IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015

• (3) If at any time in the case of an ICAV there are not sufficient directors capable of acting to form a quorum, any director or member of the ICAV may convene an extraordinary general meeting of the ICAV in the same manner as nearly as possible as that in which meetings may be convened by the directors.

91. Convening of extraordinary general meetings by members

91. (1) The rights conferred by subsection (2) on a member or members of an ICAV have effect, except where the instrument of incorporation of the ICAV provides otherwise, and the rights conferred by subsections (3) to (7) on a member or members of an ICAV (and the corresponding duties on the part of its directors) have effect despite anything in the instrument of incorporation of the ICAV.

• (2) One or more members of an ICAV holding, or together holding, at any time not less than 50 per cent (or such other percentage as may be specified in the instrument of incorporation) of the voting rights in the ICAV may convene an extraordinary general meeting of the ICAV.

• (3) The directors of an ICAV shall, at the request of one or more members holding, or together holding, at the date of the making of the request, not less than 10 per cent of the voting rights in the ICAV, proceed to convene an extraordinary general meeting of the ICAV.

• (4) The request shall state the objects of the meeting and shall be signed by those making the request and deposited at the registered office of the ICAV and may consist of several documents in like form each signed by one or more of those making the request.

• (5) If the directors do not within 21 days after the date of the deposit of the request proceed to convene a meeting to be held within 2 months after that date, those making the request, or any of them representing more than 50 per cent of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held more than 3 months after the date the request was first made.

• (6) Any reasonable expenses incurred by those making the request by reason of the failure of the directors duly to convene a meeting shall be repaid to those making the request by the ICAV and any sum so repaid shall be retained by the ICAV out of any sums due or to become due from the ICAV by way of fees or other remuneration in respect of their services to such of the directors as were in default.

• (7) For the purposes of subsections (3) to (6), the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such due notice of it.

• (8) A meeting convened under subsection (2) or (5) shall be convened in the same manner as nearly as possible as that in which meetings are to be convened by directors.

F17[PART 5A Written Resolutions

91A. Unanimous written resolutions

91A. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—

• (a) signed by all the members of an ICAV for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held, and

• (b) if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act.

• (2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.

• (3) A resolution passed in accordance with subsection (1) may consist of several documents in like form each signed by one or more members.

• (4) A resolution passed in accordance with subsection (1) shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date.

• (5) If a resolution passed in accordance with subsection (1) is not contemporaneously signed, the ICAV shall notify the members, within 21 days after the date of delivery to it of the documents referred to in subsection (6), of the fact that the resolution has been passed.

• (6) The signatories of a resolution passed in accordance with subsection (1) shall, within 14 days after the date of its passing, procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.

• (7) The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.

• (8) It is immaterial, as regards the resolution’s validity, whether subsection (5), (6) or (7) is complied with.

• (9) If an ICAV fails to comply with subsection (5), the ICAV and any officer of it who is in default commits a category 4 offence.

• (10) If a signatory fails to take all reasonable steps to procure the delivery to the ICAV, in accordance with subsection (6), of the documents referred to in that subsection, the signatory commits a category 4 offence.

• (11) This section does not apply to—

• (a) a resolution to remove a director, or

• (b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 131(1)(b).

• (12) Nothing in this section affects any rule of law as to—

• (a) things done otherwise than by passing a resolution,

• (b) circumstances in which a resolution is or is not treated as having been passed, or

• (c) cases in which a person is precluded from alleging that a resolution has not been duly passed.]

91B. F18[Majority written resolutions

91B. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—

• (a) that is—

• (i) described as being an ordinary resolution, and

• (ii) signed by the requisite majority of members of the ICAV concerned,

and

• (b) in respect of which the condition specified in subsection (7) is satisfied,

shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.

• (2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.

• (3) In subsection (1) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent more than 50 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).

• (4) Notwithstanding any provision to the contrary in this Act, a resolution in writing—

• (a) that is—

• (i) described as being a special resolution, and

• (ii) signed by the requisite majority of members,

and

• (b) in respect of which the condition specified in subsection (7) is satisfied,

shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.

• (5) For the avoidance of doubt, the reference in subsection (4) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.

• (6) In subsection (4) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent at least 75 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).

• (7) The condition referred to in subsection (1)(b) and (4)(b) is that all members of the ICAV concerned entitled to attend and vote on the resolution referred to in subsection (1) or (4), as the case may be, have been circulated, by the directors or the other person proposing it, with the proposed text of the resolution and an explanation of its main purpose.

• (8) A resolution passed in accordance with subsection (1) or (4) may consist of several documents in like form each signed by one or more members.

• (9) Without prejudice to section 91C(5), a resolution passed—

• (a) in accordance with subsection (1), shall be deemed to have been passed, subject to subsection (10), at a meeting held 7 days after the date on which it was signed by the last member to sign, or

• (b) in accordance with subsection (4), shall be deemed to have been passed, subject to subsection (10), at a meeting held 21 days after the date on which it was signed by the last member to sign,

and where the resolution states a date as being the date of his or her signature thereof by any member the statement shall be prima facie evidence that it was signed by him or her on that date.

• (10) Without prejudice to section 91C(5), if—

• (a) a date earlier than that referred to in subsection (9)(a) or (b) (not being earlier than the date on which the resolution was signed by the last member to sign) is specified in the resolution referred to in subsection (1) or (4) as the date on which it shall have been deemed to have been passed,

• (b) all members of the ICAV concerned entitled to attend and vote on that resolution state, in a written waiver signed by each of them, that the application of subsection (9) is waived, and

• (c) there accompanies the delivery to the ICAV under subsection (3) of section 91C of the documents referred to in that subsection that written waiver (which may be so delivered to the ICAV by any of the means referred to in that subsection),

then the resolution shall be deemed to have been passed on the date specified in it.

• (11) A written waiver under subsection (10) may consist of several documents in like form each signed by one or more members.]

91C. F19[Supplemental provisions in relation to section 91B

91C. (1) Section 91B does not apply to—

• (a) a resolution to remove a director, or

• (b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 133(1)(b).

