Related provisions for BIPRU 7.8.15

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COBS 2.2.3RRP
3A firm, other than a venture capital firm, which is managing investments for a professional client that is not a natural person must disclose clearly on its website, or if it does not have a website in another accessible form:(1) the nature of its commitment to the Financial Reporting Council’s Stewardship Code; or(2) where it does not commit to the Code, its alternative investment strategy.
COBS 6.1.6RRP
(1) A firm that manages investments for a client must establish an appropriate method of evaluation and comparison such as a meaningful benchmark, based on the investment objectives of the client and the types of designated investments included in the client portfolio, so as to enable the client to assess the firm's performance.(2) If a firm proposes to manage investments for a client6, the firm must provide the client with such of the following information as is applicable:(a)
INSPRU 3.1.61ARRP
A pure reinsurer must invest its assets in accordance with the following requirements:(1) the assets must take account of the type of business carried out by the firm, in particular the nature, amount and duration of expected claims payments, in such a way as to secure the sufficiency, liquidity, security, quality, profitability and matching of its investments;(2) the firm must ensure that the assets are diversified and adequately spread and allow the firm to respond adequately

1The following words or terms throughout IPRU-INV 5 appearing in bold (other than headings and titles) are to have the meanings given to them below if not inconsistent with the subject or context. If a defined term is italicised the definition appearing in the main Handbook Glossary applies.

Term

Meaning

accounting reference date

means:

(a)

the date to which a firm's accounts are prepared in order to comply with the relevant Companies Act legislation. In the case of a firm not subject to Companies Act legislation, the equivalent date selected by the firm; and

(b)

in the case of an OPS firm which is not subject to the relevant Companies Act legislation, the date to which the accounts of the OPS in respect of which the firm acts are prepared.

annual expenditure

has the meaning given in IPRU-INV 5.5.1 (Determination).

category a body

means:

(a)

the government or central bank of a zone a country; or

(b)

EU or Euratom (the European Atomic Energy Community); or

(c)

the government or central bank of any other country, provided the receivable in question is denominated in that country's national currency.

category b body

means:

(a)

the European Investment Bank (EIB) or a multi-lateral development bank; or

(b)

the regional government or local authority of a zone a country; or

(c)

an investment firm or credit institution authorised in a zone a country; or

(d)

a recognised clearing house or exchange; or

(e)

an investment firm or credit institution authorised in any other country, which applies a financial supervision regime at least equivalent to the Capital Adequacy Directive.

counterparty

means any person with or for whom a firm carries on regulated business or an ancillary activity.

counterparty risk requirement

has the meaning given in IPRU-INV 5.11.1R (Counterparty risk requirement).

expenditure based requirement

means the requirement calculated in accordance with IPRU-INV 5.9.1R (Expenditure based requirement).

financial resources

has the meaning given in IPRU-INV 5.2.3R (Financial resources).

financial resources requirement

has the meaning given in IPRU-INV 5.4.1R (Determination of requirement).

financial resources rules

has the meaning given in IPRU-INV 5.2.

financial return

means quarterly financial return or monthly financial return as the case may be.

foreign exchange position

has the meaning given in IPRU-INV 5.14.1R (Foreign exchange requirement).

investment

means a designated investment in the main Glossary.

investment business

means designated investment business in the main Glossary.

investment firm

has the meaning given to investment firm in the main Glossary except that it excludes persons to which MiFID does not apply as a result of articles 2 or 3 of MiFID.

Note: An investment firm is not necessarily a firm for the purposes of the rules.

investment manager

means a person who, acting only on behalf of a customer, either:

(a)

manages an account or portfolio in the exercise of discretion; or

(b)

has accepted responsibility on a continuing basis for advising on the composition of the account or portfolio.

liquid capital

has the meaning given in IPRU-INV 5.3.1R (Calculation of own funds and liquid capital).

liquid capital requirement

has the meaning given in IPRU-INV 5.4.4R (Liquid capital requirement).

non-retail client

means a professional client or an eligible counterparty.

OPS or occupational pension scheme

means any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect in relation to one or more descriptions or categories of employment so as to provide benefits, in the form of pensions or otherwise, payable on termination of service, or on death or retirement, to or respect of earners with qualifying service in an employment of any such description or category.

OPS firm

means:

(a)

a firm which:

(i)

carries on OPS activity but not with a view to profit; and

(ii)

is one or more of the following:

(A)

a trustee of the occupational pension scheme in question;

(B)

a company owned by the trustees of the occupational pension scheme in question;

(C)

a company which is:

(I)

an employer in relation to the occupational pension scheme in question in respect of its employees or former employees or their dependants; or

(II)

a company within the group which includes an employer within (I); or

(III)

an administering authority subject to the Local Government Superannuation Regulations 1986; or

(b)

a firm which:

(i)

has satisfied the requirements set out in (a) at any time during the past 12 months; but

(ii)

is no longer able to comply with those requirements because of a change in the control or ownership of the employer referred to in (a)(ii) during that period.

otc derivative

means interest rate and foreign exchange contracts covered by Annex III to the previous version of the Banking Consolidation Directive (i.e. Directive (2000/12/EC) and off balance sheet contracts based on equities which are not traded on a recognised or designated investment exchange or other exchange where they are subject to daily margin requirements, excluding any foreign exchange contract with an original maturity of 14 calendar days or less.

other assets requirement

has the meaning given in IPRU-INV 5.17.1R (Other assets requirement).

own funds

has the meaning given in IPRU-INV 5.3.1R and IPRU-INV 5.3.2R, as applicable.

own funds requirement

has the meaning given in IPRU-INV 5.4.3R and IPRU-INV 5.4.4R (Own funds requirement), as applicable.

permitted business

means regulated activity which a firm has permission to carry on.

position risk requirement

has the meaning given in IPRU-INV 5.11.1R (Position risk requirement).

prescribed subordinated loan agreement

means the subordinated loan agreement prescribed by the appropriate regulator for the purposes of IPRU-INV 5.6.4R.

qualifying capital instrument

means that part of a firm's capital which is a security of indeterminate duration, or other instrument, that fulfils the following conditions:

(a)

it may not be reimbursed on the bearer's initiative or without the prior agreement of the appropriate regulator;

(b)

the debt agreement must provide for the firm to have the option of deferring the payment of interest on the debt;

(c)

the lender's claims on the firm must be wholly subordinated to those of all non-subordinated creditors;

(d)

the documents governing the issue of the securities must provide for debt and unpaid interest to be such as to absorb losses, whilst leaving the firm in a position to continue trading; and

(e)

only fully paid-up amounts shall be taken into account.

qualifying capital item

means that part of a firm's capital which has the following characteristics:

(a)

it is freely available to the firm to cover normal banking or other risks where revenue or capital losses have not yet been identified;

(b)

its existence is disclosed in internal accounting records; and

(c)

its amount is determined by the management of the firm and verified by independent auditors, and is made known to, and is monitored by, the FCA.

