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Liability for delegation - UCITS V Provision: Difference between revisions
Liability for delegation - UCITS V Provision (view source)
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{{ucits5anat|24}} | {{ucits5anat|24}} | ||
Not pretty, | Not pretty, if you are a {{ucits5prov|depositary}}, and that means not pretty if you are a delegate either. Since the depostiary can't discharge its responsibility for looking after assets by delegating that to a prime broker or other subcustodian, prome brokers should expect to be asked to provide eye-watering [[indemnities]] to the depositaries by whom they are delegated the custody function. | ||
Seeing as a [[prime broker]] can’t generally [[rehypothecate]] UCITS assets, it kind of makes you wonder why a prime broker would want to hold the assets in the first place. | Seeing as a [[prime broker]] can’t generally [[rehypothecate]] UCITS assets, it kind of makes you wonder why a prime broker would want to hold the assets in the first place. | ||
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Recital 27: | Recital 27: | ||
:Where the {{ucits5prov|depositary}} delegates custody tasks and the financial instruments held in custody by a third party are lost, the {{ucits5prov|depositary}} should be liable. In the case of loss of an instrument held in custody, a {{ucits5prov|depositary}} should return a financial instrument of an identical type or the corresponding amount, even if the loss occurred with a third party to which the custody has been delegated. The {{ucits5prov|depositary}} should be discharged of that liability only where it is able to prove that the loss resulted from an external event beyond its reasonable control and with consequences that were unavoidable despite all reasonable efforts to the contrary. In that context, a {{ucits5prov|depositary}} should not be able to rely on internal situations such as a fraudulent act by an employee to discharge itself of liability. '''''No discharge of liability, be it regulatory or contractual, should be possible in the case of loss of assets by the {{ucits5prov|depositary}} or a third party to which the custody has been [[delegate]]d.'' | :Where the {{ucits5prov|depositary}} delegates custody tasks and the financial instruments held in custody by a third party are lost, the {{ucits5prov|depositary}} should be liable. In the case of loss of an instrument held in custody, a {{ucits5prov|depositary}} should return a financial instrument of an identical type or the corresponding amount, even if the loss occurred with a third party to which the custody has been delegated. The {{ucits5prov|depositary}} should be discharged of that liability only where it is able to prove that the loss resulted from an external event beyond its reasonable control and with consequences that were unavoidable despite all reasonable efforts to the contrary. In that context, a {{ucits5prov|depositary}} should not be able to rely on internal situations such as a fraudulent act by an employee to discharge itself of liability. '''''No discharge of liability, be it regulatory or contractual, should be possible in the case of loss of assets by the {{ucits5prov|depositary}} or a third party to which the custody has been [[delegate]]d.'' | ||
{{seealso}} | |||
*[[Delegation]] under {{t|AIFMD}}. | |||