European Union: Proposals To Reform Law Of Limited Partnerships (Investment Management Brief: 10 May 2018)

UK REGULATORY

Proposals to reform law of limited partnerships

The Department for Business, Energy & Industrial Strategy (DBEIS) issued a consultation: Limited Partnerships: Reform of Limited Partnership Law [30.04.18] proposing changes to limited partnership regulation seeking to address misuse risk. Although the legal regime for limited partnerships was introduced in 1907, and the limited partnership remains popular, there has been little amendment of the legislation since that time.

Scottish limited partnerships have separate legal personality from their partners, so the partnerships themselves are able to own property and enter into contracts. This is the key difference between limited partnerships registered in England and Wales and Northern Ireland from those registered in Scotland. In view of the "significant increase in registrations of limited partnerships in Scotland, and allegations that Scottish limited partnerships in particular were being used for illicit purposes" according to the consultation, DBEIS published a call for evidence, which closed in March 2017. The findings supported the continuance of a limited partnership vehicle but found evidence of their misuse with the National Crime Agency identifying "a disproportionately high volume of suspected criminal activity involving Scottish limited partnerships" according to the consultation. The consultation also says that as at March 2018 there were approximately 48,000 limited partnerships registered; of which 31,000 were registered in Scotland.

The Government is now seeking views on proposals aiming to limit misuse and for aligning limited partnership law better with that of limited liability companies. The proposals relate to the life-cycle of the limited partnership throughout which, the consultation notes, the Government seeks to "deter those looking to exploit them for criminal purposes; whilst at the same time minimising any burdens to those using limited partnerships for legitimate reasons". The proposals include:

  • requiring all those that seek to register the limited partnership (presenters) to register with an anti-money laundering supervisory body and to evidence this (chapter 2);
  • ongoing connection of the limited partnership with the UK either by requiring its principal place of business (PPoB) remains in the UK or for the PPoB to be permitted to move outside of the UK while maintaining a UK service address (chapter 3);
  • increasing reporting – akin to limited company requirements (chapter 4);
  • empowering the Registrar of Companies to strike-off limited partnerships from the register, in certain circumstances (chapter 5).

The consultation seeks responses to 11 questions and closes on 23 July 2018. Contains public sector information licensed under the Open Government Licence v3.0.

Andrew Bailey's speech on "Asset Management: A Regulatory Perspective"

Andrew Bailey, FCA chief executive, gave a speech on Asset Management: A Regulatory Perspective, at the London Business School Annual Asset Management Conference [26.04.18]. Topics included:

  • The structural shift, post-financial crisis, from "intermediation of financial activity on bank balance sheets towards the non-bank sector and particularly asset management." In principle and, Bailey said he hoped, also in practice, "asset management and other investment funds can act as a shock absorber with losses being distributed across the system, and with many investors being in for the long-term and able to ride out the shock." In the context of "what could go wrong" Bailey explored "the expectations of investors on the liquidity - in this case market-based liquidity - of their investments." One influence here, he assumed, would be the structure (terms and conditions) of the fund they invested in. He highlighted:

    • open-ended funds with terms and conditions requiring them "to rebalance and reduce asset holdings in stressed conditions" can thereby exacerbate market movements by becoming "forced sellers in a falling market". This is most acute in funds with illiquid assets and "promising high frequency - even daily – redemption to investors" he said: citing the redemption suspensions by open-ended property funds after the EU referendum which the FCA reviewed noting the suspensions generally operated "without major disruption" but had "room for improvement". Read more in our earlier update;
    • exchange-traded funds: the secondary market for their shares depends on market makers and authorised participants (APs). There has not been a stress event since the rapid growth in such funds following the financial crisis, so the FCA knows "relatively little" about "the capacity and willingness of APs to execute their function in stressed conditions where they may be under pressure to tighten their own risk limits" he said. Consequences for investors could be "unexpectedly large discounts" when selling holdings and suspension of fund dealing which, as with open-ended funds, may amplify "shocks to market conditions" that are already stressed, Bailey said. The regulator cannot ignore this risk, given the recent growth of such funds, although they have "no easy way of sizing this risk" he said.

The shared feature of both types of fund is therefore the expectations investors have concerning the funds' market liquidity and "the liquidity transformation they accept" Bailey said. Accordingly, he flagged the importance that there is no "material misalignment between investor expectations and market conditions and particularly how these expectation may adjust, or not, in stressed conditions", he said. This is not a job only for regulators – and Bailey reminded firms that "first and foremost" they must "stress test their structures and responses."

