UK: Financial Regulatory Developments (FReD) - 24 August 2012

Last Updated: 7 September 2012

Headlines

Treasury Committee publishes LIBOR report

FSA bans directors for UCIS mis-selling

FSA consults on UCIS for retail investors

ISDA publishes Dodd-Frank Protocol

European Union and International

European Parliament (EP)

ECON consults on post-LIBOR MAD2: Arlene McCarthy, the Economic and Monetary Affairs' (ECON) rapporteur for the Directive on criminal sanctions for market abuse (CMAD) and the market abuse Regulation (MAR) (together MAD2), has opened a public consultation seeking views on several questions that have emerged from the LIBOR scandal. ECON asks for comments by 17 September and will vote on the reports on each element of MAD2 on 20 September. (Source: ECON Questionnaire on Market Manipulation)

Contact: Rosali Pretorius or Madeleine de Remusat.

European Securities and Markets Authority (ESMA)

ESMA publishes translations of MiFID guidelines: ESMA has published translations into the languages of Member States of the Guidelines on certain aspects of the MiFID suitability requirements (see FReD 13 July). These guidelines apply to investment firms and competent authorities. Competent authorities now have two months to tell ESMA they will comply with the guidelines, or explain why they will not. (Source: Translations of ESMA Guidelines on MiFID Suitability)

Contact: Emma Radmore or Juan Jose Manchado.

UK Government and Parliament

Parliament

Treasury Committee publishes LIBOR report: The Treasury Committee has published the conclusions from its interviews in early July with senior figures at Barclays, the Financial Services Authority (FSA) and the Bank of England (BoE) in relation to LIBOR. It has also made available the written and oral evidence gathered during the inquiry. The Treasury Committee discusses the compliance and culture failings at Barclays, FSA's delay in looking into them and the appropriateness of having a trade association (the British Bankers' Association) as supervisor of LIBOR setting. It also stresses this is not an isolated incident as more banks are under investigation. It pays particular attention to the role of BoE. To avoid future misunderstandings, as reported in the press, the Treasury Committee recommends that BoE should undertake a review of its note-keeping systems. It should also report publicly its conclusions on conversations held with senior industry executives. The report also criticises the approach taken by FSA and BoE to the resignations of key Barclays figures. It calls for a much stronger governance framework for BoE, which it says is currently missing from the Financial Services Bill, to prevent the abusive removal of bank executives. (Source: Fixing LIBOR: Some Preliminary Findings)

Contact: Emma Radmore or Madeleine de Remusat.

Department of Business, Innovation and Skills (DBIS)

DBIS confirms scope of Consumer Rights Directive: DBIS is consulting on implementing the Consumer Rights Directive. Financial services are excluded from the Directive. However, some credit agreements may count as ancillary contracts that, under present Regulations and the Consumer Rights Directive, are automatically cancelled on cancellation of the main contract where the contract is made at a distance or off-premises. DBIS will consult separately on the Directive's provisions that ban traders from charging consumers who use payment cards more for using the card than is the cost to the trader of allowing card use. DBIS asks for responses by 1 November. (Source: Consultation on the Implementation of CRD 2011/83/EU)

Contact: Andrew Barber or Emma Radmore.

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Syria and has also advised on the effect of sanctions restrictions on making humanitarian payments to Iran. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Andrew Barber.

UK Financial Services and Markets Regulator

Financial Services Authority (FSA)

FSA bans directors for UCIS mis-selling: FSA has imposed orders banning two directors from performing, respectively, any regulated activity or any significant influence function except as or through an appointed representative following failings related to unregulated collective investment schemes (UCIS). The directors worked for MNFA Limited, which went into liquidation in 2009. The firm specialised in sophisticated mortgage brokerage and services to non-domiciled investors. Richard Rhys was responsible for the business development side of the firm. He argued he had relied on another approved person when deciding that the scheme he was promoting was not a UCIS. He also argued that participants entered into the transaction through an execution-only service. FSA found he had:

  • failed to conduct proper due diligence on the scheme's regulatory status;
  • made statements that risked misleading investors; and
  • not complied with requirements for promoting UCIS nor assessed the suitability of the firm's advice to customers, who clearly relied on what the director was telling them about the features of the investment.

