Home   Browse contents   View updates   Search  
     Quick search
Go
   

BackText onlyPrint

You need the Flash plugin.

Download Macromedia Flash Player



  • Part 5: Duties and Powers of the Trustee

    • 20. General duties of the Trustee and its officers, employees and agents

      (1) A Trustee shall, when exercising its powers and carrying out its duties:
      (a) act honestly;
      (b) exercise the degree of care and diligence that a reasonable person would exercise in the position of a Trustee;
      (c) act in the best interests of the Unitholders and, if there is a conflict between the Unitholders' interests and its own interests, give priority to the Unitholders' interests;
      (d) not improperly make use of information acquired through being the Trustee in order to:
      (i) gain an advantage for itself or another person; or
      (ii) cause detriment to the Unitholders in the Fund; and
      (e) carry out or comply with any other duty, not inconsistent with DIFC Law, that is conferred on the Trustee by the Trust Deed.
      (2) The Trustee shall ensure that its officers, employees and agents:
      (a) do not make improper use of information acquired through being such an officer, employee or agent of the Trustee in order to:
      (i) gain an advantage for himself or another person; or
      (ii) cause detriment to Unitholders in the Fund;
      (b) do not make improper use of their position as such officers, employees or agents to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the Unitholders in the Fund; and
      (c) comply with any other duty or obligation as may be prescribed under this Law, the Collective Investment Law 2010 or any other legislation administered by the DFSA.
      (3) Where the Fund Manager is required to obtain the prior consent or approval of the Trustee before it is able to carry out any of its functions under the Collective Investment Law 2010 or rules made for the purposes of that law, the Trustee shall provide such consent or approval to the Fund Manager without any unnecessary delay. If the Trustee decides to withhold such consent or approval, it shall also notify the Fund Manager of that decision and the reasons without any unnecessary delay.

    • 21. Holding of Trust assets

      (1) Subject to any specific requirements in the Collective Investment Law 2010, the Trustee shall take into its custody all property that forms part of the Investment Trust and hold such assets on trust for the Unitholders of the Trust.
      (2) The Trustee shall ensure that property of the Investment Trust is:
      (a) clearly identified as the property of that Trust; and
      (b) held separately from any other property held by or entrusted to the Trustee.

    • 22. Trustee's obligations relating to oversight functions

      (1) If the Trust Deed confers on the Trustee the oversight function of the Investment Trust, the Trustee shall carry out the oversight function in accordance with the requirements in chapter 2 of Part 5 of the Collective Investment Law 2010 and the rules made for the purposes of that Part.
      (2) If the oversight function in relation to an Investment Trust is carried out by persons other than the Trustee, the Trustee shall provide to those persons any assistance that is reasonably required by them to carry out the oversight function.

    • 23. Trustee's reporting and disclosure obligations

      (1) The Trustee shall, as soon as practicable after becoming aware that there is a breach of the Trust Deed, this Law, the Collective Investment Law 2010 or any rules made for the purposes of those laws, or of any other relevant obligations imposed under a Licence condition of the Fund Manager or any other person performing any function in respect of or providing any services to the Investment Trust, report that breach to the DFSA.
      (2) The Trustee is required to report a breach under (1) only where it is of the opinion on reasonable grounds that the breach has had, or is likely to have, a materially adverse effect on the interests of the Unitholders. The Trustee must report such a breach to the DFSA whether or not the Fund Manager has already taken any steps to remedy that breach.
      (3) The Trustee shall provide to the Fund Manager or any other person providing oversight function any information that the Fund Manager, or the person providing the oversight function, may reasonably require relating to the Investment Trust as soon as possible after a request has been made for such information.
      (4) The Trustee shall disclose to the auditor of the Investment Trust all such information that is required by the auditor to carry out its audit functions relating to the Trust.

    • 24. Trustee's power to outsource

      (1) The Trustee may, subject to any restrictions and requirements in the Trust Deed, this Law, the Collective Investment Law 2010 or any rules made for the purposes of those laws, delegate any of its activities or outsource any of its functions to a person (“service provider”) other than the Fund Manager.
      (2) When outsourcing any of its functions, the Trustee must ensure that the service provider is independent of the Fund Manager as provided in (4).
      (3) The DFSA may by rule prescribe for the purposes of this Article:
      (a) activities that can or cannot be delegated by a Trustee;
      (b) functions that can or cannot be outsourced by a Trustee;
      (c) the eligibility criteria for service providers;
      (d) the activities or functions that must be performed in the DIFC;
      (e) any notification procedures and DFSA approval requirements that apply to appointment of service providers; or
      (f) any other matter incidental or relating to delegations and outsourcing by a Trustee for the purposes of this Article.
      (4) A service provider is not independent of the Fund Manager for the purposes of (2) if it:
      (a) is, or has been in the previous 2 years, an employee of the Fund Manager or a body corporate in the same group (a “related body corporate”);
      (b) is, or has been in the previous 2 years, an executive officer of a related body corporate;
      (c) is, and has been in the previous 2 years, involved in material business dealings, or in a professional capacity, with the Fund Manager or a related body corporate;
      (d) is a member of a partnership or a trustee of a trust that is, or has been in the previous 2 years, substantially involved in business dealings, or in a professional capacity, with the Fund Manager or in a related body corporate;
      (e) has a material interest in the Fund Manager or a related body corporate; or
      (f) is a relative or de facto spouse of a person who has a material interest in the Fund Manager or a related body corporate of a kind described in (a) to (e) of this Article.
      (5) Where the Trustee engages a service provider, the Trustee remains liable to the Unitholders for any acts or omissions of the service provider even if such service provider was acting fraudulently or outside the scope of its authority or engagement.

    • 25. Trustee's obligation to maintain the Unitholder register

      (1) The Trustee shall ensure that a register of Unitholders of the Investment Trust is maintained in the DIFC containing the information set out in this Article and it is kept up to date and complete.
      (2) The register must contain:
      (a) the name and address of each Unitholder, and if there are different classes of units, the class of the Unit;
      (b) the number of Units including fractions of a Unit held by each Unitholder; and
      (c) the date on which the Unitholder was registered in the register for Units standing in his name.
      (3) The Trustee shall ensure that the register is available for inspection by Unitholders during normal business hours.
      (4) The Trustee shall make the register available to the Fund Manager during office hours and allow the Fund Manager to make copies of the register for its purposes.