2

qualifying property

has the meaning given in IPRU-INV 5.7.1R (Qualifying property and qualifying amount defined).

qualifying subordinated loan

has the meaning given in IPRU-INV 5.6 (Qualifying subordinated loans).

qualifying undertaking

has the meaning given in IPRU-INV 5.7.3R (Qualifying undertakings).

readily realisable investment

means a unit in a regulated collective investment scheme, a life policy or any marketable investment other than one which is traded on or under the rules of a recognised or designated investment exchange so irregularly or infrequently:

(a)

that it cannot be certain that a price for that investment will be quoted at all times; or

(b)

that it may be difficult to effect transactions at any price which may be quoted.

regulated business

means designated investment business in the main Glossary.

relevant foreign exchange items

means:

(a)

all assets less liabilities, including accrued interest, denominated in the currency (all investments at market or realisable value);

(b)

any currency future, at the nominal value of the contract;

(c)

any forward contract for the purchase or sale of the currency, at the contract value, including any future exchange of principal associated with currency swaps;

(d)

any foreign currency options at the net delta (or delta-based) equivalent of the total book of such options;

(e)

any non-currency option, at market value;

(f)

any irrevocable guarantee;

(g)

any other off-balance sheet commitment to purchase or sell an asset denominated in that currency.

reporting currency

means the currency in which the firm's books of account are maintained.

specified trustee business

1.

means any investment business carried on in the UK by a trustee firm, but excluding each of the following activities:

(a)

Dealing or arranging deals in investments

(i)

where the deal is transacted or arranged by a trustee firm with or through a PTP; or

(ii)

where the dealing or arranging is done in the course of, or is incidental to, an activity of management falling within paragraph (b) below; or

(iii)

where the trust is a unit trust scheme and the deal is or the arrangements are made with a view to either an issue or sale of units in such a scheme to, or a redemption or repurchase or conversion of such units or a dealing in investments for such a scheme carried out by with or through, the operator or on the instructions of the operator; or

(iv)

where the trustee firm, being a bare trustee (or, in Scotland, a nominee) holding investments for another person, is acting on that person's instructions; or

(v)

where any arrangements do not or would not bring about the transaction in question.

(b)

Managing investments

(i)

where the trustee firm has no general authority to effect transactions in investments at discretion; or

(ii)

if and to the extent that all day-to-day decisions in relation to the management of the investments or any discrete part of the investments are or are to be taken by a PTP; or

(iii)

if and to the extent that investment decisions in relation to the investments or any discrete part of the investments are or are to be taken substantially in accordance with the advice given by a PTP; or

(iv)

where the trustee firm is a personal representative or executor and is acting in that capacity; or

(v)

where the trust is a unit trust scheme and all day-to-day investment decisions in the carrying on of that activity are or are to be taken by the operator of the scheme.

(c)

Investment advice

(i)

where the relevant advice:

(A)

does not recommend the entry into any investment transaction or the exercise of any right conferred by any investment to acquire, dispose of, underwrite or convert such an investment; and

(ii)

if and to the extent that the relevant advice is in substance the advice of a PTP; or

(iii)

where the relevant advice is given by the trustee firm acting in the capacity of personal representative or executor.

(d)

Establishing, operating or winding up a collective investment scheme including acting as trustee of an authorised unit trust scheme but only to the extent that such activities do not otherwise constitute specified trustee business.

(e)

Any trustee activity undertaken as trustee of an issue of debentures or government or public securities:

(i)

where the issue is made by a company listed on a recognised investment exchange or on a designated investment exchange (or by a wholly-owned subsidiary of such a company); or

(ii)

where the issue is listed or traded either on a recognised investment exchange or on a designated investment exchange or on the Société de la Bourse de Luxembourg; or

(iii)

where the issue is made by a government, local authority or international organisation; or

(iv)

where the aggregate amounts issued (pursuant to the trust deed or any deed supplemental thereto and ignoring any amounts redeemed, repurchased or converted) exceed the sum of £10,000,000.

2.

For the purpose of this definition of "specified trustee business":

(a)

a transaction is entered into through a person if that person:

(i)

enters into it as agent; or

(ii)

arranges for it to be entered into as principal or agent by another person and the arrangements are such that they bring about the transaction in question;

(b)

investment transaction means a transaction to purchase, sell, subscribe for or underwrite a particular investment and "investment decision" means a decision relating to an investment transaction;

(c)

debentures means any securities falling within article 77 of the RAO;

(d)

government or public securities means any securities falling within article 78) of the RAO;

(e)

government, local authority or international organisation means:

(i)

the government of the United Kingdom, of Northern Ireland, or of any country or territory outside the United Kingdom;

(ii)

a local authority in the United Kingdom or Anywhere; or

(iii)

an international organisation the members of which include the United Kingdom2.

(f)

in determining the size of an issue of debentures or government or public securities made in a currency other than sterling, the amount of the issue shall be converted into sterling at the exchange rate prevailing in London on the date of issue.

total capital requirement

has the meaning given in IPRU-INV 5.4.5R (Total capital requirement).

trading book

in relation to a firm's business or exposures, means:

(a)

its proprietary positions in financial instruments:

(i)

which are held for resale and/or are taken on by the firm with the intention of benefiting in the short term from actual and/or expected differences between their buying and selling prices or from other price or interest-rate variations;

(ii)

arising from matched principal broking;

(iii)

taken in order to hedge other elements of the trading book;

(b)

exposures due to unsettled securities transactions, free deliveries, OTC derivative instruments, repurchase agreements and securities lending transactions based on securities included in (a)(i) to (iii) above, reverse repurchase agreements and securities borrowing transactions based on securities included in (a)(i) to (iii) above; and

(c)

fees, commission, interest and dividends, and margin on exchange-traded derivatives which are directly related to the items included in (a) and (b) above.

trustee activity

means, in relation to a firm, any activity undertaken in the course of or incidental to the exercise of any of its powers, or the performance of any of its duties, when

unit trust manager

means the manager of a unit trust scheme.

zone b country

means a country which is not a Zone A country in the Glossary.