  • For asset managers in the UK Bailey identified a range of challenges: notably Brexit and changing demographics. On Brexit he referred to the key issues for asset managers as being delegation, passporting and segregated accounts for EU clients. Bailey also spoke on changing demographics and the interaction with macroeconomic conditions. This is significant because it "pulls together a number of very big trends, namely an aging population, persistent very low or negative long-term real interest rates, and increased costs of care in old age, to name three". Asset managers provide a way to save for old age, so "are very much at the forefront of these issues", Bailey said. As consumer choices become more complicated and "responsibility for those choices has been increasingly transferred to consumers", so the FCA is focussing on the potentially resulting conduct issues. Increasing numbers of people approaching retirement could trigger "a shift in the balance of assets under management from accumulation-orientated products to decumulation products" he observed. Although for some time the onus has been moving towards consumers to make retirement savings choices (with the shift from defined-benefit to defined-contribution pensions, for example) the FCA now sees a similar change at the decumulation phase, where consumers have more choice over how - and when - to draw pensions. While greater choice can make sense, it "places a responsibility on industry to provide products and the regulator to establish conditions in which those choices can be made securely and confidently" Bailey said.
  • Regulatory developments - Bailey highlighted three areas – (i) the FCA's market study, conducted under its powers as a competition regulator, outlining various aspects including the FCA's findings and its actions to date (read more here in our earlier update); (ii) recent European legislation (notably MiFID II and PRIIPs); and (iii) technology.

    • MiFID II: Bailey said the FCA's priority was to implement it "in a way that did not stop the effective functioning of markets". This did not mean "disregard" for the rules Bailey said. The FCA's work to assess compliance would "allow the market time to evolve" and allow for "an adequate period of time to pass to make meaningful observations of trends and patterns."
    • PRIIPS: he noted concerns about the directly applicable regulation, citing the FCA's response in January 2018 (read more in our earlier update on the FCA's Statement on communications given concerns about KID performance scenarios). Bailey said "I want to be clear that I am concerned about PRIIPS, and I know that I am not alone." He said "it carries a risk that it is leading to literally accurate disclosure which is not providing useful context". He said there is "evidence that funds, for instance from the US, are withdrawing from Europe to avoid the burden." There is also concern around performance projections, he said, which must be taken seriously.
    • Technology: Bailey referred to straight-through deal processing (STP) and distributed ledger technology (DLT) as well as to the growing area -artificial intelligence (AI). Outsourcing administrative functions is one way asset managers seek increased efficiency and DLT may mean increased STP efficiency. The regulator, Bailey said, will be "looking at the ability of firms to oversee DLT, STP and other technology-related outsourcing arrangements effectively." He also flagged that there are "questions around accountability, if interruption to these services results in any losses for investors." The same issues of supervision and accountability would apply equally to asset managers' use of AI. Finally, the growth of online distribution and "potential channel consolidation" may reduce routes to market for asset managers. There could be a resulting change in "value chain dynamics" he said, "if online distribution is dominated by only a few online distributors" and could mean less choice of investment products for investors. The FCA will consider this area further in their platforms market study - for which the FCA expects to publish their interim report in the summer of 2018.

FCA's new London address: feedback and Change of Address Instrument published

In its Handbook Notice No. 54 [27.04.18] the FCA gives feedback on its consultation in CP18/6 (Quarterly Consultation Paper No 20 – chapter 4) [12.03.18] on the forthcoming changes to references to its London address, as the FCA is moving to 12 Endeavour Square (12DS), Stratford in the summer of 2018. The proposal in CP18/6 was to amend references to the London address in the Handbook at the same time as the FCA changes its registered address at Companies House. The FCA operates from London and Edinburgh. Currently it has two addresses in London (25 The North Colonnade (25TNC) and 1 Canada Square (1CS)): both of which will relocate to 12DS.

The FCA's feedback says all respondents asked if firms can continue to use stocks of printed materials that refer to the current address for the FCA. Additionally, among other queries, firms asked if they are required to update their customers on the FCA's change of London address and whether there would be a transitional period before being required to refer to the new London address in required disclosures, such as in COBS 61ZA.5 (Information about a firm and its services). As this is an EU provision that is directly applicable, the FCA does not have power to put in place a transitional provision: see further below.

