Collective Investment Schemes Act 2008
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AT 7 of 2008
COLLECTIVE INVESTMENT SCHEMES
ACT 2008
Collective Investment Schemes Act 2008 Index
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COLLECTIVE INVESTMENT SCHEMES ACT 2008
Index Section Page
PART 1 – MEANING 7
1 Meaning of collective investment scheme ................................................................... 7
PART 2 – ESTABLISHMENT AND PROMOTION 8
2 Restriction on establishment ......................................................................................... 8
3 Restriction on promotion ............................................................................................... 8
PART 3 – TYPES OF SCHEME 9
4 Provisions applicable to certain scheme types ........................................................... 9
PART 4 – MISCELLANEOUS REQUIREMENTS 10
CHAPTER I 10
Managers and administrators 10
5 Matters with which managers and administrators must be satisfied ................... 10
6 Matters to be notified to the Authority ...................................................................... 10
CHAPTER II 11
Documents 11
7 Documents to be kept up to date ................................................................................ 11
8 Avoidance of exclusion clauses .................................................................................. 11
CHAPTER III 12
Accounts and audit 12
9 Accounts ......................................................................................................................... 12
10 Matters to be communicated to the Authority by auditors .................................... 12
PART 5 – OVERSIGHT AND INTERVENTION 12
11 When Authority may exercise powers under this Part ........................................... 12
11A Persons unfit to be members of governing body ..................................................... 13
11B Prohibitions ................................................................................................................... 14
11C Prohibition procedure .................................................................................................. 15
Index Collective Investment Schemes Act 2008
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11D Prohibitions: variation ................................................................................................. 15
11E List of prohibitions ....................................................................................................... 15
11F Warning notices ............................................................................................................ 16
12 Directions ....................................................................................................................... 17
13 Appointments ............................................................................................................... 18
14 Notice of directions or appointment .......................................................................... 20
15 Application to court ..................................................................................................... 21
16 Investigations ................................................................................................................ 21
PART 6 – SUPPLEMENTARY 23
CHAPTER I 23
Offences and penalties 23
17 False and misleading statements ............................................................................... 23
18 Offences and penalties ................................................................................................. 23
19 Offences by bodies corporate ..................................................................................... 24
19A Civil penalties ............................................................................................................... 24
CHAPTER II 25
General 25
20 Guidance ........................................................................................................................ 25
21 Appeals against Authority decisions......................................................................... 26
22 Public registers .............................................................................................................. 27
23 Financial provisions ..................................................................................................... 28
CHAPTER III 28
Subordinate legislation etc 28
A24 Form and content of documents and information ................................................... 28
24 Orders and regulations ................................................................................................ 28
25 Tynwald procedure ...................................................................................................... 30
CHAPTER IV 30
Final provisions 30
26 Interpretation ................................................................................................................ 30
27 Amendments ................................................................................................................. 35
28 Repeals ........................................................................................................................... 35
29 Transitional and saving provisions ........................................................................... 35
30 Short title and commencement ................................................................................... 35
SCHEDULE 1 37
AUTHORISED SCHEMES 37
SCHEDULE 2 42
INTERNATIONAL SCHEMES 42
SCHEDULE 3 46
EXEMPT SCHEMES 46
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SCHEDULE 4 47
RECOGNISED SCHEMES 47
SCHEDULE 5 52
SUBORDINATE LEGISLATION 52
SCHEDULE 6 55
AMENDMENT OF ENACTMENTS 55
SCHEDULE 7 57
REPEAL OF ENACTMENTS 57
SCHEDULE 8 57
TRANSITIONAL AND SAVING PROVISIONS 57
ENDNOTES 59
TABLE OF LEGISLATION HISTORY 59
TABLE OF RENUMBERED PROVISIONS 59
TABLE OF ENDNOTE REFERENCES 59
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COLLECTIVE INVESTMENT SCHEMES ACT 2008
Received Royal Assent: 17 June 2008
Passed: 17 June 2008
Commenced— sections 1(5) and 24 on 19 June 2008
— other provisions 1 August 2008
AN ACT
to repeal and replace with modifications the Financial Supervision Act
1988; and for connected purposes.
PART 1 – MEANING
1 Meaning of collective investment scheme
[P2000/8/235]
(1) “Collective investment scheme
” means arrangements with respect to
property of any description, including money, the purpose or effect of
which is to enable persons taking part in the arrangements (whether by
becoming or being owners of the property or any part of it or otherwise)
to participate in or receive profits or income arising from the acquisition,
holding, management or disposal of the property or sums paid out of
those profits or income.
(2) The arrangements must be such that the persons who participate
(“participants”) do not have day to day control over the management of
the property, whether or not they have the right to be consulted or to
give directions.
(3) The arrangements must also have either or both of the following
characteristics —
(a) the contributions of the participants and the profits or income out
of which payments are to be made to them are pooled;
(b) the property is managed as a whole by or on behalf of the
governing body of the scheme.
(4) If arrangements provide for pooling in relation to separate parts of the
property, the arrangements are not to be regarded as constituting a
Section 2 Collective Investment Schemes Act 2008
Page 8 AT 7 of 2008 c
single collective investment scheme unless the participants are entitled to
exchange rights in one part for rights in another.
(5) The Authority may by order provide that arrangements do not amount
to a collective investment scheme —
(a) in prescribed circumstances; or
(b) if the arrangements fall within a prescribed character of
arrangement.1
PART 2 – ESTABLISHMENT AND PROMOTION
2 Restriction on establishment
(1) A scheme must not be established in the Island unless it is —
(a) an authorised scheme;
(b) an international scheme;
(c) an exempt scheme; or
(d) a scheme which is exempted under this Act from the requirement
to be an authorised scheme, an international scheme or an exempt
scheme.
(2) Subsection (1) does not preclude authorised persons from carrying on, in
or from the Island, the management or administration of schemes
established outside the Island.
(3) For the purposes of this section, “established in the Island” includes —
(a) the establishment of a trust governed by the laws of the Island;
(b) the formation or incorporation of a body corporate under the laws
of the Island;
(c) the formation of a partnership under the laws of the Island; and
(d) any other prescribed method of establishment.
3 Restriction on promotion
[1988/16/1]
(1) Subject to subsections (2) and (3) a person must not —
(a) issue or cause to be issued in the Island any advertisement
inviting persons to become or offer to become participants in a
scheme or containing information calculated to lead directly or
indirectly to persons becoming or offering to become participants
in a scheme; or
(b) advise or procure any person in the Island to become or offer to
become a participant in a scheme,
unless the scheme is an authorised scheme or a recognised scheme.
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(2) Subsection (1) does not apply if the advertisement is issued to or the
person mentioned in paragraph (b) of that subsection is —
(a) a licenceholder within the meaning of section 7 of the Financial
Services Act 2008 whose licence permits the licenceholder to advise
or procure any person in the Island to become or offer to become a
participant in a scheme of the same class as the scheme to which
the advertisement refers or in respect of which the advice or
procurement under subsection (1) is given;
(b) an authorised insurer within the meaning of section 8 of the
Insurance Act 2008; or
(c) a person whose ordinary business involves the acquisition and
disposal of property of the same kind as the property, or a
substantial part of the property, to which the scheme relates.
(3) Regulations may exempt any scheme or class of scheme or any person or
class of persons from the provisions of subsection (1).
(4) A person must not issue an advertisement in relation to a scheme which
is false or misleading in a material particular.
(5) An advertisement or other information issued outside the Island in
relation to a scheme is to be treated as issued in the Island if —
(a) it is directed to persons in the Island; or
(b) it is made available to them otherwise than in —
(i) a publication published and circulating principally outside
the Island; or
(ii) a sound, television, world wide web or internet broadcast
transmitted principally for reception outside the Island.
(6) In subsection (5)(b)(i), “published” includes published by any electronic
means, including by way of email or on a website, webpage or internet
site or page.
PART 3 – TYPES OF SCHEME
4 Provisions applicable to certain scheme types
(1) Schedule 1, which makes provision for authorised schemes, has effect.
(2) Schedule 2, which makes provision for international schemes, including
full international schemes and other classes of international scheme, has
effect.
(3) Schedule 3, which makes provision for exempt schemes, has effect.
(4) Schedule 4, which makes provision for recognised schemes, has effect.
Section 5 Collective Investment Schemes Act 2008
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PART 4 – MISCELLANEOUS REQUIREMENTS
CHAPTER I
Managers and administrators
5 Matters with which managers and administrators must be satisfied
A person must not act as manager or administrator of a scheme unless the
person has taken reasonable steps to be satisfied that —
(a) the following persons are suitable to act in relation to the scheme
in the manner envisaged —
(i) any promoter, governing body, manager, administrator,
trustee, fiduciary custodian, custodian or asset manager of
the scheme; and
(ii) any person proposing to carry out any of the roles
mentioned in subparagraph (i); and
(b) where the scheme is constituted or established under the laws of a
jurisdiction outside the Island, the jurisdiction under which it is
constituted or established is a suitable jurisdiction in which to
constitute or establish the scheme.
6 Matters to be notified to the Authority
2
(1) The manager or administrator of a scheme who knows of, or has
reasonable cause to believe, the occurrence of any matter which has, or is
likely to have, a material adverse effect on a scheme must immediately
notify the Authority in writing of the occurrence, stating the reasons for
the knowledge or belief.3
(2) Without limiting subsection (1) but subject to subsection (3), notice must
be given under subsection (1) if a scheme or any promoter, governing
body, manager, administrator, trustee, fiduciary custodian, custodian or
asset manager —
(a) is, or is likely to be, unable to perform its obligations as they fall
due;
(b) is carrying on business otherwise than in accordance with —
(i) the documents constituting the scheme;
(ii) the offering document in respect of the scheme; or
(iii) this Act;
(c) is carrying on business in a manner that is, or is likely to be,
prejudicial to participants.
(3) In the circumstances specified in subsection (2), notice need only be
given under subsection (1) where the manager or administrator
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considers the occurrence of those circumstances to have, or be likely to
have, a material adverse effect on the scheme.
(4) Without limiting subsection (1), matters having a material adverse effect
include matters which —
(a) endanger the continued existence of the scheme; or
(b) reduce the protection of participants in the scheme.
(5) No duty of confidentiality is to be regarded as contravened by reason of
the manager or administrator of a scheme communicating in good faith
to the Authority, whether or not in response to a request made by the
Authority, any information or opinion on a matter which the manager or
administrator reasonably believes is relevant to any function of the
Authority under this Act.4
CHAPTER II
Documents
7 Documents to be kept up to date
The governing body of every authorised scheme and every international scheme
must ensure that —
(a) the offering document; and
(b) the documents constituting the scheme,
are kept up to date in respect of all material matters and are in
compliance with the requirements of this Act.
8 Avoidance of exclusion clauses
[1988/16/9]
(1) Any provision of any document constituting an authorised scheme or an
international scheme is void in so far as it purports to exempt the
promoter, governing body, manager, administrator, trustee, fiduciary
custodian or custodian from liability for any failure to exercise due care
and diligence in the discharge of that person’s functions in respect of the
scheme.
(2) Regulations may extend or restrict the application of this section for a
particular scheme or class of scheme or a particular person or class of
persons.
Section 9 Collective Investment Schemes Act 2008
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CHAPTER III
Accounts and audit
9 Accounts
The governing body of a scheme must ensure that the accounts for that scheme
are prepared and audited in compliance with regulations.
