UK: Financial Regulatory Developments (FReD) - 28 March 2014

Last Updated: 28 March 2014

UK Government and Parliament

Legislation

Treasury brings parts of Banking Reform Act into force: Treasury has made two orders bringing into force from 21 March those parts of the Financial Services (Banking Reform) Act (the Banking Reform Act) that allow the Claims Management Regulator to penalise providers of claims management services, and allow the Office for Legal Complaints to recover expenditure incurred in dealing with claims management complaints.

(Source: Banking Reform Act Commencement Order No 2 and Banking Reform Act Commencement Order No 3)

Contact: Emma Radmore or Juan Jose Manchado

National Audit Office (NAO)

NAO reports on financial services regulation: NAO has published a report on regulation of financial services and how the Prudential Regulation Authority (PRA) and FCA will need to show that they are achieving value for money for customers. It says it has found encouraging signs that judgment-led, forward-looking regulation is bedding down, but notes that both regulators have problems with staff capacity, with many high performers leaving, and significant numbers of staff with little experience of working at the regulator. It also thinks FCA could do more on performance measurement systems and PRA more on transparency. Both regulators should weigh the cost to firms of responding to new regular data requests against the use of the data.

(Source: NAO Reports on Financial Services Regulation)

Contact: Michael Wainwright or Emma Radmore

Office of Fair Trading (OFT)

OFT announces repayments for CCA breaches: OFT has announced that 17 banks and building societies are to pay over £149 million in interest and charges to nearly 500,000 customers because they failed to provide customers with certain post-contractual information under the Consumer Credit Act (CCA). Although OFT said the failings were not deliberate, lenders may not recover interest or default charges for any period during which they have not complied with relevant statutory requirements.

(Source: OFT Announces Repayments for CCA Breaches)

Contact: Andrew Barber or Howard Cohen

HM Treasury (Treasury)

Treasury Updates Sanctions: Treasury has updated the sanctions lists in relation to Ukraine and Afghanistan.
(Source: Treasury Updates Sanctions

Contact: Howard Cohen or Emma Radmore

UK and China to sign MoU on renminbi clearing and settlement: Treasury has announced that, on 31 March, the Bank of England (BoE) and the People's Bank of China will sign a Memorandum of Understanding (MoU) on their cooperation relating to renminbi clearing and settlement in London. Renminbi clearing in London would support the efficient transfer of funds within the Western time zone and give the international markets in London the confidence to expand their renminbi activities.

(Source: Chancellor Welcomes London Renminbi Clearing and Settlement Arrangements

Contact: Rosali Pretorius or Juan Jose Manchado

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

FCA publishes independent advice review findings: FCA has published a thematic review looking at whether firms that describe their services as "independent" under the post-Retail Distribution Review (RDR) rules are doing so accurately. It found that most were, but has published clarification on some common scenarios in which firms had not fully understood the rule. The guidance covers:

  • referrals to other advisers or to discretionary investment management services;
  • the need to provide advice on all investment products (or, if the adviser chooses not to do this, not to hold himself out as being independent);
  • use of panels and platforms (including the ability to advise off-panel or platform); and
  • design of model portfolios.

Following the review, FCA concluded that 12 of the 113 firms in its sample were incorrectly stating that they offered independent advice.

(Source: FCA Publishes Independent Advice Review Findings)

Contact: Michael Wainwright or Andrew Barber

FCA fines and bans for market manipulation: FCA has fined a bond trader £662,700 and banned him from the industry. It found Mark Stevenson, formerly of Credit Suisse Securities (Europe) Limited, deliberately manipulated a UK gilt on a day BoE was due to hold a round of quantitative easing (QE) involving the gilt. FCA found he had gradually increased his holding in the months running up to October 2011 in the belief its value could rise if BoE held another round of QE, and then increased it significantly the day before the confirmed announced date for the QE. When others in the market alerted BoE it decided not to buy the gilt. If it had proceeded with the purchase, Mr Stevenson would have accounted for 70% of the money allocated to QE that day. FCA found Mr Stevenson was an experienced trader who was fully aware of his actions, and was solely responsible for the abusive trading. Mr Stevenson qualified for a 30% discount for early settlement.

(Source: FCA Fines and Bans for Market Manipulation

Contact: Luca Salerno or Howard Cohen 

FCA publishes waivers: FCA has published:

  • a modification by consent of the Conduct of Business Sourcebook (COBS) in relation to voice communications and distance sales relating to open-ended investment companies; and
  • a modification by consent of COBS and the Collective Investment Schemes Sourcebook (COLL) to allow managers of non-UCITS retail schemes to choose to produce an equivalent document to the UCITS Key Investor Information document.

(Source: FCA Publishes COBS Modification and FCA Publishes COBS and COLL Modification)

Contact: Emma Radmore or Kam Dhillon

FCA publishes hedge funds survey: FCA has published its latest hedge funds survey. It notes that hedge funds are the third largest type of alternative investment after real estate and private equity. Equity strategies are currently the most popular. FCA says it will probably publish two further surveys before the reporting framework under the AIFMD supersedes them as this will provide information on similar issues.

