UK: Investment Management Regulatory Update - Q3 2013

Last Updated: 19 February 2014
Article by Deloitte Financial Services Group

Most Read Contributor in UK, August 2017

Welcome to the ninth edition of our Investment Management Regulatory Update which summarises the key regulatory developments affecting the UK investment management sector.

In this edition we cover key international, European and UK developments including:

  • FCA speeches
  • AIFMD update
  • MiFID update
  • Capital Requirements Directive update
  • Retail Distribution Review update
  • Shadow Banking
  • Other regulatory developments in the investment management sector
  • Q4 2013 FCA enforcement summary

FCA SPEECHES

Over the last quarter, key individuals from the Financial Conduct Authority (FCA) have made a number of speeches on the FCA's approach to achieving its statutory objectives.

Martin Wheatley speech – Looking Ahead to 2014

In December, Martin Wheatley, the FCA's Chief Executive, gave a speech which offered some broad reflections on 2013 and looked ahead into 2014 as an important period of consolidation and a platform to bed in regulatory change and move things forward.

Mr Wheatley believes that much of the reform process is now behind us; in the EU and US, the majority of rules coming from the G20 principles have already been scripted and delivered. In the UK, an entirely new regulatory structure took effect in April governed by new principles and strengthened by new powers.

The FCA has identified several key issues with the asset management sector, including evidence of poor transparency, evidence of a lack of accountability in spending commissions charged to customers as well as question marks over conflicts of interest and firms pushing the definition of research. The FCA will be working with firms to find solutions to these problems. Mr Wheatley believes that these problems are cultural and the FCA's solutions need to reflect this fact, which is why the FCA's approach has been to launch an open conversation with the sector to find viable, long-term answers that do not affect the competitiveness of the UK market.

The FCA's approach to tacking these problems will be a more probing analysis of culture and ethics, a more assertive focus on wider markets as opposed to picking off individual firms one by one and a greater inclination to be more proactive rather than wait for problems to scale up and become less manageable.

In addition to addressing cultural issues within the industry, the FCA will also focus on achieving technical transition in a number of areas including MiFID II and EMIR. In other words, tightening up legal requirements and rules, as is happening across Europe and the US at the moment, most notably the increasing number of European conduct dossiers emerging, for example Packaged Retail Investment Products.

In conclusion, Mr Wheatley surmised that the twin challenges of successfully implementing cultural and technical reform will hold equal weight in 2014. There is an acceptance that these challenges are extremely complex to meet, albeit in very different ways. It is vital for firms and organisations to engage positively in the debate in 2014.

Martin Wheatley speech – Shaping the Future in Asset Management

In October, Martin Wheatley gave a speech at the FCA Asset Management Conference. Mr Wheatley's speech focussed on UK asset management and the critical period ahead for the industry. The FCA's Chief Executive believes that the UK asset management industry is at a crossroads; with international competition placing increasing pressure on London and the UK.

Mr Wheatley made the point that if the UK asset management industry is to remain strong, there is a need to look at the challenges facing the sector and to identify the best way to build upon success.

Since 2006, supervisors have increasingly come across evidence that the current regulatory regime does not sufficiently enhance transparency and accountability. There are two persistent problems:

  • firstly, services are being 'bundled' together, with regulated and unregulated services being mixed; and
  • secondly, when this information is provided back to the client, there is a lack of clarity or adequate transparency around how their commissions have been spent.

Examples of this poor practice include firms allocating significant sums of their Bloomberg and Reuters subscriptions to clients, not all of which could be justified as viable research. Mr Wheatley gives an example of a firm that the FCA has looked at that paid nearly double the amount of commission it had paid for research than the year previously, simply because it had traded more year-on-year. The amount of research received, however, had remained relatively unchanged. Of most concern is that firms are pushing the definition of 'research' by using client commissions to cover non-eligible costs and services. Outdated bundled charging systems and the use of dealing commission to purchase research distorts competition, supports unsustainable business models and lacks the transparency that has attracted a global consumer base.

