Irish Investment Limited Partnership Law Amendments: Q&A - 16 March 2021
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Irish Investment Limited Partnership Law
Amendments: Q&A
16 March 2021
Comparison of Limited Partnership Laws in Ireland, Luxembourg, Cayman
Islands and Delaware
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
Implementing Investment Limited Law of 10 August 1915 on Law of 10 August 1915 on Partnership Law (2013 Delaware Revised Uniform
Legislation Partnerships Act, 1994, as Commercial Companies, Commercial Companies, Rev.) and Exempted Limited Partnership Act
amended by the Section III, sub-section 1 Section III, sub-section 2 Limited Partnership Law (“Del LPA”)
Investment Limited (“Lux LP Law”) (“Lux LP Law”) (2018 Rev.) (“ELP Law”)
Partnerships (Amendment)
Act 2020 (“ILP Act”)
Alternative name comhpháirtíocht theoranta société en commandite société en commandite Not applicable Not applicable
infheistíochta simple spéciale
Basic Structure
Required Partners An ILP requires at least A SCS is a partnership A SCSp is a partnership An ELP must have least A DLP is a partnership
one general partner and at established by contract, established by contract, one general partner and consisting of two or more
least one limited partner between one or more between one or more one limited partner. persons and having one or
partners with unlimited partners with unlimited more general partners and
liability and one or more liability and one or more one or more limited
partners with limited partners with limited partners.
liability. liability.
Formation Process An ILP comes into A SCS is created through A SCSp is created through A partnership, limited or To form a DLP, one or
existence when the ILP is the partnership agreement the partnership agreement otherwise, shall not be an more persons, but not less
authorised by the Central (a private deed), which (a private deed), which exempted limited than all the general
Bank of Ireland (CBI) under includes the name, includes the name, partnership unless partners, must execute a
the ILP Act. An application principal office address, principal office address, registered as such. certificate of limited
for authorisation must be in purpose, and a description purpose, and a description partnership. The DLP is
To register a partnership
a form approved by the of each partner’s of each partner’s formed at the time of filing
as an ELP, the general
CBI and be accompanied contributions. The contributions. The the initial certificate of
partner must submit to the
by an authorisation fee, a partnership agreement is partnership agreement is limited partnership with the
Registrar of Limited
{S2748121; 6} 1 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
copy of the partnership filed with the Luxembourg filed with the Luxembourg Partnerships in the Delaware Secretary of
agreement, a statement Business Registers (RCS). Business Registers (RCS). Cayman Islands a State or at any later date
containing certain statement setting out specified in the in the initial
prescribed information and certain prescribed certificate, if there has
such further particulars or information and pay the been substantial
information as the CBI may required registration fee. A compliance with the
specify for the purposes of certificate of registration statute.
determining the issued by the Registrar
application. The CBI issues shall be conclusive
a certificate of evidence that the
authorisation for the ILP, requirements of the ELP
which is conclusive Law have been complied
evidence of compliance with in respect of the
with all the requirements of formation and registration
the ILP Act in respect of of an ELP.
the formation and
authorisation of an ILP.
Duration Limited or unlimited. Limited or unlimited Limited or unlimited Limited or unlimited Limited or unlimited
Purpose An ILP shall have as its An SCS may have any An SCSp may have any An ELP may be formed for An DLP may carry on any
principal business, to be purposes other than purposes other than any lawful purpose to be lawful business, purpose or
expressed in the unlawful purpose or a pour unlawful purpose or a pour carried out and undertaken activity, except the
partnership agreement pose contrary to public pose contrary to public either in or from within the business of banking.
establishing the ILP, the purpose. purpose. Cayman Islands or
investment of its funds in elsewhere upon the terms,
real or personal property of with the rights and powers,
whatever kind (including and subject to the
securities) and wherever conditions, limitations,
located. restrictions and liabilities
mentioned in the ELP Law
but an ELP shall not
undertake business with
the public in the Cayman
Islands other than so far as
may be necessary for the
carrying on of the business
of that ELP exterior to the
Cayman Islands.
{S2748121; 6} 2 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
Partner Interests Partners in the ILP hold Partners in the SCS hold Partners in the SCSp hold Partners hold interests in Partners hold interests in
partnership interests. partner interests, which partner interests, which the ELP, which may be the DLP, which may be
“Capital accounts” and may be “unlimited” partner may be “unlimited” partner general partner interests or general partner interests or
“shares” are not specifically interests or “limited” interests or “limited” limited partner interests. limited partner interests.
recognised by the ILP Act. partner interests. “Capital partner interests. “Capital “Capital accounts” and “Capital accounts” and
accounts” and “shares” are accounts” and “shares” are “shares” are not specifically “shares” are not specifically
not specifically recognized not specifically recognized recognized by the ELP recognized by the DEL
by the Lux LP Law. by the Lux LP Law. Law. LPA.