Anthony Adams, who was also a director and the compliance officer, failed to understand the restrictions on promoting UCIS and to ensure the monitoring of the sale process. The Final Notices examine when investments such as those the firm promoted are collective investment schemes. (Source: Final Notice Richard Rhys and Final Notice Anthony Adams)

Contact: Jim Baird or Rosali Pretorius.

FSA publishes hedge fund report: FSA has published the report Assessing the possible source of systemic risk from hedge funds, based on the findings of its Hedge Fund Survey and its Hedge Fund as Counterparty Survey. The surveys found that leverage has remained largely unchanged, with significant cash leverage coming from repo agreements that need continuous rolling. Generally, funds report a good ability to manage liquidity, but most reports come from self-assessment so FSA says it is hard to gauge how these would stand up to stressed situations. FSA says the main risk arises from the danger of withdrawal of funding that could result in forced asset sales. It found counterparties have increased margining requirements and tightened up other conditions on their exposures to hedge funds since the financial crisis. (Source: FSA Hedge Fund Report)

Contact: Jim Baird or Rosali Pretorius.

FSA consults on UCIS for retail investors: FSA is consulting on proposals to ban sales of UCIS to most retail investors. The proposals follow concerns that most UCIS are unsuitable for most retail investors. It suggests firms should be allowed to sell UCIS only to high-net-worth or sophisticated investors for whom they are more likely to be suitable. The proposals cover UCIS and close substitutes, including those available through wrappers. FSA plans to introduce a definition of non-mainstream pooled investments to cover UCIS and products such as traded life policies, and securities issued by special purpose vehicles when these are used as a means of pooling investments. Its rules will not ban genuine execution-only sales to retail investors where the firm has not promoted UCIS, and cover only direct investment. Indirect investment in UCIS, such as investment by regulated CIS, is outside the scope of the consultation, but FSA is clear that where another product is effectively a wrapper it will not consider the mere existence of the wrapper to mean the investment is not direct. The paper looks at the roles of intermediaries and providers. The changes cover:

  • limiting the categories of permitted recipient for UCIS promotions while extending the scope of the products covered by the limitations;
  • clarifying that products may not be suitable even if their promotion falls within the rules;
  • introducing new record-keeping requirements specific to non-mainstream pooled investments promoted to retail investors; and
  • how firms should treat customers who already have these products.

FSA asks for comments by 14 November and plans to issue final rules early in 2013. (Source: FSA Proposes to Ban UCIS for Ordinary Retail Investors)

Contact:Emma Radmore or Andrew Barber.

FSA extends BCOBS guidance confirmation: FSA has extended its confirmation of the BBA/BSA/Payments Council Guidance on the Banking Conduct of Business Sourcebook (BCOBS) up to 31 December 2015. This industry guidance, originally adopted in January 2011, covers promotions, information and post-sale requirements. (Source: Confirmed Industry Guidance)

Contact: Andrew Barber or Emma Radmore.

Other Regulators/Authorities/Industry Associations

Bank for International Settlements (BIS)/Basel Committee on Banking Supervision (Basel Committee)

Basel Committee consults on managing FX settlement risk: The Basel Committee is reviewing its supervisory guidance on managing settlement risk in foreign exchange (FX) transactions. It seeks views on its key recommendations, including:

  • reducing principal risk by using market infrastructures that provide payment-versus-payment arrangements;
  • the need to hold enough capital against potential exposures resulting from FX settlement-related risks; and
  • minimising legal risk, by ensuring that agreements and contracts are legally enforceable for each aspect of its activities in all relevant jurisdictions.

It asks for comment by 12 October. (Source: Basel Committee Consults on Managing FX Settlement Risk)

Contact:Rosali Pretorius or Madeleine de Remusat.

British Bankers' Association (BBA)

BBA responds on liquidity management and reporting: BBA has published its responses to the Basel Committee's consultation on monitoring indicators for intraday liquidity management and to the European Banking Authority's consultation on supervisory reporting requirements for liquidity coverage and stable funding. (Source: BBA Response on Intraday Liquidity and BBA Response on Reporting of Liquidity Coverage and Stable Funding)

Contact:Rosali Pretorius or Edward Hickman.