PERG 2.10.15GRP
In addition, there are restrictions on carrying on (or agreeing to carry on) certain other regulated activities. These relate to managing investments, advising on investments, advising on a home finance transaction,2advising on syndicate participation at Lloyd's, entering into a home finance transaction or administering a home finance transaction.222
TC App 4.1.1AERP

24In relation to the above RDR activities a qualification in the table in Part 2 will meet the qualification requirement in relation to the activity listed in column 3 of that table, for the purpose of TC 2.1.10E(2), to the extent set out below:

  1. (1)

    where an ‘a’ appears in the fourth column of the table in Part 2 the qualification will fully meet the qualification requirement on and after, 31 December 2012; and

  2. (2)

    where a ‘b’ appears in the fourth column of the table in Part 2 the qualification will fully meet the qualification requirement until 31 December 2012. On and after 31 December 2012 this must be combined with qualification gap-fill. This gap-fill (see TC App 7.1.1G)29 constitutes additional structured continuing professional development, which need not be by examination, completed and verified by an accredited body.

24Part 1B: The non-Retail Distribution Review activities (non-RDR activities)

Activity Number

Non-RDR24 Activity (non-overseeing activity)24

24

7

Giving personal recommendations26 on long-term care insurance contracts

24

24

8

Giving personal recommendations26 on investments in the course of corporate finance business

9

Advising on syndicate participation at Lloyd's

11

Undertaking the activity of a pension transfer specialist (see also TC 2.1.5KR)2730

14 and 10

Managing investments and/or undertaking the activity of a broker fund adviser

20

Advising on a regulated mortgage contract for a non-business purpose; or

Arranging (bringing about) an execution-only sale of a regulated mortgage contract for a non-business purpose, excluding variations to an existing regulated mortgage contract, except where the effect is to change all or part of the regulated mortgage contract from one interest rate to another14

24

24

21

Advising on equity release transactions; or

Arranging (bringing about) an execution-only sale of an equity release transaction, excluding variations to an existing equity release transaction, except where the effect is to change all or part of the equity release transaction from one interest rate to another14

1421A

Designing scripted questions for an execution-only sale of a regulated mortgage contract for a non-business purpose

22

Designing scripted questions for an execution-only sale of an 14equity release transaction

1414

24

24

24Activity Number

Non-RDR Activity (overseeing activity)

15

Overseeing on a day to day basis operating a collective investment scheme or undertaking activities of a trustee or depositary of a collective investment scheme.

16

Overseeing on a day to day basis safeguarding and administering investments or holding client money.

17

Overseeing on a day to day basis administrative functions in relation to managing investments:

(i) arranging settlement;

(ii) monitoring and processing corporate actions;

(iii) client account administration, liaison and reporting including valuation and performance measurement;

(iv) ISA or CTF administration;

(v) investment trust savings scheme administration.

18

Overseeing on a day to day basis administrative functions in relation to effecting or carrying out contracts of insurance which are life policies:

(i) new business administration;

(ii) policy alterations including surrenders and policy loans;

(iii) preparing projections;

(iv) processing claims, including pension payments;

(v) fund switching.

19

Overseeing on a day to day basis administrative functions in relation to the operation of stakeholder pension schemes:

(i) new business administration;

(ii) receipt of or alteration to contributions;

(iii) preparing projections and annual statements;

(iv) administration of transfers;

(v) handling claims, including pension payments;

(vi) fund allocation and switching.

23

Overseeing non-advised sales on a day to day basis of equity release transactions.

DEPP 2.5.18GRP
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
BIPRU 4.2.21GRP
(1) A firm should achieve full roll-out of the IRB approach to all its exposures, subject to the exemptions outlined in BIPRU 4.2.26 R, within the period specified in its IRB permission. A firm should not retain a permanent mix of portfolios on the standardised approach and the IRB approach, on the foundation IRB approach and the advanced IRB approach or on a mixture of all approaches with the exception of portfolios covered by those exemptions.(2) This applies to a move:(a) from
BIPRU 3.4.47RRP
Investments in equity or regulatory capital instruments issued by institutions must be risk weighted at 100%, unless deducted from capital resources.[Note: BCD Annex VI Part 1 point 39]
BIPRU 4.4.9RRP
A firm with portfolios concentrated in a particular market segment and range of default risk must have enough obligor grades within that range to avoid undue concentrations of obligors in a particular grade. Significant concentrations within a single grade must be supported by convincing empirical evidence that the obligor grade covers a reasonably narrow PD band and that the default risk posed by all obligors in the grade falls within that band.[Note:BCD Annex VII Part 4 point
COLL 4.2.5RRP

This table belongs to COLL 4.2.2 R (Publishing the prospectus).

Document status

1

A statement that the document is the prospectus of the authorised fund valid as at a particular date (which shall be the date of the document).

Authorised fund

2

A description of the authorised fund including:

(a)

its name;

29(aa)

its FCA product reference number (PRN);

(b)

whether it is an ICVC, ACS21 or an AUT;17

3(ba)

whether it is a UCITS scheme or a non-UCITS retail scheme;

17(bb)

a statement that unitholders in an AUT, ICVC or co-ownership scheme21 are not liable for the debts of the authorised fund;21

(bc)

a statement that the scheme property of a co-ownership scheme is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants);21

(bd)

a statement that a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business;21

(be)

a statement that the exercise of rights conferred on limited partners by FCArules does not constitute taking part in the management of the partnership business;21

(c)

for an ICVC, the address of its head office and the address of the place in the United Kingdom for service on the ICVC of notices or other documents required or authorised to be served on it;

(ca)

for an ACS that is a limited partnership scheme, the address of the proposed principal place of business of the limited partnership scheme;21

(d)

the effective date of the authorisation order made by the FCA and relevant details of termination, if the duration of the authorised fund is limited;

(e)

its base currency;

(f)

for an ICVC, the maximum and minimum sizes of its capital;

18

(g)

the circumstances in which it may be wound up under the rules and a summary of the procedure for, and the rights of unitholders under, such a winding up; and1817

18(h)

if it is not an umbrella, a statement that it is a feeder UCITS, a feeder NURS, a fund of alternative investment funds or a property authorised investment fund22, where that is the case.

