Caymans: Investing through exempted limited partnership

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The Cayman Islands has transformed itself into a premier offshore financial hub, connecting entrepreneurs and business from across the world, and large pools of investable capital. In this series, top law firms from the region explore emerging trends and provide insights into the regulatory framework in the islands

The Cayman Islands exempted limited partnership (ELP) is a popular form of investment vehicle. This article examines the extent of the rights of limited partners to the information in the investment vehicles in which they often entrust their money with another person for a long period of time, and the remedies as may be available under the Cayman statutes and common law.

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James Noble
Partner at Carey Olsen in Singapore
Tel:+65 6911 8322
Email: james.noble@careyolsen.com

A Cayman Islands ELP is commonly established pursuant to an Exempted Limited Partnership Agreement (LPA). Often the relevant fund documents would also include a private placement memorandum and any subscription agreements and side letters. While the general partner manages the ELP pursuant to such papers, the fund documents commonly include specific provisions on the right of a limited partner to receive information in relation to the ELP.

The rights of a limited partner to receive information in respect of the ELP are also expressly provided by section 22 of the Exempted Limited Partnership Law (2018 Revision): “Subject to any express or implied term of the partnership agreement, each limited partner may demand and shall receive from a general partner true and full information regarding the state of the business and financial condition of the exempted limited partnership.”

Despite these often general provisions, the author has been on numerous occasions instructed to provide Cayman Islands legal advice regarding the specific rights of a limited partner to information under the fund documents, as well as any statutory rights to receive information. In Dorsey Ventures Limited v XIO GP Limited (FSD 38 of 2018, unreported, 22 October 2018) the Grand Court of the Cayman Islands provided clarification regarding the extent of a limited partner’s rights to information in an ELP.

LP’s right to information

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Yang Yang
Senior associate at Carey Olsen in Hong Kong
Tel: +852 3628 9003
Email: yang.yang@careyolsen.com

Under section 22 of the ELP Law, a limited partner may “demand and shall receive from a general partner true and full information regarding the state of the business and financial condition of the exempted limited partnership.” However, these rights are also “subject to any express or implied provisions of a partnership agreement”.

Normally, the general partner would be in breach of the fund documents if it fails to provide information expressly stated within those papers. The general partner would also be in breach of the statutory provisions of the ELP Law in respect of the “true and full information regarding the state of the business and financial conditions” of the ELP, unless the fund documents contain any express provisions that would disapply the obligation to provide this information.

The statutory rights to information may be restricted by the terms of the fund documents. Often we see provisions subject the statutory rights to any such conditions and restrictions as the general partner may reasonably prescribe, including that the general partner may decline to provide confidential or proprietary information in connection with the investments. In the Dorsey case, the general partner refused the limited partner’s request for information and documents on the basis that the express provisions in the LPA excluded the general rights to receive information under section 22 of the ELP Law.

The Cayman Court dismissed this interpretation and clarified that the statutory obligation under the ELP Law was greater than what was provided under the LPA, and a reasonable person could not have understood that the parties would have the intention to exclude the statutory right to wider categories of information by providing specific information and documents.

Therefore, to restrict or exclude the limited partner’s right to receive “true and full information” would require express language by the fund documents. The Cayman Court clarified that providing certain classes or categories of documents could not have the effect of restricting or excluding the general partner’s statutory obligation under section 22 of the ELP Law.

In order to satisfy this obligation, the general partner must keep proper books and accounts such as is necessary to give a true and fair view of the business and financial condition of the fund, and to explain its transactions. Often the fund documents entitle a limited partner to appoint a director to the board of the general partner. As a director, the person appointed by the limited partner is prima facie entitled to access the books and records of the general partner in order to allow him or her to discharge the fiduciary duties owed to the general partner.

Pursuant to the ELP Law, where the partnership agreement contains provisions to establish and regulate boards and committees (including any powers to be exercised by such boards and committees), a member appointed to such a board or committee may enforce these provisions. The fact that the member is not a party to the partnership agreement in his or her own right does not prevent the member from enforcing the provisions of the agreement.

A person appointed by the limited partner to the board or committee may thus enforce the relevant provisions under the fund documents and is entitled to obtain such documents as is necessary to enable such a person to properly consider and review the subject of the board or committee tasks in order to properly discharge his or her duties (there is also an argument that such a term is implied into the fund documents so as to give it business efficacy).

Remedies

The ELP Law provides that the partners of the ELP are free to agree on the remedies for any breach in the partnership agreement, and these remedies will not be unenforceable solely on the basis that they are penal in nature. In the absence of any contractual remedies, a number of common law and equitable remedies are available to the limited partner in respect of breaches of the general partner to provide information.

In respect of the general partner’s breach of the fund documents in failing to provide information, and the information to which the limited partner is entitled under the ELP law, the limited partner would typically have the following remedies available to it: (1) an order for specific performance, compelling the general partner to provide information; and (2) a claim for damages against the general partner for a breach of the LPA and/or the ELP Law, where it can be established that the limited partner suffered a loss as a result of the breach.

Pursuant to section 64 of the Companies Law (2018 Revision), on the application of a shareholder holding not less than one-fifth of a company’s shares, the court may appoint an inspector to examine the company’s affairs and report back to the court. This would potentially be a remedy for a limited partner who is also a minority shareholder of the general partner, an entity incorporated in the Cayman Islands. The circumstances in which an inspector is likely to be appointed would require the applicant to show that the business of the company is being conducted fraudulently or unlawfully, in a manner oppressive to its members, or that the company members have not been given all the information with respect to its affairs, which they might reasonably respect.

Finally, the ELP Law states that the court is entitled to make any winding-up order it considers to be just and equitable. The non-provision of the information may provide a sufficient basis for the limited partner to present a winding-up petition on just and equitable grounds, if coupled with prima facie evidence of misconduct or management. The usual grounds to present such a petition would be on the basis of: (1) lack of probity on the part of directors; (2) the need for an independent investigation of the company’s affairs; (3) deadlock; (4) oppression of a minority shareholder; (5) loss of substratum; and (6) quasi-partnership.

However, in some cases the fund documents provide that a limited partner may not present a petition to wind up the fund on just and equitable grounds. Section 95(2) of the Companies Law provides that, “the court shall dismiss a winding-up petition, or adjourn the hearing of a winding-up petition, on the grounds that the petitioner is contractually bound not to present a petition against a company”.

The court in the Cayman case of Re Rhone Holdings LP held that this article is incorporated by reference into the ELP Law. The LP would not be entitled to equitable relief by way of a winding-up order. While the decision in Rhone is currently the position of the common law in Cayman, there may be an argument (which we note was not before the court in Rhone), that where a petition is being presented to obtain relief in respect of prejudicial, oppressive or fraudulent conduct, the public policy consideration of enforcing the terms of a contract (as endorsed by the Court of Appeal in Rhone) are outweighed by the public policy of ensuring that a wrongdoer or fraudulent party does not benefit from improper conduct.

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CAREY OLSEN HONG KONG LLP
Suite 4120 Jardine House
1 Connaught Place, Central, Hong Kong
www.careyolsen.co

 

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