The first significant step in applying the FCA's new judgement-based supervisory model will be a thematic review following the FCA's conflicts of interest findings from last year. The FCA will look at both buy-side and sell-side practices in this area as part of its examination of bundled brokerage arrangements. This will be followed by a Consultation Paper in November (summarised below) which will seek industry views on how to improve the current regime.

In conclusion, Mr Wheatley considers there to be a common interest in tackling these challenges not just in Europe, but in the short-term here domestically so that UK asset managers can continue to trade on their reputation of being reliable and transparent

Clive Adamson speech – Fair, Transparent and Competitive: The FCA's Vision for the Asset Management Sector

In October, Clive Adamson, FCA Director of Supervision, delivered a speech at the FCA Asset Management Conference where he communicated the FCA's vision for a fair, transparent and competitive asset management sector.

Mr Adamson also set out the FCA's strategy for the asset management sector, where the regulator aims to speed up the fund authorisations process so that asset managers know in a timely manner the outcome of their application. Secondly, through firm-specific and thematic work it plans to address the three key areas which it believes make up a fair industry, namely:

  • that distributors and asset managers do not let conflicts of interest interfere with their obligations to make the best possible decisions on behalf of their clients;
  • that asset managers spend their clients' money as though it was their own and manage costs with as much tenacity as they produce returns; and
  • that investment decisions comply with the investor's stated aims and objectives and investors are given easily understood information on the risks and costs of the service.

Mr Adamson then went on to discuss the importance of a transparent industry. He provided examples of the work carried out by the regulator, including a focus on transitions management services, where it looked at whether poor transparency could lead to poor consumer outcomes. He also commented that in carrying out this work that "the asymmetry of knowledge between providers and customers" had been identified.

The speech lastly addressed the concept of competition. It was stated that the FCA will assess competition through market studies, which could result in the FCA using its regulatory powers to improve how markets work or refer issues to the Office of Fair Trading (OFT) and in future the Competition and Markets Authority (CMA).

AIFMD UPDATE

The Alternative Investment Fund Managers Directive ("AIFMD") came into force on 22 July 2013 and there have been a number of developments this quarter to ensure firms understand and are applying the rules correctly.

FCA Clarifies Timing for AIFM Full-Scope Applications

In October, following a number of queries, the FCA provided clarification on firms' ability to request a specific timeframe for their authorisation or variation of permission (VoP) under the AIFMD.

The FCA stated that firms have a legal right to have their complete full-scope alternative investment fund managers (AIFM) application determined within three months (or exceptionally six months). Where a firm's desired authorisation date is more than three months after the date it intends to submit a complete application, the firm should request a deferral of determination beyond the normal three month statutory time limit. Firms were reminded that AIFMs managing alternative investment funds (AIFs) must hold the correct Part 4A permissions from and after 22 July 2014.

FCA Publishes Q&A for UK Passporters

In early November, the FCA published a set of questions and answers for UK passporters under the AIFMD. The Q&As have been developed to help firms and their advisers with the passporting process and currently cover full-scope AIFMs managing AIFs.

FCA Published Guidance Note on Depositary Arrangements

On 3 December, the FCA published a guidance note on the information it requires from prospective AIFMs on their depositary arrangements. The note is primarily intended for firms seeking a VoP but the principles also apply to applications for authorisation to manage an AIF.

The note includes guidance on how firms should complete their submission for a VoP and advises firms to consider depositary arrangements before applying for authorisation, as the arrangements must be finalised once they are authorised as an AIFM. The note also reminds firms that if certain information is missing from the application, such as information relating to depositary arrangements, that even with authorisation, they cannot start managing the AIF in question until a month after the information is provided.

ESMA Published Revised Guidelines on Reporting Obligations

On 15 November, ESMA published a revised version of its October guidelines on reporting obligations under Articles 3(3)(d) and 24(1), (2) and (4) of the AIFMD.

The guidelines provide clarification on the information that AIFMs should report to National Competent Authorities (NCAs), the timing of such reporting, together with the procedures to be followed when AIFMs move from one reporting obligation to another. The guidelines also include: a diagram which summarises the reporting obligations of AIFMs as determined by the total value of assets under management and the nature of the AIFs managed or marketed; tables of enumerated reporting fields' values; and contents of geographical areas to be used for filing of reports.

