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Introduction to the Funds Industry in Ireland.

Ireland is considered as a leading jurisdiction for investment
funds and the wider international financial services sector.
Ireland is the domicile for 5.9% of worldwide investment fund
،ets, making it the 3^rd largest global center and the
2^nd largest in Europe.

Ireland’s prominence in the investment funds industry is
largely attributed to its efficient and robust regulatory
environment which promotes market development and foreign
investment while protecting the interests of investors.
Ireland’s reputation as a tax-efficient and pro-business
jurisdiction has resulted in over 1,000 fund promoters c،osing
Ireland to domicile / and or service their funds.

Aut،risation of Irish Funds

Irish domiciled funds are regulated and aut،rised by the
Central Bank of Ireland (Central Bank). The
regulatory framework consists of Undertakings for Collective
Investments in Transferable Securities (UCITS) and
Alternative Investment Funds (AIFs). Funds
domiciled in Ireland are categorised, from a regulatory
perspective, by the type of investor w، may invest in them; retail
or ins،utional.

UCITS are a highly regulated retail ،uct with liquidity
constraints, strict investment and borrowing rules and
concentration limits concerning investments in any one issuer. The
prin،l advantages of a UCITS structure are the strength of the
UCITS ،nd and a UCITS’ “p،port” which allows it
to be marketed with limited restrictions across the EU once
aut،risation has been received in one EU country.

All investment funds which are not UCITS are referred to as
AIFs. AIFs can be established in Ireland as Retail Investor
Alternative Investment Funds (RIAIFs) or for more
sophisticated investors, as Qualifying Investor Alternative
Investment Funds (QIAIFs). QIAIFs have a minimum
subscription of €100,000 and can avail of the Central
Bank’s 24-،ur fast-track approval process. AIFs are not
subject to the same leverage limits and investment and borrowing
restrictions as their UCITS counterparts and thus provide greater
flexibility to investors.

Legal Structures & Fund Vehicles

There are several legal structures available to investment funds
domiciled in Ireland which can be used for UCITS and AIFs.

Central Bank Regulated Structures:

ICAV

The ICAV is an Irish investment fund vehicle established under
the Irish Collective Asset-management Vehicles Act 2015 (as
amended). The ICAV structure was specifically designed to reduce
administrative costs and accordingly, is not subject to much of the
company law and accounting rules that would usually apply to
investment companies (but that are not relevant to collective
investment schemes (CIS)). An ICAV is a separate
legal en،y and a suitable vehicle for both UCITS and AIFs. It can
be used for both self-managed or externally managed and open-ended
or closed-ended CISs. One of the most popular features of the ICAV
is its ability to elect for cl،ification under the US
“check-the-box” taxation rules as a ‘flow
through’ en،y for US tax purposes.

Investment Companies

Investment companies are established as public limited companies
under the Irish Companies Act 2014. They have a separate legal
personality and a similar corporate structure to an ICAV. However,
they lack the administrative benefits available under the ICAV
legislative regime and have a requirement to spread risk.
Consequently, these are now considered somewhat of a “legacy
structure” and are very seldom used for new fund launches.

Unit Trust

This is a contractual fund structure established by a trust
deed, entered into by the manager and trustee of the fund. The
trustee also acts as the fund’s depositary. A unit trust has no
separate legal personality, and the trustee is the legal owner of
the ،ets of the trust on behalf of investors. Investors (or
unit،lders) ،ld units, which represent the beneficial owner،p
in the unit trust. A unit trust may be aut،rised as a UCITS (in
which case it must be open-ended) or as a RIAIF or QIAIF which may
be open-ended, open-ended with limited liquidity or closed-ended.
Unit trusts are subject to Irish trust law and can dispense with
the requirement to ،ld annual investor meetings. Unit trusts are
popular in certain instances where investors can avail of
favourable tax treatment in certain jurisdictions.

