European Union: FCA publishes proposed guidance on the SM&CR (Investment Management Brief: 18 October 2018)

Last Updated: 23 October 2018
Article by David Heffron, Gayle Bowen, Elizabeth Budd, Ian Warner and David Young

UK Regulatory

FCA publishes proposed guidance on the SM&CR

The Financial Conduct Authority (FCA) has published [11.10.2018] a Guidance Consultation (GC18/4) Senior Managers and Certification Regime: Proposed guidance on statements of responsibilities and responsibilities maps for FCA firms. According to the FCA, the proposed guidance aims to provide practical assistance to firms preparing Statements of Responsibilities (SoR) and Responsibilities Maps, building on the information contained in the FCA's SM&CR Guide for solo-regulated firms. The FCA's Press Release says: "The guidance aims to help all FCA firms clearly set out Senior Managers' responsibilities through SoRs. 'Enhanced' firms will also be able to use it to produce Responsibilities Maps which show how their firm is managed and governed."  The guidance applies primarily to FCA solo-regulated firms that are subject to the SM&CR, which will be extended to all FSMA authorised firms on 9 December 2019 and may be of interest also to dual regulated firms and those already within the SM&CR regime when preparing new SORs and Responsibilities Maps or reviewing old ones. The consultation will close on 10 December 2018.

FCA consults on new rules for open-ended funds that are investing in illiquid assets

The FCA is consulting on new rules and guidance aiming both to reduce the potential for harm to investors in funds holding illiquid assets and to assist in addressing financial stability concerns [08.10.2018]. According to the FCA, open-ended funds which invest in illiquid assets "can encounter difficulties if significant numbers of investors simultaneously try to withdraw their money at short notice". The EU Referendum, as an example, resulted in a number of property funds being temporarily suspended. Although the FCA "was pleased that suspensions and other liquidity management tools generally worked as they were intended to and prevented wider market disruption", the FCA considered that "improvements could be made" in relation to "the use of certain liquidity management tools, contingency planning, oversight arrangements and disclosure to retail clients."

Feedback from a subsequent discussion paper and further supervisory work "confirmed that a major overhaul of the framework was not needed" according to the FCA's Press Release, but that "improvements could be made". [Read more in our earlier update.] The FCA is consulting on measures that will require:

  • funds to suspend trading when the independent valuer expresses uncertainty about the value of 'immovables' (e.g commercial property)' accounting for a significant part of the fund's assets;
  • managers of funds investing mostly in inherently illiquid assets to produce contingency plans in case of liquidity risk crystallising;
  • depositaries to oversee the liquidity management process in these funds; and
  • more information to be disclosed about the liquidity risks within these funds, the management tools available to the fund manager, the circumstances in which they may be used their impact on investors.

In preparing and drafting these proposals, the FCA considered the responses it received on the discussion paper and the updated International Organisation of Securities Commissions Recommendations for Liquidity Risk Management for Collective Investment Schemes.

Executive Director of Strategy & Competition, Christopher Woolard, said that the FCA expected the changes to "result in fewer runs on funds holding illiquid assets, and to reduce complaints from retail invetor about perceived unfair treatment when they exit such funds."

The FCA will consider the feedback on this consultation and a Policy Statement will be published alongside the final rules and guidance in 2019. Responses to the Consultation can be made until 31 January 2019.

FCA and The Pensions Regulator to host joint TechSprint

The FCA announced [04.10.2018] that it and The Pensions Regulator are to hold a joint TechSprint in Edinburgh on 27 and 28 November 2018. The event will "challenge participants to come up with innovative approaches to help consumers engage with and navigate their pension options" the FCA said.

The FCA believe that deciding how to use pensions savings is "one of the most important financial decisions people will make", noting the pensions and retirement sector alone "provides a way for 34 million consumers to save for retirement and then convert their savings into retirement income (decumulation)" when consumers "face a range of decisions" about how to tailor their savings to meet their needs - "many struggle with the complexity of these decisions, and some end up in investments which may not be right for them" the FCA says.

This is the sixth TechSprint the FCA has hosted on what it calls "important financial services issues" and forms part of their RegTech work that included their "Call for Input" [February 2018] that sought views on how technology might make it easier for firms to meet their regulatory obligations. [Read more in our earlier update here.]

Those interested in participating in the TechSprint should email TechSprints@fca.org.uk.