Once the guidelines have been translated into the official EU languages, a two-month notice period will begin during which NCAs must notify ESMA whether they comply or intend to comply with the guidelines.

FCA Provides Update on the Use of Proportionality in Applying Article 15(1)

In November, the FCA published an update on how AIFMs can comply in a proportionate way with the AIFMD's requirement, under Article 15, for hierarchical and functional segregation of a firm's risk management function.

The FCA stated that it will review compliance with the requirement in accordance with the principle of proportionality set out in Article 15(1) of the AIFMD and Article 42(3) of the AIFMD level 2 regulations (231/2013). The FCA recognises that achieving functional and hierarchical separation may be disproportionate for some firms, taking into account their size, internal organisation and the nature, scale and complexity of their business. However, in order to satisfy the requirements of Article 15, an AIFM must be able to demonstrate that it has specific safeguards against conflicts of interest that allow for the independent performance of risk-management activities. The FCA will review and assess the safeguards implemented by the firm to ensure that conflicts of interest do not compromise that independence.

MiFID UPDATE

After more than two years of negotiations, a political agreement was reached on 14 January 2014 on the revision to the Markets in Financial Instruments Directive and Regulation (MiFID II / MiFIR). This development will be covered in the Q2 2014 Investment Management Regulatory Update, for the current view from Deloitte please see here.

CAPITAL REQUIREMENTS DIRECTIVE ("CRD") UPDATE

FCA Publishes Policy Statement for Investment Firms

In December, the FCA issued a policy statement setting out the final Handbook rules and guidance arising from the Capital Requirements Directive. The FCA's approach to the transposition of CRD IV has been guided by the following principles:

  • implementing the minimum level of Handbook rules required for the UK to discharge its legal duty to transpose CRD IV;
  • avoiding placing any unnecessary restrictions on firms;
  • when writing rules, using the more favourable treatment for firms under national provisions;
  • minimising the need for systems changes and as a result limiting the non-capital cost for firms; and
  • seeking to address any fundamental issues concerned with implementing a regulation for investment firms that was designed with the banking sector in mind.

The rules set out in the policy statement are primarily prudential in nature and support the FCA's statutory objective to enhance the integrity of the UK financial system. The policy statement sets out detailed guidance on proportionality for IFPRU and BIPRU firms as well as the individual CRD IV instruments including governance and remuneration.

RETAIL DISTRIBUTION REVIEW UPDATE

As the FCA communicated in the run up to Retail Distribution Review (RDR), it is continuing to conduct post implementation reviews, and in this period it has announced its latest thematic review designed to ensure that the objectives of RDR and wider market responses to RDR are operating in line with the FCA's expectations.

In December, the FCA announced that it had contacted 14 firms to seek details of their business models, product ranges, and governance and controls as part of a thematic review on non-advised and simplified advice investment sales. Following recent growth in non-advised and simplified advice investment sales, as a result of RDR, the FCA is undertaking the review to assess whether these models are delivering good outcomes for consumers. The review is also expected to assess the degree to which non-advised offerings may have the force of, or be perceived to be, a personal recommendation.

The review will be conducted during Q1 2014 and the output, anticipated to take the form of a good and poor practices paper, is expected to be published in H2 2014.

For further information, visit www.deloitte.co.uk/RDR

SHADOW BANKING

Financial Stability Board Publishes Global Shadow Banking Monitoring Report 2013

On 14 November, the Financial Stability Board (FSB) presented its latest monitoring report of the shadow banking system. The monitoring exercise examines the flow of funds from all non-bank financial intermediation at a macro-level to provide a conservative estimate of where shadow-banking related risks to the financial system could potentially arise.