Series Permitted Yes. The ILP Act provides Not addressed by the Lux Not addressed by the Lux Not expressly permitted by Yes. An umbrella structure
that an ILP may be LP Law, but generally LP Law, but generally the ELP Law, but generally (referred to as a “series” is
established as an umbrella permitted. However, for an permitted. However, for an permitted as a matter of permitted. Each series
fund, that is, an ILP which “alternative investment “alternative investment Cayman contract law. may have its own
is divided into a number of fund” (AIF) to have multiple fund” (AIF) to have multiple separately designated
sub-funds (or series.) series (i.e., an umbrella series (i.e., an umbrella general partner.
fund), it must satisfy the fund), it must satisfy the
A partnership agreement
conditions of a “reserved conditions of a “reserved
may establish or provide
alternative investment alternative investment
for the establishment of 1
fund” (RAIF). fund” (RAIF).
or more designated series
of limited partners, general
partners, partnership
interests or assets.
Any such series may have
separate rights, powers or
duties with respect to
specified property or
obligations of the limited
partnership or profits and
losses associated with
specified property or
obligations, and any such
series may have a
separate business purpose
or investment objective
A protected series requires
that the certificate of
incorporate includes notice
of a series structure, and
{S2748121; 6} 3 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
the partnership agreement
permits the formation of the
different series, that proper
records are maintained for
the segregation of assets
and liabilities among the
series. A protected series
will be shielded from the
liabilities and obligations of
the DLP itself, and from
other series. A series
formed prior to August 1,
2019 (before the
designation of registered
and protected series) is
now a protected series.
A registered series is a
protected series that has
also filed in its certificate of
registered series with the
Delaware Secretary of
State. A registered series
has the same rights,
powers and obligations as
a protected series if the
same statutory
requirements have been
met. However, a
registered series will be
able to obtain its own
certificate of good standing.
Classes Permitted Classes of limited partners Not addressed by the Lux Not addressed by the Lux Classes are not expressly A partnership agreement
are expressly provided for LP Law, but generally LP Law, but generally provided for in the ELP may provide for classes or
in the ILP Act. permitted. permitted. Law, they but are referred groups of limited partners
to in several sections of the having such relative rights,
ELP Law. powers and duties as the
partnership agreement may
provide, and may make
{S2748121; 6} 4 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
provision for the future
creation in the manner
provided in the partnership
agreement of additional
classes or groups of limited
partners having such
relative rights, powers and
duties as may from time to
time be established,
including rights, powers
and duties senior to
existing classes and
groups of limited partners.
A partnership agreement
may provide for the taking
of an action, including the
amendment of the
partnership agreement,
without the vote or
approval of any limited
partner or class or group of
limited partners, including
an action to create under
the provisions of the
partnership agreement a
class or group of
partnership interests that
was not previously
outstanding.
Debt Obligations Any debt or obligation Debt securities may be Debt securities may be Any debt or obligation A judgment creditor of a
incurred by a general issued by the SCS. issued by the SCSp. incurred by the GP in the general partner of a limited
partner in the conduct of conduct of the business of partnership may not levy
the business of the ILP an ELP shall be the debt or execution against the
shall be a debt or obligation of the ELP. assets of the general
obligation of the ILP. partner to satisfy a
judgment based on a claim
against the limited
{S2748121; 6} 5 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
partnership, except in
certain situations.
Derivatives Pursuant to regulation, the Not expressly addressed Not expressly addressed Not expressly addressed A limited partnership shall,
assets of an ILP may be under the Lux LP Law. under the Lux LP Law. under the ELP Law. subject to such standards
invested in derivatives. and restrictions, if any, as
are set forth in its
partnership agreement,
have the power and
authority to make contracts
of guaranty and suretyship
and enter into interest rate,
basis, currency, hedge or
other swap agreements or
cap, floor, put, call, option,
exchange or collar
agreements, derivative
agreements or other
agreements similar to any
of the foregoing.
Powers of Attorney Unless otherwise provided Not expressly addressed Not expressly addressed Where a partnership Unless otherwise provided
in a partnership under the Lux LP Law. under the Lux LP Law. agreement purports to in a partnership agreement,
agreement, an ILP has the Under Luxembourg law, Under Luxembourg law, create or grant a power of a limited partnership has
power and authority to however, all powers of however, all powers of attorney, including an the power and authority to
grant, hold or exercise a attorney are revocable, attorney are revocable, irrevocable power of grant, hold or exercise a
power of attorney, even those that are even those that are attorney, that power shall power of attorney, including
including an irrevocable purportedly irrevocable. purportedly irrevocable. be deemed validly to have an irrevocable power of
power of attorney. been executed as a deed attorney.
and if required duly
witnessed on execution of
the partnership agreement.
Partner Liability General Partner Unlimited Partners Unlimited Partners General Partner General Partner
The general partner has “Unlimited partners” are “Unlimited partners” are If the assets of the ELP are A general partner of a DLP
unlimited liability for the jointly and severalty liable jointly and severalty liable inadequate to satisfy the has the liabilities of a
debts and obligations of for the SCS’s obligations. for the SCSp’s obligations. claims of its creditors, the partner in a partnership
the ILP. If there is more general partner will be that is governed by the
than one general partner, Delaware Uniform
{S2748121; 6} 6 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
this liability is shared on a Limited Partners Limited Partners liable for all debts and Partnership Law to persons
joint or several basis. obligations of the ELP. other than the partnership
“Limited partners” are only “Limited partners” are only
and the other partner.
