Simon Harris (Wicklow, Fine Gael)
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I move amendment No. 41:

In page 74, after line 35, to insert the following:

“PART 8
MIGRATION
CHAPTER 1
Migration-in to become ICAV

Definitions
123.(1) In this Chapter -

“migrating body” means a body corporate which is established and registered under the laws of a relevant jurisdiction and which is a collective investment undertaking;
"registration documents” has the meaning given by section 124.
“relevant jurisdiction”, in relation to a migrating body, means the place, outside the State, prescribed under subsection (2)where the migrating body is established and registered at the time of its application under section 125.
(2) The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of “relevant jurisdiction” in subsection (1)where he or she is satisfied that the law of the place concerned makes provision for migrating bodies to continue under the laws of the State or for Irish collective asset-management vehicles to continue under the laws of that place in a substantially similar manner to continuations under section 125.

Sections 127 and 128 of the Bill as published cross apply the provisions of the Companies Acts to ICAVs concerning the moving of corporate entities in other jurisdictions to Ireland to establish as ICAVs, and the necessary corollary of ICAVs deregistering in Ireland to establish as corporate structures in other jurisdictions. The Minister for Finance has decided to set out these provisions via Committee Stage amendments. These sections will be replaced by a new Part which mirrors the provisions on migrations for investment companies as set out in Part 24, Chapter 9 of the Companies Bill 2012, taking into account the specific nature of ICAVs. The Part will facilitate the inward migration of investment funds from designated jurisdictions and provides for their continuation in Ireland as ICAVs. It will also facilitate the outward migration of ICAVs to designated jurisdictions and provides for their continuation there. Section 123 is the definition section and defines the terms "migrating body" and "relevant jurisdiction" for the purpose of this chapter. Due to its expansive nature, the definition of registration documents will be contained in a stand-alone section. These definitions are similar to those in section 1403 of the Companies Bill 2012. It is also provided that the Minister may by regulation prescribe places outside the State as a relevant jurisdiction in certain circumstances.
Section 124 gives a definition for registration documents, which is currently found in section 1403 of the Companies Bill 2011, and derives from section 256(f)(i) of the Companies Act 1990. This section sets out the technical documentary requirements with which a migrating body must comply before it can be registered as an ICAV and authorised by the Central Bank.
Section 125 sets out the principal elements of the migration process, and copies section 1405 of the 2012 Bill, derived from replicate sections 256(f)(i)-(x) of the Companies Act 1990. This section permits collective investment fund corporates registered in prescribed jurisdictions to apply to migrate their registered offices to Ireland without having to wind up their existing jurisdiction first. Migrating bodies may apply to the bank to be registered as an ICAV in the State by way of continuation.
Section 126 contains further practical requirements in respect of the registration of migrating companies in the State.

The key point is that the authorisation to carry on business as an AIF or a UCIT is automatic upon acceptance of an application to migrate. It also provides that if an applicant fails to comply with the requirements of section 125, the bank will give it 30 days to remedy this failure and its failure to do so may result in the bank starting proceedings to strike it off from the register of ICAVs.

Section 127 provides house definitions for the purpose of the provisions on deregistration of investment companies incorporated in the State that may wish to migrate to other relevant jurisdictions. Again, this section mirrors section 1,402 of the Companies Bill 2012.

Section 128 contains the detailed provisions relating to the deregistration of ICAVs who wish to continue as bodies corporate in prescribed jurisdictions. These provisions reflect section 1,403 of the 2012 Bill. Before granting deregistration, the bank must be satisfied that all requirements of this Bill in regard to deregistration have been complied with by the ICAV and that all fees and levies due to the bank have been paid. The application to deregister must be accompanied by a statutory declaration stating that these requirements have been met and notice of the application must be published in Iris Oifigiúil. Creditors of the ICAV or holders of not less than 5% of its issued share capital may apply for an order preventing the proposed migration and deregistration of the ICAV.

Section 129 contains further provisions in regard to the deregistration of an investment company under this chapter and they replicate section 1,404 of the 2012 Bill. Section 130 is based on section 1,405 of the 2012 Bill. It states that where an application is made by a migrating ICAV to be registered in the State, or by a company seeking to migrate out of the State, a director of the ICAV must make a statutory declaration that the entity is solvent. Subsection (2) sets out the requirements in regard to the making of the declaration, which must include a statement as to the assets and liabilities of the ICAV. In addition, the declaration must be accompanied by a report of an independent person giving an opinion as to the reasonableness of the opinion of the director and the statement of the assets and liabilities. Again, it will be an offence for the director to make a declaration under this section if he or she does not have reasonable grounds for believing that the ICAV can pay its debts as they fall due.

As with other provisions in this legislation and other amendments we are bringing forward today, the decision has been taken that it makes sense to expressly state the provisions that appear in various Companies Acts and the Companies Bill, rather than just cross-referencing.