Part 10: Part 10: Transfer Schemes and Winding Up of Domestic Funds
60. Transfer schemes(1) Pursuant to Part 9 of the Regulatory Law 2004, a Domestic Fund may be transferred in whole or in part to another body in accordance with that Part.(2) The DFSA may make Rules for the purposes of this Article pursuant to the power conferred under Article 113 of the Regulatory Law 2004.
61. When a Domestic Fund may be wound up
A Domestic Fund may be wound up:(a) by order of the Court as provided by or under this Law and the Insolvency Law 2004;(b) where not inconsistent with such Laws, in the manner and circumstances provided in the Fund's Constitution; or(c) in any other circumstances as may be prescribed in the Rules.
62. Winding up required by a Fund's Constitution
The Constitution of a Fund may provide that the Fund is to be wound up:(a) at a specified time; or(b) in specified circumstances or on the happening of a specified event;but a provision of the Constitution that purports to provide that the Fund is to be wound up if a particular Authorised Firm ceases to be its Operator or Trustee is of no effect including for the purposes of Article 65(1)(a).
63. Winding up at direction of Unitholders
If the Unitholders of a Fund want the Fund to be wound up, such persons may call an extraordinary meeting to pass a Special Resolution directing the Operator or where appointed the Trustee to wind up the Fund.
64. Winding up if the Fund's purpose has been accomplished or cannot be accomplished(1) If the Operator of a Fund considers that the Fund is not commercially viable or that the purpose of the Fund:(a) has been accomplished; or(b) cannot be accomplished;it may, in accordance with this Article, take steps to wind up the Fund.(2) The Operator shall give to the Unitholders of the Fund and to the DFSA a notice in writing;(a) explaining the proposal to wind up the Fund, including explaining how the Fund's purpose has been accomplished or why that purpose cannot be accomplished;(b) informing the Unitholders of their rights to call a Unitholders' meeting to consider the proposed winding up of the Fund and to vote on any Special Resolution Unitholders propose about the winding up of the Fund; and(c) informing the Unitholders that the Operator or where appointed the Trustee is permitted to wind up the Fund unless a meeting is called to consider the proposed winding up of the Fund within 28 days of the Operator giving the notice to the Unitholders.(3) If no meeting is called within that 28 days to consider the proposed winding up, the Operator or where appointed the Trustee may wind up the Fund.
65. Winding up by order of the Court(1) The Court may order the winding up of a Domestic Fund if:(a) in contravention of this Law, the Operator of the Fund has not been granted consent to incorporate or register the Fund as an Investment Company, or Investment Partnership, as the case may be, or has not so incorporated or registered;(b) in contravention of Part 7 of this Law, the Fund has not been registered with the DFSA or the DFSA has withdrawn the registration of a Fund;(c) there is a stop order in effect in relation to the Fund and the Operator is unable to comply with the requirements of this Law, or any other Law administered by the DFSA;(d) the Operator or other member of the Fund's Governing Body or where appointed the Trustee believes on reasonable grounds that a scheme of arrangement is not practical or possible;(e) the Court thinks it is just and equitable to make the order; or(f) within 3 months before the application for the order was made, execution or other process was issued on a judgment, decree or order obtained in the Court or in any other court (whether in the United Arab Emirates or otherwise) which is final and not subject to appeal in favour of a creditor of, and against, the Fund or the Operator in its capacity as the Operator of the Fund and the execution or process has been returned unsatisfied.(2) The Court may make any orders it considers appropriate for the winding up of the Domestic Fund, including but not limited to:(a) an order appointing a person other than the Operator or where appointed the Trustee to take responsibility for ensuring the Fund is wound up in accordance with its Constitution and any orders under this Article as the Court thinks expedient (including for the reason that the Operator or Trustee has ceased to exist or is not properly discharging its obligations in relation to the winding up); and(b) directions as to how the Fund is to be wound up including for the reason that the provisions in the Fund's Constitution are inadequate or impracticable.(3) Orders under Article 65(1)(a), (b) or (c) or (2) may be made on the application of:(a) the Operator or other members of the Governing Body of the Fund;(b) the Trustee;(c) the auditor of the Fund;(d) a Unitholder in the Fund; or(e) the DFSA.(4) An order under Article 62(1)(e) may be made on the application of a creditor.
66. Unclaimed or undistributed property
If, on completion of the winding up of a Fund, the person who has been winding up the Fund has in his possession or under his control any unclaimed or undistributed money or other property that was part of the Fund property, the person shall, as soon as practicable, pay the money into Court or transfer the property to the Court.
67. Reinstatement of a Domestic Fund(1) Where a Domestic Fund has been wound up in accordance with or in purported accordance with this Law, the Rules or its Constitution, the Court may make any order for reinstatement of the Fund or discontinuance of the winding up proceedings if:(a) an application for reinstatement is made to the Court by:(i) a person aggrieved by the winding up; 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 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 wound up.