UK: Financial Regulatory Developments (FReD) - 21 September 2012

Last Updated: 9 October 2012

HEADLINES

  • ESMA consults on investment firm remuneration guidelines
  • Parliament Commission to review Banking Reform Bill
  • FSA speaks on fair deal for consumers
  • Basel publishes revised Core Principles

EUROPEAN UNION AND INTERNATIONAL

European Parliament (EP)

EP calls for role in banking rules: EP says the proposed EU banking supervision rules must be of good quality and provide for accountability. Some MEPs are worried that Member States want to impose a decision-making process on the new legislation which will exclude EP from participating in making decisions on one of the texts. (Source: EP Calls for Role in Banking Rules)

Contact: Rosali Pretorius or Andrew Barber.

EP publishes new voting dates: EP's Legislative Observatory has published amended voting dates for key regulatory initiatives. Among the key dates are:

  • Committee referral of the Packaged Investment Products (PRIPs) proposal and on changes to the Insurance Mediation Directive (IMD2) happened on 11 September;
  • votes on the changes to the UCITS Directive (UCITS V), also referred on 11 September, are scheduled for 21 January 2013 (Committee) and 12 March 2013 (Plenary);
  • the final Act for changes to Solvency 2 deadlines was adopted on 12 September and appeared in the Official Journal on 14 September;
  • texts were adopted by Parliament on a partial vote on the European Social Entrepreneurship Funds (EuSEF) proposal and the European Venture Capital Funds (EuVCF) proposal on 13 September; and
  • the framework for recovery and resolution of investment firms and credit institutions will be debated in Committee on 20 March 2013 with an indicative Plenary sitting date of 10 June 2013.

(Source: OEIL reference for PRIPs, OEIL reference for UCITS V, OEIL reference for IMD 2, OEIL reference for Solvency 2 amendments, OEIL reference for EuSEF, OEIL reference for EuVCF and OEIL reference for recovery and resolution framework

Contact: Emma Radmore or Juan Jose Manchado.

European Commission (Commission)

Commission publishes newsletter on post-trading: The Commission has published an "info-letter" summarising recent developments and focusing on regulatory changes needed in relation to post-trading. (Source: Info-letter on Post Trading)

Contact: Rosali Pretorius or Madeleine de Remusat.

Short Selling Measures in OJ: Two key measures which the Commission made at the end of June under the Short Selling Regulation (SSR) have been published in the Official Journal (OJ):

  • the Commission Delegated Regulation on technical standards on:

    • notification and disclosure requirements with regard to net short positions;
    • details of the information ESMA should have in relation to net short positions; and
    • the method for calculating turnover to determine exempted shares; and
  • the Commission Implementing Regulation implementing technical standards on:

    • the means for public disclosure of net positions in shares;
    • the format of the information ESMA should have in relation to net short positions;
    • the types of agreements, arrangements and measures to adequately ensure that shares or sovereign debt instruments are available for settlement; and
    • the dates and period for the determination of the principal venue for a share.

(Source: SSR Measures in OJ)

Contact: Rosali Pretorius or Matthew Sapte.

European Securities and Markets Authority (ESMA)

ESMA consults on investment firm remuneration guidelines: ESMA is consulting on guidelines for investment firms under the Markets in Financial Instruments Directive (MiFID). The guidelines aim to address the risks that investment firm staff have a financial incentive to promote, recommend and sell unsuitable investments. The guidelines will, among other things, require firms to:

  • ensure the way in which they remunerate is not aimed at circumventing MiFID or the ESMA guidelines;
  • design, monitor and control procedures to take account of their specific business and to ensure they deliver the intended outcome; and
  • apply the guidelines to all staff involved in the provision of investment or ancillary services, and in relation to all forms of payments or benefits the firm provides to them.

ESMA asks for comment by 7 December. (Source: ESMA Consults on Investment Firm Remuneration Guidance)

Contact: Emma Radmore or Andrew Barber.

