Clause 158

by deleting subsections (2) and (3) and substituting the following subsections:“(2) In determining whether to recognise a collective investment scheme under subsection (1), the Authority may have regard to the following factors:

whether the laws and practices of the jurisdictions under which the scheme is constituted and regulated affords to investors in Singapore protection at least equivalent to that provided to them by or under this Division in the case of comparable authorised schemes;

such other criteria as may be prescribed by regulations made under section 341.(3) Unless otherwise notified in writing by the Authority to the responsible person of the collective investment scheme, the following conditions must be satisfied for the recognition of every collective investment scheme under subsection (1):

there is a manager for the scheme that —

is licensed or regulated in the jurisdiction of its principal place of business; and

is a fit and proper person in the opinion of the Authority, and in considering if a person is a fit and proper person, the Authority may take into account any matter relating to —

any person who is or will be employed by or associated with the manager;

any person exercising influence over the manager; or

any person exercising influence over a related corporation of the manager;

there is a representative for the scheme for the functions set out in subsection (13) who is —

an individual resident in Singapore; or

a company, or a foreign company registered under Division 2 of Part XI of the Companies Act (Cap. 50);

the scheme, the manager for the scheme and (where applicable) the trustee for the scheme comply with this Act and the Code on Collective Investment Schemes; and

the responsible person for the collective investment scheme furnishes to the Authority —

the name of the representative mentioned in paragraph (b) and the representative’s address (where such representative is a corporation) or contact particulars (where such representative is an individual); and

any information prescribed by regulations made under section 341.”;

by deleting subsection (9) and substituting the following subsections:“(9) The responsible person for a recognised real estate investment trust must ensure that the conditions set out in subsection (3), and every condition or restriction imposed by the Authority under subsection (1)(c) or (1A), as applicable to that scheme continues to be satisfied.(9A) The manager of a recognised real estate investment trust must —

act in the best interests of all the participants of the recognised real estate investment trust as a whole; and

give priority to the interests of all the participants of the recognised real estate investment trust as a whole over the manager’s own interests and the interests of the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the manager’s own interests or the interests of the shareholders of the manager.(9B) A director of the manager of a recognised real estate investment trust must —

take all reasonable steps to ensure that the manager discharges its duties under subsection (9A); and

give priority to the interests of all the participants of the recognised real estate investment trust as a whole over the interests of the manager and the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the interests of the manager or the shareholders of the manager.(9C) A duty of a director of the manager under subsection (9B) overrides any conflicting duty of such director under section 157 of the Companies Act.(9D) Civil or criminal proceedings may not be brought against a director of the manager of a recognised real estate investment trust for a breach of section 157 of the Companies Act, any fiduciary duty or any other duty under common law, in relation to any act or omission if such act or omission was required by subsection (9B).(9E) To avoid doubt, no action or proceedings whatsoever may be brought by or on behalf of all or any of the participants of a recognised real estate investment trust against a director of the manager of that recognised real estate investment trust for any breach or alleged breach of the duties imposed by subsection (9B) except to the extent and in the manner provided for under section 295C.”;

by deleting the words “subsection (2)(e)” in subsection (13)(c) and substituting the words “subsection (3)(d)”; and

by inserting, immediately after subsection (14), the following subsections:“(15) A manager of a recognised real estate investment trust which contravenes subsection (9A) —

shall be liable to all the participants of the recognised real estate investment trust as a whole —

for any profit or financial gain directly or indirectly made by the manager or any of its related corporations; or

for any damage suffered by all the participants of the recognised real estate investment trust as a whole,as a result of the contravention; and

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000.(16) A director of the manager of a recognised real estate investment trust who contravenes subsection (9B) —

shall be liable to all the participants of the recognised real estate investment trust as a whole —

for any profit or financial gain directly or indirectly made by the director or the manager or any related corporation of the manager; or

for any damage suffered by all the participants of the recognised real estate investment trust as a whole,as a result of the contravention; and

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both.”.