10 Matters to be communicated to the Authority by auditors
5
(1) An auditor of an authorised scheme or an international scheme who
becomes aware of any matter which the auditor has reasonable cause to
believe may be of material significance in relation to the Authority’s
functions under this Act must communicate that matter to the
Authority.6
(2) No duty of an auditor of any scheme (whether or not the scheme is an
authorised or international scheme) is to be regarded as contravened by
reason of the auditor communicating in good faith to the Authority,
whether or not in response to a request made by the Authority, any
information or opinion on a matter which the auditor reasonably believes
is relevant to any function of the Authority under this Act.7
(3) This section only applies to matters of which an auditor becomes aware
in that person’s capacity as auditor and which relate to the business or
affairs of the scheme.
PART 5 – OVERSIGHT AND INTERVENTION
8
11 When Authority may exercise powers under this Part
9
[1988/16/16(1)]
The Authority may exercise its powers under this Part if it appears to the
Authority —
(a) that the exercise of a power under this Part is desirable in the
interests of participants or potential participants in a scheme;
(b) that a scheme is or is likely to become unable to meet its
obligations as they fall due;
(c) that the operation, management or administration of a scheme has
not been conducted in a fit and proper manner;
(d) without limiting paragraph (a), that the governing body,
manager, administrator, trustee, fiduciary custodian or custodian
of a scheme —
(i) has contravened any provision of this Act or the Financial
Services Act 2008;
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(ii) in purported compliance with any such provision, has
furnished the Authority with false, inaccurate or
misleading information; or10
(iii) has contravened any condition, prohibition, direction or
other requirement imposed under this Act or the Financial
Services Act 2008; or
(e) that any of the requirements for —
(i) the making of an authorisation order under paragraph 2 of
Schedule 1 or a recognition order under paragraph 2 of
Schedule 4; or
(ii) the recognition of a scheme under paragraph 1 of Schedule
4,
are no longer satisfied.11
11A Persons unfit to be members of governing body
(1) If, on reasonable grounds, it appears to the Authority that a person is not
a fit and proper person to be a member of the governing body of a
scheme the Authority may direct that such person must not, without the
written consent of the Authority, be appointed a member of the
governing body of a scheme.12
(2) If, on reasonable grounds, it appears to the Authority that any person
who is a member of the governing body of a scheme is not a fit and
proper person to continue as such, the Authority may direct that such
person must not, without the written consent of the Authority, continue
as a member of the governing body of that scheme.13
(3) The Authority must give written notice to the person concerned of any
decision to give a direction under this section together with a statement
of the reasons for the decision.14
(4) Subject to subsection (5), if a notice has been given under subsection (3),
the direction takes effect —
(a) if no appeal under section 21 is made within the period prescribed
for the purposes of such an appeal, on the expiry of that period; or
(b) if there is an appeal under section 21 —
(i) where the appellant abandons the appeal, on the date of
abandonment;
(ii) where the decision of the Authority is confirmed, on the
date of confirmation; or15
(iii) where the decision of the Authority is varied, on such date
as the Tribunal constituted under section 21 directs.16
(5) If the Authority is of the opinion that a direction should have immediate
effect, the notice under subsection (3) must contain a statement to that
Section 11 Collective Investment Schemes Act 2008
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effect together with the reasons for that opinion, and the direction has
effect on the giving of the notice.17
(6) Any direction or consent by the Authority under subsection (1) or (2)
may be—
(a) given subject to conditions;
(b) varied from time to time; and
(c) revoked at any time,
and the Authority must give written notice to the person concerned of
any decision to exercise the powers in this subsection.18
(7) A person must not be a member of the governing body of a scheme in
contravention of a direction under this section.
(8) The persons constituting the governing body of a scheme must not —
(a) appoint a person in contravention of a direction under subsection
(1); or
(b) continue the appointment of a person in contravention of a
direction under subsection (2).19
11B Prohibitions
(1) The Authority may impose a prohibition if it appears to the Authority
that an individual is not a fit and proper person to be a member of the
governing body of a scheme.20
(2) Before imposing a prohibition, the Authority must give the individual
whom it proposes to prohibit an opportunity to make representations in
accordance with section 11C.21
(3) A prohibition may prevent an individual from being a member of the
governing body of—
(a) a scheme specified in the prohibition;
(b) a scheme of a description so specified; or
(c) any scheme.
(4) An individual commits an offence if he or she contravenes a prohibition.
(5) The appointment of an individual in contravention of a prohibition is
invalid for all purposes.
(6) A prohibition operates subject to subsections (7) to (9).
(7) Notice of a prohibition must be served upon the individual prohibited,
either personally or by registered post to the individual’s last known
address.
(8) Once it has been served a prohibition comes into operation on —
(a) the expiry of time for appealing against it under section 21; or
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(b) if an appeal is brought within that time, on the determination or
withdrawal of that appeal.
This subsection is subject to subsection (9).
(9) Section 11A(5) applies to a prohibition as it applies to a direction under
that section.
(10) A notice of prohibition must —
(a) state the terms of the prohibition;
(b) state the reasons for imposing the prohibition; and
(c) give particulars of the right of appeal under section 21.22
11C Prohibition procedure
(1) If the Authority proposes to impose a prohibition under section 11B, it
must give written notice to that effect (a “preliminary notice”) [to]23
the
individual whom it proposes to prohibit.24
(2) The preliminary notice must —
(a) state that the Authority proposes to impose a prohibition;25
(b) state the terms of the proposed prohibition;
(c) state the grounds for imposing the prohibition;
(d) state that within 28 days the individual proposed to be prohibited
may make representations to the Authority in such manner as the
Authority may specify in the preliminary notice; and26
(e) give particulars of the right of appeal under section 21 that would
be exercisable if the Authority imposed the prohibition.27
(3) The Authority must have regard to any representations made in
accordance with subsection (2)(d) before imposing a prohibition.28
29
11D Prohibitions: variation
(1) On the application of a prohibited person, the Authority may revoke or
vary the terms of a prohibition.30
(2) The Authority must give the prohibited person a statement of its reasons
for any decision it makes on an application under subsection (1).31
32
11E List of prohibitions
(1) The Authority must maintain and publish a list of prohibitions.33
(2) The list must specify the individual prohibited and the scheme, schemes,
or class or classes of schemes in respect of which the prohibition
applies.34
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11F Warning notices
(1) The Authority may —
(a) before making a direction under section 11A(2);
(b) before imposing a prohibition under section 11B; or
(c) in any other circumstances that the Authority considers it
appropriate to do so,35
give a written warning notice under this section to a person who is or
who it is proposed should become a member of the governing body of a
scheme.36
(2) A warning notice under this section is a notice that the Authority has
grounds to believe that such activities or circumstances as are specified
in the notice are prejudicial to the relevant person’s fitness and propriety
and must be accompanied by a statement of the reasons for giving the
notice.37
(3) A warning notice may (but need not) —
(a) propose that the relevant person take such action as is specified in
the notice;
(b) request the relevant person to propose action; or
(c) specify action that the relevant person must take and the time
within which it must be taken.
(4) If a warning notice has been given under this section, the Authority
must, before making a direction under section 11A(2) or imposing a
prohibition under section 11B(1), take into account any action taken by
the relevant person in response to the warning notice.38
(5) The giving of a warning notice under this section —
(a) does not limit the powers of the Authority under section 11A or
11B; and39
(b) is not required before the Authority may exercise those powers.40
(6) A warning notice issued under this section shall have effect —
(a) for a period of up to 3 years from the date on which it is issued
under subsection (1) and such period shall be specified in the
notice; or
(b) until such time as the Authority is content that any action under
subsection (3) has been completed to its satisfaction.41
(7) The Authority may disclose the circumstances surrounding a warning
notice issued under subsection (1), to—
(a) an employer who currently employs a notified person;
(b) a person who has received an employment application from a
notified person and who, if successful in the application, would
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be required to be a director, key person or controller of a
permitted person,
(c) a company of which a notified person is, or is likely to become an
officer; or
(d) a scheme of the governing body of which the notified person is or
may become a member,
provided that the warning notice is effective in accordance with
subsection (6).42
(8) In subsection (7)—
“notified person” means a person to whom a notice under subsection (1) has
been given that is still effective under subsection (6); and
“officer” means an officer of a company for the purposes of the Company Officers
(Disqualification) Act 2009 (see section 1(2) of that Act).43
12 Directions
[1988/16/ 16(1)]
(1) In the circumstances mentioned in section 11 the Authority may make a
direction —
(a) requiring the governing body, manager or administrator of the
scheme to cease the issue or redemption, or both, of units under
the scheme on a date specified in the direction until a further date
specified in that or another direction;
(b) requiring the governing body of the scheme to instruct the auditor
of the scheme to audit the accounts of the scheme and to submit
them to the Authority within such time as the Authority
specifies;44
(c) requiring the governing body, trustee or fiduciary custodian of
the scheme to wind it up by the date specified in the direction or,
if no date is specified, as soon as is practicable;
(d) requiring any other action which the Authority believes is
necessary to protect the participants or potential participants in
the scheme.45
46
(2) The operation of a direction under subsection (1) which is already in
force is not affected by —
(a) the revocation of —
(i) an authorisation order under paragraph 4 of Schedule 1; or
(ii) a recognition order under paragraph 4 of Schedule 4; or
(b) a direction under paragraph 4 of Schedule 4 that a scheme is to
cease to be recognised under paragraph 1 of Schedule 4.
Section 13 Collective Investment Schemes Act 2008
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(3) A direction under subsection (1) may be given in relation to a scheme in
respect of which —
(a) an authorisation order or a recognition order has been revoked; or
(b) a direction has been made that a scheme is to cease to be
recognised under paragraph 1 of Schedule 4,
if an earlier direction in relation to the scheme under subsection (1) is
already in force at the time of revocation or direction (as the case may
be).
(4) For the purposes of section 11(a), the Authority may take into account
any matter relating to —
(a) the scheme;
(b) the governing body, manager, administrator, trustee, fiduciary
custodian or custodian of the scheme;
(c) a director or controller of the governing body, manager,
administrator, trustee, fiduciary custodian or custodian; or
(d) any person employed by or associated with the governing body,
manager, administrator, trustee, fiduciary custodian or custodian
in connection with the scheme.47
(5) The Authority may —
(a) of its own motion; or
(b) on the application of the governing body, manager, administrator,
trustee, fiduciary custodian or custodian of the scheme,
withdraw or vary a direction given under this section if it appears to the
Authority that it is no longer necessary for the direction to continue in
force or that it should continue in force in a different form.48
13 Appointments
(1) In the circumstances mentioned in section 11 the Authority
may appoint —
(a) a person to advise the scheme on the proper conduct of its affairs;
(b) a person to assume control of the affairs of the scheme.49
(2) A person appointed under subsection (1) has all the powers necessary, to
the exclusion of the governing body, manager or administrator, to advise
or to operate, manage and administer (as the case may be) the affairs of
the scheme in the best interests of the participants and potential
participants.
(3) The powers referred to in subsection (2) include the power to terminate
the business of the scheme.
