Liability

(1) The depositary is liable to the domestic AIF, or to the investors of the domestic AIF, for the loss of a financial instrument held in custody by the depositary or by a sub-custodian to which the custody of financial instruments under section 81(1), point 1, has been delegated. In the event of such a loss, the depositary must, without delay, return to the domestic AIF, or to the AIF management company acting for the account of the domestic AIF, a financial instrument of identical type, or pay a corresponding amount. The depositary is not liable where it can demonstrate that the loss arose as a result of an external event beyond its reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary. Further claims arising under the provisions of civil law from contracts or torts remain unaffected.
(2) The depositary is also liable to the domestic AIF or the investors of the domestic AIF for all other losses suffered by them as a result of the depositary's negligent or intentional failure to fulfil its obligations under this Act.
(3) The depositary's liability remains unaffected by any delegation under section 82.
(4) Without prejudice to subsection (3), the depositary may discharge itself from liability for the loss of financial instruments of a domestic special AIF held in custody by a sub-custodian under section 82, where it can demonstrate that
1. all the conditions for the delegation of its custody tasks under section 82 are satisfied,
2. there is an agreement, concluded in text form, between the depositary and the sub-custodian,
a) in which the depositary's liability is expressly transferred to this sub-custodian, and
b) which enables the domestic special AIF, or the AIF management company acting for the account of the domestic special AIF, to assert its claim for the loss of financial instruments against the sub-custodian, or which enables the depositary to assert such a claim on its behalf, and
3. there is a written agreement between the depositary and the domestic special AIF, or the AIF management company acting for the account of the domestic special AIF, in which a discharge of the depositary's liability is expressly permitted and an objective reason is stated for the contractual agreement of such a discharge of liability.
(5) Where the law of a third country requires certain financial instruments to be held in custody by a local entity, and there are no local entities that satisfy the requirements for delegation under section 82(1), point 4, letter b, the depositary may discharge itself from liability in relation to the custody of assets of special AIF, provided that the following conditions are complied with:
1. the investment conditions, the articles of association, or the partnership agreement of the domestic special AIF concerned expressly permit a discharge of liability under the conditions named in this subsection,
2. the AIF management company has duly informed the investors of the respective domestic special AIF, before they made their investment, of this discharge of liability and the circumstances justifying this discharge of liability,
3. the domestic special AIF, or the AIF management company acting for the account of the domestic special AIF, has instructed the depositary to delegate the custody of these financial instruments to a local entity,
4. there is an agreement, concluded in text form, between the depositary and the domestic special AIF, or the AIF management company acting for the account of the domestic special AIF, in which such a discharge of liability is expressly permitted, and
5. there is a written agreement between the depositary and the sub-custodian,
a) in which the depositary's liability is expressly transferred to the sub-custodian, and
b) which enables the domestic special AIF, or the AIF management company acting for the account of the domestic special AIF, to assert its claim for the loss of financial instruments against the sub-custodian, or which enables the depositary to assert such a claim on its behalf.
(6) Articles 100 to 102 of Delegated Regulation (EU) No 231/2013 determine in further detail
1. the conditions and circumstances under which financial instruments held in custody are to be regarded as lost,
2. what is to be understood by external events whose consequences would have been unavoidable despite all reasonable efforts under subsection (1), and
3. the conditions and circumstances under which an objective reason exists for the contractual agreement of a discharge of liability under subsection (4).