UK: Financial Regulatory Developments (FReD) - 27 September 2013

Last Updated: 30 September 2013

HEADLINES

  • EU Legislation Tracker
  • FCA fines JPMorgan £137,610,000 for serious trading failings
  • FCA publishes PPI complaints review
  • FCA fines broker over benchmark failings

EUROPEAN UNION AND INTERNATIONAL

EU Legislation Tracker

We have decided to include a new feature in FReD, to allow you to track the European Parliament's (EP) "OEIL" voting date forecasts and access EP reports and positions on major legislative initiatives. Please follow the relevant link to see the materials:

  • Bank Recovery and Resolution Directive (BRRD) OEIL File
  • Omnibus 2 Directive OEIL File
  • UCITS5 OEIL File
  • Central Securities Depositories Regulation (CSD Regulation) OEIL File
  • Recast Markets in Financial Instruments Directive (MiFID2) OEIL File
  • Markets in Financial Instruments Regulation (MiFIR) OEIL File
  • Market Abuse Regulation (MAR) OEIL File
  • Directive on Criminal Sanctions for Market Abuse (CSMAD) OEIL File
  • Fourth Money Laundering Directive (MLD4) OEIL File
  • Recast Insurance Mediation Directive (IMD2) OEIL File
  • Payment Accounts Directive (PAD) OEIL File
  • Key Information Document for Packaged Retail Investment Products Regulation (PRIPs Regulation) OEIL File

This week we note substantial delays to the Plenary votes on BRRD and the PRIPs Regulation, delays that reflect the expectation of long trilogue negotiations on these dossiers.

Contact: Emma Radmore or Joan Jose Manchado

Council of the European Union (Council)

Council set to agree CSD Regulation general approach: The Presidency of the Council has tabled a revised compromise text of the CSD Regulation and asked COREPER, the Committee of Permanent Representatives, to adopt this text as the Council's general approach. A state-of-play document by the Presidency points out that there is only one main issue lacking unanimous support from Member States. The outstanding issue relates to whether ESMA should be given binding powers when mediating between the national authority that wants to grant authorisation for a CSD to provide banking ancillary services and those concerned countries that issue a negative opinion against authorisation. (Source: CSD Regulation Compromise Text and CSDR State-of-Play)

Contact: Rosali Pretorius or Josie Day

European Commission (Commission)

Commission publishes final version of benchmarks Regulation: The Commission has published the final version of its proposal for a Regulation on indices used as benchmarks in financial instruments and financial contracts. (Source: Benchmarks Regulation)

Contact: Rosali Pretorius or Emma Radmore

European Banking Authority (EBA)

EBA publishes responses to consultations: EBA has published the responses to its consultations on draft technical standards on the definition of market, non-delta risk of options in the standardised market risk approach, appropriately diversified indices and additional liquidity outflows. (Source: Responses on the Definition of Market, Responses on Non-delta Risk of Options in the Standardised Market Risk Approach, Responses on Appropriately Diversified Indices and Responses on Additional Liquidity Outflows)

Contact: Emma Radmore or Joan Jose Manchado

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA writes to Commission on MiFID 2 and insurance: EIOPA has written to the Commission to express its concerns over the suggestion that sales of insurance investment products should fall within the scope of MiFID 2. EIOPA argues that the necessary consistency would be better achieved by including similar provisions in IMD2 and notes the IMD regime takes a more appropriate account of the distribution channels, customer base and the "demands and needs" of insurance customers than MiFID 2 would. The letter suggests it would be better for MiFID 2 to include changes to the current IMD in relation to the sale of insurance PRIPs, if the concern is that the IMD2 review process is moving too slowly. (Source: EIOPA Writes to Commission on MiFID 2 and Insurance)

Contact: Emma Radmore or Andrew Barber

European Securities and Markets Authority (ESMA)

