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Collective Investment Funds (Jersey) Law 1988

Revised Edition

13.100

Showing the law as at 31 August 2004

This is a revised edition of the law

Collective Investment Funds (Jersey) Law 1988

Arrangement

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Article

1            Interpretation

2            Functions of the Commission

3            Collective investment fund

4            Functionaries

5            Requirement for functionary to hold permit

6            Application for permit

7            Grant or refusal of permit, imposition of conditions and cancellation of permit

8            Procedure and right of appeal on refusal or cancellation, etc., of permit

9            Power to obtain information and require production of documents

10          Misleading statements and practices

11          Classification of collective investment funds

12          Compensation schemes

13          Directions

14          Prospectuses

15          Codes of practice

16          Offences and penalties

17          Public statements

18          Legal proceedings

19          Aiding and abetting

20          Orders

21          Service of notices

22          Investigation by Commission

23          Obstruction of investigations

24          Entry and search of premises

25          Co-operation with relevant supervisory authority

26          Restriction on disclosure of information

27          Disclosure facilitating discharge of functions by Commission

28          Disclosure facilitating discharge of functions by Viscount

29          Other permitted disclosures

30          Attachment of conditions to disclosure

31          Information supplied to Commission by relevant supervisory authority

32          Communication by auditor and other persons with Commission

33          Register of holders of permits

34          Applications to court

35          Actions for damages

36          Limitation of liability

37          Fees

38          Power to amend Article 3

39          Citation

SCHEDULE

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Functionaries

PART      1

PART      2

PART      3

Supporting Documents

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Endnotes

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Table of Legislation History

Table of Renumbered Provisions

Table of Endnote References

Collective Investment Funds (Jersey) Law 1988

A LAW to prohibit unauthorized persons from being functionaries of collective investment funds; to regulate such functionaries and funds; and for connected purposes

Commencement [see endnotes]

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1      Interpretation

In this Law, unless the context otherwise requires  –

“associate”, in relation to a person, means –

(a)     the person’s husband, wife, child or stepchild;

(b)     the person’s partner;

(c)     any company of which the person is a director;

(d)     where the person is a company, any director or employee of the company, any company in the same group as the company, and any director or employee of such a company; and

(e)     any person with whom the first mentioned person has an agreement, arrangement or other obligation –

(i)     to act together in exercising voting power,

(ii)    with respect to the acquisition, holding or disposal of shares or other interests in a body corporate, partnership or other association;[1]

“books and papers” and “books or papers” includes –

(a)     accounts, deeds, writings and documents, including microfilm; and

(b)     matters recorded otherwise than in legible form, but capable of being reproduced in legible form;

“code of practice” means a code prepared and from time to time revised pursuant to Article 15(1);[2]

“collective investment fund” has the meaning given in Article 3;

“Commission” means the Jersey Financial Services Commission established by the Financial Services Commission (Jersey) Law 1998;[3]

“Committee” means the Economic Development Committee;[4]

“company” means a body corporate wherever incorporated;

“court” means the Inferior Number of the Royal Court;

“functionary” means a functionary to whom this Law applies;

“holding company” has the meaning given in Article 2 of the Companies (Jersey) Law 1991;[5]

“partnership” includes a partnership constituted under the law of a country or territory outside Jersey;[6]

“permit” means a permit granted under this Law;

“prescribed” means prescribed by an Order made by the Committee on the recommendation of the Commission;[7]

“principal person” means –

in relation to a person –

(a)     being a sole trader, the proprietor;

(b)     being a company –

(i)     a person who, either alone or with any associate or associates –

(A) directly or indirectly holds 10% or more of the share capital issued by the company,

(B)    is entitled to exercise or control the exercise of not less than 10% of the voting power in general meeting of the company or of any other company of which it is a subsidiary, or

(C)    has a holding in the company directly or indirectly which makes it possible to exercise significant influence over the management of the company,

(ii)    a director or equivalent by whatever name called,

(iii)   a person in accordance with whose directions, whether given directly or indirectly, any director of the company, or director of any other company of which the company is a subsidiary, is accustomed to act (but disregarding advice given in a professional capacity);

(c)     being a partnership –

(i)     a partner,

(ii)    where a partner is a company, any person who, in relation to that company, falls within paragraph (b)(i), (ii) or (iii), and

in relation to a person whose registered office and principal place of business is outside Jersey, includes a person who, either alone or jointly with one or more other persons, is responsible for the conduct of the person’s business in Jersey, and

in relation to a person who has become bankrupt, includes a person who has been appointed as liquidator or administrator of the person’s affairs;[8]

“prospectus” means any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription, sale or exchange any units; and also means any document or advertisement issued by or on behalf of a functionary presenting to the public a description of, or other information about, a collective investment fund;

“register” includes a register of issued bearer share certificates or issued bearer unit certificates;

“relevant supervisory authority” means an authority discharging in a country or territory outside Jersey supervisory functions corresponding to those of the Commission in Jersey in respect of banking, insurance, investment business or other financial services, including collective investment funds;[9]

“Schedule” means the Schedule to this Law;

“subsidiary” has the meaning given in Article 2 of the Companies (Jersey) Law 1991;[10]

“unit” means any material representation of the rights of participants with regard to the assets of a collective investment fund whether such rights are represented –

(a)     by securities issued by the collective investment fund;

(b)     by the entry of names of participants in a register kept in relation to the collective investment fund; or

(c)     by any other means.

2      Functions of the Commission[11]

The Commission shall have the powers conferred on it by this Law and the duty generally to supervise the persons granted permits by it in the exercise of those powers.

3      Collective investment fund

(1)    For the purposes of this Law any scheme or arrangement for the investment of money is a collective investment fund if –

(a)     it has as its object or one of its objects the collective investment of capital acquired by means of an offer to the public of units for subscription, sale or exchange; and

(b)     the circumstances referred to in any sub-paragraph of paragraph (2) apply to the fund.

(2)    The circumstances to which reference is made in paragraph (1)(b) are as follows –

(a)     units are or are to be bought back or redeemed continuously or in blocks at short intervals upon the request of the holder and out of the assets of the fund;

(b)     units are or have been or will be issued continuously or in blocks at short intervals; or

(c)     the fund operates on the principle of risk spreading.[12]

(3)    For the purposes of this Law –

(a)     an offer for subscription, sale or exchange of units constitutes an offer to the public where the offer is not addressed exclusively to a restricted circle of persons; and

(b)     an offer shall not be considered to be addressed to a restricted circle of persons unless –

(i)     the offer is addressed to an identifiable category of persons to whom it is directly communicated by the offeror or the offeror’s appointed agent,

(ii)    the members of that category are the only persons who may accept the offer and they are in possession of sufficient information to be able to make a reasonable evaluation of the offer,

(iii)   the number of persons in Jersey or elsewhere to whom the offer is so communicated does not exceed 50, and

(iv)   the units which are the subject of the offer are not to be listed on any stock exchange within one year of the offer being made.[13]

(4)    For the purposes of this Law –

(a)     a company which anywhere carries on long term insurance business of any class specified in Part 1 of Schedule 1 to the Insurance Business (Jersey) Law 1996[14] (except Class 5 or Class 7) is deemed to be a company issuing units of a collective investment fund; and

(b)     the contracts of any description in that Part (other than those referred to in Class 5 and Class 7) are deemed to be units of a collective investment fund, if money received from the public through the effecting of such contracts is not received exclusively from a restricted circle of persons and such contracts shall in the aggregate be deemed to be a collective investment fund.[15]

(5)    For the purposes of paragraph (4) –

(a)     money shall not be considered to be received exclusively from a restricted circle of persons unless –

(i)     the opportunity to invest money through such contracts is afforded exclusively to an identifiable category of persons to whom the existence of the opportunity is directly communicated by the insurer or the insurer’s appointed agent,

(ii)    the members of that category are the only persons who may invest money in such contracts and they are in possession of sufficient information to be able to make a reasonable evaluation of the investment, and

(iii)   the number of persons in Jersey or elsewhere to whom the existence of such opportunity is so communicated does not exceed 50; and

(b)     the reference in paragraph (1) to capital acquired by means of an offer to the public of units for subscription, sale or exchange shall be read as a reference to capital acquired by means of the advertising or promotion of the opportunity to invest money through such contracts.

