The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013

PART 5 U.K. WINDING UP INSOLVENT CONTRACTUAL SCHEMES

Co-ownership schemes: winding up by the court U.K.

17.—(1) In this regulation and in Schedules 2 to 5—

(a) each of the following is a “relevant scheme”—

(i) a stand-alone co-ownership scheme;

(ii) a sub-scheme of an umbrella co-ownership scheme;

(b) in relation to a relevant scheme—

(i) a reference to a creditor is a reference to a person to whom a sum is or may become payable in respect of a debt of the relevant scheme;

(ii) a reference to a debt is a reference to any debt or obligation incurred for the purposes of, or in connection with, the acquisition, management or disposal of property subject to the relevant scheme;

(iii) a reference to a liability is a reference to any liability (including any contingent or prospective liability) of the participants in the relevant scheme for a debt of the relevant scheme; and

(c) in relation to a sub-scheme of an umbrella co-ownership scheme, a reference to the operator or the depositary is a reference to the operator or the depositary of the umbrella co-ownership scheme in relation to which that sub-scheme forms a separate pool of the contributions of the participants and the profits and income out of which payments are made to them.

(2) Subject to the provisions of this regulation, a relevant scheme may be wound up under the 1986 Act or the 1989 Order as if it were an unregistered company (within the meaning of the 1986 Act or the 1989 Order as the case may be).

(3) The High Court has jurisdiction to wind up a relevant scheme if the depositary of the relevant scheme has a place of business situated in England and Wales or Northern Ireland.

(4) The Court of Session has jurisdiction to wind up a relevant scheme if the depositary of the relevant scheme has a place of business situated in Scotland.

(5) If the depositary of a relevant scheme has a place of business situated in Northern Ireland, the relevant scheme may not be wound up under Part 5 of the 1986 Act (winding up of unregistered companies) unless the depositary has a place of business situated in England and Wales or Scotland, or in both England and Wales and Scotland.

(6) If the depositary of a relevant scheme has a place of business situated in England and Wales or Scotland, the relevant scheme may not be wound up under Part 6 of the 1989 Order (winding up of unregistered companies) unless the depositary has a place of business situated in Northern Ireland.

(7) If the depositary of a relevant scheme has a place of business situated in both England and Wales and Scotland—

(a) the High Court has jurisdiction to wind up the relevant scheme if the winding up proceedings are instituted in England and Wales; and

(b) the Court of Session has jurisdiction to wind up the relevant scheme if the winding up proceedings are instituted in Scotland.

(8) Schedules 2 to 5 (which make provision about the application in relation to the winding up of relevant schemes of provisions in the 1986 Act, the 1989 Order, the Insolvency Rules 1986, the Insolvency (Scotland) Rules 1986 and the Insolvency Rules (Northern Ireland) 1991) have effect.

(9) An application to the High Court or the Court of Session for the winding up of a relevant scheme is to be made by petition presented—

(a) by the operator or any creditor of the relevant scheme;

(b) by the FCA;

(c) in a case falling within section 124A of the 1986 Act M1 (petition for winding up on grounds of public interest), as modified by Schedule 2, by the Secretary of State; or

(d) in a case falling within Article 104A of the 1989 Order M2 (petition for winding up on grounds of public interest), as modified by Schedule 2, by the Department of Enterprise, Trade and Investment.

(10) The operator of a relevant scheme, upon presenting a petition for the winding up of the relevant scheme or being served with such a petition, must immediately—

(a) cease entering into contracts which are binding on the participants;

(b) cease making payments under authorised contracts; and

(c) except where the operator has already done so pursuant to a direction given by the FCA, cease the issue and redemption of units under the relevant scheme.

(11) Where the court makes an order dismissing a petition presented for the winding up of a relevant scheme, the prohibitions imposed by paragraph (10) cease to apply in relation to the scheme upon the making of the order.

(12) Where, upon hearing a petition presented for the winding up of a relevant scheme, the court makes a winding-up order, the operator ceases to have the authority which was given in relation to the relevant scheme in accordance with section 235A(4)(d) of FSMA M3 .

(13) A relevant scheme is not an unincorporated body for the purposes of section 6(1) of the Bankruptcy (Scotland) Act 1985 M4 (sequestration of other estates).

(14) Section 370 of FSMA M5 (liquidator's duty to report to FCA and PRA) has effect with the following modifications in relation to a relevant scheme which is being wound up on a petition presented by any person—

(a) in paragraph (a) of subsection (1) and paragraph (a) of subsection (2) the reference to a body is to be read as a reference to the relevant scheme; and

(b) in paragraph (b) of subsection (1) and paragraph (b) of subsection (2) the reference to the body is to be read as a reference to the operator or the depositary of the relevant scheme.