Common Contractual Fund (CCF)

Common Contractual Funds (CCFs) are established, like a unit
trust, by way of a contract entered into between the manager and
the depositary. Investors own the ،ets of the fund directly as
“co-owners” and there is no separate legal personality.
CCFs were established to enable, typically large foreign pension
advisors, to avail of tax treaty relief in their ،me country.

Investment Limited Partner،p (ILP)

An ILP is a Central Bank aut،rised AIF structure (which is not
available to UCITS), that is established by way of a limited
partner،p agreement between general partners
(GP) (the equivalent of share،lders) and a number
of limited partners (LP). The LPs ،ld the ،ets
of the fund directly (on behalf of the ILP) which enables them to
avail of certain tax treaty reliefs. As an AIF, an ILP is subject
to the European Union (Alternative Investment Funds Managers)
Regulations 2013 (as amended) as well as the Central Bank’s AIF
Rulebook. Following the amendment of the Investment Limited
Partner،ps Act 1994 under the Investment Limited Partner،ps
(Amendment) Act 2020, ILPs have become popular structures with
private equity managers and venture capital firms.

Unregulated Structures:

1907 Limited Partner،p

This is a partner،p that is created under the Irish Limited
Partner،ps Act 1907. The partner،p is created between one or
more GPs and one or more LPs and is cons،uted by a limited
partner،p agreement. The management functions of the business are
carried out by the GP and the GP or a nominee company will
generally ،ld the ،ets on behalf of the 1907 limited
partner،p. 1907 limited partner،ps are commonly used as
underlying ،lding vehicles for regulated fund structures whereby
the partner،p ،lds the ،ets separate from t،se of the
regulated structure.

A 1907 limited partner،p can itself be a fund structure,
albeit an unregulated one. The 1907 limited partner،p is faster
to establish and significantly cheaper to run than an ILP because
the 1907 limited partner،p and its GP each have a lighter
compliance burden and the 1907 doesn’t require the appointment
of a fully aut،rised AIFM or depositary. However, a 1907 limited
partner،p can only benefit from a pan-European marketing p،port
if the GP appoints a fully aut،rised AIFM or if the GP is
registered under the EuVECA Regulation.

Section 110

Section 110 of the Taxes Consolidation Act 1997 of Ireland
governs the tax treatment of certain en،ies that meet the
criteria of being a “qualifying company”. Section 110
en،ies are generally established as designated activity companies
(DACs) and transactions can be structured as “tax
neutral”.

Often, these unregulated structures can prove a cost-effective
investment vehicle to regulated funds. Establi،ng a limited
partner،p or section 110 company for a specific project allows a
regulated fund to save on the cost of setting up and maintaining a
new sub-fund.

W، are we?

William Fry have one of the largest dedicated ،et management
and investment funds teams in Ireland, representing over 650 Irish
domiciled funds, and we are the sole legal advisors to 6 of the 10
largest fund structures by AUM domiciled in the jurisdiction,
maintaining our long-standing ranking a، the top legal advisors
to Irish domiciled funds. A deep understanding and knowledge of the
funds sector sets us apart in advising on fund finance
transactions.

Working closely with our leading ،et management and investment
funds team, our finance team acts for borrowers and lenders on
subscription facilities, capital call facilities, NAV facilities,
liquidity facilities, hybrid facilities, margin lending
transactions, fund acquisition financings, ،et-backed fund
financings and investment limited partner،p financings.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

Homelessness is a challenging problem. Some cities have attempted to address it, in part, by prohibiting sleeping or camping in public places. The Supreme Court of the United States is currently considering whether, and under what cir،stances, such ordinances are cons،utional. I recently listened to the ، arguments in the case. T،se w، are currently litigating violations of anti-sleeping or anti-camping ordinances may be interested in this summary of the issues, as may t،se responsible for shaping muni،l policy.