• (2) Within 3 days after the date of the delivery to it of the documents referred to in subsection (3), the ICAV shall notify every member of—

• (a) the fact of the resolution concerned having been signed by the requisite majority of members (within the meaning of section 91B (3) or (6), as the case may be), and

• (b) the date that the resolution will, by virtue of section 91B, be deemed to have been passed.

• (3) The signatories of a resolution passed in accordance with section 91B(1) or (4) shall procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.

• (4) The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.

• (5) Unless and until subsection (3) is complied with, a resolution passed in accordance with section 91B(1) or (4) shall not have effect; however it is immaterial, as regards the resolution’s validity, whether subsection (2) or (4) is complied with.

• (6) Where subsection (10) of section 91B applies, the reference in subsection (5) to subsection (3) shall be read as including a reference to paragraph (c) of that subsection (10).

• (7) If an ICAV fails to comply with subsection (2), the ICAV and any officer of it who is in default commits a category 4 offence.]

PART 6 Charges and Debentures

Chapter 1 Interpretation

92. Definitions

92. (1) In this Part—

“charge”, in relation to an ICAV, means a mortgage or a charge, in an agreement (written or oral), that is created over an interest in any property of the ICAV (and in section 93(8) and sections 98 to 103 includes a judgment mortgage) but does not include a mortgage or a charge, in an agreement (written or oral), that is created over an interest in—

• (a) cash,

• (b) money credited to an account of a financial institution, or any other deposits,

• (c) shares, bonds or debt instruments,

• (d) units in collective investment undertakings or money market instruments, or

• (e) claims and rights (such as dividends or interest) in respect of any thing referred to in any of the foregoing paragraphs;

“property”, in relation to an ICAV, includes any assets or undertaking of the ICAV.

• (2) Any exclusion provided in subsection (1) to what is defined in that subsection as constituting a “charge” may be varied by order made by the Minister if the Minister considers that it is necessary or expedient to do so in consequence of any Community act adopted after the commencement of this section relating to financial collateral arrangements.

• (3) For the avoidance of doubt, in the case of a mortgage or charge created over both—

• (a) an interest in anything specified in any of paragraphs (a) to (e) of subsection (1), and

• (b) any property, assets or undertaking not falling within any of those paragraphs,

the mortgage or charge shall, other than to the extent to which it is created over an interest in anything specified in any of the foregoing paragraphs of subsection (1), be regarded as a charge within the meaning of this Part.

Chapter 2 Registration of charges and priority

93. Registration of charges created by ICAVs

93. (1) Every charge created by an ICAV shall be void against the liquidator and any creditor of the ICAV unless either the procedure set out in—

(a)subsection (3) (the “one-stage procedure”), or

(b)subsection (4) (the “two-stage procedure”),

with respect to the charge’s registration is complied with.

• (2) If, in purported compliance with the requirements of this Part as to the taking of steps in that behalf, there is received by the Bank particulars of a charge that omit the required particulars in respect of one or more properties to which the charge relates,subsection (1) shall be read as operating to render void (as against the liquidator and any creditor of the ICAV) the charge as it relates to the particular property or properties in respect of which that omission occurs but not otherwise.

• (3) The procedure for registration under this subsection referred to in subsection (1) as the one-stage procedure consists of the taking of steps so that there is received by the Bank, not later than 21 days after the date of the charge’s creation, particulars, in such form as may be specified by the Bank, of the charge.

• (4) The procedure for registration under this subsection referred to in subsection (1) as the two-stage procedure consists of the following, namely the taking of steps—

• (a) so that there is received by the Bank a notice stating the ICAV’s intention to create the charge (being a notice in such form and containing such particulars as may be specified by the Bank, of the charge), and

• (b) so that, not later than 21 days after the date of the Bank’s receipt of the notice under paragraph (a) (the “first-mentioned notice”), there is received by the Bank a notice, in such form as may be specified by the Bank, stating that the charge referred to in the first-mentioned notice has been created.

• (5) If the requirement under paragraph (b) of subsection (4) is not complied with, within the period specified in that paragraph, the notice received under paragraph (a) of that subsection in relation to the charge shall be removed by the Bank from the register.

• (6) Subsection (1) is without prejudice to any contract or obligation for repayment of the money secured by the charge concerned and when a charge becomes void under that subsection, the money secured by it shall immediately become payable.

• (7) Where a charge comprises property outside the State, such particulars, in such form as may be specified by the Bank, (and, as the case may be, the notice under subsection (4)(b)) may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.

• (8) If there is a change among the one or more persons entitled to a charge registered under this Part, the fact of that change having occurred, and particulars of the person or persons now entitled to the charge, may be delivered, in such form as may be specified by the Bank, to the Bank and registered by it.

• (9) Nothing in this section or any other provision of this Part authorises the delivery to the Bank of a deed, or any supplemental document to it, and this Part does not impose or confer any duty or power on the Bank to examine any deed or any supplemental document to it.

94. Duty of ICAV with respect to registration under section 93 and right of others to effect registration

94. (1) It shall be the duty of the ICAV that creates the charge to comply with the procedure under section 93(3) or (4) with respect to the charge’s registration but this is without prejudice to subsection (2) .

• (2) Any person interested in the charge may use the procedure under section 93(3) or (4) with respect to its registration and the person’s using that procedure (and in compliance with section 93(3) or (4)) shall have the same effect as if the ICAV had used that procedure (and in compliance with section 93(3) or (4)).

• (3) Where such a person uses that procedure (and in compliance with section 93(3) or (4)), the person may recover from the ICAV the amount of fees properly paid by that person to the Bank in respect of the registration of the charge concerned.

Duty of ICAV to register charges existing on property acquired

95. (1) Where an ICAV acquires any property which is subject to a charge that, if it had been created by the ICAV after the acquisition of the property, would have given rise to the duty under section 93(1) on the part of the ICAV with respect to the charge’s registration, then the ICAV shall have the following duty.