The FCA expects firms to include the correct address for the FCA in client communications. However, recognizing that stocks of printed materials exist, the FCA said "provided that firms are actively taking steps to replace that material so as to include our new address as soon as reasonably practicable, we would take those steps into account in deciding whether it would be appropriate to take enforcement action against a firm that continues to use existing stocks of printed materials for a period of no more than 12 months after our change of registered address on 1 July 2018." Firms do not need "proactively" to notify existing customers of the change of London address the FCA said but it confirmed they expect firms to "take reasonable steps to ensure that they refer to an up-to-date address for the FCA when communicating with their customers."

The FCA said it will continue with the amendments proposed in CP18/6. In respect of COBS 6.1ZA.5 specifically the FCA is required to supervise and enforce this directly applicable EU provision so cannot put a transitional provision in place. Although the FCA recognises that firms are likely to have stocks of materials that refer to their current address, and it will have postal redirection "for a period", the FCA "would nevertheless encourage firms to update their printed materials as soon as reasonably practicable."

Following CP18/6 to reflect the London office relocation by the FCA, the Financial Conduct Authority (Change of Address Instrument) (FCA 2018/21) [27.04.18] changes various sections of the FCA's Handbook (including GEN, MAR and SUP) and material outside the Handbook (in the Enforcement Guide). This instrument comes into force on 1 July 2018.

FCA publishes two Collective Investment Schemes Sourcebook (Miscellaneous Amendments) Instruments 2018

In its Handbook Notice No. 54 [27.04.18] the FCA refers to changes to COLL and to TP1 made in its COLL Sourcebook (Miscellaneous Amendments) Instrument 2018, (FCA 2018/17) ([09.04.2018]. The instrument was made following the FCA's June 2017 Consultation (CP17/18). Read more in our earlier update here. The instrument implements governance changes for authorised fund managers and technical changes on the treatment of fund investors - "authorised fund managers to focus more on their duties as agents of investors in their funds." The instrument comes into force in stages: on 1 April 2019 (Part 1 of the Annex) and on 30 September 2019 (part 2 of the Annex). Feedback was given in the separate PS18/8 (Asset Management Market Study Remedies and Changes to the Handbook). Read more here.

The COLL Sourcebook (Miscellaneous Amendments) (No 2) Instrument 2018 (FCA 2018/18) [05.04.18] changes governance requirements in COLL for authorised fund managers. These are relevant to the Senior Managers & Certification Regime following the FCA's consultation CP17/25. Feedback was published in PS18/8. The changes in this COLL (Miscellaneous Amendments) (No 2) Instrument comes into force on 30 September 2018.

FCA publishes the number of skilled persons reports it commissioned in Q4 2017/18

The FCA commissioned five skilled persons reports in Q4 2017/18 [01.05.2018]. Of these, one related to Personal Investment and one to Investment Management. Although the FCA can contract directly with the skilled person it did not do so for any of the reports. The FCA's Skilled Person Panel fourteen Lot Descriptions include client assets, governance and individual accountability, controls and risk management, business conduct, financial crime, technology and information management, threat intelligence, penetration testing and a range of prudential categories. Of the reports: one was in Lot D (conduct of business) and four in Lot E (financial crime). All the firms reported on were flexible portfolio firms.

Freedom of Information Act request shows investigations by the FCA into company directors increased

The FCA published a Freedom of Information Act 2000 (FOI5640) response to a request for information on the number of enforcement investigations it made into company directors and the FCA's internal categorisation of these. There were 21 such investigations opened in 2015; 24 in 2016 and 45 in 2017. The number of investigations in each case was calculated on a calendar year basis ignoring ongoing investigations opened in prior years. The FCA interpreted "company directors" as persons holding a CF1 (Director) function or CF2 (Non-Executive Director) function "at any point; they may not have held those functions at the time of the investigated misconduct" the FCA said. The breakdown using the FCA's internal categorisation showed the highest number of investigations in total over the three years was for Retail conduct issues (with 41 investigations launched in that 3 year period). Over the 3 year period the FCA launched a total of 17 investigations in respect of financial crime; 12 for culture/governance issues and 8 for Mis-selling. The other categories for which investigations were opened over the three years showed there were: client money/assets (1 investigation); financial promotions (5 investigations); insider dealing (3 investigations); application to revoke/vary permission or approval (1 investigation) and wholesale conduct (2 investigations).

