears to be able to meet his obligations to creditors, but the circumstances giving rise to the direction are unlikely to be rectified it may forthwith apply to the court for, and the court may grant an order directing the F85[depositary] or partner to prepare, in consultation with the Bank, a scheme for the orderly termination of his business and the discharge of his liabilities and to submit the final scheme to the court within three months for the court's approval;

(b) Notice of an application under paragraph (a) shall be given by the general partner to the limited partners;

(c) The court shall not grant an order under paragraph (a) of this section unless it is satisfied that the proper and orderly regulation of investment limited partnerships as a whole and the interests of the partners and creditors of the investment limited partnership in question together with the creditors of the F85[depositary] or partners of the investment limited partnership, requires such an order;

(d) The court shall not approve the terms of the scheme without hearing the Bank and may adjudicate in the event of any dispute between the parties; and

(e) If the F85[depositary] or partner fails to comply with the order of the court or to adhere to the scheme approved by the court, the Bank may apply to the court for and the court may make such further order as it considers appropriate, including an order of committal or a winding up order on the grounds that it is just and equitable that the F85[depositary] or partner should be wound up.

(11) While a direction under this section is in force—

(a) an investment limited partnership to which it relates shall not be dissolved;

(b) the court may restrain any disposal of the assets of the investment limited partnership which will have the effect of perpetrating a fraud on the investment limited partnership, its creditors or partners.

(12) A general partner who fails to comply with subsections (3) and (10) (b) shall be guilty of an offence.

34. Power of court in case of failure to comply with requirement or condition.

34.—(1) Where, on an application made in a summary manner by the Bank, the court is satisfied that there has occurred or is occurring a failure by an investment limited partnership to comply with a requirement or condition imposed under or by virtue of this Act, the court may, by order, prohibit the continuance of the failure or enforce compliance with the requirement by the investment limited partnership, general partner or F87[depositary].

(2) In determining whether to grant an order under this section, the court shall consider—

(a) the requirements of the orderly and proper regulation of investment limited partnerships;

(b) the interests of creditors of the investment limited partnership, the limited partners and creditors of the partners;

(3) The court may grant such interim or interlocutory relief on an application under this section as in the light of the matters set forth in subsection (2), as it considers appropriate.

(4) An application under this section, other than application for interim relief, shall be made on notice to the investment limited partnership, the general partner and the F87[depositary].

(5) Upon receipt of a notice of an application under this section, the general partner shall cause the limited partners to be forthwith informed thereof.

(6) A general partner who fails to comply with subsection (5) shall be guilty of an offence.

35. Personal liability of officers of general partner where failure to keep proper books or records.

35.—(1) Subject to subsection (2) of this section, if—

(a) an investment limited partnership is being wound up and is unable to pay all of its debts, and

(b) the court considers that there has been a contravention of section 16 (1) or section 25 (1) which has contributed to the inability of the investment limited partnership to pay all of its debts or has resulted in substantial uncertainty as to the assets and liabilities and client money or investment instruments of the said investment limited partnership or has substantially impeded its orderly winding up,

the court, on the application of the liquidator or the Bank or any creditor or limited partner may, if it thinks it proper to do so, declare that any one or more of the officers or former officers or both of the general partner who is or are responsible for the contravention shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the Court, of the debts and other liabilities of the said investment limited partnership.

(2) On the hearing of an application under subsection (1) of this section, the person bringing the application may give evidence or call witnesses.

(3) (a) Where the court makes a declaration under subsection (1) of this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the investment limited partnership to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the investment limited partnership held by or vested in him or any company or other person on his behalf, or any person claiming as assignee from or through the person liable under the declaration or any company or person acting on his behalf, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.

(b) In paragraph (a) of this subsection “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or mortgage was created, issued or transferred or the interest created but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the grounds of which the declaration is made.

(c) A copy of the declaration referred to in paragraph (a) above shall be lodged with the registrar of companies and made available for public inspection.

(4) The court shall not make a declaration under subsection (1) of this section in respect of a person if it considers that—

(a) he took all reasonable steps to secure compliance by the investment limited partnership with section 16 (1) or section 25 (1) of this Act, or

(b) he had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a person who has been formally allocated such responsibility, was charged with the duty of ensuring that these sections were complied with and was in a position to discharge that duty.

(5) This section shall have effect notwithstanding that the person concerned may be liable to be prosecuted for a criminal offence in respect of the matters on the ground of which the declaration is to be made or that such person has been convicted of such an offence.

(6) In this section “officer”, in relation to a general partner includes a director, a person in accordance with whose directions or instructions the directors are accustomed to act, or the secretary.

