If a Hedge Fund Goes into Liquidation between the Time of an Investor’s Subscription and Issuance of Fund Shares to that Investor, Who Owns the Money Paid for the Fund Shares?

Although both an investor and a hedge fund manager have a common interest in completing the subscription process, intervening events – for example, a petition for the winding up and liquidation of the fund before the process is complete – necessarily require a determination of the point in time at which the investor’s subscription monies cease to be its own, and fall within the ambit of the fund’s own assets.  In particular, if the fund is placed into liquidation after receipt of the investor’s subscription monies, but before issuing and registering the shares subscribed for, the question becomes: Would the investor be entitled to the return of the subscription monies, or entitled only to a pro-rated distribution in the liquidation which may become payable to it either as a creditor or member?  In a guest article, Christopher Russell and Shaun Folpp, Partner and Managing Associate, respectively, at Ogier, Cayman Islands, address this question.  In the process, Russell and Folpp discuss “Quistclose” trusts, constructive trusts and the extensive case law relevant to the ownership of subscription monies after liquidation but before the issuance of shares.

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