ESMA consults on short selling: ESMA is consulting on draft guidelines under the SSR for market making and the application of the exemptions for market making activities and primary market operations. ESMA says regulators should use the draft guidelines as the interim benchmark for notification and application of the exemption, since the notification period is already open. The draft guidelines explain:

  • the link between the relevant financial instrument, the venue and the membership of the notifying entity;
  • who the competent authority for the notification is, and the process for notifying; and
  • transitional measures for notifications.

ESMA wants comments by 5 October. ESMA also published notification of a set of FAQs on the SSR, but this disappeared from its website. (Source: ESMA Consults on SSR Exemptions Guidelines)

Contact: Rosali Pretorius or Matthew Sapte.

UK GOVERNMENT AND PARLIAMENT

Parliament

Parliamentary Commission to review Banking Reform Bill: The Parliamentary Commission on Banking Standards is to conduct pre-legislative scrutiny on the draft Banking Reform Bill, which it expects to receive in the week beginning 8 October. The Parliamentary Commission is to report on legislative action by 18 December. Andrew Tyrie, Chairman of the Parliamentary Commission, said FSA's recent Final Notice against Peter Cummings indicated failings which are at the heart of the Parliamentary Commission's work. (Source: Commission to Review Banking Reform Bill and Commission Comments on Cummings)

Contact: Andrew Barber or Emma Radmore.

HM Treasury (Treasury)

Treasury consults on FPC tools: Treasury is consulting on the proposed tools the Financial Policy Committee (FPC) will be able to use to address systemic risks to the UK financial system under the Financial Services Bill. These include:

  • control over the level of the UK's counter-cyclical capital buffer;
  • a direction-making power to impose sectoral capital requirements; and
  • once international standards are in place, the power to set, and vary over time, a leverage ratio cap.

Treasury wants comments by 11 December. (Source: Treasury Consults on FPC Tools)

Contact: Rosali Pretorius or Edward Hickman.

UK FINANCIAL SERVICES AND MARKETS REGULATOR

Financial Services Authority (FSA) 

FSA speaks on fair deal for consumers: Martin Wheatley has spoken at an Association of British Insurers (ABI) conference on how conduct regulation is changing. He notes the Financial Conduct Authority (FCA) "Approach" document will be published at the end of October and will set out FCA's approach to conduct regulation and getting a fair deal for consumers. He said regulators need to be better at spotting the risks to consumers, to deal decisively with the events that come to a head, and to act more quickly and with better results for consumers. He said people have straightforward needs for financial products, and FCA will look at the life-cycle of a product to assess its value to consumers, rather than focusing on specific times during that life-cycle. He said the way FCA will work will result in fewer supervisors being allocated to specific firms, with more free to act where risks arise. He referred to the proposed new product intervention rules and said FCA would use them, sparingly, to ban certain features or, where necessary, certain products. He said it has ruled out, at least for now, the possibility of pre-approving products. He noted current initiatives, such as the move to ban the sale of unregulated collective investment schemes to most retail investors, and the current consultation on use of incentives for sales staff. Finally, he noted the Retail Distribution Review (RDR), which he said is both helping fairer competition and helping customers understand what they are paying for. (Source: FSA Speaks on a Fair Deal for Consumers)

Contact: Emma Radmore or Andrew Barber.

FSA speaks on fraud: Bob Ferguson has spoken on "beating the fraudster", with specific reference to insurance fraud. He focused on FCA's role in tackling financial crime and commented that financial crime is outside the Prudential Regulation Authority's remit, which he said is the right approach. He discussed how FCA would look at the risks of financial crime generally, and how both regulated and unregulated firms, and other authorities, would be tackling those risks. He noted how FCA would seek to protect both consumers and its own brand. He also spoke of the help FCA will hope to get from the new National Crime Agency, and the nascent Economic Crime Coordination Board. (Source: Beating the Fraudster)

Contact: Emma Radmore or Andrew Barber.

