UK: Risk And Regulation Monthly – November 2012

November saw the appointment of Mark Carney as the Governor of the Bank of England and, accompanying the G20 meeting in Mexico City, several reports by the Financial Stability Board (FSB), in particular on recovery and resolution; intensity and effectiveness of SIFI supervision; shadow banking; and a revised list of globally systemically important banks (G-SIBs).

As usual this note is produced for information only, on a best efforts basis, and does not constitute advice of any kind.

Capital (including stress testing)

The European Banking Authority (EBA) wrote twice to Commissioner Barnier regarding provisions in the Capital Requirements Regulation (CRR). In its first letter, on the definition of own funds, it raised concerns over recent amendments to the legislative text, specifically on the quality of common equity tier one capital; and the introduction of multiple dividends for some capital instruments. In its second letter the EBA noted the lack of a harmonised approach to calculating transitional floors for capital calculations, which it said should use the CRR standardised approach, and that it should be asked to draft standards for this purpose.

Wayne Byres, Secretary General of the Basel Committee on Banking Supervision (BCBS), spoke on Basel III, comparing regulatory reform to a healthy lifestyle. In his analogy, Byres likened regulators to personal trainers whose job it is to whip the banks "in ill health" back into shape. According to Byres, the full, timely and consistent implementation of Basel III was essential for a well-functioning financial system. Given the staggered deadlines under Basel III, the BCBS "has designed a fitness regime for banks that is modest at the outset and increases in intensity over time". The minimum capital requirements set out under Basel III were necessary, but not sufficient, and had to be accompanied by a raft of other measures. In addition Byres expressed the need for international regulatory agreements to be supported by strong national supervision.

Stefan Ingves, Chair of the BCBS, talked about the broad range of current and future regulatory initiatives being driven forward by the BCBS. Current areas of focus included large exposure rules; capital requirements for the trading book – reducing banking book/trading book arbitrage and enhancing transparency for securitisation; and reviewing the suitability of the standardised approaches to credit and operational risk for internationally active banks. Ingves also outlined the BCBS' intention to review the balance between complexity and comparability for capital, using the approach to debit valuation adjustments as an example. Given the huge complexity of developing a risk sensitive model approach, the BCBS had decided in favour of a more simplistic, but conservative, treatment. In addition, the BCBS had established a task force to develop guidelines on capital planning.

The FSA published a policy statement on "Large Exposure Regime – Groups of Connected Clients and Connected Counterparties". The proposals effectively relax the pre-existing rules and include the removal of the definition of connected counterparties in BIPRU 10.3.8R (the Prudential Sourcebook for Banks, Building Societies and Investment Firms) and the removal of decision trees and diagrams from the final guidance on exposures to structured finance vehicles.

The European Banking Federation (EBF) wrote to Commissioner Barnier to request postponing the fourth Capital Requirements Directive (CRD4) until 1 January 2014. The EBF expressed concerns that the international competitiveness of the EU was at jeopardy, particularly with regards to the "unlevel playing field" between the EU and the US, where the regulatory authorities had already announced a delay to Basel III implementation. The EBF also felt such delay was appropriate given the delay in finalising the CRD4 legislative text.

The Financial Services Authority (FSA) consulted on proposals to strengthen capital requirements for self-invested personal pension (SIPP) operators. Key proposals included the minimum capital a SIPP operator must hold (up from £5,000 to £20,000); total capital requirements (which should take into account the amount of assets under administration and any holdings of "non-standard assets"); and proceeds of capital held in a form that is realisable within one year(with capital explicitly required through the capital surcharge more easily realisable, within 30 days).


The FSA consulted on changes to BIPRU in response to concerns that the "costs of the FSA liquidity regime have been higher than thought when it was introduced", proposing that a simplified ILAS BIPRU firm should continue with a liquid assets buffer of not less than 50% of the simplified requirement and removing the increase to 70% scheduled for July 2013 and further rises thereafter. The FSA also proposed to amend BIPRU 12.7 to ensure that credit quality and currency requirements, which apply to high quality debt securities issued by governments, were also applied to securities issued by multilateral development banks.

Governance and risk management (including remuneration)

The FSA fined UBS AG £29.7 million for systems and controls failings that allowed an employee to lose $2.3 billion between 1 June and 14 September last year as a result of unauthorised trading, primarily on exchange traded index futures positions.

The EBA published guidelines on the process, criteria and minimum requirements for assessing the suitability of members of the management body and key function holders, with the aim of ensuring robust governance arrangements and appropriate oversight of credit institutions.

The FSA published a policy statement on its approach to data collection on remuneration practices, in particular relating to the Remuneration Benchmarking Information Report and the High Earners Report, and associated reporting requirements. The FSA made no significant changes to its earlier proposals, which are required under amendments to the Capital Requirements Directive (CRD3).