FCA's Asset Management conference

The News and Publications section of the FCA's Regulation round-up for April 2018 contains information and booking details for the FCA's Asset Management Conference on 12 June 2018.

IRELAND - INVESTMENT FUNDS

Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2018

The long awaited Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2018 ("Bill") has now been published [30.04.18]. The Bill gives effect to the Fourth EU Money Laundering Directive (2015/849) ("4 AMLD"). The Bill also implements the most recent recommendations of the Financial Action Task Force. In line with the focus of 4 AMLD, the Bill deals with customer due diligence, placing an enhanced focus on risk assessment for financial institutions, who will be obliged to carry out business-wide and individual assessments. 4 AMLD places increased focus on understanding the beneficial ownership of customers. It sets out the meaning of 'beneficial owner' in the context of corporates, partnerships and trusts. These definitions are carried over by the Bill.

Another key provision is expanding the remit of the Financial Intelligence Unit, which receives information from designated persons regarding suspicious transactions. The Bill also expands the definition of "politically exposed person" under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, to include persons holding certain political, judicial or other offences in Ireland, as well as abroad.

GDPR and Investment Funds

With the 25 May 2018 deadline fast approaching, we will soon see substantial updates to fund documentation to reflect the General Data Protection Regulation ("GDPR"). Breaches of the forthcoming GDPR can have significant implications, including fines of up to €20 million or 4% of a firm's global turnover, whichever is higher.

Investment Funds, AIFMs and UCITS management companies are likely to be considered data controllers under GDPR. Fund administrators, distributors, investment managers and depositaries are likely to be regarded as data processors (a natural or legal person who processes personal data on behalf of the data controller) but ultimately this is a question of fact Personal data means any information relating to a data subject, who can be identified, directly or indirectly. This can include, for example, KYC documentation, share registers, and data and information on directors and employees of a management company. In the context of the investment fund industry, this means the personal data of natural investors, or officers and employees of corporate entities.

Given the extensive impact of GDPR on the funds industry, it is critical for managers to have a GDPR implementation plan both for themselves and for their funds.

Central Bank's CP86 project

As of 1 July 2018, existing fund management companies (UCITS Mancos, AIFMS, self-managed UCITS and internally managed AIFs) will be obliged to comply with their obligations under the Central Bank's CP86 project ("CP86"). The objective of CP86 was to introduce measures "designed to underpin the achievement of substantive control by fund management companies, acting on behalf of investment funds, over the activities of their delegates". These measures include delegate oversight, the streaming of UCITS and AIFMD managerial functions, residency of fund directors and board composition. The Central Bank issued a survey [08.05.2018] to existing management companies and their funds to ascertain levels of compliance.

Money Market Funds

Money market funds availing of the 6 month transition period as per the Money Market Funds Regulation (EU) 2017/1131 must submit all documents requiring review to the Central Bank no later than 1 September 2018. This will help the Central Banks ensure a decision on an authorisation application can be made by the 21 January 2019 deadline.

Further, the European Commission published a draft delegated regulation [10.04.18] setting out further requirements in relation to eligible assets under the MMFR, including details of:

  • the criteria relating to a simple, transparent and standardised securitisation or asset-banked commercial paper;
  • the quantitative and qualitative credit quality requirements for assets received as part of reverse repurchase agreements; and
  • the credit quality assessment criteria.

The European Parliament and Council of the EU will now consider the delegated regulation and will have a two-month scrutiny period within which they can object to the delegated regulation.

Fund Profile Return

The Central Bank has written to Irish fund boards to advise that it is launching an updated version of the IF Annual Sub-Fund Profile return, known as the Fund Profile return. The IF Annual Sub-Fund Profile Form is a standard form questionnaire, which each authorised sub-fund is required to complete to enable the Central Bank to gather information on items such as the investment strategy, dealing frequency and functional currency of authorised funds.

