Corporations (Passport) Rules 2018
4Constituent document for a regulated CIS
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4 Constituent document for a regulated CIS
(1) The operator of a passport fund must ensure that the passport fund has a compliant constituent document at all times. (2) For these rules, the constituent document of a regulated CIS is the document shown in the following table:
| Item | Home economy for the passport fund | Constituent document |
|---|---|---|
| 1 | Australia | The constitution of the registered scheme or CCIV required by the Corporations Act 2001. |
| 2 | Japan | The basic terms conditions of the investment trust (if it is an investment trust) or the certificate of incorporation (if it is an investment company) under the Act on Investment Trusts and Investment Corporations. |
| 3 | Korea | Constitutional documents of collective investment vehicles as required by the Financial Investment Services and Capital Markets Act of Korea. |
| 4 | New Zealand | The governing document for the managed investment scheme required by the Financial Markets Conduct Act 2013 of New Zealand. |
| 5 | Singapore | The trust deed or any other document of incorporation required in respect of the collective investment scheme to be authorised under the Securities and Futures Act of Singapore. |
| 6 | Thailand | In the case of a scheme established as a mutual fund, the commitment between the unit holders and the securities company required under the Securities and Exchange Act B.E. 2535 (1992). In the case of a scheme established as a trust, the trust deed as required by the Trust for Transactions in Capital Market Act B.E. 2550 (2007). |
(3) For this section, the constituent document is compliant if the constituent document includes provisions that: (a) have the effect that: (i) each member of the passport fund is entitled to seek remedy against the fund, if it is a legal entity, and its operator, in the member’s choice of the home economy or a host economy for the fund, including through compensation, in relation to loss suffered by the member due to a breach by the fund or its operator of the laws of the home economy for the fund or of the Passport Rules for the home economy or any host economy for the fund, unless: (A) the member and the fund or operator have agreed in writing that the member is not entitled to seek remedy in that place in relation to the particular proceedings; and (B) the agreement is effected after the conduct that is or is to be subject to the proceedings has first occurred; or (ii) a specified person, on behalf of any member of a passport fund when it is in the best interests of members, is entitled to seek remedy against the fund, if it is a legal entity, or its operator in the specified person’s choice of the home economy or a host economy for the fund, including through compensation, in relation to loss suffered by the member due to a breach by the fund or its operator of the laws of the home economy for the fund or of the Passport Rules for the home economy or any host economy for the fund, unless: (A) the specified person and the fund or operator have agreed in writing that the member is not entitled to seek remedy in that place in relation to the particular proceedings; and (B) the agreement is effected after the conduct that is or is to be subject to the proceedings has first occurred; and (b) have the effect that the passport fund, if it is a legal entity, and its operator agree that where a member of the fund has commenced proceedings against the fund or its operator in a court in the member’s economy, that court will be a convenient forum to hear the proceedings, unless: (i) a similar action has been commenced against the fund or its operator in another economy and it would be reasonable for the member to participate in that action; or (ii) the member and the fund or operator have agreed in writing that the court will not be a convenient forum in relation to that particular proceeding and the agreement is effected after the conduct that is or is to be subject to the proceedings has first occurred; and (c) have the effect that the passport fund, if it is a legal entity, and its operator agree that the convenient forum for the fund or its operator bringing an action against a member will be the member’s economy unless the member and the fund or operator have agreed in writing that the court will not be a convenient forum in relation to the particular proceedings and the agreement is effected after the conduct that is or is to be subject to the proceedings has first occurred. (4) For this section, the member’s economy in relation to the passport fund is: (a) the economy in which the member was located when they applied to be accepted as a member of a passport fund if that economy is a participating economy; or (b) in all other cases, the home economy for the fund.