Monthly highlights: September 2020

Monthly highlights: September 2020

Welcome to this month’s highlights from the Lexis®PSL Banking & Finance team which cover the key news updates from September 2020.

Brexit

PRA sends Dear CEO letter to firms preparing for the Temporary Permissions Regime

The deputy governor for prudential regulation and CEO of the Prudential Regulation Authority (PRA), Sam Woods, has written a ‘Dear CEO’ letter to all PRA-regulated firms preparing for the end of the Brexit transition period and for entering the Temporary Permissions Regime (TPR). Woods notes that it is important that firms are operationally prepared to enter the TPR and able to meet the regulatory requirements that will apply once in it.

Source: Letter from Sam Woods ‘Temporary Permissions Regime – operational readiness’

UK deposits instrument of accession for the Hague Convention on​ Choice of Court Agreements

On 28 September 2020, the UK deposited its instrument of accession to the Hague Convention on Choice of Court Agreements.

Source: United Kingdom joins 2005 Choice of Court and 2007 Child Support Conventions

Comment—EU-UK equivalence faces death knell after Johnson’s shift

MLex: For the financial services sector, Boris Johnson’s new hard line on Brexit could end hopes of equivalence arrangements between the two sides—an outcome that would leave some firms stranded without access to each other’s markets at the turn of the year.

LIBOR and benchmarks

Working Group issues recommendations on conventions to support use of SONIA

The Working Group for Sterling Risk Free Rates has issued recommendations on conventions to support the use of SONIA in loan markets for Sterling Bilateral and Syndicated Facilities, including Multicurrency Syndicated Facilities where there is a sterling currency option. The Working Group provides recommendations in order to assist market participants who have been awaiting direction on the preferred methodology prior to commencing implementation and developing their standard product offerings.

Source: Statement on behalf of the Working Group on Sterling Risk-Free Reference Rates – Recommendations for SONIA Loan Market Conventions

Working Group on Sterling Risk-Free Reference Rates publishes August newsletter

The Working Group on Sterling Risk-Free Reference Rates (RFRWG) has published its May 2020 newsletter. The newsletter includes key milestone dates, official sector updates, market developments and key liquidity indicators. In its newsletter, the RFRWG announced that it will host a webinar for corporates on 18 September 2020 at 9 am. 'This event will equip firms with the necessary information and practical examples to support the broad-based transition away from LIBOR before end-2021'. 

Source: Working Group on Sterling Risk-Free Reference Rates publishes August newsletter

BoE publishes minutes of the Working Group on Sterling RFRs 23 June 2020 meeting

The Bank of England (BoE) has published the minutes of the Working Group on Sterling Risk-Free Reference Rates (RFRs) meeting held remotely on 23 June 2020. 

Source: The Working Group on Sterling Risk-Free Reference Rates minutes

UK Finance releases updated guide on LIBOR transition for business customers

UK Finance and the CBI have jointly published a guide for business customers with LIBOR-linked loans to help them understand the anticipated discontinuation of the benchmark rate LIBOR and what they should expect to hear from their bank or lender in the coming months. This is an updated version of UK Finance’s November 2019 guide and reflects recent developments, including updated timelines.

Source: Discontinuation of LIBOR - Guide for business customers

ESMA publishes draft RTS under the Benchmarks Regulation

The European Securities and Markets Authority (ESMA) has published draft regulatory technical standards (RTS) under the Benchmarks Regulation and in particular on expectations of administrators. ESMA will submit the final draft RTS to the European Commission by 1 October 2020, and the European Commission will approve or reject them within three months.

Source: ESMA updates regulatory technical standards (RTS) under the Benchmarks Regulation (BMR)

FCA and BoE joint statement encourages market participants to further switch to SONIA in interest rate swap markets 

The Bank of England (BoE) has published a joint statement with the Financial Conduct Authority (FCA) which states that, following close engagement with market participants, the FCA and BoE support and encourage liquidity providers in the sterling swaps market to adopt new quoting conventions for inter-dealer trading based on SONIA instead of LIBOR from 27 October 2020. The intention is to facilitate the further shift in market liquidity toward SONIA swaps, bringing benefits for a wide range of end users and other market participants as they move away from use of LIBOR.

