UK: Financial Regulatory Developments (FReD) - 21 March 2014

Last Updated: 21 March 2014

UK Government and Parliament

Bank of England (BoE)

BoE consults on bonus clawback: BoE is consulting on how to achieve clawback of "vested remuneration". It already has powers to require firms to stop paying unvested bonuses, and now wants to further strengthen the remuneration code by requiring PRA-regulated firms to amend their employment contracts to allow vested remuneration to be clawed back if certain conditions are met. This would be if either:

  • there is reasonable evidence of employee misbehaviour or material error; or
  • the firm or business unit suffers a material financial downturn or a material failure of risk management. 

Clawback is not limited to employees who misbehave but, where a decision is based on failures of risk management or misconduct, one factor would be whether the employee could reasonably have been expected to be aware of the problem but did not address it, or was senior enough to be considered indirectly responsible or accountable for the failure. BoE wants the rules to take effect from January 2015 but they could apply to awards made but not vested before that date. Consultation closes on 13 May. (Source: BoE Consults on Bonus Clawback)

Contact: Rosali Pretorius or Michael Wainwright

BoE reports on FMI work: BoE has published its annual report on supervision of financial market infrastructures (FMI). The report focuses on work BoE has carried out to examine the key elements of Central Counterparties' (CCPs) financial risk management. It also looks at developments in retail payment systems and on its work to improve the resilience of the UK financial sector to cyber attack. (Source: BoE Reports on Infrastructures

Contact: Rosali Pretorius or Juan Jose Manchado

BoE makes new appointments: BoE has announced the appointment of Anthony Habgood as the Chairman of Court, Ben Broadbent as Deputy Governor for Monetary Policy and Nemat Shafik as Deputy Governor responsible for Markets and Banking. (Source: BoE Makes New Appointments)

Contact: Rosali Pretorius or Howard Cohen

BoE launches strategic plan: BoE has presented its strategic plan, to be implemented over the next three years, with which it seeks to take full advantage of its expanded responsibilities. Some of the major changes as regards financial regulation and supervision include the creation of:

  • a new Deputy Governor-level position for Markets and Banking, who will also hold a seat on the Financial Policy Committee (FPC). 
  • a new Financial Stability Strategy and Risk Directorate, bringing together several existing divisions from the Financial Stability Directorate and the PRA. The area will primarily serve the FPC and will co-ordinate the new annual stress tests. 
  • an Executive Director for Specialist Supervision and Regulatory Operations in the PRA, who will also be a Deputy Head of the PRA. The role will be responsible for Supervisory Oversight, Supervisory Support, the PRA Chief Operating Officer function and, through a Director of Specialist Supervision, the PRA Risk Specialists and both Banking and Insurance Prudential Supervision Support functions. It will have a secondary reporting line to the Financial Stability Risk and Strategy Directorate. 
  • a new Prudential Policy Directorate, bringing together relevant PRA and Financial Stability (FS) policy divisions. 
  • an enhanced PRA line supervision team. Expert line supervision and senior level engagement with firms will be reinforced. The Executive Director for International Banks Supervision will lead the supervision of branches and subsidiaries of overseas banks, and an Executive Director for supervision of UK deposit takers will be created.

(Source: BoE Launches Strategic Plan

Contact: Emma Radmore or Andrew Barber

HM Treasury

Treasury and banks agree simple switching information: Treasury and the Department for Business Innovation and Skills have announced an agreement with major bank current account providers as a result of which customers will more easily be able to compare accounts. The Government plans that customers should be able to upload their account usage data and on the basis of the information they provide they will have instant information showing whether switching accounts would save them money. (Source: Treasury and Banks Agree Simple Switching Information)

Contact: Andrew Barber or Josie Day

Treasury updates Ukraine sanctions: Treasury has published a notice explaining the impact of the sanctions imposed in relation to Ukraine at EU level on 17 March and which were the subject of UK legislation that took effect at 3:30pm on 18 March. (Source: Treasury Updates Ukraine Sanctions)

Contact: Howard Cohen or Emma Radmore

Treasury consults on bail-in: Treasury has published draft secondary legislation on implementing the bail-in provisions introduced in the Financial Services (Banking Reform) Act 2013. The statutory instruments are:

  • the Building Societies (Bail-in) Order;
  • the Banking Act 2009 (Restriction of Special Bail-in Provision, etc.) Order, which puts in place safeguards for set-off and netting arrangements; and
  • the Banking Act 2009 (Mandatory Compensation Arrangements Following Bail-in) Regulations, which imports the "no shareholder or creditor worse off" principle to the operation of the bail-in stabilisation tool.