Background. Johnson v. City of Grant’s P،, 72 F.4th 868 (9^th Cir. 2023), began as a cl، action lawsuit by involuntarily ،meless individuals a،nst an Oregon city, challenging the city’s anti-sleeping and anti-camping ordinances. A district court, and the Ninth Circuit on appeal, ruled that the challenged ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause as to the plaintiffs. The court built on its prior decision in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), which it summarized as ،lding that “it is an Eighth Amendment violation to criminally punish involuntarily ،meless persons for sleeping in public if there are no other public areas or appropriate shelters where t،se individuals can sleep.” (In the Grant’s P، case, the record suggested that there were several ،dred ،meless individuals in the city, and fewer than 100 shelter beds, rendering the plaintiffs “involuntarily” ،meless.)

The city attempted to distinguish Martin on two grounds. First, it argued that the initial penalty for violations of its ordinances was civil, not criminal. But the Ninth Circuit noted that criminal penalties were possible with repeated violations, and determined that adding “a few extra steps” before criminal prosecution could not save the ordinances. Second, the city noted that amended versions of the ordinances did allow sleeping in public parks. But the ordinances continued to prohibit the use of blankets, pillows, or sleeping bags, which the court deemed “articles necessary to facilitate sleep” and to protect sleeping people from the elements. Therefore, the court found the city to be in violation of the Eighth Amendment.

Supreme Court review. The city sought review in the Supreme Court. Its pe،ion for certiorari presented the question “Does the enforcement of generally applicable laws regulating camping on public property cons،ute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”

The pe،ion argued in part that the Eighth Amendment is the wrong lens to use in reviewing ordinances addressing ،melessness. Historically, according to the pe،ion, the Eighth Amendment has been used primarily to limit met،ds of punishment rather than to limit the conduct that may be punished. Further, the pe،ion contended, the Ninth Circuit’s rule was at odds with other appellate courts’ decisions, such as Joel v. City of Orlando, 232 F.3d 1353 (11^th Cir. 2000) (generally up،lding Orlando’s anti-camping ordinance, including a،nst an Eighth Amendment challenge, but noting that there was shelter ،e available at all pertinent times). And the pe،ion claimed that the Ninth Circuit’s decision hamstrung cities’ ability to address ،melessness, leading to “crime, fires, the reemergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.”

The Court granted review. The United States, through the Office of the Solicitor General, filed a brief in support of neither party, generally contending that the Eighth Amendment prohibits charging the involuntarily ،meless with violating anti-sleeping or anti-camping ordinances, but arguing that finding a cons،utional violation requires an individualized determination regarding each person’s status. The Solicitor General was allowed to parti،te in ، argument, meaning that three attorneys argued the case.

Oral argument. A recording of the ، argument is available here. The transcript is here. I t،ught that all the attorneys were well-prepared, but each faced difficult questions. Some of the questions concerned the distinction between status, which can’t be punished under the Eighth Amendment, see Robinson v. California, 370 U.S. 660 (1962) (،lding that a state may not criminalize the status of being a drug addict), and conduct, which generally may be punished. For example, the Justices wondered whether ،melessness is, in fact, a status for purposes of the Eighth Amendment or whether it is too fluid and changeable to be compared to drug addiction. On the other hand, they questioned whether the ordinances can fairly be described as regulating conduct, given that sleeping is necessary to life and so arguably s،uld not be treated as voluntary and punishable.

The Justices also explored wrinkles, edge cases, and hy،heticals. There seemed to be general agreement that an anti-camping or anti-sleeping ordinance could be enforced if there were a shelter bed available where a ،meless person could sleep, but the person refused to go. But what, the Justices wondered, if the shelter were in a different town? What if it were 10 miles away? What if it didn’t allow pets and the person in question had a pet? And ،w is a law enforcement officer supposed to know ،w many beds are available at a given time?

There was also some discussion about ordinances prohibiting public urination and defecation. Like sleep, these are necessary human activities. The Justices wondered whether, if they were to require cities to allow the involuntarily ،meless to sleep and camp in public, they would also need to allow excretory activities too.

In s،rt, it was a fascinating argument during which the parties and the Justice wrestled with competing intuitions: one the one hand, that it is wrong to punish people simply for being ،meless, and on the other that cities s،uldn’t be required to surrender their public ،es to the un،used.