Source: The FCA and the Bank of England encourage market participants in further switch to SONIA in interest rate swap markets

ESMA consults on fees for benchmark administrators

The European Securities and Markets Authority (ESMA) has published a consultation paper on its technical advice to the European Commission on fees for benchmark administrators under Regulation (EU) 2016/1011 (the Benchmarks Regulation). The closing date for responses is 6 November 2020. 

Source: ESMA consults on fees for benchmarks administrators

Competing LIBOR-transition proposals create more problems

As the 31 December 2021 end date for LIBOR approaches, it is becoming increasingly apparent that it will not be possible for market participants to amend all legacy contracts to add LIBOR fallback provisions or replace or ameliorate problematic fallback provisions.

Regulation for banking lawyers

Bank of England and Financial Services Act 2016 (Commencement No 6 and Transitional Provisions) (Amendment) Regulations 2020

SI 2020/929: Amendments are made to the Bank of England and Financial Services Act 2016 (Commencement No 6 and Transitional Provisions) Regulations 2019 to amend regulation 2(6), which brings into force on 9 December 2020 the employee certification provisions in relation to solo-regulated firms other than benchmark firms, to change the date to 31 March 2021. These Regulations came into force on 1 September 2020.

Source: The Bank of England and Financial Services Act 2016 (Commencement No. 6 and Transitional Provisions) (Amendment) Regulations 2020

New York Fed Request for Proposals following LIBOR transition published

The Alternative Reference Rates Committee (ARRC) of the Federal Reserve Bank of New York (New York Fed) has released a Request for Proposals, looking for one or two firms to ‘publish daily indicative spreads and, after a trigger event has occurred, static spreads and spread-adjusted fallback rates for cash products that transition away from U.S. dollar LIBOR’. The deadline for responding is 16 October 2020.

Source: ARRC Releases Request for Proposals for the Administration of Recommended Spread Adjustments and Spread-Adjusted SOFR Rates to Facilitate Contractual Fallbacks

ECB board member says EU banks need digital transformation to compete  

Pentti Hakkarainen, a member of the supervisory board of the European Central Bank (ECB), has said in a speech that banks must pursue ambitious digital transformation plans in order to adapt to long-term technological changes that will alter the way customers demand and receive financial products. In Hakkarainen’s view, this will require innovation to place the focus on the customer service experience; merely adopting advanced technologies to improve internal processes is not enough.

Source: Technology exposes banks’ vulnerabilities

Chris Woolard to leave FCA after review of unsecured credit market regulation

The Financial Conduct Authority (FCA) has announced that its interim CEO, Chris Woolard, will chair a review of the future regulation of the unsecured credit market, reporting to the FCA board. The review will concentrate on how regulation can better support a healthy unsecured lending market. Woolard will leave the FCA after the review is finished. 

Source: Christopher Woolard to chair review of unsecured credit market regulation

ECON proposes recommendations to the European Commission on digital finance

The European Parliament’s Committee on Economic and Monetary Affairs (ECON) has adopted a report with recommendations to the European Commission on emerging risks in crypto-assets and regulatory and supervisory challenges in the area of financial services, institutions and markets. The report has been tabled for consideration by the Parliament in plenary on 5 October 2020.

Source: Recommendations to the Commission on Digital Finance: emerging risks in crypto-assets - regulatory and supervisory challenges in the area of financial services, institutions and markets

Lending 

Treasury Committee calls for return to weekly Coronavirus (COVID-19) loan schemes updates

The chair of the House of Commons Treasury Committee, Mel Stride, has written to the chancellor of the exchequer, Rishi Sunak, requesting that the government return to publishing weekly updates on some of the government’s coronavirus (COVID-19) business loan schemes.

Source: Treasury Committee urges Government to publish coronavirus business loans updates more frequently

Lending schemes supporting 1.33 million businesses amid coronavirus (COVID-19)

HM Treasury has announced that 1.33 million businesses in the UK are currently being supported through coronavirus (COVID-19) lending schemes backed by the government. These schemes include the Coronavirus Business Interruption Loan Scheme, which has supported 66,600 businesses with £15.5bn in financing packages, the Bounce Back Loan Scheme, which has supported more than 1.26 million small and micro businesses, and the Coronavirus Large Business Interruption Loan, which has backed 566 larger businesses using £3.8bn in funding.