ESMA publishes trends report and risk dashboard: ESMA has published its report on trends, risks and vulnerabilities and a Risk Dashboard for the second quarter of 2013. The report analyses the impact of the Short-Selling Regulation on securities markets, concluding that there is no evidence of a significant deterioration in liquidity in the market for sovereign Credit Default Swaps. It also includes an overview of bail-in and contingent capital securities. The European Systemic Risk Board (ESRB) and EIOPA have also published updated risk dashboards. (Source: ESMA Trends Report: Market Conditions Improve, as Systemic Risks Persist, ESRB Dashboard and EIOPA Dashboard)

Contact: Rosali Pretorius or James Brennan

UK GOVERNMENT AND PARLIAMENT

HM Treasury (Treasury)

Treasury appoints financial services board: Treasury has announced the members of the Financial Services, Trade and Investment Board, announced in the 2013 Budget and which will meet for the first time on 8 October. (Source: Treasury Appoints Financial Services Board)

Contact: Howard Cohen or Josie Day

Treasury consults on CRD reporting: Treasury is consulting on the "country-by-country" reporting requirements in the fourth Capital Requirements Directive (CRD4). CRD4 requires credit institutions and investment firms to report their name, their activities, their geographic location, their total employees and their turn over on a country-by-country basis on 1 July 2014. There are additional requirements for global systemically important institutions. Treasury seeks views on several aspects of UK implementation of the requirements, including whether:

  • it is proportionate to apply the regime to all institutions within CRD4, regardless of their size or business, and to all businesses in the UK, whether they are UK headquartered or are UK subsidiaries or branches of overseas firms (but avoiding duplication in reporting where the top EU parent will be publishing information for its UK institutions);
  • "establishment" for these purposes should include both subsidiaries and branches;
  • there should be a standard disclosure template; there are likely to be any serious impediments that would stop institutions reporting by 1 July 2014; and
  • the Government is using a sensible definition of "turnover" and the types and basis of taxes to include.

Treasury asks for comments by 18 October.

(Source: Treasury Consults on CRD Reporting)

Contact: Rosali Pretorius or Joan Jose Manchado

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Al-Qaida. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Andrew Barber

Bank of England (BoE)

FPC holds policy meeting: The Financial Policy Committee (FPC) met on 18 September. It noted PRA's implementation of FPC's June 2013 recommendations on liquidity, capital and vulnerability to a rise in interest rates, but made no new recommendations. It announced further work on hedge funds' leverage and exposure to interest rates, close monitoring of the housing market and mortgage underwriting standards, and future papers on the effects of monetary forward guidance on financial stability and on stress testing UK banks. It also encouraged Treasury and the regulators to continue the work on the financial system's resilience to cyber attacks. (Source: FPC Statement, 18 September 2013)

Contact: Rosali Pretorius or Andrew Barber

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA fines JPMorgan £137,610,000 for serious trading failings: FCA has fined JPMorgan Chase Bank N.A. (JPMorgan) £137,610,000 for breaches of four of its Principles for Businesses in relation to the trades carried out by its Chief Investment Office (CIO), known as the "London Whale" trades. In July 2012 JPMorgan announced $5.8 billion trading losses within the Synthetic Credit Portfolio (SCP) within the CIO, which later rose to $6.2 billion. FCA found the losses were caused by:

  • a high-risk trading strategy;
  • weak management of the trading;
  • an inadequate response to important information that should have warned JPMorgan of the risks; and
  • flaws in the marking and valuation control process for the SCP.

FCA also found failure to be open and co-operative with the regulator over a six-month period. As a result, it found breaches of Principle 2 (due skill, care and diligence), 3 (organisation and control of affairs responsibly and effectively with adequate risk management systems), 5 (proper standards of market conduct) and 11 (openness and co-operation with regulators). FCA found failings from the SCP traders through to firm senior management. It noted the firm's procedures failed to involve the compliance department at key times, and that the Principle 11 breach was aggravated by the fact that the firm was subject to a heightened supervisory relationship at the time.

