CIR 7.1 CIR 7.1 Application
CIR 7.1.1(1) This chapter applies to a
Fund Manager, and where appointed a Trustee, of a Domestic Fund.(2) Only this Rule and Rules 7.1.2(1)(b), 7.1.2(2) and 7.1.4 apply to a Fund Managerand, where appointed, a Trustee, of a Qualified Investor Fund.
Instrument Constituting the Fund
CIR 7.1.2 CIR 7.1.2(1) The
Fund Managerand, in the case of an Investment Trust, both the Fund Managerand the Trusteeof a Fund, must ensure that the written Constitutionwhich every Fundis required to have pursuant to Article 27(1) of the Law:(a) contains the statements and disclosures prescribed in the table in CIR App5 as are applicable to the Fund; and(b) does not contain any provision that is prejudicial to the interests of the Unitholdersgenerally or to the Unitholdersof any class of Units.(2) The Fund Managerand, in the case of an Investment Trust, both the Fund Managerand the Trustee, are responsible for maintaining the Constitutionand for making necessary alterations to it in accordance with the applicable legislation.
CIR 7.1.2 Guidance
In the case of a Fund on a Fund Platform, such a Fund, being an Incorporated Cell of an Incorporated Cell Company, needs its own Articles of Association under the ICC Regulations.
CIR 7.1.3(1) A
Fund Managermay issue and in the case of an Investment Trust, may instruct the Trusteeto issue such classes of Unitsas are set out in the Constitution, provided the rights of any class are not unfairly prejudicial to the interests of the Unitholdersof any other class of Unitsin that Fund.(2) Unitswhose issue may be limited can be issued by a Fund Managerif permitted by the Constitutionand if in accordance with the conditions set out in the Prospectus, provided that such issue will not materially prejudice any existing Unitholdersin the Fund.(3) In the case of an Investment Trust, the Trusteemust take reasonable measures to ensure, before carrying out the Fund Manager'sinstructions, that those instructions comply with the requirements in (1) and (2).
Name of the Fund
CIR 7.1.4 CIR 7.1.4
Fund Manager, and if appointed the Trustee, of a Fundmust ensure that the name of the Fundor any Sub-Fundor class of Unitsin the Fundor Sub-Fund, is not undesirable, misleading or in conflict with the name of another Fundor another Sub-Fundor class of Unitsin the Fundor Sub-Fund.
CIR 7.1.4 Guidance1. Article 27(4) of the Law and this
Rulegive the DFSAthe power to make a direction if a name of a Fund, Sub-Fundor class of Unitsin a Fundis undesirable, misleading or conflicts with a name used by another Fund, Sub-Fundor class of Unitsof a Fund. In the case of a Protected Cell Company or an Incorporated Cell Company, the PCC and the ICC Regulations confer additional powers on the DFSA to give a direction in relation to those companies and their cells.2. In determining whether to make a direction under these powers, the matters that the DFSAmay take into account include whether the name of the Fund, Sub-Fundor class of Unitsas the case may be:a. implies that the Fund, Sub-Fundor class of Unitshas merits which are not, or might not be, justified;b. is inconsistent with the Fund'sinvestment objectives or policy;c. might mislead Unitholdersor prospective Unitholdersinto thinking that a Personother than the Fund Manageris responsible for the Fund, Sub-Fundor class of Unitsof the Fund;d. is substantially similar to the name of another Collective Investment Fundin the DIFCor elsewhere;e. implies that it is a specialist class of Fundor Sub-Fund, where the relevant requirements relating to that class of specialist Fundare not met; orf. is in the opinion of the DFSAlikely to offend the public.
CIR 7.1.5 CIR 7.1.5
Before using as part of or in connection with the name of a
Fund, Sub-Fundor class of Unitsin a Fundthe words "guaranteed", "protected" or any other words with a similar meaning implying a degree of security in relation to the capital or income, the Fund Managermust demonstrate to the satisfaction of the DFSAthat:(a) the guarantor has the authority and resources to honour the terms of the guarantee; and(b) all the terms of the guarantee and the credentials of the guarantor are clearly set out in detail in the Prospectusand that any exclusions such as force majeure are highlighted.
CIR 7.1.5 Guidance
In considering whether to permit a
Fund Managerto use the words "guaranteed" or "protected" as part of or in connection with the name of a Fund, Sub-Fundor class of Unitsin a Fund, the DFSAwill also take into account whether the degree of security implied by the name fairly reflects the nature of the arrangements for providing that security.