Conduct of Business (including MiFID)

The FSA published a report on conflicts of interest between asset managers and customers, following a thematic review which revealed breaches of rules governing the use of customers' commissions and the fair allocation of trades between customers. For example, only a few firms the FSA visited "exercised the same standards of control over [spending of customers' money on research and execution services] that are exercised over payments made from the firm's own resources". The FSA noted the importance of culture: senior management needed to understand, communicate and embed a sense of duty to customers throughout the firm.

The FSA consulted on rules and guidance to transpose the requirements of the Alternative Investment Fund Managers Directive (AIFMD) into UK law by 22 July 2013. The consultation, which is the first of two, focused on the prudential regime for all types of AIFM and the regime for depositaries. While the FSA noted that it had "little scope for discretion" in transposing AIFMD, where choice did exist, it intended to approach it in a "flexible way" and to generally avoid "imposing any new requirements on firms beyond those in the Directive".

The FSA published a policy statement on changes to the Client Assets sourcebook (CASS) regarding CASS firm classification and operational oversight, and the mandate rules. The FSA also published a new Client Money and Asset Return (CMAR) form and accompanying guidance, and a modification direction for firms classified as CASS "medium" and "large" that have cancelled their authority to hold client money and their permission for safeguarding and administering investments. Martin Wheatley, FSA Managing Director and CEO designate of the Financial Conduct Authority (FCA), also spoke about the need to strengthen certain client asset rules relating to client money, custody assets and distribution.

HM Treasury consulted on draft secondary legislation for implementing the Wheatley review of LIBOR, in particular, bringing LIBOR within the scope of regulation and making the manipulation of LIBOR a criminal offence. The British Bankers' Association (BBA) consulted on implementation of the review's sixth recommendation, proposing to phase out the compilation and publication of LIBOR for currencies and tenors for which there was insufficient trade data to corroborate submissions by end March 2013.

The Office of Fair Trading (OFT) consulted on its draft 2013-14 annual plan which set out its proposed objectives and priorities for its fortieth and final year of operation before its responsibilities are transferred to other bodies in April 2014. "Debt collection, debt management and compliance within the payday lending sector will remain priority areas of focus" and the OFT intended to "continue to prioritise strong enforcement actions, including using [its] new power to suspend credit licences where necessary to protect consumers from immediate harm".

The FSA fined Card Protection Plan Limited (CPP) £10.5 million, its joint largest retail conduct fine, for mis-selling card and identity protection products. Tracey McDermott, the FSA's director of enforcement and financial crime, said that CPP "exposed a very large number of customers to the unacceptable risk of buying products they did not want or need". CPP estimated redress to its customers at approximately £14.5 million.

The FSA fined Savoy Investment Management Limited £412,000 for failing to take reasonable care to ensure the suitability of the investment portfolios of its wealth management clients. This followed an FSA review (part of a thematic review of the wealth management sector) which found that 23% of a sample of Savoy's files showed a high risk of unsuitability.

The FSA issued a public censure against Capita Financial Managers Limited (CFM) for failings in its role as Authorised Corporate Director (ACD) to the CF Arch Cru funds between June 2006 and March 2009. While CFM delegated the investment management of the funds to a third party, Arch Financial Products LLP (Arch), the FSA found that CFM had inadequate processes to allow it to oversee Arch properly.

The FSA publicly censured The Pentecostal Credit Union Limited (TPCU) for issuing loans worth£1.2 million under its members' names but channelling the money to a Church Organisation, in direct contravention of credit union rules stating that only individual members could borrow. The director hasbeen banned from the industry.

Crisis management (including special resolution, systemically important firms, and business continuity)

The FSB issued a revised list of G-SIBs, which now number 28 – Dexia, Lloyds Banking Group and Commerzbank were removed and BBVA and Standard Chartered added. The two newly designated G-SIBs and their supervisors were given an extended timetable for complying with international recovery and resolution requirements. The 28 firms have now been allocated to additional capital (loss absorbency) "buckets", to be phased in from January 2016.

The FSB's Supervisory Intensity and Effectiveness Group (SIE) published its third progress report, focussing on operational risk. Supervisors are expected to ensure systemic firms have adequate internal controls and reporting systems, with remuneration practices aligned with operational risk. The CRO and Chief Audit Executive should have a "seat at the table", with capacity to challenge senior managers, business strategy, and influence the firm's budget. Concern was expressed that risk appetite frameworks, set at Board level, did not translate into firm-wide changes to culture, operational practices, and remuneration practices.

