Part 7: Part 7: Registration of Public Funds
46. General characteristics
A Domestic Fund is a public class of Fund (a "Public Fund") if:(a) it has or intends to have more than 100 Unitholders; or(b) its Units are or are to be offered by the Operator by means of public offering to potential participants.
47. Application for registration(1) An application for the registration of a Public Fund shall be made to the DFSA by the Operator or if the Fund is in the form of an Investment Trust, jointly by the Operator and Trustee.(2) Such an application shall be accompanied by the Fund's Constitution and Prospectus both of which shall be in accordance with the requirements of this Law.(3) The DFSA shall make Rules setting out the requirements which an application for registration shall meet before such application can be accepted by the DFSA.
48. Registration requirements(1) In relation to the legal structure of a Public Fund, subject to any limitations prescribed by the Rules, registration may be granted by the DFSA only where the Fund takes the form of:(a) an Investment Company;(b) an Investment Partnership; or(c) an Investment Trust.(2) The DFSA may make Rules prescribing the requirements that a Public Fund must meet before registration can be granted by the DFSA. Such Rules may include requirements relating to the appointment of an eligible custodian or Fund Administrator and requirements relating to fitness and proprietary of the Governing Body, persons providing oversight functions and employees of the Fund.(3) The DFSA may make Rules providing such requirements referred to in Article 48(2) to be varied in cases where a person, other than a Trustee, referred in Article 48(2) are at the time of application, regulated in a jurisdiction other than the DIFC;(a) prescribing certain persons or categories of person to be exempted from the requirements referred to in Article 48(2); and(b) providing for any such exemptions to be:(i) limited to certain types of Fund or specified circumstances; or(ii) subject to certain conditions and restrictions.
49. Providing information in relation to the application(1) The DFSA may require the Operator or, if appointed the Trustee to provide additional information reasonably required for the DFSA to be able to make a decision with regard to the application.(2) If at any time between the filing of an application for registration and the grant of a registration the Operator or, if appointed the Trustee becomes aware of a material change, error or omission reasonably likely to be relevant to the application under consideration, it shall inform the DFSA in writing of such change without delay.
50. Rejection of an application(1) The DFSA may in its absolute discretion refuse to grant an application for registration.(2) Upon refusing to grant registration, the DFSA shall without undue delay inform the Operator and, if appointed, the Trustee in writing of such refusal and, where requested by the Operator or Trustee, the reasons for such refusal.
51. Granting registration
The DFSA may register a Public Fund and shall without undue delay inform the Operator and, if appointed, the Trustee in writing of:(a) such decision; and(b) the date on which the registration shall be deemed to take effect.
52. Withdrawal of registration(1) The DFSA may withdraw the registration of a Fund where:(a) one or more of the following circumstances apply:(i) the Fund is not operating or has been wound up;(ii) the Operator or, if appointed, the Trustee has, in purported compliance with any requirement under the Law or the Rules, knowingly or recklessly given the DFSA information which is false or misleading in a material particular;(iii) the Operator or, if appointed, the Trustee has contravened a requirement imposed on him by or under the Law or the Investment Trust Law 2006;(iv) the Operator or, if appointed, the Trustee or member of the Fund's Governing Body has not complied with a direction issued by the DFSA under the Law;(v) a person is exercising significant influence over the Fund or Operator or any member of the Fund's Governing Body and that person is not a member of the Fund's Governing Body, Shari'a Supervisory Board, the Trustee or a person providing oversight functions;(vi) the Operator is no longer fit and proper to operate the Fund or is incapable of operating the Fund in compliance with the Law or Rules or the terms of its Constitution;(vii) the Trustee is no longer fit and proper to act as Trustee of the Fund or is incapable of acting as Trustee of the Fund in compliance with the Law or Rules or the terms of its Constitution and the Investment Trust Law 2006; or(viii) the Operator or, if appointed, the Trustee requests the DFSA to withdraw the registration on the grounds that a Special Resolution has been passed by the relevant Unitholders that the Fund should be deregistered; and(b) the DFSA considers that:(i) the withdrawal of registration is in the interests of the Unitholders of the Fund; or(ii) appropriate steps have been taken or may reasonably be taken to protect the interests of the Unitholders.(2) Where the DFSA has withdrawn, or proposes to withdraw, a registration under this Article, it may, by written notice, direct the Operator or where appointed the Trustee to take such steps as the DFSA considers necessary or desirable to protect the interests of Unitholders in the Fund.(3) Subject to Article 52(4), the DFSA may only exercise its power under Article 52(1) if it has given the relevant Operator or where appointed the Trustee a suitable opportunity to make representations in person and in writing to the DFSA in relation to the proposed withdrawal and the DFSA has informed the Operator in writing of its response to any such representation.(4) The restriction imposed on the DFSA under Article 52(3) shall not apply if the Operator or where appointed the Trustee requests the DFSA to withdraw the registration or the Operator is no longer authorised under its Licence to operate the Fund.(5) Upon deciding to withdraw a registration, the DFSA shall without undue delay inform the Operator in writing of:(a) such decision;(b) the date on which such withdrawal shall be deemed to take effect; and(c) where requested by the Operator or where appointed the Trustee, the reasons for the decision.(6) The Court may order the DFSA to withdraw the registration of a Public Fund.
53. Reinstatement(1) Where a Public Fund has been deregistered in accordance with or in purported accordance with this Law or the Rules, the Court may order that the DFSA reinstate the registration of the Fund where:(a) an application for reinstatement is made to the Court by:(i) a person aggrieved by the deregistration; or(ii) a person who was winding up the Fund; and(b) the Court is satisfied that it is just and equitable that the Fund's registration be reinstated.(2) The Court may give any directions it thinks just for putting the Fund and other persons in the same position, as far as possible, as if the Fund had not been deregistered.