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Template:External event beyond its reasonable control: Difference between revisions
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The “[[omission]] of a sub-custodian 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 [[depositary]]. Treat this exemption as being limited to genuine [[force majeure]] events — [[acts of God]], war, insurrection, malign operation of the trade winds, etc — or peculiarities in the [[insolvency]] law in the [[sub-custodian]]’s jurisdiction which mean the assets are unavoidably tangled up in the insolvency estate. | The “[[omission]] of a sub-custodian 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 [[depositary]]. Treat this exemption as being limited to genuine [[force majeure]] events — [[acts of God]], war, insurrection, malign operation of the trade winds, etc — or peculiarities in the [[insolvency]] law in the [[sub-custodian]]’s jurisdiction which mean the assets are unavoidably tangled up in the insolvency estate. | ||
Here’s para 27 and 28 of the selfsame opinion: | Here’s para 27 and 28 of the selfsame opinion<ref>ibid, page 184.</ref>: | ||
:''27. As for the insolvency of a [[sub-custodian]], as suggested in the draft advice in relation to the definition of a ‘loss’, [[ESMA]] considers that the [[financial instrument]]s held in [[custody]] by that entity should not automatically be deemed lost since there is a reasonable chance they will be recovered at the end of the legal proceedings thanks notably to the [[sub-custodian]]’s obligation to comply with the [[segregation]] requirements defined in Article {{aifmdprov|21(11)(d)}}(iii) and the corresponding implementing measures. However, [[ESMA]] has identified three situations where [[instrument]]s may be lost following the [[bankruptcy]] of a [[sub-custodian]]: | :''27. As for the insolvency of a [[sub-custodian]], as suggested in the draft advice in relation to the definition of a ‘loss’, [[ESMA]] considers that the [[financial instrument]]s held in [[custody]] by that entity should not automatically be deemed lost since there is a reasonable chance they will be recovered at the end of the legal proceedings thanks notably to the [[sub-custodian]]’s obligation to comply with the [[segregation]] requirements defined in Article {{aifmdprov|21(11)(d)}}(iii) and the corresponding implementing measures. However, [[ESMA]] has identified three situations where [[instrument]]s may be lost following the [[bankruptcy]] of a [[sub-custodian]]: | ||