Section 2
( 1)
In this Order, except where the context otherwise requires -
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"administrative service", in relation to a registered fund, means any service which is administrative in nature but is neither a management service nor service as a trustee or custodian;
"administrator" means, in relation to a registered fund, a person who provides one or more administrative services as regards the fund;
"approved auditor" has the meaning ascribed thereto in the International
Business Companies Order, 2000 (S 56/2000);
"arrangement" includes a proposed arrangement;
"Authority" means such person or body as is appointed by His Majesty the Sultan an Yang Di-Pertuan to be the Authority for the purposes of this Order;
"bearer share" has the meaning given by section 5(2);
"category", in relation to a mutual fund, means a private fund, professional fund or public fund;
"current" means in force for the time being or, as regards a permission, given and not withdrawn;
"custodial licence" means a licence issued for the purposes of section 13;
"custodial permission" means a permission given for the purposes of section 13;
"custodian", in relation to a mutual fund, means any person who-
(a)
pursuant to or under a trust deed or other instrument or agreement (whether executed or made under the law of Brunei
Darussalam or that of a country, territory or recognised jurisdiction outside Brunei Darussalam); or
(b)
under the law of such a country, territory or recognised jurisdiction, is the person in whom the property of the fund is vested or the person who is otherwise responsible to the fund or its participants for the safe-keeping of that property;
"dedicated shares" has the meaning ascribed thereto in Part XIIA of the
International Business Companies Order, 2000 (S 56/2000);
11designated day", in relation to a fund described in section 7(4), means the day specified as such under section 10(l)(d);
"director" includes an alternate or substitute director and any person occupying the position of director of a company, by whatever name so called;
"fund interest" means, in relation to a mutual fund, a share, an interest in a limited or other partnership, a unit of participation in a unit trust to which this Order applies or any other security which is a unit of proprietorship (however that unit is described) which
(a} is issued or is otherwise offered by the fund; and
(b)
represents rights in or carries an entitlement to receive income or participate in profits or other gains or which otherwise confers or constitutes an entitlement so to receive and participate, but "fund interest" does not include a bearer share;
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159 10th. MARCH, 2001
"inspector" means a person appointed under section 28{2);
"Islamic fund" means a mutual fund which does not offend against the
Islamic Religion;
"jurisdiction", except in the expression "recognised jurisdiction", means-
{a) a legal jurisdiction extending to
(i)
every place within a particular state;
where a state is a federation or confederation (whether it is styled or otherwise described as being such), every place within a state, province, canton or other federal or confederated territory which forms part of the state;
(iii)
where a state is a unitary state . .with two or more distinct legal systems, every place to which any particular such system applies; and
{b)
the civil jurisdiction of a court or other tribunal which extends to two or more independent states and which is created by a treaty or other international agreement between those states;
"management service", in relation to a mutual fund, includes any of the following
{a) giving investment advice;
{b) acquiring, disposing of or otherwise dealing in investments or other property on behalf of a mutual fund;
{c) the exercise of day to day control over the management of a mutual fund's assets;
{d) any other service or activity which is prescribed for the purposes of this definition;
"manager", in relation to a registered fund, means subject to subsection
(5)
, the person who provides one or more management services as regards the fund, and in this Order, apart from sections 4, 25, 28(9) and 39, "manage", "management" and kindred words shall be construed in accordance with the foregoing;
"Minister" means the Minister of Finance;
"mutual fund" shall be construed in accordance with section 4 and any related reference to a "fund" shall be construed accordingly;
"mutual fund licence" means a licence issued on an application under section 7;
"mutual fund permission" means a permission given on an application under section 7;
"operator's licence" means a licence described in section 11;
"operator's permission" means a permission described in section 11;
"participant", in relation to a mutual fund, shall be construed in accordance with paragraph (a) or, as the case may be, paragraph (b) of section 4(1) (and regardless of whether the fund concerned refers to those participating therein as participants, members or otherwise);
"prescribed" means prescribed by regulations made under section 3;
"private fund" means a mutual fund which is not a professional fund and whose terms-
(a)
limit the number of participants for the time being to not more than 50, and
(b)
enable the participants at any time to remove from office in terms provided by the mutual fund the person who is the manager of the mutual fund for the time being;
"a professional fund" means a mutual fund whose terms-
(a)
limit the nU.mber of participants for the time being to not more than 50; and
{b)
also require each participant to contribute, subject to subsection
(2)
, not less than $500,000 or, if the mutual fund is not denominated in the currency of Brunei Darussalam, not less than an equivalent amount in the currency in which the mutual fund is denominated, such amount being calculated by reference to the foreign exchange rate obtaining in Brunei Darussalam on the designated day;
"prospectus" means any kind of offering document, whether the document is a single document or one of a series and however it is described;
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"public fund" means any mutual fund other than a professional fund or a private fund;
"recognised authorisation" shall be construed in accordance with section 35;
"recognised jurisdiction" means a jurisdiction which is for the time being recognised for the purposes of this Order by an order made by the
Minister and published in the Gazette;
"record" includes any electronic or other means of storing information which enables the information when stored to be retrieved or reproduced;
"Register" means the register established pursuant to section 18;
"registered fund" means a mutual fund to which a current mutual fund licence or a current mutual fund permission rdates;
"regulations" means regulations made under section 3;
"shares" shalC where the context so admits, have the meaning ascribed thereto in the International Business Companies Order, 2000 (S 56/2000);
"unit trust to which this Order applies" means a unit trust which, whether it is established under the laws of Brunei Darussalam or under those of any jurisdiction outside Brunei Darussalam, is by virtue of section 4 a mutual fund.
(2)
Where in relation to a particular mutual fund the currency used as regards its fund interests is a currency other than that of Brunei Darussalam, in applying this Order as regards that fund, the definition of "professional fund" in subsection (1) shall be construed and have effect as if for "$500,000" there were substituted "the amount of the currency used as regards the mutual fund's fund interests needed on the designated day to purchase $500,000".
(3)
For the purposes of this Order, an individual shall be regarded as being ordinarily resident in Brunei Darussalam during any period of 12 months if during that period he has resided in Brunei Darussalam for an aggregate period of at least 170 days or if he establishes to the satisfaction of the Authority that he has a genuine intention of so residing and holds any necessary permits to live, and be employed in Brunei Darussalam.
(4)
For the purposes of this Order -
{a}
a company registered under the Companies Act (Chapter 39) or the
International Business Companies Order, 2000 (S 56/2000) shall be deemed to be ordinarily resident at its registered office or, in case
BRUNEI DARUSSALAM GOVERNMENT GAZETTE another address has been furnished in relation to it at such registered office or, if the Authority so determines, at that other address;
(b)
every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident -
(i)
in case its registered or principal office or place of business is in
Brunei Darussalam, at such registered office or place or, in case another address has been so furnished in relation to it, at such office or place or, if the Authority so determines, at that other address; or
(ii)
in case its principal office or place of business is outside Brunei
Darussalam, at any office or place in Brunei Darussalam at which it carries on business or, in case another address has been so furnished in relation to it, at such office or place or, if the Authority so determines, at that other address.
(5)
References in this Order to a manager include, except where the context otherwise requires, references to a person appointed pursuant to paragraph 4(1)(d)
of the Second Schedule to be the manager of a registered fund.
Regulations.