FCA and Hong Kong's SFC sign a MoU on their Mutual Recognition of Funds

The Financial Conduct Authority (FCA) announced [08.10.2018] that it and the Hong Kong Securities and Futures Commission (SFC) have entered into a MoU on Mutual Recognition of Funds [insert link], allowing eligible Hong Kong public funds and UK retail funds "to be distributed in each other's market through a streamlined process", according to the FCA's press release.

Additionally, the MoU "establishes a framework for exchange of information, regular dialogue as well as regulatory cooperation" according to the FCA. The FCA's Chief Executive, Andrew Bailey, comments: "We are very pleased to have agreed this framework, which paves the way to offering consumers greater choice and diversification in their investments. It reflects the UK's commitment to open financial markets supported by effective regulation which delivers equivalent outcomes". He notes the FCA will be working closely with the SFC "both in connection with cross-border fund offering and in wider areas of mutual benefit."

FCA's October 2018 policy development update

The FCA has issued its latest policy development update [05.10.2018]. Among a range of other publications proposed the update details of the following upcoming publications that the FCA anticipates are to be published in Q2 2019:

  • CP16/17 Quarterly Consultation No. 13 [July 2016] on the Glossary definition of a new "pooled investment vehicle for the marketing restrictions on NMPIs."

The FCA is also intending to launch a review of the permitted links rules (COBS) for insurers in relation to investment in patient capital and a discussion paper on patient capital investment in authorised funds. Publication is expected in Q4 2018, with feedback in Q2 2019.

FCA's Annual Public Meeting 2018 

The FCA held its annual Public Meeting [11.09.18] and has now published the transcript. The transcript and the answers given by the FCA to the pre-submitted questions are available here.


Ireland – Investment Funds

Central Bank fund authorisation and post-authorisation changes*

The Central Bank has implemented some changes to its authorisation processes for UCITS (and also RIAIFs), which we expect will speed up the authorisation/approval process which is a very welcome development as UCITS do not currently benefit from the 24 fast track process that QIAIFs do. 

In particular, the Central Bank has indicated that it will no longer carry out a pre-review in relation to the following:

  • An update to a prospectus/supplement confined only to adding a new share class;
  • New, replacement or amendments to depositary agreements, deeds of constitution and trust deeds;
  • Where a UCITS proposes to invest in a financial index that previously required Central Bank approval, a new process will instead require only a self-certification filing (regarding the requisite conditions); and 
  • UCITS mergers will no longer be pre-reviewed and instead will be subject to the completion of a form which reflects the UCITS requirements (no new rules being added).

These changes are effective 9 October, 2018 so can be availed of from now on. Going forward, these filings will be made on a self-certification basis.

Revised Central Bank Guidance on the use of Financial Indices by UCITS

The Central Bank has issued revised guidance on the use of financial indices by UCITS. The purpose of the guidance is to clarify the Central Bank's requirements where a UCITS intends to use a financial index for investment or efficient portfolio management purposes. Further to the above, the guidance introduces a self-certification regime for those UCITS management companies or self-managed investment companies seeking to use financial indices and sets down the process relating to that certification.

Central Bank Markets Update*

Updates include but are not limited to:

  • The fifth edition of the Central Bank's investment firms Q and A, which has been updated to include question ID 1039, which relates to the scope of the term "transferable securities" and addresses circumstances where securities have restricted transferability, for example, loan notes and shares in private companies.  The response to Question ID 1039 reiterates the understanding of the term "transferable securities" set out in the European Commission's Q&A on the Markets in Financial Instruments Directive.  The response also indicates that investment firms should consider whether securities with restricted transferability are "transferable securities" for the purposes of the definition of investment instruments in Section 2 of the Investment Intermediaries Act 1995. In circumstances where investment firms are providing services in relation to securities with restrictions on transferability firms should assess on a case-by-case basis whether those securities are "transferable securities" under the European Union (Markets in Financial Instruments) Regulations 2017 or the Investment Intermediaries Act 1995.  Based on that assessment an investment firm must provide its services in compliance with the applicable regulatory requirements

Speeches*

  • A speech by Martina Kelly, head of Markets Policy Division, on the implementation of CP86 in which she highlights the role the Central Bank will take regarding the more detailed assessment on how existing firms have implemented CP86 in 2019, as well as  the organisational effectiveness function; and
  • A speech by Gerry Cross, Director of Policy and Risk within the Central Bank, at the Dublin Administration Forum, organised by Bloomberg, in which he highlights a number of issues relevant to the funds industry (including, but not limited to, Brexit,  the need for supervisory consistency, protecting the EU consumer, the CMU and innovation) under the overarching theme – fitness for the future. He also focused on the work carried out to date regarding the effectiveness of fund management governance and how this will be reviewed and improved continuously.