Source: Over 1.3 million businesses supported through Covid-19 lending schemes

Bank of England to consider introducing negative rates amid coronavirus (COVID-19)

The Bank of England (BoE) has confirmed that although the Monetary Policy Committee (MPC) resolved on 16 September 2020 to maintain the bank rate at 0.1%, the BoE together with the Prudential Regulation Authority are to discuss in Q4 the operational impact of introducing negative interest rates. The policy tool is being considered in light of the coronavirus (COVID-19) pandemic and the impact it has had on the economy.

Source: 16 September 2020 and 4 August 2020 

Restructuring

Virgin Atlantic—first ever Part 26A restructuring plan receives approval at sanction hearing

This case analysis looks at the first ever sanction hearing for a new Part 26A restructuring plan (or Part 26A plan or Part 26A scheme) created by the Corporate Insolvency and Governance Act 2020 (CIGA 2020). At the earlier convening hearing, Mr Justice Trower approved the convening of four classes of creditors to vote at the creditors’ meetings. The restructuring plan was subsequently approved at the four creditors’ meetings and finally sanctioned by Mr Justice Snowden today.

Re Virgin Atlantic Airways Ltd

Company – Scheme of arrangement. The applicant company's application for the sanctioning of a restructuring plan (the scheme) succeeded. The company, which was part of the Virgin Atlantic group, sought to restructure in order to deal with a liquidity crisis caused by the effects of the COVID-19 pandemic. The Chancery Division held that, in the circumstances, it would use its discretion to sanction the scheme.

High Court orders expedition to determine issues relating to a financial restructuring given insolvency alternative (McLaren Holdings Ltd v US Bank Trustees Ltd)

The High Court has expedited a trial at which it would be determined whether luxury car manufacturer McLaren Group could obtain the release of certain security for the benefit of its senior noteholders, failing which a financial restructuring which was contingent on that release could not be implemented. The court concluded that, absent determination of the proceedings within one month, McLaren Group would have no choice but to enter an insolvency process and that this justified expedition in this case. Written by Natasha Johnson and Andrew Cooke of Herbert Smith Freehills.

New protocol published for insolvency and corporate work at Central London County Court

The Courts and Tribunals Judiciary has published a new protocol for insolvency and corporate work at the Central London County Court. The new protocol applies from 7 September 2020 and replaces the previous protocol dated 24 March 2020.

Source: Protocol for Insolvency and Company Work at Central London

Insolvency Service changes phone numbers

The Insolvency Service has announced that its phone numbers changed on 1 September 2020. New phone numbers have the prefix 0300 or 0303.

Source: Our phone numbers are changing

Corporate Insolvency and Governance Act 2020—extension of temporary measures

This News Analysis summarises the changes made to certain temporary provisions introduced by the Corporate Insolvency and Governance Act 2020 (CIGA 2020).

PizzaExpress—Part 26A restructuring plan convening hearing

This case analysis looks at the court’s consideration of a Part 26A restructuring plan (or Part 26A plan or Part 26A scheme) created by the Corporate Insolvency and Governance Act 2020 (CIGA 2020) for PizzaExpress. At the convening hearing, Mr Justice Alastair Norris approved the proposed timetable and convening of three classes of plan participants to vote at the plan meetings.

Corporate Insolvency and Governance Act 2020 (Coronavirus) (Early Termination of Certain Temporary Provisions) Regulations 2020

SI 2020/1031: These Regulations update the law relating to insolvency in Great Britain by prolonging the period within which certain temporary provisions in the Corporate Insolvency and Governance Act 2020 (CIGA 2020) are to have effect. The Regulations will come into force on 29 September 2020.

Source: The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2020

Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2020

SI 2020/1031: These Regulations update the law relating to insolvency in Great Britain by prolonging the period within which certain temporary provisions in the Corporate Insolvency and Governance Act 2020 (CIGA 2020) are to have effect. The Regulations will come into force on 29 September 2020.