(6)    Without prejudice to the generality of the foregoing provisions of this Article, a company which by virtue of paragraph (4) is deemed to be a company issuing units shall itself be deemed to be a collective investment fund.

(7)    Schemes and arrangements may be prescribed, either by name or description, which are not to constitute collective investment funds for the purposes of this Law.[16]

4      Functionaries

(1)    The Schedule shall apply for determining who is, or is to be treated as, a functionary.

(2)    The Committee may, on the recommendation of the Commission, by Order amend the provisions of the Schedule.[17]

(3)    An Order made under this Article shall not come into operation before the expiration of 6 months beginning on the date on which the Order is made.

5      Requirement for functionary to hold permit

(1)    Subject to the provisions of this Law, no person shall in or from within Jersey be, or hold himself or herself out as being, a functionary of a collective investment fund except under a permit unless that person’s function in relation to that collective investment fund is to be performed wholly outside Jersey and paragraph (2) does not apply to that person.

(2)    Subject to the provisions of this Law, no company incorporated under the Loi (1861) sur les Sociétés à Responsabilité Limitée[18] or the Companies (Jersey) Law 1991[19] and no limited liability partnership registered under the Limited Liability Partnerships (Jersey) Law 1997[20] or limited partnership established in accordance with the Limited Partnerships (Jersey) Law 1994[21] shall in or from within a country or territory outside Jersey be, or hold itself out as being, a functionary of a collective investment fund except under a permit.[22]

(3)    Any person who contravenes this Article shall be guilty of an offence and liable to a fine or to imprisonment for a term not exceeding 7 years or to both such fine and such imprisonment but the rights of the persons concerned in any transaction shall not be affected by such contravention.[23]

(4)    Paragraphs (1) and (2) shall not apply to such persons or class of persons as may be prescribed.[24]

6      Application for permit[25]

(1)    An application for a permit shall –

(a)     be in the form required from time to time by the Commission;

(b)     describe the function of the applicant;

(c)     specify the collective investment fund and the class thereof (if any) to which the applicant’s function relates;

(d)     contain or be accompanied by such other particulars as the Commission may require;

(e)     be verified in such manner and to such extent as the Commission may require; and

(f)     be accompanied by such fee as may be prescribed.

(2)    Without prejudice to the generality of paragraph (1)(d) the Commission may require an applicant to furnish any information about the collective investment fund to which the applicant’s function relates which the Commission needs for the purposes of paragraph (3).

(3)    The Commission, when considering an application for a permit, shall have regard to the protection of the public, to the need to protect the reputation of Jersey in financial and commercial matters and to the best economic interests of Jersey and to this end –

(a)     shall consider the function to be performed by the applicant, the reputation of the applicant and the collective investment fund to which the applicant’s function relates; and

(b)     shall also take into account any other functionaries there are or may be of the collective investment fund to which the application relates.[26]

(4)    An applicant who, while the application is awaiting consideration by the Commission –

(a)     determines to bring about any alteration in it; or

(b)     becomes aware of any event which may affect in any material respect any information furnished by the applicant to the Commission in connection with the application,

shall forthwith give written notice of that matter to the Commission.[27]

7      Grant or refusal of permit, imposition of conditions and cancellation of permit

(1)    The Commission may grant a permit either unconditionally or subject to such conditions as it considers appropriate, or may refuse to grant a permit.[28]

(2)    Every permit shall specify the collective investment fund and the class of fund (if any) to which the holder’s function relates.

(3)    The Commission may from time to time vary any condition attached to the grant of a permit or attach a new condition.[29]

(4)    The Committee may, on the recommendation of the Commission, prescribe conditions applicable to –

(a)     all permits;

(b)     certain classes of permits;

(c)     all permits granted to certain functionaries or groups of functionaries; or

(d)     all permits granted in relation to collective investment funds of a certain kind.[30]

(5)    Conditions attached, varied or prescribed under paragraph (1), (3) or (4) may indicate that a code of practice is to be wholly or partly disregarded for the purposes of Article 15(4).[31]

(6)    In exercising its powers under paragraphs (1), (3) and (4) of this Article the Commission or the Committee as the case may be, shall have regard to the matters referred to in Article 6(3).[32]

(7)    The Commission may cancel a permit –

(a)     if the holder of the permit has not commenced the holder’s function for which the permit is granted within one year of the date of the grant;

(b)     if the holder of the permit ceases to perform the holder’s function for which the permit is granted;

(c)     at the request of the holder of the permit;

(d)     if it appears to the Commission that any requirements of the Commission in respect of the collective investment fund or the class thereof to which the holder’s function relates are no longer satisfied;

(e)     if it appears to the Commission that the holder of the permit has contravened any provision of this Law, or any Regulation or Order made, or a condition of any permit granted, under this Law or, in purported compliance with any such provision, has furnished the Commission with false, inaccurate or misleading information; or

(f)     if in the opinion of the Commission the cancellation of the permit is advisable for the protection of the public or of the participants or potential participants in the collective investment fund.[33]

(8)    In exercising its powers under this Article the Commission may have regard to any failure on the part of the applicant for a permit or the holder of a permit, as the case may be, to follow any principles or guidance contained in a code of practice.[34]

(9)    If the Commission acting under paragraph (1) refuses to grant a permit or acting under paragraph (3) varies a condition attached to a permit or attaches a condition to a permit or acting under paragraph (7) cancels a permit, it shall give notice thereof in writing to the applicant or the holder of the permit, as the case may be.[35]

(10)  Any person who contravenes or fails to comply with any condition attached to a permit under paragraph (1) or (3) or any condition applicable to a permit under paragraph (4) shall be guilty of an offence in respect of each such contravention.[36]

(11)  The record of the conviction of any person for an offence under paragraph (10) shall be admissible in civil proceedings as evidence of the fact of the breach of a condition attached or applicable under this Article.[37]

(12)  Fees may be prescribed which shall be payable by the holder of a permit –

(a)     at such intervals as may be prescribed; and

(b)     upon the occurrence of such events as may be prescribed.[38]

8      Procedure and right of appeal on refusal or cancellation, etc., of permit[39]

(1)    Subject to any order of court made under Article 34, if a condition attached to a permit is varied, or a new condition is attached to a permit, or a permit is revoked, such variation or such new condition, or such revocation, as the case may be, shall not take effect before the expiration of –

(a)     such period as is specified in the notice in writing of the variation, new condition or revocation, being a period of not less than one month beginning on the day the notice is given to the holder of the permit; or

(b)     the date on which an appeal (if any) is determined or withdrawn,

whichever is later (but may, at the request of the holder of the permit, take effect earlier or, if the Commission so agrees, later).[40]

(2)    Where the Commission refuses the grant of a permit, or attaches any condition to the grant of a permit, or varies any such condition, or attaches a new condition to a permit or revokes a permit, the applicant or the holder of the permit, as the case may be, may by notice in writing require the Commission to furnish to the applicant or the holder of the permit, as the case may be, within 14 days a statement in writing of its reasons for that decision.[41]

(3)    Nothing in paragraph (1) or (2) derogates from or otherwise affects a condition prescribed under Article 7(4).

