Securities and Futures Act 2001 · 2020 Revised Edition · Part 13 · Offers of Investments
286. Authorised schemes
Feedback & supportLast amended by an amending law of 2018. 5 amendments in all.
The Authority may, upon an application made to the Authority in such form and manner as may be prescribed by regulations made under section 341, authorise a collective investment scheme constituted in Singapore, subject to —
subsection (2) or (2A), as the case may be;
the conditions specified in subsection (3); and
such conditions or restrictions as the Authority thinks fit to impose by written notice.
The Authority may, at any time, by written notice to the responsible person for a collective investment scheme authorised under subsection (1), vary or revoke any condition or restriction imposed by the Authority under subsection (1)(c) or impose such further condition or restriction as the Authority thinks fit.
responsible person
“responsible person”, in relation to a collective investment scheme, means —(a)in the case of a scheme that is constituted as a VCC or a sub‑fund — the VCC;(b)in the case of a scheme that is constituted as a corporation other than a VCC — the corporation; or(c)in the case of any other scheme — the manager for the scheme;
The Authority may authorise, under subsection (1), a collective investment scheme which is constituted as a unit trust if and only if the Authority is satisfied that —
collective investment scheme
“collective investment scheme” means —(a)an arrangement in respect of any property —(i)under which the participants do not have day‑to‑day control over the management of the property, whether or not the participants have the right to be consulted or to give directions in respect of such management;(ii)under which either or both of the following characteristics are present:(A)the property is managed as a whole by or on behalf of a manager;(B)the contributions of the participants, and the profits or income out of which payments are to be made to the participants, are pooled; and(iii)under which either or both of the following characteristics are present:(A)the effect of the arrangement is to enable the participants (whether by acquiring any right, interest, title or benefit in the property or any part of the property or otherwise) —(AA)to participate in or receive profits, income, or other payments or returns arising from the acquisition, holding, management, disposal, exercise, redemption or expiry of, any right, interest, title or benefit in the property or any part of the property; or(AB)to receive sums paid out of such profits, income, or other payments or returns;(B)the purpose, purported purpose or purported effect of the arrangement is to enable the participants (whether by acquiring any right, interest, title or benefit in the property or any part of the property or otherwise) —(BA)to participate in or receive profits, income, or other payments or returns arising from the acquisition, holding, management, disposal, exercise, redemption or expiry of, any right, interest, title or benefit in the property or any part of the property; or(BB)to receive sums paid out of such profits, income, or other payments or returns,whether or not —(BC)the arrangement provides for the participants to receive any benefit other than those set out in sub‑paragraph (BA) or (BB) in the event that the purpose, purported purpose or purported effect is not realised; or(BD)the purpose, purported purpose or purported effect is realised; or(b)an arrangement which is an arrangement, or is of a class or description of arrangements, specified by the Authority as a collective investment scheme by notice in the Gazette,but does not include —(c)an arrangement operated by a person otherwise than by way of business;(d)an arrangement under which each of the participants carries on a business other than investment business and enters into the arrangement solely incidental to that other business;(e)an arrangement under which each of the participants is a related corporation of the manager;(f)an arrangement made by or on behalf of an entity solely for the benefit of persons, each of whom is —(i)a bona fide director or equivalent person, a former director or equivalent person, a consultant, an adviser, an employee or a former employee of that entity or, where that entity is a corporation, a related corporation of that entity; or(ii)a spouse, widow or widower, or a child, adopted child or stepchild below 18 years of age, of such director or equivalent person, former director or equivalent person, employee or former employee;(g)an arrangement made by or on behalf of 2 or more entities solely for the benefit of persons, each of whom is —(i)a bona fide director or equivalent person, a former director or equivalent person, a consultant, an adviser, an employee or a former employee of any of those entities or, where any of those entities is a corporation, a related corporation of the entity which is a corporation; or(ii)a spouse, widow or widower, or a child, adopted child or stepchild below 18 years of age, of such director or equivalent person, former