Any provision whether liable for contributing a liable for contributing a
Under the Delaware
contained in the ILP specific amount specific amount
Limited Partners Uniform Partnership law, all
agreement or in any constituting their constituting their
partners are liable jointly
contract with an ILP for partnership interests. partnership interests. The limited partners will not
and severally for all
exculpating a general be liable for the debts and obligations of the
partner from, or obligations of the ELP partnership unless
indemnifying him against, except as may be provided
otherwise agreed by the
any liability which would by the limited partnership
claimant or provided by
otherwise attach to him in agreement.
law.
respect of any negligence,
default, breach of duty or
breach of trust of which he
Limited Partner
may be guilty in relation to
an ILP is void. A limited partner is not
liable for the obligations of
However, an ILP may
a DLP unless he or she is
indemnify a general partner
also a general partner or, in
against any liability
addition to the exercise of
incurred by him in
the rights and powers of a
defending proceedings in
limited partner, he or she
which judgement is given
participates in the control of
in his favour or in which he
the business.
is acquitted.
In addition, an ILP may
purchase and maintain
insurance for the general
partner in respect of this
liability.
Limited Partner
The definition of a limited
partner in the ILP Act, as
amended, establishes that
the limited partner is not
liable for the obligations of
the ILP beyond the amount
of capital contributed or
{S2748121; 6} 7 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
undertaken to be
contributed by the limited
partner to the ILP.
A limited partner gains the
benefit of limited liability
once the ILP is authorised
by the CBI.
This benefit is granted to a
limited partner on the basis
that the limited partner is
prohibited from taking part
in the conduct of the
business of the ILP.
Disregard of Limited If a limited partner takes A limited partner shall be A limited partner shall be If a limited partner takes A limited partner is not
Partner Limited part in the conduct of the jointly and severally liable jointly and severally liable part in the conduct of the liable for the obligations of
Liability business of the ILP in its to third parties for (a) any to third parties for (a) any business of an ELP in its a DLP unless he or she is
dealings with persons who commitments of the SCS in commitments of the SCSp dealings with persons who also a general partner or, in
are not partners, that which such limited partner in which such limited are not partners, that addition to the exercise of
limited partner shall be participated and carried out partner participated and limited partner shall be the rights and powers of a
liable in the event of the any act of management carried out any act of liable, in the event of the limited partner, he or she
insolvency of the ILP for vis-à-vis third parties or (b) management vis-à-vis insolvency of the exempted participates in the control of
debts of the ILP incurred regularly carried out any third parties or (b) regularly limited partnership, for all the business. However, if
during the period that he so act of management vis-à- carried out any act of debts and obligations of the limited partner does
participates in the conduct vis third parties. management vis-à-vis third that ELP incurred during participate in the control of
of the business as though parties. the period that he the business, he or she is
The Lux LP Law specifies
he were for such period a participates in the conduct liable only to persons who
specific actions that a The Lux LP Law specifies
general partner. of the business as though transact business with the
limited partner may take specific actions that a
he were, for that period, a DLP reasonably believing,
The ILP Act specifies but which do not constitute limited partner may take
general partner, but he based upon the limited
specific actions that a participating in the control but which do not constitute
shall be liable only to a partner’s conduct, that the
limited partner may take of the business of the SCS. participating in the control
person who transacts limited partner is a general
but which do not constitute of the business of the
business with the ELP partner.
taking part in the conduct SCSp.
during the period with
of the business of the ILP. The DE LPA specifies
actual knowledge of his
specific actions that a
participation and who then
limited partner may take
reasonably believed the
but which do not constitute
{S2748121; 6} 8 6005.565.20732875.v3
IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
limited partner to be a participating in the control
general partner. of the business of the DLP.
The ELP Law specifies
specific actions that a
limited partner may take
but which do not constitute
participating in the control
of the business of the ELP.
Limited Partners A limited partner does not A limited partner may act A limited partner may act A limited partner does not A limited partner does not
Serving on Advisory take part in the conduct of as a member of a as a member of a take part in the conduct of participate in the control of
Committees the business of the ILP management body or an management body or an the business of an ELP by the business by virtue of
solely by (i) serving on any agent of a manager of the agent of a manager of the virtue of consulting with consulting with or advising
board or committee (such SCS, even if the manager SCSp, even if the and advising a general a general partner or any
as an advisory committee) is an unlimited partner, or manager is an unlimited partner or consenting or other person with respect
of the ILP, or established may execute documents partner, or may execute withholding consent to any to any matter, including the
by, or as provided for in the on the manager’s behalf documents on the action proposed, in the business of the DLP, or to
partnership agreement in under the manager’s manager’s behalf under the manner contemplated by act or cause a general
respect of, a general corporate signature, even manager’s corporate the partnership agreement, partner or any other person
partner, the limited acting as a representative signature, even acting as a with respect to the to take or refrain from
partners or the partners of the SCS, without representative of the business of the ELP. taking any action, including
generally; (ii) appointing, incurring joint and several SCSp, without incurring by proposing, approving,
electing or otherwise liability, provided that the joint and several liability, consenting or disapproving,
participating in the choice capacity in which the provided that the capacity by voting or otherwise, with
of a representative or any limited partner is acting is in which the limited partner respect to any matter,
other person to serve on indicated. is acting is indicated. including the business of
any such board or the DLP.
