UK: Financial Regulatory Developments (FReD) - April 5, 2013

Last Updated: 15 May 2013

Headlines

  • Tax transparent fund Regulations laid before Parliament
  • Treasury consults on payments regulator
  • FSA fines Prudential for failure to deal in an open way with the regulator
  • FCA publishes guidelines on banking authorisation process
  • ISDA publishes LIBOR discontinuation amendment letter

EUROPEAN UNION AND INTERNATIONAL

European Commission (Commission)

Commission reports on OTC derivatives treatment: The Commission has reported to the European Parliament and the Council of the EU on the international treatment of central banks and public entities managing public debt with regard to OTC derivatives transactions. The report analyses the treatment of central banks and debt management offices within the legal frameworks of a significant number of non-EU countries. The report envisages exempting certain non-EU countries' central banks and public debt management offices from the scope of the Regulation on OTC derivatives, central counterparties and trade repositories (EMIR). It will be updated regularly as the reform process advances in the countries where the legislation is not yet final, as well as in other G20 jurisdictions not yet included in the report. (Source: Commission Reports on OTC Derivatives Treatment)

Contact: Rosali Pretorius or James Brennan

Commission publishes Green Paper on long-term finance: The Commission has published a Green Paper on the long-term financing of the European economy. Among the key themes of the paper are the move towards an increased role for the capital markets and the aligning of incentives in the financial system with long-term objectives. (Source: Green Paper on the Long-Term Financing of the European Economy)

Contact: Rosali Pretorius or Edward Hickman

European Parliament (EP)

ECON publishes draft FTT report: The Economic and Monetary Affairs Committee (ECON) in EP has published its draft report on the Council Directive introducing a Financial Transactions Tax (FTT) for 11 Member States. ECON welcomes the introduction of the issuance principle in the new Commission proposals and makes the following amendments:

  • eliminates the exemption for OTC derivatives from the issuance principle;
  • introduces the ownership principle, whereby a transaction does not result in transfer of title and is not legally enforceable if the tax is not paid; and
  • strengthens the residence principle, clarifying that branches of institutions established in an FTT jurisdiction will also fall within the scope of the FTT.

(Source: ECON FTT Draft Report)

Contact: Jeremy Cape or Rosali Pretorius

European Banking Authority (EBA)

EBA consults on forbearance and asset encumbrance reporting: EBA has published two separate consultations with implementing technical standards (ITS), templates and data point models for meeting reporting requirements under the Capital Requirements Regulation on, respectively, forbearance and non-performing exposures, and asset encumbrance. (Source: ITS on Asset Encumbrance Reporting and ITS on Forbearance and Non-Performing Exposures Reporting)

Contact: Rosali Pretorius or Juan Jose Manchado

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA offers support to prepare for Solvency 2: EIOPA is consulting on Guidelines aimed at supporting firms and national regulators in their preparations for Solvency 2. The Guidelines will cover governance, own risk and solvency assessment, submission of information and pre-applications for the use of internal models. (Source: EIOPA Consults on Guidelines for the Preparation of Solvency 2 and Guidelines on Preparing for Solvency 2)

Contact: Rosali Pretorius or Edward Hickman

European Securities and Markets Authority (ESMA)

ESMA publishes final draft RTS on types of AIFM: ESMA has published and submitted to the Commission the final version of the draft regulatory technical standards (RTS) on types of alternative investment fund managers (AIFMs). The RTS provide definitions of managers of closed-ended and open-ended AIFs, the latter being those who manage funds where unit- or shareholders can redeem, at current net asset value, at least once a year, without taking into account initial holding periods or arrangements to manage the fund's liquidity profile. (Source: ESMA Publishes Draft RTS to Determine Types of AIFMs)

Contact: Rosali Pretorius or Emma Radmore

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

Basel Committee consults on external audit for banks: The Basel Committee is consulting on enhanced guidance setting out supervisory expectations on how:

  • external auditors can discharge their responsibilities more effectively;
  • audit committees can contribute to the quality of external audit;
  • to maximise the relationship between external auditors and supervisors; and
  • bank audit quality can improve with regular and effective dialogue between the banking supervisory authorities and relevant audit oversight bodies.