(4)    Any person aggrieved by such decision of the Commission may appeal to the court, within one month after the notification of the decision of the Commission was given, on the grounds that the decision of the Commission was unreasonable having regard to all the circumstances of the case.[42]

9      Power to obtain information and require production of documents[43]

(1)    The Commission may require a holder of a permit or a former holder of a permit to furnish the Commission, at specified times or intervals, with information about specified matters being, if the Commission so requires, information verified in a specified manner.[44]

(2)    The Commission may require a holder of a permit or a former holder of a permit to furnish the Commission at specified times or intervals with a report by an accountant or other person with relevant professional skills nominated or approved by the Commission on specified matters, in such form as may be specified.[45]

(3)    The Commission may –

(a)     require a holder of a permit to produce, at such time and place as the Commission may specify, such books and papers as it may specify; or

(b)     authorize any person on producing (if required to do so) evidence of that person’s authority to require a holder of a permit to –

(i)     furnish that authorized person, at such time as he or she may specify, with information about any matter which that authorized person may specify being, if so required, information verified in a specified manner, and

(ii)    produce to that authorized person forthwith any books or papers specified.[46]

(4)    Where by virtue of paragraph (3) the Commission or a person authorized by it has power to require the production of any books or papers from, or the furnishing of information by, any holder of a permit, the Commission or that person shall have the like power to require production of those books or papers from or the furnishing of that information by, any person who appears to the Commission or that person to be in possession of them, but where any person from whom such production is required claims a lien on books or papers produced by him or her or claims that such books or papers or information are subject to legal professional privilege, the power to require production shall be without prejudice to the lien or the privilege, as the case may be.[47]

(5)    Any power conferred by or by virtue of paragraph (3) or (4) to require a holder of a permit or other person to produce books or papers shall include power –

(a)     if the books or papers are produced –

(i)     to retain or take copies of them or extracts from them, and

(ii)    to require the person producing them, any person who appears to be in possession of relevant information or any person who is or has been a director, controller, auditor or employee of the holder of the permit, to provide an explanation of any of them;

(b)     if the books or papers are not produced, to require the person who was required to produce them to state, to the best of his or her knowledge and belief, where they are.[48]

(6)    A person authorized by the Commission pursuant to paragraph (3)(b) may, having given prior written notice of the intention to do so and on producing, if required, evidence of his or her authority, enter, at a reasonable time, any premises occupied by a person required to produce specified books or papers or furnish specified information, or any other premises where the books or papers are kept by that other person, for the purpose of obtaining the books or papers or information or of exercising the powers conferred by paragraph (5), as the case may be.[49]

(7)    Subject to the provisions of paragraph (8), any person who fails to comply with, or with a requirement imposed under, this Article or obstructs a person exercising powers under paragraph (6) shall be guilty of an offence.[50]

(8)    Where a person is charged with an offence in respect of that person’s failure to comply with a requirement imposed under paragraph (3) or (4) to produce any books or papers it shall be a defence to prove that they were not in that person’s possession or control and that it was not reasonably practicable for that person to comply with the requirement.

(9)    A statement made by a person in compliance with a requirement imposed by virtue of this Article may not be used by the prosecution in evidence against that person in any criminal proceedings except proceedings under paragraph (7) of this Article or Article 16(1), (4) or (8).[51]

(10)  References in paragraphs (3) to (5) to a holder of a permit include references to a former holder of a permit, to any person who the Commission has reasonable cause to believe has committed an offence under the provisions of Article 10 and to any person who appears to the Commission to be acting or to have acted in contravention of the provisions of Article 5(1) or (2).[52]

10    Misleading statements and practices

(1)    Any person who –

(a)     makes a statement, promise or forecast which that person knows to be misleading, false or deceptive or dishonestly conceals any material facts; or

(b)     recklessly makes (dishonestly or otherwise) a statement, promise or forecast which is misleading, false or deceptive,

is guilty of an offence if that person makes the statement, promise or forecast or conceals the facts for the purpose of inducing, or is reckless as to whether it may induce, another person (whether or not the person to whom the statement, promise or forecast is made or from whom the facts are concealed) to enter or offer to enter into, or refrain from entering or offering to enter into, an investment agreement or to exercise, or refrain from exercising, any rights conferred by units.

(2)    Any person who does any act or engages in any course of conduct which creates a false or misleading impression as to the market in or the price or value of any units is guilty of an offence if that person does so for the purpose of creating that impression and of thereby inducing another person to acquire, dispose of, subscribe for or underwrite those units or to refrain from doing so or to exercise, or refrain from exercising, any rights conferred by those units.

(3)    In proceedings brought against any person for an offence under paragraph (2) it shall be a defence for the person to prove that he or she reasonably believed that the act or conduct would not create an impression that was false or misleading as to the matters mentioned in paragraph (2).

(4)    In paragraph (1) “an investment agreement” means –

(a)     any agreement or arrangement for or with a view to acquiring, disposing of, subscribing for or underwriting units; or

(b)     any agreement or arrangement under which a person is to receive advice as to the acquisition, sale, subscription for or underwriting of units or as to the exercise of the rights conferred by units.[53]

(5)    A person guilty of any offence under this Article shall be liable to a fine or to imprisonment for a term not exceeding 10 years, or both.[54]

11    Classification of collective investment funds

(1)    The Committee may, on the recommendation of the Commission, by Order –

(a)     classify collective investment funds;

(b)     specify requirements which must be satisfied by a collective investment fund for inclusion in a particular class or for remaining in such a class;

(c)     impose requirements in respect of a class; or

(d)     make provision for the grant by the Commission of a certificate to the effect that a collective investment fund satisfies the requirements for inclusion in the class named in the certificate and is so included at the date of issue of the certificate.[55]

(2)    Without prejudice to paragraph (1), the Committee may, on the recommendation of the Commission, by Order provide for the constitution, management, control and winding up of a collective investment fund, or any class of such fund, and prescribe the powers and duties of the functionaries of any such fund and the rights and obligations of the participants in any such fund.[56]

(3)    Without prejudice to the generality of paragraph (2), Orders made thereunder may make provision –

(a)     as to the issue and redemption of units;

(b)     as to the expenses of the collective investment fund and the means of meeting them;

(c)     for the appointment, removal, powers and duties of an auditor for the collective investment fund;

(d)     for restricting or regulating the investment and borrowing powers exercisable in relation to the collective investment fund;

(e)     requiring the keeping of records with respect to the transactions and financial position of the collective investment fund and for the inspection of those records;

(f)     requiring the preparation of periodical reports with respect to the collective investment fund and the furnishing of those reports to the participants in the collective investment fund and to the Commission; and

(g)     with respect to the amendment of the collective investment fund.[57]

(4)    Orders under paragraph (2) may make provision as to the contents of the documents constituting the collective investment fund (and as to contents which if included shall be of no effect) including provision requiring any of the matters mentioned in paragraph (3) to be dealt with in the documents; but Orders under paragraph (2) shall be binding on the functionaries of, and the participants in, the collective investment fund independently of the contents of the documents and, in the case of the participants, shall have the effect as if contained in them.

