Singapore legislation
Section 287
Section 287
Recognised schemes
(1)
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, recognise a collective investment scheme constituted outside Singapore, subject to —
subsection (2);
the conditions specified in subsection (3); and
such conditions or restrictions as the Authority thinks fit to impose by written notice.
(1A)
The Authority may, at any time, by written notice to the responsible person for a collective investment scheme recognised 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.
(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 11 of the Companies Act 1967;
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.
(4)
Without affecting subsection (2), the Authority may refuse to recognise any collective investment scheme under subsection (1) where it appears to the Authority that it is not in the public interest to do so.
(5)
The Authority must not refuse to recognise 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 recognise 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.
(6)
The responsible person for a collective investment scheme may, within 30 days after the responsible person is notified that the Authority has refused to recognise that scheme under subsection (1), appeal to the Minister whose decision is final.
(7)
An application made under subsection (1) must be accompanied by such information or record as the Authority may require.
(8)
The Authority may publish for public information, in such manner as it considers appropriate, particulars of any collective investment scheme recognised under subsection (1).
(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 1967.
(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 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 (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.
(10)
Despite subsection (9), 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 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.
(11)
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.
(12)
The responsible person for a collective investment scheme which is recognised 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.
(13)
The representative for a collective investment scheme which is recognised under subsection (1) must carry out, or procure the carrying out of the following functions:
facilitate —
the issuing and redeeming of units in the scheme;
the publishing of sale and purchase prices of units in the scheme;
the sending of reports of the scheme to participants;
the provision of such books relating to the sale and redemption of units as the Authority may require; and
the inspection of the instruments constituting the scheme;
either maintain for inspection in Singapore a subsidiary register of participants who subscribed for or purchased their units in Singapore, or maintain in Singapore any facility that enables the inspection or extraction of the equivalent information;
within 14 days after any change in the particulars referred to in subsection (3)(d), give written notice of such change to the Authority;
provide such information or record regarding the scheme as the Authority may, at any time, require for the proper administration of this Act;
such other functions as the Authority may prescribe.
(13A)
In carrying out or procuring the carrying out of the functions referred to in subsection (13), the representative must ensure that —
for the purposes of subsection (13)(a)(ii), the sale and purchase prices of units in the collective investment scheme are published in the language of the prospectus;
for the purposes of subsection (13)(a)(iii), the reports of the scheme sent to participants are prepared in the language of the prospectus, except in relation to any participant who has consented to being sent a report in a language other than the language of the prospectus;
for the purposes of subsection (13)(a)(v), if the instruments constituting the scheme are not in the language of the prospectus, an accurate translation of the instruments in the language of the prospectus is made available to a participant for inspection, unless the participant has consented to the making available to that participant for inspection of the instruments in a language other than the language of the prospectus; and
for the purposes of subsection (13)(b), if the subsidiary register of participants or equivalent information is not in the language of the prospectus, an accurate translation of the register or equivalent information in the language of the prospectus is made available to a participant for inspection or extraction, unless the participant has consented to the making available to that participant for inspection or extraction of the register or equivalent information in a language other than the language of the prospectus.
(13B)
In subsection (13A), “language of the prospectus” means the language of the prospectus accompanying or making the offer of units in the collective investment scheme.
(13C)
Section 318A(2) does not apply to the instruments constituting the scheme referred to in subsection (13)(a)(v) or to the subsidiary register of participants or equivalent information referred to in subsection (13)(b).
(14)
Any person who contravenes subsection (9), (12) 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.
(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.