• (2) That duty is to take steps so that there is received by the Bank, not later than 21 days after the date on which acquisition of the property concerned is completed, such particulars of the charge, in such form, as may be specified by the Bank.

• (3) If default is made in complying with this section, the ICAV and any officer of it who is in default commits a category 3 offence.

95. Priority of charges

96. (1) For the purposes of this section—

• (a) “relevant rule of law” means any applicable rule of law that governs the priority of charges created by a body corporate, and for the avoidance of doubt, any enactment governing the priority of such charges is not encompassed by that expression;

• (b) the reference in subsection (2) to any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges shall be deemed to include a reference to any priority that an advance made on foot of a charge, by virtue of a person’s not having notice of a matter, enjoys over a subsequent charge or charges.

• (2) Any relevant rule of law shall stand modified in the manner specified in subsection (3), but not so as to displace any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges.

• (3) That modification is that, for the part of the rule that operates by reference to the time of creation of the 2 or more charges concerned, there shall be substituted a part that operates by reference to—

• (a) the dates of receipt by the Bank of the specified particulars of the 2 or more charges concerned, or

• (b) if the date of receipt by the Bank of the specified particulars of the 2 or more charges is the same, the respective times, on the date concerned, of receipt by the Bank of those particulars.

• (4) References in subsection (3) to the date, or time, of receipt of particulars are references to—

• (a) if the procedure under subsection (3) of section 93 is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the specified particulars, in the specified form, of the charge, or

• (b) if the procedure under subsection (4) of section 93 is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the notice, in the specified form and containing the specified particulars, in relation to the charge under paragraph (a) of that subsection (4).

• (5) Subsections (2) and (3) shall not affect any agreement between persons in whose favour charges have been created in relation to the priority that those charges shall, as between them, have.

• (6) In relation to particulars of a charge received by the Bank pursuant to section 93(3) or (4), the following provisions apply so far as those particulars consist of particulars of a negative pledge, any events that crystallise a floating charge or any restrictions on the use of any charged asset (and particulars of any such matter are referred to subsequently in this subsection as “extraneous material”):

• (a) the Bank shall not enter in the register under section 93 particulars of the extraneous material pursuant to that section;

• (b) the fact that the Bank has received the particulars of the extraneous material shall have no legal effect;

but nothing in the foregoing affects the validity of the receipt by the Bank of the other particulars of the charge.

• (7) In this section “negative pledge” means any agreement entered into by the ICAV concerned and any other person or persons that—

• (a) provides that the ICAV shall not, or shall not otherwise than in specified circumstances—

• (i) borrow moneys or otherwise obtain credit from any person other than that person or those persons,

• (ii) create or permit to subsist any charge, lien or other encumbrance or any pledge over the whole or any part of the property of the ICAV, or

• (iii) alienate or otherwise dispose of in any manner any of the property of the ICAV,

or

• (b) contains a prohibition, either generally or in specified circumstances, on the doing by the ICAV of one or more things referred to in one, or more than one, provision of paragraph (a).

• F20[(8) The registration of an investment company or an UCITS as an ICAV by continuation under Part 8 does not affect the priority of charges created by the investment company or the UCITS, as the case may be.]

• (9) The registration of a body corporate as an ICAV by continuation under Part 9 does not affect the priority of charges created by the body corporate before its registration as an ICAV.

97. Registration of judgment mortgages

97. (1) If judgment is recovered against an ICAV and that judgment is subsequently converted into a judgment mortgage affecting any property of the ICAV, the judgment mortgage shall be void against the liquidator and any creditor of the ICAV unless the procedure set out in subsection (2) with respect to the judgment mortgage’s registration is complied with.

• (2) The procedure for registration under this subsection consists of the taking of steps so that there is received by the Bank, together with the relevant judgment mortgage document, such particulars of the judgment mortgage, in such form, as may be specified by the Bank, not later than 21 days after the following date.

• (3) That date is the date on which notification by the Property Registration Authority of the judgment mortgage’s creation is received by the judgment creditor.

• (4) In subsection (2) the “relevant judgment mortgage document” means a certified copy of, as appropriate—

• (a) Form 60, 60A or 60B set out in the Schedule of Forms to the Land Registration Rules 2012 (S.I. No. 483 of 2012) as amended by the Land Registration Rules 2013 (S.I. No. 389 of 2013), or

• (b) Form 16 set out in the Schedule to the Registration of Deeds (No. 2) Rules 2009 (S.I. No. 457 of 2009),

used for the purposes of converting the judgment concerned into a judgment mortgage.

• (5) For the purposes of this section, it shall be presumed, until the contrary is proved, that the judgment creditor received notification, of the judgment mortgage’s creation, from the Property Registration Authority on the third day after the date on which that notification is sent by it to the judgment creditor or his or her agent.

• (6) If rules are made under section 126 of the Registration of Title Act 1964 or, as the case may be, section 48 of the Registration of Deeds and Title Act 2006—

• (a) replacing a form that is referred to in subsection (4)(a) or (b), as appropriate, the reference in that provision to the form shall be read as a reference to the form as so replaced, or

• (b) amending a form that is so referred to, the reference in that provision to the form shall be read as a reference to the form as it stands so amended.

98. Register of charges

98. (1) The Bank shall keep, in relation to each ICAV, a register of the charges requiring registration under this Part, and shall, on payment of the fee (if any) prescribed under section 32E of the Central Bank Act 1942, enter in the register, in relation to such charges, the following particulars:

• (a) without prejudice to paragraphs (d) and (e), in the case of a charge created by the ICAV, the date of its creation and—

• (i) where the procedure for registration under section 93(3) is complied with, the date and time of receipt by the Bank under that provision of such particulars of the charge, in such form, as is specified by the Bank, and

• (ii) where the procedure for registration under section 93(4) is complied with, the respective dates and times of receipt by the Bank of the notices under paragraphs (a) and (b) of that provision in relation to the charge;

• (b) without prejudice to paragraphs (d) and (e), in the case of a charge existing on property acquired by the ICAV, the date of the acquisition of the property by the ICAV;

• (c) without prejudice to paragraphs (d) and (e), in the case of a judgment mortgage, the date of the mortgage’s creation and the date and time, in relation to it, of receipt by the Bank, under section 97(2), of the particulars specified by the Bank in such form as is so specified, together with the relevant judgment mortgage document referred to in that provision;

• (d) short particulars of the property charged; and

• (e) the persons entitled to the charge.