director or equivalent person, employee or former employee;(h)a franchise;(i)an arrangement under which money received by an advocate and solicitor from his or her client, whether as a stakeholder or otherwise, acting in his or her professional capacity in the ordinary course of his or her practice, or under which money is received by a statutory body as a stakeholder in the carrying out of its statutory functions;(j)an arrangement made by any co‑operative society registered under the Co‑operative Societies Act 1979 in accordance with the objects thereof solely for the benefit of its members;(k)an arrangement made for the purposes of any chit fund permitted to operate under the Chit Funds Act 1971;(l)an arrangement arising out of a life policy within the meaning of the Insurance Act 1966;(m)a closed‑end fund constituted either as an entity, a sub‑fund or a trust;(n)an arrangement under which the whole amount of each participant’s contribution is a deposit as defined in section 4B of the Banking Act 1970;(o)an arrangement of which —(i)the predominant purpose is to enable the participants to share in the use or enjoyment of the property or to make its use or enjoyment available gratuitously to others; and(ii)the property does not consist of any of the following:(A)any currency of any country or territory;(B)any capital markets products;(C)any policy as defined in the First Schedule to the Insurance Act 1966;(D)any deposit as defined in section 4B of the Banking Act 1970;(E)any credit facilities as defined in section 2(1) of the Banking Act 1970;(p)an arrangement which is an arrangement, or is of a class or description of arrangements, specified by the Authority as not constituting a collective investment scheme by notice in the Gazette;
there is a manager for the scheme which satisfies the requirements in subsection (3);
there is a trustee for the scheme approved under section 289;
there is a trust deed in respect of the scheme entered into by the manager and the trustee for the scheme that complies with prescribed requirements; and
the scheme, the manager for the scheme and the trustee for the scheme comply with this Act and the Code on Collective Investment Schemes.
The Authority may authorise under subsection (1) a collective investment scheme constituted as a VCC or a sub‑fund, if and only if the Authority is satisfied that —
VCC
“VCC” means a VCC or variable capital company as defined in section 2(1) of the Variable Capital Companies Act 2018;
there is a manager for the scheme that satisfies the requirements in subsection (3);
there is a custodian for the scheme that is a trustee approved under section 289;
the constitution of the VCC and contractual arrangements in respect of the scheme comply with prescribed requirements and the Variable Capital Companies Act 2018;
there are at least 3 directors of the VCC, at least one of whom is independent in accordance with the criteria set out in the Code on Collective Investment Schemes; and
the VCC, the scheme, the manager for the scheme and the custodian for the scheme comply with this Act and the Code on Collective Investment Schemes.
It is a condition for the authorisation of a collective investment scheme under subsection (1) that —
the manager of the scheme is —
in the case of a collective investment scheme —
that is a trust;
that invests primarily in real estate and real estate‑related assets specified by the Authority in the Code on Collective Investment Schemes; and
all or any units of which are listed for quotation on an approved exchange,the holder of a capital markets services licence for real estate investment trust management; and
in all other cases, the holder of a capital markets services licence for fund management or a person exempted under section 99(1)(a), (b), (c) or (d) in respect of fund management; and
the manager for the scheme is a fit and proper person, in the opinion of the Authority, and in considering if a person satisfies this requirement, 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.
The Authority may authorise, under subsection (1), a collective investment scheme which is not constituted as a unit trust, a VCC or a sub‑fund if and only if the Authority is satisfied that the scheme and the manager for the scheme comply with such requirements as may be prescribed.
sub‑fund
“sub‑fund” has the meaning given by section 2(1) of the Variable Capital Companies Act 2018;
Without affecting subsection (2) or (2A), the Authority may refuse to authorise any collective investment scheme under subsection (1) where it appears to the Authority that it is not in the public interest to do so.
The Authority must not refuse to authorise a collective investment scheme under subsection (1) without giving the person who made the application an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to authorise the collective investment scheme on the basis of any of the following circumstances:
the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere;
the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere;
a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme.
