The mechanics of how a fund company could relocate into Ireland until recently involved the incorporation of a new fund company in Ireland and the transfer of assets between the existing fund and a new Irish fund. The tax implications of such transfers and the possible repercussions in terms of distribution networks and transfer agency issues all needed to be taken into account.

The Companies (Miscellaneous Provisions) Act 2009 (the Act) was signed into law by the President of Ireland on the 23 December 2009. Section 3(j) and 5 of the Act provide a framework for streamlining the processes whereby the re-domiciliation of fund companies into and out of Ireland can be dealt with in a more efficient manner. These sections of the Act are not yet in operation and will be commenced by a separate commencement order. This commencement order is expected to be in place by the end of the second quarter of 2010.

Section 3(j) of the Act provides for companies to re-register in Ireland by making a single filing in the Companies Registration Office. The Act also lists the documentation required for both companies migrating into and out of Ireland but for the purposes of this article we have focused on the procedure to be followed by those companies who wish to migrate into Ireland.

The application is made by a migrating company to the Companies Registration Office (the CRO). The migrating company will also make an application to the Financial Regulator for authorisation as a UCITS or non-UCITS, as applicable, in tandem with the application to the CRO.

1. Shareholder Meeting

The migrating company will need to convene a meeting of its shareholders in it's jurisdiction of origin. This is to discuss the formal procedural issues surrounding the proposed re-domiciliation of the migrating company and approve any matters which it is required to approve under its constitutional documentation.

2. Memorandum and Articles of Association

The migrating company will need to amend its constitutional documentation to suit the legal requirements of the jurisdiction in which it intends to continue. Any resolution of the shareholders to amend the migrating company's constitutional documentation should be made conditional on receiving the approval of the Financial Regulator.

3. Authorisation by the Financial Regulator

The Financial Regulator will need to provide authorisation for the migrating company to operate in Ireland. As part of this process, the Financial Regulator will need to provide the relevant authorisations and approvals to the migrating company's service providers (Promoter, Investment Manager etc). Depending on the nature of the authorisation being sought by the migrating company i.e. UCITS or Non-UCITS this process may take a number of weeks to finalise.

4. Filing with the Companies Registration Office

Once the service provider approvals have been confirmed by the Financial Regulator the migrating company makes an application to the Companies Registration Office to be registered in Ireland by way of continuation. This involves making a single filing of the registration documentation listed below.

5. Final Steps

Once the Companies Registration Office receives notification from the Financial Regulator that it proposes to authorise the investment company to carry on business in Ireland (either as a UCITS or non UCITS), the CRO can issue the Certificate of Registration of the migrating company. The migrating company then has three days to de-register from its home domicile and notify the Financial Regulator and the CRO that this has been completed.

The Act details a number of registration documents which must be submitted to the CRO as part of the application. The key documents to be submitted are listed as follows:

1. Certified copy of the Certificate of Incorporation of the migrating company or its equivalent in the jurisdiction of origin;
   
   
2. Certified copy of the Memorandum and Articles of Association of the migrating company or equivalent documentation (it is worth noting that an English translation of the memorandum and articles to be adopted by the company in Ireland must also be provided);
   
   
3. An up to date list of the directors and secretary of the migrating company in accordance with section 195 of the Companies Act 1963 (as amended) (CA 1963);
   
   
4. A statutory declaration (to be made not more than 28 days before the application for re-registration) of one of the directors (or the solicitors acting for the migrating company) of the migrating company covering the following matters;
   1. that no petition or other order exists to wind-up the company or appoint a liquidator;
   2. that the migrating company has not been notified of the appointment of a receiver or examiner;
   3. that the company is not involved in a scheme of arrangement with its creditors;
   4. that the company's creditors have been notified of the proposed re-registration;
   5. any consents required under existing contract's have been either provided or waived; and
   6. the re-registration is permitted under the migrating company's memorandum and articles of association.
      
      
5. A declaration of solvency;
   
   
6. A schedule of security interests granted by the migrating company that may registrable under the Companies Acts; and
   
   
7. Notification of the proposed name of the migrating company (if different to its existing name).
   
   
8. Details of the new registered office of the migrating company.

It is important to note that the legislative provisions facilitating re-domiciliation are not yet operational despite the legislation being in place. The sections of the Act providing for the procedure set out above await the introduction of a "commencement order". As mentioned previously, industry commentators believe this will be in place by the middle of 2010.

The simplified process of re-registration introduced by the Act is a very welcome development for the Irish funds industry. The recent economic turmoil in world markets and lagging investor confidence mean that the more regulated jurisdictions are becoming the locations of choice for investment managers and promoters. Ireland should be in a good position to take advantage of fund relocations with the straight forward approach to re-registration of fund companies available under this legislation.

March 2010.

For further information please contact Damien Barnaville or David Williams.