The FSB provided a progress report on resolution, which found considerable, but uneven, progress in implementing the FSB's Key Attributes. The FSB expressed concern that a number of jurisdictions did not have the full range of resolution tools, for example bail-in. Lack of progress on institution specific crossborder cooperation agreements, and legal uncertainty around implementing resolution measures, were also viewed as key issues which national authorities needed to address.

The FSB consulted on "Recovery and Resolution Planning: Making the Key Attributes Operational", emphasising the need for firms to have well-defined quantitative and qualitative recovery triggers and clearly articulated escalation processes. Two approaches to resolution planning were recognised: single point of entry (SPE) – the application of resolution powers including bail-in, at the parent company level; and multiple point of entry (MPE) – the application of resolution powers by two or more resolution authorities to multiple parts of the group. Guidance was included on the circumstances in which SPE or MPE would be most appropriate for resolution and the agreements and structures required at the organisational level to make each approach work. The paper also included direction on the identification of critical functions and critical shared services, with an emphasis on assessing the consequences for financial markets and the real economy.

The Bank of England Financial Stability Report raised concerns over the lack of investor confidence in banks; a slowdown in bank capital raising; (under-) recognition of expected future losses on loans (and of the cost of conduct redress); and the complexity and opacity of the risk weighting system. The report also contained a high level summary of the interim Financial Policy Committee's recommendations, which tasked the FSA with ensuring that bank capital reflected a proper valuation of banks' assets; calculation of risk weights was carried out prudently; and firms were realistic in their assessment of future conduct costs.

Regulatory perimeter

The FSB consulted on two policy frameworks – addressing shadow banking risks in securities lending and repos and strengthening the oversight and regulation of shadow banking entities – and issued a Global Shadow Banking Monitoring Report. The second paper related to shadow banking entities other than money market funds and suggested authorities focus on economic functions rather than legal entities when assessing risk and considering which one from a "menu of optional policies" to apply. In the securities lending and repos stream 13 recommendations were made, spanning transparency, haircut calculation standards and client assets and collateral management. The idea of Repo Resolution Authorities was abandoned due to "practical difficulties".

David Lawton, Director of Markets at the FSA, spoke about practical issues raised by the European Market Infrastructure Regulation. Timing was a key challenge: firms should start, if they hadn't already done so, byestablishing clearing arrangements; getting ready for the non-margin aspects of bilateral risk mitigation, such as shorter confirmation timetables; and establishing connectivity with trade repositories for the purposes of reporting. Earlier in November, the European Commission published a list of frequently asked questions relating to the dates the EMIR requirements will come into force, to its scope of application and to the position of non-EU Central Counterparties (CCPs)and trade repositories.

IOSCO, the International Organization of Securities Commissions, published its final report on Global Developments in Securitisation Regulation. IOSCO focused on measures for aligning incentives between product providers and investors, particularly through risk retention requirements and enhanced disclosure. Concurrent with the 1 November deadline for compliance with the EU Short Selling Regulation (SSR), the FSA published a policy statement on handbook changes, outlining how the UK will comply with SSR, as well as how the FSA will exercise the limited discretion SSR gives it. The FSA also published an SSR factsheet.

Rethinking the domestic and international architecture for regulation

Andrew Bailey, Managing Director of the FSA Prudential Business Unit, wrote to Andrew Tyrie of the Parliamentary Commission on Banking Standards, recommending changes to the draft Financial Services Bill. He highlighted two points: the Bill should clearly set out how the continuity and safety and soundness objectives for the Prudential Regulation Authority (PRA) interacted and their hierarchy; and directors of ring-fenced banks and potentially other appropriate entities in the group should have a legal obligation to ensure the integrity of the ring-fence.

The latest version of the Financial Services Bill, containing amendments agreed by the House of Lords during the report stage, was published. In it the PRA now had the obligation, rather than the option as previously, to set up a Practitioner Panel; there were changes in powers relating to parent undertakings; and the FCA may, in pursuing its competition objective, have regard to "the ease with which consumers who may wish to use those services, including consumers in areas affected by social or economic deprivation, can access them". Following calls in the House of Lords for stricter control of consumer credit, in particular payday loans, the Government agreed to provide for FCA powers to cap interest rates, both in terms of total cost and total duration of credit.

The FSA and the Bank of England published a draft memorandum of understanding (MoU) setting out how the FCA and the PRA intended to work together to regulate with-profit policies of insurance companies. Where it proved impossible to reconcile the views of the to regulators, and the PRA believed that the proposed FCA action would not advance the PRA's objectives, the PRA could exercise a power of direction over the FCA. For conduct of business matters which did not involve discretionary payments or adjustments to benefits for policyholders or that did not trigger affordability concerns, the PRA would have no role or responsibility.

