The government continues to crack down on the sale of illegal cigarettes smuggled into the country by international and local organized criminal groups. The high taxation of tobacco products makes the illegal trade in counterfeit and untaxed cigarettes very lucrative. Ireland was the first European country and the fourth in the world to legislate plain packaging of tobacco products through the Public Health (Standard Tobacco Packaging) Act in 2015. In practice, all tobacco packaging is unmarked and health warnings cover almost the entire box, otherwise only the name of the manufacturer or product is visible. The legislation has been in force since September 2018. Ireland is a member of the World Intellectual Property Organisation (WIPO) and a party to many of its treaties, including the Berne Convention, the Paris Convention, the Patent Cooperation Treaty, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Legislation adopted in 2000 brought Ireland`s intellectual property rights legislation into line with Ireland`s obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The legislation has given Ireland one of the most comprehensive legal frameworks for the protection of intellectual property rights in Europe. It also addressed several inconsistencies of the TRIPS Agreement in the previous Irish Copyright Act that had been of concern to foreign investors, including the lack of rental rights for phonograms, the absence of an anti-smuggling provision and the low number of criminal penalties that could not deter piracy. The legislation provides for harsher penalties on both the civil and criminal sides, but does not provide for a mandatory minimum penalty for infringements of intellectual property rights.
As part of this comprehensive legislation, amendments have also been made to those sections of Irish patent law that are not covered by the TRIPS Agreement. In particular, the IPR legislation addresses two outstanding concerns of many foreign investors in the previous legislation: regulated Irish funds may be set up as umbrella funds with one or more sub-funds and separate liability between sub-funds. It is important to note that sub-funds do not have separate legal personality, so financial documents are usually concluded by: the entity itself, in the case of a corporate fund such as an investment fund and ICAV; the manager, in the case of mutual funds and CCFs; and the family physician, in the case of a limited partnership. An investment company is incorporated as a public limited company under the Irish Companies Act 2014. They have their own legal personality and there is no recourse to shareholders. It is necessary to spread the risk when the fund is established as an investment company. As a general rule, it is the board of directors of the investment company that approves any decision to borrow, provide guarantees or conclude derivatives, although it is in any case important to have the founding documents of the investment company, including the articles of association, prospectus and/or addendum, as well as all management contracts authorised to execute the necessary agreements, To check. The Irish legal system is common law. Justice is exercised in courts established by law and is headed by judges appointed by the President of Ireland (on the advice of the Government). The Commercial Court is a court appointed by the High Court that deals with commercial disputes between companies where the value of the claim is at least €1 (€1.1 million).
The Commercial Court also oversees cases involving intellectual property rights, including trademarks and trade secrets. As mentioned above, there are a variety of fund structures available in Ireland, ranging from the regulated side of investment companies, ICAVs, mutual funds and CCFs to limited partnerships on the unregulated side. While the founding documents of each type of fund have similarities in terms of regulatory content, they can vary considerably structurally and still need to be carefully reviewed to determine who is authorized to borrow and provide collateral on behalf of the fund. These powers should reflect the legal structure of the Fund and be defined in the relevant constitutional document. Typically, the following parties are allowed to borrow and provide collateral on behalf of a fund: Irish law does not strictly require that the collateral package be governed by Irish law. We often see transactions where the guarantee is assumed under the laws of the respective financing agreement, for example New York or England and Wales. However, if the relevant secured assets are located in Ireland, such as the securities or cash account or, in the case of a subscription transaction, the applicable law of the subscription agreement is Irish law, we will always also take Irish law. Generally, any control agreement is governed by the laws of the country in which the account is located. However, if this is not the case, local legal advice (and preferably legal advice) should be sought to ensure that the application of another applicable law is enforceable in the relevant jurisdiction. Unlike an investment company, a mutual fund is not a separate legal entity, but a contractual fund structure consisting of a trust deed between a trustee and a management company.
In a mutual fund, the trustee or his or her appointed agent acts as the rightful owner of the fund`s assets. Since the unit trust does not have its own legal personality, it cannot conclude a contract for itself. The managing authority shall be exercised by the directors of the management company, who may also act as an alternative investment fund manager (“AIF”) in an AIF. Although, in many cases, it is the management company directors who execute the contracts, the trust deed and other relevant documents such as the management agreement must be carefully reviewed to confirm who has the authority to sign. For example, if the assets are registered in the name of the trustee, the trustee must provide collateral on the assets of the mutual fund, and in some mutual funds, for example, the trust indenture may require joint execution by the trustee and the management company. A CCF, similar to a mutual fund and an ILP, does not have a separate legal existence. This is a contractual agreement established under a charter that grants investors the rights of co-owners of CCF`s assets. As a co-owner, it is presumed that each investor of a CCF as a lessee holds an undivided interest in the assets of the CCF with other investors.