Bank-depositary‘s liability towards the investment fund participants for the impairment of its assets

Rafał Mroczkowski

Abstract

Correct meeting of their duties by banks acting as depositaries of investment funds increase the investment security from the point of view of such funds participants, as well as the security of trading on the capital market. Despite the fact that the general assessment of the depositaries’ activity on the Polish capital market is positive, in isolated cases, doubts arise as to the proper fulfilling of their statutory duties. In such cases, the aspect of their liability towards the investment fund participants is analyzed. In view of the above, the author assumed as the objective of this article the analysis of bases and scope of depositaries’ liability towards the investment fund participants in the light of the Polish law for the damages incurred by them resulting from the impairment of investment fund assets. The research conducted on the pages of this article is to verify the following thesis: The depositary’s liability arises as a result of lack of activity required by the law (failure to perform statutory duties) or lack of due diligence justified by the professional and specialist nature of the activity conducted by it to fulfil the tasks entrusted to it. The structure of depositary’s duties meant to “ensure an identified status” is not tantamount to accepting liability for the effect and requires maintaining due diligence in the implementation of the statutory and contractual competences. Maintaining due diligence required by the law in the given circumstances allows the depositary to be released from the liability for the damages incurred by the investment fund participants.The implementation of the research objective assumed in this article requires the application of legal methods, such as, in particular, general-theoretical approach and the formal-dogmatic approach. As a result of the conducted analyses, the research thesis that had been put forward was positively verified. The depositary’s liability is closely related to maintaining due diligence when performing its statutory and contractual duties. However, assuming the duties are correctly fulfilled, it is not liable for effects related to the impairment of investment fund’s assets which are negative to the investment fund participants.
Author Rafał Mroczkowski (FLA / DFL)
Rafał Mroczkowski,,
- Department of Financial Law
Pages106-127
Publication size in sheets1.05
Book Mrkývka Petr, Gliniecka Jolanta, Tomášková Eva, Juchnevicius Edvardas, Sowiński Tomasz, Radvan Michal (eds.): The Challenges of local government financing in the light of European Union regional policy: (conference proceedings) , Publications of the Masaryk University, theoretical series, edition Scientia, no. 636, 2018, Masaryk University, ISBN 978-80-210-9086-6, [978-80-210-9087-3], 642 p.
Keywords in Englishcustodian, bank, investment fund, capital market
Languageen angielski
Score (nominal)5
ScoreMinisterial score = 5.0, 27-11-2018, BookChapterNotSeriesMainLanguages
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