Disclosure, valuation and accounting

The FSA published final disclosure rules for SIPP operators, removing previous exemptions and requiring SIPPs provide Key Features Illustrations (KFIs), including reduction in yield information and disclosures around the effect of charges. The FSA also required scheme operators to disclose any interest or commissions they receive from banks, but delayed implementation of the rules to 6 April 2013. Further consultation proposed the inclusion of inflation-adjusted projections to KFIs, to be applicable from 6 April 2014.

The FSA published final rules on investment return assumptions (projection rates) for non-MiFID packaged products, including reducing the intermediate projection rate from 7% to 5%.

IOSCO published a set of principles aimed at securities regulators who are developing or reviewing their regimes for ongoing disclosure for asset-backed securities (ABS). The 11 principles recommended disclosures for primarily cash-backed securities and would not apply to securities backed by actively managed asset pools, e.g. ones issued by investment firms, or that contained assets which did not by their terms convert to cash.

The EBA issued a discussion paper on Draft Regulatory Standards for prudent valuation requirements to all positions that are measured at fair value when calculating the amount of own funds, as provided under the CRR. In particular, it looked at the reliance on valuation adjustments and their role in providing an "appropriate degree of certainty" that the valuation used for regulatory purposes is not higher than the true realisable value of the assets.

Information security and data privacy

The Information Commissioner's Office (ICO) issued a warning to the financial services sector, after fining the Prudential Assurance Company £50,000 for failure to keep accurate records of two customer accounts. The mistake led to funds belonging to one customer being transferred out of their account by another customer who shared the same first name, surname and date of birth. The original error was caused when the records of both customers were mistakenly merged in Marc 2007. This was the first time that the ICO has issued a civil monetary penalty notice to an organisation over a Data Protection breach that did not involve a significant data loss.

The Department for Business, Innovation and Skills (BIS) threatened that if financial services, mobile telecoms and energy companies did not adhere to voluntary consumer data access standards under the'midata project', it would introduce new legislation making compliance mandatory. The voluntary scheme requires members to provide consumers with more access to, and control over, personal and transaction data in a "portable and safe" way.

Financial crime

The FSA, following its thematic reviews of anti bribery systems and controls at investment banks and banks' defences against investment fraud, updated its "Financial Crime: A guide for firms" to include new recommendations and examples of good and bad practice. The FSA found that most investment banks fell short in a number of areas, including regulatory regime knowledge, risk assessment and senior management oversight.

Tracy McDermott (FSA) discussed key themes and priorities for combating financial crime in 2013. She pointed to the 'Systematic Anti-Money Laundering Programme,' under which recurrent in-depth reviews of the biggest banks are to be conducted, and to a new thematic review of practices in asset management, which will begin soon. The FCA, which will inherit the FSA's financial crime objective, will also focus on investment fraud and market abuse in the wealth management sector. The PRA will assess how prepared firms are to avoid or manage the impact of fraud and associated risks on their stability.

The Upper Tribunal overturned the FSA decision to charge David Hobbs, a former proprietary trader with Mizuho International, with market abuse. Earlier in November, an investment banker with the same firm pleaded guilty in an unrelated case to charges of insider dealing and encouraging insider dealing, while two other parties were acquitted.

HM Treasury extended its ban on UK financial institutions conducting business with banks incorporated in Iran, their branches or subsidiaries, for another year. HMT noted this may make it difficult for UK non-financial firms to trade with Iranian companies who have a banking relationship with an Iranian bank.

Other items

The Government announced that Mark Carney will succeed Mervyn King as Governor of the Bank of England from 1 July 2013; he is expected to serve five years, rather than the eight year term proposed in new legislation. Carney is currently Governor of the Bank of Canada and serves as Chair of the Financial Stability Board. To aid transition, Charlie Bean was re-appointed as Deputy Governor of the Bank of England for Monetary Stability for one year.

The G20 Finance Ministers and Central Bank Governors published a communique following the meeting in Mexico City to assess progress on their mandates to promote robust growth and job creation and to address ongoing economic and financial challenges. The FSB reported to the G20 on the progress made in financial regulatory reform.

The Bank of England published in full the three independent reviews it had commissioned in May – of Emergency Liquidity Assistance (ELA) in 2008/2009; of the Bank's framework for providing liquidity; and of the Monetary Policy Committee's (MPC) forecasting capability. The Bank would consider a number of suggestions made in the reviews such as extending availability of ELA to non-banks, further enabling banks' access to BoE's liquidity facilities, formalising the roles of the MPC and Financial Policy Committee (FPC) with regard to money markets operations, and accounting for a wider array of factors in its forecasts.

The European Commission published an updated timetable for the legislative initiatives it plans by end- 2012. The lengthy list included a review of the Financial Conglomerates Directive, and AIFMD implementing measures.

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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