It asks for comments by 21 June. (Source: Basel Consults on External Audit for Banks)

Contact: Rosali Pretorius or James Brennan

Basel Committee consults on credit protection cost: The Basel Committee has published a proposal to strengthen capital requirements when banks engage in certain high-cost credit protection transactions. It is worried about potential regulatory capital arbitrage. It wants to ensure the costs, and not just the benefits, of purchased credit protection are appropriately recognised in regulatory capital. It asks for comments by 21 June. (Source: Basel Consults on Credit Protection Cost)

Contact: Rosali Pretorius or Juan Jose Manchado

Basel Committee consults on large exposures: The Basel Committee is consulting, until 28 June, on a prudential framework for large exposures to a single third-party private sector counterparty. The framework captures exposure to shadow banks but does not cover sectoral or geographical concentrations of exposure, exposure to sovereigns, short positions or intragroup exposures. A tighter large exposures limit would be applied to systemically important institutions. (Source: Supervisory Framework for Measuring and Controlling Large Exposures)

Contact: Rosali Pretorius or Edward Hickman

UK GOVERNMENT AND PARLIAMENT

Legislation

Tax transparent fund Regulations laid before Parliament: The Government has introduced in Parliament the draft Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013. These Regulations create a new, tax transparent, fund vehicle for the UK. These funds will be constituted as contractual funds and will take the form of co-ownership schemes or limited partnerships. (Source: The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013, Draft Statutory Instrument)

Contact: Rosali Pretorius or Emma Radmore

HM Treasury (Treasury)

Treasury publishes CCA destination table: Treasury has published a table showing where it proposes to move key provisions of the Consumer Credit Act (CCA), once supervision of consumer credit transfers to FCA. (Source: Treasury Publishes CCA Destination Table)

Contact: Andrew Barber or Emma Radmore

Treasury consults on payments regulator: Treasury has opened a consultation, which runs until 25 June 2013, on the characteristics of a new competition-focused and utility-style regulator for the UK retail payment systems. This follows the Government's decision to go further than the options considered in its 2012 consultation on "Setting the Strategy for UK Payments", which consisted of either beefing up the Payments Council or introducing a public body that would participate in strategic decisions. Treasury is proposing to give the new regulatory role over the payments system to FCA or to any of the existing economic regulators. The consultation also covers the potential licensing regime and proposals to address vertical integration and barriers to acceding shared networks. (Source: Opening Up UK Payments)

Contact: Andrew Barber or Emma Radmore

Bank of England (BoE)

BoE updates approach to FMIs: BoE has updated its approach document to the supervision financial market infrastructures (FMIs). (Source: BoE's Approach to the Supervision of FMIs)

Contact: Rosali Pretorius or Andrew Barber

BoE publishes statements on power of direction and penalties for FMIs: BoE has adopted the final policy statements on the use of the power of direction over qualifying parent undertakings of UK recognised clearing houses (RCHs) and on deciding and calculating penalties on RCHs, their parents and operators or recognised inter-bank payments systems. (Source: Policy Statement – The Giving of Directions to Qualifying Parent Undertakings of UK RCHs and Policy Statement – Financial Penalties Imposed by the Bank)

Contact: Rosali Pretorius or Andrew Barber

BoE makes rules for FMIs: BoE, under the role conferred on it by the Financial Services Act 2012 and the Uncertificated Securities (Amendment) Regulations 2013, has made rules on the duty of RCHs and of operators of uncertified securities systems to notify BoE of a proposal to make certain regulatory provisions and on their duty to pay for skilled person reports. The rules also establish that RCHs must give notice of appointment or resignation of key individuals. (Source: BoE: Recognised Clearing House Rules Instrument 2013 and Uncertificated Securities Rules Instrument 2013)

Contact: Rosali Pretorius or Andrew Barber

FPC announces extent of UK banks' capital shortfall: The Financial Policy Committee (FPC) has announced the results of the FSA assessment that followed FPC's November 2012 Recommendation on UK banks' capital levels. That Recommendation expressed concerns about banks' practices around asset valuation, calculation of risk weights and conduct costs forecasting. FSA's assessment has concluded that, benchmarked against a 7% Tier1 capital ratio, UK banks have a shortfall in capital of £25 billion. FPC has recommended PRA to ensure that UK banks address that shortfall by the end of 2013. (Source: FPC Statement From its Policy Meeting, 19 March 2013 and FSA Methodology Note on Calculating Capital Pressures)

Contact: Rosali Pretorius or Edward Hickman

Law Commission

Law Commission starts review of investment intermediaries' fiduciary duties: The Law Commission has started its review, commissioned by the Government following a recommendation in the Kay Review of UK equity markets, of the legal concept of fiduciary duty as applied to investment intermediaries. It will seek to clarify who in the investment chain fiduciary duties apply to and how far fiduciaries should focus exclusively on maximising short-term financial return. (Source: Fiduciary Duties of Investment Intermediaries)

Contact: Felicity Ewing or Andrew Barber

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Services Authority (FSA)

Illustration rules changes take effect: Changes to the rules on inflation-adjusted illustrations for personal pensions and new guidance for the preparation of product information take effect from 6 April. (Source: Illustration Rules Changes Take Effect)