(7) If—

(a) (i)an investment limited partnership is being wound up and is unable to pay all of its debts and has contravened section 16 (1) or section 25 (1) of this Act, and

(ii) the court considers that such contravention has contributed to the inability of the investment limited partnership to pay all of its debts or has resulted in substantial uncertainty as to the assets and liabilities or client money and investment instruments of the investment limited partnership or has substantially impeded the orderly winding up thereof,

F88[every general partner of the investment limited partnership, and every officer of such a general partner,] who is in default shall be guilty of an offence.

(b) In a prosecution for an offence under this section, it shall be a defence for the person charged to show that—

(i) he took all reasonable steps to secure compliance by the investment limited partnership with section 16 (1) or section 25 (1), or

(ii) he had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of the investment limited partnership who has been formally allocated such responsibility, was charged with the duty of ensuring that that section was complied with and was in a position to discharge that duty.

(8) F89[An investment limited partnership, a general partner of an investment limited partnership or an officer of such a general partner that] fails to take all reasonable steps to secure compliance by the investment limited partnership with the requirement of section 16 (1) or section 25 (1) of the Act or has by his own wilful act been the cause of any default by the investment limited partnership thereunder, shall be guilty of an offence:

Provided, however, that—

(a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the investment limited partnership with the requirements of section 16 (1) or section 25 (1), it shall be a defence to prove that he had reasonable grounds for believing and did believe that a competent and reliable person was charged with the duty of ensuring that those requirements were complied with and was in a position to discharge that duty, and

(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the Court, the offence was committed wilfully.

36. Authorisation not a warranty by the Bank.

36.—The authorisation of an investment limited partnership by the Bank under this Act shall not constitute a warranty by the Bank as to the creditworthiness or financial standing of an investment limited partnership or its partners or custodian.

PART VI Dissolution

37. Investment limited partnership not terminated by change in limited partners.

37.—(1) Subject to the provisions of subsection (2) and subject to any express or implied term of the partnership agreement and notwithstanding anything contained in the Act of 1890, an investment limited partnership shall not be terminated or dissolved by—

(i) a change in any one or more of the limited partners or general partners;

(ii) the assignment of the whole or part of the partnership interest of a limited partner;

F90[(iii) the death, incapacity, bankruptcy, removal, resignation, dissolution or winding-up of—

(I) a limited partner, or

(II) a general partner, where there is more than one general partner (and at least one general partner (that has not died and to which none of the other cases mentioned in this paragraph applies) remains);]

(iv) any one or more of the limited partners or the general partners granting a mortgage or charge or other form of security interest over the whole or part of its partnership interest;

(v) a sale, exchange, lease, mortgage, pledge or other transfer of any assets of the investment limited partnership.

(2) Notwithstanding the provisions of subsection (1) and notwithstanding any express or implied term of the partnership agreement to the contrary and subject to subsection (3)—

(a) the death, incapacity, retirement, bankruptcy, removal, resignation, insolvency, dissolution or winding-up of the sole or last remaining general partner, or

(b) the withdrawal of the authorisation of the investment limited partnership,

F91[shall cause, at such time and in accordance with such process as stands specified by the Bank for the purpose of this subsection, the dissolution of the investment limited partnership].

(3) If within F92[such period as stands specified by the Bank for the purpose of this subsection following the date of dissolution of an investment limited partnership, being a dissolution due to the circumstances specified insubsection (2)(a),] the limited partners unanimously elect one or more new general partners who shall be approved by the Bank, the business of the investment limited partnership shall not be required to be wound up, but may be resumed and continued as provided for in the partnership agreement.

38. Notice of dissolution.

38.—(1) An investment limited partnership shall not be dissolved by an act of the partners unless a notice of dissolution is signed by a general partner F93[and delivered to the Bank.]

(2) In the event of dissolution of an investment limited partnership, its affairs shall be wound up forthwith by the general partners in accordance with the provisions of the partnership agreement unless the court otherwise orders on the application of a partner or creditor.

(3) Part X of the Companies Act, 1963 shall apply to the winding-up of an investment limited partnership by the court as it would to an unregistered company irrespective of the number of partners and provided that a limited partner shall not be a member for the purposes of section 345 (5) (b) or (c) of that Act except in respect of debts for which the limited partner is liable under section 6 (2) or 12 (4).

(4) Where an investment limited partnership is, by the terms of the partnership agreement, for a fixed period of time, the investment limited partnership shall be deemed to be dissolved upon the expiry of that period, F94[…] and upon dissolution as aforesaid, F95[such of the one or more general partners, and such of the one or more limited partners, as hold themselves out as conducting or purporting to conduct the business of the investment limited partnership shall be liable for the debts and obligations purportedly incurred on behalf of the investment limited partnership thereafter].