(Source: FCA Publishes Hedge Funds Survey)

Contact: Rosali Pretorius or Kam Dhillon

FCA reminds firms on Ukraine risks: FCA has reminded firms of the continuing need to be vigilant and have in place robust systems and controls when potentially dealing with politically exposed persons (PEPs). It highlighted the recent sanctions against key PEPs in relation to Ukraine and said it expects firms to consider the impact of recent developments on their anti-money laundering systems and controls in a risk-based manner.

(Source: FCA Reminds Firms on Ukraine Risks)

Contact: Howard Cohen or Emma Radmore

FCA fines Santander for investment advice failings: FCA has fined Santander UK Plc £12,377,800 for significant failings in the way it gave investment advice. It found the firm did not:

  • ensure its advisers understood customers' circumstances, needs and risk attitude;
  • ensure customers received clear and not misleading information about products and services;
  • train its new advisers properly; or
  • monitor the quality of advice it gave.

It also found that the firm had not carried out required regular checks for its Premium Investments range of risk-rated portfolios to ensure they were still suitable for customers.

FCA took a particularly dim view of the failings given the many warnings it had given to firms about providing suitable advice and ensuring products continue to meet customers' needs. Although the firm had made improvements to its offering and carried out a mystery shopping exercise, it did not act appropriately on the findings. FCA acknowledged Santander had stopped giving financial advice in branches as soon as FCA put its concerns to the firm.

(Source: FCA Fines Santander For Investment Advice Failings)

Contact: Emma Radmore or Andrew Barber

FCA discusses role of consumer protection in the listing regime: Marc Teasdale, Head of the UK Listing Authority (UKLA), has considered in a speech FCA's consumer protection objective when operating as a primary markets regulator, particularly in the context of premium listed issuers that become eligible for an index. He rejected the idea of requiring UKLA to exclude from listing companies which might not constitute suitable investments for certain types of investor.

(Source: Consumer Protection in the Listing Regime

Contact: Emma Radmore or Kam Dhillon

Financial Ombudsman Service (FOS)

FOS publishes latest newsletter: FOS's latest newsletter focuses on "disputed transactions". FOS receives many complaints involving fraud or suspected fraud, where consumers claim a third party has used their card or payment details.

(Source: FOS Publishes Latest Newsletter)

Contact: Josie Day or Emma Radmore

Other Regulators/Authorities/Industry Associations

British Bankers' Association (BBA)

BBA comments on US approach to resolution: BBA has responded to the consultation by the Federal Deposit Insurance Corporation (FDIC) on the Single Point of Entry strategy for resolving systemically important financial institutions. Among other comments, it suggests that the US authorities explicitly provide for the recognition and facilitation of a foreign authority's resolution of a firm headquartered outside the US.

(Source: Single Point of Entry Strategy for Resolving Systemically Important Financial Institutions

Contact: Rosali Pretorius or Andrew Barber

City of London Law Society (CLLS)

CLLS responds on PRA rulebook: CLLS has responded to PRA's consultation on its rulebook. It is particularly concerned about the proposals for the "Fundamental Rules". It thinks that changing the Principles for Business is unnecessary and risks causing significant confusion amongst dual-regulated firms. It acknowledges the Principles may on occasion apply differently to these firms but thinks any modifications should be reflected in PRA guidance. On the whole, it considers many of the proposed Fundamental Rules make minor changes to the Principles for no apparent reason or benefit. It is concerned, however, at proposed Fundamental Rule 3, which it thinks is imprecise and has the potential to result in wide-ranging uncertainty.

(Source: CLLS Responds on PRA Rulebook)

Contact: Rosali Pretorius or Michael Wainwright

Joint Money Laundering Steering Group (JMLSG)

JMLSG finalises consumer credit guidance: JMLSG has finalised Chapter 11A of part 2 of its guidance. The short chapter sets out the key money laundering risks faced by those that undertake consumer credit business but who have not been regulated by FCA prior to 1 April 2014.

(Source: JMLSG Finalises Consumer Credit Guidance)

Contact: Emma Radmore or Andrew Barber

International Association of Insurance Supervisors (IAIS)

IAIS feeds back and updates on BCR: IAIS has fed back on the responses it has received to its consultation on the Basic Capital Requirements (BCR) for Global Systemically Important Insurers (G-SIIs) and published a presentation in which it updates on its development. Julian Adams, Executive Director of Insurance at PRA, also spoke this week on G-SIIs and the difficulties with regard to liability valuation that arise from different approaches to provisioning and discounting.

(Source: Financial Stability and Macroprudential Policy and Surveillance - 21 March and G-SIIs: Issues, Policies and Challenges

Contact: Michael Wainwright or Andrew Barber

International Organisation for Securities Commissions (IOSCO) 

IOSCO calls for proportionate CCP equivalence assessments: The Asia Pacific Regional Committee of IOSCO has written to the Commission to welcome the Commission's clarification, in response to previous letters, that it will conduct outcomes-based equivalence assessments of Asia Pacific central counterparties (CCPs) regulation. Nonetheless, the Committee calls for assessments that are also proportionate to the systemic risk that regulation seeks to address. Considering that Asia Pacific CCPs service EU firms on Asia Pacific markets, the Committee finds there are no risks of arbitrage or unfair advantage, and that imposing EMIR risk management requirements on them would be disproportionate.

(Source: Recognition of Asia Pacific CCPs under EMIR

Contact: Rosali Pretorius or Juan Jose Manchado

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 inClark 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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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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