Financial Services Europe and International Update - November 2010

Contents

• UK Developments
  
  The AIC Revised Code of Corporate Governance for Investment Companies
  
  The Financial Services Act 2010 (Commencement No 1 and Transitional Provision) Order 2010 (SI 2010/2480)
  
  The FSA's Consultation on Decision Procedure and Penalties Manual and Enforcement Guide
  
  The IMA's Updated Statement of Recommended Practice for authorised investment funds
  
  The FSA's Policy Statement on Enhancing Client Asset Protection
• EU and International Developments
  
  MiFID: CESR's Technical Advice Regarding OTC Derivatives
  
  The European Commission's Green Paper on Auditors
  
  Packaged Retail Investment Products
  
  The MiFID Review: CESR's Technical Advice on Client Categorisation
  
  CESR's MiFID Review Feedback Statement on Client Categorisation
  
  The Proposed Securities Law Directive
  
  Electronic Money Directive: Implementation
  
  Basel III and the CRD 4
  
  Crisis Management: European Commission Consultation
  
  CRD 4: European Commission Consultation on Countercyclical Buffers

Regulatory Developments

This DechertOnPoint section analyses regulatory developments in the UK and Europe in the fortnight ending 27 October 2010, other than in relation to the European Union's proposed Alternative Investment Fund Manager Directive, (on which a separate DechertOnPoint will be issued), and concentrates on developments in the asset management sector.

UK Developments

The AIC Revised Code of Corporate Governance for Investment Companies

On 14 October 2010, the Association of Investment Companies (the "AIC") published the fifth version of its Code of Corporate Governance for investment companies (the "AIC Code") and the fourth version of its Corporate Governance Guide for Investment Companies (the "AIC Guide").

The majority of changes to the AIC Code and the AIC Guide result from the implementation of the UK Corporate Governance Code, in place of the Combined Code, for financial years beginning on or after 29 June 2010. The AIC has made further amendments to reflect the new UK Stewardship Code and changes to the structure of the UK listing regime.

The AIC Code provides boards of investment companies with a framework of best practice in respect of the governance of investment companies. It includes confirmation from the Financial Reporting Council that investment companies that follow the updated AIC Guide should fully meet their obligations in relation to the UK Corporate Governance Code and paragraph 9.8.6 of the Listing Rules.

The AIC has also published a further version of the AIC Code for Jersey-domiciled investment companies.

The Financial Services Act 2010 (Commencement No 1 and Transitional Provision) Order 2010 (SI 2010/2480)

On 12 October 2010, the above Order was published, bringing the following provisions of the Financial Services Act 2010 (the "2010 Act") into force:

• Removal of the FSA's public awareness objective. One of the FSA's original regulatory objectives under the Financial Services and Markets Act 2000 was to promote public understanding of the financial system. The 2010 Act removed this objective as part of the transfer of the FSA's financial education role to the new Consumer Financial Education Body (the "CFEB").
• Publication of decision notices. The 2010 Act amends section 391 of the FSMA, allowing the FSA to publish decision notices, as well as final notices: the Order specifies that this power will not be available in cases where the FSA has given a warning notice before 12 October 2010.
• Consumer redress schemes. The 2010 Act introduced new powers for the FSA to make rules requiring firms to establish and operate consumer redress schemes when there is evidence of widespread or regular failings causing consumer detriment.

• Powers enabling HM Treasury to require the Financial Services Compensation Scheme (the "FSCS") to act in relation to other schemes paying compensation in respect of financial services providers. The purpose of the provision is to allow the FSCS to act as an agent to deliver compensation to UK customers of overseas financial firms.

The Order also brings into force on 1 April 2011 the following provisions of the 2010 Act:

• Powers to allow the OFT to levy consumer credit licensees to meet a proportion of the CFEB's costs.
• Powers to allow the FSA to appoint an independent reviewer to assess the CFEB's effectiveness.

The FSA's Consultation on Decision Procedure and Penalties Manual and Enforcement Guide

On 14 October 2010, the FSA published a consultation paper (CP10/23) on its 2010 Decision Procedure and Penalties manual ("DEPP") and Enforcement Guide ("EG") review. (The FSA committed to review DEPP and EG, which came into force in August 2007, on at least an annual basis.)