• (2) The register referred to in subsection (1) shall be kept in such form as the Bank considers appropriate and shall be made available for inspection free of charge on a website maintained or used by the Bank.

99. Certificate of registration

99. (1) The Bank shall give a certificate of the registration of any charge registered in pursuance of this Part.

• (2) Subject to subsection (3), such a certificate shall be conclusive evidence that the requirements of this Part as to the registration of the charge have been complied with.

• (3) To the extent that the particulars of a charge delivered to the Bank in purported compliance with this Part omit the required particulars in respect of one or more properties to which the charge relates, the evidential effect of the certificate provided under subsection (2) shall not extend to the particular property or properties in respect of which that omission occurs.

• (4) Without prejudice to the generality of the definition, in section 92, of that expression, in subsection (3) “property” includes an interest in, or right over, property.

100. Entries of satisfaction and release of property from charge

100. (1) The Bank may exercise the powers under subsection (2), on evidence being given to its satisfaction with respect to any charge registered under this Part—

• (a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part, or

• (b) that part of the property charged has been released from the charge or has ceased to form part of the ICAV’s property,

and, where the satisfaction or release has not been signed by or on behalf of the chargee, after giving notice to the person who, for the time being, stands registered as the person entitled to such charge or to the judgment creditor, as the case may be.

• (2) Those powers are to enter on the register a memorandum—

• (a) of satisfaction in whole or in part, or

• (b) of the fact that part of the property has been released from the charge or has ceased to form part of the ICAV’s property,

as the case may be.

• (3) Where the Bank enters such a memorandum of satisfaction in whole, it shall, if required, furnish the ICAV with a copy of it.

• (4) The Bank may accept as evidence of a satisfaction or release referred to in subsection (1) (a) or (b) a statement in such form as may be specified by the Bank, signed by a director and secretary of the ICAV, or by 2 directors of the ICAV, stating that the satisfaction or release has occurred.

• (5) Where a person signs a statement referred to in subsection (4) knowing it to be false, the person commits a category 2 offence.

• (6) Where a person signs a statement referred to in subsection (4) and in doing so did not honestly believe on reasonable grounds that the statement was true, and the High Court considers that the making of that statement—

• (a) contributed to the ICAV being unable to pay its debts,

• (b) prevented or impeded the orderly winding-up of the ICAV, or

• (c) facilitated the defrauding of the creditors of the ICAV,

the High Court, on the application of the liquidator or receiver of the property of, or any creditor or contributor of, the ICAV, may, if it thinks it proper to do so, make the following declaration.

• (7) That declaration is that that signatory shall be personally liable, without limitation of liability, for all or such part as the High Court may specify of the debts and other liabilities of the ICAV.

101. Extension of time for registration of charges and rectification of register

101. (1) The High Court may grant the following relief where it is satisfied that the omission to register a charge within the time required by this Part or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfaction—

• (a) was accidental or due to inadvertence or to some other sufficient cause, or

• (b) is not of a nature to prejudice the position of creditors or shareholders of the ICAV,

or that on other grounds it is just and equitable to grant that relief in respect of such an omission or misstatement.

• (2) That relief is to order, on such terms and conditions as seem to the High Court just and expedient, that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.

• (3) An application for relief under this section may be made on behalf of the ICAV or any other person interested.

102. Copies of instruments creating charges to be kept

102. (1) An ICAV shall keep a copy of every instrument creating any charge in relation to it and requiring registration under this Part, including, in the case of a judgment mortgage, a copy of the relevant judgment mortgage document that was received by the Bank.

• (2) All such copies kept by the ICAV shall be kept at the same place.

• (3) Such copies shall be kept at the same office as the register of members is kept and shall be open during business hours to the inspection of any member or creditor of the ICAV without charge.

• (4) If default is made in complying with subsection (1) or (2), the ICAV concerned and any officer of it who is in default commits a category 3 offence.

103. Netting of Financial Contracts Act 1995 not to affect registration requirements

103. Nothing in section 4(1) of the Netting of Financial Contracts Act 1995 affects—

• (a) the requirement to register a charge under this Part, or

• (b) the consequences of failing to register a charge under this Part.

Chapter 3 Provisions as to debentures

104. Liability of trustees for debenture holders

104. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision contained—

• (a) in a trust deed for securing an issue of debentures, or

• (b) in any contract with the holders of debentures secured by a trust deed,

in so far as it would have the effect of exempting a trustee of it from, or indemnifying him or her against, liability for breach of trust where he or she fails to show the degree of care and diligence required of him or her as trustee, having regard to the provisions of the trust deed conferring on him or her any powers, authorities or discretions.

• (2) Subsection (1) shall not invalidate—

• (a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release, or

• (b) any provision enabling such a release to be given—

• (i) on the agreement to the provision of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and

• (ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.

105. Perpetual debentures

105. A condition contained in any debentures or in any deed for securing any debentures shall not be invalid by reason only that the debentures are by those means made irredeemable or redeemable only on the happening of a contingency however remote, or on the expiration of a period however long, notwithstanding any rule of law to the contrary.

106. Power to re-issue redeemed debentures

106. (1) Where an ICAV has redeemed any debentures then—

• (a) unless any provision to the contrary, whether express or implied, is contained in the instrument of incorporation of the ICAV or in any contract entered into by the ICAV, or

• (b) unless the ICAV has, by passing a resolution to that effect or by some other act, shown its intention that the debentures shall be cancelled,

the ICAV shall have power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place.

• (2) On a re-issue of redeemed debentures, the person entitled to the debentures shall have the same priorities as if the debentures had never been redeemed.