FSA updates on Solvency 2 approvals: FSA has published an update on its data review findings in its Solvency 2 internal model approval process (IMAP). The report sets out the results of FSA's data reviews to date and suggests areas firms should consider when preparing their applications. (Source: FSA Updates on Solvency 2 Approvals)

Contact: Dan Brown or Emma Radmore.

FSA announces "approach" seminars: FSA will run a series of seminars to help firms understand how the new regulatory structure will work. It has published details of these, with an indication that all "approach" documents will be available in October. (Source: FSA Announces "Approach" Seminars)

Contact: Emma Radmore or Juan Jose Manchado.

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

Association of British Insurers (ABI)

ABI calls for cooperation with FCA: ABI has called for cooperation between the insurance industry and the financial regulators. Otto Thoresen, speaking at ABI's event at which Martin Wheatley also spoke (see above), said ABI has identified six key themes for cooperation:

  • making markets and regulation work to deliver public policy goals;
  • a regulator that is in touch with the consumer experience;
  • regulation focused on markets delivering products that meet consumer needs;
  • facilitating effective competition and innovation in financial services;
  • actively shaping FCA's wider regulatory programme with the EU and the UK; and
  • building mutual confidence and respect between FCA and the industry.

(Source: ABI Calls for Cooperation with FCA)

Contact: Emma Radmore or Andrew Barber.

British Bankers' Association (BBA)

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

Basel publishes revised Core Principles: Basel has published an update of its Core Principles for Effective Banking Supervision. Following a review of the 2006 Core Principles, it has decided to combine the Core Principles and the assessment methodology into one document. There are now 29 Core Principles, addressing:

  • supervisory powers, responsibilities and functions (Principles 1-13); and
  • supervisory expectations on banks (Principles 14-29).

The Principles focus on the risk-based approach to supervision, and governance and risk management within supervised firms. The new Principles also take account of recent concerns over supervisory intensity and resource, the need to apply a macro perspective to micro-supervision and the increased focus on crisis management. (Source: Basel Core Principles September 2012)

Contact: Rosali Pretorius or Edward Hickman.

European Fund and Asset Management Association (EFAMA)

EFAMA comments on UCITS V: EFAMA has commented on the Commission's proposals to amend the UCITS Directives in respect of depositories and remuneration. While it broadly supports the initiative to make the Alternative Investment Fund Manager's Directive (AIFMD) and UCITS requirements as consistent as possible, it has several concerns, not least the significant changes UCITS and their managers will have to make and the costs of this. It says many of the costs, including any costs related to the proposed inclusion of UCITS within the EU Investor Compensation Schemes Directive, will be passed on to customers. It says no change should be made without consideration of the particular position of UCITS. Finally, it says there is an urgent need to clarify in the UCITS Directive the counterparty limits for OTC derivatives in relation to central clearing. (Source: EFAMA Comments on UCITS V)

Contact: Jim Baird or Rosali Pretorius.

International Organisation of Securities Commissions (IOSCO)

IOSCO sets up benchmark taskforce: IOSCO has set up a Board Level Task Force on financial market benchmarks. Martin Wheatley will chair the Task Force, which will identify policy issues related to benchmarks and develop global policy guidance and principles for benchmark-related activities. (Source: IOSCO Sets Up Benchmark Taskforce)

Contact: Rosali Pretorius or Madeleine de Remusat.

FORTHCOMING EVENTS

RDR: How Long Can It Last?: FReD readers should have received their invitation to our breakfast briefing on 26 September on the RDR and the Commission's Packaged Retail Investment Product initiative. Andrew Barber and Emma Radmore will be speaking at this seminar.

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

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.

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
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.

4 Oct 2017, Workshop, London, UK

We are hosting an interactive workshop where we will run a mock High Court trial of an employee competition case – where the members of the audience are the judges. The session, aimed at in-house counsel and HR professionals, will offer an insight as to how disputes involving employees moving to a competitor play out in practice.

 
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