The Undertakings for Collective Investment in Transferable Securities Regulations 2011 No. 1613

[F1 PART 5A U.K. DEPOSITARIES

Textual Amendments

F1 Pts. 5A, 5B inserted (18.3.2016) by The Undertakings for Collective Investment in Transferable Securities Regulations 2016 (S.I. 2016/225), regs. 1, 3(3)

Interpretation U.K.

15A.   The interpretative provisions in regulation 7 shall apply to this Part.

Depositary liability: general provisions U.K.

15B.— (1) This regulation, and regulations 15C and 15D, apply in relation to the depositary of a [F2 UK] UCITS.

(2) Any liability of the depositary to the UCITS, or to unit-holders of the UCITS, under regulation 15C or 15D is not affected by—

(a) any delegation by the depositary of its functions as referred to in [F3 rules 6.6B.25, 6.6B.26 and 6.6B.27 of the Collective Investment Schemes sourcebook];

(b) any contractual provision that purports to exclude or limit the depositary’s liability for losses under regulation 15C or 15D; or

(c) any exclusion or limitation by agreement of the depositary’s liability for losses under regulation 15C or 15D.

(3) Any provision or agreement that falls within paragraph (2)(b) or (c) will be void.

(4) Any obligation or liability of a depositary under regulation 15C or 15D to the unit-holders of the UCITS may be invoked either directly or indirectly through the management company provided that this does not lead to a duplication of redress or to unequal treatment of unit-holders.

Textual Amendments

F2 Word in reg. 15B(1) inserted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 42(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 15B(2)(a) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 42(b) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

Depositary liability for loss of financial instruments held in custody U.K.

15C.— (1) This regulation applies where a financial instrument held in custody in accordance with [F4 rule 6.6B.18 of the Collective Investment Schemes sourcebook] by—

(a) the depositary, or

(b) a third party to whom custody of the financial instrument has been delegated or sub-delegated,

has been lost in the conditions or circumstances described in [F5 Article 18 of Commission Delegated Regulation (EU) 2016/438 of 17 December 2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regard to obligations of depositaries].

(2) Subject to paragraph (3), the depositary is liable to the UCITS and to the unit-holders of the UCITS for loss of the financial instrument and must return a financial instrument of an identical type or the corresponding amount to the UCITS, or to the management company acting on behalf of the UCITS, without undue delay.

(3) The depositary is not liable under paragraph (2) nor is it required to comply with the obligation in that paragraph if it can prove that the loss has arisen as a result of an external event beyond the depositary’s reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary.

Textual Amendments

F4 Words in reg. 15C(1) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 43(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in reg. 15C(1) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 43(b) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

Depositary liability for other losses U.K.

15D.   If a [F6 UK] UCITS, or unit-holders of a [F7 UK] UCITS, have suffered losses other than a loss of a financial instrument referred to in regulation 15C, the depositary is liable to the UCITS or to the unit-holders of the UCITS for those losses, if the losses are as a result of the depositary’s negligent or intentional failure to comply with any implementing provision that applies to it.]

Textual Amendments

F6 Word in reg. 15D inserted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 44(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F7 Word in reg. 15D inserted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 44(b) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)