• (3) Where an ICAV has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the ICAV having ceased to be in debit whilst the debentures have remained so deposited.

107. Specific performance of contracts to subscribe for debentures

107. A contract with an ICAV to take up and pay for any debentures of the ICAV may be enforced by an order for specific performance.

Chapter 4 Prohibition on registration of certain matters affecting shareholders

108. Registration against ICAV of certain matters prohibited

108. (1) Subject to subsection (3), the Bank has, in relation to any ICAV, no jurisdiction to accept receipt of, or to register in the register—

• (a) an order of any authority (whether judicial or otherwise) affecting a shareholder of the ICAV, or

• (b) any notice of the making thereof.

• (2) Any jurisdiction of an authority (whether judicial or otherwise) subsisting before the commencement of this section to make an order requiring that there be registered in the register, or that there be received by the Bank—

• (a) an order of that authority affecting a shareholder of an ICAV, or

• (b) a notice of the making of an order referred to in paragraph (a),

shall, after that commencement, cease to be exercisable.

• (3) Nothing in this section affects the jurisdiction of any authority (whether judicial or otherwise) by virtue of section 173.

PART 7 Accounts, Reports and Auditing

Chapter 1 Accounting records

109. Obligation to keep adequate accounting records

109. An ICAV shall keep or cause to be kept adequate accounting records.

110. Basic requirements for accounting records

110. (1) For the purposes of this Part, adequate accounting records are those that are sufficient—

• (a) correctly to record and explain the transactions of the ICAV,

• (b) to enable at any time the assets, liabilities, financial position and profit or loss of the ICAV to be determined with reasonable accuracy,

• (c) to enable the directors to ensure that any balance sheet, profit and loss account or income and expenditure account of the ICAV complies with the requirements of this Act, and

• (d) to enable the accounts of the ICAV to be readily and properly audited.

• (2) The accounting records shall be kept on a continuous and consistent basis, that is to say, the entries in them shall be made in a timely manner and be consistent from one year to the next.

• (3) If accounting records are not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating discovery of falsification should it occur.

• (4) Without prejudice to the generality of subsections (1) and (2), accounting records kept pursuant to section 109 shall contain—

• (a) entries from day to day of all sums of money received and expended by the ICAV and the matters in respect of which the receipt and expenditure takes place,

• (b) a record of the assets and liabilities of the ICAV, and

• (c) a record of the services provided by the ICAV and of all the invoices relating to them.

• (5) For the purposes of subsections (1) to (4), adequate accounting records shall be deemed to be kept if they comply with those subsections and facilitate the preparation of accounts which show the assets and liabilities of the ICAV.

• (6) The adequate accounting records required to be kept by section 109 shall be kept—

• (a) either in written form in an official language of the State, or

• (b) so as to enable the accounting records to be readily accessible and readily convertible into written form in an official language of the State.

111. Where accounting records are to be kept

111. (1) Subject to subsection (2), an ICAV’s accounting records shall be kept at the registered office of the ICAV or at such other place as the directors think fit.

• (2) If accounting records are kept at a place outside the State, there shall be sent to and kept at a place in the State and be at all reasonable times open to inspection by the directors such information and returns relating to the business dealt with in the accounting records so kept as will—

• (a) disclose with reasonable accuracy the financial position of that business at intervals not exceeding 6 months, and

• (b) enable to be prepared in accordance with this Act the ICAV’s balance sheet, its profit and loss account or income and expenditure account and any document annexed to any of those documents giving information which is required by this Act and is thereby allowed to be so given.

112. Access to accounting records

112. An ICAV shall make its accounting records, and any information and returns referred to in section 111(2), available in written form in an official language of the State at all reasonable times for inspection without charge by the officers of the ICAV and by other persons entitled pursuant to this Act to inspect the accounting records of the ICAV.

113. Retention of accounting records

113. Accounting records required to be kept by section 109, and any information and returns referred to in section 111(2), shall be preserved by the ICAV for a period of at least 6 years after the latest date to which they relate.

114. Accounting records: offences

114. (1) An ICAV that contravenes any of sections 109 to 113 commits a category 1 offence.

• (2) A director of an ICAV who fails to take all reasonable steps to secure compliance by the ICAV with the requirements of any of sections 109 to 113, or has by his or her own intentional act been the cause of any default by the ICAV under any of them, commits a category 1 offence.

• (3) In any proceedings against a person in respect of an offence under subsection (2) consisting of a failure to take reasonable steps to secure compliance by an ICAV with the requirements of any of sections 109 to 113, it shall be a defence to prove both of the following:

• (a) that the defendant had reasonable grounds for believing and did believe that a competent and reliable person was—

• (i) charged with the duty of ensuring that those requirements were complied with, and

• (ii) in a position to discharge that duty;

• (b) that the discharge of that duty by such competent and reliable person was monitored by the defendant by means of reasonable methods properly used.

115. Personal liability of officers where adequate accounting records not kept

115. (1) Subject to subsection (2), if—

• (a) an ICAV that is being wound up and that is unable to pay all of its debts has contravened any of sections 109 to 113, and

• (b) the High Court considers that such contravention—

• (i) has contributed to the ICAV’s inability to pay all of its debts,

• (ii) has resulted in substantial uncertainty as to the assets and liabilities of the ICAV, or

• (iii) has substantially impeded the orderly winding up of the ICAV,

the High Court, on the application of the liquidator or any creditor or contributory of the ICAV, has the following power.

• (2) The power of the High Court is to declare, if it thinks it proper to do so, that any one or more of the officers and former officers of the ICAV who is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the High Court, of the debts and other liabilities of the ICAV.

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

• (4) Where the High Court makes a declaration under subsection (1), it may give such directions as it thinks proper for the purpose of giving effect to the declaration.

• (5) In particular the order providing for the declaration, or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on—

• (a) any debt or obligation due from the ICAV to the respondent, or

• (b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the ICAV held by or vested in—

• (i) the respondent or any person on the respondent’s behalf, or

• (ii) any person claiming as assignee from or through the respondent or any person acting on the behalf of any such person.