PART VII Miscellaneous

39. Offences.

39.—Where an investment limited partnership contravenes—

(a) any of the provisions of this Act, or

(b) any regulations made in relation thereto under this Act, or

F96[each of the following who is in default, namely—

(i) a general partner, and

(ii) any limited partner who, at the time of the contravention, purported to take part in the conduct of the business of the investment limited partnership,

shall be guilty of an offence (but this section does not apply in respect of a contravention to whichsection 13applies).]

40. Penalties.

40.—A person guilty of an offence under this Act shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both such fine and imprisonment, or

(b) on conviction on indictment to a fine not exceeding £500,000 or to imprisonment for a term not exceeding fifteen years or to both such fine and imprisonment,

and, if the contravention in respect of which he is convicted of an offence under this Act is continued after the conviction, he shall be guilty of a further offence on every day on which the contravention continues and for each such offence he shall be liable on summary conviction to a fine not exceeding £1,000 or on conviction on indictment, to a fine not exceeding £500,000.

41. Offence by body corporate and bringing of proceedings.

41.—(1) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or approval of, or to have been facilitated by, any wilful neglect on the part of any person being a director, manager, secretary, member of any committee or management or other controlling authority of such body, that person shall also be guilty of an offence.

(2) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Director of Public Prosecutions or the Bank.

(3) F97[…]

42. Hearing of proceedings other than in public.

42.—In any application under this Act, the court may where it is satisfied that because of the nature or circumstances of the application, or otherwise in the interests of justice that it is desirable, order that the whole or any part of proceedings under this Act, may be heard otherwise than in public.

42A. F98[Power of court to grant relief by way of indemnification.

42A.(1) This section applies to any case in which a provision (the ‘"relevant provision") ofsection 13,16,24or31requires a person specified in the provision (the "specified person") to indemnify a person in respect of any loss referred to in the relevant provision suffered by the latter.

(2) In a case to which this section applies, where, on application by any person to the appropriate court, that court is satisfied that the applicant has suffered loss referred to in the relevant provision, the court may make an order requiring the specified person to pay to the applicant such amount as the court determines will indemnify the applicant in respect of that loss.

(3) Insubsection (2), "appropriate court" means—

(a) in a case where the following apply—

(i) the specified person has been convicted of an offence under the relevant provision in respect of the default to which the application relates, and

(ii) the total of the following amounts, namely, the amount of the estimated cost of complying with the order to which the application relates and the amount of the fine that has been imposed on the specified person in respect of that offence, does not exceed €5,000,

the District Court before which the specified person has been convicted of that offence,

(b) in a case where no prosecution has been brought, and none is pending, against the specified person under the relevant provision (in respect of the default to which the application relates) and the estimated cost of complying with the order to which that application relates does not exceed €15,000,the District Court, or

(i) the circumstance specified insubparagraph (i)ofparagraph (a)applies but the total of the amounts referred to insubparagraph (ii)of that paragraph exceeds €5,000, or

(ii) the circumstance specified inparagraph (b)applies but the estimated cost of complying with the order to which the application relates exceeds €15,000,

the Circuit Court.

(4) If, in relation to an application undersubsection (2)to the District Court (being an application to whichsubparagraphs (i)and(ii)ofsubsection (3)(a)apply), that court during the hearing of the application becomes of opinion that the total of the amounts referred to insubsection (3)(a)(ii)will exceed €5,000, it may, if it so thinks fit, transfer the application to the Circuit Court.

(5) If, in relation to an application undersubsection (2)to the District Court (being an application to whichsubsection (3)(b)applies), that court during the hearing of the application becomes of opinion that the estimated cost of complying with the order to which the application relates will exceed €15,000, it may, if it so thinks fit, transfer the application to the Circuit Court.

(6) An application undersubsection (2)to—

(a) the District Court shall be made to the judge of the District Court for the District Court district in which the principal place of business of the specified person is situate, but this paragraph shall not apply wheresubsection (3)(a)applies in the matter, and

(b) the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the principal place of business of the specified person is situate.]

43. Law of other states.

43.—In any proceedings involving a limited partnership established under, or by its terms governed by, the law of another state, the liability of the partners, its organisation and internal affairs shall be determined according to the law of that state.

44. Report by Bank.

44.—It shall be the duty of the Bank to prepare and submit a report to the Minister, within six months after the expiration of every year, in relation to the exercise of its functions under this Act, which report the Minister shall lay before both Houses of the Oireachtas as soon as possible after receipt thereof.

45. Expenses.

45.—F99[(1)] The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

F99[(2) The Bank shall not provide any funds from its own resources, other than from those resources provided to it undersubsection (3), to defray expenses of the Bank incurred by it in the performance of the functions undersections 49to59(insubsection (3)referred to as "expenses of the Bank associated with its functions undersections 49to59").