* Contains Irish Public Sector Information licensed under a Creative Commons Attribution 4.0 International (CC BY 4.0) licence. For further information please click here.


Brexit

HM Treasury publishes draft Brexit SI relating to MiFID II

HM Treasury has published [05.10.2018] a draft statutory instrument to amend retained EU law in relation to MiFID II. The objective is "to ensure that the UK continues to have a functioning financial services regulatory regime in any [Brexit] scenario". HM Treasury intends to lay the SI before Parliament in autumn 2018.

The draft Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 

The explanatory note to this draft SI explains that the policy approach set out in the Markets in Financial Instruments Directive (MiFID II) will not change post Brexit. To ensure the regime continues to work effectively in the UK, the SI will make amendments to the retained legislation. The amendments are in relation to the following topics:

  • Transfer of the European Securities and Markets Authority's (ESMA) functions under MiFID II to the FCA and PRA;
  • Transfer of the Commission's functions under MiFID II to HM Treasury;
  • Transferring responsibility for making Binding Technical Standards (BTS) from the European Supervisory Authorities (ESAs) to the FCA and the PRA;
  • Removing redundant provisions in respect of the relationship of UK and EEA authorities and on information sharing and cooperation requirements;
  • HM Treasury will have the Commission's function of making equivalence decisions in respect of third-country regimes;
  • Amendments to the UK's Data Reporting Services Regulations 2017 "to put in place a transitional arrangement in which EU-authorised DRSPs that meet the required conditions will be granted temporary authorisations to continue to provide data reporting services in the UK for a period of up to one year";
  • providing generally for the EU to be treated as a third country, with some exceptions such as those thatrelate to the recognition, in certain circumstances, of EU market data and instrument scopes; and
  • MiFID II transparency and transaction reporting regimes.

HM Treasury issues proposal for temporary transitional powers for financial regulators in the event of a "no-deal" Brexit

As set out in its approach document [27 June 2018] [read more in our earlier update here] HM Treasury intends, as far as practicable, to provide continuity in financial services legislation after Brexit. Accordingly, firms that are affected by any adjustments to legislation taking effect on 29 March 2019 (if there is a "no-deal" Brexit) "may need more time to adjust to some of the changes" according to the Treasury's Guidance [08.10.2018]. In this Guidance, HM Treasury sets out that it is to "ensure that the UK's regulatory regime is flexible enough to support firms as they adjust to altered regulatory requirements" if there is no implementation period. In particular, HM Treasury intends to give the UK's financial regulators - the Bank of England, Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) - powers to make transitional provisions appropriate to facilitate the adjustment of firms to the post Brexit regulatory regime.

Accordingly, HM Treasury has issued [08.10.2018] Guidance on a proposal for temporary transitional power. According to the HM Treasury Guidance it would give the UK financial regulators power "to make transitional provision by waiving or modifying firms' regulatory obligations where those obligations have changed as a result of onshoring financial services legislation." Two examples the Treasury gives are: to delay the application of onshoring changes "so that firms could comply with the pre-exit standards for a limited time after exit, rather than needing to implement the relevant onshoring changes by 29 March 2019"; and to grant transitional relief in relation to existing regulatory requirements "that would otherwise apply for the first time on exit day to a particular category of firm" - such as to firms in the temporary permissions regime. HM Treasury says in the Guidance that "The power could be used where, in the judgment of the regulators, transitional provision would be appropriate to enable firms to adjust to the post-exist regulatory framework in an orderly way".

This power will only be used in the event of a "no-deal" Brexit and will be delegated to UK's financial regulators for 2 years from exit under the European Union (Withdrawal) Act 2018. According to the HM Treasury Guidance, the UK financial regulators would issue "directions" setting out the terms of the proposed transitional relief, for example on their website; firms would not need to apply for the relief to benefit from it. The UK financial regulators would have this power available to them for 2 years from the date of the UK's exit from the EU and any transitional provision made using such power would also cease to have effect 2 years from this exit date.

