Cayman Islands: 你有没有据实相告?有限合伙人的知情权

Last Updated: 8 April 2019
Article by Matthew Goucke and Timothy Haynes

Most Read Contributor in Cayman Islands, July 2019

开曼群岛大法院近期公布了 Dorsey Ventures Limited(原告)诉XIO GP Limited(被告)(編號FSD 38 of 2018,unreported 22 October 2018)一案的判决。该判决就开曼群岛豁免有限合伙企业中,有限合伙人的法定知情权限提供了一些令人鼓舞的澄清。法院审议了有限合伙人根据《豁免有限合伙企业法》(2018年修订版)(" ELP")第22条下可获得相关合伙企业资料的权利:

"受限于合伙协议的任何明文或暗示条款,各有限合伙人可要求并应從普通合伙人获得有关豁免有限合伙企业业务状况及财务状况的真实完整资料。"

该案涉及XIO Fund I LP("该基金"),一家根据ELP注册的豁免有限合伙企业。Dorsey Ventures Limited("有限合伙人")为该基金的有限合伙人,而XIO GP Limited("普通合伙人")则为其普通合伙人。有限合伙人现已版清盤人作为专业董事控制,清盤人根据ELP第22条项下的权利,向法院申請頒布命令要求普通合伙人送交有关该基金财务状况的若干资料及文件。

该申请之前提為两名个人就有限合伙人的最终实益拥有权之的争议,该争议正于香港进行仲裁。开曼群岛大法院的法律程序与该仲裁法律程序有重大的关联。

在拒绝有限合伙人的要求并回应申请时,普通合伙人认为:

  1. 第22条受限于相关有限合伙协议(" 有限合伙协议")的任何明文或暗示条款;
  2. 有限合伙协议第15.2条要求普通合伙人保存账簿及账目记录;
  3. 第15.3条规定,有限合伙人于某些日期前或其他实际可行情况下尽快收取该基金的年度经审核账目以及未经审核季度账目;
  4. 在了解有關條款之意義後,该等合约条款明确排除第22条项下收取资料的一般权利;及
  5. 或者,为此目的应暗示条款,以赋予有限合伙协议商业效力(引用 Marks and Spencer Plc v BNP Paribas Securities Services trust Co (Jersey) Ltd [2016] AC 742("M&S v BNP")。

法院最终作出有限合伙人寻求的命令。这种情况下,Mangatal法官认为:

  1. 有限合伙协议中的相关条款规定保存账簿及账目记录並提供该资料;
  2. 在与ELP第21条(专门讨论"账目")一并阅读时,第22条项下收取"真实完整资料"的权利明确考虑了更广泛的资料类别,而不仅仅是经审核及未经审核账目;
  3. 因此,在有限合伙协议没有明确的语言表述时,任何合理(及具有当事人的背景知识)的人均不可能认为当事人有意排除第22条项下的权利;
  4. M&S v BNP表明,只有在没有该条款的情况下,合约缺乏商业或实际上的一致性时,才能暗示一项条款。这种情况不适用于本案。认为有限合伙协议缺乏商业或实际上的一致性,这种说法并不恰当,且该协议不能被诠释为排除第22条项下的广泛知情权。

该判决明确表示,若想限制或排除有限合伙人收取有关合伙企业状态的"真实完整资料"的权利,任何基金都必须明确地在有限合伙协议陈明。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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