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The Irish Collective Asset-management Vehicle (“ICAV”) is a new corporate vehicle designed for Irish investment funds. It was introduced by the Irish Collective Asset-management Vehicles Act 2015. This new structure is a tailor-made corporate fund vehicle for both undertakings for the collective investment in transferable securities (“UCITS”) and alternative investment funds (“AIFs”).

One can easily recognise an ICAV as its name must end with either “Irish Collective Asset-management Vehicle” or “ICAV”. An ICAV must be registered and authorised by the Central Bank of Ireland (the “Central Bank”), not the Registrar of Companies. It does not have the status of an ordinary Irish company established under the Irish Companies Acts, but rather has its own legislative regime. It is not subject to those aspects of company law legislation which are not relevant or appropriate to a collective investment scheme.

When an ICAV is registered the Central Bank makes a registration order which specifies the date on which it shall come into operation. The ICAV shall constitute a body corporate from this date. The registration order may be considered as equivalent to the certificate of incorporation of a company incorporated under the Companies Acts.

The constitutional document of the ICAV is known as an instrument of incorporation (“IOI”). This is similar to the constitution of an investment company.

Execution of documents and common seal

Sections 32 and 33 of the ICAV Act deal with execution of documents and common seal. An ICAV may provide itself with a common seal, but there is no requirement to do so. The absence of the requirement for an ICAV to have a common seal was intended to be an operational benefit of using an ICAV and to align it with its counterpart in the UK (the OEIC or open ended investment company). The ICAV Act does not set out who may affix the seal and what formalities are required. For companies governed by the Companies Act 2014, these requirements are set out in section 43 of that Act, which has not been incorporated into the ICAV Act.

Where an ICAV has a common seal, the IOI will set out the formalities for its use. These are likely to be similar to those usually found in the constitution of companies governed by the Companies Act 2014. Irrespective of whether the ICAV has a common seal or not, a document expressed (in whatever form of words) to be executed by the ICAV and signed on behalf of the ICAV, either by two authorised signatories or by a director of the ICAV in the presence of a witness who attests the signature, shall have the same effect as if executed under the common seal of the ICAV.

For the purposes of execution each of the following is an authorised signatory:

• A director of the ICAV;
• The secretary or any joint secretary of the ICAV; or
• Any person authorised by the directors of the ICAV in accordance with the ICAV’s instrument of incorporation.

The ICAV Act also provides that:

• Where a document is to be signed by a person on behalf of more than one ICAV, it is not properly signed unless he or she signs it separately for each ICAV; and
• Where the secretary of an ICAV is a firm any reference to the signature of the secretary is a reference to the signature of an individual authorised by the firm to sign on its behalf.

PRA Practice

The Property Registration Authority (“PRA”) has issued a Legal Office Notice (Irish Collective Asset-management Vehicle (ICAV) – ) setting out key provisions of the ICAV Act and the PRA practice in relation to registration of an ICAV as registered owner of property. That Notice indicates that, in the case of documents executed other than under seal, the PRA will require evidence of authorisation where the document is signed by two authorised signatories or by an individual authorised by a firm who is the secretary of the ICAV. The example given is a solicitor’s certificate.

In lieu of Companies Office searches, searches of the Register of ICAVs and the ICAV Register of Charges maintained by the Central Bank will be required. The Register of ICAVs lists all ICAVs that have been registered with the Central Bank, with links to director details, secretary details and Instruments of Incorporation. It does not include any reference to charges, which must be checked separately on the ICAV Register of Charges.

The ICAV Register of Charges may not be fully up to date. Similar to company secretary certificates in respect of any potential charges not yet entered in the Companies Office, or resolutions to wind up, a purchaser from an ICAV should obtain a certificate from the secretary or other officer of the ICAV. The following is an appropriate form of certificate.

The text below shows an appropriate form of certificate.

[SECRETARY'S / DIRECTOR'S] CERTIFICATE

[  •  ] ICAV acting on behalf of its sub-fund [  •  ] (an umbrella fund with segregated liability between sub-funds) having its registered office at [  •  ] (the “ICAV”)

[I, [  •  ], [a director / the secretary] of the ICAV, ] OR [For and on behalf of [  •  ] (company number [  •  ] ), secretary of the ICAV), I] HEREBY CERTIFY that on the date of this certificate:

1. The ICAV has not executed any charges of any description which are not shown as registered on the Register of Charges for Irish Collective Asset-management Vehicles maintained by the Central Bank of Ireland.
2. No resolution to wind up the ICAV has been passed and no notice of a meeting at which it is proposed to wind up the ICAV has been issued or published and no petition has been presented or is pending to wind up the ICAV or to place the ICAV in receivership or to have a receiver appointed.
3. Neither the ICAV nor any of its directors or secretary is an entity or person to whom Chapter 3 or Chapter 4 of Part 14 of the Companies Act 2014 (as amended by section 86 (Restrictions on directors of insolvent ICAVs) and section 87 (Disqualification of directors etc) of the Irish Collective Asset-management Vehicles Act 2015) applies and no notice of intention to apply to the court or to institute civil or criminal proceedings under the said legislation has issued.

Dated [  •  ]

Signed:            _________________________

[  •  ]

[Secretary / Director]