Liability for loss of assets - AIFMD Provision: Difference between revisions

Liability for loss of assets - AIFMD Provision (view source)

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 ''Wrong''. According to ESMA’s final 500-page bunker-busting advice from 2011<ref>Which you can find [https://www.esma.europa.eu/system/files_force/library/2015/11/2011_379.pdf here, at page 182].</ref>:
-:''The {{wasteprov|depositary}} will not be liable for the loss of financial instruments held in custody by itself or by a subcustodian if it can demonstrate that all the following conditions are met:
+:''The {{aifmdprov|depositary}} will not be liable for the loss of financial instruments held in custody by itself or by a subcustodian if it can demonstrate that all the following conditions are met:
-:''1. The event which led to the loss is not a result of an act or omission of the {{wasteprov|depositary}} '''or one of its subcustodians''' to meet its obligations.
+:''1. The event which led to the loss is not a result of an act or omission of the {{aifmdprov|depositary}} '''or one of its {{aifmdprov|subcustodian}}s''' to meet its obligations.
 :''2. The event which led to the loss was beyond its reasonable control i.e. it could not have prevented its occurrence by reasonable efforts.
-:''3. Despite rigorous and comprehensive due diligence, it could not have prevented the loss.''
+:''3. Despite rigorous and comprehensive [[due diligence]], it could not have prevented the loss.''
-The omission of a subcustodian to meet its obligations — albeit through its insolvency (and associated failures in internal segregation etc) is thus not an event beyond the reasonable control of the depositary.
+The [[omission]] of a {{aifmdprov|subcustodian}} to meet its obligations — albeit through its [[insolvency]] (and associated failures in internal segregation etc) is thus not an “external event beyond the reasonable control” of the {{aifmdprov|depositary}}.
+{{sa}}
+{{ref}}