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 ILP
and exercising any powers
{S2748121; 6} 9 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
or authorities or performing
any obligations as a
member of any such board
or committee in the manner
contemplated by the
partnership agreement.
Minimum Capital No minimum capital No minimum capital No minimum capital No minimum capital No minimum capital
Requirements requirements. requirements. requirements. requirements. requirements.
Form of Limited The contribution made by a The contributions of the The contributions of the The contribution of a The contribution of a
Partner Capital limited partner to the partners to the SCS may partners to the SCSp may partner means cash, partner may be in cash,
Contribution capital of the ILP may be be made in cash, in kind or be made in cash, in kind or property, services or other property or services
satisfied in cash or other by way of services (apport by way of services (apport assets which a partner rendered, or a promissory
property provided that in en industrie). en industrie). contributes to the capital of note or other obligation to
the case of a non-cash an ELP in its capacity as contribute cash or property
contribution, the value of partner, but it does not or to perform services
the relevant property shall, include any moneys lent by
for the purposes of a partner to an ELP.
satisfying the obligation to
contribute to the capital of
the ILP, be the fair and
appropriate value of the
property at the time of
transfer of the property to
the ILP. The contribution
made by a limited partner
to the capital of the ILP
shall not be satisfied by the
provision of any services or
loans by the limited
partner.
Allocations of A limited partner may The distribution and The distribution and Not specifically addressed Distributions of cash or
Distributions receive out of the capital of repayments to partners, as repayments to partners, as by the ELP Law. As a other assets of a DLP shall
the ILP a payment well as the conditions in well as the conditions in general matter of contract be allocated among the
representing the return of which the SCS may require which the SCSp may law, allocations of partners, and among
any part of his contribution they be repaid are require they be repaid are distributions of cash or classes or groups of
to the partnership in the other assets of an ELP partners, in the manner
circumstances provided for may be made among the
{S2748121; 6} 10 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
in the partnership governed by the governed by the partners, and among provided in the partnership
agreement, provided the partnership agreement. partnership agreement. classes or groups of agreement.
net asset value of the ILP partners, in the manner
is greater than zero. provided in the partnership
agreement.
Allocations of The profits and losses of Profits and losses of a SCS Profits and losses of a Not specifically addressed The profits and losses of a
Profits and Losses an ILP shall be allocated shall be shared among all SCSp shall be shared by the ELP Law. As a DLP shall be allocated
among the partners, and partners in proportion to among all partners in general matter of contract among the partners, and
among classes or groups their partnership interests, proportion to their law, allocations of profits among classes or groups
of partners, in the manner unless otherwise provided partnership interests, and losses may be made of partners, in the manner
provided in the partnership in the partnership unless otherwise provided among the partners, and provided in the partnership
agreement. agreement. in the partnership among classes or groups agreement.
agreement. of partners, in the manner
provided in the partnership
agreement.
Separate Legal No. An ILP does not Yes. (Law of 12 July 2013 No. A SCSp does not No. An ELP does not have Yes. A DLP is a separate
Personality constitute a legal entity [EC Regulation 2157/2001, constitute a legal entity separate legal personality. legal entity from its
separate from its partners. art. 16.1] ) The law separate from its partners. All letters, contracts, partners, the existence of
The ILP Act provides that recognizes the SCS as a deeds, instruments or which as a separate legal
all letters, contracts, deeds, commercial company with documents must be entity shall continue until
instruments and legal personality (i.e., entered into by or on behalf cancellation of the DLP’s
documents whatsoever separate from that of its of the general partner on certificate of limited
shall be entered into by the members). behalf of the limited partnership.
general partner on behalf partnership.
of the ILP.
Transfers of A limited partner may Transfer of partnership Transfer of partnership Subject to the ELP Law, a A partnership interest is
Partnership assign absolutely the interests of unlimited interests of unlimited limited partner may transfer assignable in whole or in
Interests whole or any part of his partners and limited partners and limited the whole or any part of the part. However, an
partnership interest and an partners, require the partners require the partner’s limited assignment of a
assignee shall, as of the consent of the partners or consent of the partners or partnership interest but partnership interest does
date of such assignment, limited partner, unless the limited partner, unless the only with the prior written not entitle the assignee to
become a limited partner partnership agreement partnership agreement consent of the general become or to exercise any
with all of the rights and provides otherwise. provides otherwise. partner rights or powers of a
obligations of the assignor partner. It only entitles the
relating to the ILP, assignee to share in such
including the obligation of profits and losses, to
the assignor to make receive such distribution,
{S2748121; 6} 11 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
contributions in respect of and to receive such
the partnership interest or allocation of income, gain,
the part thereof assigned. loss, deduction, or credit or
similar item to which the
assignor was entitled, to
the extent assigned.
A DE LPA organized as a
fund that is offered only to
“accredited investors” or
“qualified purchasers” in a
private offering generally
requires that the transferee
also be an accredited
investor or a qualified
purchaser, as the case
may be.
