Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Printer Friendly Version
Welcome to the weekly Financial Services highlights from the Lexis®PSL Financial Services team for the week ending 6 October 2016.
On 30 September 2016, the Director General of the Association of British Insurers (ABI) said that regulation in the UK’s interest, passporting, data protection, skills and international trade were the five top Brexit priorities for the insurance and long-term savings industry. ABI Director General Huw Evans also called for the government to secure transitional arrangements between Brexit and whatever replaces the UK's current EU membership, in order to avoid a protracted political timescale which could impact on business location decisions.
On 2 October 2016, the Prime Minister Theresa May announced that the government would trigger Article 50 by March 2017. In a speech at the Conservative Party Conference, Ms May promised to consult with the devolved administrations, businesses and municipal leaders on what they want to see from Brexit, in order to determine the government’s negotiating position. Ms May also set out the government’s vision after Brexit, which she has said will not look like the Norway or Switzerland model, but an agreement unique to Great Britain and its economic, financial and social interests. However, many want to see further clarity on how the government plans to consult with the different sectors before Article 50 is triggered. EU law lecturer Adam Cygan tells LexisNexis the March deadline has been ‘politically calculated’ and is doubtful the UK will ‘have any significant control over the Brexit process’.
On 3 October 2016, the Investment Association (IA) published its first annual survey with regard to asset management in the UK for 2015/16. In its first public analysis of the impact of Britain's vote to leave the EU on the members of the trade body for UK asset managers, the IA said jobs could be put at risk and money could potentially be taken away from domestically managed fund companies. The IA highlighted the potential for mainland European clients to repatriate their asset management activity within the EU once Britain has formally left the economic bloc.
On 3 October 2016, the IA published its monthly statistics of UK investor behaviour for August 2016 which show net retail sales of £1.7bn, reversing the outflows which followed the Brexit vote. The statistics also showed that fixed income was the best-selling asset class with net retail sales of over £1.2bn, equity funds saw a net retail outflow of £629m and total funds under management reached a record high of £1trn.
On 5 October 2016, a report published by consultancy Oliver Wyman—on behalf of TheCityUK, found that if the UK cannot maintain access to the Single Market, £38bn in revenues and 75,000 jobs could potentially be put at risk. In response, industry representatives of financial services have said it is vital businesses have as full access to the Single Market as possible so as to carry on serving customers in EU 27.
On 29 September 2016, the Financial Ombudsman Service (FOS) published its latest newsletter: The Ombudsman News—Issue 136. The issue focuses on complaints management and how the FOS can use it powers to order firms to pay interest where money is due. The newsletter also includes a number of case studies and the outcomes from each situation.
On 3 October 2016, the FOS published a consultation paper regarding how it publishes complaints data and asked for feedback on its proposals. Views and comments should reach the FOS before the deadline on 1 November 2016.
On 3 October 2016, the Prudential Regulation Authority (PRA) published its regulatory digest for September 2016, which covers key stories such as buy-to-let underwriting standards expectations, strengthening accountability, remuneration and whistleblowing, consultation paper 'Dealing with a market turning event in the general insurance sector (CP32/16)', and a new RTGS service for the United Kingdom.
On 30 September 2016, the European Securities and Markets Authority’s (ESMA) Board of Supervisors announced it had appointed new chairs to three of its standing committees. Each appointment is for a period of two years and commences with immediate effect.
On 3 October 2016, the Banking Standards Board (BSB) published an independent report commissioned by the BSB and conducted by the University of Leeds. The report concludes that professional bodies should play a greater role in raising levels of competence and promoting ethical behaviour within the banking sector.
On 4 October 2016, the European Central Bank (ECB) published a working paper on the sovereign debt holdings of euro-area banks during and after the euro-area sovereign debt crisis and the extent to which these holdings amplified the effect of sovereign stress on the banking system, focusing on banks in the stressed euro-area countries: Greece, Ireland, Italy, Portugal and Spain.
On 5 October 2016, the Bank of England (BoE) announced that officials from resolution authorities in the US and Europe will hold a discussion exercise on 10 October 2016 to enhance co-ordination on cross-border resolution. This is the second in a series of planned exercises, and follows a similar exercise conducted by US and UK officials in 2014. It builds on ongoing work by international authorities on cross-border resolution, including a staff-level exercise conducted earlier in 2016.
