Article 102
Objective reasons for the depositary to contract a discharge of liability
1.
The objective reasons for contracting a discharge pursuant to Article 21(13) of Directive 2011/61/EU shall be:
(a)
limited to precise and concrete circumstances characterising a given activity;
(b)
consistent with the depositary’s policies and decisions.
2.
The objective reasons shall be established each time the depositary intends to discharge itself of liability.
3.
The depositary shall be deemed to have objective reasons for contracting the discharge of its liability in accordance with Article 21(13) of Directive 2011/61/EU when the depositary can demonstrate that it had no other option but to delegate its custody duties to a third party. In particular, this shall be the case where:
(a)
the law of a third country requires that certain financial instruments be held in custody by a local entity and local entities exist that satisfy the delegation criteria laid down in Article 21(11) of Directive 2011/61/EU; or
(b)
the AIFM insists on maintaining an investment in a particular jurisdiction despite warnings by the depositary as to the increased risk this presents.