IE-1994-act-24 — Investment Limited Partnerships Act 1994 | Law Reform

PART I Preliminary 1. —This Act may be cited as the Investment Limited Partnerships Act, 1994. 2. —This Act shall come into operation on such day as the Minister shall fix by order. 3. —In this Act unless the context otherwise requires— “ the Act of 1890 ” means the Partnership Act, 1890; F1 [ "Act of 2010" means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010; "alternative foreign name" shall be construed in accordance with section 8 (4B) ; ] F2 [ "the Bank" means the F3 [ Central Bank of Ireland ] ; ] F4 [ "beneficial owner", in relation to an investment limited partnership, means any individual who — ( a ) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the partnership or more than 25 per cent of the voting rights in the partnership, or ( b ) otherwise controls the partnership; "beneficial ownership register" shall be construed in accordance with section 46 (1) ; "central register" shall be construed in accordance with section 50 (1) ; "competent authority" means a competent authority as that expression, by virtue of sections 60 and 61 of the Act of 2010, is to be construed for the purposes of Part 4 of that Act; "designated person" has the meaning assigned to it by section 25 of the Act of 2010; ] “ the court ” means the High Court; F5 [ "depositary" means a person maintaining a place of business in the State, appointed pursuant to the partnership agreement, eligible to act as depositary in accordance with section 8 and discharging its functions in accordance with section 5 (1)(c) ; ] “ general partner ” means a person who has been admitted to an investment limited partnership as a general partner in accordance with the partnership agreement, and who shall be personally liable for the debts and obligations of the investment limited partnership; F6 [ "Higher Executive Officer" means the position of Higher Executive Officer, or a position equivalent to it, in the public body concerned; ] “ investment limited partnership ” means a partnership which holds a certificate of authorisation issued in accordance with this Act; F7 [ "limited partner" means a person who has been admitted to an investment limited partnership as a limited partner (or as a category of such a partner) in accordance with the partnership agreement and who shall, as provided for in that agreement and at such time or times as are specified therein, contribute or undertake to contribute a stated amount to the capital of the partnership and as provided for in section 20 (1)(c) , but subject to the exceptions in sections 6 , 12 and 38 (4) , shall not be liable for the debts or obligations of the investment limited partnership beyond the amount so contributed or undertaken; ] F8 [ "Member State" means a Member State of the European Union and, where relevant, includes a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993); ] “ partner ” means a limited partner or a general partner; “ partnership agreement ” means any valid written agreement of the partners governed by the law of the State and subject to the F9 [ … ] jurisdiction of the courts of the State, as to the affairs of an investment limited partnership and the conduct of its business as may be amended, supplemented or restated from time to time; F10 [ "PPS number", in relation to an individual, means the individual’s Personal Public Service Number within the meaning of section 262 of the Social Welfare Consolidation Act 2005; "presenter" shall be construed in accordance with section 53 (1) ; "Principal Officer" means the position of Principal Officer, or a position equivalent to it, in the public body concerned; "senior managing official" includes a director and a chief executive officer; ] “ property ” means real or personal property of whatever kind (including securities) and wherever located; F11 [ "the Minister" means the Minister for Finance. ] 4. —(1) Subject to the provisions of this Act, the Act of 1890, and the rules of equity and of common law applicable to partnerships, except so far as they are inconsistent with the express provisions of the last-mentioned Act, shall apply to investment limited partnerships. (2) The provisions of the Limited Partnerships Act, 1907, shall not apply to investment limited partnerships. (3) In the case of any investment limited partnership with two or more general partners, provisions of this Act requiring or authorising a thing to be done by or to a general partner shall be satisfied, except where the context otherwise indicates, by it being done by or to any one general partner. (4) For the avoidance of doubt, the provisions of section 376 of the Companies Act, 1963 shall not apply to an investment limited partnership. PART II Constitution 5. —(1) An investment limited partnership may be formed by two or more persons and shall— ( a ) have as its principal business, to be expressed in the partnership agreement establishing the investment limited partnership, the investment of its funds in property; ( b ) consist of one or more general partners and one or more limited partners; ( c ) F12 [ have appointed a F13 [ depositary ] being a person maintaining a place of business in the State, and eligible to act as F13 [ depositary ] in accordance with section 8 of this Act ] , in whom the assets of the investment limited partnership shall be entrusted for safe keeping, who is charged with verifying that the business of an investment limited partnership is conducted in accordance with the partnership agreement and with such powers or duties of a F13 [ depositary ] with regard to the investment limited partnership as are specified by the Bank and in section 24 F14 [ and in the European Union (Alternative Investment Fund Managers) Regulations 2013 where relevant ] ; ( d ) have specified in the partnership agreement, the conditions under which there may be effected, and the procedure to be followed with respect to, the replacement of a general partner or a F13 [ depositary ] to the partnership with another general partner or F13 [ depositary ] including a replacement by the Bank under section 30 and the admission of additional general partners or F15 [ depositaries ] and shall contain provision to ensure the protection of limited partners in the event of any such replacement; ( e ) comply with such further and other requirements made by the Bank from time to time under section 7 hereof; ( f ) hold a certificate of authorisation issued in accordance with Part III of this Act. (2) A body corporate with or without limited liability may be a general partner or a limited partner and a partnership may be a limited partner. (3) The contribution made by a limited partner to the capital of the investment limited partnership may be satisfied in cash or other property provided that in the case of a non-cash contribution, the value of the relevant property shall, for the purposes of satisfying the obligation to contribute to the capital of the investment limited partnership, be the F16 [ fair and appropriate value of the property ] at the time of transfer of the property to the investment limited partnership. (4) For the avoidance of doubt, the contribution made by a limited partner to the capital of the investment limited partnership shall not be satisfied by the provision of any services or loans by the limited partner. F17 [ (5) An investment limited partnership