(5)    For the purposes of paragraph (4) “documents constituting the collective investment fund” includes any agreements entered into between the functionaries of the collective investment fund with each other and with the collective investment fund.

12    Compensation schemes

The States may by Regulations establish in relation to any class of collective investment fund schemes for compensating investors in cases where functionaries or former functionaries are unable, or likely to be unable, to satisfy claims in respect of any description of civil liability incurred by them in connection with collective investment funds in that class.

13    Directions[58]

(1)    If it appears to the Commission, in relation to a collective investment fund, or any class of such fund, that –

(a)     any requirements in relation to the collective investment fund or the class thereof are no longer satisfied;

(b)     it is in the best interests of potential participants in the collective investment fund or of creditors of the collective investment fund;

(c)     it is desirable in order to protect the reputation and integrity of Jersey in financial and commercial matters;

(d)     it is in the best economic interests of Jersey; or

(e)     any prospectus or other form of promotion of a collective investment fund published or made available, or proposed to be published or made available by or on behalf of any functionary of a collective investment fund or any class thereof is misleading or undesirable,

the Commission may, whenever it deems it necessary, give, by notice in writing, such directions as it may deem appropriate in the circumstances; and any person to whom the notice is given shall obey, comply with and otherwise give effect to any such direction within the time and in the manner stated in the direction.

(2)    Without prejudice to the generality of paragraph (1), a direction under this Article may –

(a)     require anything to be done or be omitted to be done, or impose any prohibition, restriction or limitation, or any other requirement, and confer powers, with respect to any transaction or other act, or to any assets, or to any other thing whatsoever;

(b)     require that any principal person in relation to any functionary of a collective investment fund or any class thereof be removed or removed and replaced by another person acceptable to the Commission;

(c)     require a functionary of a collective investment fund or any class thereof to cease the issue or redemption, or both the issue and redemption of units on a date specified in the direction, either until such further date as is specified in that or another direction or indefinitely;

(d)     require a functionary of a collective investment fund or any class thereof to wind up the affairs of the collective investment fund, in accordance with such procedures and directions as may be specified in the direction, which may provide for the appointment of a person to take possession and control of documents, records, assets and property belonging to or in the possession or control of the functionary;

(e)     prohibit the publication or making available of a particular prospectus or any other form of promotion of a collective investment fund or any class thereof; or

(f)     require that any particular prospectus or other form of promotion of a collective investment fund or any class thereof be modified in a specified manner.

(3)    The power to give directions under this Article shall include the power to vary or withdraw any direction, as well as the power to issue further directions.

(4)    Where the Commission is satisfied that the circumstances so warrant, it may at any time make public any directions it has given under any of the provisions of this Article.

(5)    Any person to whom a direction is given under paragraph (1) may apply to the Commission to have it withdrawn or varied and the Commission shall withdraw or vary the direction in whole or in part if it considers that there are no longer any grounds under paragraph (1)(a) to (e) which justify the direction or part of the direction concerned.

(6)    Any person aggrieved by a direction given to that person under paragraph (1), or a refusal to withdraw or vary a direction pursuant to paragraph (5), may appeal to the court, either in term or in vacation, within one month from the date on which the direction was given or refusal was made, on the ground that the decision of the Commission was unreasonable having regard to all the circumstances of the case.

(7)    Other than with respect to a direction to wind up the affairs of a collective investment fund, an appeal made under paragraph (6) shall not suspend the operation of any direction in connection with which the appeal is made.

(8)    On an appeal under paragraph (6), the court may make such order as it thinks fit with respect to the whole or any part of the direction concerned.

(9)    Any person who contravenes or fails to comply with any of the provisions of a direction given under this Article shall be guilty of an offence and liable to a fine or to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(10)  The record of the conviction of any person for an offence under paragraph (9) shall be admissible in any civil proceedings as evidence of the facts constituting the offence.

14    Prospectuses

(1)    The Committee may, on the recommendation of the Commission, by Order, prohibit, restrict or control the promotion by or on behalf of any person, of collective investment funds, or any class of such funds.[59]

(2)    Without prejudice to the generality of paragraph (1), or otherwise, Orders made under this Article may –

(a)     require functionaries of collective investment funds –

(i)     to publish or make available to the public on request prospectuses containing such information about the funds and complying with such requirements as are prescribed,

(ii)    to provide for such a prospectus to contain such further information as is necessary to give investors an informed assessment of any investment proposed in the prospectus,

(iii)   to publish or make available a revised or further prospectus if –

(A) there is a significant change affecting any matter contained in a prospectus previously published or made available, or

(B) a significant new matter arises, the inclusion of information in respect of which would have been required if it had arisen when the previous prospectus was prepared;

(b)     prohibit the issue of prospectuses unless they have been filed with, or filed and approved by, the Commission;

(c)     provide for the payment, by the person who is treated by the Order as being responsible for the prospectus, of compensation to any person who has become or agreed to become a participant in the fund and suffered loss as a result of any untrue or misleading statement in the prospectus or the omission from it of any matter required under the Order to be included;

(d)     provide for exemptions of any persons or class of persons from compliance with such an Order, or a particular provision thereof;

(e)     provide generally for carrying such Orders into effect.[60]

(3)    Orders made under this Article shall not affect any liability which any person may incur apart from such an Order.

15    Codes of practice[61]

(1)    The Commission may, after consultation with such persons as appear to be representative of the interests concerned –

(a)     prepare a code for the purpose of establishing sound principles and providing practical guidance in respect of any function of a functionary in relation to a collective investment fund and any provision of this Law or any Regulations or Order made under it; and

(b)     revise any such code by revoking, varying, amending or adding to the provisions of the code.

(2)    The Commission shall ensure that a code of practice is printed and available to the public in Jersey, and such a code may be made available by being put on sale at such price as the Commission considers reasonable.

(3)    Subject to paragraphs (4) and (5), a failure on the part of any person to follow any principles or guidance contained in a code of practice shall not itself render that person liable to proceedings of any kind or invalidate any transaction.

(4)    Subject to Article 7(5), in any proceedings under this Law or otherwise, a code of practice shall be admissible in evidence if it appears to the court conducting the proceedings to be relevant to any question arising in the proceedings, and shall be taken into account in determining any such question.

(5)    A copy certified in writing on behalf of the Commission to be an accurate copy of a code of practice or any part of such a code shall be admissible in all legal proceedings as of equal validity with the original and as evidence of any fact stated in it of which direct oral evidence would be admissible.