(4) A person appointed under subsection (1) must —
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(a) when requested by the Authority, supply to the Authority such
information as is specified in the request;50
(b) within 3 months of appointment, or such other period as the
Authority specifies, prepare and supply to the Authority a report
on the affairs of the scheme making, where appropriate,
recommendations in respect of the scheme; and51
(c) if the appointment is not terminated after supplying the report
referred to in paragraph (b), subsequently supply to the Authority
such other information, reports and recommendations as the
Authority specifies.52
(5) A person appointed under subsection (1) is appointed at the expense of
the relevant scheme, and any expenses incurred by the Authority in
respect of the appointment are recoverable from the scheme as a debt
due to the Authority.53
(6) On receipt of any information or report under subsection (4) the
Authority may —
(a) require the scheme to reorganise its affairs in a manner specified
by the Authority;54
(b) if the scheme is a unit trust scheme established under and
governed by the laws of the Island, apply to court for an order
directing the trustee to wind up the scheme;
(c) if the scheme is an open-ended investment company formed or
incorporated under the laws of the Island, apply to court for an
order that the company be wound up in accordance with the
relevant statutory provisions applying to that company;
(d) if the scheme is a partnership governed by the laws of the Island,
apply to court for an order to dissolve the partnership,
and may take such action in respect of the appointment or continued
appointment of the person appointed under subsection (1) as it considers
appropriate.55
(7) Where it considers it necessary or appropriate, and if it is practical to do
so, the Authority may inform the participants of the scheme of any action
it is taking or intending to take under this section.56
(8) The Authority may —
(a) of its own motion; or
(b) on the application of the governing body, manager, administrator,
trustee, fiduciary custodian or custodian of the scheme,
terminate an appointment made under this section if it appears to the
Authority that the appointment is no longer necessary.57
Section 14 Collective Investment Schemes Act 2008
Page 20 AT 7 of 2008 c
14 Notice of directions or appointment
[1988/16/17]
(1) To exercise a power to give a direction under section 12 or to make an
appointment under section 13, the Authority must give written
notice to —
(a) any person comprising the scheme’s governing body who is
resident on the Island; or
(b) the manager or administrator of the scheme.58
(2) Subsection (1) is subject to subsection (5).
(3) Where application is made under section 12(5)(b) or 13(8)(b), if the
Authority refuses to withdraw or vary a direction or to terminate an
appointment, it must give written notice of refusal to each applicant.59
(4) A notice —
(a) giving a direction or making an appointment;
(b) withdrawing or varying a direction otherwise than on application
under section 12(5)(b);
(c) terminating an appointment otherwise than on application under
section 13(8)(b);
(d) refusing to withdraw or vary a direction or to terminate an
appointment on an application under section 12(5)(b) or 13(8)(b),
must state the reasons for which the direction was given, withdrawn or
varied or the appointment was made or terminated or why the
application was refused (as the case may be).
(5) The power to give a direction under section 12 or to make an
appointment under section 13 may be exercised prior to giving written
notice under subsection (1) if the Authority considers that it would be
seriously prejudicial to the interests of the participants in the scheme if
the power is not exercised until written notice is given.60
(6) The Authority may publish notice of any direction, appointment,
withdrawal, variation, termination or refusal mentioned in this section in
one or more newspapers published and circulating in the Island and in
any other manner which appears to it to be necessary for informing the
public.61
(7) A notice under subsection (6) may, if the Authority thinks fit, state the
reasons for which the direction was given, withdrawn or varied or the
appointment was made or terminated or why the application was
refused (as the case may be).62
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15 Application to court
[1988/16/18]
(1) In circumstances where the Authority has power to give a direction
under section 12 or to make an appointment under section 13, it may
apply to court —
(a) for an order —
(i) removing any governing body, manager, administrator,
trustee, fiduciary custodian or custodian of the scheme;
and
(ii) replacing the person or persons removed with a person or
persons nominated by the Authority and whose
appointment does not infringe any other provision of this
Act; or63
(b) if it appears to the Authority that no, or no suitable, person
satisfying the requirements of paragraph (a)(ii) is available, for an
order —
(i) removing any governing body, manager, administrator,
trustee, fiduciary custodian or custodian; and
(ii) appointing a liquidator to wind up the scheme.64
65
(2) On an application under subsection (1) the court may make such order as
it thinks fit.
(3) The court may, on the application of the Authority, rescind an order
referred to in subsection (1)(b) and substitute an order referred to in
subsection (1)(a).66
(4) The Authority must give written notice of the making of an application
under this section to the governing body, manager, administrator,
trustee, fiduciary custodian and custodian of the scheme concerned and
take such steps as it considers appropriate for bringing the making of the
application to the attention of participants.67
(5) Paragraph 3(2) of Schedule 1 does not apply where a liquidator is
appointed by an order made on application under subsection (1)(b).
16 Investigations
[1988/16/19]
(1) The court may, on the application of the Authority, appoint one or more
competent inspectors to investigate and report, in such manner as the
court directs, on the affairs of —
(a) a scheme;
(b) the governing body, manager, administrator, trustee, fiduciary
custodian or custodian of a scheme,
Section 16 Collective Investment Schemes Act 2008
Page 22 AT 7 of 2008 c
if the court is satisfied that it is in the interests of participants to do so or
that the matter is of public concern.68
(2) Sections 134 and 135 of the Companies Act 1931 (powers of inspectors and
proceedings on report by inspectors) apply in relation to an inspector
appointed under this section as they apply in relation to an inspector
appointed under section 134 of that Act, but with the modifications
specified in subsection (3).
(3) In the provisions applied by subsection (2) —
(a) a reference to a company or its affairs is to be construed as a
reference to the scheme under investigation and the affairs
mentioned in subsection (1); and
(b) a reference to a director or officer of the company includes a
reference to any director or officer of the governing body,
manager, administrator, trustee, fiduciary custodian or custodian
of the scheme.
(4) An inspector appointed under this section may, and if so directed by the
court must, make interim reports to the court and, on the conclusion of
the investigation, a final report to the court.
(5) A report under subsection (4) must be in the form which the court
directs.
(6) The court must provide a copy of the report to the Authority.69
(7) The court may, if it thinks fit —
(a) on request and on payment of the prescribed fee, provide a copy
of the report to —
(i) the governing body, manager, administrator, trustee,
fiduciary custodian or custodian of the scheme under
investigation;
(ii) any participant of the scheme;
(iii) any other person whose conduct is referred to in the
report;
(b) cause the report to be published.
Collective Investment Schemes Act 2008 Section 17
c AT 7 of 2008 Page 23
PART 6 – SUPPLEMENTARY
CHAPTER I
Offences and penalties
17 False and misleading statements
[1988/16/25]
A person commits an offence if that person —
(a) furnishes or sends to the Authority for any purpose under this
Act a document which the person knows to be false or misleading
in a material particular; or70
(b) recklessly furnishes or sends to the Authority for any purpose
under this Act a document which is false or misleading in a
material particular; or71
(c) in furnishing information to the Authority for a purpose under
this Act —
(i) makes a statement which the person knows to be false or
misleading in a material particular; or
(ii) recklessly makes a statement which is false or misleading
in a material particular.72
18 Offences and penalties
[1988/16/26(1) and (2)]
(1) A person commits an offence if that person contravenes —
(a) a provision of this Act;
(b) a provision of an order or regulations made under this Act if
contravention of that provision is expressed to be an offence in the
order or regulations.
(2) A governing body, manager, trustee or fiduciary custodian who
contravenes a condition imposed under paragraph 2(2)(b) of Schedule 1
commits an offence.
(3) Sections 20 (injunctions etc) and 26 (actions for damages) (with the
exception of subsection (2)) of the Financial Services Act 2008 apply in
respect of a contravention referred to in this section as they apply in
respect of a contravention referred to in those sections.
(4) A person who commits an offence under this Act or any public
document made under this Act is liable —
(a) on summary conviction to a fine not exceeding £5,000 or to
custody for a term not exceeding 6 months, or to both;
Section 19 Collective Investment Schemes Act 2008
Page 24 AT 7 of 2008 c
(b) on conviction on information, to a fine or to custody for a term not
exceeding 2 years, or to both.
(5) A person is not to be prosecuted for an offence under this Act without
the consent of the Attorney General.
(6) In proceedings brought against a person for an offence under this Act it
is a defence to prove that all reasonable precautions were taken and all
due diligence was exercised to avoid the commission of the offence.
19 Offences by bodies corporate
[1988/16/26(3)]
(1) Subsections (2) to (4) apply where an offence under this Act is committed
by a body corporate and it is proved that the offence —
(a) was committed with the consent or connivance of an officer of the
body; or
(b) was attributable to neglect on the part of an officer of the body.
(2) The officer, as well as the body, commits the offence.
(3) Where an individual is convicted of an offence under this Act by virtue
of subsection (2), that individual is liable to the same penalty as the body.
(4) In this section “officer” includes —
(a) a director or secretary;
(b) a person purporting to act as a director or secretary;
(c) if the affairs of the body are managed by its members, a member;
(d) in relation to a limited liability company constituted under the
Limited Liability Companies Act 1996, a member, the company’s
manager and its registered agent.
19A Civil penalties
(1) If the Authority is satisfied that a relevant person —
(a) has contravened any provision of this Act;
(b) has contravened any prohibition or requirement imposed under
this Act; or
(c) in purported compliance with any such requirement, has
furnished the Authority with false, inaccurate or misleading
information,73
it may require the relevant person to pay a penalty in respect of the
contravention.74
(2) The Authority must give written notice to the relevant person concerned
of any decision under subsection (1), together with a statement of the
reasons for the decision.75
Collective Investment Schemes Act 2008 Section 20
c AT 7 of 2008 Page 25
(3) The Authority may not in respect of any such contravention —
(a) both require a person to pay a penalty under this section and
revoke a licence issued under section 7 of the Financial Services Act
2008 to carry on a regulated activity; or
(b) require a person to pay a penalty under this section if criminal
proceedings have been commenced in respect of the
contravention.76
(4) When setting the amount of a financial penalty, the Authority must have
regard to regulations under subsection (5).77
(5) The Authority must make such regulations as are necessary to give effect
to this section with respect to —
(a) the imposition of financial penalties under it; and
(b) the amount of those penalties.78
(6) Any amount received as a penalty under this section is to be paid into
and form part of the General Revenue of the Island.
(7) In relation to a scheme, for the purposes of this section each of the
following is a relevant person —
(a) the administrator;
(b) the asset manager;
(c) the custodian;
(d) a fiduciary custodian of the scheme’s property;
(e) the investment adviser;
(f) the manager;
(g) the promoter;
(h) a trustee of the property of a unit trust scheme; and
(i) a person of a description prescribed by regulations.79
CHAPTER II
General
20 Guidance
(1) The Authority may give guidance consisting of information and advice
which it considers appropriate in connection with —
(a) the operation of this Act;
(b) matters relating to the Authority’s functions under this Act;80
(c) matters about which it considers desirable to give information or
advice.81
(2) The Authority may —
Section 21 Collective Investment Schemes Act 2008
Page 26 AT 7 of 2008 c
(a) publish its guidance; and
(b) offer copies of its published guidance for sale at a reasonable
price.82
21 Appeals against Authority decisions
83
[1988/16/5A]
(1) For the purposes of this Act there is to be a tribunal known as the
Collective Investment Schemes Tribunal.
(2) The Tribunal is to consist of a chairman and 2 members appointed under
the Tribunals Act 2006.84
(3) A person aggrieved may appeal, in accordance with rules made under
section 8 of the Tribunals Act 2006, against any of the decisions specified
in column 1 of the Table below under the provisions specified in column
2.85
Decision Provision
Direction that person must not be
appointed or continue a member of a
governing body
Section 11A(1) or (2)
Refusal to grant consent that a person be
a member of governing body of scheme
Section 11A(2)
Refusal to revoke, or to vary, a direction Section 11A(6)
Imposition of a prohibition Section 11B(1)
Refusal to revoke or vary a prohibition Section 11D(1)
Variation of a prohibition in terms other
than those sought by the applicant
Section 11D(1)
Giving a warning notice Section 11F(1)
Making a direction Section 12(1)
Withdrawal of, variation of, or refusal to
withdraw or vary. a direction
Section 12(5)
Appointing a person to advise, or assume
control of the affairs of, the scheme
Section 13(1)
Terminating, or refusing to terminate an
appointment referred to in the preceding
entry on an application
Section 13(8)
Imposing a civil penalty Section 19A
Refusing to make an authorisation order Paragraph 2(1) of Schedule 1
Making an authorisation order subject to
conditions
Paragraph 2(2)(b) of Schedule 1
Refusing to approve alterations to a
scheme or a change in the governing
body(or a person comprising the
governing body) or in the manager,
trustee or fiduciary custodian of the
scheme
Paragraph 3(4) of Schedule 1
Revoking an authorisation order Paragraph 4(1) of Schedule 1
Collective Investment Schemes Act 2008 Section 22
c AT 7 of 2008 Page 27
Refusing to revoke an authorisation order Paragraph 4(4) of Schedule 1
Refusing to agree a manager engaging in
other activities
Paragraph 5(2) of Schedule 1
Refusing to approve a proposal Paragraph 2(13) of Schedule 2
Refusing to approve alterations to a
scheme or a change in the governing
body (or any person comprising the
governing body) or in the manager,
trustee or fiduciary custodian of the
scheme
Paragraph 3(3) of Schedule 2
Refusing to recognise a scheme Paragraph 1(4) of Schedule 4
Refusing to make a recognition order Paragraph 2(1) of Schedule 4
Refusing to approve alterations to a
scheme or a change in the governing
body (or any person comprising the
governing body) or in the manager,
trustee or fiduciary custodian of the
scheme
Paragraph 3(2) of Schedule 4
Direction that a scheme cease to be
recognised
Paragraph 4(1) of Schedule 4
Revocation of a recognition order Paragraph 4(1) of Schedule 4
Refusal to direct that a scheme cease to be
recognised or to revoke a recognition
order
Paragraph 4(4) of Schedule 4.86
(4) On the determination of an appeal under this section the Tribunal must
confirm, vary or revoke the decision in question.