The key findings from the 2013 monitoring exercise are as follows:

  • non-bank financial intermediation grew $5 trillion in 2012 to reach $71 trillion. Global Other Financial Intermediaries' (OFIs) assets represent 24% of total financial assets;
  • by absolute size, advanced economies remain the ones with the largest non-bank financial systems;
  • OFI assets grew by 8.1% in 2012, helped by a general increase in the valuation of global financial markets, while bank assets remained relatively stable as valuation effects were counterbalanced by shrinking balance sheets;
  • emerging markets showed the most rapid increases in non-bank financial system assets. Four emerging market jurisdictions had growth of over 20%, although this is from a relatively small existing base; and
  • the OFI sub-sectors that showed the most growth in 2012 were real estate investment trusts (REITs) and funds (+30%), other investment funds (+16%) and hedge funds (+11%).

Going forward, the FSB intends to improve its monitoring exercise by encouraging jurisdictions to resolve identified gaps and data inconsistencies as well as by improving the level of data availability and granularity.

OTHER DEVELOPMENTS IN THE INVESTMENT MANAGEMENT SECTOR

ESAs Publish Joint Position on Product Governance and Oversight Arrangements

The Joint Committee of the European Supervisory Authorities (ESAs) have produced a set of high level principles for product oversight and governance processes within financial institutions. The principles are as follows:

  • product manufacturers should establish, implement and review on an ongoing basis product governance processes that seek to minimise consumer detriment, avoid potential conflicts of interest and take into account the interests of target markets;
  • the manufacturer's executive board should endorse the product oversight and governance processes, and senior management should be given responsibility for ensuring compliance with those processes;
  • part of the oversight and governance processes should include steps to identify the target market, assess its characteristics and ensure the product meets the identified objectives and interests of the target market;
  • manufacturers should conduct product testing, including stress testing, to assess how the product would function in different scenarios;
  • when setting the charges and features of products, the manufacturer should take steps to ensure they are transparent to the target market;
  • the manufacturer should select distribution channels that are appropriate for the target market and provide clear information to distributors; and
  • the manufacturer should periodically monitor the functioning and operation of the product to ensure it continues to meet the objectives of the target market;
  • the manufacturer should take appropriate action when issues that may lead to consumer detriment have materialised or can be reasonably anticipated.

The above principles set out the ESAs' general view of product oversight and governance requirements, and the individual authorities will be conducting work to develop more specific rules and requirements.

FCA Consults on Use of Dealing Commission Rules for Investment Managers

On 25 November, the FCA released the consultation paper CP13/17 - Use of dealing commission. The paper sets out the regulator's proposed changes to the current dealing commission rules within the Conduct of Business Sourcebook (COBS). The changes aim to help ensure that investment managers make appropriate judgements and control costs on behalf of clients when using dealing commission to pay for goods and services. The consultation paper builds on the wider communication on reforming the use of dealing commission by Martin Wheatley at the FCA's asset management conference in October 2013 (summarised above).

The regulator has communicated that these changes are important due to the fact that there remains some doubt about aspects of COBS 11.6, which in part has allowed investment managers to make judgements on what can be purchased with dealing commission. The proposed changes to the current dealing commission rules include:

  • clarifying the provisions in COBS 11.6.5E that set out the criteria determining the characteristics of exempt research and creating a presumption that a good or service is not exempt research where the criteria are not met;
  • defining corporate access and adding it to the list of examples of goods and services that relate to the execution of trades or the provision of research that are not exempt, and so cannot be paid for from dealing commission (COBS 11.6.8G); and
  • providing guidance on the FCA's expectations where firms purchase eligible research in a package which includes other non-eligible goods and services that cannot be paid for with dealing commissions.

The FCA has also communicated that the need to make changes to the dealing commission regime is driven by (i) findings from the recent thematic work on conflicts of interest (ii) EU negotiations on legislative changes to MiFID and (iii) to coincide with on-going work which is already occurring in the industry, including that of the Investment Management Association (IMA).

The FCA welcomes feedback on the immediate changes to the handbook by 25 February 2014. However it also requests a wider open discussion and feedback on the need for wider reforms in this area.

FCA Reports on Outsourcing in the Asset Management Industry

In November 2013, the FCA published the results of its thematic review of outsourcing in the asset management industry. The review focussed on assessing two key risks relating to the outsourcing of critical activities that have the potential to result in poor customer outcomes.