• (6) The High Court may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under subsection (5) .

• (7) In subsection (5)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable under the declaration, the debt, obligation, mortgage or charge 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 ground of which the declaration is made.

• (8) The High Court shall not make a declaration under this section in respect of a person if it considers that—

• (a) the person took all reasonable steps to secure compliance by the ICAV with sections 109 to 113, or

• (b) the person had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director of the ICAV who has been formally allocated such responsibility, was—

• (i) charged with the duty of ensuring that those sections were complied with, and

• (ii) in a position to discharge that duty.

• (9) This section shall have effect even if the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made.

Chapter 2 Annual accounts

116. Annual accounts

116. (1) The directors of an ICAV shall prepare accounts for each financial year.

• (2) The accounts shall include the following:

• (a) a balance sheet or statement of assets and liabilities;

• (b) a detailed income and expenditure account for the financial year;

• (c) the other information provided for in the Schedule.

• (3) The annual accounts shall give a true and fair view of the assets, liabilities and financial position of the ICAV at the end of the financial year and of the profit or loss of the ICAV for the financial year.

• (4) The annual accounts may be prepared in accordance with—

• (a) generally accepted accounting practice in the State,

• (b) international financial reporting standards, or

• (c) subject to subsection (5), an alternative body of accounting standards.

• (5) To the extent that the use of any alternative body of accounting standards does not contravene any provision of this Part, a true and fair view of the assets and liabilities, financial position and profit or loss of an ICAV may be given by the use by the ICAV of those standards in the preparation of its annual accounts.

• (6) In this section “alternative body of accounting standards” means standards that accounts of bodies corporate are to comply with which are laid down by any such body or bodies having authority to lay down standards of that kind in—

• (a) the United States of America,

• (b) Canada,

• (c) Japan, or

• (d) any such other country or territory as may be prescribed by regulations made by the Minister,

as may be prescribed by regulations so made.

• (7) Before making regulations under subsection (6), the Minister—

• (a) shall consult with the Bank, and

• (b) may consult any such other persons as he or she considers appropriate.

• (8) Separate accounts may be prepared and presented in respect of a sub-fund or sub- funds; and all references to an ICAV be read as, where appropriate, referring to the sub-fund or sub-funds in respect of which the separate accounts are to be prepared.

• (9) The requirement for annual accounts prepared in accordance with International Financial Reporting Standards to present fairly the assets, liabilities, financial position, financial performance and cash flow of the ICAV at the end of the financial year is deemed to be equivalent to the true and fair view required to be given by subsection (3) .

• (10) If the directors of an ICAV fail to comply with subsection (1), (2) or (3) they commit a category 2 offence.

• (11) In this section “international financial reporting standards” means the international financial reporting standards, within the meaning of Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002¹ adopted from time to time by the Commission of the European Union in accordance with that Regulation.

117. Accounts to include information about directors

117. (1) In the annual accounts of an ICAV there shall be shown so far as the information is contained in the ICAV’s accounting records or the ICAV has the right to obtain it from the persons concerned—

• (a) the aggregate amount of the directors’ emoluments,

• (b) the aggregate amount of directors’, or former directors’, pensions, and

• (c) the aggregate amount of any compensation to directors or former directors in respect of loss of office.

• (2) The amount to be shown under paragraph (a) of subsection (1) —

• (a) shall include any emoluments paid to or receivable by any person in respect of his or her services as director of the ICAV or in respect of his or her services, while director of the ICAV, as director of any subsidiary of the ICAV or otherwise in connection with the management of the affairs of the ICAV or any subsidiary of the ICAV, and

• (b) shall distinguish between emoluments in respect of services as director and other emoluments.

• (3) The amount to be shown under paragraph (b) of subsection (1) —

• (a) shall not include any pension paid or receivable under a pension scheme if the scheme is such that the contributions under it are substantially adequate for the maintenance of the scheme, but subject to that, shall include any pension paid or receivable in respect of any such services of a director or former director whether to or by him or her or, on his or her nomination or by virtue of dependence on or other connection with him or her, to or by any other person, and

• (b) shall distinguish between pensions in respect of services as director and other pensions.

• (4) The amount to be shown under paragraph (c) of subsection (1) —

• (a) shall include any sums paid to or receivable by a director or former director by way of compensation for loss of office as director of the ICAV or for the loss, while director of the ICAV, or on or in connection with ceasing to be a director of the ICAV, of any other office in connection with the management of the ICAV’s affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary of the ICAV, and

• (b) shall distinguish between compensation in respect of the office of director and compensation in respect of other offices.

• (5) The amounts to be shown under each paragraph of subsection (1) —

• (a) shall include all relevant sums paid by or receivable from—

• (i) the ICAV,

• (ii) the ICAV’s subsidiaries, and

• (iii) any other person,

except sums to be accounted for to the ICAV or any of its subsidiaries or to former or present members of the ICAV or any of its subsidiaries or any class of those members, and

• (b) shall distinguish, in the case of the amount to be shown under paragraph (c) of subsection (1), between the sums respectively paid by or receivable from the ICAV, subsidiaries of the ICAV and persons other than the ICAV and its subsidiaries.

• (6) The amounts to be shown under this section for any financial year shall be the sums receivable in respect of that year, whenever paid, or, in the case of sums not receivable in respect of a period, the sums paid during that year, so, however, that where—

• (a) any sums are not shown in the accounts for the relevant financial year on the ground that the person receiving them is liable to account for them as mentioned in paragraph (a) of subsection (5), but the liability is thereafter wholly or partly released or is not enforced within a period of 2 years, or

• (b) any sums paid by way of expenses allowance are charged to income tax after the end of the relevant financial year,

those sums shall, to the extent to which the liability is released or not enforced or they are so charged, be shown in the first accounts in which it is practicable to show them and shall be distinguished from the amounts to be shown in those accounts apart from this subsection.