The changes proposed in CP10/23 include the following:

• Employees' fines. The FSA intends to add a new rule prohibiting firms from paying financial penalties imposed on a present or former employee, director or partner of the firm or an affiliated company.
• Publishing decision notices. S.391 of the Financial Services and Markets Act 2000 ("FSMA"), as amended by the Financial Services Act 2010 ("the 2010 Act") gave the FSA power to publish decision notices as well as final notices; the FSA is proposing only to publish a decision notice where the recipient has decided to refer the matter to the Upper Tribunal: (the amended s.391 came into force on 12 October 2010).
• Review of published notices. The FSA intends to remove its commitment, currently set out in EG, to review whether final notices, and related press releases, should remain published on its website six years after their publication: it will, however, carry out such a review on request, with the expectation that it will usually conclude that they should not be removed.
• Suspensions and the settlement discount scheme: the FSA currently applies a discount of up to 30 per cent to financial penalties to encourage early settlement of enforcement cases (the settlement discount scheme). The FSA intends to apply this approach to its power to impose suspensions and restrictions on authorised persons (meaning that firms which settle cases early may receive a 30 per cent reduction of the length of their suspension or restriction).
• Cross-Border Payments in Euro Regulations 2010 ("the Cross-Border Regulations"). The FSA must publish its policy for giving warning and decision notices under the Cross-Border Regulations: the FSA intends to take the same approach to these powers as it has taken to its penalty powers under the Payment Services Regulations 2009 (SI 2009/209) (the Cross-Border Regulations came into force in February 2010).

Comments on these proposals can be submitted until 14 December 2010. The FSA intends to publish a policy statement with final rules in January 2011.

The IMA's Updated Statement of Recommended Practice for authorised investment funds

The Investment Management Association has published an updated Statement of Recommended Practice for financial statements of authorised funds dated October 2010 (the "SORP").

The SORP supersedes the previous SORP for authorised investment funds and sets out recommendations for the preparation of financial statements for authorised funds. In addition to providing standard interpretations of accounting standards and other legal and regulatory requirements, the SORP establishes principles for determining the nature of items as revenue or capital for the purposes of both distribution and taxation.

Compliance with the SORP is required by the FSA's Collective Investment Schemes sourcebook (COLL).

The IMA has also published a feedback statement to its consultation on revising the SORP.

The FSA's Policy Statement on Enhancing Client Asset Protection

On 20 October 2010, the FSA published a policy statement on enhancing its client assets sourcebook (CASS) (PS10/16) which includes confirmation of the following changes to the client assets regime:

• Increased rehypothecation disclosure and transparency requirements for prime brokers
• Restricted placement of client money deposits within a group
• Prohibition of the use of general liens in custodian agreements
• Creation of a new CASS operational oversight function
• Introduction of a client money and assets return

PS10/16 also contains details of the review the FSA conducted on the effectiveness of special purpose vehicles (SPVs) established to enable client assets to be released promptly on a firm's insolvency.

The new rules will come into force throughout the course of 2011.

EU and International Developments

MiFID: CESR's Technical Advice Regarding OTC Derivatives

This technical advice issued in mid-October 2010 covers three main workstreams: standardisation and organised platform trading of OTC derivatives; post-trade transparency standards; client categorisation; and the remaining responses by CESR to the Commission's request for additional information in relation to the review of MiFID presented in March 2010.

In respect of OTC derivatives standardisation and organised platform trading, the advice contains policy measures aimed firstly at increasing the level of standardisation of OTC derivatives and secondly, at encouraging trading of eligible standardised derivatives on organised trading venues. CESR does not yet have a definitive view on the exact levels that should be reached with regard to standardisation and trading on organised trading venues of derivatives currently traded OTC.

As to post-trade transparency standards, CESR proposes a series of adjustments to be made in order to improve the overall quality of post-trade transparency with a view to reducing market fragmentation. The proposals cover reference data, transaction type standards and other trade flags and a clarification of post-trade transparency obligations to avoid duplicative publication.