On 29 September 2016, Commission Implementing Regulation (EU) 2016/1702 amending Commission Implementing Regulation (EU) No 680/2014 laying down implementing technical standards (ITS) with regard to templates and instructions under the Capital Requirements Regulation (EU) No 575/2013 (CRR) was published in the Official Journal. The Implementing Regulation will enter into force on 19 October 2016 and apply from 1 December 2016.
On 29 September 2016, the European Banking Authority (EBA) published its final report on draft regulatory technical standards (RTS) on the materiality threshold for credit obligations past due under Article 178 of the CRR. The final draft RTS specifies the conditions according to which a competent authority shall set the materiality threshold, ensuring consistency in the setting of the materiality threshold across the entire EU.
On 29 September 2016, the EBA published its final report on guidelines on the application of the definition of default under Article 178 of the CRR. The report is the result of differing practices used by institutions as regards the definition of default. The guidelines provide detailed clarification on the application of the definition of default, concluding that harmonisation will increase comparability of risk estimates and own funds requirements, especially when using IRB models, and aims to help reduce the burden of compliance.
On 29 September 2016, the Basel Committee for Banking Supervision (BCBS) published frequently asked questions on the supervisory framework for measuring and controlling large exposures. After completing the observation period, the Committee decided not to modify the framework. As a result, the framework, which will take effect from 1 January 2019, will exempt from the large exposure limit to qualifying central counterparties related to central clearing and apply the large exposure limit to interbank exposures, which means no exemption will apply.
On 29 September 2016, the EBA published its final report on guidelines to remuneration policies and practices related to the sale and provision of retail banking products and services. The guidelines are aimed at providing a framework for financial institutions to implement remuneration policies and practices that will improve links between incentives and the fair treatment of consumers and reduce the risk of misspelling and resultant conduct costs for firms.
On 30 September 2016, the EBA published the periodic update of its Risk Dashboard. The update summarises the main risks and vulnerabilities in the banking sector by the evolution of a set of Risk Indicators across the EU in Q2 2016. The update shows an increase in EU banks' capital ratios, though low profitability and the high level of non-performing loans (NPLs) remain a concern.
On 3 October 2016, the EBA published a document which sets out questions received in relation to the EBA data collection exercise on the revision of the prudential framework for MiFID investment firms. The EBA said that it will be updated further to the receipt of additional questions.
On 3 October 2016, the BoE published a record of the Financial Policy Committee's (FPC) meeting on 20 September 2016 during which it was agreed that the UK countercyclical capital buffer (CCyB) rate pursuant to the Capital Requirements Directive (CRD IV) (Directive 2013/36/EU) was maintained at 0%, and the FPC reaffirmed that it expected to maintain a UK CCyB rate at 0% until at least June 2017, absent any material change in the outlook. It continued to support the clear supervisory expectation of the Board of the PRA that firms should not increase dividends and other distributions as a result of the UK CCyB rate being maintained at 0%.
On 3 October 2016, the EBA published a guidelines compliance table for its final guidelines (EBA/GL/2015/22) on sound remuneration policies and disclosures under CRD IV. The table sets out which competent authorities comply or intends to comply with the EBA’s Guidelines on sound remuneration policies pursuant to Articles 74(3) and 75(2) of CRD IV and disclosures under Article 450 of the CRR. According to the table, Denmark, Germany, France, Slovakia, Finland, Sweden and the UK currently do not comply or do not intend to comply with all or parts of the Guidelines.
On 3 October 2016, the Bank of England (BoE) published a document setting out its 2016 UK stress test results and announcing the set of firms that are to take part in its 2017 biennial exploratory scenario. The 2016 stress test assesses the resilience of the UK banking system to a severe slowdown in the UK and global economies. The stress scenario incorporated in the concurrent stress test is not a forecast—rather, it is a coherent ‘tail risk’ scenario designed to be severe and broad enough to assess the resilience of UK banks to a severe shock.
On 5 October 2016, the ECB announced that it will amend the eligibility criteria and risk control measures applicable to senior unsecured debt instruments issued by credit institutions or investment firms within its collateral framework, with effect from 1 January 2017.
On 4 October 2016, the Growth and Emerging Markets Committee of the International Organization of Securities Commissions (IOSCO) published a report on corporate governance practices in emerging markets countries, benchmarking them against the G20/Organisation for Economic Cooperation and Development (OECD) Principles of Corporate Governance (the OECD Principles).
