law of 20 December 2002 - Alfi

In light of the preceding enumeration, it appears that the depositary of a SICAV or of anyother UCI which has not been constituted as a common fund does not have supervisoryand monitoring duties as extensive as those provided for other depositaries by the law of30 March 1988.Thus, the depositary of a SICAV or of any other UCI which has not been constituted as acommon fund is not obliged to verify whether the instructions of the management bodies arein accordance with the law or the constitutional documents.Likewise to a depositary of a common fund subject to Part II of the law of 30 March 1988 it isfurthermore not obliged to ensure that the calculation of the value of units or shares is carriedout in accordance with the law and the constitutional documents.Insofar as they refer to obligations which are shared by all depositaries, the provisions under1. herebefore apply mutatis mutandis to the depositary of a SICAV or of any other UCI whichhas not been constituted as a common fund.IV. Liability of the depositary.As stated above, the concept of custody of UCI assets by the depositary is to be understoodin the sense of supervision.With respect to the full range of duties incumbent upon it under the provisions of the law of30 March 1988, the depositary has a duty of supervision which implies a liability for its wrongfulfailure to perform its obligations or its wrongful improper performance thereof. Anyone sufferingdamages must prove the depositary’s negligence in respect of its duty of supervisionand the correspondence between cause and effect.This supervision by the depositary is in particular exercised over the third parties with whichthe assets of the UCI have been deposited.As regards the extent of the duty of supervision of the depositary, one can consider that thedepositary has discharged its duty of supervision when it is satisfied from the outset and duringthe whole of the duration of the contract that the third parties with which the assets of theUCI are on deposit are reputable and competent and have sufficient financial resources.The duty of supervision of the assets of the UCI and consequently the liability for such supervisionalways resides with the depositary. Any provision of the management regulations andthe Articles or any other agreement aiming to exclude or limit this liability are null and void.It follows from there that the depositary may, in no case, release itself from its duty of supervision.Therefore the depositary may in particular not argue that the deposit of the assets of theUCI has been carried out with its general or specific approval. The liability of the depositaryis furthermore unaffected by the fact either that it has been assisted by third parties in theexecution of its tasks or that it has entrusted the execution thereof to its representatives.The liability of the depositary in matters of custody is basically different from that in respect ofthe deposit agreement. Indeed, where the assets of the UCI are on deposit with the depositaryitself, its liability is governed by the law applicable to deposit agreements (Article 1915and the following Articles of the Civil Code).In the light of the above, depositary agreements containing liability provisions must distinguishthe three following liability regimes:108