CESR has also provided additional evidence to further questions tabled by the Commission pursuant to its March consultation. CESR recommends that the Commission should focus on analysing whether exchanges/regulators have a sufficiently extensive set of powers to manage positions across the entire life of commodity derivatives market contracts and on setting up a harmonised set of powers for them in European legislation. In CESR's view, it remains to be further assessed whether or not position limits are suited to achieving the objectives of reducing volatility or limiting the impact that large positions may have on market prices.

CESR furthermore suggests defining a new position reporting regime through trade repositories, as foreseen in the Commission proposal for a regulation on OTC derivatives, central counterparties and trade repositories and recommends recognising trade repositories in the MiFID review as reporting mechanisms through which investment firms will be able to fulfil their transaction reporting obligations. CESR also suggests extending the scope of transaction reporting obligations to financial instruments admitted to trading only on MTFs and to certain OTC derivatives.

On extending reporting obligations to commodity markets firms, CESR notes that significant alternative reporting methods already exist through which regulators can obtain information on the transactions and positions of commodity markets firms currently exempted under MiFID. While extending a general transaction and position reporting obligation to commodity markets firms exempted under MiFID would have the benefits of standardising reports and affording regulators a "whole market" view, the extent of such benefit would depend on the significance of any gaps left by the alternative reporting arrangements taken as a whole CESR notes that such an extension would also involve a cost to firms and to regulators.

Finally, on client categorisation, CESR believes that the current MiFID rules are generally appropriate and do not need significant change. At the same time, CESR believes that there is scope for some clarification in the context of the professional client and eligible counterparty categories in particular.

The European Commission's Green Paper on Auditors

The European Commission has been concerned by what it sees as the potential weaknesses of the audit financial institutions just before or during the crisis which proved to conceal significant weaknesses. The Commission is also concerned that the failure of one of the big four accountancy firms could have systemic implications for the health of the financial sector and economy as a whole. On this issue, the Commission issued a recommendation in 2008 to member states to limit civil liability of auditors. Despite some improvements the Commission concludes that the concerns raised in its 2008 recommendation have not been fully addressed and that a further assessment is now imperative.

On 13 October 2010, the Commission issued a Green Paper on lessons from the financial crisis for auditing, as a first step in its consultation. The Commission noted that the role of auditors in the crisis has not been subject to the same level of scrutiny as other players and that the fact that many banks revealed large losses despite having received clean audit reports merits investigation.

In particular, the Commission seeks comments on:

• The independence of auditors. How detached are auditors when examining the financial statements of a company to which they provide non-audit services, is there a conflict of interests, is the current restriction/prohibition of non-auditory services, which varies across the EU, satisfactory given the statutory role of auditors?
• The level of reliance on an audit by stakeholders. What expectation gaps, if any, exist amongst stakeholders with regard to the scope and the methodology of the audit, is there a need for the audit methodology to be better explained to users?
• High level of concentration in the audit sector. Does this raise systemic risks, i.e., what would be the impact on the financial system if one of the big audit firms failed, not only in terms of availability of audited information but also damage to investor confidence?
• Supervision. Is national supervision effective or should there be a move to EU level oversight, i.e., through an enhanced role for the European Group of Auditors' Oversight Bodies (ECAOB) or the establishment of a new European Supervisory Authority along the lines of the new supervisory bodies for banking, securities and insurance?
• A single market for audit. Should a European passport for auditors, based on EU registration and common professional qualification requirements, be explored to encourage the growth of smaller networks to compete with the big firms?
• The specific needs of small businesses. The appropriate application of audit rules to SMEs to ensure the credibility of their financial information whilst minimising the administrative burden.

The notion of mandatory rotation of audit firms is also raised, arguing that the retention of the same auditor for many years might undermine the independence of the auditor vis-à-vis its client.

Responses to the consultation are requested by 8 December 2010.

Packaged Retail Investment Products

The European Commission was given a mandate by the ECOFIN in May 2007 to examine European Community law applicable to retail investment products with a view to assessing whether current investor protection standards are sufficient.

The three Level 3 Committees of European Financial Supervisors have now published a joint report, in October 2010, on packaged retail investment products ("PRIPs"). The report focuses on the following areas:

• The scope of the PRIPs regime
• Product disclosure requirements for PRIPs
• Regulation of PRIPs selling practices

On scope, agreement has been reached on the definition of a PRIP as a product where the amount payable to the investor is exposed to: (a) fluctuation in the market value of assets; or (b) payouts from assets, through a combination or wrapping of those assets, or mechanisms other than a direct holding. (However, leaving pensions and other types of annuities out of PRIPs' scope for the time being has also been suggested.)