(3) The Central Bank Commission shall make regulations under section 32D of the Central Bank Act 1942 prescribing levies (insubsection (4)referred to as the "dedicated levies") to be paid by investment limited partnerships, and the moneys received by the Bank by way of such levies shall be used by it to defray expenses of the Bank associated with its functions undersections 49to59.

(4) Where—

(a) in any year, the Bank reasonably apprehends that it will be unable to defray all of the expenses of the Bank, arising in that year, associated with its functions undersections 49to59from moneys received by it by way of the dedicated levies, or

(b) notwithstanding the existence of the dedicated levies and, apart from the circumstance referred to inparagraph (a), for any reason there is an insufficiency in any year of moneys available to the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions,

the Minister shall, on the written request of the Bank, advance to the Bank such sums as he or she thinks proper to enable the Bank to defray all of its expenses, arising in that year, associated with the foregoing functions.

(5) The payments of sums referred to insubsection (4)shall be made on such terms as to repayment, interest and other matters as may be determined by the Minister after consulting the Bank.

(6) All moneys from time to time required by the Minister to meet sums which may become payable by him or her undersubsection (4)shall be advanced out of the Central Fund or the growing produce thereof.]

46. F100[Duty to keep and maintain a beneficial ownership register.

46.(1) The general partner of an investment limited partnership shall keep and maintain a register (which shall be known, and is in this Act referred to, as a "beneficial ownership register") in which there shall be entered by it the information referred to insection 27A(1)(a)and(b)and(2).

(2) A general partner that fails to comply withsubsection (1)shall be guilty of an offence.

(3) If—

(a) the name of any individual is, without sufficient cause, entered in or omitted from an investment limited partnership’s beneficial ownership register, or

(b) default is made or unnecessary delay takes place in entering in an investment limited partnership’s beneficial ownership register the fact that an individual has ceased to be a beneficial owner of it,

the individual aggrieved or any other interested party may apply to the court for rectification of the register.

(4) Where an application is made undersubsection (3), the court may either refuse the application or may order rectification of the beneficial ownership register and payment by the investment limited partnership of compensation for any loss sustained by any party aggrieved.

(5) On such an application, the court may—

(a) decide any question as to whether the name of any person who is a party to the application should or should not be entered in or omitted from the beneficial ownership register, and

(b) more generally, decide any question necessary or expedient to be decided for rectification of the beneficial ownership register.

(6) The reference in this section to "any other interested party" is a reference to any other individual who is a beneficial owner of the investment limited partnership.]

47. F101[Discharge of initial central filing obligation — construction of references to that expression in sections 48 to 59.

47.A reference insections 48to59to the discharge by a general partner of its initial central filing obligation is a reference to the delivery by the general partner of information to the Registrar in compliance withsection 51(1)or(2).]

48. F102[Delivery of information under sections 49 to 52: delivery may be effected by persons external to general partner (as well as by officers or employees of it).

48.(1) This section applies in a case in which a general partner of an investment limited partnership is a body corporate.

(2) The provision made bysubsection (3)is in addition to the general law whereby a general partner acting through an officer or employee of the general partner may discharge an obligation referred to in this section.

(3) An obligation imposed on a general partner of an investment limited partnership by any ofsections 49to52to deliver information to the Registrar may be discharged by a person, who is not an officer or employee of the general partner, acting on the general partner’s behalf.

(4)Section 53makes provision as respects certain information to be delivered to the Registrar where the obligation concerned is discharged on behalf of the general partner by a person acting as mentioned insubsection (3).

(5)Section 51(6)applies to the delivery by a general partner of an investment limited partnership of information irrespective of whether the person who delivers the information is an officer or employee of the general partner or a person acting as mentioned insubsection (3).]

49. F103[Registrar of Beneficial Ownership of Investment Limited Partnerships.

49.(1) There shall, for the purposes of this Act, be a registrar to be known as the "Registrar of Beneficial Ownership of Investment Limited Partnerships", and in this Act referred to as the "Registrar".

(2) The Bank shall be the Registrar.]

50. F104[Establishment and maintenance of central register.

50.(1) There is, by virtue of this section, established a register which shall be known as the "Central Register of Beneficial Ownership of Investment Limited Partnerships" and is in this Act referred to as the "central register".

(2) The central register shall be maintained by the Registrar; the information required bysections 51to59to be delivered or submitted to the Registrar shall be entered in that register by the Registrar and that register shall be kept in such form as the Registrar considers appropriate.

(3) The provision made bysubsection (2)as respects entry of information in the central register is subject tosubsection (5)ofsection 52(which prohibits disclosure of a PPS number).]

