Private law issues relating to investment funds and their functionaries

Abstract

This thesis seeks to conduct a study of the private issues relating to the operation of Collective Investment Schemes. The starting point for this study is the choice of legal entity used to incorporate a fund, which will have a determining effect on the issues analyzed. Chapter 1 sets the background and provides a broad overview of the types of legal vehicles which may be used to set up Collective Investment Schemes, the different types of funds which may be set up in accordance with target investor base or the different portfolio of the fund, as well as a brief outline of the European Union directives which have application in this field. The subsequent chapter endeavours to provide a study of the sources of duties incumbent of funds and fund managers, the obtaining standard of care for each source, and the remedies available to aggrieved investors in cases of breaches thereof. Chapter 3 examines certain ancillary issues which arise from the varying relationships existing out of the functioning of a Collective Investment Scheme, amongst which are the duties of directors in Corporate-form Schemes, conflicts of interest and the use of Side Letters in Professional Investor Funds. A discussion of the proprietary rights pertaining to unit holders is entered into. Once again the methodology of the study is to use an approach based on the varying legal structures in which units are held. The main structures analyzed are the corporate---form schemes, the unit trust and the contractual funds. Lastly the study will define the requisite juridical interest which is necessary for the institution of claims relating to investment funds and study the possible link between the rights of unit holders and the requirement of juridical interest.