(6)    Where a document purports on its face to be a copy of a code of practice or part of such a code, certified in accordance with paragraph (5), it shall be unnecessary for the purposes of paragraph (5) to prove the official position or handwriting of the person signing on behalf of the Commission.

(7)    In paragraph (1), references to the Commission preparing a code include references to the Commission adopting, with or without modifications, a code prepared by any other person, whether within or outside Jersey.

16    Offences and penalties

(1)    Any person who knowingly or recklessly provides the Commission or any other person entitled to information under this Law with information that is false or misleading in a material particular shall be guilty of an offence if the information is provided –

(a)     in purported compliance with a requirement imposed under this Law or any Order made thereunder;

(b)     otherwise than as mentioned in sub-paragraph (a) but in circumstances in which the person providing the information intends, or could reasonably be expected to know, that the information would be used by the Commission for the purpose of carrying out its functions under this Law.[62]

(2)     Any person who knowingly or recklessly provides the Commission or any other person with information that is false or misleading in a material particular shall be guilty of an offence if the information is provided in connection with an application for a permit under this Law.[63]

(3)    Any person who, with intent to avoid detection of the Commission of an offence under this Law, removes out of the jurisdiction, destroys, conceals or fraudulently alters any books or papers, or causes or permits the removal, destruction, concealment or fraudulent alteration of any books or papers, shall be guilty of an offence.[64]

(4)    A holder of a permit shall be guilty of an offence if that person fails to provide the Commission with any information in that person’s possession knowing or having reasonable cause to believe that –

(a)     the information is relevant to the exercise by the Commission of its functions under this Law in relation to that person; and

(b)     the withholding of the information is likely to result in the Commission being misled as to any matter which is relevant to and of material significance for the exercise of those functions in relation to that person.[65]

(5)    The reference in paragraph (4) to a holder of a permit includes a reference to any person who appears to the Commission to be acting or to have acted in contravention of the provisions of Article 5(1) or (2).[66]

(6)    Any person who contravenes any provision of an Order made under this Law, other than an Order made under Article 32(4) shall be guilty of an offence.[67]

(7)    Any person guilty of an offence under this Law for which no special penalty is provided shall be liable to a fine or to imprisonment for a term not exceeding 5 years or to both such fine and such imprisonment.[68]

(8)    Where a person continues to fail to comply with a requirement imposed under Article 9 or continues to obstruct a person exercising powers under paragraph (6) of that Article or Article 22(6) after being convicted of that failure or obstruction, that person shall be guilty of a further offence and liable to a fine for each day on which the failure or obstruction so continues or to imprisonment for a term not exceeding 5 years or to both such fine and such imprisonment.[69]

17    Public statements[70]

(1)    The Commission may issue a public statement concerning a person if that person –

(a)     appears to the Commission to have contravened or failed to comply with –

(i)     Article 5(1) or (2),

(ii)    any condition attached or applicable to a permit under Article 7,

(iii)   any provision of Article 10 or 16,

(iv)   any direction given under Article 13, or

(v)    any Regulations or Order made under this Law; or

(b)     has failed to comply with a code of practice.

(2)    The Commission may issue a public statement concerning a person who is or the Commission believes to be holding that person out as a functionary of a collective investment fund, whether in Jersey or elsewhere, if it appears to the Commission to be desirable to do so in the interests of participants or potential participants in the collective investment fund.

(3)    Where a public statement issued under this Article concerns a holder of a permit or a former holder of a permit, the Commission shall, at least 7 days prior to the publication of the statement, give written notice to the person concerned of the proposed statement and of the reasons for which it intends to act.

18    Legal proceedings[71]

(1)    Where an offence under this Law committed by a holder of a permit or former holder of a permit or by a person acting in contravention of the provisions of Article 5(1) or (2) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of a person who is or was a principal person in relation to that offender, that principal person shall be guilty of the offence and liable in the same manner as the offender to the penalty provided for that offence.[72]

(2)     Where an offence under this Law committed by a limited liability partnership or company is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –

(a)     a person who is a partner of the partnership, or director, manager, secretary or other similar officer of the company; or

(b)     any person purporting to act in any such capacity,

the person shall also be guilty of the offence and liable in the same manner as the partnership or company to the penalty provided for that offence.[73]

(3)     Where the affairs of a company are managed by its members, paragraph (2) shall apply in relation to acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the company.[74]

(4)    For the purposes of this Article, a person shall be deemed to be a director of a company if the person occupies in relation thereto the position of a director, by whatever name called, or is a person in accordance with whose directions or instructions the directors of the company or any of them act:

Provided that a person shall not, by reason only that the directors of a company act on advice given by the person in a professional capacity, be taken to be a person in accordance with whose directions or instructions those directors act.

(5)    No proceedings for an offence under this Law shall be instituted except by or with the consent of the Attorney General.

19    Aiding and abetting[75]

(1)    Any person who aids, abets, counsels or procures the commission of an offence under this Law shall also be guilty of the offence and liable in the same manner as a principal offender to the penalty provided for that offence.

(2)    Nothing in this Article affects the operation of Article 18(1), (2) or (3).

20    Orders

(1)    The Committee may, on the recommendation of the Commission, by Order make provision for the purpose of carrying this Law into effect and in particular, but without prejudice to the generality of the foregoing and subject to Article 4(3), for prescribing any matter which is to be prescribed under this Law.[76]

(2)    In prescribing fees for the purposes of this Law, the Committee may take into consideration such matters as it thinks fit, and such fees may be prescribed so as to raise income in excess of the amount necessary to cover the expenses of the Committee and the Commission in discharging their respective functions under this Law.[77]

(3)    An Order made under this Law may, on the recommendation of the Commission –

(a)     make different provisions in relation to different cases or circumstances;

(b)     contain such incidental provisions as the Committee may, on the recommendation of the Commission, consider to be necessary or expedient.[78]

(4)    The Subordinate Legislation (Jersey) Law 1960,[79] shall apply to Orders made under this Law.

21    Service of notices

(1)    This Article shall have effect in relation to any notice or other document required or authorized by or under this Law to be given to or served on any person.

(2)    Any such document may be given to or served on the person in question –

(a)     by delivering it to the person;

(b)     by leaving it at the person’s proper address;

(c)     by sending it by post to the person at that address; or

(d)     by sending it to the person at that address by telex, facsimile or other similar means which produce a document containing the text of the communication.[80]

(3)    Any such document may –

(a)     in the case of a company, be given to or served on the secretary, clerk or other similar officer of the company or any person who purports to act in any such capacity, by whatever name called;

(b)     in the case of a partnership, be given to or served on a partner or a person having the control or management of the partnership business.

(4)    For the purposes of this Article and Article 7 of the Interpretation (Jersey) Law 1954[81] in its application to this Article the proper address of any person to or on whom a document is to be given or served shall be the person’s last known address, except that –

(a)     in the case of a company or its secretary, clerk or other officer or person referred to in paragraph (3)(a), it shall be the address of the registered or principal office of the company;

(b)     in the case of a partnership or a person having the control or management of the partnership business, it shall be that of the principal office of the partnership,

and for the purposes of this paragraph the principal office of a company registered outside Jersey or of a partnership carrying on business outside Jersey shall be their principal office within Jersey.