51.(1) A general partner of an investment limited partnership, being a partnership that has been formed before the commencement of section 39 of the Investment Limited Partnerships (Amendment) Act 2020, shall deliver the information specified insection 52to the Registrar within 6 months from such commencement.

(2) A general partner of an investment limited partnership, being a partnership that has been formed on or after the commencement of section 39 of the Investment Limited Partnerships (Amendment) Act 2020, shall, within 6 months from the date of its formation, deliver the information specified insection 52to the Registrar in such manner as the Registrar determines.

(3) Where the following conditions are satisfied (and whether in the circumstances of the designated person taking the measures referred to insection 27A(7)or otherwise)—

(a) any of the particulars, as referred to insection 27A(1)(a)and(b), contained in the beneficial ownership register of an investment limited partnership come to the knowledge of a designated person, and

(b) the designated person forms the opinion that there is a discrepancy between the particulars referred to inparagraph (a)and the information in the central register (on referring himself or herself to the information in the central register as it relates to that investment limited partnership),

then the designated person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists.

(4) On receipt of a foregoing notice, the Registrar shall—

(a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and

(b) serve a notice on the general partner of the investment limited partnership concerned which—

(i) states that the foregoing notice has been received, and

(ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the general partner of the investment limited partnership to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines—

(I) a submission as to why the general partner of the investment limited partnership considers the opinion of the designated person concerned not to be well founded, or

(II) if the general partner of the investment limited partnership considers the opinion of the designated person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the general partner is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved,

and such a request shall be complied with by the general partner of the investment limited partnership accordingly.

(5) None of the following—

(a) an opinion stated in a notice delivered undersubsection (3)by a designated person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists),

(b) any act done by the Registrar, as mentioned insubsection (4), on foot of the receipt by the Registrar of a notice delivered undersubsection (3)and, in particular, any entry made in the central register by the Registrar on foot of such receipt,

shall, of itself, be regarded as constituting defamatory matter.

(6) The means specified insubsection (7), and no other means, shall be used by a general partner of an investment limited partnership to deliver, under this section or any ofsections 52to59, information to the Registrar. If such means are not used to deliver the information concerned, the fact of the receipt by the Registrar of the particular information shall not constitute compliance with the requirement concerned of the section in question.

(7) The means referred to insubsection (6)are those that are provided for under the Electronic Commerce Act 2000.

(8) The reference in this section to the use of the means provided for under the Electronic Commerce Act 2000 is a reference to their use in a manner that complies with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of that Act.]

52. F106[Information which shall be delivered to Registrar.

52.(1) The following is the information referred to insection 51(1)or(2)that shall be delivered by a general partner of an investment limited partnership to the Registrar:

(a) the name, date of birth, nationality and residential address of each beneficial owner of the investment limited partnership;

(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised by, each such beneficial owner,

andsection 54makes provision for occasions, subsequent to the discharge by the general partner of its initial central filing obligation, on which information shall be delivered by it to the Registrar.

(2) In addition to what is provided insubsection (1), there shall be delivered to the Registrar by the general partner of the investment limited partnership—

(a) for the purpose of verification of the information delivered undersection 51(1)or(2)and without prejudice toparagraph (b), the PPS number of each beneficial owner to whom such a number has been assigned, or

(b) such information as stands determined by the Registrar for the purposes of this section.

(3) In addition to what is provided insubsections (1)and(2), where the obligation imposed on a general partner of an investment limited partnership bysection 51(1)or(2)is discharged by its acting through an officer or employee of the general partner, there shall be delivered to the Registrar—

(a) the name, address, phone number and e-mail address of the officer or employee for correspondence purposes, and

(b) particulars as to the capacity in which the officer or employee is acting.

(4) The Registrar shall delete from the central register information entered in it in relation to an investment limited partnership if 10 years have elapsed from the date on which the final distribution is made under the investment limited partnership (should such occur) and, as soon as may be after that deletion, the Registrar shall destroy that information.

(5) As respects a PPS number of a beneficial owner that has been delivered undersubsection (2)to the Registrar—

(a) the Registrar shall not disclose that number, and

(b) that number shall be stored securely by the Registrar.

(6) The Registrar shall, as respects any information that has been received undersubsection (3)and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the investment limited partnership to which it relates.

(7)Subsections (2)to(6)shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, undersection 51(4)(b)(ii)(II)as they apply to information that is to be, or has been, delivered undersection 51(1)or(2).]

53. F107[Information to be provided by presenter.

53.(1) This section applies where the information specified insection 51(1)or(2)is delivered to the Registrar by a person (in this section referred to as the "presenter") acting on behalf of the general partner concerned as mentioned insection 48(3).