22

Umbrella ICVCs or co-ownership schemes21

2A

The following statements for an ICVC or a co-ownership scheme which is an umbrella:21

21

(a)

for an ICVC, a statement that21its sub-funds are segregated portfolios of assets and, accordingly, the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose;

21

(aa)

for a co-ownership scheme, a statement that the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund; and21

(b)

for an ICVC or a co-ownership scheme, a statement that21 while the provisions of the OEIC Regulations, and section 261P (Segregated liability in relation to umbrella co-ownership schemes) of the Act in the case of co-ownership schemes,21 provide for segregated liability between sub-funds, the concept of segregated liability is relatively new. Accordingly, where claims are brought by local creditors in foreign courts or under foreign law contracts, it is not yet known how those foreign courts will react to regulations 11A and 11B of the OEIC Regulations or, as the case may be, section 261P of the Act.2118

18Umbrella Schemes

182B

For a UCITS scheme or non-UCITS retail scheme which is an umbrella:29

222222

29(a)

a statement detailing whether each specific sub-fund is a feeder UCITS, a feeder NURS, a fund of alternative investment funds or a property authorised investment fund, as appropriate; and

29(b)

the FCA product reference number (PRN) of each sub-fund.

Investment objectives and policy

3

The following particulars of the investment objectives and policy of the authorised fund:

(a)

the investment objectives, including its financial objectives;

(b)

the authorised fund's investment policy for achieving those investment objectives, including the general nature of the portfolio and, if appropriate, any intended specialisation;

(c)

an indication of any limitations on that investment policy;22

(c-b)

where:33

(i)

a target for a scheme’s performance has been set, or a payment out of scheme property is permitted, by reference to a comparison of one or more aspects of the scheme property or price with fluctuations in the value or price of an index or indices or any other similar factor (a “target benchmark”); or33

(ii)

without being a target benchmark, arrangements are in place in relation to the scheme according to which the composition of the portfolio of the scheme is, or is implied to be, constrained by reference to the value, the price or the components of an index or indices or any other similar factor (a “constraining benchmark”); or33

(iii)

without being a target benchmark or a constraining benchmark, the scheme’s performance is compared against the value or price of an index or indices or any other similar factor (a “comparator benchmark”),33

a statement providing sufficient information for investors to understand the choice and use of any target benchmark, constraining benchmark or comparator benchmark in relation to the scheme;33

(c-a)

where no target benchmark, constraining benchmark or comparator benchmark is used, a statement to that effect and an explanation of how investors can assess the performance of the scheme;33

22(ca)

for an authorised fund that has indicated in its name, investment objectives or fund literature (including in any financial promotions for the fund), through use of descriptions such as 'absolute return', 'total return' or similar, an intention to deliver positive returns in all market conditions (and where there is no actual guarantee of such returns), additional statements in the authorised fund's investment objectives specifying:

(i)

that capital is in fact at risk;

(ii)

the investment period over which the authorised fund aims to achieve a positive return; and

(iii)

there is no guarantee that this will be achieved over that specific, or any, time period;

(d)

the description of assets which the capital property may consist of;

(e)

the proportion of the capital property which may consist of an asset of any description;

(f)

the description of transactions which may be effected on behalf of the authorised fund and an indication of any techniques and instruments or borrowing powers which may be used in the management of the authorised fund;

(g)

a list of the eligible markets through which the authorised fund may invest or deal in accordance with COLL 5.2.10 R (2)(b) (Eligible markets: requirements);

(h)

for an ICVC, a statement as to whether it is intended that the scheme will have an interest in any immovable property or movable property ((in accordance with COLL 5.6.4 R (2) (Investment powers: general) or COLL 5.2.8 R (2) (UCITS schemes: general)) for the direct pursuit of the ICVC's business;

(i)

where COLL 5.2.12 R (3) (Spread: government and public securities) applies:29

29(i)

a prominent statement as to the fact that more than 35% in value29 of the scheme property is or may be invested in transferable securities or approved money-market instruments issued or guaranteed by a single state, local authority or public international body29; and

29(ii)

the names of the individual states, local authorities or public international bodies issuing or guaranteeing the securities in which29 more than 35% in value of the scheme property may be invested29;

(k)

for an authorised fund which may invest in other schemes, the extent to which the scheme property may be invested in the units of schemes which are managed by the authorised fund manager or by its associate;

14

(ka)

where a scheme is a feeder scheme (other than a feeder UCITS or a feeder NURS)18,16 which (in respect of investment in units in collective investment schemes) is dedicated to units in a single collective investment scheme, details of the master scheme and the minimum (and, if relevant, maximum) investment that the feeder scheme may make in it;

1618

(l)

where a scheme invests principally in scheme units, deposits or derivatives, or replicates an index in accordance with COLL 5.2.31 R or COLL 5.6.23 R (Schemes replicating an index), a prominent statement regarding this investment policy;

(m)

where derivatives transactions may be used in a scheme, a prominent statement as to whether these transactions are for the purposes of efficient portfolio management (including10hedging)10 or meeting the investment objectives or both and the possible outcome of the use of derivatives on the risk profile of the scheme;

(n)

information concerning the profile of the typical investor for whom the scheme is designed;

(o)

information concerning the historical performance of the scheme, comparing in particular its historical performance against each target benchmark and each constraining benchmark used in relation to the scheme,33 presented in accordance with COBS 4.6.2R (the rules on past performance);

66

(p)

for a non-UCITS retail scheme which invests in immovables, a statement of the countries or territories of situation of land or buildings in which the authorised fund may invest;

34(pa)

for a fund investing in inherently illiquid assets at least the following (see FUND 3.2.2R(8) (Prior disclosure of information to investors)):