These were resilience risk arising from asset managers having inadequate contingency plans to deal with a failure of their service provider and oversight risk from asset managers failing to provide adequate oversight of their provider.

The FCA's key findings in relation to each of these risks are as follows:

  • Resilience risk: in 2012 asset managers were largely unprepared for the potential failure of providers performing critical activities, however since the publication of a Dear CEO letter in December 2012, the regulator has begun to see improvements in this area.
  • Oversight risk: the majority of firms sampled as part of the thematic review had arrangements in place to supervise their providers. However only some asset managers were able to demonstrate high levels of oversight consistently across all outsourced activities. Where oversight activity was lacking, this was largely due to insufficient internal expertise to carry out the oversight effectively.

In light of its findings the FCA has recommended that asset managers should enhance their contingency plans for the failure of a service provider, taking into account industry-led guiding principles where appropriate; and should assess the effectiveness of their oversight arrangements to ensure that sufficient internal expertise is in place.

IOSCO Publishes Report on Second Hedge Fund Survey

The IOSCO hedge fund survey is a comprehensive global effort by relevant regulators to better understand the hedge fund industry and its key measures. This international initiative aims to obtain global data on issues that were previously opaque and where data is still scarce.

Results from the IOSCO hedge fund survey, carried out with a cut-off date of September 2012, show important snap-shots of the hedge fund industry, in relation to size, strategies, leverage and market exposure, liquidity etc., in particular:

  • the hedge fund industry is still largely dominated by two jurisdictions, when considering the location of the management/advisory firm: the US and the UK;
  • the hedge fund industry remains largely off-shore when considering the domicile of the investment vehicles relative to the domicile of the manager, with the Cayman Islands dominant;
  • equity-oriented funds are still the single most represented strategy among active funds. Macro-oriented and multi-strategy funds are also significant; and
  • for those jurisdictions reporting information, when considering the effect of leverage (financial and synthetic /derivatives-based leverage), the market footprint of hedge funds proves much more significant than traditional size measures (e.g., NAV) would suggest.

The IOSCO hedge fund survey is also a key tool in helping regulators in establishing a globally coherent approach to the way they measure and identify systemic risk in this sector.

IOSCO will continue to promote the collection of comparable hedge fund data among regulators with the aim to foster an internationally consistent approach to measuring risks and to help improve data quality and reliability. In the medium term, this will help regulators to more clearly identify and consider potential global risks to the stability of the financial system. IOSCO expects the next iteration of this exercise to take place with a data collection as of September 2014.

Q4 2013 FSA ENFORCEMENT SUMMARY

There were 49 final notices published in the quarter ending 31 December 2013, with one firm being fined £105 million (before discount) for breaching Principles 2 (exercising due skill care and diligence) and 3 (management and control) of its Principles for Business in relation to its manipulation (through Management and employees) of the published JPY, USD and GBP LIBOR in order to improve the profitability of its trading positions.

In addition, a separate group of firms was fined £35,048,500 (before discount) for breaches of Principles 2 and 3 in relation to sales of protection and investment products, which were on an advised basis. Advisers' incentives at the firms included a number of higher risk features, such as variable salaries, bonus thresholds which involved disproportionate rewards for marginal sales, and an advanced payment option that could lead to bonus deficits if sales targets were not met. As a result, advisers who met sales targets qualified for substantial salary rises and bonus payments, while advisers who did not faced salary reductions.

There was also a significant bias towards sales of protection products, which was a strategic area of focus for the firms. This posed a significant risk that advisers would sell products to customers that they did not need or want, in an attempt to reach salary and bonus incentive thresholds.

In relation to action against individuals, Q4 2013 saw the FCA's publication of its decision notice on the case of an individual who held a CF10 position at an investment management firm. The FCA imposed a financial penalty of £20,000 for breaches of Principle 6 (due skill, care and diligence). The firm was censured for recklessly misleading investors when promoting bonds between November 2009 and May 2010. The individual was fined as they were aware of the issues but failed to ensure this was properly communicated to investors through amending the firm's financial promotions.

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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