(5)    If the person to be given or served with any document mentioned in paragraph (1) has specified an address within Jersey other than the person’s proper address within the meaning of paragraph (4) as the one at which the person or someone on the person’s behalf will accept documents of the same description as that document, that address shall also be treated for the purpose of this Article and Article 7 of the Interpretation (Jersey) Law 1954 as the person’s proper address.

22    Investigation by Commission[82]

(1)    Where, in the opinion of the Commission such action is advisable for the protection of the public, or of participants or potential participants in a collective investment fund, the Commission may appoint an inspector to investigate the affairs of all or any of the holders of permits relating to the collective investment fund and to make such further enquiries as the inspector may consider necessary.

(2)    An inspector appointed under this Article may examine under oath the holder of a permit, a principal person in relation to, or officer, employee, banker, auditor or legal adviser of such a holder of a permit, any person nominated or approved to make a report in respect of such a holder of a permit and any other person who appears to be in possession of relevant information, for the purpose of obtaining any information that the inspector considers necessary for the purpose of the inspector’s investigation.[83]

(3)    References in paragraphs (1), (2) and (6) to a holder of a permit include references to a former holder of a permit, to any person who the Commission has reasonable cause to believe has committed an offence under the provisions of Article 10 and to any person who appears to the Commission to be acting or to have acted in contravention of the provisions of Article 5.[84]

(4)    Subject to paragraph (5), when an inspector is appointed under this Article, it is the duty of all persons who are liable to be examined under oath under paragraph (2) to give the inspector all assistance in connection with the investigation which they are reasonably able to give.[85]

(5)    A person liable to be examined under oath under paragraph (2) is not required to disclose any information which the person is entitled to refuse to disclose on grounds of legal professional privilege except that a lawyer may be required to disclose the name and address of the lawyer’s client.[86]

(6)    An inspector appointed under this Article may, at a reasonable time, having given prior written notice of intention to do so, and on producing if required evidence of the inspector’s authority, enter any premises occupied by the holder of a permit or any other person referred to in paragraph (2) or any other premises where information is kept by such a person, for the purpose of carrying out the inspector’s duties under this Article.[87]

(7)    Any person who obstructs a person exercising powers under paragraph (6) shall be guilty of an offence.[88]

(8)    If any person –

(a)     refuses to produce any book or document which it is that person’s duty under Article 9 to produce;

(b)     refuses to attend before an inspector when required to do so; or

(c)     refuses to answer any question put to that person by an inspector with respect to the affairs of the functionary,

the inspector may certify the refusal to the court.

(9)    The court may thereupon enquire into the case; and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, the court may punish the offender in like manner as if that person had been guilty of contempt of court.

(10)  A person convicted on a prosecution instituted as a result of an investigation under this Article may in the same proceedings be ordered to pay the expenses of the investigation to such extent as may be specified by the court.[89]

(11)  For the purposes of paragraph (10), the expenses of the investigation shall include such sums as the Commission may determine in respect of the cost of staff and overheads.[90]

(12)  A statement made by a person in compliance with a requirement imposed by virtue of this Article may not be used by the prosecution in evidence against that person in any criminal proceedings except proceedings under paragraph (7) of this Article or Article 16(1), (4) or (8).[91]

(13)  Nothing in paragraph (12) shall be construed as preventing the use of a statement in any enquiry under paragraph (9).[92]

(14)  This Article is in addition to and does not derogate from Article 9.

23    Obstruction of investigations[93]

(1)    It shall be an offence for a person who knows or suspects –

(a)     that information, books or papers are or are likely to be required under Article 9; or

(b)     that an investigation is being or is likely to be carried out under Article 22,

to falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of information, books or papers which that person knows or suspects would be required under Article 9 or relevant to an investigation under Article 22.

(2)    It shall be a defence for a person to prove that he or she had no intention of concealing facts disclosed by the information, books or papers from a person requiring or likely to require such information, books or papers under Article 9 or carrying out or likely to be carrying out an investigation under Article 22.

24    Entry and search of premises[94]

(1)    If the Bailiff is satisfied by information on oath that there is reasonable cause to suspect that –

(a)     if a notice were given under Article 9(6) or 22(6) it would not be complied with;

(b)     if any person were required to produce books or papers under Article 9(1), (3) or (4), those books or papers would be likely to be removed, tampered with or destroyed;

(c)     a specified person has failed in any respect to comply with a notice or requirement referred to in sub-paragraph (a) or (b);

(d)     a specified person has not provided complete information, books or papers in response to a notice or requirement referred to in sub-paragraph (a) or (b);

(e)     a person authorized by the Commission has been or may be obstructed in exercising a power under Article 9(6); or

(f)     an inspector appointed under Article 22 has been or may be obstructed in exercising a power under paragraph (6) of that Article,

the Bailiff may grant a warrant under this paragraph.

(2)    A warrant under paragraph (1) may authorize any police officer, together with any other person named in the warrant –

(a)     to enter any premises specified in the warrant, using such force as is reasonably necessary for the purpose;

(b)     to search the premises and obtain information or take possession of any books or papers appearing to be books or papers of a type referred to in any of the provisions mentioned in paragraph (1) or information relating to matters referred to therein or which otherwise appear to be relevant to the investigation of any offence under this Law, or to take, in relation to any such books or papers, any other steps which may appear to be necessary to preserve them or to prevent interference with them;

(c)     to take copies of or extracts from such books or papers and to require the person who had possession of them or any person who appears to be in possession of relevant information to provide an explanation of them;

(d)     to require any person named in the warrant to answer questions relevant for determining any matter in connection with this Law; and

(e)     if the books or papers are not provided, to require any person appearing to be in possession of relevant information to state, to the best of his or her knowledge and belief, where they are.

(3)    A warrant under paragraph (1) shall continue in force until the end of the period of one month beginning with the date on which it was issued.

(4)    Any books or papers taken under paragraph (2) may be retained –

(a)     for a period of one year; or

(b)     if, within that period, proceedings to which the books or papers are relevant are commenced against any person, until the conclusion of those proceedings.

(5)    A person who requires for the purposes of his or her business any books or papers taken under paragraph (2) may request the person in whose custody they are retained to furnish copies of them and the person in whose custody they are retained shall furnish such copies as soon as possible.

(6)    Any person who obstructs the exercise of any power conferred by a warrant under this Article or fails to comply with a requirement imposed on him or her by virtue of paragraph (2)(c), (d) or (e) shall be guilty of an offence.

(7)    Where any person from whose premises books or papers are taken under paragraph (2) claims a lien on any such books or papers, the possession of such books or papers by the officer or person concerned and by anyone to whom he or she passes them shall be without prejudice to the lien.

(8)    Nothing in this Article shall require the disclosure or production by a person of information, books or papers which that person would in an action in the Court be entitled to refuse to disclose or produce on the grounds of legal professional privilege in proceedings in the Court except, if he or she is a lawyer, the name and address of his or her client.

(9)    A statement made by a person in compliance with a requirement imposed by virtue of this Article may not be used by the prosecution in evidence against him or her in any criminal proceedings except proceedings under paragraph (6) of this Article or Article 16(1), (4) or (8).