As explained in the HM Treasury Guidance: the power would be available "to grant transitional relief in relation to changes under the [European Withdrawal] Act which have been make to regulatory requirements where the UK regulators are responsible for supervising compliance" and could involve:

  • PRA and FCA rules made under FSMA;
  • Onshored Binding Technical Standards (BTS);
  • Onshored EU financial services regulations or delegated regulations; and
  • Relevant UK primary or secondary legislation.

The power would not be available to alter the following:

  • Provisions that set the "regulatory perimeter" for UK financial services activity;
  • FSMA threshold conditions; and
  • Provisions outside the regulatory remit of the UK financail services regulators.

HM Treasury Guidance clarifies the proposal is to confer this power on the Bank of England, the FCA and the PRA, in a statutory instrument to be laid before Parliament in "due course".

HM Treasury publish draft Brexit SIs for investment funds and managers

HM Treasury has published [08.10.2018] two draft statutory instruments for amending retained EU law in relation to UCITS and AIFMs respectively. HM Treasury intends to lay both SIs before Parliament in autumn 2018 but notes in the explanatory notes it provided for each draft SI, that while they are intended to provide Government and stakeholders with information as to HM Treasury' proposed onshoring approach, both SIsare still "in development" so "the drafting approach, and other technical aspects of the proposal, may change before the final instrument is laid before Parliament."

Draft Alternative Investment Fund Management (Amendment) (EU Exit) Regulations 2018

This draft SI is to amend retained EU law that regulates alternative investment fund managers. The explanatory information can be found here. In summary, key areas covered in the SI are:

  • The meaning of Alternative Investment Fund (AIF): the definition under the AIFMD will be amended;
  • Disapplication of the UK's National Private Placement Regime (NPPR) information and reporting requirements for funds recognised under s. 272 of the Financial Services and Markets Act 2000 for marketing to retail investors;
  • In conjunction with the proposed temporary permissions regime [read more in our earlier udates here and here] this draft SI would require the AIFM of AIF marketed in the UK under that regime "to continue to comply with duties imposed on it in relation to a host member state by specific provisions of the AIFMD, and which were previously implemented by the home member state" according to the explanatory notes. Such AIFM would also be required to notify the FCA of certain matters;
  • Marketing third country AIFs;
  • Post Brexit marketing of new EEA AIFs;
  • Changes to reporting requirements and asset stripping restrictions for UK AIFMs (authorised by the FCA) so the portfolio company reporting requirements and asset stripping restrictions only apply to them when acquiring control of a UK company and not in respect of a EU company; and
  • Removal of provisions in legislation requiring cooperation and information sharing by UK supervisors with EU authorities, as such an arrangement will no longer be appropriate and the reciprocal obligation on EU authorities will be lost on Brexit.

Draft Collective Investment Schemes (Amendment etc) (EU Exit) Regulations 2018

This draft SI amends retained EU law regarding undertakings for collective investment in transferable securities (UCITS). The explanatory information can be found here. In summary, the amendments include:

  • Introduction of a UK UCITS regime for funds established and authorised in the UK to be labelled as "UK UCITS";
  • Ensuring continuity for investors by maintaining existing investment rules for UK UCITS;
  • Allowing the cash of a UK UCITS to continue to be booked in accounts opened with any EEA credit institution – again for ensuring continuity;
  • the "design and structure" of a temporary permissions regime for EEA UCITS (including Money Market Funds using a UCITS structure) including information provision requirements for operators of EEA UCITS within the regime, to ensure the FCA continues to receive information regarding such EEA UCITS during the temporary permissions regime;
  • Marketing EEA UCITS in the UK after Brexit;
  • Deletion of  provisions regarding cross-border mergers as they will no longer be possible post Brexit; and
  • Removal of provisions in legislation requiring UK supervisors to cooperate with and share information with EU authorities, as this will no longer be appropriate and as there will be no reciprocal obligation on EU authorities after Brexit.

HMT publishes guidance relating to regulations on the ESAs and the ESRB

HM Treasury (HMT) has published guidance [09.10.2018] setting out their approach to regulations relating to the European Supervisory Authorities (ESAs) and the European Systemic Risk Board (ESRB) following the UK's exit from the EU.

