Collective
Investment Funds (Appointment of Manager) (Jersey) Order 2008
1 Interpretation
(1) In
this Order –
“fund person”
means –
(a) any
person granted a permit or a certificate;
(b) any
person whom the Commission reasonably believes to be in breach of Article 5
or Article 8 of the Law;
“Law” means
the Collective
Investment Funds (Jersey) Law 1988.
(2) In
this Order a note contained in a paragraph of the Schedule to this Order forms part
of that paragraph.
2 Prescribed
circumstances in which the Commission may apply to the Court for appointment of
a manager
(1) The
Schedule sets out the prescribed circumstances for the purposes of Article 34A
of the Law.
(2) The
Commission may apply to the Court for the appointment by the Court of a person
to manage the affairs, or any part of the affairs, of any fund person, in so
far as those affairs relate to a collective investment fund, where the
Commission is satisfied that there is sufficient evidence to show the existence
of any of the cases set out in the Schedule.
3 Citation
This Order may be cited
as the Collective Investment Funds (Appointment of Manager) (Jersey)
Order 2008.
SCHEDULE[1]
(Article 2)
PRESCRIBED CIRCUMSTANCES
Case 1
There has been inadequate
management of the affairs of a fund person in so far as they relate to a
collective investment fund.
Note Such inadequate
management may be evidenced, in particular, by –
(a) the
dishonesty of a principal person in relation to the fund person;
(b) any
person committing a serious breach of a fiduciary duty in relation to the
collective investment fund;
(c) insufficient
resources being held by the fund person in relation to the collective
investment fund;
(d) a
serious failure by the fund person to maintain proper records;
(e) the
existence of a conflict of interests that may prevent the interests of
participants or potential participants in the fund being properly protected;
(f) the
fund person committing serious and persistent breaches of –
(i) the
Drug Trafficking Offences (Jersey) Law 1988, the Proceeds of Crime
(Jersey) Law 1999, the Terrorism (Jersey)
Law 2002, the Proceeds
of Crime (Supervisory Bodies) (Jersey) Law 2008, the Money Laundering
(Jersey) Order 2008 or an Order made under the European Communities
Legislation (Implementation) (Jersey) Law 1996 and relating to the
freezing of funds,
(ii) any
other enactment of Jersey relating to money laundering or the financing of
terrorism,
(iii) any
code of practice made under an enactment referred to in sub-paragraph (i)
or (ii) or adopted by or under such an enactment,
(iv) the Law or
any code of practice made under the Law or adopted by or under the Law, or
(v) an
enactment made under the Law;
(g) the
death or incapacity or prolonged absence of a principal person in relation to
the fund person to the detriment of the collective investment fund.
Case 2
The fund person appears
to have ceased to carry on that person’s business relating to a
collective investment fund, but that person has failed to wind up, liquidate,
close or transfer the business in an orderly manner or at all.
Case 3
The fund person has persistently failed to examine claims or
complaints of participants in the collective investment fund.
Case 4
The fund person does not
hold a permit or certificate, as the case requires, in relation to the
collective investment fund.
Case 5
There is a need to
appoint a manager to collect, protect or preserve the assets or records of the
collective investment fund or the property of participants in the fund, or
both.
Case 6
There is a need to appoint a manager to avoid circumstances arising
that could provide grounds for a forced winding up of the collective investment
fund.
Case 7
There is a need to
appoint a manager to promote or implement a compensation scheme established
specifically for participants in the collective investment fund.
Case 8
The fund person has
failed to comply with any of the following –
(a) a
condition under Article 7 or Article 8B of the Law;
(b) a
notice of objection under Article 12A or 12B of the Law;
(c) a
direction under Article 13 of the Law,
and there is therefore a
need to appoint a manager of the business relating to the collective investment
fund to ensure its independent management.