On 29 September 2016, the FCA instituted criminal proceedings against Mark Alexander Lyttleton, a former Investment Portfolio Manager at Blackrock Investment Management Ltd. Mr Lyttleton is charged with three counts of insider dealing, contrary to Section 52(1) of the Criminal Justice Act 1993 in relation to equity trading and call options. Mr Lyttleton has been summoned to attend City of London Magistrates’ Court on 29th September 2016.
On 29 September 2016, the 2016 Internet Organised Crime Threat Assessment (IOCTA), organised by Europol, reported a continuing and increasing acceleration of the security trends observed in previous assessments. The 2016 IOCTA draws on the experiences of law enforcement within the member states to highlight the threats impacting industry and citizens within the EU. The report stresses the need for law enforcement to have the tools, techniques and expertise to counter the criminal abuse of encryption and anonymity.
On 29 September 2016, the General Secretariat of the Council of the EU recommended that the Council confirm that it has no objection to two delegated acts adopted by the European Commission supplementing the Markets in Financial Instruments Directive (MIFID II) (2014/65/EU) and the Markets in Financial Instruments Regulation (MiFIR) (EU) No 600/2014). The 'I/A' Item Notes can be found here as follows: ST 12699 2016 INIT and ST 12698 2016 INIT.
On 29 September 2016, the FCA published its third consultation paper CP16/29 ‘Markets in Financial Instruments Directive II implementation—Consultation Paper III’ on the implementation of MiFID II. The consultation seeks views on the proposed changes to the FCA Handbook and makes key proposals concerning conduct of business issues, product governance, telephone taping for financial advisers and knowledge and competence requirements. The consultation closes on 4 January 2017.
On 29 September 2016, ESMA published a consultation paper on ‘Draft Technical Standards under the Benchmarks Regulation’. The consultation seeks views on ESMA’s draft RTS and ITS which will implement the Benchmarks Regulation. Comments are to be received by 2 December 2016 with ESMA seeking to finalise the draft technical standards (TS) by April 2017.
On 27 September, European Central Bank (ECB) Executive Board member Benoît Cœuré addressed the annual meeting of the Money Market Contact Group, regarding the relevance of benchmarks including EURIBOR, LIBOR and EONIA, concluding that banks will take the opportunity to create better, more robust and representative benchmarks, that will better suit the needs of end users.
On 29 September 2016, the Council of the European Union published a report from the European Commission to the European Parliament, the Council and the European Economic and Social Committee on the question of the effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over the right of another person.
On 30 September 2016, ESMA published a final report on its guidelines on information relating to commodity derivatives markets or related spot markets for the purpose of the definition of inside information on commodity derivatives under the Market Abuse Regulation (MAR) (Regulation 596/2014).
On 30 September 2016, ESMA updated its list of recognised central counterparties (CCPs) based in third countries. The update concerns the recognition of the US CCPs ICE Clear Credit LLC (ICC) and the Minneapolis Grain Exchange Inc. (MGEX).
On 30 September 2016, ESMA published a consultation paper on draft RTS and ITS under the Securities Financing Transactions Regulation (SFTR), and amendments to related EMIR RTS. ESMA will consider all comments received by 30 November 2016.
On 3 October 2016, the EBA published its final guidelines on implicit support for securitisation transactions. The objective of the guidelines is to clarify what constitutes arm's length conditions and to specify when a transaction is not structured to provide support for securitisations. The guidelines aim to contribute to the successful implementation of the Commission's securitisation package under the Capital Markets Union (CMU) reform, giving clarity on the matter to credit institutions.
On 3 October 2016, ESMA published model written arrangements for benchmark colleges (ESMA/2016/1414). Article 46 of the Benchmark Regulation (EU2016/1011) of 8 June 2016 provides that the competent authority of an administrator of a critical benchmark that is referred to in points (a) and (c) of Article 20(1) of the Benchmark Regulation shall establish a benchmark college. ESMA will be a member of every college and according to Article 46(7) of the Benchmark Regulation may give advice concerning the written arrangements.
On 3 October 2016, ESMA issued a consultation paper (2016/1422) on its draft RTS regarding the creation of a consolidated tape for non-equity instruments required under MiFID II. The new MiFID II framework, which covers equity-like and non-equity instruments traded on trading venues, introduces provisions for establishing a central source of post-trade prices or consolidated tape. ESMA has previously issued draft RTS on an equity tape and is now seeking feedback on its draft RTS for the non-equity tape. Trading venues and approved publication arrangements (APAs) will need to send real-time post-trade data to consolidated tape providers (CTPs) who will consolidate the data in real-time to make the data available to the public thereby creating the non-equity tape. The consultation is due to close on 5 December 2016.