(2) Where this section applies, the following information shall also be delivered by the presenter to the Registrar:

(a) the presenter’s name, address, phone number and e-mail address;

(b) particulars as to the capacity in which the presenter is acting;

(c) if the presenter is not an individual, the name, address, phone number and e-mail address of an individual for correspondence purposes.

(3) The Registrar shall, as respects any information that has been received undersubsection (2)and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the investment limited partnership to which it relates.]

54. F108[Duty to keep information in beneficial ownership register and central register aligned and up to date.

54.(1) The purpose of this section is to require that any changes that occur in the information contained in an investment limited partnership’s beneficial ownership register be reflected by a corresponding change being made in the central register; accordingly there is imposed on the general partner of an investment limited partnership by this section an obligation—referred to in this section as the ‘follow up obligation’ - to deliver information to the Registrar so as to allow any such change to be reflected in the central register.

(2) The provisions of this section shall have effect in relation to an investment limited partnership following the discharge by the general partner of the investment limited partnership of its initial central filing obligation (and insubsection (3)the time on which that obligation is so discharged is referred to as the "relevant time").

(3) Where at any time, subsequent to the relevant time, the obligation referred to insubsection (4)falls to be discharged by a general partner of the investment limited partnership, then there is also imposed on the general partner, by this section, the follow up obligation specified insubsection (5).

(4) The first-mentioned obligation insubsection (3)of the general partner is the obligation to—

(a) enter any information in the investment limited partnership’s beneficial ownership register, or

(b) amend or delete any information in that register,

whether by virtue of its duty undersection 27A(1)to hold accurate and current information regarding the investment limited partnership’s beneficial ownership or any provision ofsection 27B,27C,28,28Aor28B.

(5) The general partner’s follow up obligation is to deliver to the Registrar, as appropriate—

(a) the same information as that which (as mentioned insubsection (4)(a)) the general partner is required to enter in the investment limited partnership’s beneficial ownership register, or

(b) the appropriate information that will enable the Registrar to make the same amendment or deletion of information in the central register as that which (as mentioned insubsection (4)(b)) the general partner is required to make in the investment limited partnership’s beneficial ownership register,

and the follow up obligation shall be discharged within 14 days from the date on which the first-mentioned obligation insubsection (3)falls to be discharged by the general partner.

(6)Section 52(2)to(7)and, as the case may be,section 53shall apply in a case where information is delivered to the Registrar under subsection (5) as they apply in a case where information is delivered to the Registrar undersection 51(1),(2)or(3).]

55. F109[Unrestricted access to beneficial ownership information in central register.

55.(1) Subject tosubsection (2), the following shall have the right to inspect the central register—

(a) a member of the Garda Síochána, not below the rank of inspector, who is engaged in the prevention, detection, investigation or analysis of possible money laundering or terrorist financing,

(b) a member of FIU Ireland within the meaning of Part 4 of the Act of 2010,

(d) an officer of the Criminal Assets Bureau, holding a rank not below the rank of inspector in the Garda Síochána, or holding a position not below that of Higher Executive Officer.

(2) The right referred to insubsection (1)shall not be exercised—

(a) by a member of the Garda Síochána referred to inparagraph (a)of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent,

(b) by a member of FIU Ireland, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent,

(c) by an officer of the Revenue Commissioners referred to inparagraph (c)of that subsection, unless he or she has been authorised to exercise the right by an officer of the Revenue Commissioners, holding a position not below that of Principal Officer, or

(d) by an officer of the Criminal Assets Bureau referred to inparagraph (d)of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent.

(3) Subject tosubsection (4), a member, a member of staff or an officer of a competent authority who is engaged in the prevention, detection or investigation of possible money laundering or terrorist financing shall have the right to inspect the central register.

(4) The right referred to insubsection (3)shall not be exercised—

(a) by—

(i) a member of staff of the Bank,

(ii) an officer of the Minister for Justice and Equality,

(iii) a member or member of staff of the Property Services Regulatory Authority, or

(iv) a member or member of staff of the Legal Services Regulatory Authority,

(each of which or whom is referred to in this paragraph as a "relevant competent authority") unless he or she holds a position not below that of Higher Executive Officer and has been authorised to exercise the right by a member or member of staff or, as the case may be, an officer of the relevant competent authority concerned, holding a position not below that of Principal Officer, or

(b) by a member or member of staff of—

(i) the Law Society of Ireland,

(ii) the General Council of the Bar of Ireland, or

(iii) a designated accountancy body (within the meaning of Part 4 of the Act of 2010),

unless he or she is a person designated by the President of the Law Society of Ireland, the chairperson of the General Council of the Bar of Ireland or the chief executive of (or a person holding an equivalent position in) the designated accountancy body, as the case may be, to be a person authorised for the purposes ofsubparagraph (i),(ii)or(iii), as appropriate, to exercise the right.

