ESMA and its impact on investor protection

ESMA and its impact on investor protection

What do the recent European Securities and Markets Authority (ESMA) updates on its Markets in Financial Instruments Directive (MIFID II) Q&A mean for investor protection? Emma Cleveland of Cleveland & Co, explains what ESMA says about algorithmic trading, commodity derivatives, and other topics in its Q&As.

What is the background to the questions answered by ESMA?

The purpose of the Q&A is to provide clarity on various investor protection-related topics with the aim of promoting a common supervisory approach and practices in the application of MiFID II (Directive 2014/65/EU)/ MiFIR (Market in Financial Instruments Regulation (EU) 600/2014).

What does ESMA say about algorithmic trading?

Where an algorithm is not behaving as expected, investment firms will be expected to have a ‘kill functionality’ which allows the firm the ability to immediately pull any or all outstanding orders from any or all trading venues. ESMA considers this an essential measure to manage risk and safeguard the orderly functioning of the market given the risks to which algorithmic trading firms are exposed.

What does ESMA say about the extension of a pre-existing MiFID I waiver to equity-like instruments?

After the date of application of MiFID II/MiFIR, equity-like instruments will be covered by MiFIR transparency provisions and can have formally approved waivers. Where a wavier is granted relating to the transparency and waiver regimes under the Markets in Financial Instruments Directive 2004/39/EC (MiFID I) to other equity-like instruments, for example Exchange Traded Fund (ETFs), depositary receipts, certificates, etc, this will be considered as granting a new waiver, and consequently that new waiver needs to go through the ESMA opinion process.

What does ESMA say about the systematic internaliser (SI) regime?

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About the author:

Meet Emma:

1.Banking and finance lawyer with experience in derivatives, debt capital markets, securitisation and structured finance in London and Paris

2.Likes ballet, playing the harp and holidays

3.Thinks the law is always changing!

Emma trained and qualified at Allen & Overy LLP and worked in their derivatives and structured finance teams in London and Paris.  She then joined the foreign exchange prime brokerage legal team at Deutsche Bank before spending 4 ½ years with Crédit Agricole CIB advising the fixed income and derivatives desk.