[2025] EWCA Civ 1137

The matters described above are provided for in the articles of association of the Company (the “Articles”). These include the following,

“Article 1: Name

There exists among the existing Shareholders and those who may become owners of Shares in the future, a Luxembourg company (the “Company”) under the form of a public limited company (société anonyme) subject to the [law of] 10th August 1915 as amended relating to commercial companies (the “Law of 1915”) and the law of 13th February 2007 relating to Specialised Investment Funds (“the Law of 2007”).

Article 4: Purpose

The exclusive purpose of the Company is to invest the funds available to it in transferable securities … according to the Law of 2007 by means of spreading investment risks and affording its Shareholders the results of the management of its assets.

Article 5: Investment Objectives and Policies

(a)

The purpose of the Company is to provide investors with the opportunity to invest in a professionally managed fund in order to achieve an optimum return from the capital invested.

(b)

The Company is restricted solely to Well-Informed Investors ...

(c)

The Company will seek to achieve its objectives, in accordance with the investment policies and guidelines established by the Board of Directors of the Company. For this purpose the Company offers a choice of Dedicated Funds as described in the Offering Document, which allows investors to make their own strategic allocation.

…

(g)

The specific investment policies and risk spreading rules applicable to any particular Dedicated Fund shall be determined by the Board of Directors and disclosed in the Offering Document.

Article 6: Share Capital, Dedicated Funds, Classes-Categories of Shares

(a)

The capital of the Company shall be represented by fully or partly paid up Shares of no par value …. The capital of the Company shall at any time be equal to the total net asset value of the Company.

…

(c)

For each Dedicated Fund, a separate portfolio of investments and assets will be maintained. The different portfolios will be separately invested in accordance with their specific features as described in the Offering Document of the Company.

(d)

The Company is one single entity; however, the rights of investors and creditors regarding a Dedicated Fund or raised by the constitution, operation or liquidation of a Dedicated Fund are limited to the assets of this Dedicated Fund, and the assets of the Dedicated Fund will be answerable exclusively for the rights of the Shareholders relating to this Dedicated Fund and for those of the creditors who claims arose in relation to the constitution, operation or liquidation of this Dedicated Fund. In the relations between the Company’s Shareholders, each Dedicated Fund is treated as a separate entity…

...

(f)

… in respect of each Dedicated Fund, the Board of Directors of the Company may decide to issue one or more classes of Shares (the “Classes”), and within each Class, one or several Category(ies) of Shares subject to specific features … as may be determined by the Board of Directors of the Company from time to time.”

Articles 7 and 8 provide for the issue, transfer and redemption of Shares, the latter taking place at the Net Asset Value (“NAV”) of the Shares, calculated by reference to the relevant Dedicated Fund. Articles 13.1 and 13.2 provide for the calculation of the NAV for each Dedicated Fund or Class of Shares at least once a year.

Article 13.3 provides that the Board of Directors of the Company might temporarily suspend the determination of the NAV of any particular Dedicated Fund or Class of Shares, and in consequence suspend the issue or redemption of Shares either generally or in one of a number of circumstances, which include where the disposal of assets attributable to such Dedicated Fund is not reasonably or normally practicable without being seriously detrimental to the interests of Shareholders.

The dissolution and liquidation of the Company is addressed in Articles 16.2 (a) to (f). This can only happen if certain conditions are met and the Shareholders at a general meeting of the Company pass a specific resolution and appoint one or more liquidators.

The liquidation of a Dedicated Fund is dealt with in Article 16.2(g) as follows,

“In the event that for any reason whatsoever, the value of assets of a Class, Category or Dedicated Fund should fall down to such an amount considered by the Board of Directors as the minimum level under which the Class, Category or Dedicated Fund may no longer operate in an economically efficient way, or in the event that a significant change in the economic or political situation impacting such Class, Category or Dedicated Fund should have negative consequences on the investments of such Class, Category or Dedicated Fund … the Board of Directors may decide to conduct a liquidation or a compulsory redemption operation on all Shares of a Class, Category or Dedicated Fund … The Company shall send a notice to the Shareholders of the relevant Class, Category or Dedicated Fund, before the effective date of such liquidation or compulsory redemption. Such notice shall indicate the reasons for such liquidation/redemption as well as the procedures to be enforced. Unless otherwise stated by the Board of Directors, Shareholders of such Class, Category or Dedicated Fund, may not continue to apply for the redemption or the conversion of their Shares while awaiting for the enforcement of the decision to liquidate/to redeem compulsorily…”

Article 16.2(h) then provides for how the proceeds of such liquidation should be distributed,

“Any of the above liquidations or any compulsory redemption may be settled through a distribution of the assets of the relevant Class(es), Category(ies) and/or Dedicated Funds wholly or partly in kind, to any Shareholder, in compliance with the conditions set forth by the Law of 1915 on commercial companies … and the principle of equal treatment of Shareholders…”