(5) On there being made of the Registrar a request for inspection, under any ofsubsections (1)to(4), of the central register, the Registrar shall afford the maker of the request access, in a timely manner, to the register.

(6) The Registrar shall, neither during the taking of the steps to afford the maker the access referred to insubsection (5), nor afterwards, alert the beneficial owners of any investment limited partnership concerned to the fact of such access having been afforded.

(7) Insubsection (6), "any investment limited partnership concerned" means any investment limited partnership to which the information in the central register, the subject of the inspection concerned, relates.

(8) Each of the following:

(a) the Garda Síochána;

(b) the Revenue Commissioners;

(d) the Criminal Assets Bureau,

may disclose the information in the central register to any corresponding competent authority of another Member State (a "corresponding authority"); in the event of there being a request made of a body or other person referred to in any ofparagraphs (a)to(d)by a corresponding authority for disclosure of such information, the request shall be complied with in a timely manner.

(9) No fee shall be charged to a corresponding authority for the disclosure of the information in the central register.]

56. F110[Restricted access to beneficial ownership information in central register.

56.(1) When—

(a) a general partner of an investment limited partnership enters into an occasional transaction with a designated person, or forms a business relationship with a designated person, or

(b) a designated person is taking customer due diligence measures in accordance with Part 4 of the Act of 2010 in relation to an investment limited partnership,

the designated person shall, subject tosubsection (6), have a right of access to the following information in the central register that relates to the investment limited partnership:

(i) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it;

(ii) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner,

and that access shall be afforded in a timely manner.

(2) The information obtained by a designated person by means of the access to the central register afforded undersubsection (1)shall not be relied upon exclusively by the designated person to fulfil the designated person’s duty to apply customer due diligence measures under Part 4 of the Act of 2010 (which duty shall be fulfilled by using a risk-based approach).

(3) Any person may, subject tosubsection (6), request in writing access to the following information in the central register that relates to any investment limited partnership:

(a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it;

(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner.

(4) Any person may, subject tosubsection (6), request in writing access to the following information in the central register that relates to any investment limited partnership which holds or owns a controlling interest in any corporate or other legal entity incorporated outside the European Union, through direct or indirect ownership, including through bearer shareholdings, or through control via other means:

(a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of the investment limited partnership;

(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner of the investment limited partnership,

and that access shall be afforded in a timely manner.

(5) The Data Protection Act 2018 shall apply to the access that the Registrar affords to a designated person and any member of the public in respect of the information in the central register that relates to an investment limited partnership.

(6) Where a designated person or a member of the public seeks to have access to, or to inspect, any information in the central register so far as such information relates to a minor who is a beneficial owner of an investment limited partnership, the Registrar shall request the designated person or member of the public to provide, in writing, to the Registrar a summary of the grounds on which he or she considers it is in the public interest that that information be disclosed to him or her and—

(a) if the designated person or the member of the public refuses or fails to comply with that request, or

(b) unless the Registrar, having considered such a written summary provided to the Registrar, is of the opinion that there are substantial grounds for the contention of the foregoing person that it is in the public interest that the information be disclosed to him or her,

the designated person or member of the public shall not be permitted by the Registrar to have access to, or to inspect, any information in the central register so far as such information relates to the minor concerned.

(7) Insubsection (1), "occasional transaction" has the same meaning as it has insection 27A(7).]

57. F111[Obligations of competent authorities to report certain discrepancies to Registrar.

57.(1) If—

(a) any of the following:

(i) the Garda Síochána;

(ii) the Revenue Commissioners;

(iii) a competent authority;

(iv) the Criminal Assets Bureau,

forms the opinion that there is a discrepancy between the information in the central register and the beneficial ownership information, as it relates to any investment limited partnership, available to, as the case may be, the Garda Síochána, the Revenue Commissioners or other foregoing authority or bureau (each of which is referred to in this section as a "relevant person"), and

(b) to the extent that the doing of the following does not interfere unnecessarily with the performance of the relevant person’s functions,

then the relevant person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists.

(2) On receipt of a foregoing notice, the Registrar shall—

(b) serve a notice on the general partner of the investment limited partnership concerned which—

(i) states that the foregoing notice has been received, and

(ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the general partner to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines—

(I) a submission as to why the general partner considers the opinion of the relevant person concerned not to be well founded, or

(II) if the general partner considers the opinion of the relevant person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the general partner is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved,

and such a request shall be complied with by the general partner accordingly.