The guidance notes that the following regulations establish the ESAs and the ESRB:

  • the EBA Regulation (Regulation (EU) 1093/2010);
  • the EIOPA Regulation (Regulation (EU) 1094/2010);
  • the ESMA Regulation (Regulation (EU) 1095/2010; and
  • the ESRB Regulation (Regulation (EU) 1092/2010)

As the HM Treasury Guidance explains, these regulations are directly applicable EU law so they will become "retained EU law" under the European Union (Withdrawal) Act 2018 (Act). HM Treasury will use statutory instruments under the Act to revoke them. Although the ESAs and ESRB perform an important part in the EU's regulatory and supervisory framework for financial services, once the UK has left the EU, the UK will be outside of the EU's regulatory and supervisory framework, and the ESAs and ESRB will then no longer carry out their functions in relation to the UK. The Guidance also further confirms: "The ESA regulations include powers for the ESAs to issue guidelines and recommendations to financial services firms and market participants. It will not be necessary to transfer these guidance functions to the UK regime as the UK financial regulators can already produce guidance for UK firms and market participants." Additionally, the Guidance explains: "The guidelines and recommendations that have been produced by the ESAs are not retained EU law under the act and so will not form part of UK law after exit. However, the UK financial regulators will be able to communicate their expectations of firms and market participants in relation to EU guidelines or recommendations, as appropriate. The regulators intend to consult on their approach to EU guidelines and recommendations."

FCA publishes consultation papers in preparation for "no-deal" Brexit

The Financial Conduct Authority (FCA) has published [10.10.2018] two consultation papers setting out proposals for changes to the Handbook and Binding Technical Standards – first consultation (CPO18/28) that would apply if the UK leaves the EU without a transition period. It has also launched a consultation on the Temporary Permissions Regime for inbound firms and funds (CP18/29).

These proposals are in preparation for a scenario in which the UK leaves the EU on 29 March 2019 without an implementation period.  Nausicaa Delfas, Executive Director of International at the FCA, commented that this is to ensure "a robust regulatory regime from day one, and to ensure a smooth transition for EEA firms and funds currently passporting into the UK".

Amendments to FCA Handbook and Binding Technical Standards

The majority of amendments are consequential to those proposed under the European Union (Withdrawal) Act 2018. Amendments include:

  • Removal of references to EU institutions; and
  • Some other amendments reflecting the UK's new position outside of the EU.

The Temporary Permissions Regime

This regime will only be available if the UK leaves the EU with no implementation period from 29 March 2019. In the paper the FCA outlines details of the regime, including:

  • How the regime will work in practice;
  • How investment funds and firms can enter into the regime;
  • The duration of the regime; and
  • The rules the FCA is proposing should apply to such firms and funds while they in the regime.

The FCA will keep the consultations open until 7 December 2018 and has asked for responses from the "widest possible range of stakeholders across sectors, including industry bodies and consumer groups".


EU Regulatory

Council of the EU adopts new anti-money laundering directive

The Council of the EU has adopted [11.10.2018] a new anti-money laundering directive. According to the Council the new directive introduces new criminal law provisions blocking criminals' access to financial resources and complements the directive on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, adopted in May 2018.

The Council's press release sets out that the new rules include:

  • minimum rules on the definition of criminal offences and sanctions - Money Laundering activities will be punishable by a maximum term of imprisonment of 4 years, although judges may impose additional sanctions and measures. Aggravating circumstances will apply to cases linked to criminal organisations or for offences conducted in the exercise of certain professional activities.
  • the possibility of holding legal entities liable for certain activities with such entities then facing a range of sanctions
  • removing obstacles to cross-border judicial and police cooperation, by setting common provisions to improve investigations. In cross-border cases, the new rules clarify which member state has jurisdiction and how those member states involved cooperate.

Once the directive is published in the EU official journal, member states have up to 24 months to transpose it into national law.

ESMA updates its Q&A on commodity derivatives topics under MiFIR and MiFID II

The European Securities and Markets Authority (ESMA) published an updated version [02.10.2018] of its Q&A on commodity derivatives topics under the Markets in Financial Instruments Regulation (MiFIR) and the Markets in Financial Instruments Directive (MiFID II).

According to ESMA the updated Q&As contain:

  • updates to the ancillary activities test Q&A (Q&A 3 and 10) and deletion of one question (Q&A 13)
  • position limits and reporting: new Q&A to clarify treatment of legacy positions on Organised Trading Facilities and further types of firms are specified that must submit weekly position reports

ESMA updates its Q&A on MiFID II and MiFIR

The European Securities and Markets Authority (ESMA) published the updated version [04.10.2018] of its Q&As on: MiFID II and MiFIR market structures. According to ESMA, the updated Q&A clarify a number of areas:

  • Scope of the pre-trade transparency waiver under MiFIR Article 9(1)(c);
  • Classification of derivatives on derivatives;
  • The default liquidity status of bonds;
  • Market Making activities and incentives in stressed markets;
  • treatment of bulk quotes for calculating the Order to Trade Ratio;
  • Arranging transactions formalised on another trading venue;
  • The scope of MiFID II Article 17(6) and Delegated Regulation (EU) 2017/589 (RTS 6) Chapter IV (Articles 24-27);
  • Registering a MTF segment as an SME growth market; and
  • Maker Taker schemes.