25    Co-operation with relevant supervisory authority[95]

(1)    The following powers may be exercised (by the officer or person specified in the relevant provision) in order to assist a relevant supervisory authority –

(a)     the power to refuse to grant a permit under Article 7(1) or to cancel a permit under paragraph (7) of that Article;

(b)     the power to impose conditions on the grant of a permit under Article 7(1) or to vary such conditions or attach a new condition under paragraph (3) of that Article;

(c)     the powers relating to information and documents under Article 9;

(d)     the powers under Article 22;

(e)     the powers under Article 24;

(f)     on the application of the Commission, the powers under Article 34;

(g)     subject to Article 30, communication by the Commission to the relevant supervisory authority of information that is in the possession of the Commission, whether or not as a result of the exercise of any of the above powers.

(2)    The Commission shall not exercise the power referred to in paragraph (1)(g) unless satisfied that the relevant supervisory authority will treat the information communicated with appropriate confidentiality and that –

(a)     the power is exercised in order to assist the authority in the exercise of its supervisory functions; or

(b)     the exercise of the power has been requested by the authority and requested only for the purposes of obtaining assistance for the authority in the exercise of one or more of its supervisory functions.

(3)    The other powers referred to in paragraph (1) shall not be exercised by virtue of this Article unless the Commission is satisfied that the exercise has been requested by the relevant supervisory authority and requested only for the purposes of obtaining assistance for the authority in the exercise of one or more of its supervisory functions.

(4)    In deciding whether to exercise a power by virtue of this Article, the following factors (among others) may be taken into account –

(a)     whether corresponding assistance would be given in that country or territory to the Commission;

(b)     whether the case concerns the possible breach of a law, or other requirement, which has no close parallel in Jersey or involves the assertion of a jurisdiction not recognized by Jersey;

(c)     the seriousness of the case and its importance in Jersey and whether the assistance could be obtained by other means;

(d)     whether it is otherwise appropriate in the public interest to give the assistance.

(5)    The exercise of powers by virtue of this Article may be refused unless the relevant supervisory authority undertakes to make such contribution towards the costs of its exercise as the Commission considers appropriate.

(6)    For the purposes of this Article –

(a)     a reference –

(i)     in Article 9(10) to an offence under the provisions of Article 10 or to a contravention of the provisions of Article 5(1) or (2), or

(ii)    in Article 22(3) to an offence under the provisions of Article 10 or to a contravention of the provisions of Article 5,

shall include a reference to an offence (committed at any time, including a time before the enactment of this Law) against, or contravention (so committed) of, a law of a country or territory outside Jersey constituted by an act or omission that, if it arose in Jersey, would constitute (at the time when the relevant request referred to in paragraph (3) was received) an offence, or contravention, under a provision referred to in clause (i) or (ii), as that provision was in force at the latter time; and

(b)     a reference in Article 24(4) to proceedings shall include a reference to proceedings outside Jersey.

(7)    For the purposes of this Article, a reference (however expressed or implied) in Article 5 or 10 (or in any provision necessary for the interpretation of that Article) to Jersey, or to any class of person, any qualification or any provision, shall be construed, in the application of that Article to a contravention of a law of a country or territory outside Jersey, as a reference to that country or territory, or to an equivalent class of person, qualification or provision, in terms of the law of that country or territory.

(8)    The exercise of a power under any provision shall be no less an exercise of that power under that provision because it is exercised by virtue of this Article, and this Law (and any other law that applies when a power is exercised directly under that provision) applies also when that power is exercised by virtue of this Article.

26    Restriction on disclosure of information[96]

(1)    Except as provided in paragraphs (2) and (3) and in Articles 27 to 29 –

(a)     no person who under or for the purposes of this Law receives information relating to the business or other affairs of any person; and

(b)     no person who obtains any such information directly or indirectly from a person who has received it as aforesaid,

shall disclose the information without the consent of the person to whom it relates and (if different) the person from whom it was received as aforesaid.

(2)    This Article does not apply to information which –

(a)     at the time of the disclosure, is or has already been made available to the public from other sources; or

(b)     is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.

(3)    This Article does not apply to information which is communicated to a relevant supervisory authority under Article 25(1)(g).

(4)    Any person who discloses information in contravention of this Article shall be guilty of an offence.

27    Disclosure facilitating discharge of functions by Commission[97]

(1)    Article 26 does not preclude the disclosure of information in any case in which disclosure is for the purpose of enabling or assisting the Commission to discharge its functions under this Law or any other enactment under which it exercises a supervisory function.

(2)    Without prejudice to the generality of paragraph (1), Article 26 does not preclude the disclosure of information by the Commission to the auditor of a holder of a permit, a former holder of a permit or of a person who appears to the Commission to be acting or to have acted in contravention of the provisions of Article 5(1) or (2), if it appears to the Commission that disclosing the information would enable or assist the Commission to discharge the functions mentioned in paragraph (1) or would otherwise be in the interests of participants or potential participants in collective investment funds.

(3)    If, in order to enable or assist the Commission properly to discharge any of its functions under this Law, the Commission considers it necessary to seek advice from any qualified person on any matter requiring the exercise of professional skill, Article 26 does not preclude the disclosure by the Commission to that person of such information as appears to the Commission to be necessary to ensure that the person is properly informed with respect to the matters on which the person’s advice is sought.

28    Disclosure facilitating discharge of functions by Viscount[98]

Article 26 does not preclude the disclosure by the Commission of information to the Viscount in connection with matters which are in the process of being dealt with pursuant to the Bankruptcy (Désastre) (Jersey) Law 1990.[99]

29    Other permitted disclosures[100]

(1)    Article 26 does not preclude the disclosure of information –

(a)     with a view to the investigation of a suspected offence or the institution of, or otherwise for the purposes of, any criminal proceedings, whether under this Law or not;

(b)     in connection with any other proceedings arising out of this Law;

(c)     with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise of professional duties by –

(i)     an auditor of an applicant for a permit, a holder of a permit or a former holder of a permit, or a person who was the auditor of a holder of a permit or a former holder of a permit at any time during the period the permit was held,

(ii)    a person appointed to make a report under Article 9(2), or

(iii)   an inspector appointed under Article 22.

(2)    Article 26 does not preclude the disclosure by the Commission or any person acting on its behalf to the Attorney General or a police officer of information obtained by virtue of Article 9 or 22 or of information in the possession of the Commission or person about any matter in relation to which the powers conferred by those Articles are exercisable, but any information so disclosed may only be disclosed by a police officer for the purposes of a prosecution either in Jersey or, with the prior consent of the Attorney General, elsewhere.

(3)    Article 26 does not preclude the disclosure by the Commission or any person acting on its behalf to an inspector appointed under Article 22, under Article 15 of the Company Securities (Insider Dealing) (Jersey) Law 1988,[101] under Article 128 of the Companies (Jersey) Law 1991[102] or under any other enactment under which the Commission exercises a supervisory function.

(4)    Subject to Article 30, Article 26 does not preclude the disclosure by the Commission of information to any person or body responsible for a scheme for compensating investors (whether in Jersey or elsewhere) if it appears to the Commission that disclosing the information would enable or assist the recipient of the information or the Commission to discharge its functions but any such disclosure by the Commission may only be made if –

(a)     the recipient of the information has given to the Commission a written undertaking that the information will not be further disclosed without the prior consent of the Commission; and

(b)     where the information relates to a participant in a collective investment fund, that person consents to its disclosure.