Source: The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2020

Government extends insolvency measures to protect businesses amid coronavirus (COVID-19)

The government has announced that the measures put in place to protect businesses from insolvency will be extended to continue giving businesses 'the much-needed breathing space during the coronavirus (COVID-19) pandemic'. A number of changes to protect businesses from insolvency were 'introduced in the Corporate Insolvency and Governance Act and were due to expire on 30 September 2020'. The Business Minister Lord Callanan, said: 'We are now extending these important and necessary measures to protect companies from insolvency. Through this measure, we want to ensure businesses are able to not only come through this testing period, but also to plan, adapt and build back better'.

Source: Government gives businesses much-needed breathing space with extension of insolvency measures

Re Codere Finance 2 (UK) Ltd

Company – Scheme of arrangement. Codere Finance 2 (UK) Ltd (the company) successfully applied for an order convening a single meeting of certain of its creditors (Scheme creditors) for the purpose of considering, and if thought fit approving, a scheme of arrangement under Pt 26 of the Companies Act 2006 (the Scheme). In granting the company's application, the Chancery Division held that the differences between the rights of the ad hoc committee of Scheme creditors and other Scheme creditors were not so great that all existing note holders could not consult together with a view to their common interest.

Sustainable finance

FMLC responds to ESA consultation on ESG disclosures

The Financial Markets Law Committee (FMLC) has responded to the joint consultation paper of the European Supervisory Authorities (ESA) on proposed regulatory technical standards (RTS) for environmental, social and governance (ESG) disclosures.

Source: Response to ESAs’ Joint Consultation Paper: ESG disclosures: 1 September 2020

Green investment group set up to steer industry guidance

Law360, London: Twelve investment consultancy businesses said on 7 September 2020 that they have set up a group focused on improving guidance on sustainable finance and how to boost engagement with regulators on green matters.

Economic Secretary speaks on sustainability and responsible investment

The Economic Secretary to the Treasury, John Glen, has delivered a speech on sustainability and responsible investment (SRI). In a virtual meeting with the Investment Association, Glen spoke about the opportunity to extend the UK’s leadership in responsible investing and to strengthen the UK’s position as a leading global financial center.  In his speech, Glen discussed the UK investment management sector, the importance of sustainability and responsible investing (noting that the investment management sector’s work in this area will be particularly important as the UK looks to deepen its relationship with international partners and strengthen its position as a leading global financial hub) and how HM Treasury (HMT) is supporting the SRI agenda and sustainability more broadly.

Source: John Glen addresses Investment Association on Sustainability and Responsible Investment

FSB announces extension to implementation timelines for securities financing transactions 

The Financial Stability Board (FSB) has announced extensions to the implementation timelines for minimum haircut standards for non-centrally cleared securities financing transactions (SFTs), to ease operational burdens on market participants and authorities, and thereby assist them in focusing on priorities from the impact of coronavirus COVID-19.

Source: FSB extends implementation timelines for securities financing transactions

EBA questionnaire seeks information on institutions’ ESG disclosures

The European Banking Authority (EBA) has prepared a questionnaire to collect information on institutions’ current practices regarding environmental, social and governance (ESG) disclosures, and on the classifications and metrics currently in use, and on their view on how Pillar 3 disclosures should be implemented and interact with other disclosure frameworks. 

Source: Survey: Pillar 3 disclosures on ESG risks under Article 449a CRR

SMSG calls for iterative, aligned approach to ESG disclosures

The Securities and Markets Stakeholder Group (SMSG) has issued advice to the European Supervisory Authorities (ESAs) on their joint consultation paper on draft regulatory technical standards (RTS) with regard to environmental, social and corporate governance (ESG) disclosures pursuant to the Sustainable Finance Disclosure Regulation (EU) 2019/2088 (SFDR). The SMSG calls for more alignment between the the SFDR and other legislation, in particular the Non-Financial Reporting Directive (NFRD) and the Taxonomy Regulation.

Source: ADVICE TO THE ESAS

Debt capital markets 

ECB officials say coronavirus (COVID-19) is a ‘wake-up call’ for CMU  

The vice-president of the European Central Bank (ECB), Luis de Guindos, and Fabio Panetta and Isabel Schnabel, members of the ECB’s executive board, have written a blog post in which they say that the coronavirus (COVID-19) crisis has made capital markets union (CMU) more important than ever, in order to finance the post-crisis recovery. However, they acknowledge that progress on the CMU has slowed, and they call for an ambitious agenda to take the project forward.