The report states that the PRIPs regime would be easier to enforce if regulatory competences and powers were harmonised across the EU, so that all products are subject to equivalent regimes as regards their structure and their marketing.

On product disclosure the report argues that, in principle, the concept of investor information provided through a key investor information ("KII") document, as developed for UCITS, could usefully be applied to PRIPs. The report notes that the detail of the information that would be contained in such a document would not cover precisely the same areas as the KII template for UCITS, since some information is specific to UCITS. The report argues, however, that legal requirements on pre-contractual disclosure should be guided by common principles, supplemented where necessary by detailed requirements.

The report also considers whether there is merit in extending the MiFID client categorisation regime to PRIPs that are not currently covered by the same approach.

The Commission is now expected to publish a Consultation on PRIPs by the beginning of November 2010 and a proposal for legislation on disclosure in Q2 of 2011.

The MiFID Review: CESR's Technical Advice on Client Categorisation

On 13 October 2010, CESR published its advice on client categorisation in the context of the European Commission's review of the Markets in Financial Instruments Directive (2004/39/EC) ("MiFID").

In the technical advice, CESR concludes that the MiFID rules on client categorisation are generally appropriate and do not need significant change but recommends some minor changes intended to clarify:

• The range of entities that fall within certain categories of clients specified as 'per se professional clients' in Annex II of MiFID.
• For the purposes of the definition of per se professional clients and per se eligible counterparties ("ECPs"), the reference in MiFID to regional governments and public debt bodies includes local authorities.
• When dealing with ECPs, firms must act honestly, fairly and professionally and communicate in a way that is fair, clear and not misleading.

CESR's MiFID Review Feedback Statement on Client Categorisation

On 22 October 2010, CESR also published a Feedback statement on its consultation on client categorisation relating to the European Commission's review of MiFID.

The Proposed Securities Law Directive

The European Commission is due to launch a second public consultation to feed into a planned Securities Law Directive (the "SLD"). The Directive seeks to address legal barriers to the safe and efficient treatment of securities post-trade, which have arisen as a result of electronic book-keeping and the ways in which securities are held through a chain of account providers. Greater legal certainty will be provided by harmonising EU law with respect to securities that are electronically recorded and to address conflicts of law regarding ownership. In addition to defining how securities can be bought, lent or sold, the SLD will:

• Require account providers to maintain sufficient securities against assets
• Help clarify investor protection in the event of an account provider becoming insolvent
• Help facilitate investor rights pertaining to those securities

The SLD will cover all markets and all securities across the EU and will affect a number of industry participants that previously fell outside the scope of regulation such as MiFID. It will have a considerable impact on the way that securities are held and traded in the EU, enhancing protection for investors by clarifying the legal status of securities at all stages of the financial transaction.

Electronic Money Directive: Implementation

On 22 October 2010, HM Treasury published a consultation on the new Electronic Money Directive (2009/110/EC) ("2EMD") and the draft Electronic Money Regulations 2010.

2EMD was adopted by the European Parliament and the Council of the European Union on 16 September 2009 and must be implemented by member states by 30th April 2011.

The consultation sets out the changes that need to be made to the legal framework on electronic money to implement 2EMD and describes the Government's proposed approach to the discretionary elements of the Directive. The principal regulatory changes include:

• A new definition of e-money which includes magnetically stored value: this extends the definition to
• Creating an authorisation procedure for electronic money issuers.
• Expanding the scope of activities that electronic money institutions can undertake so that they are not restricted to only issuing and administering e-money, or storing data.
• Introducing new requirements for safeguarding and redeeming customers' funds.
• Changing the initial capital (own funds) requirements for electronic money institutions and exempting small electronic money institutions from certain prudential requirements.
• Increasing the exemption from carrying out customer due diligence checks to €500 for national payment transactions.

(The consultation closes on 30 November 2010.)

Basel III and the CRD 4

Following the Basel Committee's publication of its new prudential framework for capital and liquidity (Basel III), the European Commission is now to propose amendments to the Capital Requirements Directive ("CRD 4") to implement the changes in EU law. These proposals will have to be agreed by the Council and European Parliament.

