Class B Rules - Guernsey Financial Services Commission

GUERNSEY FINANCIAL SERVICES COMMISSION
PROTECTION OF INVESTORS (BAILIWICK OF
GUERNSEY) LAW, 1987 THE AUTHORISED COLLECTIVE INVESTMENT
SCHEMES (CLASS B) RULES [2012]
("Class B Rules")
THE AUTHORISED COLLECTIVE INVESTMENT SCHEMES (CLASS B) RULES [2012] PART 1 INTRODUCTORY 2 PART 2 APPLICATION OF RULES,
CONSTITUTION OF AN AUTHORISED
SCHEME AND PRINCIPAL DOCUMENTS 11 PART 3 TITLE TO UNITS AND DEALINGS 21
THEREIN PART 4 THE MANAGER AND THE TRUSTEE 26 PART 5 DISTRIBUTION OF INCOME 33 PART 6 REPORTS TO HOLDERS 34 PART 7 MEETINGS OF HOLDERS 37 PART 8 TERMINATION AND SUSPENSION
OF THE SCHEME 40 PART 9 SERVICE OF NOTICES AND DOCUMENTS 44 PART 10 TRANSITIONAL PROVISIONS 45 SCHEDULE SCHEME PARTICULARS 46 GUERNSEY FINANCIAL SERVICES COMMISSION THE AUTHORISED COLLECTIVE INVESTMENT SCHEMES (CLASS B)
RULES [2012] The Guernsey Financial Services Commission (the "Commission"), in exercise
of the powers conferred on it by Sections 12, 14, 15, 16, 18 and 20 of the
Protection of Investors (Bailiwick of Guernsey) Law, 1987 (the "Law") as
amended hereby makes the following rules:-
PART 1- INTRODUCTORY 1.01 Citation and commencement These rules (including the schedule hereto) may be cited as the
Authorised Collective Investment Schemes (Class B) Rules [2012] (the
"Class B rules") and come into operation on [x]. 1.02 Interpretation (1) Unless the context otherwise requires, in these Class B rules
expressions defined in the Law have the same meanings as they have in
the Law and the following expressions have the meanings assigned to
them: "affected person" shall mean:
(a) a company scheme;
(b) its trustee;
(c) a director of a company scheme;
(d) the manager;
(e) any investment adviser of a scheme;
(f) any associate of any person in paragraph (a), (b), (c),
(d) or (e); and
(g) the auditor of the authorised scheme;
"annual accounting period" is the period of 12 months between dates
specified for that purpose or ending on a particular day specified in
any calendar year in the principal documents; "annual income allocation date" means the date in any year stated in
the most recently published scheme particulars as the date on or before
which, in respect of each annual accounting period, an allocation of
income is to be made; "applicable law", in the case of a company scheme, means the law of a
jurisdiction in which the company is incorporated, and in any other
case means the governing law specified in the scheme's principal
documents; "approved bank" means a person who is licensed under The Banking
Supervision (Bailiwick of Guernsey) Law, 1994 as amended or is
registered under The Banking Business (Jersey) Law, 1991, or authorised
to undertake Class 1 Deposit-taking Business under the Isle of Man
Financial Services Act 2008 or is authorised and regulated to carry on
a banking or deposit-taking business under the Financial Services and
Markets Act 2000 or under the law of any Member State or under the law
of any other country or territory which may be listed in notices issued
from time to time by the Commission;
"approved derivative" means a derivative which is traded in or dealt
in on an eligible derivatives market; "approved law firm" means a firm of lawyers qualified under applicable
law to practice that law and approved by the Commission for the
purposes of these rules; "approved security" means a transferable security that is admitted to
official listing on the Channel Islands Stock Exchange or in an EEA
State or is traded on or under the rules of an eligible securities
market (otherwise than by the specific permission of the market
authority); "associate" in relation to a licensee means: a) an undertaking in the same group as that licensee; b) any body corporate at least one-fifth of the issued equity
share capital of which is beneficially owned by that licensee
or an associate; c) any other person whose business or domestic relationship with
the licensee or its associate, or with the partners,
directors, managers or employees of the licensee, or its
associate, places the person in a position to exercise
significant influence over the licensee which might reasonably
be expected to give rise to a conflict of interest in dealings
with third parties;
"auditor" means the auditors for the time being of an authorised
scheme;
"authorised scheme" means a collective investment scheme declared by
the Commission to be an authorised Class B collective investment scheme
under Section 8 of the Law;
"base currency" means the currency specified in the principal documents
as the base currency of the scheme;
"collective investment scheme" has the meaning given in the Law;
"commencement date" means the date on which these rules come into
operation;
"Commission" means the Guernsey Financial Services Commission
"company scheme" means any authorised scheme constituted as a body
corporate, including protected cell companies and incorporated cell
companies;
"controller" means
a) in relation to a body corporate, means any person who, either
alone or with any associate or associates is entitled to
exercise, or control the exercise of, 15 per cent or more of
the voting power at any general meeting of the body corporate
or of another body corporate of which the body corporate is a
subsidiary; and b) in relation to an unincorporated entity means: i) any person (legal or natural) in accordance with whose
directions or instructions, either alone or with those of
any associate or associates, the officers or members of
the governing body of the entity are accustomed to act
(but disregarding advice given in a professional
capacity), and ii) any person (legal or natural) who, either alone or with
any related person or related persons is entitled to
exercise, or control the exercise of, 15 per cent or more
of the voting power at any general meeting of the entity;
and for the purposes of this definition "related person",
in relation to any person, means that person's wife,
husband or minor child or step-child, any body corporate
of which that person is a director, any person who is an
employee or partner of that person and, if that person is
a body corporate, any subsidiary of that body corporate
and any employee of any such subsidiary; "conversion" means the exchange or conversion of units in one
constituent part of an umbrella fund for those in another constituent
part of the same fund;
"declaration of authorisation" means the declaration of the Commission
that a collective investment scheme is an authorised scheme of a
specified class;
"designated manager" in relation to an authorised scheme, means the
person designated as such by the Commission for the purposes of the Law
(as designated in the Commission's authorisation of the scheme under
section 8 of the Law);
"directors" means the directors, or other members of the principal
managing body of a company scheme;
"EEA State" means a state which is a contracting party to the agreement
on the European Economic Area signed at Oporto on 2 May 1992, as it has
effect for the time being;
"eligible market" means
(a) a regulated market; (b) a market in an EEA State which is regulated, operates
regularly and is open to the public; or (c) any market not falling within paragraphs (a) and (b) but is
eligible for the purposes of these rules if:
(i) the manager, after consultation with and notification
to the trustee (and, in the case of a company scheme, any
directors), decides that market is appropriate for
investment of, or dealing in, the scheme property; (ii) the market is included in a list in the scheme
particulars; and (iii) the trustee has taken reasonable care to determine
that:
(I) adequate custody arrangements can be provided for
the investment dealt in on that market; and (II) all reasonable steps have been taken by the
manager in deciding whether that market is eligible.
In paragraph (c), a market must not be considered eligible
unless it:
(i) is regulated; (ii) operates regularly; (iii) is recognised as a market or exchange or as a self-
regulating organisation by an overseas regulator; (iv) is open to the public; (v) is adequately liquid; and
(vi) has adequate arrangements for unimpeded transmission
of income and capital to or to the order of in