may be established as an umbrella fund, that is to say as an investment limited partnership which is divided into a number of sub-funds (within the meaning of the Schedule). (6) The provisions of the Schedule shall have effect for the purposes of subsection (5) . ] 6. —(1) A limited partner shall not take part in the conduct of the business of the investment limited partnership and in particular shall not have power to contract on behalf of the investment limited partnership and all letters, contracts, deeds, instruments and documents whatsoever shall be entered into by the general partner on behalf of the investment limited partnership. (2) If a limited partner takes part in the conduct of the business of the investment limited partnership in its dealings with persons who are not partners, that limited partner shall be liable in the event of the insolvency of the investment limited partnership for debts of the investment limited partnership incurred during the period that he so participates in the conduct of the business as though he were for such period a general partner. (3) A limited partner shall be liable by virtue of subsection (2) only in respect of debts or obligations incurred by the investment limited partnership in favour of a person who at the time the debt or obligation was so incurred reasonably believed, based upon the conduct of the limited partner, that the limited partner was a general partner and whether or not such debts or obligations have since been assigned or otherwise transferred to another person. (4) A limited partner does not take part in the conduct of the business of an investment limited partnership within the meaning of this Act solely by doing any one or more of the following, irrespective of the frequency of such acts: ( a ) being a contractor for, or being an agent or employee of, the investment limited partnership or a general partner or acting as a director, officer or shareholder of a general partner which is a body corporate; ( b ) consulting with and advising a general partner with respect to the business of the investment limited partnership; ( c ) investigating, reviewing, or being advised as to the accounts or business affairs of the investment limited partnership or exercising any right conferred by this Act; ( d ) acting as surety or guarantor or providing any other form of security for the investment limited partnership either generally or in respect of specific obligations; ( e ) voting as a limited partner on one or more of the following matters: (i) the dissolution and winding up of the investment limited partnership; (ii) the purchase, sale, exchange, lease, mortgage, pledge, or other acquisition or transfer of any asset or assets by or on behalf of the investment limited partnership; (iii) the incurring or renewal of any indebtedness of the investment limited partnership; (iv) a change in the objectives or policies of the investment limited partnership; (v) the admission, removal or withdrawal of a general or limited partner or F18 [ depositary ] and the continuation of the business of the investment limited partnership thereafter; (vi) transactions in which one or more of the general partners have an actual or potential conflict of interest with one or more of the F19 [ limited partners; ] F20 [ (vii) a decision to approve an alteration in the partnership agreement; ] F21 [ ( f ) any of the following: (i) serving on any board or committee (such as an advisory committee) of the investment limited partnership, or established by, or as provided for in the partnership agreement in respect of, a general partner, the limited partners or the partners generally; (ii) appointing, electing or otherwise participating in the choice of a representative or any other person to serve on any such board or committee; (iii) acting as a member of any such board or committee either directly or by or through any representative or other person, including giving advice in respect of, or consenting or refusing to consent to, any action proposed by the general partner on behalf of the investment limited partnership and exercising any powers or authorities or performing any obligations as a member of any such board or committee in the manner contemplated by the partnership agreement. ] F22 [ (5) Without prejudice to the generality of the provision made by subsection (4) in relation to acts, on the part of a limited partner, that do not constitute the limited partner taking part in the conduct of the business of an investment limited partnership, neither — ( a ) the reference in section 38 (4) to any limited partner holding himself or herself out as conducting or purporting to conduct the business of an investment limited partnership, nor ( b ) the reference in section 39 to a limited partner purporting to take part in the conduct of the business of an investment limited partnership, shall be construed as including a reference to the limited partner, in and of itself, holding himself or herself as doing, or purporting to do, one or more of the acts specified in subsection (4) (irrespective of the frequency with which that holding out, or that purported doing of the act or acts concerned, occurs). ] (5) Subsection (4) shall not import any implication that the possession or exercise of any other power by a limited partner will necessarily constitute the taking part by such limited partner in the business of the investment limited partnership. PART III Formation 7. —(1) Notwithstanding any other powers which may be available to the Bank under any other enactment, order or regulation, the Bank may impose such conditions for the authorisation of an investment limited partnership as it considers appropriate and prudent for the purposes of the orderly and proper regulation of investment limited partnerships. (2) ( a ) Conditions imposed under subsection (1) may be imposed generally, or by reference to particular investment limited partnerships, or by reference to any other matter the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment limited partnerships. ( b ) The Bank may impose such conditions on general partners or F23 [ depositaries ] or investment limited partnerships as it considers appropriate and prudent for the purposes of the orderly and proper regulation of general partners, F23 [ depositaries ] or investment limited partnerships or all of these. (3) ( a ) The power to impose conditions referred to in subsection (1) shall include a power to impose such further conditions from time to time as the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment limited partnerships. ( b ) The Bank may amend or revoke a condition imposed by it under this section. (4) Without prejudice to the generality of subsections (1), (2) and (3) hereof, conditions imposed by the Bank on an investment limited partnership may make provision for any or all of the following matters: ( a ) the investment policies of the investment limited partnership, including its policies regarding diversification and gearing and including the type of property in which an investment limited partnership may invest; ( b ) the issuing and content of prospectuses and other information disseminated by the investment limited partnership; ( c ) the criteria for appointment of any F24 [ depositary ] under section 5 ; ( d ) the vesting of the assets or specified assets of the investment limited partnership in a F24 [ depositary ] ; ( e ) the periodicity and contents of reports issued by the investment limited partnership; ( f ) such other supervisory and reporting requirements and conditions relating to its business as the Bank considers appropriate and prudent to impose on the investment limited partnership from time to time for the purposes referred to in the aforesaid subsections. (5) An investment limited partnership, general partner and F24 [ depositary ] shall comply with any conditions relating to its authorisation or business imposed by the Bank which are applicable to them. (6) A company incorporated outside the State shall not be considered solely by reason of being a limited partner in an investment limited partnership as having established a place of business within the State within the meaning of Part XI of the Companies Act, 1963 . (7) Where a general partner or a F24 [ depositary ] , as appropriate, of an investment limited partnership fails to comply with subsection (5) , it shall be guilty of an offence. 