(3) None of the following—

(a) an opinion stated in a notice delivered undersubsection (1)by a relevant person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists),

(b) any act done by the Registrar, as mentioned insubsection (2), on foot of the receipt by the Registrar of a notice delivered undersubsection (1)and, in particular, any entry made in the central register by the Registrar on foot of such receipt,

shall, of itself, be regarded as constituting defamatory matter.

(4) Subsections(2)to(7)ofsection 52shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, undersubsection (2)(b)(ii)(II)as they apply to information that is to be, or has been, delivered undersection 51(1)or(2).]

58. F112[Fees may be charged for access to central register.

58.(1) The Registrar may require any of the persons referred to insection 56(1),(3)or(4)to pay to the Registrar a fee of such an amount as the Registrar may determine in respect of the access afforded to the central register undersection 56(1),(3)or(4).

(2) The amount of a fee required to be paid undersubsection (1)shall not exceed the administrative cost incurred in affording access to the information concerned.]

59. F113[Offence for failure to comply with section 51, 52, 53 or 54 and supplemental provisions.

59.(1) A general partner that fails to comply withsection 51,52or54shall be guilty of an offence.

(2) A general partner that fails, without reasonable excuse, to comply with a request, as referred to insubparagraph (ii)ofsubsection (4)(b)ofsection 51, orsubparagraph (ii)ofsubsection (2)(b)ofsection 57, contained in a notice served on it under thatsubsection (4)(b)or(2)(b), as the case may be, shall be guilty of an offence.

(3) A presenter that fails to comply withsection 53shall be guilty of an offence.

(4) A person who, in purported compliance withsection 51,52,53or54, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence.

(5) A designated person who fails to comply withsection 51(3)shall be guilty of an offence.]

F114[PART VIII Migration-in and Migration-out of Investment Limited Partnerships]

F115[Chapter 1

60. F116[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 bysection 61;

"relevant jurisdiction", in relation to a migrating partnership, means the place, outside the State, prescribed undersubsection (2)where the migrating partnership is formed and where relevant registered at the time of its application undersection 62.

(2) The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of "relevant jurisdiction" insubsection (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 undersection 62.]

61. F117[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;

(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 undersection 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 withChapter 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 undersection 62and 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 insubsection (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.]

62. F118[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 insubsection (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 undersection 8in respect of the migrating partnership,

and

(i) the consideration by the Bank of the documentation specified insubsection (3)shall be postponed until such time as the Bank has notified the general partner, as provided underparagraph (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 inparagraph (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 undersection 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 undersubsection (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 inparagraphs (c)and(f), respectively, of the definition of "registration documents" insection 61(1)are accurate in all material respects,

and the Bank may accept the declaration referred to inparagraph (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 insubsection (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 undersection 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 insubsection (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 insubsection (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 insubsection (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 ofsubsection (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 insubsection (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.]

63. F119[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 inparagraph (d)of the definition of ‘registration documents’ insection 61(1)after the date of the declaration and before the date of the issue of the certificate referred to insection 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 ofsection 62or 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 undersection 29(1)(c)to revoke the authorisation of the migrating partnership, publish a notice, as referred to insubsection (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 insubsection (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 undersection 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 undersection 29(1)(c).

(6) The provision made by this section imposing requirements—

(a) in relation to a proposed revocation undersection 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 undersection 29(3)(which cases shall, instead, be governed by the general law regarding procedural fairness).]

F120[Chapter 2

64. F121[Definitions and supplemental (Chapter 2)

64.(1) In this Chapter—

"exiting partnership" means an investment limited partnership that is the subject of the application undersection 65to have its authorisation revoked;

"relevant jurisdiction", in relation to an exiting partnership, means the place, outside the State, prescribed undersubsection (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 ofChapter 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" insubsection (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 undersection 62or for investment limited partnerships to continue under the laws of that place.]

65. F122[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 undersection 29(2).

(2) Where an application is made undersubsection (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,

(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 insubsection (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 inparagraph (c)of the definition of ‘transfer documents’ insection 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 undersubsection (5).

(5) If, on an application undersubsection (4), the court is of opinion that either of the matters referred to inparagraphs (a)and(b)of that subsection has resulted in conduct that falls withinparagraph (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 undersubsection (4)by other partners of the partnership, and

F123[Chapter 3

66. F124[Definitions (Chapter 3)

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.

This text is published under Irish Statute Book's own terms of reuse, not a Legalize or public-domain licence. Irish Statute Book
CC-BY 4.0 (Oireachtas Open Data PSI Licence)
Contains Irish Public Sector Information licensed under the Oireachtas (Houses of the Oireachtas) Open Data PSI Licence / Creative Commons Attribution 4.0 International, sourced from https://www.irishstatutebook.ie.