(i)

an explanation of the risks associated with the scheme investing in inherently illiquid assets and how those risks might crystallise;

(ii)

a description of the tools and arrangements the authorised fund manager would propose using, including those required by FCA rules, to mitigate the risks referred to in (i); and

(iii)

an explanation of the circumstances in which those tools and arrangements would typically be deployed and the likely consequences for investors;

(q)

for a UCITS scheme which invests a substantial portion of its assets in other schemes, a statement of the maximum level of management fees that may be charged to that UCITS scheme and to the schemes in which it invests;

5(qa)

where the authorised fund is a qualifying money market fund, 31a statement identifying it as such a fund 15and a statement that the authorised fund's investment objectives and policies will meet the conditions specified in the definition of qualifying money market fund31;

151515

(r)

where the net asset value of a UCITS scheme is likely to have high volatility owing to its portfolio composition or the portfolio management techniques that may be used, a prominent statement to that effect;

16

(s)

for a UCITS scheme, a statement that any unitholder may obtain on request the types of information (which must be listed) referred to in COLL 4.2.3R (3) (Availability of prospectus and long report); and16

16(t)

for a UCITS scheme that is or is intended to be a master UCITS, a statement that it is not a feeder UCITS and will not hold units of a feeder UCITS.

Reporting, distributions and accounting dates

4

Relevant details of the reporting, accounting and distribution information which includes:

(a)

the accounting and distribution dates;

(b)

procedures for:

(i)

determining and applying income (including how any distributable income is paid);

(ii)

unclaimed or unwanted distributions, including any arrangements for the transfer of:38

(A)

an unclaimed eligible distribution of income that is a dormant asset (see COLL 6.8.4R (Unclaimed, de minimis and joint unitholder distributions)); or38

(B)

unwanted asset money (see COLL 6.8.4AR (Unwanted asset money)); and38

(iii)

if relevant, calculating, paying and accounting for income equalisation; and27

(c)

the accounting reference date and when the long report will be published in accordance with COLL 4.5.14 R (Publication and availability of annual and half-yearly long report).27

(d)

[deleted]27

Characteristics of the units

5

Information as to:

(a)

where there is more than one class of unit in issue or available for issue, the name of each such class and the rights attached to each class in so far as they vary from the rights attached to other classes;

(b)

[deleted]35

232329

(c)

how unitholders may exercise their voting rights and what these amount to;

(d)

where a mandatory redemption, cancellation or conversion of units from one class to another may be required, in what circumstances it may be required; and

(e)

for an AUT, the fact that the nature of the right represented by units is that of a beneficial interest under a trust.

215A

ACSs: UCITS and NURS eligible investors

(a)

A statement that units may not be issued to a person other than a:

(i)

professional ACS investor; or

(ii)

large ACS investor; or

(iii)

person who already holds units in the scheme.

(b)

A statement that the authorised contractual scheme manager must redeem units as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in paragraph 5A(a).

215B

ACSs: UCITS and NURS transfer of units

(a)

A statement whether the transfer of units in the ACSscheme is either:

(i)

prohibited; or

(ii)

allowed;

by the instrument constituting the fund23 and prospectus.

23

(b)

Where transfer of units is allowed by the instrument constituting the fund23 and prospectus in accordance with (a)(ii), a statement that units may only be transferred in accordance with the conditions specified by FCArules, including that units may not be transferred to a person other than a:

23

(i)

professional ACS investor; or

(ii)

large ACS investor; or

(iii)

person who already holds units in the scheme.

(c)

For a co-ownership scheme which is an umbrella, a statement in accordance with (5B)(a)(i) or (ii) and, where appropriate, a statement in accordance with (5B)(b), must also be made for the sub-funds. Where individual sub-funds have differing policies in relation to transfer of units, separate statements are required.

Authorised fund manager

6

The following particulars of the authorised fund manager:

(a)

its name;

(b)

the nature of its corporate form;

(c)

the date of its incorporation;

(d)

the address of its registered office;

(e)

the address of its head office, if that is different from the address of its registered office;

(f)

[deleted]32

(g)

if the duration of its corporate status is limited, when that status will or may cease; and

(h)

the amount of its issued share capital and how much of it is paid up.

Directors of an ICVC, other than the ACD

7

Other than for the ACD:

(a)

the names and positions in the ICVC of any other directors (if any); and

(b)

the manner, amount and calculation of the remuneration of such directors.

Depositary

8

The following information and 25particulars concerning 25the depositary:

(a)

its name;

(b)

the nature of its corporate form;

(c)

the address of its registered office;

(d)

the address of its head office, if that is different from the address of its registered office;

(e)

[deleted]32

25

(f)

a description of its duties and conflicts of interest that may arise between the depositary and:25

25(i)

the scheme; or

25(ii)

the unitholders in the scheme; or

25(iii)

the authorised fund manager;

25(g)

(i)

a description of any safekeeping functions delegated by the depositary;

(ii)

a description of any conflicts of interest that may arise from such delegation; and

(iii)

for a UCITS scheme, a list showing the identity of each delegate and sub-delegate; and

25(h)

for a UCITS scheme, a statement that up-to-date information regarding the points covered under (a),(f) and (g), above, will be made available to unitholders on request.

Investment adviser

9

If an investment adviser is retained in connection with the business of an authorised fund:

(a)

its name; and

(b)

where it carries on a significant activity other than providing services to the authorised fund as an investment adviser, what that significant activity is.

Auditor

10

The name of the auditor of the authorised fund.

