UK: Financial Regulatory Developments (FReD) - 14 March 2014

Headlines

EP votes through MLD4
Treasury consults on cheque imaging
OFT updates on SME banking study
FCA makes final crowdfunding rules
FCA tells exiting CC firms to notify now
FCA publishes provisional add-on findings

UK Government and Parliament

Legislation

Consumer Credit miscellaneous changes take effect: Various changes to secondary legislation consequent on the changes to consumer credit regulation took effect on 7 March. They include:

a change to the Financial Services and Markets Act 2000 (FSMA) Exemption Order to exempt from the need for authorisation charities that operate electronic systems for lending in certain circumstances; and

changes to the FSMA (Regulated Activities) Order to ensure it complies with EU legislation in respect of credit broking activities.

(Source: Consumer Credit Miscellaneous Changes Take Effect)

Contact: Andrew Barber Emma Radmore

Bank of England (BoE)

BoE updates on fx investigation: BoE has announced the appointment of Lord Grabiner to help its investigations into activities in the foreign exchange (fx) market. (Source: BoE Updates on Fx Investigation)

Contact: Rosali Pretorius or Luca Salerno

HM Treasury (Treasury)

Treasury makes Ukraine sanctions: Treasury made two statutory instruments in respect of financial sanctions on the Ukraine. The Ukraine (European Union Financial Sanctions) Regulations 2014 were made at 11:00am on 6 March to take effect at 3:30pm on that day. They reflect the EU measures taken against certain entities and individuals in view of the Ukrainian situation. A further piece of legislation freezes in 12 overseas territories the assets of newly designated persons with effect from 7 March. (Source: Treasury Makes Ukraine Sanctions

Contact: Howard Cohen or Emma Radmore

Treasury consults on cheque imaging: Treasury is consulting on how to speed up cheque payments by proposing legislation that will allow UK banks and building societies to introduce cheque imaging. The proposal is that if customers can take pictures of cheques on a smartphone and pay them in using their mobile banking app, this will overcome many of the current challenges. Legislation will need to remove the right of the paying bank to demand delivery of the original cheque. Although there will be no "electronic cheque", and cheques must still be written on proper cheque books or other agreed forms, the certified, digital image of the cheque will be the equivalent to the paper cheque for presentation purposes. The Government stresses the new law will not force any bank or building society to start capturing images if they do not wish to, and that it expects traditional paying in services to continue. Treasury is consulting on the options for implementation, ranging from a dual approach whereby banks would move at their own speed, or an approach that would move all banks to a single central infrastructure. It also asks whether the new rules should apply in principle to all paper instruments. Finally, the paper considers security and fraud issues, and proposes that liability for payment for undetected fraud should be with the collecting bank. Treasury asks for comment by 7 April. (Source: Treasury Consults on Cheque Imaging)

Contact: Andrew Barber or Emma Radmore

Office of Fair Trading (OFT)

OFT updates on SME banking study: OFT has updated on its market study into banking services for small and medium-sized enterprises (SME). It also confirmed the Competition and Markets Authority (CMA) will complete the study as part of a wider examination of competition in retail banking. OFT has noted concerns that the market is concentrated on a small number of banks, and that SMEs find it hard to differentiate between providers. It is also worried about barriers to entering the market. While its study is not complete, it is investigating further allegations that banks are hindering SMEs from seeking alternative finance by, for example, delaying the waiving of security or the release of documentation. It has also noted some banks may not be complying with undertakings they gave the Competition Commission some years ago that they would not require SMEs taking out business loans also to open current accounts. (Source: OFT Updates on SME Banking Study)

Contact: Andrew Barber or Josie Day

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

FCA makes final crowdfunding rules: FCA has made its final rules on crowdfunding following its consultation. It has taken forward most of its proposals and made changes to several parts of its rules to bring in new requirements for loan- and investment-based crowdfunding. Key changes, which will take effect from 1 April, with the benefit of various transitional provisions, include:

  • to the Senior Management Arrangements, Systems and Controls Sourcebook (SYSC) to require operators of electronic systems in relation to lending to have in place plans to ensure the P2P arrangements they facilitate can continue should the operator cease business;
  • to the Interim Prudential Sourcebook for Investment Business (IPRU(INV)) to set out the financial resources requirement for operators of electronic systems in relation to lending. Following responses to consultation, FCA has allowed a transitional period for firms to build up their financial resources and has also made some changes to the methods of calculation which will result in a lower requirement than originally proposed for some operators; 
  • to the Conduct of Business Sourcebook (COBS) to prohibit the communication or approval of a direct-offer financial promotion relating to a non-readily realisable security to a retail client unless certain conditions apply. The conditions are based on the client being a sophisticated, high net worth or restricted investor. Further amendments set out information firms must provide on the nature and risks of P2P agreements; 
  • to the Client Assets Sourcebook (CASS) to apply chapters 7 and 7A to operators of electronic platforms in relation to lending; and
  • to the Supervision Manual (SUP) in relation to reporting of data items.