International Organisation of Securities Commissions (IOSCO)

IOSCO consults on market surveillance: IOSCO has published for consultation its report on Technological Challenges to Effective Market Surveillance: Issues and Regulatory Tools. This follows the Financial Stability Board's request that IOSCO assess the risks posed by the increased volume and dispersal of trading data. Market surveillance relies on the uniformity and market comparability of the audit trails required by different jurisdictions. This would help in detecting aberrational activity immediately and in preventing disorderly trading and market abuse. IOSCO undertook a survey of existing market surveillance means and audit trail quality. This consultation is based on the results to that survey and considers the feasibility of new regulatory tools, such as more audit trail data or single reporting points, and considers the impact of current initiatives to develop unique entity identifiers. It looks at the regulatory and surveillance capabilities of market authorities. It also considers the data they collect and their ability to identify customers. Specific recommendations will also cover the format for data, data protection requirements, synchronising business clocks and cross-border surveillance. IOSCO asks for comments by 12 October. (Source: IOSCO Consults on Technological Challenges to Market Surveillance)

Contact: Rosali Pretorius or Madeleine de Remusat.

International Swaps and Derivatives Association (ISDA)

ISDA publishes Dodd-Frank Protocol: ISDA's Dodd-Frank Protocol is its first initiative to allow market participants to adapt derivatives documentation to the new rules created by US and EU regulatory reform. This Protocol responds to seven final regulations by the US CFTC (Commodity Futures Trading Commission) and offers a set of clauses to supplement existing agreements or apply certain Dodd-Frank provisions. Of special relevance is the need for adhering counterparties to deliver a standardised questionnaire that will ease compliance with the Dodd-Frank know your counterparty rules that will be effective from 14 October. ISDA also offers a centralised platform (ISDA Amend) for online inputting and automatic delivery of that questionnaire to other counterparties. (Source: ISDA August 2012 DF Protocol)

Contact: Rosali Pretorius or Matthew Sapte.

ISDA publishes 2012 FATCA Protocol: The ISDA 2012 FATCA Protocol seeks to address the effects of the Foreign Account Tax Compliance Act (FATCA) on derivatives by placing the FATCA withholding tax burden on the recipient of any payment resulting from the transaction. (Source: ISDA Publishes 2012 FATCA Protocol)

Contact: Edward Hickman or Roy Neillie.

Lending Standards Board (LSB)

LSB publishes annual report: In LSB's Annual Report 2011/2012, its chairman has praised the responsiveness of self-regulation and how it promotes industry best practice, including setting standards that go beyond the statutory rules. LSB's chief executive points out how, besides the changes to the Lending Code made following Professor Lorne Crerar's review, new provisions give greater protection to consumers whose debt has been sold to a third party for collection. The report also looks at LSB's monitoring activity. LSB notes, and firms are taking remedial action to address, some breaches and management weaknesses in the treatment of customers in financial difficulties. This area will be the subject of a thematic review before the end of 2012. Another thematic review will cover lending to micro-enterprises across subscribers to the Code. (Source: Annual Report 2011/2012)

Contact: Andrew Barber or Emma Radmore.

Forthcoming Events

Compliance Register MLROs conference: Jerome Walker of SNR Denton US LLP will speak at the Compliance Register MLROs and AML Professionals Conference on 21 September. For further details please contact Ben Goh, Secretary, Compliance Register.

FReD Live 11 September: FReD subscribers should already have received an invitation to our FReD Live breakfast briefing on 11 September. The topic will be "Complaint Handling and Mis-Selling Claims". The speakers will be Felicity Ewing and Katharine Harle, plus colleagues from the Financial Markets Disputes department. Please register here.

Compliance Register Compliance Management and Practice Course: Members of our Financial Markets Dispute Resolution and Financial Services and Funds practices will be speaking at this workshop on 12 October. Places are limited. To book, please contact Ben Goh, Secretary, Compliance Register.