The FCA fine would have been £196,586,000 had JPMorgan not benefitted from a 30% early settlement discount. The investigation also involved six US authorities. Three of these imposed total fines of $700 million. (Source: FCA Fines JPMorgan For London Whale Failings)

Contact: Rosali Pretorius or Josie Day

FCA speaks on derivatives: Martin Wheatley spoke to ISDA on current issues in the derivatives markets. He spoke about:

  • cross-border regulation and whether it is practical for one regulator to attempt to regulate all derivatives activities with any link to its jurisdiction, and, if a regulator acts in this way, how to deal with the inevitable conflict when another regulator acts similarly. He focused on the EU/US "roadmap" and plans for mutual recognition. He said a way forward for trading venues needs urgent solution;
  • collateralisation of derivatives. He said he thought the principles published by the working group on margin requirements represented a good balance and should form part of domestic law;
  • implementation of the European Market Infrastructure Regulation (EMIR). He said FCA is pleased with EMIR's progress and the progress of large firms to meet its deadlines. He said FCA will work to help small firms but stressed the need to prepare as much as possible for implementation of key parts of EMIR; and
  • benchmarking. He discussed the tensions between different benchmarks and the challenges of putting principles into practice.

(Source: FCA Speaks on Derivatives)

Contact: Rosali Pretorius or Joan Jose Manchado

FCA updates on AIFMD depositaries: FCA has updated its webpages on the Alternative Investment Fund Managers Directive (AIFMD) to draw the attention of firms applying to be depositaries to FCA's rules on delegation. It says firms must carefully review the AIFMD and FUND sourcebook to understand what may, or may not, be delegated, and follow the appropriate rules when they outsource any permitted administrative or technical functions. (Source: FCA Updates on AIFMD Depositaries)

Contact: Rosali Pretorius or Kam Dhillon

FCA publishes PPI complaints review: FCA has published a thematic review which examined how 18 small and medium-sized firms were dealing with complaints about payment protection insurance (PPI). Although it found some examples of good practice, it found significant problems in the way 12 of the firms dealt with some aspects of complaints handling. FCA disagreed with the decisions the firms had made on 60% of their rejected cases and with the redress offered by the firms in over 40% of the upheld cases. It has referred one firm to enforcement and is considering referring others. FCA is also carrying out a review of PPI complaints handling in larger firms, and will report separately on that. (Source: FCA Publishes PPI Complaints Review)

Contact: Andrew Barber or Josie Day

FCA fines broker over benchmark failings: FCA has fined ICAP Europe Limited £14 million for misconduct relating to LIBOR. It found the breaches of its Principles, which lasted for four years, involved a significant number of brokers including two managers. Many of the failings are similar or related to those against which the regulator has already taken action against others. They included brokers colluding with traders at UBS to manipulate the Yen LIBOR rates for the benefit of the traders. This involved several tactics, including emailing deliberately incorrect suggestions on expected rates to some banks, requesting the banks make specific submissions and, in one case, a manager instigating a corrupt bonus for a broker who helped to manipulate the rates. FCA found that three brokers (including one manager) were central to the collusion and at least seven other individuals (including another manager) participated. It said:

  • the firm's risk management systems and controls were inadequate to monitor and oversee the relevant broking activity;
  • the policies and procedures in place to govern individual broker behaviour were insufficient to deal with collusion between brokers and their clients;
  • the brokers' misconduct was exacerbated by a poor compliance culture within the firm, resulting from the firm being driven by revenue rather than compliance; and
  • the firm's inadequate systems, controls, supervision and monitoring allowed the misconduct to go undetected for a long time.

(Source: FCA Fines Broker over Benchmark Failings)

Contact: Rosali Pretorius or Howard Cohen

FCA publishes unfair terms undertaking: FCA has published an undertaking from Esure Insurance Limited relating to the cancellation terms in its home and car insurance policies. FCA considered the terms that allowed cancellation gave the firm too much discretion to cancel contracts for no good reason, and without always giving the customer a chance to put matters right. The firm agreed to amend these terms to make it clear what the reasons would be, and explained it did give customers notice before cancelling. It also agreed to amend a term in its renewal notices which suggested the "renewal" could in fact be with a different insurer. (Source: FCA Publishes Unfair Terms Undertaking)