The ILP Act provides that,
Amendment of the The following amendments The following amendments Not specifically addressed A partnership agreement
where the partnership
Limited Partnership require the approval of the require the approval of the by the ELP Law. As a may provide for the taking
agreement so stipulates,
Agreement partners: partners: matter of contract law, as of an action, including the
an alteration in the
provided in the partnership amendment of the
partnership agreement amendment of the amendment of the agreement. partnership agreement,
may be made if every corporate purpose corporate purpose without the vote or
partner to the partnership change of nationality change of nationality approval of any limited
agreement has been given conversion or liquidation conversion or liquidation partner or class or group of
notice of the proposed
The partnership agreement The partnership agreement limited partners, including
alteration and the alteration
shall determine, among the shall determine, among the an action to create under
is approved by a majority
other decisions, those that other decisions, those that the provisions of the
of the partners to the
are not required to be are not required to be partnership agreement a
partnership agreement. In
taken by the partners. taken by the partners. class or group of
certain circumstances, an
partnership interests that
alteration in a partnership The partnership agreement The partnership agreement was not previously
agreement may be made if shall also set out the shall also set out the outstanding.
the depositary conditions for taking such conditions for taking such
of the ILP has certified in decisions. decisions.
writing that the alteration
does not prejudice the
interests of the limited
partners.
{S2748121; 6} 12 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
Management of the Limited Partnership
Management An ILP must have at least The management of a SCS The management of a An ELP must have at least A DLP must have at least
one general partner, which is carried out by one or SCSp is carried out by one one general partner. one general partner. A
is a corporate entity with more managers, who may or more managers, who general partner is a person
The general partner is
legal personality. but need not be unlimited may but need not be who is named as a general
responsible for the
partners, designated in unlimited partners, partner in the certificate of
Directors of a general management of the ELP.
accordance with the designated in accordance limited partnership and who
partner (or general
partnership agreement. with the partnership is admitted to the DLP as a
partners, where there are
agreement. general partner, and
more than one general Each manager may on
includes a general partner
partner in an ILP) require behalf of the SCS take any Each manager may on
of the DLP and a general
to be pre-approved by the action necessary or useful behalf of the SCSp take
partner associated with a
CBI. to the fulfilment of the any action necessary or
series of the DLP.
corporate object. useful to the fulfilment of
The general partner also
the corporate object. Except as provided in the
must appoint an
DE LPA or in the
“alternative investment
partnership agreement, a
fund manager” (AIFM),
general partner of a DLP
which also acts in an
has the rights and powers
oversight capacity.
and is subject to the
The AIFM conducts the restrictions of a partner in a
primary business of the ILP partnership that is
and can either itself governed by the Delaware
manage the assets of the Revised Uniform
ILP or delegate the Partnership Act.
management to a separate
[(Delaware Revised
investment manager.
Uniform Partnership Act)
All partners are liable jointly
and severally for all
obligations of the
partnership unless
otherwise agreed by the
claimant or provided by
law.]
{S2748121; 6} 13 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
In accordance with the ILP
Management Managers who are not Managers who are not If a partnership agreement A partnership agreement
Act, a general partner of
Liability unlimited partners shall be unlimited partners shall be provides that where a may provide that (1) a
the ILP is personally liable
liable in accordance with liable in accordance with partner fails to perform any general partner who fails to
for the debts and
Article 59. [Article 59: The Article 59. [Article 59: The of its obligations under, or perform in accordance
obligations of the ILP.
directors shall be liable to directors shall be liable to otherwise breaches the with, or to comply with the
Provided a limited partner
the company in the company in provisions of, the terms and conditions of,
is not involved in the
accordance with general accordance with general partnership agreement that the partnership agreement
conduct of the business of
law for the execution of the law for the execution of the partner may be subject to shall be subject to specified
the ILP, that limited partner
mandate given to them and mandate given to them and or suffer remedies for, or penalties or specified
shall not be liable for the
for any misconduct in the for any misconduct in the consequences of, the consequences, and (2) at
debts or obligations of the
management of the management of the failure or breach specified the time or upon the
ILP beyond the amount so
company’s affairs. They company’s affairs. They in the partnership happening of events
contributed or undertaken
shall be jointly and shall be jointly and agreement or otherwise specified in the partnership
to be contributed.
severally liable towards the severally liable towards the applicable under any law agreement, a general
company or any third company or any third then those remedies or partner shall be subject to
parties for damages parties for damages consequences shall not be specified penalties or
resulting from the violation resulting from the violation unenforceable solely on specified consequences.
of this [law of 10 August of this [law of 10 August the basis that they are
2015 on commercial 2015 on commercial penal in nature.
companies] or the articles companies] or the articles
of the company. They of the company. They
shall be discharged from shall be discharged from
such liability in the case of such liability in the case of
a violation to which they a violation to which they
were not a party, provided were not a party, provided
no misconduct is no misconduct is
attributable to them and attributable to them and
they have reported such they have reported such
violation to the first general violation to the first general
meeting after they have meeting after they have
acquired knowledge acquired knowledge
thereof.] thereof.]
Requirement to have The ILP Act confirms that EU substance EU substance At least one of the general There is no requirement
Local General an overseas (i.e., non-Irish) requirements apply, i.e., requirements apply, i.e., partners must be either an that the general partner be
Partner and/or Local company may be material decisions must be material decisions must be individual resident in the organized in Delaware or in
Directors appointed as the general made in Luxembourg. made in Luxembourg. Cayman Islands, a the U.S.
partner to an ILP. The ILP company incorporated or
Act does not require the registered as a foreign
{S2748121; 6} 14 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
directors of a general company in the Cayman
partner to be resident in Islands, an ELP, or a
Ireland. registered foreign limited
partnership.