(5) The variation or revocation of a decision does not affect the previous
operation of that decision or anything duly done or suffered under it.
(6) Without prejudice to subsection (7), a decision of the Tribunal on an
appeal under this section is binding on the Authority and the applicant.87
(7) An appeal from a decision of the Tribunal lies to the court, in accordance
with rules of court, on a question of law.
22 Public registers
[1988/16/24A]
(1) The Authority must keep at its principal office registers of authorised
schemes, international schemes and recognised schemes containing
particulars and information as are prescribed.88
(2) Any person is entitled to inspect the registers during ordinary office
hours.
Section 23 Collective Investment Schemes Act 2008
Page 28 AT 7 of 2008 c
23 Financial provisions
[1988/16/29]
(1) Unless otherwise recoverable, expenses incurred under this Act by the
Authority or a person appointed under section 16 are to be defrayed out
of money provided by Tynwald.89
(2) Fees received under this Act form part of the General Revenue of the
Island.
CHAPTER III
Subordinate legislation etc
90
A24 Form and content of documents and information
(1) The Authority may determine —
(a) the form and content of any document or information to be
delivered to the Authority; and91
(b) the manner in which documents and information are to be
delivered.92
(2) The Authority must take such steps as appear to it to be reasonable to
draw determinations under this section to the attention of those likely to
be affected by them.93
(3) The power in subsection (1) is not limited by any other provision of this
Act under which the Authority may prescribe —
(a) the form or content of a document or of any information, or
(b) the manner in which it is to be delivered.94
95
24 Orders and regulations
[1988/16/27]
(1) The Authority may make orders and regulations —
(a) in accordance with the provisions of this Act; or
(b) as are necessary to give effect to this Act.96
(2) Orders or regulations may include any of the provisions mentioned in
Schedule 5.
(3) Schedule 5 does not affect the generality of subsection (1).
(4) Orders and regulations may provide for their contravention to be an
offence.
(5) Orders and regulations may exempt any scheme or class of scheme or
any person or class of persons from any of the provisions of this Act.
Collective Investment Schemes Act 2008 Section 24
c AT 7 of 2008 Page 29
(6) Without limiting section 26 of the Interpretation Act 1976, orders and
regulations may provide for —
(a) the circumstances under which the exemption operates;
(b) the conditions subject to which the exemption shall operate;
(c) the circumstances in which the Authority may withdraw the
exemption from a scheme or person.97
(7) The Authority may, on the application or with the consent of any person
to whom an order or regulation applies, direct that the order or
regulation —
(a) does not apply to that person in respect of a particular scheme; or
(b) applies to that person in respect of that scheme but with such
modifications as are specified in the direction.98
(8) The Authority may, on the application or with the consent of the
manager and trustee or manager and fiduciary custodian (as the case
may be) of a particular scheme acting jointly, direct that the order or
regulation —
(a) does not apply to that scheme; or
(b) applies to that scheme but with such modifications as are
specified in the direction.99
(9) Orders and regulations may make provision under which compliance
with or contravention of any specified requirements imposed under the
law of a country prescribed for this purpose is treated as compliance
with or contravention of any specified requirement of this Act.
(10) Orders and regulations are binding on the governing body, manager,
administrator, trustee, fiduciary custodian and custodian of a scheme
independently of the contents of the documents to which they relate.
(11) If orders or regulations conflict with any rule of law (whether at common
law or contained in any enactment) relating to —
(a) the constitution, powers and management of bodies corporate;
(b) the powers and duties of the directors of bodies corporate;
(c) the rights and obligations of members of bodies corporate,
the order or regulations (as the case may be) prevail.
(12) Orders and regulations may contain such supplementary and
transitional provisions as the Authority considers necessary or
expedient.100
(13) Before making an order or regulations under this Act, the Authority
must consult —
(a) the Treasury;
Section 25 Collective Investment Schemes Act 2008
Page 30 AT 7 of 2008 c
(b) such persons or bodies as appear to be representative of interests
likely to be affected; and
(c) such other persons or bodies as the Authority determines.101
102
25 Tynwald procedure
(1) Subject to subsection (2), orders and regulations made under this Act
must be laid before Tynwald as soon as practicable after they are made
and if Tynwald, at the sitting at which they are laid or at the next
following sitting, fails to approve them they cease to have effect.
(2) Subsection (1) does not apply to —
(a) court orders; or
(b) orders made under —
(i) section 30(2);
(ii) paragraphs 2(1) or 4(1) of Schedule 1; or
(iii) paragraphs 2(1) or 4(1)(b) of Schedule 4.
CHAPTER IV
Final provisions
26 Interpretation
[1988/16/31]
(1) In this Act —
“administration
”, in relation to a scheme, includes the following functions
(insofar as they are relevant) —
(a) accounting services;
(b) handling of administrative enquiries from participants;
(c) valuation of assets and pricing of units;
(d) maintenance of the register of participants;
(e) distribution of income;
(f) issues, transfers and redemptions of units; and
(g) record keeping;
“administrator
” means a person appointed by the governing body of a scheme
who is responsible for the conduct of the administration of the scheme;
“advertisement
” includes every form of advertising and includes advertising —
(a) in any form of publication;
(b) by the display of notices;
(c) by means of circulars or other documents;
Collective Investment Schemes Act 2008 Section 26
c AT 7 of 2008 Page 31
(d) by means of business cards;
(e) by an exhibition of photographs or cinematograph films;
(f) by means of broadcasting sounds or pictures (including
transmission by cable), telecommunications or any electronic
media (including by way of email or on a website, webpage or
internet site or page);
“advocate
” includes a person who is registered under the Legal Practitioners
Registration Act 1986;
“asset manager
” means a person appointed by the governing body of a scheme
who is responsible for investment management in accordance with the
investment objectives and policy of the scheme;
“associate
” means —
(a) in relation to an individual —
(i) the father, mother, wife, husband, son, stepson, daughter,
stepdaughter, brother or sister of the individual;
(ii) a body corporate of which that individual is a director; and
(iii) a partner or employee of that individual;
(b) in relation to a body corporate —
(i) a subsidiary of that body corporate; and
(ii) an employee of any such subsidiary;
“authorisation order
” means an order made by the Authority under
paragraph 2(1) of Schedule 1 declaring a scheme to be an authorised
scheme;103
“authorised person
” means a person who is licensed under section 7 of the
Financial Services Act 2008 to carry out the activity to be carried out by
that person under the respective provision of this Act where the
expression is used;
“authorised scheme
” means a scheme authorised under paragraph 2 of
Schedule 1;
“Authority
” means the Isle of Man Financial Services Authority (as established
by article 4 of the Transfer of Functions (Isle of Man Financial Services
Authority) Order 2015);104
“body corporate
” includes a body corporate constituted under the law of a
country or territory outside the Island;
“collective investment scheme
” has the meaning given in section 1 and
“scheme
” is to be construed accordingly;
“Commission
” [Repealed]105
“condition
” includes limitation;
“controller
”, in relation to a person which is a body corporate, means —
Section 26 Collective Investment Schemes Act 2008
Page 32 AT 7 of 2008 c
(a) a managing director of a body corporate of which the person is a
subsidiary;
(b) a chief executive of a body corporate of which the person is a
subsidiary;
(c) an individual in accordance with whose directions or instructions
one or more of the directors of a body corporate of which the
person is a subsidiary are accustomed to act unless the director or
directors are accustomed so to act by reason only that they do so
on advice given by that individual in a professional capacity;
(d) an individual 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 person or of
another body corporate of which the person is a subsidiary;
“court
” means the High Court of Justice of the Isle of Man;
“custodian
” means a person appointed by the governing body of a scheme
who —
(a) is entrusted with the custody of, or procuring safe custody of, the
property of the scheme; or
(b) where prescribed in relation to a scheme or class of schemes,
provides prime brokerage services in relation to the scheme;
“director
” includes —
(a) any person occupying the position of director by whatever name
called;
(b) any person in accordance with whose directions or instructions
one or more of the appointed directors are accustomed to act
unless the appointed director or directors are accustomed so to act
by reason only that they do so on advice given by that person in a
professional capacity; and
(c) in respect of any other body corporate such persons as occupy a
position equivalent to that of director;
“documents constituting the scheme
” means —
(a) the trust deed of a unit trust scheme; or
(b) the memorandum and articles of association of an open-ended
investment company; or
(c) the partnership agreement of a scheme which is a partnership;
and
(d) each material agreement relating to the scheme;
“exempt scheme
” means a scheme within the meaning of Schedule 3;
“fiduciary custodian
” means the person, responsible for the custody of the
property of a scheme constituted as an open-ended investment company
or partnership, who also has fiduciary responsibility for that property;
Collective Investment Schemes Act 2008 Section 26
c AT 7 of 2008 Page 33
“governing body
” means the person or body of persons responsible for the
general supervision of the affairs of the scheme and includes —
(a) the directors of a body corporate which is the trustee of a unit
trust scheme;
(b) the directors of a scheme which is an open-ended investment
company;
(c) the directors of a body corporate which is the general partner of a
scheme which is a partnership;
“group
”, in relation to a body corporate, means that body corporate, any other
body corporate which is its holding company or subsidiary and any
other body corporate which is a subsidiary of that holding company;
“holding company
” is to be construed in accordance with the definition of
subsidiary;
“international scheme
” means a scheme within the meaning of Schedule 2 and
includes a full international scheme and a scheme of any other class of
international scheme;
“investment adviser
” means a person appointed by the governing body of a
scheme who is responsible for providing advice about investments
within the scheme in accordance with the investment objectives and
policy of the scheme;
“manager
” means a person appointed by the governing body of a scheme who
is responsible —
(a) for ensuring that the scheme is managed in accordance with the
documents constituting the scheme and its offering document;
(b) for the conduct of the administration of the scheme; and
(c) in relation to an authorised scheme, for investment management
in accordance with the investment objectives and policy of the
scheme;
“material agreement
” means an agreement in relation to a scheme —
(a) between —
(i) the governing body; and
(ii) the manager, administrator, trustee, fiduciary custodian,
custodian, asset manager or investment adviser; or
(b) which is prescribed as being a material agreement;
“offering document
” means a document, by whatever name called, which is
aimed to inform prospective participants about the scheme;
“open-ended investment company
” means a collective investment scheme
under which —
(a) the property in question belongs beneficially to, and is managed
by or on behalf of, a body corporate having as its purpose the
Section 26 Collective Investment Schemes Act 2008
Page 34 AT 7 of 2008 c
investment of its funds with the aim of spreading investment risk
and giving its members the benefit of the results of the
management of those funds by or on behalf of that body; and
(b) the rights of the participants are represented by shares in or
securities of that body which —
(i) the participants are entitled to have redeemed or
repurchased by, or out of funds provided by, that body; or
(ii) the body ensures can be sold by the participants on an
investment exchange at a price calculated by reference to
the value of the property which the shares or securities
represent;
“order
” means an order made by the Authority under this Act (unless the
context otherwise requires);106
“participant
” has the meaning given in section 1;
“prescribed
” means prescribed by an order or regulations made by the
Authority and “prescribe
” is to be construed accordingly;107
“promoter
” means a person (wherever located) who prepares or distributes, or
who causes the preparation or distribution of, an offering document,
advertisement or marketing material relating to a scheme, but does not
include a professional adviser acting for or on behalf of that person;
“recognised scheme
” means a scheme recognised under paragraphs 1 or 2 of
Schedule 4;
“recognition order
” means an order made by the Authority under
paragraph 2(1) of Schedule 4 declaring a scheme to be a recognised
scheme;108
“regulations
” means regulations made by the Authority under this Act;109
“subsidiary
” means a body corporate (whether or not incorporated under the
Companies Acts 1931 to 2004) that is a subsidiary of another body
corporate (whether or not incorporated under those Acts) and in
determining whether one body corporate is a subsidiary of another the
provisions of section 1 of the Companies Act 1974 apply with the
necessary modifications, and “holding company
” is to be construed
accordingly;
“Tribunal
” means the Collective Investment Schemes Tribunal established
under section 21;
“trustee
” means the person holding the property of a unit trust scheme on trust
for the participants;
“units
” means the rights or interests (however described) of the participants in
a collective investment scheme and include —
(a) units in a unit trust scheme;
Collective Investment Schemes Act 2008 Section 27
c AT 7 of 2008 Page 35
(b) shares or securities in an open-ended investment company; and
(c) interests in a scheme which is a partnership;
“unit trust scheme
” means a collective investment scheme under which the
property in question is held on trust for the participants;
“working day
” means any day other than a Sunday, a Saturday, Christmas Day,
Good Friday or a bank holiday.