Source: Europe needs a fully fledged capital markets union – now more than ever

ICMA publishes briefing note on CSDR mandatory buy-ins

The International Capital Market Association (ICMA) has published a briefing note on Central Securities Depositories Regulation (CSDR) (Regulation (EU) 909/2014) mandatory buy-ins and the requirement to appoint a buy-in agent.

Source: ICMA publishes a briefing note on CSDR mandatory buy-ins and the requirement to appoint a buy-in agent

ICMA publishes paper on transparency and liquidity in European bond markets

The International Capital Market Association (ICMA) has published a discussion paper on transparency and liquidity in the European bond markets. The paper addresses the ‘ongoing parallel discussion on the issue of transparency in the European bond markets’ on the subjects of bond market liquidity and the design and implementation of the European transparency framework for bonds. The paper endeavours to ‘to pull those two workstreams together’ in an effort to ‘explain how bond market structure and dynamics are very different to those of equity markets’.

Source: ICMA publishes discussion paper on Transparency and liquidity in the European bond markets

ECON adopts report on the future of capital markets union

The European Parliament’s Committee on Economic and Monetary Affairs (ECON) has adopted a report on further development of the capital markets union (CMU), improving access to capital market finance, in particular by SMEs, and further enabling retail investor participation. The report has been tabled for consideration by the Parliament in plenary on 5 October 2020.

Source: Report on further development of the capital markets union (CMU): improving access to capital market finance, in particular by SMEs, and further enabling retail investor participation

ESMA publishes statement on the applicability of Level 3 guidance published under the Prospectus Directive

The European Securities and Markets Authority (ESMA) has issued a public statement concerning the applicability of Level 3 guidance published under the Prospectus Directive. It contains an update of the status of the Q&As and the Committee of European Securities Regulators (CESR) recommendations relating to specialist issuers. 

Source: ESMA publishes a statement concerning the applicability of Level 3 guidance published under the Prospectus Directive

ESMA prospectus activity report finds continued decline in prospectus approvals

The European Securities and Markets Authority (ESMA) has published its annual report on EEA prospectus activity. The report found that in 2019 the number of prospectus approvals across the EEA decreased from 3,390 to 3,113, continuing the downward trend from the 2008 financial crisis. ESMA makes prospectus data available to ‘provide information about trends in general prospectus approval statistics and passporting activity, as well as trends concerning the structure of approved prospectuses and the types of securities they cover.’

Source: ESMA reports decrease in prospectus activity for 2019

ICMA updates Guide to Best Practice in the European Repo Market

The International Capital Market Association (ICMA) has updated its ‘Guide to Best Practice in the European Repo Market,’ which offers recommended practices, conventions and clarifications aimed at supporting the trading and settlement of repos. The update incorporates new guidelines which aim to address problems since the previous update in December 2018, such as ‘best practices for the termination of open repos late in the day, the calculation of transaction exposure for forward dated trades, and defining stale prices’. The guide will continue to be reviewed and updated.

Source: ICMA publishes updated Guide to Best Practice in the European Repo Market

Commission publishes new CMU action plan

The European Commission has published a new action plan to boost the EU's capital markets union (CMU) over the coming years, saying ensuring access to market financing will be crucial to ensure that Europe recovers from the economic crisis caused by the coronavirus (COVID-19) pandemic. 

Source: Capital Markets Union: Commission to boost Europe's capital markets

Trade finance

Coronavirus (COVID-19)—ICC launches new advisory group on trade finance

The International Chamber of Commerce (ICC) has created a new advisory group on trade finance (AFT) to inform policy reforms and interventions to prime the trade credit ecosystem to generate rapid economic recovery following the coronavirus (COVID-19) pandemic. The AFT will build awareness of the importance of trade financing to a post-pandemic recovery by providing strategic insights and by leading external engagement. It will also inform interventions from governments and multilateral institutions to mitigate risks of short-term credit shortages affecting small and medium-sized enterprises (SMEs) and will provide thought leadership, data and strategic guidance to overcome trade financing gaps, especially in emerging markets.