8. — F25 [ (1) The Bank shall not authorise an investment limited partnership — ( a ) unless either — (i) the proposed general partners or any one of them under the partnership agreement is authorised by the Bank under Part 2 of the European Union (Alternative Investment Fund Managers) Regulations 2013 or by the competent authority in its home Member State in accordance with Chapter II of Directive 2011/61/EC of the European Parliament and of the Council of 8 June 2011 or in its Member State of reference in accordance with that Chapter II; or (ii) the proposed general partners or any one of them under the partnership agreement satisfies the Bank as to their competence and probity, ( b ) save where the proposed general partners or any one of them under the partnership agreement is or are authorised as mentioned in paragraph (a)(i) if, in the opinion of the Bank, they are not of sufficiently good repute or lack the experience required for the performance of their duties; and ( c ) unless the proposed F26 [ depositary ] is a depositary as specified in Regulation 22(3) of the European Union (Alternative Investment Fund Managers) Regulations 2013. ] (2) No single person shall act as both general partner and F26 [ depositary ] . (3) The application by a partnership for authorisation as an investment limited partnership shall be made in writing by the person proposed as general partner under the partnership agreement to the Bank subject to subsection (5) . F27 [ (4) The application must be in a form approved or provided by the Bank and be accompanied by — F28 [ ( a ) the fee prescribed under section 32E of the Central Bank Act 1942 for the purposes of this subsection, and ] ( b ) a copy of the partnership agreement, and ( c ) subject to subsection (5) , a statement signed by or on behalf of a person proposed as a general partner under the partnership agreement containing the particulars specified in subsection (4A) , and ( d ) such further particulars or information as the Bank may specify for the purposes of determining the application, and ( e ) such additional information as the Bank may specify in the course of determining the application. ] F29 [ (4A) The following particulars are specified F30 [ for the purposes of subsection (4)(c) ] : F31 [ ( a ) the name and, if any, the alternative foreign name (and, in the case of the latter, a translation of it into the English language) of the investment limited partnership; ] ( b ) a statement of the general nature of the investment objectives of that partnership; ( c ) the address in the State of the registered office and the principal place of business in the State of that partnership; ( d ) the period for which that partnership is entered into or, if no period is specified, a statement to the effect that that partnership is entered for an unlimited period and specifying the date of its commencement; ( e ) the full name and address of the person proposed under the partnership agreement as a general partner and, if more than one, of each of them, specifying each of them as a general partner, and if a general partner is a body corporate not incorporated under the laws of the State, F32 [ a statement, if applicable, that the proposed general partner has complied with the requirements of section 1302 of the Companies Act 2014, and its registration number ] ; ( f ) the full name F33 [ … ] of the proposed F26 [ depositary ] appointed under the terms of the partnership agreement in whom the assets of that partnership are required to be entrusted for safe keeping. ] F34 [ (4B) The reference in subsection (4A)(a) to an alternative foreign name is a reference to a particular name that is specified in the application to be such a name in respect of the investment limited partnership and this subsection confers power on an investment limited partnership to have such a name and the following apply to the name so specified: ( a ) the name, as regards any territory, district or place not situate in the State, may be used, instead of the first-mentioned name in subsection (4A)(a) , in relation to any act (by or in respect of the partnership), whether that act is performed within or outside the State; ( b ) the name may consist of any letters, characters, script, accents or other diacritical marks that do not utilise the Roman alphabet, and does not need to be a translation or transliteration of the first mentioned name in subsection (4A)(a) . ] (5) If a person required by subsection (4) hereof to execute and deliver a statement fails to do so, any other partner, and any assignee of a partnership interest, who is or may be affected by the failure or refusal, may petition the court to direct such person as the court sees fit, to sign the statement and deliver the same on behalf of the person in default. (6) Upon receipt of these particulars and such other matters as required by the Bank, the Bank may issue a certificate of authorisation for the time being of the investment limited partnership, and a certificate so issued shall be conclusive evidence of compliance with all the requirements of this Act in respect of the formation and authorisation of an investment limited partnership. (7) No proposed limited partner of a partnership in relation to which an application for authorisation as an investment limited partnership has been made shall have the benefit of limited liability in relation to the debts of that partnership until the date of the issuing of the certificate of authorisation. (8) The Bank may refuse to authorise an investment limited partnership by a name which is, in the opinion of the Bank, undesirable, but an appeal against a refusal so to authorise shall lie to the Court. F35 [ (8A) In addition to the power to refuse to authorise an investment limited partnership under the preceding, or any other provision, of this section, the Bank may refuse to authorise an investment limited partnership if, in the opinion of the Bank, the name that is specified in the application to be an alternative foreign name in respect of the partnership is undesirable, but an appeal against a refusal so to authorise shall lie to the Court. ] (9) Upon application to the Bank in accordance with this section, the Bank may refuse to authorise the investment limited partnership if— ( a ) the applicant fails to fulfil the requirements set down in this Act or set down by the Bank under this Act; ( b ) the applicant has not satisfied the Bank that it will be in a position to comply with any conditions imposed by the Bank under this Act; ( c ) the Bank is not satisfied that authorisation would be in the interests of the proper and orderly regulation of investment limited partnerships. 