(2) The Authority may prescribe services which it considers to be prime
brokerage services for the purposes of this Act.110
(3) Unless the context otherwise requires, in orders or regulations made
under this Act “fund
” means “scheme
”.
27 Amendments
The enactments specified in Schedule 6 are amended in accordance with that
Schedule.
28 Repeals
The enactments specified in Schedule 7 are repealed in accordance with that
Schedule.
29 Transitional and saving provisions
The transitional and saving provisions in Schedule 8 have effect.
30 Short title and commencement
(1) This Act may be cited as the Collective Investment Schemes Act 2008.
(2) This Act comes into operation on such day or days as the Treasury by
order appoints and different days may be appointed for different
provisions and for different purposes.
(3) An order under subsection (2) may make such transitional and saving
provisions as the Treasury considers necessary or expedient.
(4) Without limiting subsection (3), an order under subsection (2) may —
(a) make such transitional adaptations to or modifications of the
provisions brought into operation by the order as the Treasury
considers expedient, including different adaptations or
modifications for different provisions and for different purposes;
(b) include such transitional provisions and saving provisions
modifying the application of any provision of any enactment
pending the commencement of, or pending the doing of anything
under, a provision of this Act as the Treasury considers expedient.
Section 30 Collective Investment Schemes Act 2008
Page 36 AT 7 of 2008 c
(5) An order under subsection (2) must be laid before Tynwald as soon as
practicable after it is made.111
Collective Investment Schemes Act 2008 Schedule 1
c AT 7 of 2008 Page 37
Schedule 1
AUTHORISED SCHEMES
Section 4(1)
1 Applications for authorisation
[1988/16/2]
(1) An application for an authorisation order must be made by —
(a) the governing body or manager of the scheme (or the proposed
governing body or manager); and
(b) the trustee or fiduciary custodian of the scheme (or the proposed
trustee or fiduciary custodian),
acting jointly.
(2) An application under sub-paragraph (1) must —
(a) be made in the manner directed by the Authority;112
(b) contain or be accompanied by the information required by the
Authority to enable it to determine the application; and113
(c) be accompanied by the prescribed fee.
(3) At any time after receiving an application and before determining it the
Authority may require the applicant to furnish additional information.114
(4) Directions and requirements under sub-paragraphs (2) and (3) may differ
as between different applications.
(5) Information furnished under this paragraph must be in the form and
verified in the manner specified by the Authority.115
(6) The applicant may withdraw an application by giving the Authority
written notice at any time before the Authority determines it.116
2 Authorisation orders
[1988/16/3]
(1) The Authority may make an authorisation order if —
(a) it has been furnished with —
(i) an application duly made under paragraph 1 together with
all the information it requires under that paragraph;
(ii) a copy of the documents constituting the scheme; and
(iii) a certificate signed by an advocate to the effect that the
documents constituting the scheme comply with
requirements of regulations relating to their content;
(b) it appears to it that the scheme and the offering document comply
with the requirements of regulations relating to —
Schedule 1
Collective Investment Schemes Act 2008
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(i) the constitution and management of the scheme; and
(ii) its offering document; and
(c) the remaining requirements of this paragraph are satisfied.117
(2) An authorisation order may —
(a) only be made in relation to —
(i) a unit trust scheme established under and governed by the
laws of the Island;
(ii) an open-ended investment company incorporated under
the Companies Acts 1931 to 2004; or
(iii) such other description of scheme as is prescribed; and
(b) include such conditions as the Authority thinks fit.118
(3) The scheme must —
(a) if it is a unit trust, have a manager and trustee who are persons
independent of each other;
(b) if it is an open-ended investment company, have a manager and
fiduciary custodian who are persons who are independent of each
other and of the scheme itself.
(4) The manager must be an authorised person whose licence allows it to act
as a manager of an authorised scheme.119
(5) The trustee or fiduciary custodian must be —
(a) an authorised person whose licence allows it to act as a trustee or
fiduciary custodian of an authorised scheme; or
(b) a body corporate that —
(i) is incorporated in a jurisdiction with which the Authority
has a co-operation agreement that includes provisions in
relation to collective investment schemes;120
(ii) is authorised to act as a trustee or fiduciary custodian for
retail collective investment schemes in its jurisdiction of
incorporation; and
(iii) receives the Authority’s approval to act as such in relation
to authorised schemes.121
122
(6) The name of the scheme must not be undesirable or misleading and the
purposes of the scheme must be reasonably capable of being successfully achieved.
(7) The participants must be entitled to have their units redeemed in
accordance with the scheme at a price related to the net value of the property to which
the units relate and determined in accordance with the scheme.
(8) But a scheme is treated as complying with subparagraph (7) if it requires
the manager to ensure that a participant is able to sell units on an investment exchange
at a price not significantly different from that mentioned in that subparagraph.
Collective Investment Schemes Act 2008 Schedule 1
c AT 7 of 2008 Page 39
(9) The Authority must be satisfied that each person comprising the
governing body is a fit and proper person to act as such.123
(10) In assessing whether a person is fit and proper under subparagraph (9),
the Authority must have regard to the information before it as to the integrity,
competence and financial standing of the person.124
(11) The Authority may publish guidance setting out the criteria it will
normally apply in assessing whether it is satisfied under subparagraph (9).125
(12) The guidance is to be published in such form and manner as the
Authority decides.126
(13) The Authority must inform the applicant of its decision on the
application not later than 6 months after the date on which the application was
received.127
(14) Where the Authority decides not to make an authorisation order it must
give the applicant a written statement of the reasons for the decision and giving
particulars of the right of appeal conferred by section 21.128
(15) The Authority may amend this paragraph by order.129
(16) An order under sub-paragraph (15) may include such consequential,
incidental, supplemental or transitional provisions as appear to the Authority to be
necessary or expedient in consequence of amendments made to this paragraph
(including consequential amendments to other provisions of this Act).130
3 Changes to authorised schemes
[1988/16/7]
(1) The manager of an authorised scheme must give written notice to the
Authority of any proposal —
(a) to alter the scheme;
(b) to replace its trustee or fiduciary custodian; or
(c) to replace its governing body or any person comprising its
governing body.131
(2) Notice given in respect of a proposal to alter the scheme involving a
change in the documents constituting the scheme must be accompanied by a certificate
signed by an advocate to the effect that the change will not affect the compliance of the
documents with regulations relating to —
(a) the constitution and management of the scheme; and
(b) its offering document.
(3) The trustee or fiduciary custodian of an authorised scheme must give
written notice to the Authority of any proposal to replace the manager of the scheme.132
(4) Effect is not to be given to any proposal under this paragraph unless —
(a) the Authority has given its approval to the proposal; or133
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(b) one month, beginning with the date on which the notice was
given under sub-paragraph (1) or (3), has expired without the
Authority having notified the manager, trustee or fiduciary
custodian that the proposal is not approved.134
4 Revocation of authorisation
[1988/16/4 and 5]
(1) In the circumstances mentioned in sub-paragraph (2), the Authority may
revoke an authorisation order.135
(2) The Authority may take action under sub-paragraph (1) if it appears to
it —
(a) that any of the requirements for the making of the order are no
longer satisfied;
(b) that it is not in the interests of the participants or potential
participants that the scheme should continue to be authorised; or
(c) without limiting sub-paragraph (b), that the governing body,
manager, trustee or fiduciary custodian of the scheme —
(i) has contravened any provision of this Act or the Financial
Services Act 2008;
(ii) in purported compliance with any such provision, has
furnished the Authority with false, inaccurate or
misleading information; or136
(iii) has contravened any condition, prohibition, direction or
other requirement imposed under this Act or the Financial
Services Act 2008.137
(3) For the purposes of sub-paragraph (1), the Authority may take into
account any matter relating to —
(a) the scheme;
(b) the governing body, manager, trustee or fiduciary custodian of
the scheme;
(c) a director or controller of the governing body, manager, trustee or
fiduciary custodian; or
(d) any person employed by or associated with the governing body,
manager, trustee or fiduciary custodian in connection with the
scheme.138
(4) The Authority may take action under sub-paragraph (1) at the request of
the governing body, manager, trustee or fiduciary custodian of the scheme; but it may
refuse to do so if it considers that —
(a) any matter concerning the scheme should be investigated before
determining whether the action should be taken; or
(b) the action would not be in the interests of participants.139
Collective Investment Schemes Act 2008 Schedule 1
c AT 7 of 2008 Page 41
(5) Where the Authority decides to take action under sub-paragraph (1)
otherwise than at the request of the governing body, manager, trustee or fiduciary
custodian of the scheme, it must give the governing body, manager and trustee or
fiduciary custodian a written statement of the reasons for the decision and giving
particulars of the right of appeal conferred by section 21.140
(6) A revocation under sub-paragraph (1) may be permanent or may apply
for a specific period of time or until the occurrence of a specified event or until
specified conditions are complied with.
5 Restrictions on activities
[1988/16/8]
(1) An open-ended investment company which is an authorised scheme
must not carry on activities other than for the purposes of or in connection with the
scheme.
(2) The manager of an authorised scheme must not carry on activities other
than those mentioned in sub-paragraph (3) or such other activities as are agreed in
writing by the Authority.141
(3) Those activities are —
(a) acting as manager of a scheme;
(b) activities for the purposes of or in connection with acting as a
manager of a scheme.
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Schedule 2
INTERNATIONAL SCHEMES
Section 4(2)
1 Classes of international scheme
(1) A scheme is an international scheme if —
(a) it is a full international scheme within the meaning of
paragraph 2; or
(b) it is a scheme of a class of international scheme prescribed by
regulations made under paragraph 4(1).
