UK: Financial Regulatory Developments (FReD) - 31 August 2012

Last Updated: 7 September 2012

Headlines

ECON publishes shadow banking report

ESRB responds on EMIR

FSA reviews client money rules for insurance intermediaries

BBA responds on investment fraud guidance

IMA criticises banking structure and incentives

European Union and International

European Parliament (EP)

ECON amends payments motion: The Economic and Monetary Affairs Committee (ECON) of the EP has published amendments to its own-initiative draft report on a motion for an EP resolution on the Commission's Green Paper "Towards an integrated European market for card, internet and mobile payments". (Source: ECON Amendment to Payments Motion

Contact: Andrew Barber or Emma Radmore.

ECON publishes shadow banking report: ECON has published a draft report on shadow banking. The report proposes a resolution for EP to forward to the Commission addressing the definition of shadow banking, mapping data and analysis relating to it, and tackling the systemic risks it presents. The report urges the Commission to bring forward several legislative initiatives to address some of the gaps and risks that exist. (Source: ECON Publishes Shadow Banking Report)

Contact: Rosali Pretorius or Edward Hickman.

EP publishes IMD2 and UCITS 5 summaries: The EP's Legislative Observatory (OEIL) now contains summaries of the proposals to amend the Insurance Mediation Directive (IMD2) and UCITS Directives (UCITS 5). The Commission presented these legislative proposals on 3 July (see FReD 6 July and our detailed summary). EP is due to discuss the UCITS proposals in committee in January 2013, and in plenary session in March. (Source: Summary IMD2, and Summary UCITS 5)

Contact: Andrew Barber or Emma Radmore.

European Commission (Commission)

Commission to propose single banking supervision: The Commission plans to introduce proposals for the single banking supervision mechanism in the euro area on 11 September. (Source: Commission to Propose Single Banking Supervision)

Contact: Rosali Pretorius or Andrew Barber.

Europe and Australia link emissions trading systems: The Commission and the Australian Government have agreed on the mutual recognition of carbon units between their emissions trading systems. (Source: Australia and European Commission Agree on Linking Emissions Trading Systems)

Contact: Lauren Donnelly  or Rosali Pretorius.

European Systemic Risk Board (ESRB)

ESRB responds on EMIR: ESRB has published its responses to the advice the European Securities and Markets Authority (ESMA) requested under articles 10(4) and 46(3) of the Regulation on OTC derivatives, central counterparties (CCPs) and trade repositories (EMIR). Regarding the use of OTC derivatives by non-financial corporations in commercial and treasury hedging, ESRB says these activities are not risk-free and should be included in the calculation of the threshold above which a clearing obligation arises. ESRB also says it is better for non-financial corporations to clear their derivatives through CCPs rather than resorting to banks in exchange for a fee. On eligibility of collateral for CCPs, ESRB calls for a high degree of certainty around collateral transferability and haircut practices that are designed to limit procyclicality, but without compromising CCP resilience. (Source: ESRB Advice on the use of OTC derivatives by non-financial corporations and Macro-prudential Stance, and ESRB Advice on Eligible Collateral for Central Counterparties and Macro-prudential Stance)

Contact: Rosali Pretorius or Madeleine de Remusat..

UK Government and Parliament

HM Treasury (Treasury)

Treasury publishes resolution extension laws: Treasury has published draft clauses to go with its consultation on extending the resolution regime to non-bank financial institutions. The stabilisation powers and insolvency procedures in the Banking Act 2009 would be applicable, as appropriate, to clearing houses, investment firms and bank holding companies. The draft clauses also create two new special resolution objectives that authorities must have regard to when using the special resolution regime: protection of client assets and minimising adverse effects of a resolution on financial market infrastructure. The consultation remains open until 24 September. (Source: Draft Clauses and Consultation Website)

Contact: Andrew Barber or Rosali Pretorius.

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Liberia and 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 reviews client money rules for insurance intermediaries: FSA has noted poor compliance with several parts of its client money rules (CASS) for insurance intermediaries. It is consulting on changes to the rules to clarify its expectations. Its main concerns are:

  • inappropriate controls around the use of the non-statutory trust;
  • ineffective risk transfer documentation;
  • application of the pooling rules;
  • infrequent client money calculations;
  • client money held by third parties; and
  • client money held as designated investments.

FSA proposes to delete the existing CASS 5 and replace it with a new CASS 5A. The new text clarifies FSA's expectations and makes changes to the ways in which some existing rules work. For example, FSA is concerned that many firms use non-statutory trusts when it would be more appropriate to use statutory ones. Many of its changes are intended to increase client protection. The changes will include prohibiting conditional risk transfer, and introducing proportionate rules for a  "resolution pack" for insurance intermediaries. It also proposes to move the capital requirements for firms that hold client money to the Prudential Sourcebook for Mortgage and Insurance Intermediaries (MIPRU). It asks for comments by 30 November. (Source: FSA Consults on Client Money Rules for Insurance Intermediaries)

Contact: Emma Radmore or Andrew Barber.

FSA publishes new Remuneration Code documents: FSA has published revised Remuneration Code self-assessment templates and tables. (Source: FSA Publishes New Remuneration Code Documents)

Contact: Rosali Pretorius or Madeleine de Remusat.