Source: ICC launches high-level advisory group to prime trade finance to power COVID-19 recovery

Derivatives

ISDA publishes SIMM Methodology document version 2.3 

The International Swaps and Derivatives Association (ISDA) has published the SIMM Methodology document, version 2.3, which will effective from December 5 2020. This version of SIMM includes updates based on 'the full recalibration and industry backtesting of the methodology'.

Source: ISDA Publishes ISDA SIMM v2.3

ISDA announces voluntary self-disclosure exercise ahead of IM phases 5 and 6

The International Swaps and Derivatives Association (ISDA) has announced that it is holding a voluntary self-disclosure exercise, in order to help the industry be best prepared for phase 5 and 6 of the Initial Margin (IM) requirements. Phase 5 is effective from 1 September 2021 and phase 6 from 1 September 2022. The exercise will be similar to previous ISDA-facilitated multi-lateral disclosure exercises for phases 1–5, but phase 5 thresholds have been adjusted along with the addition of phase 6. ISDA encourages participation by parties that previously disclosed, but which have had a change or addition to their disclosure information, as well as parties who have not participated previously.

Source: ISDA Self-Disclosure Exercise for Regulatory IM Phases 5 and 6

ISDA views India’s netting legislation as ‘huge achievement’

The International Swaps and Derivatives Association (ISDA) Chief Executive Officer Scott O'Malia has commented on netting success in India in ISDA’s derivatiViews series. India has passed legislation to ensure the enforceability of close-out netting, following collaboration with ISDA. ISDA believes implementing legislation bolsters the safety and efficiency of a country’s derivatives market and views the passing of the bill as a ‘huge achievement’.

Source: Netting Success in India

Entities urged to prepare for 2021 and 2022 initial margin implementation

The International Swaps and Derivatives Association Chief Executive Officer, Scott O’Malia, has commented on the decision not to extend the initial margin requirements to a new group of market participants in 2020 due to the coronavirus (COVID-19) pandemic. Although the phase-five implementation deadline is now 1 September 2021, O’Malia states that ‘this will be the most demanding phase yet, with an estimated 314 entities…set to be affected at the same time.’ He stresses that to get ready for these requirements, some stages must be completed before the implementation deadline, indicating that negotiation of custodian and trading documents is ‘likely to be the most time-consuming and resource-intensive process of all’. 

Source: Don’t Waste the Extra Time for IM Prep

ISDA publishes letter and article on fallbacks timetable for derivatives referencing key IBORs

The International Swaps and Derivatives Association (ISDA) has published an article by its CEO Scott O'Malia on the fallbacks timetable for derivatives referencing key interbank offered rates (IBORs). It has also published a letter ISDA sent to the Bank of England and the Federal Reserve Bank of New York on the forthcoming launch of the IBOR Fallbacks Protocol and the IBOR Fallbacks Supplement to implement the new fallbacks for legacy and new derivative contracts, respectively.

Source: Updating the Fallbacks Timetable

Regulation for derivatives lawyers

ESMA announces CCP, data and investment management committee appointments

The European Securities and Markets Authority (ESMA) has appointed the chair and independent members of the central counterparty (CCP) supervisory committee, and reappointed the chairs of its data and investment management standing committees.

Source: ESMA appoints chair and independent members of the CCP supervisory committee

Margin requirements for non-centrally cleared derivatives issued by BIS

The Bank for International Settlements (BIS) has detailed the margin requirements for non-centrally cleared derivatives in a newly published executive summary. In addition to noting the margin requirements, the summary document explains the scope of coverage—instruments and entities and phase-in schedule. For initial margin the final implementation phase will take place on 1 September 2022. 

Source: Margin requirements for non-centrally cleared derivatives - Executive Summary

FIA President welcomes Commission's decision on UK CCP temporary recognition

The Futures Industry Association (FIA) President and CEO, Walt Lukken, has welcomed the European Commission's and European Securities and Markets Authority's decision to 'formally grant temporary equivalence and recognition for clearinghouses based in the UK, which allow them to continue to provide clearing services in the EU at the end of the transition period between the EU and the UK.'