30    Attachment of conditions to disclosure[103]

No information shall be disclosed under Article 25(1)(g) or 29(4) unless the Commission or any person acting on its behalf is satisfied that the authority, person or body concerned complies with or will comply with any conditions to which the Commission or person acting on its behalf may, in their discretion, subject such disclosure.

31    Information supplied to Commission by relevant supervisory authority[104]

Article 26 applies also to information supplied to the Commission for the purposes of its functions under this Law by a relevant supervisory authority but no such information shall be disclosed except as provided in that Article or for the purpose of enabling or assisting the Commission to discharge those functions or with a view to the institution of, or otherwise for the purposes of, criminal proceedings, whether under this Law or otherwise.

32    Communication by auditor and other persons with Commission[105]

(1)    No duty to which an auditor or a person appointed to make a report under Article 9(2) may be subject shall be regarded as contravened by reason of him or her communicating in good faith to the Commission, whether or not in response to a request made by it, any information or opinion on a matter to which this Article applies and which is relevant to any function of the Commission under this Law.

(2)    In relation to an auditor, this Article applies to a matter of which the auditor becomes aware in his or her capacity as such and which relates to the business or affairs of a holder of a permit, former holder of a permit or collective investment fund, as the case may be, or any holding company or subsidiary in relation to it.

(3)    In relation to a person appointed to make a report under Article 9(2), this Article applies to any matter of which that person becomes aware in his or her capacity as the person making the report and which relates to the business or affairs of the holder of a permit or former holder of a permit in relation to whom the report is made.

(4)    The Committee may by Order, on the recommendation of the Commission given after the Commission has consulted with such persons as appear to it to represent the interests of the persons referred to in paragraph (1) and holders of permits, specify circumstances in which the persons referred to in paragraph (1) shall be required to communicate any information or opinion to the Commission on a matter to which this Article applies, and which is relevant to any function of the Commission under this Law.

(5)    A person who fails to comply with an Order made under paragraph (4) shall be guilty of an offence and liable to a fine or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

(6)    In this Article, “auditor” means an auditor of a holder of a permit, a former holder of a permit or a collective investment fund and includes a person who was the auditor of a holder of a permit or former holder of a permit at any time during the period the permit was held.

33    Register of holders of permits[106]

(1)    The Commission shall keep a register of persons to whom permits have been granted.

(2)    The register referred to in paragraph (1) shall be in such form and contain such particulars as the Commission may from time to time determine.

(3)    The register referred to in paragraph (1) shall be kept in such place as the Commission may determine, and any person shall be permitted to inspect the register during ordinary office hours, and to take copies of any entry in it.

34    Applications to court[107]

(1)    If on the application of the Commission the court is satisfied that it is desirable in the interest of the participants or potential participants in a collective investment fund that Article 8(1) shall not have effect or shall cease to have effect in any particular case, the court may so order.

(2)    An order under paragraph (1) may be made without notice to and without hearing any functionary.

(3)    Where an order is made under paragraph (1), the variation, new condition or revocation to which it relates shall take immediate effect but any person aggrieved by such order may apply to the court, either in term time or vacation, to vary or set aside the order on the ground that the order was unreasonable having regard to all the circumstances of the case.[108]

(4)    On an application under paragraph (3), the court may make such order as it thinks fit.[109]

(5)    If it appears to the Commission –

(a)     that it is desirable in the interest of the participants or potential participants in a collective investment fund; or

(b)     that a functionary has failed to comply with any provision of this Law, or of any Regulation or Order made or permit granted, or with any direction given, under this Law, or in purported compliance with any such provision has furnished to the Commission false, inaccurate or misleading information,

the Commission may apply to the court for an order removing the functionary and replacing the functionary with a person nominated by the Commission and may also apply for an order that the person nominated by the Commission procures the winding up of the collective investment fund.

(6)    On an application under paragraph (5) the court may make such order as it thinks fit, which may include provisions to facilitate the removal or replacement of a functionary and the winding up of the collective investment fund.

(7)    The Commission shall give written notice of the making of an application under paragraph (5) to the functionaries of the collective investment fund and take such steps as it considers appropriate for bringing the making of the application to the attention of participants in the collective investment fund.

(8)    If on the application of the Commission the court is satisfied –

(a)     that there is a reasonable likelihood that a person will fail to comply with a provision of this Law, or of any Regulation or Order made or permit granted, or with any direction given, under this Law;

(b)     that a person has failed to comply with any such provision or direction and that there is a reasonable likelihood that the failure will continue or be repeated; or

(c)     that any person has failed to comply with any such provision or direction and that there are steps that could be taken for remedying the failure,

the court may make an order preventing the failure or requiring that person and any other person who appears to the court to have been knowingly concerned in the failure to take such steps as the court may direct to remedy it.

(9)    If on the application of the Commission the court is satisfied –

(a)     that profits have accrued to a person as a result of that person’s failure to comply with any provision of this Law, or of any Regulation or Order made, or permit granted, or with any direction given, under this Law; or

(b)     that one or more investors have suffered loss or been otherwise adversely affected as a result of that failure,

the court may make an order requiring the person concerned to pay into court for distribution as the court may direct such sum as appears to the court to be just having regard to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.

(10)  On an application under paragraph (9) the court may require the person concerned to furnish it with such accounts or other information as it may require for establishing whether any and, if so, what profits have accrued to that person as mentioned in paragraph (9)(a) and for determining how any amounts are to be paid or distributed under that paragraph; and the court may require any such accounts or other information to be verified in such manner as it may direct.

35    Actions for damages

A failure to comply with such provisions of this Law, or any Regulation or Order made under it, as the States may by Regulations specify shall be actionable at the suit of a person who suffers loss as a result of the failure, subject to the defences and other incidents applying to actions for breach of statutory duty; but no such failure shall invalidate any transaction.

36    Limitation of liability[110]

(1)    No person or body to whom this Article applies shall be liable in damages for anything done or omitted in the discharge or purported discharge of any functions under this Law or any enactment made, or purportedly made, under this Law unless it is shown that the act or omission was in bad faith.

(2)    This Article applies to –

(a)     the States;

(b)     the Committee, any member of the Committee, or any person who is, or is acting as, an officer, servant or agent of the Committee or performing any duty or exercising any power on behalf of the Committee; and

(c)     the Commission, any Commissioner or any person who is, or is acting as, an officer, servant or agent of the Commission or who is an inspector appointed by the Commission under Article 22 or who is performing any duty or exercising any power on behalf of the Commission.

37    Fees[111]

Fees prescribed under this Law shall be payable to the Commission.

38    Power to amend Article 3

The States may make Regulations amending the provisions of Article 3.

39    Citation

This Law may be cited as the Collective Investment Funds (Jersey) Law 1988.

SCHEDULE

(Article 4)

FUNCTIONARIES

PART1

Functionaries are those persons referred to in Part 2 of this Schedule.

PART2

PART3

1.      In this Schedule “group” means a group of the kind specified in Part 2.

2.      A reference in this Schedule to a numbered group is a reference to the group so numbered in Part 2.

3.      A group or part of a group may be described in an Order or permit by reference to a group specified in Part 2.

Endnotes

Table of Legislation History

Table of Renumbered Provisions

Table of Endnote References

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Page last updated 20 Mar 2009