9. —(1) Where the Bank decides to refuse an application for authorisation of an investment limited partnership under section 8 , it shall notify the proposed general partner making the application of its decision and of the reasons therefor. (2) Where the Bank refuses, or fails to take a decision on, an application for authorisation of an investment limited partnership within three months of the submission of an application properly made in accordance with the requirements of section 8 , any proposed general partner may apply to the Court in accordance with section 32 . 10. The Bank shall maintain a record of each investment limited partnership authorised under this Act and of all statements, the subject of a filing, return or other submission made in accordance with this Act with or to the Bank, in relation to such investment limited partnership. ] PART IV Administration 11. — F37 [ (1) No alteration in a partnership agreement shall be made unless the alteration has been approved by means of an instrument in writing signed by or on behalf of every partner to the partnership agreement, but this is subject to subsections (1A) and (1B) . ] F38 [ (1A) Notwithstanding subsection (1) , where the partnership agreement so stipulates, an alteration in a partnership agreement may be made if — ( a ) every partner to the partnership agreement has been given notice, in accordance with the provisions of the partnership agreement in that behalf, of the proposed alteration, and ( b ) the alteration is approved by means of an instrument in writing signed by or on behalf of a majority of the partners to the partnership agreement. (1B) Notwithstanding subsection (1) , an alteration in a partnership agreement may be made if the depositary of the partnership has certified in writing that the alteration does not prejudice the interests of the limited partners, but only where the following conditions are satisfied: ( a ) the matter to which the alteration relates is not a matter as respects which the Bank specifies that an alteration may be made only if the alteration is approved by the means referred to in subsection (1) (which specification the Bank is empowered by this paragraph to make); ( b ) the partnership agreement confers a power on the depositary of the investment limited partnership to so certify that the alteration does not prejudice the foregoing interests, and if the partnership agreement contains a stipulation, as referred to in subsection (1A) , that fact does not preclude the application of this subsection and if the partnership agreement confers a power on the depositary, as referred to in paragraph (b) , that fact does not preclude the application of subsection (1A) . (1C) For the purpose of subsection (1A)(b) , a majority of the partners to the partnership agreement shall be regarded as comprising the sum of — ( a ) the number of general partners that constitute the majority of general partners who have approved the alteration by the means there referred to, and ( b ) the number of limited partners that constitute the majority of limited partners who have approved the alteration by the means there referred to, and subsection (2) of section 19A applies for the purpose of this paragraph as it applies, in the circumstances and to the extent provided in subsection (1) of that section, for the purpose of the matters referred to in that subsection (2) . ] (2) No alteration in the partnership agreement or change in the name of the investment limited partnership shall be made or take effect without the prior approval of the Bank. (3) A general partner or F39 [ depositary ] of an investment limited partnership may not be replaced by another general partner or F39 [ depositary ] , nor may additional general partners be admitted to such partnership F40 [ … ] , without the prior approval of the Bank. (4) Where a person is admitted to partnership as a general partner or causes or permits a general partner to be admitted to partnership of an investment limited partnership without the prior approval of the Bank, he shall be guilty of an offence. F41 [ (5) On — ( a ) the admission of any general partner or general partners (who or each of whom is referred to in this subsection as an "incoming general partner"), or ( b ) the replacement, for a general partner or general partners, by another general partner or general partners (who or each of whom is also referred to in this subsection as an "incoming general partner"), in accordance, in either case, with the terms of the partnership agreement and this Act, all rights or property of every description of the investment limited partnership, including all choses in action and any right to make capital calls and receive the proceeds thereof, held or deemed to be held by the general partner or general partners (who or each of whom is referred to in this subsection as an ‘existing general partner’) and all obligations, claims, debts and liabilities of the investment limited partnership to which the existing general partner or partners is or are subject shall vest without the requirement for further formalities in the incoming general partner and any continuing existing general partner and shall be held or owed, as appropriate, by that partner or those partners in accordance with the partnership agreement and this Act. (6) On the withdrawal of a general partner in accordance with the terms of the partnership agreement and this Act — ( a ) all rights or property of every description of the investment limited partnership, including all choses in action and any right to make capital calls and receive the proceeds thereof, held or deemed to be held by the general partner or general partners shall vest without the requirement for further formalities in the remaining general partner or general partners and shall be held by that partner or those partners in accordance with the partnership agreement and this Act, and ( b ) the remaining general partner or general partners shall be liable for, and the property of the investment limited partnership held by that partner or those partners in accordance with the partnership agreement and this Act shall be subject to, all mortgages, charges or security interests and all contracts, obligations, claims, debts and liabilities of the investment limited partnership. ] 12. —(1) An investment limited partnership shall at all times maintain a registered office in the State and a principal place of business in the State which may be at the same address, to which all communications and notices may be addressed. F42 [ (2) Subject to subsection (2A) , every investment limited partnership shall use, at the end of its name, the words — ( a ) "investment limited partnership" or the abbreviation "ILP", or ( b ) in the Irish language, "Comhph á irt í ocht Theoranta Infheist í ochta" or the abbreviation "CTI", and the words and the abbreviation set out in paragraph (a) may be used interchangeably (and, likewise, the words and the abbreviation set out in paragraph (b) may be so used). ] F43 [ (2A) In the circumstances, as provided for in section 8 (4B)(a) , in which an investment limited partnership is permitted to use its alternative foreign name, the investment limited partnership shall use, at the end of that name, the words "investment limited partnership", being those words as expressed in the same language as the alternative foreign name is expressed in. ] (3) F44 [ … ] (4) F44 [ … ] (5) If default is made in compliance with the requirements of subsection (1) or (2) any partner who is in default shall be guilty of an offence. 