• (7) Where it is necessary so to do for the purpose of making any distinction required by this section in any amount, the directors may apportion any payments between the matters in respect of which they have been paid or are receivable in such manner as they think appropriate.

• (8) If in the case of any accounts the requirements of this section are not complied with, it shall be the duty of the auditors of the ICAV to include in the report on the accounts, so far as they are reasonably able to do so, a statement giving the required particulars.

• (9) If an ICAV fails to comply with subsection (1), the ICAV and any officer of it who is in default commits a category 3 offence.

• (10) In this section, any reference to an ICAV’s subsidiary—

• (a) in relation to a person who is or was, while a director of the ICAV, a director also, by virtue of the ICAV’s nomination (direct or indirect), of any other body corporate shall, subject to the following paragraph, include that body corporate, whether or not it is or was in fact the ICAV’s subsidiary, and

• (b) shall, for the purposes of subsections (2) and (3), be taken as referring to a subsidiary at the time the services were rendered, and, for the purposes of subsection (4), be taken as referring to a subsidiary immediately before the loss of office as director of the ICAV.

• (11) For the purposes of this section—

• (a) references to compensation for loss of office shall include sums paid as consideration for or in connection with a person’s retirement from office;

• (b) “emoluments”, in relation to a director, includes fees and percentages, any sums paid by way of expenses allowance in so far as those sums are charged to income tax, any contribution paid in respect of the director under any pension scheme, and the estimated money value of any other benefits received by the director otherwise than in cash in so far as they are charged to income tax;

• (c) “pension” includes any superannuation allowance, superannuation gratuity or similar payment;

• (d) “pension scheme” means a scheme for the provision of pensions in respect of services as director or otherwise which is maintained in whole or in part by means of contributions and “contribution”, in relation to a pension scheme, means any payment (including an insurance premium) paid for the purposes of the scheme by or in respect of persons rendering services in respect of which pensions will or may become payable under the scheme, except that it does not include any payment in respect of 2 or more persons if the amount paid in respect of each of them is not ascertainable.

Chapter 3 Directors’ reports

118. Directors’ report

118. (1) The directors of an ICAV shall for each financial year prepare a report (a “directors’ report”) dealing, so far as is material for the appreciation of the state of the ICAV’s affairs (and, if it has subsidiaries, of the affairs of the ICAV and its subsidiaries as a group), with—

• (a) any change during the financial year in the nature of the business of the ICAV or of the ICAV’s subsidiaries in the classes of business in which the ICAV has an interest whether as a member of another ICAV or a company or otherwise, and

• (b) the amount, if any, which they recommend should be paid by way of dividend and the amount, if any, which they propose to carry to reserves.

• (2) The report shall be approved by the board of directors and signed on behalf of the directors by 2 directors.

• (3) The report shall contain a list of bodies corporate in relation to which either of the following conditions is fulfilled at the end of the ICAV’s financial year:

• (a) the body corporate is a subsidiary of the ICAV;

• (b) although the body corporate is not a subsidiary of the ICAV, the ICAV is beneficially entitled to more than 20 per cent in nominal value of its shares carrying voting rights (other than voting rights which arise only in specified circumstances).

• (4) The list referred to in subsection (3) shall distinguish between bodies corporate falling within paragraph (a) and paragraph (b) of that subsection and shall state in relation to each such body corporate—

• (a) its name,

• (b) where it is incorporated, and

• (c) the nature of the business carried on by it.

• (5) The report shall contain the following information:

• (a) a fair review of the development and performance of the ICAV’s business and of its position and, in relation to its subsidiaries, if any, of the development and performance of their business and of their position, during the financial year ending with the relevant balance sheet date together with a description of the principal risks and uncertainties that they face;

• (b) particulars of any important events affecting the ICAV or any of its subsidiaries, if any, which have occurred since the end of that year;

• (c) an indication of likely future developments in the business of the ICAV and of its subsidiaries, if any;

• (d) in relation to the use by the ICAV and its subsidiaries, if any, of financial instruments and where material for the assessment of the assets, liabilities, financial position and profit or loss of the ICAV and, as the case may be, the group—

• (i) the financial risk management objectives and policies of the ICAV and the group, including the policy for hedging each major type of forecasted transaction for which hedge accounting is used, and

• (ii) the exposure of the ICAV and the group to price risk, credit risk, liquidity risk and cash flow risk.

• (6) The review mentioned in subsection (5)(a) —

• (a) shall be a balanced and comprehensive analysis of the development and performance of the ICAV’s business and of its position and, in relation to its subsidiaries, if any, of the development and performance of their business and of their position, consistent with the size and complexity of the business, and

• (b) to the extent necessary for an understanding of the ICAV’s development, performance or position, and that of its subsidiaries, if any, shall include an analysis of financial, and, where appropriate, non-financial key performance indicators relevant to the particular business, including information relevant to environmental and employee matters, and, where appropriate, shall include additional explanations of amounts included in the annual accounts.

• (7) If an ICAV fails to comply with this section, the ICAV and any officer of it who is in default commits a category 1 offence.

119. Revised directors’ reports

119. If it appears to the directors of an ICAV that a directors’ report of the ICAV did not comply with the requirements of this Act or Bank regulations, they may prepare a revised report.

Chapter 4 Audit

120. Auditor reports on accounts

120. (1) An ICAV shall, in respect of its annual accounts, arrange to have an auditor—

• (a) audit them, and

• (b) make a report on the audit, to the shareholders of the ICAV.

• (2) The auditors’ report shall state clearly the statutory auditors’ opinion as to—

• (a) whether the annual accounts give a true and fair view—

• (i) in the case of a balance sheet, of the assets, liabilities and financial position of the ICAV at the end of the financial year,

• (ii) in the case of a profit and loss account, of the profit or loss of the ICAV for the financial year,

and

• (b) whether the annual accounts have been properly prepared in accordance with the relevant financial reporting framework.

• (3) A copy of the auditor’s report shall be attached to the annual accounts and the directors’ report for the financial year of the ICAV to which the report relates.