Contact: Andrew Barber or Josie Day

FCA updates on CRD4: FCA has noted EBA's consultation on its XBRL (eXtensible Business Reporting Language) taxonomy and says it will collect reports from firms using XBRL and report through its GABRIEL system. (Source: FCA Updates on CRD4)

Contact: Rosali Pretorius or Joan Jose Manchado

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

Basel Committee of Banking Supervision (Basel Committee)

Basel Committee publishes Basel 3 monitoring results: The Basel Committee has published the results of its latest Basel 3 monitoring exercise, which assume full implementation of Basel 3 based on data as of 31 December 2012. The European results, also published by EBA, show that, on average, the shortfall in Core Equity Tier 1 capital has been reduced by more than a third since the previous exercise, and that the full liquidity coverage requirements are already met. (Source: Basel Committee Basel 3 Monitoring Results and EBA Basel 3 Monitoring Results)

Contact: Rosali Pretorius or Joan Jose Manchado

International Swaps and Derivatives Association (ISDA)

ISDA and BBA respond on EMIR non-evasion: ISDA and the British Bankers' Association (BBA) have responded to ESMA's consultation on draft RTS on contracts having direct, substantial and foreseeable effect within the Union and non-evasion of EMIR provisions. They ask for more guidance as to what constitutes a guarantee from an EU financial counterparty to a non-EU counterparty and on the situation where a non-EU counterparty breaches the clearing threshold as a result of the guarantees received. Regarding transactions between EU branches of non-EU entities, the associations ask for an internationally harmonised definition of foreign bank branches. They also believe that the arrangements listed in the draft RTS should not be deemed in principle artificial and therefore an avoidance of EMIR, as there may be perfectly legitimate business or commercial reasons for using them. (Source: ISDA and BBA Response on EMIR Non-Evasion)

Contact: Rosali Pretorius or James Brennan

Industry responds on leverage ratio: ISDA and other trade associations, including the Global Financial Markets Association (GFMA), have responded to the Basel Committee's consultation on revising the leverage ratio. The associations stress that the leverage ratio is meant to be a backstop to capital risk-weighted capital requirements, rather than the other way around. By enlarging the denominator of the leverage ratio, with definitions of the exposure measure that go beyond actual economic exposure, the leverage ratio, rather than risk-based calculations, would actually become the binding capital requirement. Institutions would be encouraged to hold more risky assets, instead of high-quality liquid assets above liquidity coverage ratio requirements. This would have implications for systemic risk and affect the markets for government debt, also impacting on monetary policy. The associations call for a measurement of derivatives exposure based on the non-internal model method and that recognises risk-mitigating effects of cash-collateral and enforceable netting. Client transactions cleared through a central counterparty should be excluded from the exposure measure. (Source: Comments on the Revised Basel 3 Leverage Ratio)

Contact: Rosali Pretorius or James Brennan

Joint Money Laundering Steering Group (JMLSG)

Treasury approves JMLSG changes: Treasury has approved JMLSG's 2011 amendments to its Guidance. (Source: Treasury Approves JMLSG Changes)

Contact: Emma Radmore or Andrew Barber

FORTHCOMING EVENTS

Africa: Now Open for Business: Please join us for a telephone conference or in person briefing in our New York office from Dentons experts and a panel of expert speakers.

AIFM Directive Implementation conference: Rosali Pretorius will be speaking at this Infoline conference in London in December. Dentons clients and contacts can get a 20% discount by quoting VIP code FKM62678EMSPK when registering. Bookings by 11 October can benefit from a further early registration discount of up to £900.

The 2013 COBS Conference: Dentons will host the 2013 COBS Conference organised by the Compliance Register on 15 November, and members of our London Financial Services and Funds team will present at it.