Contracts and other relationships with parties

11

The following relevant details:

(a)

for an ICVC:

(i)

a summary of the material provisions of the contract between the ICVC and the ACD3 which may be relevant to unitholders including provisions (if any) relating to remuneration, termination, compensation on termination and indemnity;

3

(ii)

the main business activities of each of the directors (other than those connected with the business of the ICVC) where these are of significance to the ICVC's business;

(iii)

if any director is a body corporate in a group of which any other corporate director of the ICVC is a member, a statement of that fact;

3

(iv)

the main terms of each contract of service between the ICVC and a director in summary form; and3

3(v)

for an ICVC that does not hold annual general meetings, a statement that copies of contracts of service between the ICVC and its directors, including the ACD, will be provided to a unitholder on request;

(b)

the names of the directors of the authorised fund manager and the main business activities of each of the directors (other than those connected with the business of the authorised fund) where these are of significance to the authorised fund's business;

(c)

a summary of the material provisions of the contract between the ICVC or the manager of the AUT and the depositary which may be relevant to unitholders, including provisions relating to the remuneration of the depositary;

21(ca)

in the case of an ACS, a summary of the material provisions of the contracts between:

(i)

the authorised fund manager and the nominated partner (if any); and

(ii)

the authorised fund manager and depositary;

which may be relevant to unitholders, including provisions relating to the remuneration of the depositary;

(d)

if an investment adviser retained in connection with the business of the authorised fund is a body corporate in a group of which any director of the ICVC or the authorised fund manager21 of the AUTor ACS21 is a member, that fact;

21

(e)

a summary of the material provisions of any contract between the authorised fund manager or the ICVC and any investment adviser which may be relevant to unitholders;

(f)

if an investment adviser retained in connection with the business of the authorised fund has the authority of the authorised fund manager or the ICVC to make decisions on behalf of the authorised fund manager or the ICVC, that fact and a description of the matters in relation to which it has that authority;

(g)

a list of:16

16

16(i)

the functions which the authorised fund manager has delegated in accordance with FCA rules32; and

16(ii)

the person to whom such functions have been delegated; and

(h)

in what capacity (if any), the authorised fund manager acts in relation to any other regulated collective investment schemes2 and the name of such schemes.

2

Register of Unitholders

12

Details of:

(a)

the address in the United Kingdom where the register of unitholders, and where relevant the plan register is kept and can be inspected by unitholders; and

(b)

the registrar's name and address.

Payments out of scheme property

13

In relation to each type of payment from the scheme property, details of:

(a)

who the payment is made to;

(b)

what the payment is for;

(c)

the rate or amount where available;

(d)

how it will be calculated and accrued;

(e)

when it will be paid;

(f)

where a performance fee is taken, examples of its operation in plain English and the maximum it can amount to37; and

37(g)

37where donations are to be made to one or more registered charities for Sharia compliance purposes from the income property of the scheme (in this rule, ‘purification’), in addition to the details required above, the person who advises the authorised fund manager on the required percentage of the income property recognised for purification.

Allocation of payments

14

If, in accordance with COLL 6.7.10 R4 (Allocation of payments to income or capital), the authorised fund manager and the depositary have agreed that all or part of any income expense payments may be treated as a capital expense:

(a)

that fact;

(b)

the policy for allocation of these payments; and

(c)

a statement that this policy may result in capital erosion or constrain capital growth.

Moveable and immovable property (ICVC only)

15

An estimate of any expenses likely to be incurred by the ICVC in respect of movable and immovable property in which the ICVC has an interest.

Valuation and pricing of scheme property

16

In relation to the valuation of scheme property and pricing of units1:

1

(a)

either:1

1

(i)

in the case of a single-priced authorised fund,1 a provision that there must be only a single price for any unit as determined from time to time by reference to a particular valuation point; or1

(ii)

1in the case of a dual-priced authorised fund, the authorised fund manager's policy for determining prices for the sale and redemption of units by reference to a particular valuation point and an explanation of how those prices may differ;

(b)

details of:

(i)

how the value of the scheme property is to be determined in relation to each purpose for which the scheme property must be valued;

(ii)

how frequently and at what time or times of the day the scheme property will be regularly valued for dealing purposes and a description of any circumstance in which the scheme property may be specially valued;

(iii)

where relevant, how the price of units of each class will be determined for dealing purposes;

1

(iv)

where and at what frequency the most recent prices will be published; and

(v)

1where relevant in the case of a dual-priced authorised fund, an explanation of what is meant by large deals and 29the authorised fund manager's policy in relation to large deals; and

(c)

if provisions in (a) and (b) do not take effect when the instrument constituting the fund23 or (where appropriate) supplemental trust deed takes effect, a statement of the time from which those provisions are to take effect or how it will be determined.

23

Dealing

17

The following particulars:

(a)

the procedures, the dealing periods and the circumstances in which the authorised fund manager will effect:

(i)

the sale and redemption of units and the settlement of transactions (including the minimum number or value of units which one person may hold or which may be subject to any transaction of sale or redemption) for each class of unit in the authorised fund; and

(ii)

any direct issue or cancellation of units by an ICVC or by the depositary of an AUT or ACS21 (as appropriate) through the authorised fund manager in accordance with COLL 6.2.7R (2) (Issue and cancellation of units through an authorised fund manager);

21

(b)

the circumstances in which the redemption of units may be suspended;

(c)

whether certificates will be issued in respect of registered units;

(d)

the circumstances in which the authorised fund manager may arrange for, and the procedure for the issue or cancellation of units in specie;

(e)

the investment exchanges (if any) on which units in the scheme are listed or dealt;

(f)

the circumstances and conditions for issuing units in an authorised fund which limit the issue of any class of units in accordance with 13COLL 6.2.18 R13 (Limited issue);

(g)

the circumstances and procedures for the limitation or deferral of redemptions in accordance with 13COLL 6.2.19 R13 (Limited redemption) or 13COLL 6.2.21 R13 (Deferred redemption);

12

(h)

in a prospectus available during the period of any initial offer:

(i)

the length of the initial offer period;

(ii)

the initial price of a unit, which must be in the base currency;

(iii)

the arrangements for issuing units during the initial offer, including the authorised fund manager's intentions on investing the subscriptions received during the initial offer;

(iv)

the circumstances when the initial offer will end;

(v)

whether units will be sold or issued in any other currency; and12

(vi)

any other relevant details of the initial offer12; 30

12

(i)

whether a unitholder may effect transfer of title to units on the authority of an electronic communication and if so the conditions that must be satisfied in order to effect a transfer; and30

12

30(j)

if the authorised fund manager deals as principal in units of the scheme and holds them for that purpose, a statement of its policy for doing so and, where applicable:

30(i)

a description of when the authorised fund manager may retain any profits it earns and absorb any losses it incurs for these activities; and

30(ii)

a statement of non-accountability as referred to in COLL 6.7.16G.