The first Fund Profile return is to be prepared for the period up to report date 30 June 2018, with a submission due date of 31 August 2018, replacing the previously scheduled filing of 30 June 2018 for report date 31 December 2017. This 30 June 2018 return is applicable to all sub-funds authorised by the Central Bank as at 30 June 2018, whether they are dormant, have assets or have not launched. All sub-funds, regardless of whether the IF Annual Fund Profile return for report date 31 December 2017 has already been submitted to the ONR, will be required to submit the new updated return for report date 30 June 2018. Subsequent Fund Profile returns are to be prepared as of the annual calendar year end, i.e. for report date 31 December of the calendar year in question. These returns will also carry a submission due date of two months after the reporting date, i.e. 28 February of the following calendar year in question. As a result, in 2018 alone, in addition to the 30 June 2018 return, the Fund Profile return will be required to be submitted for report date 31 December 2018. This second return will carry a submission due date of 28 February 201

Upcoming Key Dates and Deadlines

  • 25 May 2018 – GDPR.
  • 29 June 2018 – CP119 consultation deadline (see further information in the previous issue of the Investment Management Brief).
  • 1 July 2018 – CP86 compliance deadline (see above).
  • 21 July 2018 and 1 September 2019 – MMFR implementation deadline, MMFR deadline (see above).
  • 31 August 2018 – Central Bank Fund profile deadline (see above).

EU REGULATORY

European Commission proposes protections for whistleblowers

The European Commission announced [23.04.18] it is proposing a new Directive strengthening the protection of whistleblowers in the EU. The proposed Directive would "guarantee a high level of protection for whistleblowers who report breaches of EU law by setting new, EU-wide standards" the Commission press release says. EU legislation within scope includes: financial services, money laundering, terrorist finance, environmental protection, consumer protection, data protection and network and information system security - among others. The Commission will encourage Member States to exceed the minimum standard and say in the press release: "establish comprehensive frameworks for whistleblower protection based on the same principles." All companies with more than 50 employees or annual turnover greater than €10 million are to set up an internal procedure to handle whistleblowers' reports and need to designate a person or department to receive and follow-up on such reports. Although small and micro-companies are exempt from doing so, the exemption does not extend to such companies operating in financial services. The protections proposed include:

  • relevant companies setting up reporting channels within their organisation, ensuring confidentiality of the whistleblower's identity;
  • three tier reporting envisaged: with internal reporting channels required for relevant companies and the public sector; external reporting channels to Member States' national authorities; and, in certain circumstances as a last resort, by disclosing to the public (including to the media);
  • there would be a three month period for companies to respond to whistleblowers' reports which also applies to authorities but extended in complex cases to six months; and
  • preventing all types of retaliation against, and effective protection of, whistleblowers.

The proposal aims to protect responsible whistleblowing genuinely intended to protect public interests, so it has "safeguards to discourage malicious or abusive reports and prevent unjustified reputational damage", according to the Commission's press release. Those affected by the whistleblower's report are to be presumed innocent and would have the right to an effective remedy, fair trail and defence. Members States would be required to introduce dissuasive penalties for malicious reporting or disclosure. The Commission notes in its press release that "only 10 EU Member States currently ensure that whistleblowers are fully protected. In the remaining countries, the protection granted is partial and only applies to the specific sectors or categories of employee." The Commission's Frequently Asked Questions point out that while there are "elements of whistleblower protection" in some areas (including financial services) under EU instruments "uneven protection of whistleblowers across the EU can undermine the level-playing field" and in cross-border cases whistleblowers "can "fall through the cracks" and suffer retaliation". Accordingly the Commission has proposed a Directive protecting persons reporting on breaches of Union law.

BREXIT

HM Treasury and European Commission request European Central Bank and Bank of England convene a risk management technical working group

HM Treasury announced [27.04.18] that it has, with the European Commission, asked the European Central Bank (ECB) and the Bank of England (BoE) "to convene a technical working group on risk management in the period around 30 March 2019 in the area of financial services" according to HM Treasury's news story. Attendance by the European Commission and HM Treasury will be as observers, other relevant authorities will to be invited on "an issue-specific basis", the new story says. The group will be chaired by the President of the ECB and the Governor of the BoE. Although the ECB and the BoE will report regularly to both the European Commission and to HM Treasury, the responsibility to prepare for Brexit "remains with market participants" the Terms of Reference say. The technical work the group does is separate to the Withdrawal Agreement negotiations and to the negotiations for the future relationship of the EU and the UK after Brexit. Contains public sector information licensed under the Open Government Licence v3.0. Read more in our coverage on Out-law here.

RECENT PINSENT MASONS PUBLICATIONS

View the latest editions of our Insurance Briefing – May 2018 and FS Enforcement Express.

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