13. — F45 [ (1) The general partner shall maintain or cause to be maintained at the registered office of the investment limited partnership the following: ( a ) a register of the name and address of each partner of the investment limited partnership, the date on which a person became a limited partner and the date on which a person ceased to be a limited partner; ( b ) a register of — (i) the amounts and dates of the one or more contributions of each partner, and the dates on which those amounts were undertaken, and (ii) the one or more amounts undertaken to be contributed by each partner, and the dates on which those amounts were undertaken to be contributed, and the amounts and dates of any payments representing a return of any part of the contribution of any partner. (2) Except where otherwise provided for in the partnership agreement — ( a ) the register referred to in subsection (1)(a) , shall be open to the inspection of any partner or depositary of the investment limited partnership, or any other person with the consent of the general partner, during business hours, and ( b ) the register referred to in subsection (1)(b) shall be open to the inspection of any person during business hours with the consent of the general partner. ] F46 [ (2A) Each of the registers referred to in subsection (1)(a) and (b) shall also be open to the inspection of — ( a ) the Bank, or ( b ) any other statutory body the performance by which of its functions in a proper and effective manner reasonably requires that the general partner of the partnership concerned permit the inspection by it of that register. (2B) In subsection (2A) "statutory body" means a body established by or under an enactment (other than the Companies Act 2014 or a former enactment relating to companies within the meaning of section 5 of that Act). ] (3) F47 [ Each of the registers referred to in subsection (1)(a) and (b) ] shall be prima facie evidence of the matters which are by subsection (1) directed to be inserted therein. F48 [ (4) If default is made in compliance with any of the requirements of this section, each general partner of the investment limited partnership concerned shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine and shall indemnify any person who thereby suffers any loss. ] F49 [ (5) If the contravention in respect of which a person is convicted of an offence under subsection (4) is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a class D fine. (6) If — ( a ) the name of any person is, without sufficient cause, entered in, or omitted from, the register referred to in paragraph (a) of subsection (1) in contravention of that subsection, or ( b ) default is made as to the specification of the correct particulars made in any entry on the register referred to in paragraph (a) or (b) of subsection (1) in contravention of that subsection, the person aggrieved, or any partner of the investment limited partnership concerned or the investment limited partnership itself, may apply to the High Court for rectification of the register referred to in paragraph (a) or, as the case may be, paragraph (b) of subsection (1) (the "register concerned"). (7) Where an application is made under subsection (6) , the High Court may either refuse the application or may order rectification of the register concerned and, unless an application under section 42A (2) has been made or is pending in respect of the contravention concerned, may order payment by the investment limited partnership concerned of compensation for any loss sustained by any party aggrieved. (8) The High Court when making an order for the rectification of the register concerned shall by its order direct, if appropriate, notice of the rectification to be given to the Bank. ] 14. —(1) Where the Bank, in exercise of the powers conferred upon it by section 7 (4) (b) requires the issuing by an investment limited partnership of a prospectus and an investment limited partnership fails to comply with that requirement or a prospectus so issued fails to comply with the contents so required of that prospectus, if any, the general partner shall be guilty of an offence. (2) The Companies Acts, 1963 to 1990 shall not apply in relation to a prospectus published by an investment limited partnership. (3) F50 [ … ] 15. —(1) The Bank may exempt an investment limited partnership from the provisions of S.I. No. 396 of 1993, where its sole business is the investment of its funds in property with the aim of spreading investment risk and giving its partners the benefit of the management of its assets. (2) The Bank may impose such conditions as to form, content and periodicity of accounts of an investment limited partnership as it deems appropriate. 16. —(1) An investment limited partnership shall cause to be published and filed with the Bank an annual report the contents of which shall be prescribed by the Bank. (2) The accounts of an investment limited partnership and the accounting information given in the annual report must be audited by one or more persons empowered to audit accounts in accordance with the Companies Acts and the auditor's report, including any qualifications, shall be produced in full in the annual report. (3) If the auditor of an investment limited partnership— ( a ) has reason to believe that the information provided to investors or to the Bank in the reports or other documents of the investment limited partnership does not truly describe the financial situation and the assets and liabilities thereof, or ( b ) has reason to believe that the assets of the investment limited partnership are not or have not been invested in accordance with this Act or the partnership agreement, or ( c ) has reason to believe that there exist circumstances which are likely to affect materially the ability of the investment limited partnership to fulfil its obligations to limited partners or meet any of its financial obligations, or ( d ) has reason to believe that there are material defects in the financial systems and controls or returns of an investment limited partnership under this Act or conditions imposed thereunder, or its accounting records, or ( e ) has reason to believe that there are material inaccuracies in or omissions from any returns of a financial nature made by the investment limited partnership to the Bank, or ( f ) proposes to qualify any certificate which he is to provide in relation to financial statements under this Act or regulations made thereunder, he shall report the matter to the Bank in writing without delay. (4) The auditor of an investment limited partnership shall, if requested by the Bank, furnish to the Bank a report stating whether in his opinion and to the best of his knowledge the investment limited partnership has or has not complied with a specified obligation of a financial nature under this Act or conditions imposed