2 Full international schemes
[1988/16/11(1) to (6)]
(1) A scheme is a full international scheme if —
(a) the documents constituting the scheme and its offering document
each state that it is an international scheme or a full international
scheme;
(b) it complies with regulations relating to full international schemes;
and
(c) the remaining requirements of this paragraph are satisfied.
(2) A full international scheme must be —
(a) a unit trust scheme established under and governed by the laws of
the Island;
(b) an open-ended investment company formed or incorporated
under —
(i) the Companies Acts 1931 to 2004; or
(ii) the Companies Act 2006; or
(c) a limited partnership registered in the Island under Part II of the
Partnership Act 1909; or
(d) such other description of scheme as is prescribed.
(3) A full international scheme must —
(a) if it is a unit trust scheme, have a manager and trustee who are
different persons;
(b) if it is an open-ended investment company or a partnership, have
a manager and fiduciary custodian who are different persons.
(4) The name of the scheme must not be undesirable or misleading.
(5) The manager and the trustee or fiduciary custodian must not be
prohibited from acting as manager, trustee or fiduciary custodian (as the case may be)
by or under any enactment.
Collective Investment Schemes Act 2008 Schedule 2
c AT 7 of 2008 Page 43
(6) The manager must be an authorised person.
(7) The trustee or fiduciary custodian must be —
(a) an authorised person; or
(b) authorised to act as trustee or fiduciary custodian (as the case may
be) of a collective investment scheme under the law of any
country or territory prescribed for the purpose of this paragraph.
(8) The Authority must be satisfied that each person comprising the
governing body is a fit and proper person to act as such.142
(9) In assessing whether a person is fit and proper under subparagraph (8),
the Authority must have regard to the information before it as to the integrity,
competence and financial standing of the person.143
(10) The Authority may publish guidance setting out the criteria it will
normally apply in assessing whether it is satisfied under subparagraph (8).144
(11) The guidance is to be published in such form and manner as the
Authority decides.145
(12) A person proposing to be appointed or act as a manager of a full
international scheme must give written notice to the Authority, containing such
particulars as are prescribed, not less than 3 months before the intended appointment
or such shorter period as the Authority agrees to in writing.146
(13) Effect is not to be given to a proposal under subparagraph (12) unless —
(a) the Authority has approved the proposal; or147
(b) 3 months, beginning with the date on which the notice was given
under subparagraph (12), have expired without the Authority
having notified the proposed manager that the proposal is not
approved.148
(14) Regulations may extend or restrict the requirements of this paragraph.
3 Changes to full international schemes
(1) The manager of a full international scheme must give written notice to
the Authority of any proposal —
(a) to alter the scheme;
(b) to replace its trustee or fiduciary custodian;
(c) to replace its governing body or any person comprising its
governing body.149
(2) The trustee or fiduciary custodian of a full international scheme must
give written notice to the Authority of any proposal to replace the manager of the
scheme.150
(3) Effect is not to be given to any proposal under sub-paragraph (1) or (2)
unless —
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(a) the Authority has given its approval —
(i) for the manager to continue to act in relation to the scheme
to be altered in accordance with a proposal under sub-
paragraph (1)(a); or
(ii) to a proposal under sub-paragraph (1)(b), (1)(c) or (2); or151
(b) one month, beginning with the date on which the notice was
given under sub-paragraph (1) or (2), has expired without the
Authority having notified the manager, trustee or fiduciary
custodian that the proposal is not approved.152
(4) A person proposing to cease to be appointed or act as manager of a full
international scheme must give written notice to the Authority, containing such
particulars as are prescribed, not less than 3 months before the intended cessation or
such shorter period as the Authority agrees to in writing.153
(5) Effect is not to be given to a proposal under sub-paragraph (4) unless —
(a) the Authority has approved the proposal; or154
(b) 3 months, beginning with the date on which the notice was given
under sub-paragraph (4), has expired without the Authority
having notified the manager that the proposal is not approved.155
4 Other classes of international scheme
(1) Other classes of international scheme and requirements and
arrangements relating to such classes of scheme may be prescribed by regulations.
(2) A scheme is an international scheme of a class prescribed in sub-
paragraph (1) if —
(a) the documents constituting the scheme and its offering document
each state that it is an international scheme of that class;
(b) it complies with regulations relating to international schemes of
that class; and
(c) the remaining requirements of this paragraph are satisfied.
(3) An international scheme of a class prescribed in sub-paragraph (1)
must be —
(a) a unit trust scheme established under and governed by the laws of
the Island;
(b) an open-ended investment company formed or incorporated
under —
(i) the Companies Acts 1931 to 2004; or
(ii) the Companies Act 2006;
(c) a limited partnership registered in the Island under Part II of the
Partnership Act 1909; or
(d) such other description of scheme as is prescribed.
Collective Investment Schemes Act 2008 Schedule 2
c AT 7 of 2008 Page 45
(4) The name of the scheme must not be undesirable or misleading.
(5) Unless otherwise specified in regulations, the manager or administrator
of an international scheme which is of a class prescribed in sub-paragraph (1) must
notify the Authority in writing of the scheme’s establishment within 10 working days
of establishment.156
(6) Regulations may extend or restrict the requirements of this paragraph.
5 Changes to other international schemes
(1) The manager or administrator of an international scheme which is of a
class prescribed in paragraph 4 must give written notice to the Authority of any
material changes to the scheme or parties to the scheme within 10 working days of that
change taking effect.157
(2) The Authority may give guidance setting out changes which it considers
to be material for the purposes of this paragraph or may otherwise prescribe changes
which it considers to be material.158
(3) The guidance may be published in such form or manner as the Authority
decides.159
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Schedule 3
EXEMPT SCHEMES
Section 4(3)
1 Exempt schemes
[1988/16/11(7) to (10)]
(1) A scheme is an exempt scheme if —
(a) it has less than 50 participants;
(b) the documents constituting the scheme —
(i) prohibit the making of an invitation in any part of the
world to the public or any section of it to become or offer
to become participants in the scheme; and
(ii) do not imply that the scheme is regulated under this Act or
otherwise; and
(c) it complies with the requirements of sub-paragraph (2).
(2) To comply with this subparagraph the scheme must be —
(a) a unit trust scheme established under and governed by the laws of
the Island;
(b) an open-ended investment company formed or incorporated
under —
(i) the Companies Acts 1931 to 2004; or
(ii) the Companies Act 2006;
(c) a limited partnership registered in the Island under Part II of the
Partnership Act 1909; or
(d) such other description of scheme as is prescribed.
(3) The exemption provided by sub-paragraph (1) does not apply to a
scheme where units are held by participants as a result of an invitation in any part of
the world to the public or any section of it by any person.
(4) The following are not to be treated as invitations to the public or a
section of the public —
(a) invitations issued to existing participants in a scheme inviting
them to participate further in that scheme;
(b) invitations to persons whose ordinary business involves the
acquisition and disposal of property of the same kind as the
property, or a substantial part of the property, to which the
scheme relates;
(c) invitations which are permitted by regulations.
(5) Regulations may extend or restrict the requirements of this paragraph.
Collective Investment Schemes Act 2008 Schedule 4
c AT 7 of 2008 Page 47
Schedule 4
RECOGNISED SCHEMES
Section 4(4)
1 Schemes authorised in designated countries
[1988/16/12]
(1) Subject to sub-paragraph (4), a collective investment scheme which is
authorised under the law of a designated country or territory outside the Island is a
recognised scheme if the scheme is of a class specified by order.160
(2) In this paragraph, “designated country or territory” means the United
Kingdom and any other country or territory designated for the purposes of this
paragraph by order.
(3) The Authority must not make an order under sub-paragraph (1) or (2)
unless it is satisfied that adequate protection is afforded to participants.161
(4) A scheme may not be a recognised scheme —
(a) unless the governing body of the scheme gives written notice to
the Authority that the governing body wishes it to be recognised;
or162
(b) if, within such period from receiving the notice as is prescribed,
the Authority notifies the governing body that the scheme is not
to be recognised.163
(5) The notice given under sub-paragraph (4)(a) must —
(a) contain the name and address of one or more persons in the
Island authorised to accept on behalf of the governing body any
process, notice or other documents required or authorised to be
served on the governing body under this Act; and
(b) contain or be accompanied by such information and documents as
are prescribed; and
(c) be accompanied by the prescribed fee.
(6) Orders and regulations may make provision under which compliance
with a requirement imposed under the law of a designated country or territory is
treated as compliance with a requirement of the order or regulations.
2 Individually recognised schemes
[1988/16/ 13(1) to (8)]
(1) The Authority, on the application of the governing body of a scheme —
(a) which is authorised in a country or territory outside the Island;164
(b) which is not authorised in a country or territory designated for
the purposes of paragraph 1 or, if it is so authorised, is not of a
class specified in an order under paragraph 1(1); and165
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(c) which appears to the Authority to satisfy the remaining
provisions of this paragraph,166
may make a recognition order.167
(2) The scheme must afford adequate protection to participants.
(3) The arrangements for the scheme’s constitution and management must
be adequate.
(4) In determining the matters mentioned in sub-paragraphs (2) and (3), the
Authority must have regard to any matters which are the subject of regulations
applicable in relation to comparable authorised schemes.168
(5) The manager must be a body corporate or the scheme must take the form
of an open-ended investment company.
(6) Subject to sub-paragraph (7), any governing body, manager, trustee or
fiduciary custodian must be fit and proper to act as governing body, manager, trustee
or fiduciary custodian (as the case may be); and for that purpose the Authority may
take into account any matter relating to —
(a) any director or controller of the governing body, manager, trustee
or fiduciary custodian;
(b) any other body corporate in the same group as the governing
body, manager, trustee or fiduciary custodian and any director or
controller of that other body;
(c) any person who is or will be employed by or associated with the
governing body, manager, trustee or fiduciary custodian for the
purposes of the scheme.169
(7) Sub-paragraph (6) does not apply to a governing body, manager, trustee
or fiduciary custodian who is an authorised person and who is not prohibited from
acting as governing body, manager, trustee or fiduciary custodian (as the case may be)
by any enactment.
(8) The governing body must have a representative in the Island who is an
authorised person and has power to act generally for the governing body and to accept
service of notices and other documents on its behalf.
(9) The name of the scheme must not be undesirable or misleading and the
purposes of the scheme must be reasonably capable of being successfully achieved.
(10) The participants must be entitled to have their units redeemed in
accordance with the scheme at a price related to the net value of the property to which
the units relate and determined in accordance with the scheme.
(11) But a scheme is to be treated as complying with sub-paragraph (10) if it
requires the governing body to ensure that a participant is able to sell units on an
investment exchange at a price not significantly different from that mentioned in that
subparagraph.
Collective Investment Schemes Act 2008 Schedule 4
c AT 7 of 2008 Page 49
(12) Paragraph 1(2) to (6) of Schedule 1 applies also to an application under
this paragraph.
(13) Where the Authority decides not to make a recognition order it must
give the governing body a written statement of the reasons for the decision and giving
particulars of the right of appeal conferred by section 21.170
(14) Regulations relating to offering documents have the same effect in
relation to schemes recognised under this paragraph as they have in relation to
authorised schemes.