• (4) If an ICAV fails to comply with subsection (1) or (3), the ICAV and any officer of it who is in default commits a category 1 offence.

121. Consideration by auditor of consistency of directors’ report with ICAV’s accounts

121. In preparing the report in relation to an ICAV required by section 120(1)(b), the auditor shall—

• (a) consider whether the information given in the directors’ report relating to the financial year is consistent with the accounts prepared by the ICAV for that year, and

• (b) state in the report whether, in the auditor’s opinion, that information is, or is not, consistent with those accounts.

122. Duty of auditor in relation to suspected commission of indictable offence

122. (1) Where, in the course of, and by virtue of, carrying out an audit of the accounts of an ICAV, information comes into the possession of the auditor that leads the auditor to form the opinion that there are reasonable grounds for believing that the ICAV, or an officer or agent of it, has committed an indictable offence under this Act, the auditors shall, without delay after having formed such opinion, notify that opinion to the relevant enforcement agency and provide that enforcement agency with details of the grounds on which they have formed that opinion.

• (2) Where the auditor of an ICAV notifies the relevant enforcement agency of any matter pursuant to subsection (1), the auditor shall, in addition to performing the obligations under that subsection, if requested by that enforcement agency—

• (a) furnish that enforcement agency with such further information in the auditor’s possession or control relating to the matter as that enforcement agency may require, including further information relating to the details of the grounds on which the auditor formed the opinion referred to in that subsection,

• (b) give that enforcement agency such access to any documents in the auditor’s possession or control relating to the matter as that enforcement agency may require, and

• (c) give that enforcement agency such access to facilities for the taking of copies of, or extracts from, those books and documents as that enforcement agency may require.

• (3) Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession.

• (4) No professional or legal duty to which an auditor is subject by virtue of appointment as an auditor of an ICAV shall be regarded as contravened by, and no liability to the ICAV, its shareholders, creditors or other interested parties shall attach to, an auditor by reason of compliance with an obligation imposed by or under this section.

• (5) The Bank and the Director of Corporate Enforcement are enforcement agencies for the purposes of this section; and in this section “relevant enforcement agency” means—

• (a) for the offences specified in subsection (1) of section 176, the Bank;

• (b) for the offences specified in subsection (2) of that section, the Director of Corporate Enforcement;

• (c) for the offences specified in subsection (3) of that section, both the Bank and the Director of Corporate Enforcement.

• (6) If an auditor fails to comply with this section the auditor commits a category 1 offence.

123. Eligibility to be auditor

123. F21[(1) No person other than—

• (a) a statutory auditor or audit firm approved in accordance with Part 27 of the Companies Act 2014, or

• (b) an audit firm registered in accordance with section 1465 of the Companies Act 2014,

shall be eligible for appointment as an auditor of an ICAV.]

• (2) No person shall be eligible for appointment as auditor of an ICAV if—

• (a) the person is an officer or employee of the ICAV concerned,

• (b) the person is a partner or employee of such a person, or a partnership of which such a person is a partner, or

• (c) there exists between the person and the ICAV a connection of any such description as specified in Part 7 of the Audi ts Regulations.

• (3) For the purposes of subsection (2), an auditor of an ICAV shall not be regarded as an officer or employee of the ICAV.

• (4) Where during a person’s term of office as an auditor of an ICAV the person becomes ineligible for appointment to the office, the person shall without delay vacate the office and give notice in writing to the ICAV of having vacated the office by reason of ineligibility.

124. Auditor acting where ineligible

124. (1) No person shall act as auditor of an ICAV if ineligible for appointment to the office.

• (2) If a person acts as auditor of an ICAV when ineligible for appointment, the person commits a category 2 offence.

125. Appointment of auditors

125. (1) An ICAV shall, at each annual general meeting appoint an auditor or auditors to hold office from the conclusion of that meeting until the conclusion of the next annual general meeting.

• (2) The first auditors of an ICAV may be appointed by the directors of the ICAV at any time before the first annual general meeting of the ICAV and auditors so appointed are to hold office until the conclusion of that meeting.

• (3) Where no appointment is made under subsection (2), the first auditors of any ICAV may be appointed by the ICAV in general meeting.

• (4) On the date on which the holding of an annual general meeting is dispensed with in accordance with section 89(4), any auditor or auditors appointed in accordance with subsection (2) or (3) cease to hold office and the directors shall immediately re-appoint the auditor or auditors or appoint a new auditor or auditors.

• (5) The directors of any ICAV which does not hold annual general meetings shall appoint the auditor or auditors.

• (6) Where, in any case, no auditors are appointed as required by this section, the Bank may appoint a person eligible for appointment as auditor under section 123 to fill the vacancy.

126. Casual vacancy

126. (1) The directors of an ICAV, or the ICAV in general meeting, may fill a casual vacancy in the office of auditor.

• (2) While a vacancy in the office of auditor continues, any surviving or continuing auditor may continue to act.

127. Partnerships

127. (1) Subsections (3) to (6) apply to the appointment, as auditor of an ICAV, of a partnership constituted under the law of the State, or under the law of any country or territory in which a partnership is not a legal person.

• (2) Subsections (4) to (6) apply to the appointment, as auditor of an ICAV, of a partnership constituted under the law of any country under which a partnership is a legal person.

• (3) The appointment of an auditor in the case of a partnership is, unless the contrary intention appears, an appointment of the partnership as such and not of the partners.

• (4) Where a partnership ceases, the appointment of the partnership as an auditor is to be treated as extending to—

• (a) any partnership which succeeds to the practice of that partnership and is eligible for the appointment, and

• (b) any person who succeeds to that practice having previously carried it on in partnership and is eligible for the appointment.

• (5) For the purpose of subsection (4) —

• (a) a partnership is to be regarded as succeeding to the practice of another partnership only where the members of the successor partnership are substantially the same as those of the former partnership, and

• (b) a partnership or other person is to be regarded as succeeding to the practice of a partnership only if succeeding to the whole or substantially the whole of the business of the former partnership.