RECENT PUBLICATIONS

Financial Crime

UK authorities move forward on tougher financial crime prevention: Emma Radmore wrote an article for Financial Regulation International on current consultations on sentencing and deferred prosecution agreements. (August 2013)

Sanctions restrictions do not prevent payment of debts: Richard Caird and Tom Rocher comment on the judgement in DVB Bank SE and others v. Shere Shipping Company Limited and others. (August 2013)

Deferred Prosecution Agreements: Emma Radmore has written an article for Financial Regulation International on the introduction of Deferred Prosecution Agreements in the UK. (June 2013)

Anti-Bribery and Corruption Laws in Key Jurisdictions: Lawyers from Dentons offices in six jurisdictions prepared a table comparing key provisions of anti-corruption laws for Thomson Reuters Compliance Complete. (May 2013)

Preventing Financial Crime: Emma Radmore has written an article for Financial Regulation International on recent developments in financial crime prevention. (April 2013)

The Evolving Financial Sanctions Landscape – UK and US Perspectives: Emma Radmore, Thomas Laryea, Michael Zolandz and Peter Feldman have written an article for Financial Regulation International on financial sanctions under the UK and US regimes. (November 2012)

The Bribery Act – Has It Made A Difference?: We have updated our previous overview of the Bribery Act to take into account the Serious Fraud Office's latest guidance. (October 2012)

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). (May 2012)

Investment Services and Markets Reform

Mobile Banking - FCA sets out the risks: Candice Chapman, Andrew Barber and Winston Green comment on FCA's thematic review of mobile banking. (See also FReD 30 August.) (August 2013)

Mobile Network Operator Billing: Andrew Barber and Alex Haffner have written an alert on the effects of the Payment Services Directive on the development of direct-to-phone-bill purchases by mobile network operators. (August 2013)

US Government announces six-month delay in FATCA rules: John Harrington, Jeffrey Koppele, Marc Teitelbaum and Jerome Walker have written an update on the delay in implementing certain elements of FATCA. (July 2013)

Take aim for AIFMD implementation: Emma Radmore and Kam Dhillon have written an article for Compliance Monitor on the final steps towards implementation of the AIFMD. (July 2013)

Taking the Credit - the Transfer of Consumer Credit Regulation: Andrew Barber, Emma Radmore and Juan Jose Manchado have written an article for Compliance Monitor on the transfer of consumer credit regulation to FCA. (April 2013)

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. (January 2013)

A New Handbook for a New Era?: Emma Radmore has written an article for Thomson Reuters Compliance Complete on FSA's proposals to update the General Provisions Sourcebook for legal cut-over. (October 2012)

Treasury Publishes Banking Reform Bill: Read our summary of the Bill implementing the Vickers reforms into FSMA. (October 2012)

RDR: How Long Can it Last?: Emma Radmore and Andrew Barber have written an article for Compliance Monitor on the future of the Retail Distribution Review. (October 2012)

What's next for LIBOR? Summary of the Wheatley Review Recommendations: We have written a summary of the Wheatley 10-point plan for the reform of the LIBOR process. (September 2012)

Rate Setting and Regulation: In Everyone's Interests?: Rosali Pretorius and Katharine Harle wrote an article for Financial Regulation International on the background to LIBOR setting and potential regulatory action. (August 2012)

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. (May 2012)

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). (January 2012)

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. (June 2012)

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. (June 2012)

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. (May 2012)

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.

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. (July 2012)

Another Stable Door?: Emma Radmore and Katharine Harle wrote an article for Thomson Reuters Complinet on IOSCO's proposals for complex product distribution. (April 2012)

Enforcement and Litigation

Appeal dismissed in first interest swap case: Richard Caird and Kattalin Truman have written an article on the Court of Appeal's decision in the first interest rate swap case in the English courts. (August 2013)

It's all in the detail: a cautionary tale for handling complaints: Richard Caird and Felicity Ewing have written an article on the FCA's fine on Policy Administration Services.

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. (January 2013)

The Not So Remote Risks of Recommendations: Richard Caird, Sam Coulthard and Kattalin Truman have written an article on the case of Rubenstein v. HSBC Bank plc. (September 2012)

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. (August 2012)

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. (March 2012)

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Events from this Firm
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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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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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Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.