ESMA updates Q&A on the Application of AIFMD

ESMA has updated its Q&A on the Application of the AIFMD [04.10.2018]. It has added a response to the following question:

An AIFM intends to manage an EU umbrella AIF on a cross-border basis by way of the AIF management passport (Article 33 of AIFMD). Does the AIFM have to identify all the compartments of the umbrella AIF in the notification?

The full Q&As can be found here.

ESMA updates its Q&A on investor protection and intermediaries under MiFIR and MiFID II

The European Securities and Markets Authority (ESMA) published an updated version [03.10.2018] of its Q&A on investor protection and intermediaries under the Markets in Financial Instruments Regulation (MiFIR) and the Markets in Financial Instruments Directive (MiFID II).

According to ESMA the updated Q&A contain new answers on:

  • Best execution: reporting for firms that use a venue's RFQ system to agree a trade; and
  • Independent investment advice: use of a "look-through" approach.

The Council of the European Union will not object to delegated regulations concerning the safekeeping duties of UCITS and AIF depositaries

The Council of the EU has confirmed [01.10.2018] that it will not raise an objection to a number of items including two delegated regulations in relation to the safe keeping duties of depositaries. The delegated regulations are:

  1. Commission Delegated Regulation of 12 July 2018 amending Delegated Regulation (EU) 231/2013 as regards safekeeping duties of AIF depositaries; and
  2. Commission Delegated Regulation of 12 July 2018 amending Delegated Regulation (EU) 2016/438 as regards safekeeping duties of UCITS depositaries.

Read more in our earlier update here.

Prudential supervision of investment firms: Council of the EU reports on Presidency compromise proposals

The Council of the EU has published [09.10.2018] two EC proposals relating to the prudential supervision of investment firms.

The first is a proposed directive on the prudential supervision of investment firms and amending CRD IV (Directive 2013/36/EU) and MiFID II (Directive 2014/65/EU). The proposal can be found here.

The second is a proposed regulation on the prudential requirements of investment firms and amending: the regulation on the prudential requirements for credit institutions and investment firms (Regulation (EU) No 575/2013); MiFIR (Regulation (EU) No 600/2014) and the Regulation establishing the European Banking Authority (Regulation (EU) No 1093/2010). The proposal can be found here.

EESC publishes opinion on proposals relating to cross-border distribution of collective investment funds

The European Economic and Social Committee (EESC) published [10.10.2018] an opinion on the European Commission's proposals relating to:

  • A Directive on cross-border distribution of collective investment funds amending the UCITS Directive (2009/65/EU) and the AIFMD (2011/61/EU); and
  • A Regulation on facilitating cross-border distribution of collective investment funds amending the EU VECA Regulation (No 345/2013) and the EU SEF Regulation (No 346/2013).

The EESC's comments and conclusions in their opinion include:

  • Their support for the efforts to launch all elements of the Capital Markets Union by 2019 the benefits of which they consider to include "expanding investment opportunities, streamlining the process of financial intermediation, diversifying investment and better risk management capabilities";
  • The importance of establishing a balance between investor protection and ensuring creativity for designers and distributors of investment products in the context of "opening up new opportunities for the cross-border distribution of investment funds";
  • Key regulatory barriers to distributing investment funds cross-border are "marketing requirements, regulatory fees, notification procedures and administrative requirements at national level";
  • Transparency regarding regulatory fees can accelerate the cross-border distribution of investment funds;
  • The creation of an ESMA database is welcomed but should not involve additional notification requirements for asset managers;
  • The proposal for rules on discontinuing promotion and marketing of investment funds should be optional and depend on the decision of the asset manager; and
  • More detailed rules are recommended to ensure the verification of qualifications and competence of those providing investment services.

Recent Pinsent Masons publications

Read our article on "FCA consults on 'material increase' to financial compensation" on Out-law, here.

The latest edition of our Insurance Briefing is here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

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.

By clicking Register you state you have read and agree to our Terms and Conditions