Treasury asks for comments on these three draft instruments by 7 May and also on the following issues:

  • early transposition of the depositor preference provisions in the Bank Recovery and Resolution Directive (BRRD);
  • amendment of the Financial Collateral Arrangements Regulations (FCARs) to reflect BRRD in excluding from FCARs any restriction on close-out netting that results from the application of the tools made available in BRRD; and
  • applying the bail-in tool to banking group companies. 

(Source: Bail-in Powers Implementation

Contact: Rosali Pretorius or Andrew Barber

Office of Fair Trading (OFT)

OFT explains responsibility transfer: OFT has explained which bodies are taking over its current responsibilities from 1 April 2014. (Source: OFT Explains Responsibility Transfer)

Contact: Emma Radmore or Andrew Barber

Parliament

Parliament looks at CTA: The Secretary of State for the Home Department has presented a memorandum to the Home Affairs Committee on post-legislative scrutiny of the Counter-Terrorism Act 2008 (CTA). Since it took effect, the CTA has been subject to various challenges, including the challenge to the Direction made by Treasury in relation to Bank Mellat. (Source: Post-Legislative Scrutiny of CTA)

Contact: Howard Cohen or Emma Radmore

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

Up next from FCA: FCA plans a number of publications before the end of March, and then a break until May and June. Its imminent publications include policy statements on:

  • the Financial Services Compensation Scheme (FSCS) management expenses limit and FCA fees and levies policy proposals, and consultation on FCA fee rates;
  • mutuality and with-profits funds; and
  • consumer credit related amendments to the Decision Procedure and Penalties Manual and the Enforcement Guide.

(Source: Up Next From FCA)

Contact: Emma Radmore or Juan Jose Manchado

FCA fines another insurance broker for ABC failings: FCA has fined Besso Limited, an insurance broker, £315,000 for failings in its systems and controls for preventing bribery and corruption (ABC). FCA found that, from the date the firm became authorised until 2011, it operated a "weak" control environment over sharing commissions with third parties which gave rise to an unacceptable risk that some payments could have been corrupt. FCA found the firm had introduced anti-bribery policies in 2009, but these were not adequate. In particular, the firm did not carry out adequate risk assessments or due diligence on third parties, nor did it record the commercial rationale for entering into a relationship with them. It then failed to review the relationships and so could not assess whether any previous commercial rationale remained, nor did it document the ABC checks it carried out. Finally it did not monitor staff who arranged third party relationships to ensure that they carried out checks and assessed a proper commercial rationale. FCA found the firm had not improved its systems and controls until FCA had visited them twice. After that the firm instructed solicitors to review its ABC policies and acted swiftly on their recommendations. FCA is currently undertaking a review of small insurance brokers' ABC measures and is finding a number of concerns. (Source: FCA Fines Another Insurance Broker for ABC Failings)

Contact: Emma Radmore or Howard Cohen

FCA speaks on market structure: David Lawton spoke on developments and achievements from a global, EU and domestic perspective. He looked at the gradual shift in emphasis towards global priorities, but stressed there are complementary domestic measures. (Source: FCA Speaks on Market Structure)

Contact: Rosali Pretorius or Luca Salerno

FCA publishes supervision guides: FCA has published guides to supervision to help firms better understand what to expect from it. There are four guides, one for each conduct category. (Source: FCA Publishes Supervision Guides)

Contact: Emma Radmore or Josie Day

FCA and BoE update MoU: FCA and BoE, including PRA, have republished the Memorandum of Understanding (MoU) on how they co-operate when supervising FMIs. (Source: FCA and BoE Update MoU)

Contact: Rosali Pretorius or Juan Jose Manchado

FCA updates UCIS page: FCA has updated its website to focus on the marketing restrictions on promotion of unregulated collective investment schemes (UCIS) and conduct concerns its supervisory work raises. (Source: FCA Updates UCIS Page)

Contact: Emma Radmore or Kam Dhillon

FCA reminds EMIR firms of SUP reporting rules: FCA has published a note on its website reminding firms that report derivatives to TRs under EMIR that this does not replace transaction reports due to FCA. This reporting, required under Chapter 17 of the FCA Handbook Supervision Manual (SUP), applies to MiFID investment firms and investment and pension schemes managers, and needs to be effected through an Approved Reporting Mechanism (ARM). (Source: Transaction Reporting

Contact: Rosali Pretorius or Juan Jose Manchado

FCA explains regulator networks: FCA has explained how it works with other regulators in fulfilling various of its objectives. A new page on its website explains the UK Competition Network and the UK Regulators Network. It explains the members and aims of each network. (Source: FCA Explains Regulator Networks

Contact: Michael Wainwright or Juan Jose Manchado

Prudential Regulation Authority (PRA)

