Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I move amendment No. 8:

8. In page 51, between lines 6 and 7, to insert the following:“Fiduciary duties of directors of ICAVs

78. (1) Without prejudice to the provisions of any enactment (including this Act), a director of an ICAV shall owe the duties set out in section 79(“the relevant duties”) to the ICAV (and the ICAV alone).

(2) The breach by a director of the relevant duties shall not of itself affect—

(a) the validity of any contract or other transaction, or

(b) the enforceability, otherwise than by the director in breach of that duty, of any contract or other transaction by any person, but nothing in this subsection affects the principles of liability of a third party where he or she has been an accessory to a breach of duty or has knowingly received a benefit from it.

(3) The relevant duties (other than those set out in section 79(1)(b) and (h)are based on certain common law rules and equitable principles as they apply in relation to the directors of bodies corporate and shall have effect in place of those rules and principles as regards the duties owed to an ICAV by a director.

(4) The relevant duties (other than those set out in section 79(1)(b) and (h)shall be interpreted, and the provisions concerned of section 79shall be applied, in the same way as common law rules or equitable principles and regard shall be had to the corresponding common law rules and equitable principles in interpreting those duties and applying those provisions.”.

This inserts an introductory provision to amendment No. 9 that seeks to insert a provision which enumerates the fiduciary duties owned by directors of ICAVs. Amendment No. 8 mirrors section 228 of the Companies Act 2014, which introduces significant change to Irish company legislation, as it is the first occasion that the Legislature has sought to codify the fiduciary duties of directors of companies. The concept of fiduciary duties is derived from general principles of common law and equity that have been interpreted and applied by the courts to directors of companies.

Amendment No. 9 inserts a provision which enumerates a non-exhaustive list of the fiduciary duties owned by the directors of the ICAV. This mirrors section 229 of the Companies Act 2014, which introduces significant change to Irish company legislation, as it is the first occasion that the Legislature has sought to enumerate the fiduciary duties of directors of companies.

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