38Transfers to a dormant asset fund operator

3817A

If the authorised fund manager or the depositary of the authorised fund has a power under the instrument constituting the fund to transfer an eligible CIS amount that is a dormant asset to a dormant asset fund operator in accordance with sections 8 to 10 of the Dormant Assets Act 2022, particulars as to:

(a)

the types of such eligible CIS amounts which the authorised fund manager or the depositary may transfer;

(b)

the circumstances in which an amount in (a) is a dormant asset, and any steps that the authorised fund manager or the depositary must take before making a transfer;

(c)

if the authorised fund manager or the depositary has a power to convert a unit into a right to payment of an amount in accordance with section 9(3) and (5) of the Dormant Assets Act 2022, an explanation of that power, including the circumstances in which the power may be exercised;

(d)

the consequences for the unitholder of a transfer of an eligible CIS amount, including how the amount of a repayment claim will be determined;

(e)

information about the steps a person would need to take to establish and make a repayment claim, and to receive payment of the money; and

(f)

the basis on which a person who has made a repayment claim may apply for the repaid amount or any part of it to be reinvested in units.

3817B

If the authorised fund manager or the depositary has a power under the instrument constituting the fund to transfer unwanted asset money to a dormant asset fund operator in accordance with section 21 of the Dormant Assets Act 2022, particulars as to:

(a)

the circumstances in which a person may inform the authorised fund manager or the depositary that they wish an eligible CIS amount to be transferred as unwanted asset money to a dormant asset fund operator;

(b)

how a person in (a) may obtain information from the authorised fund manager or the depositary about the procedure by which they may ask for such money to be transferred;

(c)

the declaration that the person will need to make before the money can be transferred as unwanted asset money;

(d)

the consequences of the money being transferred to a dormant asset fund operator; and

(e)

what happens if the dormant asset fund operator does not consent to the transfer of the money.

Dilution

18

In the case of a single-priced authorised fund, details1 of what is meant by dilution including:

(a)

a statement explaining:

(i)

that it is not possible to predict accurately whether dilution is likely to occur; and

(ii)

which of the policies the authorised fund manager is adopting under COLL 6.3.8 (1) (Dilution) together with an explanation of how this policy may affect the future growth of the authorised fund; and

(b)

if the authorised fund manager may require a dilution levy or make a dilution adjustment, a statement of:

(i)

the authorised fund manager's policy in deciding when to require a dilution levy, including what is meant by large deals and 29the authorised fund manager's policy on large deals, or when to make a dilution adjustment;

(ii)

the estimated rate or amount of any dilution levy or dilution adjustment based either on historical data or future projections; and

(iii)

the likelihood that the authorised fund manager may require a dilution levy or make a dilution adjustment and the basis (historical or projected) on which the statement is made.

SDRT provision

19

29

29

29

29

[deleted]29

Forward pricing29

20

An explanation of forward pricing29 under COLL 6.3.9 (Forward 29pricing).

Preliminary charge

21

Where relevant, a statement authorising the authorised fund manager to make a preliminary charge and specifying the basis for and current amount or rate of that charge.

Redemption charge

22

Where relevant, a statement authorising the authorised fund manager to deduct a redemption charge out of the proceeds of redemption; and if the authorised fund manager makes a redemption charge:

(a)

the current amount of that charge or if it is variable, the rate or method of calculating it;

(b)

if the amount, rate or method has been changed, that details of any previous amount, rate or method may be obtained from the authorised fund manager on request; and

(c)

how the order in which units acquired at different times by a unitholder is to be determined so far as necessary for the purposes of the imposition of the redemption charge.

9Property Authorised Investment Funds

922A

For a property authorised investment fund, a statement that:

(1)

[deleted]22

22

(2)

no body corporate may seek to obtain or intentionally maintain a holding of more than19 10% of the net asset value of the fund; and

19

(3)

in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the fund, the authorised fund manager is entitled to delay any redemption or cancellation of units if the authorised fund manager reasonably considers such action to be:

(a)

necessary in order to enable an orderly reduction of the holding to below 10%; and

(b)

in the interests of the unitholders as a whole.

18
18 18

General information

23

Details of:

(a)

the address at which copies of the instrument constituting the fund,23 any amending instrument and the most recent annual and half-yearly long reports may be inspected and from which copies may be obtained;

23

(b)

the manner in which any notice or document will be served on unitholders;

(c)

the extent to which and the circumstances in which:

(i)

the scheme is liable to pay or suffer tax on any appreciation in the value of the scheme property or on the income derived from the scheme property; and

(ii)

deductions by way of withholding tax may be made from distributions of income to unitholders and payments made to unitholders on the redemption of units;

3

(d)

for a UCITS scheme, any possible fees or expenses not described in paragraphs 13 to 22, distinguishing between those to be paid by a unitholder and those to be paid out of scheme property; and3

3

3(e)

for an ICVC, whether or not annual general meetings will be held.

Information on the umbrella

24

In the case of a scheme which is an umbrella with two or more sub-funds11, the following information:

(a)

that a unitholder is entitled to exchange units in one sub-fund for units in any other sub-fund (other than a sub-fund which has limited the issue of units);

(b)

that an exchange of units in one sub-fund for units in any other sub-fund is treated as a redemption and sale and will, for persons subject to United Kingdom taxation, be a realisation for the purposes of capital gains taxation;

(c)

that in no circumstances will a unitholder who exchanges units in one sub-fund for units in any other sub-fund be given a right by law to withdraw from or cancel the transaction;

(d)

the policy for allocating between sub-funds any assets of, or costs, charges and expenses payable out of, the scheme property which are not attributable to any particular sub-fund;

(e)

what charges, if any, may be made on exchanging units in one sub-fund for units in any other sub-fund; and11

(f)

for each sub-fund, the currency in which the scheme property allocated to it will be valued and the price of units calculated and payments made, if this currency is not the base currency of the scheme which is an umbrella.11

(g)

[deleted]11

11

Application of the prospectus contents to an umbrella

25

For a scheme which is an umbrella, information required must be stated:

(a)

in relation to each sub-fund where the information for any sub-fund differs from that for any other; and

(b)

for the umbrella as a whole, but only where the information is relevant to the umbrella as a whole.16