General The partnership agreement The partnership agreement The partnership agreement Where an exempted limited Unless otherwise provided
Partner/Manager may allow the general may allow the managers to may allow the managers to partnership has more than in the partnership
Right to Delegate partner to delegate its delegate their powers to delegate their powers to one general partner and agreement, a general
powers to one or more one or more agents who one or more agents who the ELP Law gives an partner of a DLP has the
delegates who are liable are liable only for the are liable only for the authority, consent or power power and authority to
only for the performance of performance of their performance of their but not an obligation or delegate to one or more
their mandate. mandate. mandate. liability, to the general other persons any or all of
partner, the partnership the general partner’s rights,
agreement may specify powers and duties to
which general partner is manage and control the
entitled to exercise that business and affairs of the
authority, consent or power DLP. Any such delegation
to the exclusion of any may be to agents, officers,
other general partner. and employees of the
general partner or the DLP
and by a management
agreement or another
agreement with, or
otherwise to, other
persons. Unless otherwise
provided in the partnership
agreement, such
delegation by a general
partner of a DLP shall be
irrevocable if it states that it
is irrevocable.
Other Attributes and Considerations
Ownership of Assets of the ILP are held Not expressly addressed in Registrations and other Assets of the ELP are held Assets may be held directly
Limited Partnership by the general partner for the Lux LP Law. formalities regarding the or deemed to be held by or indirectly, including in
Assets the benefit of the partners. assets pooled within the the general partner on the name of the limited
All ILP assets must be SCSp or on which it has statutory trust as an asset partnership, through a
entrusted for safe keeping of the ELP. nominee or otherwise.
Assets associated with a
{S2748121; 6} 15 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
to a regulated depositary any right shall be made in protected or registered
domiciled in Ireland. the name of the SCSp. series may be held directly
or indirectly, including in
the name of such series, in
the name of the limited
partnership, through a
nominee or otherwise.
Asset Diversification No requirement under the No requirement under the No requirement under the No requirement under the No requirement under the
Requirements ILP Act. Lux LP law. Lux LP laws. ELP Law. Del LPA.
AIFMD-Passport Yes. Yes. Yes. No. No.
Eligible
Tax As a collective investment A SCS is tax transparent, A SCSp is tax transparent, There are no capital gains, By default, a DLP is
undertaking, an ILP is not that is, the SCS is not that is, the SCSp is not income, withholding, estate considered as a
subject to tax at the level of subject to ccapital gains, subject to ccapital gains, or inheritance taxes in the “partnership” for U.S.
the investment fund on income, withholding, estate income, withholding, estate Cayman Islands. On federal income tax
income and gains. or inheritance taxes in or inheritance taxes in application by a general purposes, that is, a pass-
Investors are subject to tax Luxembourg. Partners are Luxembourg. Partners are partner an ELP can expect through vehicle where
on their income from the subject to tax on their subject to tax on their to receive an undertaking profits and losses of the
ILP in their own home income from the fund in income from the fund in from the Governor in DLP are paid by the
country. their own home country. their own home country. Cabinet that no form of partners rather than the
taxation will apply to the DLP.
A SCS organized as a A SCSp organized as a
ELP or to any partner
RAIF that does not invest RAIF that does not invest A DLP also may “check to
thereof in respect of the
in “risk capital” (i.e., a RAIF in “risk capital” (i.e., a RAIF the box” to be taxed as a
operations or assets of the
that is required to abide by that is required to abide by C-Corporation, and make
ELP or the partnership
diversification diversification elections, such has to be
interest for a period of up
requirements) is required requirements) is required taxed as a “real estate
to 50 years from the date
to pay an annual to pay an annual investment trust,” or REIT,
the undertaking is given.
subscription tax (taxe subscription tax (taxe which is tax opaque.
d’abonnement) of 0.01% of d’abonnement) of 0.01% of
NAV, subject to certain NAV, subject to certain
exemptions. exemptions.
Default Designation Partnership Partnership Partnership Partnership Not applicable
under U.S. federal
income tax law if
subject
{S2748121; 6} 16 6005.565.20732875.v3IRELAND LUXEMBOURG LUXEMBOURG CAYMAN ISLANDS DELAWARE
INVESTMENT LIMITED COMMON LIMITED SPECIAL LIMITED EXEMPTED LIMITED LIMITED PARTNERSHIP
PARTNERSHIP (“ILP”) PARTNERSHIP (“SCS”) PARTNERSHIP (“SCSp”) PARTNERSHIP (“ELP”) (“DLP”)
Eligibility to “Check Yes Yes Yes Yes Not applicable
the box” to elect
corporate (including
“real estate
investment trust”
(REIT) status)
Registered Office An ILP shall at all times (Law of 12 July 2013 [EC The domicile of a SCSp is An ELP must have a Each DLP shall have and
maintain a registered office Regulation 2157/2001, art. located at the seat of its registered office in the maintain in the State of
in Ireland and a principal 16.1] ) The domicile of a central administration (i.e., Cayman Islands. If the Delaware a registered
place of business in Ireland commercial company its head office). Until general partner(s) is a office, which may but need
which may be at the same (which includes a SCS) is evidence to the contrary Cayman company, an ELP, not be a place of its
address, to which all located at the seat of its shall have been finally a foreign registered business in the State of
communications and central administration (i.e., bought, the central company, or a foreign Delaware.
notices may be addressed. its head office). Until administration is deemed registered partnership, it
evidence to the contrary to coincide with the place will also require corporate
shall have been finally where its registered office administration support.
bought, the central is located as specified in its
administration is deemed partnership agreement.
to coincide with the place
where its registered office
is located.