SNR Denton to Host Compliance Register Seminar: Emma Radmore, Andrew Barber, Katharine Harle and Madeleine de Remusat will speak at the Compliance Register's Conference: Preparing for the Regulatory Changes Ahead - Technical Update on the FSMA Regulatory Regime on 19 September. This day-long conference costs £190 + VAT per delegate. For further information, please contact Ben Goh, Compliance Register.

SNR Denton Funds Seminars: Please note the dates for the next set in our series of Investment Funds Seminars. The breakfast seminars will take place on 26 September and 21 November.

SNR Denton Team Win Compliance Register Awards: FReD is delighted to have won the Compliance Register Platinum Award 2011 for Best Editorial Team. Its editor, Emma Radmore, also won the Best Compliance Trainer Award, while Rosali Pretorius, head of the London Financial Markets and Regulation practice, won the FSC Award for Dedication and Professionalism.

Recent Publications

Financial Crime

Dealing with Anti-Corruption Laws the Bribery Act and FCPA in Context: This article summarises the effects of the Bribery Act and US Foreign Corrupt Practices Act. For further information, please contact Emma Radmore or Dominic Sedghi (London), or Michelle Shapiro (New York).

New EU Sanctions Expand Restrictions on Iran: Michael Zolandz, Peter Feldman, Stuart Cavet and Emma Radmore have written an update on the new EU sanctions against Iran.

Testing your ABC the Bribery Act Six Months on: Emma Radmore and Dominic Sedghi have updated our previous suite of articles on Bribery Act implementation.

Financial Crime Podcast: Emma Radmore joined Finance IQ to discuss the FSA's Financial Crime Guide and issues associated with cutting financial crime.

Compiling the Pieces: The FSA's Financial Crime Guide: Emma Radmore wrote an article for Compliance Monitor on FSA's new draft Financial Crime Guide.

Bribery and Sanctions presentation: Our UK and US offices gave a seminar on dealing with bribery and sanctions risks. Please check our website for up to date summaries of key sanctions regimes.

Investment Services and Markets Reform

Treasury Publishes LIBOR Consultation: We have written a summary of the initial report and consultation of the Wheatley Review of LIBOR.

Money through your mobile regulation of m-payments: Andrew Barber and Emma Radmore have written an article for Compliance Monitor on the regulatory aspects of mobile payments.

Bank Notes March 2012: The latest edition of our Bank Notes newsletter includes two articles by Rosali Pretorius and Emma Radmore.

The Battle for Control of the Mobile Wallet: Alex Haffner and Ingrid Silver have written an article on the Project Oscar initiative to make mobile payments across networks easier.

Treasury presents FS Bill: We have produced a separate summary of the FS Bill and accompanying documents. For more information, please contact Rosali Pretorius or Emma Radmore.

MiFID 2 Prescription and Change: Emma Radmore wrote an article for Compliance Monitor on the breadth of the proposals to amend the Markets in Financial Instruments Directive (MiFID 2).

I'm a commodity dealer get me out of here!: Rosali Pretorius and Matthew Hodgson have written an article (published in two parts on Thomson Reuters Compliance Complete) on the effects of the MiFID II proposals on commodity dealers.

The Son of MiFID: Rosali Pretorius, Josie Day and Emma Radmore have written an article looking at the major impacts of the potential changes to the Markets in Financial Instruments Directive (MiFID) on hedge funds.

Prudential Regulation

UK Treasury Publishes Banking Structure Reform Plans: This article summarises the June 2012 White Paper on implementation of structural change to UK banking (as covered in FReD 15 June). For more information, please contact Rosali Pretorius, Emma Radmore or Andrew Barber.

EU Living Wills Plans the Key Proposals: This article is the latest in our suite of articles about Living Wills and Recovery and Resolution Plans looks at the European Commission's proposals. For further information, please contact Rosali Pretorius or Andrew Barber.

Living Wills update: We have produced an update on FSA's current plans for Recovery and Resolution Plans. For further information, please contact Rosali Pretorius or Andrew Barber.

Reform of Financial Services and Banking 2012: Rosali Pretorius and Emma Radmore look forward to some of the key changes facing UK-regulated financial institutions in 2012.