thereunder. (5) Where the auditor of an investment limited partnership so requests, the Bank shall provide to the auditor in writing details of such returns of a financial nature to the Bank by the investment limited partnership as the auditor requests for the purpose of enabling him to exercise his functions under this Act. (6) The auditor of an investment limited partnership shall send to the investment limited partnership a copy of any report made by him to the Bank under subsections (3) and (4) . (7) ( a ) Whenever the Bank is of the opinion that the exercise of its functions under this Act or the protection of the interests of limited partners so requires, it may require the auditor of an investment limited partnership to supply it with such information as it may specify in relation to the audit of the business of the investment limited partnership and the auditor shall comply with the requirement. ( b ) The Bank may require that in supplying information for the purposes of this subsection, the auditor shall act independently of the investment limited partnership. (8) No duty to which the auditor to an investment limited partnership may be subject shall be regarded as contravened, and no liability to the investment limited partnership or its partners, creditors or other interested parties, shall attach to the auditor by reason of his compliance with any obligation imposed on him by or under this section. (9) Where non-performance of the publication of an annual report in approved form in accordance with subsections (1) and (2) occurs, each general partner shall be guilty of an offence and shall indemnify any person who thereby suffers any loss. F51 [ (10) An auditor who fails to comply with subsection (3) , (4) or (6) shall be guilty of an offence. ] (11) A general partner or F52 [ depositary ] who supplies information which he knows to be false to an auditor under this section shall be guilty of an offence and shall indemnify any person who thereby suffers loss. 17. —Any debt or obligation incurred by a general partner in the conduct of the business of an investment limited partnership shall be a debt or obligation of the investment limited partnership. 18. —(1) Notwithstanding anything provided in the partnership agreement, a person may be admitted to an investment limited partnership as a limited partner with the consent of the general partner, or if more than one general partner, of all of them, and if by assignment, subject to subsection (2) without any requirement to obtain the consent of the existing limited partners. (2) Subject to subsection (1) a limited partner may assign absolutely the whole or any part of his partnership interest and an assignee shall as of the date of such assignment become a limited partner with all of the rights and obligations of the assignor relating to the investment limited partnership, including the obligation of the assignor to make contributions in respect of the partnership interest or the part thereof assigned but excluding any liability of the assignor arising pursuant to section 6 , 12 or 20 . (3) A limited partner may assign the whole or any part of his partnership interest by way of mortgage or charge provided that no such assignment shall operate to constitute the assignee a partner in the investment limited partnership or relieve the assignor of any of its partnership obligations and section 31 of the Act of 1890 shall apply to any such assignment. 19. —(1) Subject to any express or implied term of the partnership agreement— ( a ) any difference arising as to matters connected with the business of an investment limited partnership shall be decided by the general partner and if more than one by a majority of the general partners; ( b ) a limited partner may by himself or his agents at any reasonable time inspect the books of the investment limited partnership and inquire into the state and prospects of the partnership business with such assistance as may reasonably be required of the general partner, and may advise the partners thereon. (2) Notwithstanding any rules of equity or common law applicable to partnerships, but subject to conditions imposed by the Bank, a partner may enter into any contract, including for the lending of money, or transact any business with an investment limited partnership, and such partner shall have the same rights and obligations with respect thereto as a person who is not a partner. 19A. (1) Subsection (2) shall apply with respect to — ( a ) any matter that a partnership agreement provides must be decided upon by a majority of the limited partners (whether the agreement provides that the decision thereon be obtained by means of votes cast by the limited partners, the giving of their consent or howsoever otherwise), or ( b ) any provision of a partnership agreement that is expressed to operate (whatever the words used) by reference to the rights or interests (or incidents attaching to such rights or interests) of a majority of the limited partners, if the partnership agreement, with respect to the foregoing matter or the foregoing provision, does not define or otherwise make provision for the construction of the expression "majority of limited partners". (2) For the purposes of the matter referred to in subsection (1)(a) or, as the case may be, the provision referred to in subsection (1)(b) , a majority of the limited partners shall be taken to be constituted of a simple majority of the limited partners calculated by reference to the value of the contributions of the limited partners at the time the determination of that majority falls to be made. (3) Where the terms concerned of the partnership agreement relate to a class or category of limited partners or to limited partners holding assets in a sub-fund (within the meaning of the Schedule), references in the preceding subsections to limited partners include references to — ( a ) such a class or category of limited partners, or ( b ) the limited partners holding such assets. ] 20. (1) A limited partner — ( a ) shall be not liable to contribute any capital or property to the investment limited partnership except in the circumstances provided for in the partnership agreement, ( b ) may receive out of the capital of the investment limited partnership a payment representing the return of any part of his contribution to the partnership in the circumstances provided for in the partnership agreement, but only if — (i) the following duty of the general partner, under the 2013 Regulations, has been discharged, namely, the duty — (I) to ensure that net asset value of the investment limited partnership is calculated in the manner provided for by those Regulations, and (II) being that duty as of the most recent occasion (prior to the payment to the limited partner), on which it fell, in accordance with those Regulations, to be discharged, and (ii) the net asset value of the investment limited partnership, as calculated on that foregoing most recent occasion, was greater than zero, and ( c ) shall not be liable for the debts or obligations of the investment limited partnership beyond the amount of the partnership property contributed by the limited partner which is available to the general partner to meet such debts or obligations. (2) In this section "2013 Regulations" means the European Union (Alternative Investment Fund Managers) Regulations 2013. ] 21. —A limited partner shall cease to be a limited partner of an investment limited partnership on the absolute assignment of all of his partnership interest or on the return of the whole of his contribution including the release of any undertaking to contribute to the partnership provided that, notwithstanding any term of the partnership agreement or of any other agreement to the contrary no such assignment shall relieve the assignor of any liability arising under section 6 , 12 or 20 . 