Source: FIA welcomes the decisions by EC on time-limited equivalence and ESMA on UK CCP temporary recognition

HoC European Scrutiny Committee letter on EU supervision of CCPs under EMIR 2.2

House of Commons European Scrutiny Committee member Sir William Cash MP has written a letter to the economic secretary to HM Treasury, John Glen, on EU supervision of UK central counterparties (CCPs) under EMIR 2.2. In particular, Cash asks for clarification from HM Treasury on whether the UK government, as part of its equivalence discussions with the European Commission, has agreed to regulatory alignment under EMIR 2.2 after the end of the Brexit transition period. A response is requested by 16 October 2020. 

Source: EU supervision of UK Central Counterparties (EMIR 2.2) (update)

Council publishes financial services legislative progress information 

The General Secretariat of the Council of the EU has published information to delegations on the progress and status of EU financial services legislative files.

Source: Progress on financial services legislative files

ESMA consults on MiFID II OTF regime

The European Securities and Markets Authority (ESMA) has published a consultation paper on the functioning of Organised Trading Facilities (OTFs). The consultation relates to the review report which the European Commission is required to present on the functioning of OTFs under Article 90(1)(a) of the Markets in Financial Instruments Directive 2014/65/EU (MiFID II). Responses should be submitted by 25 November 2020.

Source: ESMA consults on OTF regime

LEI ROC confirmed as international governance body for OTC derivatives identifiers

The Financial Stability Board (FSB) has confirmed the Regulatory Oversight Committee (ROC) of the global Legal Entity Identifier (LEI) system as the international governance body (IGB) for the globally harmonised identifiers used to track over-the-counter (OTC) derivatives transactions.

Source: LEI ROC to become governance body for OTC derivatives identifiers

Commission publishes annual report on EMIR central clearing exemption for pension scheme arrangements

The European Commission’s annual report to the European Parliament and the Council under Article 85(2) of Regulation (EU) No 648/2012 on over-the-counter (OTC) derivatives, central counterparties (CCPs) and trade repositories (EMIR), as amended by Regulation (EU) No 834/2019 (EMIR Refit) has been published. The report relates to the temporary exemption from the central clearing obligation (and the associated requirement for cash variation margin) for pension scheme arrangements (PSAs). This exemption is intended to allow time to find a suitable technical solution which would allow central clearing at CCPs for PSAs while avoiding adverse effects for pensioners. 

Source: Report from the Commission to the European Parliament and the Counci

Real estate finance

Government extends eviction ban for commercial tenants amid coronavirus (COVID-19)

The Ministry of Housing, Communities & Local Government has announced that commercial tenants will be protected from eviction until the end of 2020 in an effort to help businesses protect jobs amid the coronavirus (COVID-19) pandemic. The government will also extend the restriction on landlords using Commercial Rents Arrears Recovery to enforce unpaid rent on commercial leases during 2020. In addition, the government is making available £160bn in funding to support businesses struggling the most during the pandemic.

Source: Government extends support to stop business evictions this year

Quasi-security

KfW (a German public law institution) and another v Singal

Guarantee – Enforcement. The claimants successfully applied for summary judgment in respect of claims under three Guarantee and Indemnity Agreements, given by the defendant in respect of sums advanced by the claimants under individual loan agreements entered into with an Indian company (BPSL) of which the defendant had been, at the relevant times, the Chairman and Managing Director. In allowing the application, the Commercial Court held that the relevant clauses in each of the Guarantees had been breached when BPSL had failed to pay sums due. Further, the defendant had no real prospect of successfully defending the claim.

Shipping finance

Judgment Alert: K Line Pte Ltd v Priminds Shipping (HK) Co., Ltd

The judgment in the case of K Line Pte Ltd v Priminds Shipping (HK) Co., Ltd has been published to Lexis®Library.

Securitisation and structured products

AFME publishes securitisation data report for Q2 2020

The Association for Financial Markets in Europe (AFME) has published its Q2 2020 securitisation data report. Among the main findings are that in Q2 2020, €49.2bn of securitised product was issued in Europe, an increase of 63.6% from Q1 2020 and a decrease of 18.9% from Q2 2019. Of the €49.2bn issued, €14.1bn was placed, representing 28.6% of issuance, compared to the 71.1% of issuance in Q4 2019 and the 45.6% of issuance in Q1 2019.