Financial Stability Board Identifies 29 Global SIFIs and Announces Agreed Policy Measures: We have written an article exploring the FSB announcements and policies endorsed at the November G20 Summit. For further information, please contact Jerome Walker (US) or Rosali Pretorius (UK).

Living Wills in the US and UK: We have written an article on the current US and UK laws and proposals on living wills. For more information contact Robert Bostrom or Jerome Walker (US) or Rosali Pretorius, Emma Radmore or Andrew Barber (UK).

What the Vickers Report means to you: Rosali Pretorius and Emma Radmore have written a note on the major impacts of the Vickers Report.

Recovery and Resolution Plans Breaking up the banks by stealth: Rosali Pretorius has written an article on FSA's proposals for Recovery and Resolution Plans.

Asset Management

AIFMD's Impact on Private Equity Funds: If you were unable to attend our briefing on an update on AIFMD implementation, critical issues and remuneration provisions, you can now watch the lecture. For further information please contact Rosali Pretorius, Richard Nicolle or Josie Day.

AIFMD Level 2: Josie Day and Emma Radmore have written an article for Compliance Monitor on ESMA's consultations on Level 2 measures and industry response.

Outsourcing for Fund Managers: Rosali Pretorius and Amanda Lewis have written a guide to key success factors for outsourcing in fund management.

Product Regulation

More Protection for Retail Markets the EU's PRIPs Package: We have written a detailed summary of the PRIPS, IMD2 and UCITS V proposals.

SEC No Action Letter on Foreign-Issued Covered Bond: Thomas Parachini has written a briefing on the US SEC no-action letter in respect of the Royal Bank of Canada's plan to offer and sell covered bonds in the United States in a public offering registered on SEC Form F-3.

Another Stable Door?: Emma Radmore and Katharine Harle wrote an article for Thomson Reuters Complinet on IOSCO's proposals for complex product distribution.

Product Bans A Radical New Power: Katharine Harle has written an article for Thomson Reuters Complinet on FSA's powers to ban products.

FSA's Product Design Consultations: Emma Radmore has written an article for Thomson Reuters Complinet on FSA's latest consultations on product design.

Product Intervention: Hitting the Wrong Note?: Emma Radmore and Rosali Pretorius wrote an article for Thomson Reuters Accelus on industry and FSA's responses to proposals for Product Intervention.

The Future for PRIPs: Rosali Pretorius and Emma Radmore have written an article for Compliance Monitor on current proposals affecting Packaged Retail Investment Products.

Enforcement and Litigation

The Long Arm of FSA: Overseas Firms and Senior Management Beware: Emma Radmore and Katharine Harle have written an article for Compliance Monitor on the lessons from recent FSA enforcement cases involving overseas firms and their approved persons.

FSA Lessons for Foreign Firms: Senior Management Expectations Crystal Clear: Katharine Harle, Felicity Ewing and Emma Radmore have written an article on the implications of FSA's enforcement action against Mitsui Sumitomo Insurance Company (Europe) Ltd.

Tribunal Backs CEO Against FSA Fine: Katharine Harle, Richard Caird and Felicity Ewing have written an article on the Upper Tribunal's Decision reversing FSA's decision to fine John Pottage for misconduct.

More Confusion on Client Money: Rosali Pretorius and Josie Day have written an article on the Supreme Court decision in the Lehman client money case.

FSA Not Obliged to Provide Cross-Undertaking in Damages: Alexandra Doucas has written an article for Thomson Reuters Complinet on Financial Services Authority v. (1) Sinaloa Gold plc and others.

The Pitfalls of Personal Recommendations: Richard Caird, Sam Coulthard and Kattalin Truman have written an article on the Zaki and others v. Credit Suisse (UK) case.

An end to the PPI Saga? Wider Implications of the PPI Judgment: Alexandra Doucas and Katharine Harle wrote an article for Thomson Reuters Accelus on learning points for firms stemming from the PPI judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Events from this Firm
21 Sep 2017, Seminar, London, UK

Is there such a thing as "energy law"? What do "energy lawyers" do? And why should it be of interest to anyone else?

28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

 
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