Contact: Emma Radmore or Andrew Barber

FSA updates on future publications: At the end of March, FSA updated the calendar of future publications by the new regulators. These include, during the second quarter of 2013, policy statements on consumer credit regulation, recovery and resolutions plans, financial conglomerates, payments to platforms and cash rebates, restrictions on UCIS, mutual with-profits funds and on the second consultation on implementing the AIFMD. (Source: Policy Development Update No. 157)

Contact: Emma Radmore or Juan Jose Manchado

FSA fines Prudential for failure to deal in an open way with the regulator: FSA has fined The Prudential Assurance Company Limited (PAC) £16 million for its failure to inform FSA that Prudential Plc, its holding company, was seeking to acquire AIA from early 2010. FSA said that, because the transaction could have led to a change in PAC's corporate controller, PAC was required to notify FSA at the earliest opportunity, which it did not. Prudential was concerned about the risk of leaks, and decided not to disclose the transaction in a meeting with FSA which focused specifically on Prudential's Asian strategy. This omission amounted to a breach of Principle 11, which requires firms to deal with the regulators in an open and co-operative way. FSA needed to know of the planned acquisition to take the right regulatory decision and to assist overseas regulators with their enquiries on the transaction. Prudential Plc has been fined £14 million for a similar breach under the Listing Rules, and its CEO has been censured. (Source: Final Notice PAC and Press Release)

Contact: Rosali Pretorius or Rebecca Gordon

FSA fines for unsuitable investment advice: FSA has fined Care Asset Management Limited (Care), an independent financial adviser, £56,000 in relation to the distribution of Keydata products. Care failed to provide suitable advice for the following reasons:

  • it incorrectly rated the products as lower risk, despite the fact that many of the Keydata products had characteristics of other products with higher risk rating;
  • it did not communicate the risks clearly and in a balanced way to consumers;
  • it did not understand its customers' risk appetite; and
  • it did not monitor or review adequately the sale of Keydata products.

Care mitigated the seriousness of the failings by assisting customers to obtain redress through the Financial Services Compensation Scheme (FSCS), improving its sales processes and appointing an external consultant to update compliance arrangements and review future sales. (Source: Final Notice Care)

Contact: Felicity Ewing or Katherine Harle

FSA publishes legal cutover Handbook notice: FSA published its last Handbook notice, where it summarised the changes to the Handbook the transitional board to FCA has made since 28 February in preparation for legal cutover. (Source: FSA Handbook Notice 128)

Contact: Emma Radmore or Juan Jose Manchado

FSA reviews requirements for new banks: FSA and BoE published a "Review of the requirements for firms entering into or expanding in the banking sector". The review considers changes to ease prudential, conduct and organisational requirements while maintaining basic standards. The changes considered include:

  • reduced capital requirements at authorisation, provided that the new entrant can be resolved in an orderly fashion without systemic impact, and flexible application of the capital planning buffer;
  • reduced liquidity requirements, as already achieved by removing the automatic scalar to the simplified ILAS BIPRU; and
  • deciding applications for authorisation within six months, or granting a restricted authorisation so that new entrants can then more easily mobilise the required capital and infrastructure.

(Source: Review of the Requirements for Firms Entering into or Expanding in the Banking Sector)

Contact: Rosali Pretorius or Andrew Barber

Financial Conduct Authority (FCA)

FCA publishes guidelines on banking authorisation process: FCA has published guidelines on the process for authorising new banks, including a new "Option B", whereby a firm that so wishes will be granted a restricted authorisation and a period of 12 months to mobilise capital and infrastructure. (Source: Banking Authorisation Process April 2013)

Contact: Emma Radmore or Andrew Barber

Prudential Regulation Authority (PRA)

PRA publishes updated approach documents: PRA has published updates of the approach documents to banking and insurance supervision, first released in 2012. It has also published its final policy statements on decision-making and enforcement, including its approach to interviews and to publicity of regulatory action. It says that it is entirely possible that PRA and FCA could take separate action for what some may consider to be the same circumstances. (Source: PRA's Approach to Banking Supervision April 2013, PRA's Approach to Insurance Supervision April 2013 and PRA's Approach to Enforcement April 2013)

Contact: Emma Radmore or Andrew Barber

PRA finalises policy on power of direction: PRA has published the statement of policy setting out how it will use the new power of direction over qualifying parent undertakings. In its feedback to responses to the December 2012 consultation paper, PRA says that there is no requirement that the power of direction be used only as a last resort. It will consider the desirability of using the power over the holding company rather than the regulated entities, and PRA's decision to use the power can be referred to the Tribunal. (Source: Policy statement – The Power of Direction Over Qualifying Parent Undertakings)

Contact: Rosali Pretorius or Andrew Barber

PRA consults on loss given default floor for mortgages: PRA has adopted legacy FSA material on the use of Internal Ratings Based (IRB) models in the calculation of regulatory capital requirements. It is also consulting on its decision that firms should continue to apply, until the Capital Requirements Regulation comes into force, a 10% loss given default floor for exposure to residential mortgages. (Source: Credit Risk: Internal Ratings Based Approaches)