Source: AFME Securitisation Data Report Q2 2020

ICMA ERCC issues fourth edition of its SFTR recommendations 

The International Capital Markets Association (ICMA) European Repo and Collateral Council (ERCC) has published an updated version of the ICMA Recommendations for Reporting under the Securities Financing Transactions Regulation (SFTR). This is the fourth public edition of the document, which was initially released on 24 February 2020 and previously updated on 30 June 2020.

Source: ICMA ERCC publishes fourth edition of its SFTR recommendations

ESMA announces receipt of first securitisation repository registration application

The European Securities and Markets Authority (ESMA) has announced that it has received its first application for registration as a securitisation repository (SR) under the Securitisation Regulation (Regulation (EU) 2017/2402).

Source: ESMA receives securitisation repository registration application

Regulation of derivatives and structured products 

EACH says CCP fire drill tests confirm overall resilience

The European Association of Central Counterparty (CCP) Clearing Houses (EACH) has announced that, during the second quarter of 2020, 16 of its members successfully performed ‘fire drill tests’ in business continuity planning (BCP) mode. Such tests are regularly performed by CCPs to confirm the readiness of a CCP’s default management structure. 

Source: Resilience of European CCPs confirmed by Fire Drill Tests in BCP mode

Proposed CCP Recovery and Resolution Regulation submitted to COREPER for endorsement

The agreed text of the proposed Regulation on a framework for the recovery and resolution of central counterparties (CCPs) has been submitted to COREPER for endorsement.

Source: Proposal for a Regulation of the European Parliament and of the Council on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU and (EU) 2017/1132—letter from the Chair of the European Parliament's ECON Committee

ESMA confirms Securitisation Regulation disclosure and securitisation repository TS enter into force on 23 September 2020

The European Securities and Markets Authority (ESMA) has confirmed that seven regulatory technical standards (RTS) under Regulation (EU) 2017/2402 (the Securitisation Regulation) will enter into force on 23 September 2020.

Source: ESMA confirms securitisation regulation requirements entry into force on 23 September 2020

European Commission adopts delegated regulation on securitisation repository fees

The European Commission has adopted a delegated regulation supplementing Regulation (EU) 2017/2402 (the Securitisation Regulation) with regard to fees charged by the European Securities and Markets Authority (ESMA) to securitisation repositories. The regulation specifies the type of fees to be charged by ESMA to securitisation repositories, the matters for which fees are due and the manner in which they are to be paid.

Source: COMMISSION DELEGATED REGULATION (EU) of 18.9.2020supplementing Regulation (EU) No 2017/2402 of the EuropeanParliament and of the Council with regard to fees charged by theEuropean Securities and Markets Authority to securitisation repositories

Technology

New report highlights growing importance of blockchain developments for lawyers

The Law Society and Tech London Advocates (TLA) have published a report setting out legal and regulatory guidance on blockchain, against the background of the huge rise in the use of technology due to the coronavirus (COVID-19) pandemic. It discusses the key issues for legal practitioners to be aware of when advising on distributed ledger technologies (DLT), arguing that lawyers will need to become conceptually and functionally familiar with DLT, smart legal contracts and cryptoassets. 

Source: Blockchain report: Lawyers given regulation guidance

Security

HMLR relaxes requirement for parties to have conveyancers in practice guide 8 

HM Land Registry (HMLR) has updated practice guide 8, which provides guidance on the execution of deeds that are to be submitted to HMLR. Section 13 of practice guide 8 has been amended to relax the requirement for all  parties to have conveyancers acting for them in certain situations. Now, only the lender in the case of a discharge or release, the personal representatives in the case of an assent and the donor in the case of a power of attorney must have conveyancers acting for them. The relaxation applies even where the deed was signed before 7 September 2020.

Source: Execution of deeds (PG8)

HMLR amends PG80 on information for conveyancers during coronavirus (COVID-19) 

HM Land Registry (HMLR) has amended section 4 of practice guide 80 (PG80), which provides useful information for conveyancers to state that the section ‘is not intended to be comprehensive and that some of the temporary legislative measures are, or may be, subject to review and alteration from time to time’.

Source: Coronavirus (COVID-19): useful information for conveyancers (PG80)

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About the author:
Pietra has completed the Bar Professional Training Course at the University of Law and was called to the Bar in 2019. Prior to the BPTC, Pietra undertook a law degree at the University of Bristol.