16Information on a feeder UCITS

1625A

In the case of a feeder UCITS, the following information:

(a)

a declaration that the feeder UCITS is a feeder of a particular master UCITS and as such permanently invests at least 85% in value of the scheme property in units of that master UCITS;

(b)

the investment objective and policy, including the risk profile; and whether the performance records of the feeder UCITS and the master UCITS are identical, or to what extent and for which reasons they differ, including a description of how the balance of the scheme property which is not invested in units of the master UCITS is invested in accordance with COLL 5.8.3 R (Balance of scheme property: investment restrictions on a feeder UCITS);

(c)

a brief description of the master UCITS, its organisation, its investment objective and policy, including the risk profile, and an indication of how the prospectus of the master UCITS may be obtained;

(d)

a summary of the master-feeder agreement or where applicable, the internal conduct of business rules referred to in COLL 11.3.2 R (2) (Master-feeder agreement and internal conduct of business rules);

(e)

how the unitholders may obtain further information on the master UCITS and the master-feeder agreement;

(f)

a description of all remuneration or reimbursement of costs payable by the feeder UCITS by virtue of its investment in units of the master UCITS, as well as the aggregate charges of the feeder UCITS and the master UCITS; and

(g)

a description of the tax implications of the investment into the master UCITS for the feeder UCITS.

[Note: article 63(1) of the UCITS Directive]18

18Information on a feeder NURS

1825B

In the case of a feeder NURS, the following information:

(a)

a declaration that the feeder NURS is a feeder of a particular qualifying master scheme and as such is dedicated to units in a single qualifying master scheme and the minimum (and, if relevant, maximum) investment that the feeder NURS may make in its qualifying master scheme;

(b)

the investment objective and policy of the feeder NURS, including its risk profile; and whether the performance records of the feeder NURS and the qualifying master scheme are identical, or to what extent and for which reasons they differ, including a description of how the balance of the scheme property which is not invested in units of the qualifying master scheme is invested in accordance with COLL 5.6.7 R (6A) (Spread: general);

(c)

a brief description of the qualifying master scheme, its organisation, its investment objective and policy, including the risk profile, and an indication of how the prospectus of the qualifying master scheme may be obtained;

(d)

how the unitholders may obtain further information on the qualifying master scheme;

(e)

a description of all remuneration or reimbursement of costs payable by the feeder NURS by virtue of its investment in units of the qualifying master scheme, as well as the aggregate charges of the feeder NURS and the qualifying master scheme; and

(f)

a description of the tax implications of the investment into the qualifying master scheme for the feeder NURS.

Marketing in another EEA state

26

[deleted]32

2323

2121

7Investment in overseas8 property through an intermediate holding vehicle

726A

7If investment in an overseas8 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement disclosing the existence of that intermediate holding vehicle or series of intermediate holding vehicles and confirming that the purpose of that intermediate holding vehicle or series of intermediate holding vehicle is to enable the holding of overseas8 immovables by the scheme.

36Sustainability information

3626B

The following information, as applicable:

(a)

where a sustainability label is used in relation to a scheme, the information set out at ESG 5.3.3R and ESG 5.3.6R, in accordance with ESG 5.3.2R(1);

(b)

where a sustainability label is not used in relation to a scheme, but that scheme uses the terms in ESG 4.3.2R(2) under ESG 4.3.2R(1) in the product’s name or in a financial promotion relating to that scheme, the information required under ESG 5.3.2R(2).

Additional information

27

Any other material information which is within the knowledge of the directors of an ICVC or the authorised fund manager of an AUT or ACS, or which the directors or authorised fund manager21 would have obtained by making reasonable enquiries, including but not confined to, the following matters:

21

(a)

information which investors and their professional advisers would reasonably require, and reasonably expect to find in the prospectus, for the purpose of making an informed judgement about the merits of investing in the authorised fund and the extent and characteristics of the risks accepted by so participating;

(b)

a clear and easily understandable explanation of any risks which investment in the authorised fund may reasonably be regarded as presenting for reasonably prudent investors of moderate means;

(c)

if there is any arrangement intended to result in a particular capital or income return from a holding of units in the authorised fund or any investment objective of giving protection to the capital value of, or income return from, such a holding:

(i)

details of that arrangement or protection;

(ii)

for any related guarantee, sufficient details about the guarantor and the guarantee to enable a fair assessment of the value of the guarantee;

(iii)

a description of the risks that could affect achievement of that return or protection; and

(iv)

details of the arrangements by which the authorised fund manager will notify unitholders of any action required by the unitholders to obtain the benefit of the guarantee; and

(d)

whether any notice has been given to unitholders of the authorised fund manager intention to propose a change to the scheme and if so, its particulars.

Remuneration Policy

2528

For a UCITS scheme and in relation to UCITS Remuneration Code staff:

(a)

up-to-date details of the remuneration policy including, but not limited to:

(i)

a description of how remuneration and benefits are calculated; and

(ii)

the identities of persons responsible for awarding the remuneration and benefits, including the composition of the remuneration committee, where such a committee exists; or

(b)

a summary of the remuneration policy and a statement that:

(i)

up-to-date details of the matters set out in (a) above are available by means of a website, including a reference to that website; and

(ii)

a paper copy of that website information will be made available free of charge upon request.

[Note: A transitional provision applies to row 3(ca) of this table: see COLL TP 1.28.]22

COLL 6.6.15ARRP
(1) 8This rule applies to:(a) an authorised fund manager17of an AUT, ACS10 or an ICVC where such AUT, ACS10 or ICVC is a UCITS scheme13; and17(aa) 13a small authorised UK AIFM that is the authorised fund manager of an AUT, ACS or an ICVC that is a non-UCITS retail scheme.17(b) [deleted]17(2) The authorised fund manager has the power to retain the services of any person to assist it in the performance of its functions, provided that:(a) a mandate in relation to managing investments
CASS 5.5.15GRP
A firm which takes advantage of CASS 5.5.14 R will need to consider whether its permission should include the permitted activity of managing investments. If the firm is granted a power to manage with discretion the funds over which it is appointed as trustee under the trust deed required by CASS 5.4 then it will be likely to need a permission to manage investments. It is unlikely to need such a permission, however, if it is merely granted a power to invest but the deed stipulates