Depositary and An ILP must have an Not addressed by the ELP Not addressed by the ELP Not addressed by the ELP Not addressed by the DE
Other Service Ireland domiciled Law. Other laws, however, Law. Other laws, however, Law. Other laws, however, LPA. Other laws, however,
Providers depositary and may impose various may impose various may impose various may impose various
administrator. requirements to engage requirements to engage requirements to engage requirements to engage
service providers that meet service providers that meet service providers that meet service providers that meet
As an AIF, it must have an
minimum eligibility minimum eligibility minimum eligibility minimum eligibility
appointed AIFM (which can
conditions conditions conditions. conditions.
be its GP).
An ILP also is required to
have a local auditor and
legal adviser.
{S2748121; 6} 17 6005.565.20732875.v3This document and any discussions set forth herein are for informational purposes only, and they should not be construed as legal advice. Any such advice
must be addressed to particular facts and circumstances involved in any given situation. Information relating to Luxembourg law and the law of the Cayman
Islands is based solely on the contents of those laws referenced above. Information relating to Luxembourg law is based solely on English translations of laws
that the authors believe to be, but do not guarantee as, accurate. Neither Sullivan & Worcester LLP nor LK Shields Solicitors LLP is authorized to practice law
in Luxembourg or the Cayman Islands. Review or use of this document and any discussions does not create an attorney‐client relationship with Sullivan &
Worcester LLP or LK Shields Solicitors LLP. To the extent that this document may contain suggested provisions, they will require modification to suit a
particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax
information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the
United States Internal Revenue Code. Any opinions expressed are those of Sullivan & Worcester LLP or LK Shields Solicitors LLP.
{S2748121; 6} 18 6005.565.20732875.v3DAVY GLOBAL FUND MANAGEMENT For Investment Professionals Only Davy Global Fund Management EUROPEAN AIFM, UCITS MANCO AND PORTFOLIO MANAGEMENT SERVICES
Davy Global Fund Management
Davy Group
Davy has evolved to include the following
Davy Global Fund Management core businesses:
700+ people
(‘DGFM’) is part of Davy Group, one
of Ireland's largest domestic financial + Wealth Management
services businesses. With over 700 + Capital Markets
The Group employs over 700 people and is
employees working in offices across
100% employee owned. + Asset Management
Europe and the US, Davy Group offers
a wide range of services to institutional
investors, corporations and private
clients around the world.
11 entities
There are 11 regulated entities within the Davy Since its inception in 1926, the Group’s
Group. The Group is subject to authorisation and core values instilled by its founders,
regulation by regulatory authorities in Ireland, the James and Eugene Davy, still hold true:
UK, continental Europe and the U.S. Client First, Always Growing, One Team.
4Davy Global Fund Management | About us
DGFM
Super ManCo
We are authorised to act as an AIFM and UCITS Management Company
(‘Super ManCo’). We maintain €10 million of permanent capital—the maximum
level required under current regulations.
DGFM is a European fund management
company that assists global asset managers Oversight of Third-party Funds
in establishing and operating UCITS and AIF DGFM provides management company and investment management services
to third-party funds with AUM in excess of €20 billion (as at Sep 2020).
funds across the region.
We provide a broad range of solutions that
allow global asset managers to focus on Portfolio Management
portfolio management, asset raising and We are authorised by the Central Bank of Ireland to provide portfolio management
investor relations. We combine practical services and investment advice for individual discretionary mandates. Our
investment team is experienced in managing traditional marketable securities as
experience with sound regulatory, technical
well as alternatives assets such as real estate, private equity and private credit.
and portfolio management expertise,
complemented by a robust technology platform.
Global Locations
We have substantial business operations in both Ireland and Luxembourg,
as well as a London and Chicago office, and 65+ experienced employees
dedicated to servicing our clients.
5Davy Global Fund Management www.davygfm.com
Collectively
Invested
Our combined strength and expertise in investment
management and management company services
allows you to focus on what you do best, while we
look after everything else.
6Davy.ie
www.davygfm.com
Management We are a multi-jurisdictional management company dedicated to supporting asset managers, by
providing a European regulated framework, backed up with local expertise and the infrastructure
Company of the Davy Group. Our industry knowledge combined with our experience ensures we deliver
better outcomes for our clients, making Davy Global Fund Management a natural partner for your
Services European funds.
Independent, European We are an authorised Super ManCo, providing regulatory oversight and governance services in
fund solutions managed by compliance with the Central Bank of Ireland Fund Management Companies - Guidance (CP 86).
local experts within a
global network. With offices in Dublin, London & Luxembourg, we are uniquely positioned to provide you with local,
independent governance and fund compliance solutions across multiple jurisdictions. These include
regulatory oversight, risk, distribution and portfolio management services for UCITS and AIFs.