The Economic and Monetary Affairs Committee of the European Parliament is also considering an Own Initiative Report. Whilst the report has no legislative status and does not form part of the co-decision procedure, it gives an indication of the concerns and stance of the Parliament, which presumably will be reflected later in the legislative process.

The main political thrust of the Parliament's report is the perceived lack of involvement of the Parliament in the Basel process, which is stated to be a shortcoming reflected in the unfair competitive disadvantage the proposed framework will have on the European economy. The report points out that, whilst the US economy is largely financed via the capital markets, 80 per cent of investment in the EU is via bank credits; therefore, the proposal will have a bigger impact in Europe than in the United States. The conclusion is that the European Parliament should have an active role in future Basel negotiations. This proposal is unlikely to go far, but suggests that the Parliament may conclude that since it was not party to the Basel negotiations it is not bound by them and is at liberty to propose changes during the co-decision process outside the Basel framework. However, Parliament is likely broadly to support the aims of the Basel Committee.

Another issue raised in the report is the need for all parties to adhere to a coherent implementation calendar. This is a snipe at the United States and reflects the concern held by some MEPs as to whether the United States will implement the Basel proposals. The report also calls for EU implementation to take into account the state of the wider economy and in particular the financing of SMEs. In October 2010, the European Parliament announced that it had adopted its own-initiative resolution on implementation of Basel III into EU law.

The European Commission is now expected to issue proposals for amendments to the CRD under the co-decision legislative process by December 2010.

Comments on Basel III

On 12 September 2010, central bankers from 27 nations met at the Bank for International Settlements in Basel to agree new guidelines on the amount of capital (basically equity) that banks need to hold against the assets on their balance sheet.

The Capital Accord "Basel III" requires banks to hold more of the highest loss-absorbing forms of capital. Banks will have to hold core tier 1 capital (common equity and retained earnings) equivalent to a minimum of 4.5 per cent of risk-weighted assets ("RWAs"), compared with the current 2 per cent. Tier 1 capital requirements will increase to 6 per cent from 4 per cent.

The definition of common equity will also be based on tougher eligibility criteria. Previously, regulatory adjustments were made to Tier 1 and Tier 2 capital, but not to common equity. Common equity will now be calculated net of regulatory adjustments (such as deducting goodwill and intangibles and deferred tax assets arising from carried forward net losses).

The Basel Committee, however, has not yet finalised criteria for inclusion in Tier 1 capital. Treatment of contingent capital, for example, is still under discussion. Furthermore, while Basel III is tougher on the capital side of the minimum ratios, for the denominator it continues to use RWAs, which are a subjective measure of asset quality, rather than total assets.

Banks will be required to hold a further 2.5 per cent of RWAs as common equity to act as a "capital conservation buffer" to withstand periods of stress, which brings the total common equity requirement to 7 per cent. Banks will be allowed to use the buffer but, if they do so, they will face restrictions on earnings distribution. Basel III also endorses a second counter-cyclical buffer of up to 2.5 per cent of common equity or other fully loss-absorbing capital, but this will be implemented at national regulators' discretion.

The minimum common equity, or core Tier 1, requirement falls below the level many countries were advocating including the UK and the United States. Other nations, such as Germany, argued that tougher regulations risked derailing the economic recovery and a compromise on lower levels and a more extended implementation period was agreed to overcome their objections.

The new minimum capital ratios will be phased in between 2013 and 1 January 2015, while the capital conservation buffer will be introduced on a sliding scale between 2016 and the start of 2019. The deductions from common equity will also be introduced gradually between 2014 and 2018, which should allow banks to benefit from most of the deferred tax assets relating to the financial crisis.

The Basel Committee is now working on additional requirements that will apply to systemically important banks, while two further aspects of the reforms are subject to a lengthy implementation period. First, a liquidity coverage ratio ("LCR") will be introduced, requiring banks to hold sufficient high-quality liquid assets (cash and government bonds) to withstand a 30-day stress scenario. However, due to concerns over unintended consequences on financial markets and growth the LCR will not be effective until 2015, following an observation period. Meanwhile, a second liquidity measure, the minimum net stable funding ratio, which is intended to promote longer-term structural funding of banks, will not be introduced until the start of 2018. Second, a proposed non-risk-based minimum tier one leverage ratio of 3 per cent will now not be introduced until 2018, following a "parallel run" period from 2013 to 2017 and a subsequent review.