PRA speaks on prudential policy: Katharine Braddick has spoken on the changing face of prudential policy. She focused on the need to put in place a system that allows institutions to fail without passing the costs of failure to society. She also stressed the need to engage with behaviour of key individuals within critical institutions, including on remuneration. She spoke of PRA's support for the draft standard on material risk takers and its hope that the EU regulators will pass the standard so it can take effect. Her final theme was the report of the Parliamentary Commission on Banking Standards (PCBS) and the powers PRA gets under the Banking Reform Act. One major part of this work will be addressing the criticisms of the approved persons regime. Separately, PRA published its statement of strategy, which updates its objectives introduced by the Financial Services Act 2012 to include also the PCBS Recommendations. (Source: PRA Speaks on Prudential Policy)

Contact: Rosali Pretorius or Juan Jose Manchado

PRA consults on Solvency 2 expectations: PRA is seeking views, until 14 April, on a draft supervisory statement setting out its expectations in relation to the calculation of technical provisions and the use of internal models under Solvency 2. The new regime enters into force on 1 January 2016, and PRA expects to get, from 31 March 2015, powers to decide on firms' applications. Firms need therefore to consider PRA's expectations when preparing for the new regime. Although the statement is informed by PRA's ongoing work and covers areas where Solvency 2 allows discretion by national supervisors, it may still have to be reviewed in the light of forthcoming European delegated acts and guidelines. (Source: Solvency 2: Technical Provisions and Internal Models for Insurers

Contact: Michael Wainwright or Juan Jose Manchado 

Other Regulators/Authorities/Industry Associations

Basel Committee of Banking Supervision (Basel Committee)

Basel Committee agrees to 0% RW for Euro bail-out mechanisms: The Basel Committee has agreed that banks may apply a 0% risk weight (RW) to claims on the European Stability Mechanism (ESM) and European Financial Stability Facility (EFSF). (Source: RW for ESM and EFSF

Contact: Andrew Barber or Juan Jose Manchado

British Bankers' Association (BBA)

Industry updates on simple products: BBA, the Association of British Insurers (ABI) and the Building Societies Association have written to Treasury with an update on their progress towards implementing a simple products accreditation framework. This should be achieved by the end of 2014. The associations have chosen the Trading Standards Institute's (TSI) Consumer Codes Approval Scheme as the best option to develop the accreditation process. TSI's approach will involve producing a code suitable for simple products and monitoring delivery against standards. ABI has also already started work on a potential income replacement product, which will be consulted on in April. (Source: Simple Financial Products

Contact: Andrew Barber or Emma Radmore

City of London Law Society (CLLS)

CLLS calls for exempting corporate transactions from EMIR reporting: CLLS has published a memorandum proposing that derivatives' dominant characteristic should be taken into account when considering whether they fall within the scope of EMIR, even if they are a financial instrument for MiFID purposes. A holistic assessment of certain corporate agreements, such as employee stock options or shareholders' pre-emption rights, would show that they neither involve a redistribution and transfer of risk nor form part of a market. They should therefore not be subject to the reporting obligation in EMIR. (Source: EMIR: Reporting of Derivatives Transactions and Corporate Transactions)

Contact: Rosali Pretorius or Juan Jose Manchado

Financial Action Task Force (FATF)

Mexico to exit follow-up process: FATF has published a follow-up report of the mutual evaluation of Mexico. The report indicates that Mexico has addressed FATF's recommendations in respect of which it had been previously rated partially compliant and non-compliant. As soon as it enacts certain legislative amendments, Mexico will exit automatically the FATF follow-up process. (Source: Mutual Evaluation of Mexico: 7th Follow-up Report

Contact: Emma Radmore or Howard Cohen

International Swaps and Derivatives Association (ISDA)

ISDA publishes first clearing member reliance opinions: ISDA has published the first two clearing member reliance opinions for the principal to principal model. They cover the Cayman Islands and Denmark, and consider enforceability of close-out, set-off and default provisions of the ISDA/FOA Client Cleared OTC Derivatives Addendum in those jurisdictions. (Source: ISDA Publishes the First Clearing Member Reliance Opinions

Contact: Rosali Pretorius or Luca Salerno

Recent Publications

Financial Crime

The Ukraine Crisis: Will sanctions match the rhetoric?: Howard Cohen wrote a newsflash on the reality of sanctions against Ukraine (March 2014).

The ABC of KYC issues for Wealth Managers: Emma 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 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)

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 markets: Emma Radmore wrote an overview of recent and imminent changes affecting UK financial institutions for Financial Regulation International. (February 2014)

Regulators respond to roar of crowdfunding: Emma 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 Barber, Emma 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 EMIR: Rosali 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 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

Cloudy or Clear? The Changeable Outlook for the Use of Derivatives in UCITS Funds: Rosali 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 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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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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