7Davy Global Fund Management (DGFM) is part of the Davy group, an Irish
headquartered financial services firm established in 1926 and with over 700 staff and
offices in Ireland, the UK and Luxembourg. Davy provides a range of wealth and asset
management services to individuals, corporations and institutions and DGFM is
Davy’s asset management and fund services provider. DGFM manages a wide range of
asset strategies in mandates and funds in Ireland, Luxembourg and other EU
jurisdictions. It provides regulatory management and investment management
services to traditional equity or debt funds, hedge funds, ETFs and a wide range of
other strategies including real estate, private equity, private credit, infrastructure and
Michael Humphreys renewables. Michael deals with many US managers forming new funds or seeking to
Director access EU capital for existing funds. Michael is a chartered financial analyst, a
London office
chartered accountant, and a qualified tax expert, with extensive experience in
13th Floor, Dashwood House, structuring and executing large complex transactions including regulated funds and
69 Old Broad Street with a career spanning regulated funds, private equity, banking, taxation, treasury
London EC2M 1QS
+44 7775 334 888 and asset classes including renewable energy and real estate.
michael.humphreys@davygfm.comGrant Thornton is Ireland’s fastest growing professional services firm. With over 1,450 people in 7 offices across Ireland and 56,000 located in over 143 countries around the world, we bring you the local knowledge, national expertise and global presence to help you and your business succeed – wherever you’re located. Grant Thornton’s offering to the financial services industry is unique in that our team brings a wide range of experience with backgrounds in banking, insurance, investment markets, regulation, professional practice and academia. This is along with Grant Thornton’s global reach with a presence in all of the major financial centres and more than 100 markets around the world.
Brian has extensive experience in advising clients with regard to the establishment
of all types of regulated investment funds and fund managers in Ireland.
He also advises on the following:
• capital market transactions
• cross border structured finance transactions
• securitisation (including aviation) deals
• structuring acquisitions
• disposal of business assets
Brian Murphy • restructuring of group operations
Partner • cross border lending/financing
Financial Services Tax
• determining appropriate fund structure and domicile from a regulatory and tax
perspective
13-18 City Quay • international tax planning and the impact of OCED
Dublin, D02 ED70
+353 1 6805 703
• EU and other international developments
brian.murphy@ie.gt.com
www.grantthornton.ieLK SHIELDS SOLICITORS LLP – PRIVATE
EQUITY GROUP
Our private equity group utilises our award-winning M&A capability and draws on the skills and expertise of
our specialist teams including Finance, Employment and Intellectual Property.
In addition, we have a dedicated Financial Services team that focuses on the establishment of private equity
funds, particularly structured as Investment Limited Partnerships, and investors’ participation in such funds.
The diversity of our client base, including private equity houses, multi-asset managers, portfolio companies,
sovereign wealth funds and pension funds, enables us to provide expert legal advice on market terms across
all investment structures, including regulated investment funds, such as the Investment Limited Partnership.David specialises in financial services, with a focus on the authorisation, launch and
ongoing operation of all types of investment funds across the liquidity spectrum. He
regularly advises asset managers on the laws and regulations applicable to AIFs
domiciled in Ireland, with a particular focus on the application of AIFMD, the use of
the Investment Limited Partnership and the regulation of AIFMs in Ireland.
David, and the Financial Services team at LK Shields, are lauded by leading legal
ranking directories including Legal 500, Chambers and Partners and IFLR100.
David Naughton In particular, David and the team regularly:
Partner • advises a wide-range of clients across private equity, credit, infrastructure and
Financial Services
real estate in relation to structuring of investment funds and global marketing of
39/40 Upper Mount Street investment funds;
Dublin, D02 PR89, Ireland • provides strategic advice in relation to governance and other compliance
+353 1 637 1585
dnaughton@lkshields.ie arrangements to comply with changes in EU / Ireland financial services regulation;
• advises on the establishment of new financial services businesses in Ireland.
https://www.lkshields.ie/legal-services/financial-servicesOur global business
overview
sannegroup.comSanne at a glance
2,000+ 22 £250bn+
People worldwide Jurisdictions Assets under
administration
Leaders
In fund and
Accredited
Business process
FTSE 250
Listed business
administration servicesServices
1 2 3
Fund Services Corporate Services Portfolio & Data Services
Establishment Governance, fiduciary Portfolio investment monitoring
Governance and administration and administration services Portfolio monitoring
Investor services Employee incentives and independent Data management
Financial reporting trustee services and consolidation
Tax, regulatory and compliance Treasury Compliance
Accounting and financial reporting
Regulatory, tax and compliance support
services
4 5 6
Loan Agency Services AIFM & ManCo Services Depositary Services
Facility and Security Agent Rent a ManCo Cash monitoring
Bond and Security Trustee Fund distribution Record keeping
Sub-agency services Risk management Oversight
Third-party loan administration ManCo hosting
Portfolio Monitoring South Africa ManCoClient-centric approach
We stand out because we’re absolutely focused on our clients
Professionalism Partnership
Sets us apart, Strengthens us,
builds your reputation offers you more
Technology Specialism
Sharpens our edge, Gives us focus,
delivers your needs provides you clear outcomes
Standards Scale
We raise the bar, Gives us perspective,
so you can expect more gives you reachYou can also read