Most of the new rules relating to loan-based crowdfunding will not apply while the operator firm in question has only an interim permission. (Source: FCA Makes Final Crowdfunding Rules

Contact: Emma Radmore or Josie Day

FCA to start debt collection review: FCA has announced it will start an in-depth thematic review of how payday lenders and other high-cost short-term lenders collect debts and manage borrowers in arrears. The review will start as soon as FCA takes over responsibility for regulation of consumer credit. FCA has also said that payday lenders will be one of the groups that will first have to seek full FCA authorisation and it expects around a quarter of these firms will decide they cannot meet FCA's consumer protection standards and will have to leave the market. (Source: FCA to Start Debt Collection Review)

Contact: Andrew Barber or Howard Cohen

FCA tells exiting CC firms to notify now: FCA has published details of why, and how, firms that currently hold a consumer credit (CC) licence but are not applying for interim permission must tell it how they plan to exit the market. It will publish a list of all firms that hold licences but not interim permissions, so firms that do not wish to be on the list because they have an orderly exit plan must notify FCA. (Source: FCA Tells Exiting CC Firms to Notify Now)

Contact: Andrew Barber or Emma Radmore

FCA publishes provisional add-on findings: FCA has published the provisional findings of its market study on general insurance add-ons. It has concerns that its study has borne out that:

  • the add-on mechanism affects consumer behaviour and whether consumers make good decisions;
  • the add-on channel gives the primary product provider with a clear point of sale advantage;
  • restricted competition would result in high mark-ups or lower-quality products; and
  • consumers risk buying inappropriate products or receive poor value for money, or both.

FCA wants to remedy these consumer disadvantages by:

  • imposing a deferred opt-in on sales of guaranteed asset protection (GAP) so the add-on cannot be bought at the time of car or car finance purchase, and mandating that the consumer must also receive information about alternatives whenever the product is offered at point of sale;
  • banning pre-ticked boxes (opt-outs) for the sale of add-ons;
  • making firms publish claims ratios; and
  • improving how add-ons are presented on comparison websites.

It asks for comments by 8 April. (Source: FCA Publishes Provisional Add-On Findings)

Contact: Michael Wainwright or Emma Radmore

FCA consults on miscellaneous Handbook changes: FCA's latest quarterly consultation proposes:

  • minor changes to various parts of the Handbook that impact on Alternative Investment Fund (AIF) Managers (AIFMs), UCITS managers and certain AIF depositaries. The changes will refer to appropriate ESMA guidance and make various changes to implement guidance on risk management systems, capital requirements for custodians and remuneration requirements;
  • changes to the complaints data reporting forms and to the mortgage product sales data reporting arrangements; and
  • changes to implement the Financial Policy Committee's (FCP) recommendation on interest rate stress tests for mortgages.

FCA asks for comment on the proposals by 4 April and on its other proposals by 6 May. 

FCA is also consulting on changes to adviser and consultancy charging reporting, again to make its expectations clearer and the information it collects more valuable. It asks a number of detailed questions, some of which it asks for comments on by 7 April and the others by 6 June. (Source: FCA Consults on Miscellaneous Handbook Changes and FCA Consults on Adviser Charging Reporting Changes

Contact: Emma Radmore or Juan Jose Manchado

FCA updates forms: FCA has updated several of its Handbook forms in anticipation of its role in the regulation of credit-related regulated activities. (Source: FCA Updates Forms)

Contact: Emma Radmore or Juan Jose Manchado

Prudential Regulation Authority (PRA)

PRA tells insurers to anticipate Solvency II in capital issuance: PRA has updated its webpage on capital instruments pre-issuance notification, addressed to insurers. It reminds firms that they should anticipate the enhanced quality of capital under Solvency II when issuing or amending new instruments. (Source: Capital Instruments Pre-Issuance Notification

Contact: Michael Wainwright or Josie Day

PRA publishes statement of strategy: PRA has published a brief statement setting out its aims for 2014/15 and announcing that, to align its reporting cycle to that of the wider BoE, PRA's Annual Report and its Business Plan will be published in the summer. At that time, it will also publish revised Approach Documents to its supervision of banks and insurers. (Source: PRA Statement of Strategy

Contact: >Rosali Pretorius or Emma Radmore

PRA makes Handbook changes: PRA has made a Handbook instrument making various miscellaneous changes to its Handbook. (Source: PRA Makes Handbook Changes)

Contact: Emma Radmor or Juan Jose Manchado

Other Regulators/Authorities/Industry Associations

Association of British Insurers (ABI)

ABI consults on unit-linked funds guide: ABI is consulting on changes to its guide to good practice for unit-linked funds to address the findings of FCA's review of October 2013 into the governance of unit-linked funds. The changes cover:

  • systems and controls, specifically in respect of oversight of outsourced service providers and conflicts management; and
  • calculation of benefits.