Making banks hold more, and higher quality, capital is clearly sensible. The crisis, however, revealed the full extent of the interconnected nature of the financial system and the regulatory response—appropriately—was to focus not just on capital but also liquidity and leverage. By introducing regulation over an extended period, the impact of this more comprehensive approach is watered down. With the response not fully in place until 2019, banks will have time to focus their powers of innovation on new ways of getting round the system. The suspicion remains that a regulatory package that is greeted with relief by the industry has not gone far enough.

Crisis Management: European Commission Consultation

The de Larosière report concluded that a lack of consistent crisis management and resolution tools across the Single Market places Europe at a disadvantage vis-à-vis the United States and recommended that these issues should be addressed by the adoption at EU level of adequate measures. Accordingly the Commission adopted a Communication on an EU framework for crisis management in the banking sector in October 2009. The Commission's aim is to put in place a framework that will allow a bank to fail, whatever its size, while ensuring the continuity of essential banking services, and minimising the impact of that failure on the financial system.

On 20 October 2010, the Commission issued a Communication, based on its public consultation, setting out in broad terms the elements it expects to propose next year in legislation. It states that the priority is to ensure national authorities have at their disposal common effective tools to resolve, at an early stage, bank crises, thus avoiding future calls on national taxpayers. (The Commission also sets out a roadmap to tackle, in the longer term, the creation of an EU level integrated crisis management framework.) The proposals as they stand are to be applied to all credit institutions (i.e., banks) and larger investment firms. The Commission will during 2011 look at what measures might be appropriate for other financial firms, such as insurance companies, investment funds and central counterparties.

The Commission priority proposals include:

• Early intervention powers. To allow national supervisors (under the Capital Requirements Directive) to force firms to take remedial actions, such as change of senior management or ceasing business activities identified as excessively risky. This will include amending the CRD to allow supervisors to impose measures not only if they breach the requirements of the CRD but in the situation where a firm is deemed as likely to fail to meet the requirements.
• Preventative measures/living wills. To ensure systemically significant firms may be closed down with minimum market disruption and contagion, i.e. no firm should be too big to fail; and

• Resolution tools. Encompassing the transfer of a part of a failing firm's balance sheet to a temporary holder, without the consent of its shareholders, to allow the continuation of essential customer services, to the take-over of a failing bank by a sound one.

In addition, the Commission would like to see a structure in place that would require national authorities to co-ordinate and co-operate in a crisis to minimise the damage caused by a cross-border bank collapse. The Commission proposes that the existing supervisory colleges be used as the basis for resolution colleges, which would co-ordinate cross-border rescues/closures. The new European Supervisory Authorities would be given a co-ordinating role, though this should not impinge on the fiscal responsibilities of Member States.

On co-ordination with third countries, the Commission states that minimum mutual recognition of measures taken by national resolution authorities is required, based on common principles. (It places emphasis on the work of the G20 and the Financial Stability Board in this context.)

The Commission is also proposing the creation of national resolution funds paid for by banks. They argue that a credible alternative to government bail-out is needed to reduce moral hazard. Such funds should be phased in with contribution levels raised as the economy recovers.

A public consultation on the technical details of these proposals will be launched in December 2010 and the Commission is expected to issue formal proposals for legislation in Spring 2011. It will also release a report on the need for further harmonisation of bank insolvency regimes by the end of 2012 and as part of the review of the European Banking Authority in 2014 a report on how to deliver a more integrated framework for the resolution of cross-border groups.

CRD 4: European Commission Consultation on Countercyclical Buffers

The Commission has now launched a consultation on how the countercyclical buffers proposed in the Basel Committee consultation of July 2010 might be applied in the EU. It addresses two specific questions:

• How countercyclical buffers should be calculated for EU banks that have branches in other EU member states.
• How add-ons might be set in each member state and the role of the European Systemic Risk Board (the macro prudential oversight authority) and the European Banking Agency.

Responses have been requested by the Commission by 19 November 2010.

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