3 Changes to individually recognised schemes
[1988/16/13(9)]
(1) The governing body of a scheme recognised under paragraph 2 must
give written notice to the Authority of any proposal —
(a) to alter the scheme; or
(b) to replace its governing body (or any person comprising its
governing body), manager, trustee or fiduciary custodian.171
(2) Effect is not to be given to any proposal under sub-paragraph (1)
unless —
(a) the Authority has given its approval to the proposal; or172
(b) one month, beginning with the date on which the notice was
given, has expired without the Authority having notified the
governing body that the proposal is not approved.173
4 Revocation of recognition
[1988/16/4 and 5]
(1) In the circumstances mentioned in sub-paragraph (2), the
Authority may —
(a) direct that a scheme is to cease to be recognised by virtue of
paragraph 1; or
(b) revoke a recognition order made under paragraph 2.174
(2) The Authority may take action under sub-paragraph (1) if it appears to
it —
(a) that the scheme is no longer of a class specified by an order under
paragraph 1(1);
(b) that the country or territory where the scheme is authorised is no
longer a designated country or territory for the purposes of
paragraph 1(2);
(c) that any of the requirements for the making of the recognition
order are no longer satisfied;
(d) that it is not in the interests of the participants or potential
participants that the scheme should continue to be recognised; or
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(e) without limiting subparagraph (d), that the governing body,
manager, trustee, fiduciary custodian or custodian of the
scheme —
(i) has contravened any provision of this Act or the Financial
Services Act 2008;
(ii) in purported compliance with any such provision, has
furnished the Authority with false, inaccurate or
misleading information; or175
(iii) has contravened any condition, prohibition, direction or
other requirement imposed under this Act or the Financial
Services Act 2008.176
(3) For the purposes of sub-paragraph (1), the Authority may take into
account any matter relating to —
(a) the scheme;
(b) the governing body, manager, trustee, fiduciary custodian or
custodian of the scheme;
(c) any director or controller of the governing body, manager, trustee,
fiduciary custodian or custodian; or
(d) any person employed by or associated with the governing body,
manager, trustee, fiduciary custodian or custodian in connection
with the scheme.177
(4) The Authority may take action under sub-paragraph (1) at the request of
the governing body, manager, trustee, fiduciary custodian or custodian of the scheme;
but it may refuse to do so if it considers that —
(a) any matter concerning the scheme should be investigated before
determining whether the action should be taken; or
(b) the action would not be in the interests of participants.178
(5) Where the Authority decides to take action under sub-paragraph (1)
otherwise than at the request of the governing body, manager, trustee, fiduciary
custodian or custodian of the scheme, it must give the governing body, manager and
trustee, fiduciary custodian or custodian a written statement of the reasons for the
decision and giving particulars of the right of appeal conferred by section 21.179
(6) A revocation or direction under sub-paragraph (1) may be permanent or
may apply for a specific period of time or until the occurrence of a specified event or
until specified conditions are complied with.
Collective Investment Schemes Act 2008 Schedule 4
c AT 7 of 2008 Page 51
5 Facilities and information in the Island
[1988/16/15]
(1) Regulations may require governing bodies of recognised schemes to
maintain in the Island such facilities as the Authority considers desirable in the
interests of participants and as are prescribed.180
(1A) Regulations may prescribe information which all recognised schemes, or
all recognised schemes of a particular description, must give in any relevant
communication.181
(2) The Authority may by notice in writing require the governing body of a
recognised scheme to include such explanatory information as is specified in the notice
in any relevant communication.182
(3) In this paragraph “relevant communication” means any advertisement
or other document or communication —
(a) naming the scheme; and
(b) relating to the promotion of the scheme,
which is issued, or caused to be issued, in the Island by the governing body.183
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Schedule 5
SUBORDINATE LEGISLATION
Section 24(2) [1988/16/6 and 10]
PART 1 – CONSTITUTION AND MANAGEMENT
1. Provisions as to —
(a) the constitution and management of any scheme;
(b) the constitution, powers and duties of the promoter, governing
body, manager, administrator, trustee, fiduciary custodian,
custodian or asset manager of any scheme;
(c) the documents constituting a scheme;
(d) the submission to the Authority by the governing body, manager,
administrator, trustee, fiduciary custodian or custodian of
information (including, but not limited to, accounting and
statistical information), statements, returns, reports or certificates
which relate to —
(i) the scheme;
(ii) its promoter, governing body, manager, administrator,
trustee, fiduciary custodian, custodian or asset manager;
(iii) the affairs of it or any of them;184
(e) the time within which, and the occasions when (including on a
request by the Authority), information or documents required to
be produced to the Authority under paragraph (d) is to be
produced;185
(f) the form, content and verification of any information or document
required to be produced to the Authority under paragraph (c) or
(d);186
(g) the powers and duties of the directors of the governing body,
manager, administrator, trustee, fiduciary custodian or custodian
which is a body corporate;
(h) the payment by the scheme, governing body, manager,
administrator, trustee, fiduciary custodian or custodian of such
application and periodical fees as are prescribed;
(i) the circumstances, times and occasions when the functions
of the governing body, manager, administrator, trustee,
fiduciary custodian or custodian of a scheme may be
delegated;
(j) the management of potential and actual conflicts of interests
between any of the following —
Collective Investment Schemes Act 2008 Schedule 5
c AT 7 of 2008 Page 53
(i) persons acting as manager, administrator, trustee,
fiduciary custodian or custodian of a scheme;
(ii) other persons acting as manager, administrator, trustee,
fiduciary custodian or custodian of that scheme;
(iii) participants of a scheme;
(iv) other participants of that scheme;
(v) the scheme itself;
(k) the persons or class of persons who may be participants in a
scheme (including the requirement for participants to satisfy
prescribed criteria in order to become eligible to participate in a
scheme);
(l) the rights and obligations of participants of any scheme; and
(m) the winding up of any scheme.
2. Provisions —
(a) as to contribution levels by participants (including requirements
for minimum levels of contribution);
(b) as to the valuation of the property of a scheme;
(c) as to the issue and redemption of units under a scheme;
(d) as to the expenses of a scheme and the means of meeting them;
(e) for the appointment, removal, powers and duties of an auditor of
a scheme;
(f) prescribing who may act as auditor of a scheme and the
qualifications an auditor must have;
(g) requiring an auditor to hold a policy of professional indemnity
insurance in a prescribed form, indemnifying the auditor to such
sum, in such manner, in respect of such matters and valid for such
period as is prescribed;
(h) restricting or regulating the investment and borrowing powers
exercisable in relation to a scheme;
(i) requiring the keeping of records with respect to the transactions
and financial position of the scheme, for the keeping of records in
the Island and for the inspection of records;
(j) for the preparation of accounts and other financial records of a
scheme, their form, content, inspection and audit and the
submission of copies or extracts to the Authority and to
participants at such times and on such occasions as are
prescribed;187
(k) requiring the provision of information to the Authority and to
participants to supplement the information provided under
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paragraph (j) at such times and on such occasions as are
prescribed;188
(l) requiring the preparation of periodical reports concerning a
scheme and the furnishing of those reports to the Authority and
to participants; and189
(m) as to the amendment of any scheme.
3. Provisions relating to the preparation and auditing of accounts of schemes may
require compliance with standards or the adoption of practices recommended by a
prescribed body and may, in particular, require compliance with standards or the
adoption of practices recommended by that body from time to time (that is, after as
well as before the provisions are made).
4. Provisions as to the contents of the documents constituting the scheme may
require any of the matters mentioned in paragraph 1 or 2 to be dealt with in such
documents.
PART 2 – OFFERING DOCUMENT
5. Provisions requiring the governing body of a scheme to —
(a) submit to the Authority; and190
(b) publish or make available to the public on request,
an offering document containing such information about the
scheme and complying with such requirements as are prescribed.
6. Provisions requiring the governing body of a scheme to submit and publish or
make available a revised or further offering document if —
(a) there is a significant change affecting any matter contained in the
offering document previously published or made available and
which is required to be reflected in a revised or further document;
or
(b) a significant new matter arises the inclusion of information in
respect of which would have been required in a previous offering
document if it had arisen when that document was prepared.
7. Provisions requiring the manager or administrator of a scheme to notify the
Authority if there is a significant change or a significant new matter arises which
requires the submission, publication or making available of a further or revised
offering document but the governing body refuses to prepare such document.191
8. Provisions requiring the payment of compensation by the person who is treated
as responsible for the offering document to a person —
(a) who is or has agreed to become a participant in the scheme; and
Collective Investment Schemes Act 2008 Schedule 6
c AT 7 of 2008 Page 55
(b) has suffered loss as a result of —
(i) an untrue or misleading statement in that document; or
(ii) the omission from that document of a matter required to be
included.
PART 3 – ADVERTISEMENTS
9. Provisions regulating the issue, form and content of advertisements and other
documents relating to the promotion of schemes and in particular —
(a) prohibiting the issue of advertisements —
(i) in respect of schemes or classes of scheme;
(ii) by persons or classes of persons; and
(b) as to matters which must be, or which must not be, included in
advertisements.
PART 4 – SUBMISSION OF INFORMATION
10. Provisions as to the method of submission of information and documentation to
the Authority under this Act.192
Schedule 6
AMENDMENT OF ENACTMENTS
Section 27
[Sch 6 amends the following Acts —
Partnership Act 1909 q.v.
Stock Transfer Act 1965 q.v.
Income Tax Act 1970 q.v.
Legal Aid Act 1986 q.v.
Income Tax Act 1989 q.v.
Companies Act 1992 q.v.
Value Added Tax Act 1996 q.v.
Fair Trading Act 1996 q.v.
Companies (Transfer of Domicile) Act 1998 q.v.
Retirement Benefits Schemes Act 2000 q.v.
Trustee Act 2001 q.v.
Tribunals Act 2006 q.v.
Companies Act 2006 q.v.
Schedule 6
Collective Investment Schemes Act 2008
Page 56 AT 7 of 2008 c
Financial Services Act 2008 q.v.]
Collective Investment Schemes Act 2008 Schedule 7
c AT 7 of 2008 Page 57
Schedule 7
REPEAL OF ENACTMENTS
Section 28
[Sch 7 repeals the following Acts in part —
Limited Liability Companies and Financial Supervision (Amendment)
Act 1999
Retirement Benefits Schemes Act 2000
Fair Trading (Amendment) Act 2001
Companies, etc (Amendment) Act 2003
Fiduciary Services Act 2005
Tribunals Act 2006
Companies Act 2006
and the following Act wholly —
Financial Supervision Act 1988.]
Schedule 8
TRANSITIONAL AND SAVING PROVISIONS
Section 29
1. When section 4(1) comes into operation an existing scheme which is an
authorised scheme (within the meaning of section 31 of the Financial Supervision Act
1988) continues to be an authorised scheme (within the meaning of Schedule 1).
2. Subject to paragraph 3, when section 4(2) comes into operation an existing
scheme —
(a) which is an international scheme (within the meaning of
section 11 of the Financial Supervision Act 1988); and
(b) which is not exempted under section 11(7) of the Financial
Supervision Act 1988,
continues to be an international scheme (within the meaning of
Schedule 2), whether or not it complies with section 2(3) or
paragraphs 2(2) or 4(3) of Schedule 2.
3. Notwithstanding paragraph 2, when section 4(2) comes into operation an
existing scheme —
(a) which is an international scheme (within the meaning of
section 11 of the Financial Supervision Act 1988); and
(b) to which section 11(1) to (6) of the Financial Supervision Act 1988
does not apply by reason of the operation of paragraph 4 of the
Schedule 8
Collective Investment Schemes Act 2008
Page 58 AT 7 of 2008 c
Financial Supervision (Overseas Funds)(Exemption) Order 2003
(S.D. 76/03),
ceases to be an international scheme (within the meaning of
Schedule 2).
4. When section 4(3) comes into operation an existing scheme which is exempted
under section 11(7) of the Financial Supervision Act 1988 from the requirements of
section 11 of that Act, continues to be a scheme which is an exempt scheme under
Schedule 3, whether or not it complies with section 2(3) or paragraph 1(2) of
Schedule 3.