22. —(1) Subject to subsections (2) and (3) , legal proceedings in respect of any liability of or to an investment limited partnership including proceedings to enforce a foreign judgment by or against the investment limited partnership may be instituted by or against any one or more of the general partners only and no limited partner shall be a party to or named in such proceedings. (2) Subsection (1) shall be without prejudice to the right of a general partner or a creditor of an investment limited partnership or other person to join in or otherwise institute proceedings against any one or more of the limited partners who may be liable for the debts of the investment limited partnership F55 [ , including in a case where such liability arises pursuant to section 6 ] . (3) A limited partner may with the leave of the court, bring an action on behalf of an investment limited partnership if the general partners with authority to bring such proceedings refuse to do so, and the court determines that that refusal is oppressive to the limited partner or in disregard of his interests as a limited partner. 23. — F56 [ (1) ] For the purposes of the application of sections 30 , 31 , 32 and 36 of the Bankruptcy Act, 1988 , a limited partner shall not be regarded as a partner of an investment limited partnership. F56 [ (2) For the purposes of its application to investment limited partnerships, section 30 of the Bankruptcy Act 1988 shall only apply where the general partner adjudicated bankrupt is the sole general partner. ] F57 [ 24. — (1) ( a ) The F58 [ depositary ] must enquire into the conduct of the general partners in the management of the investment limited partnership in each annual accounting period and report thereon to the limited partners. ( b ) The F58 [ depositary ] ’s report shall be delivered to the general partner in good time to enable it to include a copy of the report in the Annual Report required under section 16 . ( c ) The F58 [ depositary ] ’s report shall state whether in the F58 [ depositary ] ’s opinion the general partner has managed the investment limited partnership in that period — (i) in accordance with this Act or regulations made hereunder, directions of the Bank or the partnership agreement the limitations imposed on the investment and borrowing powers of the general partner and F58 [ depositary ] by the partnership agreement or directions of the Bank, and (ii) otherwise in accordance with the provisions of the partnership agreement and this Act, and, if it has not done so, in what respect in which it has not done so and the steps which the F58 [ depositary ] has taken in respect thereof. (2) The F58 [ depositary ] must carry out such additional duties as may be specified by the Bank by means of conditions imposed under section 7 (2)(b) . (3) Unless the general partners or any one of them under the partnership agreement is authorised by the Bank under Part 2 of the European Union (Alternative Investment Fund Managers) Regulations 2013 or by the competent authority in its home Member State in accordance with Chapter II of Directive 2011/61/EC of the European Parliament and of the Council of 8 June 2011 or in its Member State of reference in accordance with that Chapter II, the F58 [ depositary ] must — ( a ) carry out the instructions of the general partner unless they conflict with this Act or regulations made hereunder, directions of the Bank or the partnership agreement; ( b ) ensure that in transactions involving investment limited partnership’s assets any consideration is remitted to it within the usual time limits; ( c ) ensure that an investment limited partnership’s income is applied in accordance with this Act or regulations made hereunder, directions of the Bank or the partnership agreement; ( d ) ensure that the value of the interests of the partners in the investment limited partnership is calculated in accordance with this Act and the partnership agreement; ( e ) ensure that contributions and withdrawals of contributions of partners’ capital are effected in accordance with the partnership agreement and the Act. (4) Save where any of the general partners or any one of them is or are authorised as mentioned in subsection (3) , any provision whether contained in the partnership agreement or in any contract with an investment limited partnership F59 [ or otherwise ] for exempting a F60 [ … ] general partner or auditor of an investment limited partnership from, or indemnifying him against any liability which would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust of which he may be guilty in relation to an investment limited partnership shall be void, so, however, that an investment limited partnership may indemnify any such F60 [ … ] general partner or auditor against any liability incurred by him in defending proceedings in which judgement is given in his favour or in which he is acquitted. F61 [ (4A) An investment limited partnership may purchase and maintain for any general partner or auditor of the partnership insurance in respect of any liability referred to in subsection (4) . (4B) In subsections (4) and (4A) a reference to a general partner or auditor includes a reference to any former or current general partner or auditor of an investment limited partnership. ] (5) A F58 [ depositary ] who fails to comply with subsection (1) or (2) or any of paragraphs (a) to (e) of subsection (3) shall be guilty of an offence and shall indemnify any person who thereby suffers loss. ] F62 [ (6) If a partnership agreement contains a provision to the effect that a partner who fails to perform any of his obligations under, or otherwise breaches any provision of, the partnership agreement may be subject to, or suffer remedies for, or consequences of, the failure or breach that are specified in the partnership agreement or otherwise applicable under any law then those remedies or consequences shall not be unenforceable or rendered inapplicable solely on the basis that they are penal in nature. (7) Without prejudice to the generality of subsection (6) , the remedies or consequences to which that subsection applies include: ( a ) reducing, eliminating or forfeiting — (i) the partnership interest in the investment limited partnership of the partner who has failed to perform, or has breached, the obligation or provision concerned (in this subsection referred to as the "defaulting partner" (and the partners who have neither failed to perform, nor breached, the obligation or provision concerned are referred to in this subsection as the "non-defaulting partners")), or (ii) any rights of the defaulting partner under the partnership agreement; ( b ) subordinating the partnership interest in the investment limited partnership (in this subsection referred to as a "partnership interest") of the defaulting partner to the interests of non-defaulting partners; ( c ) effecting a sale or forfeiture of the defaulting