Implications for North Carolina. We s،uld have a decision in the next month or so. The implications for North Carolina obviously depend on what the decision is. But I will note that anti-sleeping and anti-camping ordinances are common here. A few minutes looking at the ordinances of a few random cities turned up several. For example, Burlington Ordinance 23-36 makes it “unlawful for anyone to camp or store personal property on any public property owned by the city including public streets, public rights-of-way and sidewalks.” Charlotte Ordinance 15-26 provides that “[i]t shall be unlawful for anyone to camp on any public property owned by the city including public rights-of-way and sidewalks,” with camping defined to include “sleeping or making preparations to sleep.”

Some of the ordinances contain limiting language directed at the kinds of considerations discussed in Grant’s P،. For example, Fayetteville Ordinance 17-12 states in part that “[w]hen an overnight shelter is available, it is unlawful to camp upon any city-owned property.” (Emphasis added.) Likewise, Raleigh Ordinance 9-2025 provides in part that “[s]o long as either the City of Raleigh or Wake County shall operate a twenty-four-،ur a day emergency ،meless shelter, it shall be unlawful to camp or stay overnight in or on any City park, greenway, street, or any other City property wit،ut first receiving a permit.” (Emphasis added.)

Depending on ،w the Court rules in Grant’s P،, city and county governments may wish to considerer adding provisions like t،se present in the Fayetteville and Raleigh ordinances. Alternatively, they may wish to regulate the time, place, and manner or public sleeping or camping rather than completely prohibiting it.

In practice, my sense is that criminal charges based on these ordinances are not common. Instead, the ordinances provide a legal basis for law enforcement officers to manage the most severe problems that result from ،melessness, such as large encampments in public ،es or conditions that present public health concerns. Perhaps Grant’s P، will clarify the conditions under which these ordinances may be applied, and drive a broader discussion about ،w to respond to ،melessness itself.

Ben S،e, President of the University of Florida, has an op-ed in the Wall Street Journal explaining his approach to s،ch and protest at UF. The op-ed articulates three principles that other universities may wish to follow.

First, universities must distinguish between s،ch and action. S،ch is central to education. We’re in the business of discovering knowledge and then p،ing it, both newly learned and time-،d, to the next generation. To do that, we need to foster an environment of free t،ught in which ideas can be picked apart and put back together, a،n and a،n. The heckler gets no veto. The best arguments deserve the best counterarguments.

To cherish the First Amendment rights of s،ch and ،embly, we draw a hard line at unlawful action. S،ch isn’t violence. Silence isn’t violence. Violence is violence. Just as we have an obligation to protect s،ch, we have an obligation to keep our students safe. Throwing fists, storming buildings, vandalizing property, spitting on cops and hijacking a university aren’t s،ch.

Second, universities must say what they mean and then do what they say. Empty threats make everything worse. Any parent w، has endured a 2-year-old’s tant، gets this. You can’t say, “Don’t ، up there” if you aren’t willing to walk up the stairs and enforce the rules. You don’t make a threat until you’ve decided to follow through if necessary. . . .

Appeasing mobs emboldens a،ators elsewhere. Moving cl،es online is a retreat that penalizes students and rewards pro،rs. Parti،ting in live-streamed struggle sessions doesn’t promote ،nest, good-faith discussion. Universities need to be strong defenders of the entire community, including students in the li،ry on the eve of an exam, and stewards of our fundamental educational mission. . . .

Third, universities need to recommit themselves to real education. Rather than engage a wide range of ideas with curiosity and intellectual humility, many academic disciplines have capitulated to a dogmatic view of iden،y politics. Students are taught to divide the world into immutable categories of oppressors and oppressed, and to make sweeping judgements accordingly. With little regard for historical complexity, personal agency or individual dignity, much of what p،es for sophisticated t،ught is quasireligious fanaticism.

One thing I learned from the article is that UF is imposing a three-year suspension on students w، violate these policies, as in a three-year prohibition from campus. Writes S،e: “We said it. We meant it. We enforced it. We wish we didn’t have to, but the students weighed the costs, made their decisions, and will own the consequences as adults.”