Marginal Citations

M1 Section 124A was inserted by the Companies Act 1989 (c. 40), section 60(3), and amended by S.I. 2001/3649 and by the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27), Schedule 2, Part 3, paragraph 27.

M2 Article 104A was inserted by S.I. 1990/1504 (N.I. 10) and amended by S.I. 2001/3649.

M3 Section 235A is inserted by regulation 3(5) of these Regulations.

M4 1985 c. 66.

M5 Section 370 was substituted by the Financial Services Act 2012, Schedule 14, paragraph 18.

Partnership schemes: liability of the general partner (England and Wales and Northern Ireland) U.K.

18.—(1) In this regulation—

“authorisation order” means an order made under section 261D(1) of FSMA;

“authorised partnership” means a partnership scheme in respect of which an authorisation order has been made (even if revoked); and

“relevant debts and obligations”, in relation to an authorised partnership, means debts and obligations of the partnership which are incurred while the authorisation order made in respect of the partnership is in force.

(2) In paragraph (4)—

(a) a reference to a section is a reference to a section of the 1986 Act; and

(b) a reference to an Article is a reference to an Article of the 1989 Order.

(3) Where an authorised partnership is wound up by the court as an unregistered company under Part 5 of the 1986 Act or Part 6 of the 1989 Order, the general partner of the partnership has no personal liability for relevant debts and obligations.

(4) Paragraph (3) is without prejudice to the power of the court—

(a) to make an order under section 212 or Article 176 (summary remedy against delinquent directors, liquidators, etc.) compelling the general partner to repay, restore or account for any money or property or to contribute to the assets of the partnership;

(b) if the court refuses to examine into the conduct of the general partner on an application under section 212 or Article 176, to make a judgment or order in other proceedings brought against the general partner on any ground on which an application may be made under section 212 or Article 176;

(c) to give directions under section 215 (proceedings under ss 213, 214) for giving effect to a declaration under section 213 (fraudulent trading) or section 214 (wrongful trading) that the general partner is liable to make a contribution to the assets of the partnership; or

(d) to give directions under Article 179 (proceedings under Articles 177 and 178) for giving effect to a declaration under Article 177 (fraudulent trading) or Article 178 (wrongful trading) that the general partner is liable to make a contribution to the assets of the partnership.

Partnership schemes: liability of the general partner (Scotland) U.K.

19.—(1) In this regulation—

“the Act” means the Bankruptcy (Scotland) Act 1985 M6 ;

“authorisation order” means an order made under section 261D(1) of FSMA;

“authorised partnership” means a partnership scheme in respect of which an authorisation order has been made (even if revoked); and

“relevant debts and obligations”, in relation to an authorised partnership, means debts and obligations of the partnership which are incurred while the authorisation order made in respect of the partnership is in force.

(2) The Act has effect with the following modifications in its application to an authorised partnership—

(a) in section 6 (sequestration of other estates), in subsection (4), paragraph (b) is to be read as if after sub-paragraph (i) there were inserted—

“(ia) the Financial Conduct Authority;”;

(b) the following provisions are to be read as if after the words “presented by a creditor” there were inserted “ , the Financial Conduct Authority ”

(i) in section 2 (appointment and functions of the trustee in the sequestration), subsections (5) and (7)(a) M7 ;

(ii) in section 12 (when sequestration is awarded), subsections (2), (3) and (4)(b) M8 ;

(iii) in section 15 (further provisions relating to award of sequestration), subsection (5);

(iv) in section 70 (supplies by utilities), subsection (1)(b); and

(c) in section 12, in subsection (3)(d), after “a creditor” insert “ or the Financial Conduct Authority ”.

(3) Where sequestration of the estate of an authorised partnership is awarded under section 12(1) or (3) of the Act, the general partner of the partnership has no personal liability for relevant debts and obligations.

(4) Paragraph (3) is without prejudice to the power of the court to make an order compelling the general partner to repay, restore or account for any money or property, or to contribute to the assets of the partnership, if the general partner has misapplied or retained, or become accountable for, any money or other property of the partnership, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the partnership.

Marginal Citations

M6 1985 c. 66.

M7 Section 2 was substituted by the Bankruptcy (Scotland) Act 1993 (c. 6). Subsection (5) was amended and subsection (7)(a) was substituted by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3).

M8 Subsections (3) and (4) were substituted by the Bankruptcy (Scotland) Act 1993 (c. 6).