ABI asks for comments by 28 March. (Source: ABI Consults on Unit-Linked Funds Guide Changes

Contact: Michael Wainwright or Rosali Pretorius

Basel Committee on Banking Supervision (Basel Committee)

Basel Committee publishes latest Basel III monitoring results: The results of the latest Basel III monitoring exercise show that shortfalls in Common Equity Tier 1 (CET 1) capital among large internationally active banks continue to shrink. Their average liquidity coverage ratio (LCR) has decreased. For smaller banks, there have been increases. The results are based on data as of 30 June 2013 and assume full implementation of Basel III at that point in time. EBA has also published the outcome of the exercise for European banks. (Source: Basel III Monitoring Results Published by the Basel Committee and EBA Publishes Results of the Basel III Monitoring Exercise)

Contact: Andrew Barber or Juan Jose Manchado

International Organisation of Securities Commissions (IOSCO)

IOSCO compares prudential standards in the securities sector: In response to concerns over the lack of a uniform global standard for investment firms' capital adequacy, IOSCO has published a report comparing major capital frameworks in the securities sector. It identifies key differences across jurisdictions on the:

  • scope of what constitutes regulated business;
  • approach to capturing and calibrating risks;
  • choice of a Basel-style approach or a net capital approach, and also of different definitions and carve-outs within the approach; 
  • treatment of different types of firms;
  • use of internal models, although similar mathematical foundations may be leading to convergence; and
  • treatment of risk posed by group entities, sometimes done on a group-wide basis, sometimes on a solo basis.

IOSCO asks for comments on how the findings of the report should be reflected on an updated version of the 1989 Capital Standards Report, particularly in relation to regulatory arbitrage and use of internal models. (Source: A Comparison and Analysis of Prudential Standards in the Securities Sector

Contact: Michael Wainwright or Andrew Barber

Payments Council

Payments Council confirms new mobile payments service: The Payments Council has confirmed that its new secure way for consumers to pay using only a mobile number will be called "Paym". It will announce the launch date in April, when final testing is complete. Customers of nine major bank and building society brands will be able to use the service at launch, and it will expand further later in the year. (Source: Payments Council Confirms new Mobile Payments Service)

Contact: Andrew Barber or Howard Cohen

Recent Publications

New This Week: 

The Ukraine Crisis: Will sanctions match the rhetoric?: Howard Cohen wrote a newsflash on the reality of sanctions against Ukraine.

Financial Crime

The ABC of KYC issues for Wealth ManagersEmma Radmore has written an article for Compliance Matters on the implications of a private bank's or asset-manager's duty to know its customer and the consequences if one piece of the jigsaw is missing. (March 2014)

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. (updated October 2012)

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 debtsRichard 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 AgreementsEmma 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 CrimeEmma 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)

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)

Financial Services and Markets Reform

FCA Makes Final CC Rules: We have produced a detailed summary of FCA's recent policy statement setting out the bulk of its final rules for consumer credit firms, which will apply from April 1. (March 2014)

Ten things to look out for in 2014: a year of change for the financial marketsEmma Radmore wrote an overview of recent and imminent changes affecting UK financial institutions for Financial Regulation International. (February 2014)

Regulators respond to roar of crowdfundingEmma Radmore and Juan Jose Manchado have written an article for Compliance Monitor on the FCA's views on, and proposals for the regulation of, crowdfunding. (January 2014)

Consumer Credit Regulation: Are you ready for the seismic shift?: Please contact Andrew BarberEmma Radmore or Howard Cohen if you have any questions about what you need to do to prepare for the transfer of consumer credit regulation to FCA. (October 2013)

Are you clear on EMIRRosali Pretorius and Emma Radmore have written an article for Compliance Monitor on EMIR's application and recent developments. (October 2013)

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

Mobile Network Operator BillingAndrew 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 KoppeleMarc Teitelbaum and Jerome Walker have written an update on the delay in implementing certain elements of FATCA. (July 2013)

Take aim for AIFMD implementationEmma 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

Cloudy or Clear? The Changeable Outlook for the Use of Derivatives in UCITS FundsRosali Pretorius and Josie Day wrote an article for the Global Asset Management and Service Review. (January 2013)

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

It is not a misrepresentation to state interest rate swaps carry no premium: Sam Coulthard, Richard Caird and Thomas Rocher have written an article on the summary in another swap mis-selling claim, Nextia Properties Limited v. National Westminster Bank plc and The Royal Bank of Scotland plc. (December 2013) 

Court of Appeal dismisses interest rate swap appeal: Richard Caird and Kattalin Truman have written a briefing on the Court of Appeal judgment in the appeal by Mr Green and Mr Rowley against the decision that RBS had not missold an interest rate swap. (October 2013)

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 complaintsRichard 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 ProceedingsKatharine 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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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.

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