Contact: Rosali Pretorius or Edward Hickman

MoUs between regulators published: Several Memoranda of Understanding (MoUs), providing the framework for co-operation under the new financial regulatory structure, have been published. They include:

  • MoU between BoE, including PRA, and Treasury regarding financial crisis management;
  • MoU between BoE, including PRA, Treasury and FCA regarding international organisations;
  • MoU between BoE, including PRA, and FCA regarding supervision of markets and markets infrastructure;
  • MoU between FCA and PRA regarding co-ordination;
  • MoU between FCA and PRA regarding supervision of with-profits policies;
  • MoU between FSCS and PRA regarding FSCS;
  • International MoUs;
  • MoU between the Office for Fair Trading (OFT) and FCA;
  • MoU between FOS and FCA; and
  • MoU between FSCS and FCA.

(Source: MoU Regarding Financial Crisis Management, MoU Regarding International Organisations, MoU Regarding Supervision of Markets and Markets Infrastructure, MoU between FCA and PRA Regarding Co-ordination, Annexes for the FCA/PRA MoU, MoU Regarding Supervision of With-Profits Policies, MoU regarding FSCS, International MoUs, MoU between OFT and FCA; MoU Between FOS and FCA and MoU between FSCS and FCA)

Contact: Emma Radmore or Juan Jose Manchado

OTHER AUTHORITIES AND INDUSTRY ASSOCIATIONS

International Organisation of Securities Commissions (IOSCO)

IOSCO consults on market structure effects: IOSCO is consulting on possible outstanding issues and risks posed by existing or developing market structures. Its paper says securities regulators should strike an appropriate balance between a market structure that promotes competition among markets and one that minimises the potentially adverse effects of fragmentation on market integrity and efficiency, price formation, and best execution of investor orders. It makes recommendations on monitoring the impact of fragmentation on market integrity and efficiency, trade information, order handling rules and best execution, access to liquidity and market efficiency and resilience. It asks for comments by 10 May. (Source: IOSCO Consults on Market Structure Effects)

Contact: Rosali Pretorius or James Brennan

IOSCO to establish task force on cross-border regulation: During its latest board meeting, IOSCO agreed to establish a task force on cross border regulation that will develop tools for substituted compliance, mutual recognition and supervisory co-operation in the field of securities markets. (Source: IOSCO to Progress Reform Agenda Under New Leadership)

Contact: Rosali Pretorius or James Brennan

International Swaps and Derivatives Association (ISDA)

ISDA publishes note on position limits: ISDA, the Futures and Options Association (FOA) and the European Federation of Energy Traders (EFET) have submitted their view on position limits to the Council of the EU working group currently discussing the MiFID reform. They maintain that:

  • position limits should only apply to delivery (spot) month and physically settled contracts, as these are the contracts that can give rise to market disruption or manipulation;
  • netting of OTC derivatives and futures should be allowed; and
  • hedging of commercial risk or treasury financing activity should be exempted.

(Source: Note on Position Limits)

Contact: Rosali Pretorius or James Brennan

ISDA publishes LIBOR discontinuation Amendment Letter: ISDA has published Guidance and a bilateral Amendment Letter on the discontinuation of LIBOR currencies or certain of their maturities. (Source: LIBOR Discontinuation Guidelines and Amendment Letter)

FORTHCOMING EVENTS AND RECENT PUBLICATIONS

New: Infoline AIFMD Level 2 Implementation: Rosali Pretorius is leading a workshop at Infoline's conference on implementation of the AIFMD on 22 April.

Investment Services and Markets Reform

Don't be an April Fool: prepare for FSMA at legal cut-over: Emma Radmore has written an article for Compliance Monitor on preparations for the change in UK regulatory structure.

PLC RDR Checklists: Andrew Barber and Emma Radmore have written a suite of checklists for PLC. The checklists are designed to help firms ensure that they comply with the requirements of the Retail Distribution Review (RDR).

Last Lap to Legal Cut-Over: Emma Radmore has written an article for Compliance Monitor on FSA's first two consultations on preparing for the new regulatory regime.

Asset Management

The Alternative Investment Fund Managers Directive – Theory Becomes Reality: Rosali Pretorius and Emma Radmore wrote an article on implementation of the AIFMD for the Global Asset Management & Servicing Review 2013/14 published by Euromoney Yearbooks.

Enforcement and Litigation

Having Your Cake and Eating It: FOS Award is no Bar to Issuing Proceedings: Katharine Harle has written an article for Compliance Monitor on the High Court award in Clark and another v. In Focus Asset Management & Tax Solutions Ltd.

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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