The responsible person for a collective investment scheme may, within 30 days after the responsible person is notified that the Authority has refused to authorise that scheme under subsection (1), appeal to the Minister whose decision is final.
An application made under subsection (1) must be accompanied by such information or record as the Authority may require.
record
“record” means information that is inscribed, stored or otherwise fixed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
The Authority may publish for public information, in such manner as it considers appropriate, particulars of any collective investment scheme authorised under subsection (1).
The responsible person for a collective investment scheme authorised under subsection (1) and either —
the approved trustee for the scheme if it is one constituted as a unit trust; or
the custodian for the scheme if it is one constituted as a VCC or sub‑fund,to the extent applicable, must ensure that —
every condition or requirement set out in subsection (2) or (2A) (as the case may be), and subsections (3) and (4); and
every condition or restriction imposed by the Authority under subsection (1)(c) or (1A),as applicable to that scheme, continue to be satisfied.
The manager of an authorised real estate investment trust must —
manager
“manager”, in relation to a collective investment scheme, means a person, by whatever name called, who is responsible for managing the property of, or operating, the collective investment scheme;
act in the best interests of all the participants of the authorised real estate investment trust as a whole; and
give priority to the interests of all the participants of the authorised 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.
A director of the manager of an authorised real estate investment trust must —
director
“director” has the meaning given by section 4(1) of the Companies Act 1967;
take all reasonable steps to ensure that the manager discharges its duties under subsection (10A); and
give priority to the interests of all the participants of the authorised 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.
The duty of a director of the manager mentioned in subsection (10B) overrides any conflicting duty of such director under section 157 of the Companies Act 1967.
Civil or criminal proceedings may not be brought against a director of the manager of an authorised real estate investment trust for a breach of section 157 of the Companies Act 1967, 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 (10B).
real estate investment trust
“real estate investment trust”, except in Division 3 of Part 7, means a collective investment scheme —(a)that is authorised under section 286 or recognised under section 287;(b)that is a trust;(c)that invests primarily in real estate and real estate‑related assets specified by the Authority in the Code on Collective Investment Schemes; and(d)all or any units of which are listed for quotation on an approved exchange;
To avoid doubt, no action or proceedings of any kind may be brought by or on behalf of all or any of the participants of an authorised real estate investment trust against a director of the manager of that authorised real estate investment trust for any breach or alleged breach of the duties imposed by subsection (10B) except to the extent and in the manner provided for under section 295C.
Despite subsection (10), a failure by any person to comply with the Code on Collective Investment Schemes does not of itself render that person liable to criminal proceedings but such failure may, in any proceedings whether civil or criminal, be relied upon by any party to the proceedings as tending to establish or to negate any liability which is in question in the proceedings.
Code on Collective Investment Schemes
“Code on Collective Investment Schemes” means the Code on Collective Investment Schemes referred to in section 284 which is issued by the Authority under section 321(1);
If any person fails to comply with the Code on Collective Investment Schemes, the Authority may, in addition to, or as an alternative to any action under section 288, take such other action as it deems fit.
The responsible person for a collective investment scheme which is authorised under subsection (1) must provide such information or record regarding the scheme as the Authority may, at any time, require for the proper administration of this Act.
Where the manager for a collective investment scheme which is constituted as a unit trust and authorised under subsection (1) fails to comply with this Act or the Code on Collective Investment Schemes, the Authority may direct the trustee for the scheme to remove that person and appoint a new manager for the scheme.
Where the manager for a collective investment scheme that is constituted as a VCC or a sub‑fund, and authorised under subsection (1), fails to comply with this Act or the Code on Collective Investment Schemes, the Authority may direct the VCC to remove that person and appoint a new manager for the scheme.
Any person who contravenes subsection (10) or (13) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.
A manager of an authorised real estate investment trust which contravenes subsection (10A) —
shall be liable to all the participants of the authorised 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 authorised 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.
A director of the manager of an authorised real estate investment trust who contravenes subsection (10B) —
shall be liable to all the participants of the authorised 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 authorised 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.