5. When section 4(4) comes into operation an existing scheme which is a
recognised scheme (within the meaning of section 31 of the Financial Supervision Act
1988) continues to be a recognised scheme (within the meaning of Schedule 4).
6. Paragraphs 1 to 5 do not affect the operation of section 16 of the Interpretation
Act 1976 (which relates to the effect of substituting provisions).
7. Paragraphs 1 to 5 are subject to regulations made under paragraph 8.
8. (1) The Authority may make regulations to give further effect to
paragraphs 1 to 5.193
(2) The regulations may prescribe that, when a provision of section 4 comes
into operation, a particular scheme or class of scheme is to be classified otherwise than
in accordance with paragraphs 1 to 5.
9. (1) The repeal by section 28 and Schedule 7 of the provisions of any
enactment do not affect in any way the amendment of other enactments (including
savings, transitional provisions and modifications relating to those enactments) made
by those provisions or the operation or effect of those amendments.
(2) In subparagraph (1), “amendment” includes the insertion of words or
expressions and the substitution of other words or expressions.
(3) This paragraph does not limit the operation of sections 3 and 15 of the
Interpretation Act 1976.
Collective Investment Schemes Act 2008 Endnotes
c AT 7 of 2008 Page 59
ENDNOTES
Table of Legislation History
Legislation Year and No Commencement
Table of Renumbered Provisions
Original Current
Table of Endnote References
1
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 2
S 6 heading amended by SD2015/0090 as amended by SD2015/0276. 3
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 4
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 5
S 10 heading amended by SD2015/0090 as amended by SD2015/0276. 6
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 7
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 8
Heading to Part 5 substituted by Financial Services (Miscellaneous Amendments) Act
2013 s 27. 9
Heading substituted by Financial Services (Miscellaneous Amendments) Act 2013 s 28
and amended by SD2015/0090 as amended by SD2015/0276. 10
Subpara (ii) amended by SD2015/0090 as amended by SD2015/0276. 11
S 11 amended by Financial Services (Miscellaneous Amendments) Act 2013 s 28 and
by SD2015/0090 as amended by SD2015/0276. 12
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 13
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 14
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 15
Subpara (ii) amended by SD2015/0090 as amended by SD2015/0276. 16
Subpara (iii) amended by SD2015/0090 as amended by SD2015/0276. 17
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 18
Subs (6) amended by SD2015/0090 as amended by SD2015/0276. 19
S 11A inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 20
Subs (1) amended by SD2015/0090 as amended by SD2015/0276.
Endnotes Collective Investment Schemes Act 2008
Page 60 AT 7 of 2008 c
21
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 22
S 11B inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 23
Printed as “to” original Act. 24
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 25
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 26
Para (d) amended by SD2015/0090 as amended by SD2015/0276. 27
Para (e) amended by SD2015/0090 as amended by SD2015/0276. 28
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 29
S 11C inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 30
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 31
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 32
S 11D inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 33
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 34
S 11E inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 35
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 36
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 37
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 38
Subs (4) amended by SD2015/0090 as amended by SD2015/0276. 39
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 40
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 41
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 42
Subs (7) amended by SD2015/0090 as amended by SD2015/0276. 43
S 11F inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 29. 44
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 45
Para (d) amended by SD2015/0090 as amended by SD2015/0276. 46
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 47
Subs (4) amended by SD2015/0090 as amended by SD2015/0276. 48
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 49
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 50
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 51
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 52
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 53
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 54
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 55
Subs (6) amended by SD2015/0090 as amended by SD2015/0276. 56
Subs (7) amended by SD2015/0090 as amended by SD2015/0276. 57
Subs (8) amended by SD2015/0090 as amended by SD2015/0276. 58
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 59
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 60
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 61
Subs (6) amended by SD2015/0090 as amended by SD2015/0276.
Collective Investment Schemes Act 2008 Endnotes
c AT 7 of 2008 Page 61
62
Subs (7) amended by SD2015/0090 as amended by SD2015/0276. 63
Subpara (ii) amended by SD2015/0090 as amended by SD2015/0276. 64
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 65
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 66
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 67
Subs (4) amended by SD2015/0090 as amended by SD2015/0276. 68
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 69
Subs (6) amended by SD2015/0090 as amended by SD2015/0276. 70
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 71
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 72
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 73
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 74
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 75
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 76
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 77
Subs (4) amended by SD2015/0090 as amended by SD2015/0276. 78
Subs (5) amended by SD2015/0090 as amended by SD2015/0276. 79
S 19A inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 30. 80
Para (b) amended by SD2015/0090 as amended by SD2015/0276. 81
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 82
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 83
S 21 heading amended by SD2015/0090 as amended by SD2015/0276. 84
Subs (2) substituted by Financial Services (Miscellaneous Amendments) Act 2013 s
31. 85
Subs (3) substituted by Financial Services (Miscellaneous Amendments) Act 2013 s
31. 86
Table inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 31. 87
Subs (6) amended by SD2015/0090 as amended by SD2015/0276. 88
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 89
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 90
Chapter III heading amended by Financial Services (Miscellaneous Amendments)
Act 2013 s 32. 91
Para (a) amended by SD2015/0090 as amended by SD2015/0276. 92
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 93
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 94
Subs (3) amended by SD2015/0090 as amended by SD2015/0276. 95
S A24 inserted by Financial Services (Miscellaneous Amendments) Act 2013 s 32. 96
Subs (1) amended by SD2015/0090 as amended by SD2015/0276. 97
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 98
Subs (7) amended by SD2015/0090 as amended by SD2015/0276. 99
Subs (8) amended by SD2015/0090 as amended by SD2015/0276. 100
Subs (12) amended by SD2015/0090 as amended by SD2015/0276.
Endnotes Collective Investment Schemes Act 2008
Page 62 AT 7 of 2008 c
101
Para (c) amended by SD2015/0090 as amended by SD2015/0276. 102
Subs (13) amended by SD2015/0090 as amended by SD2015/0276. 103
Definition of “authorisation order” amended by SD2015/0090 as amended by
SD2015/0276. 104
Definition of “Authority” inserted by SD2015/0090 as amended by SD2015/0276. 105
Definition of “Commission” repealed by SD2015/0090 as amended by SD2015/0276. 106
Definition of “order” amended by SD2015/0090 as amended by SD2015/0276. 107
Definition of “prescribed” amended by SD2015/0090 as amended by SD2015/0276. 108
Definition of “recognition order” amended by SD2015/0090 as amended by
SD2015/0276. 109
Definition of “regulations” amended by SD2015/0090 as amended by SD2015/0276. 110
Subs (2) amended by SD2015/0090 as amended by SD2015/0276. 111
ADO (whole Act) 1/8/2008 (SD461/08) with savings. Ss 1(5) and 24 operative on the
making of SD461/08 - 19/6/2008. 112
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 113
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 114
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 115
Subpara (5) amended by SD2015/0090 as amended by SD2015/0276. 116
Subpara (6) amended by SD2015/0090 as amended by SD2015/0276. 117
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 118
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 119
Subpara (4) substituted by SD412/13. 120
Subitem (i) amended by SD2015/0090 as amended by SD2015/0276. 121
Subitem (iii) amended by SD2015/0090 as amended by SD2015/0276. 122
Subpara (5) substituted by SD412/13. 123
Subpara (9) amended by SD2015/0090 as amended by SD2015/0276. 124
Subpara (10) amended by SD2015/0090 as amended by SD2015/0276. 125
Subpara (11) amended by SD2015/0090 as amended by SD2015/0276. 126
Subpara (12) amended by SD2015/0090 as amended by SD2015/0276. 127
Subpara (13) amended by SD2015/0090 as amended by SD2015/0276. 128
Subpara (14) amended by SD2015/0090 as amended by SD2015/0276. 129
Subpara (15) inserted by Financial Services (Miscellaneous Amendments) Act 2013 s
33 and amended by SD2015/0090 as amended by SD2015/0276. 130
Subpara (16) inserted by Financial Services (Miscellaneous Amendments) Act 2013 s
33 and amended by SD2015/0090 as amended by SD2015/0276. 131
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 132
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 133
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 134
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 135
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 136
Subitem (2) amended by SD2015/0090 as amended by SD2015/0276. 137
Subpara (2) amended by SD2015/0090 as amended by SD2015/0276.
Collective Investment Schemes Act 2008 Endnotes
c AT 7 of 2008 Page 63
138
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 139
Subpara (4) amended by SD2015/0090 as amended by SD2015/0276. 140
Subpara (5) amended by SD2015/0090 as amended by SD2015/0276. 141
Subpara (2) amended by SD2015/0090 as amended by SD2015/0276. 142
Subpara (8) amended by SD2015/0090 as amended by SD2015/0276. 143
Subpara (9) amended by SD2015/0090 as amended by SD2015/0276. 144
Subpara (10) amended by SD2015/0090 as amended by SD2015/0276. 145
Subpara (11) amended by SD2015/0090 as amended by SD2015/0276. 146
Subpara (12) amended by SD2015/0090 as amended by SD2015/0276. 147
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 148
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 149
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 150
Subpara (2) amended by SD2015/0090 as amended by SD2015/0276. 151
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 152
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 153
Subpara (4) amended by SD2015/0090 as amended by SD2015/0276. 154
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 155
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 156
Subpara (5) amended by SD2015/0090 as amended by SD2015/0276. 157
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 158
Subpara (2) amended by SD2015/0090 as amended by SD2015/0276. 159
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 160
Subpara (1) amended by Financial Services (Miscellaneous Amendments) Act 2013 s
34. 161
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 162
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 163
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 164
Item (a) amended by Financial Services (Miscellaneous Amendments) Act 2013 s 34. 165
Item (b) amended by Financial Services (Miscellaneous Amendments) Act 2013 s 34. 166
Item (c) amended by SD2015/0090 as amended by SD2015/0276. 167
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 168
Subpara (4) amended by SD2015/0090 as amended by SD2015/0276. 169
Subpara (6) amended by SD2015/0090 as amended by SD2015/0276. 170
Subpara (13) amended by SD2015/0090 as amended by SD2015/0276. 171
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 172
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 173
Item (b) amended by SD2015/0090 as amended by SD2015/0276. 174
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 175
Subitem (ii) amended by SD2015/0090 as amended by SD2015/0276. 176
Subpara (2) amended by SD2015/0090 as amended by SD2015/0276. 177
Subpara (3) amended by SD2015/0090 as amended by SD2015/0276. 178
Subpara (4) amended by SD2015/0090 as amended by SD2015/0276.
Endnotes Collective Investment Schemes Act 2008
Page 64 AT 7 of 2008 c
179
Subpara (5) amended by SD2015/0090 as amended by SD2015/0276. 180
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276. 181
Subpara (1A) inserted by Financial Services (Miscellaneous Amendments) Act 2013 s
34. 182
Subpara (2) amended by Financial Services (Miscellaneous Amendments) Act 2013 s
34 and by SD2015/0090 as amended by SD2015/0276. 183
Subpara (3) inserted by Financial Services (Miscellaneous Amendments) Act 2013 s
34. 184
Item (d) amended by SD2015/0090 as amended by SD2015/0276. 185
Item (e) amended by SD2015/0090 as amended by SD2015/0276. 186
Item (f) amended by SD2015/0090 as amended by SD2015/0276. 187
Item (j) amended by SD2015/0090 as amended by SD2015/0276. 188
Item (k) amended by SD2015/0090 as amended by SD2015/0276. 189
Item (l) amended by SD2015/0090 as amended by SD2015/0276. 190
Item (a) amended by SD2015/0090 as amended by SD2015/0276. 191
Para 7 amended by SD2015/0090 as amended by SD2015/0276. 192
Para 10 amended by SD2015/0090 as amended by SD2015/0276. 193
Subpara (1) amended by SD2015/0090 as amended by SD2015/0276.