FSA updates wealth management firms review: FSA has created a new website page telling firms about how it plans to update its previous thematic work on wealth management firms. It says it wants to look at customer outcomes and specifically at whether firms have taken note of FSA's previous recommendations, in particular its "Dear CEO" letter of June 2011. (Source: Wealth Management: FSA to Commence Further Thematic Work)

Contact: Andrew Barber or Emma Radmore.

FSA reviews factsheets: FSA has regrouped its set of factsheets aimed at helping small firms to understand specific aspects of regulation. (Source: FSA Factsheets)

Contact: Emma Radmore or Andrew Barber.

Other Regulators/Authorities/Industry Associations     

Association of Private Client Investment Managers and Stockbrokers (APCIMS)

APCIMS worried about resolution regime extension: APCIMS has written to Treasury seeking clarification on its proposals to broaden the scope of the resolution regime for financial institutions. It wants to know whether the proposals cover investment firms that will not be regulated by the Prudential Regulation Authority (PRA) because they do not pose systemic risks. Its particular concern is for the agency brokers that are its members. (Source: APCIMS Response to Treasury on Broadening the Resolution Regime)

Contact: Andrew Barber or Emma Radmore.

British Bankers' Association (BBA)

BBA responds on investment fraud guidance: BBA has responded to FSA's guidance consultation on banks' controls on investment fraud. It was surprised by several aspects of FSA's report, specifically that FSA found banks had no clear rationale for allocating resources to investment fraud. It commented that it is not feasible in some UK banks to dedicate a team solely to investment fraud and that many banks include it in their overall anti-financial crime programmes. It noted the report did not recognise the tensions banks face in applying legal requirements in the face of the expectations of technology, for example the faster payments initiative. It also commented that many reports of fraud are not investigated because of resource limitations in the enforcement agencies. BBA also expressed regret that FSA had not consulted with it in the course of drafting the guidance. (Source: BBA Responds on Investment Fraud Guidance)

Contact: Emma Radmore or Andrew Barber.

BBA comments on FATCA agreement: BBA has outlined several areas in which it feels Foreign Account Tax Compliance Act (FATCA) final regulations should be consistent with the model intergovernmental agreement. It has also welcomed the commitment to adapting the intergovernmental agreement to a common international framework for reporting and due diligence model for automatic exchange of information. (Source: BBA Comments on FATCA Model Intergovernmental Agreement

Contact: Rosali Pretorius or Suhail Qureshi.

BBA publishes recovery and resolution paper: BBA has published a briefing paper setting out its position on the Commission's proposal for a bank recovery and resolution directive. It suggests that certain powers, such as appointing a Special Manager or requiring a plan for debt restructuring, are more akin to resolution tools and should not be used until the firm has reached its point of non-viability. This also applies to the bail-in tool, which cannot be used as the first or default option. Each competent resolution authority should maintain a code of conduct identifying the circumstances that trigger the use of the different resolution tools. BBA also expresses concerns about how the exclusion of short-term liabilities from the scope of the bail-in could incentivise a move towards short-term funding. Finally, commenting on the need to establish resolution funds, BBA does not agree with creating an obligation for Member States' respective funds to assist each other. It concludes that it cannot support some aspects of the proposal, including the proposals for funding. (Source: BBA Briefing on Recovery and Resolution Directive)

Contact:Andrew Barber or Rosali Pretorius.      

European Banking Federation (EBF)

EBF comments on D-SIBs: EBF has published its response to the Basel Committee's consultation "A framework for dealing with domestic systemically important banks (D-SIBs)". It stresses that higher capital requirements should be complementary to supervision and resolution, which are the most effective tools in addressing systemic risk. In Europe, the fourth Capital Requirements Directive (CRD IV) should satisfy any new capital requirements introduced in the D-SIBs framework, as this already foresees extra buffers for systemically important financial institutions. EBF also asks for a definition of "integrated area", similar to that for the proposed European Banking Union. (Source: EBF Response on D-SIBs

Contact: Rosali Pretorius or Edward Hickman.

EBF comments on reporting of leverage ratio: EBF has responded to the European Banking Authority's consultation on implementing technical standards on supervisory reporting requirements for the leverage ratio. As it did when commenting on liquidity coverage and stable funding, EBF asks that the application of new requirements be postponed until 1 January 2014. It also warns about having to report similar data in different templates and the reconciliation efforts stemming from this. A review of reporting requirements should remove duplicative templates and offer a single definition for each data item. EBF also proposes several measures for further easing the reporting burden. (Source: EBF Comments on Leverage Ratio Reporting)

Contact: Rosali Pretorius or Edward Hickman.   

Investment Management Association (IMA)

IMA criticises banking structure and incentives: IMA, responding to the Parliamentary Commission on Banking Standards, says banking culture has not been as much of a problem as the changes to banking structure and incentives. It notes the growth of investment banking and increased use of derivatives have changed the traditional banking market place and shifted the focus of risks. It said it supports the "retail ring fence" the Government proposes to put in place but says recent events should encourage the Government to review its decision to allow derivatives within it. (Source: IMA Response to Parliamentary Commission on Banking Standards)

Contact: Emma Radmore or Rosali Pretorius.

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.

Recent Publications

New This Week

Rate Setting and Regulation: In Everyone's Interests?: Rosali Pretorius, Madeleine de Remusat and Katharine Harle wrote an article for Financial Regulation International on the background to LIBOR setting and potential regulatory action.

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 HarleRichard 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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