partner’s partnership interest; ( d ) arranging for the lending by other partners or other persons to the defaulting partner of the amount necessary to meet the relevant commitment of the defaulting partner; ( e ) providing for the fixing of the value of the defaulting partner’s partnership interest by means of appraisal or by the application of a formula and the redemption or sale of the defaulting partner’s partnership interest at that value. (8) A general partner who, on the basis of a provision contained in the partnership agreement, and a failure or breach, referred in subsection (6) , purports in good faith — ( a ) to make a decision that a partner be subject to, or suffer remedies for, or consequences of, the failure or breach that are specified in the partnership agreement or otherwise applicable under any law, ( b ) to make a decision that a partner shall not be subject to, and shall not suffer remedies for, or consequences of, the foregoing failure or breach, or shall only be subject to, or suffer, certain remedies or consequences in that behalf (in this subsection referred to as a "partial decision"), or ( c ) to give effect to a decision referred to in paragraph (a) or to a partial decision and, in either case, to take the appropriate steps (if any) required to be taken for that purpose, shall not be liable for having made any such decision nor, as the case may be, for having given effect to a decision referred to in paragraph (a) or to a partial decision or, in either case, for having taken any aforementioned steps. (9) References in the preceding subsections to a partnership interest shall be construed as including references to any part of a partnership interest. ] PART V Powers of the Bank 25. —(1) F63 [ A general partner ] and F64 [ depositary ] shall keep at an office or offices within the State such books and records (including accounts) as may be specified from time to time by the Bank in the due discharge by the Bank of its statutory functions and shall notify the Bank of the address of every office at which such book or record is kept for the purposes of this Act. (2) F65 [ … ] (3) Books and records kept pursuant to this section shall be in addition to books or records required to be kept by or under any other enactment, and shall be retained for at least such period as the Bank may specify in respect of such book or record. (4) ( a ) In this section, section 26 and section 27 — F66 [ … ] “ associated undertaking ” means, as appropriate— (i) a holding company of the general partner or F64 [ depositary ] , (ii) a subsidiary company of the general partner or F64 [ depositary ] , (iii) a company which is a subsidiary of a body corporate where the general partner or F64 [ depositary ] concerned is also a subsidiary of a body corporate, but neither company is a subsidiary of the other, (iv) in the case of a general partner or F64 [ depositary ] any other body corporate that is not a subsidiary of the general partner or F64 [ depositary ] but in respect of which the company is beneficially entitled to more than 20 per cent. in nominal value of either the allotted share capital or of the shares carrying voting rights (other than voting rights which arise only in specified circumstances) in that other body corporate, (v) a partnership in which the general partner or F64 [ depositary ] has an interest and whose business is, or at the relevant time was, in the opinion of the Bank, materially relevant to any inspection of the general partner or F64 [ depositary ] being carried out or proposed to be carried out under this section; “ holding company ” and “ subsidiary company ” have the meanings given to them by section 155 of the Companies Act, 1963 . ( b ) References in this section to books, records or other documents or to any of them, shall be construed as including any document or information kept in a non-legible form (by the use of electronics or otherwise) which is capable of being reproduced in a legible form and all the electronic or other automatic means, if any, by which such document or information is so capable of being reproduced to which the person whose books, records or other such documents are inspected for the purposes of this Regulation, has access. (5) Any person who is required to provide an authorised person with books, records or other documents under this section, or to give any information to an authorised person, and who fails to do so, or who knowingly provides an authorised person with information which is false, shall be guilty of an offence. 26. —(1) Without prejudice to the powers of the Bank under this Act, the Bank may apply to the court and the court may, if satisfied of the matters set forth in subsection (2) , appoint one or more inspectors to investigate the affairs of that investment limited partnership and, where necessary, any associated undertaking and to report thereon in such manner as the court directs. (2) The court may appoint an inspector under this section where it is satisfied that there are circumstances suggesting that— ( a ) limited partners are being oppressed or their interests as limited partners disregarded, ( b ) limited partners are not being given all the information relating to the affairs of the investment limited partnership which they might reasonably expect, ( c ) the affairs of the investment limited partnership are being conducted with the effect of defrauding its creditors or the creditors of any other person or in an unlawful manner, ( d ) there has been persistent default by the investment limited partnership, its general partner or F67 [ depositary ] in complying with the requirements of this Act, ( e ) persons connected with the formation or management of an investment limited partnership have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards the limited partners, or any one of them, ( f ) the appointment of an inspector is otherwise required in the interests of the proper and orderly regulation of investment limited partnerships. (3) The court may consider matters in exercising its discretion under this provision notwithstanding that they relate to events occurring outside the State. (4) Before applying to the court to appoint an inspector under this section, the Bank may, if it is of the opinion that it would not be prejudicial to the interests of limited partners or creditors of the investment limited partnership, notify the general partner and F67 [ depositary ] of the investment limited partnership concerned in writing of the action which it proposes to take and of the grounds on which it proposes to take and, in such case, the general partner shall within such period as the Bank may set out in the notification, be entitled to give to the Bank a statement in writing explaining its activities. (5) Where an inspector appointed under subsection (1) thinks it necessary for the purposes of his investigation to investigate the affairs of any other investment limited partnership or any body corporate or present or former associated undertaking of the investment limited partnership he shall apply to the court for an order to widen the scope of his investigation, which order the court may make if it thinks it necessary for the purposes of the investigation, and if granted such order, shall have power to do so, and shall report on the affairs of the investment limited partnership or body corporate or prese