On 5 October 2016, ESMA published a consultation paper containing draft guidelines on the product governance requirements under MiFID II. The guidelines are intended to provide greater clarity on the obligations for manufacturers and distributors, with a particular focus on the target market assessment. The consultation closes on 5 January 2017.
On 5 October 2016, ESMA published a consultation paper containing draft guidelines on certain requirements related to the management bodies of market operators and data reporting services providers (DRSPs) under MiFID II. The consultation closes 5 January 2017.
On 3 October 2016, ESMA published a new set of questions and answers (Q&As) on transparency topics under MiFID II and MiFIR. The purpose of the document is to promote common supervisory approaches and practices in the application of MiFID II and MiFIR in relation to transparency topics such as the topic currently covered - the double volume cap mechanism. It provides responses to questions posed by the general public, market participants and competent authorities in relation to the practical application of MiFID II and MiFIR. The content of the document is aimed at competent authorities and firms by providing clarity on the application of the MiFID II and MiFIR requirements.
On 3 October 2016, the Presidency of the Council of the EU published a document (12655/16) setting out the current state of play of legislative proposals in the field of financial services for the upcoming ECOFIN Council on 11 October 2016, which includes a number of updates.
On 4 October 2016, ESMA issued a positive opinion on the extension of the current restrictions on short selling of shares of Banca Monte dei Paschi di Siena spa which has been notified by Commissione Nazionale per le Societa e la Borsa (CONSOB), the Italian state securities commission. The current restrictions commenced on 7 July 2016 and were due to expire on 5 October 2016.
On 4 October 2016, the European Commission adopted a Commission Delegated Regulation supplementing the European Market Infrastructure Regulation (EU) 648/2012 (EMIR) with regard to RTS for risk-mitigation techniques for over the counter derivative contracts not cleared by a central counterparty. The RTS' are based on draft RTS submitted by the European Supervisory Authorities (ESAs) in March 2016 and revised by the ESAs in September 2016, with further amendments made by the Commission principally in relation to the replacement of concentration limits on initial margins for pension scheme arrangements by specific management risk tools to monitor and address potential risks.
On 4 October 2016, ESMA issued a report under art 29(3) of the Securities Financing Transactions Regulation (EU) 2015/2365 (SFTR) assessing whether the use of securities financing transactions (SFTs) leads to the build-up of significant leverage that is not addressed by existing regulation, the options available to tackle such a build-up, whether further measures to reduce the pro-cyclicality of that leverage are required and the impact of the recommendations for a regulatory framework for haircuts on non-centrally cleared securities financing transactions published by the Financial Stability Board (FSB) in November 2015.
On 4 October 2016, the ECB published a working paper on the effects of monetary policy on the returns obtained from so-called carry trade—borrowing in low-interest rate currencies and investing the proceeds in high-interest rate currencies. The report concludes that returns were affected by changes in monetary policy before the financial crisis, but that in the period since the crisis, when central bank asset purchases became a key instrument of monetary policy, returns on the carry trade have not varied with changes in monetary policy.
On 30 September 2016, the deadline for a European Commission consultation, which was launched on 2 June 2016, on the main barriers to the cross-border distribution of investment funds (UCITS and AIF) was extended to 9 October 2016.
On 5 October 2016, the FCA published a consultation paper (CP16/30) with proposed rules and guidance intended to standardise the disclosure by asset managers of transaction costs incurred by pension investments. The consultation closes 4 January 2017.
On 5 October, the European Parliament announced that the monthly scrutiny slot in the 11 October 2016 meeting of the European Parliament’s Economic and Monetary Affairs Committee (ECON) will focus on the advice of ESMA on the application of the Alternative Investment Fund Managers Directive (AIFMD) passport to non-EU alternative investment fund managers (AIFMs) and non-EU alternative investment funds (AIFs). Representatives of the European Commission and of ESMA will participate in the meeting.
On 30 September 2016, the European Insurance and Occupational Pensions Authority (EIOPA) published updated documentation on the methodology for deriving risk-free interest rate (RFR) term structures for the Solvency II Directive (2009/138/EC). Technical information relating to RFR term structures is used for the calculation of the technical provisions for (re)insurance obligations. In accordance with Solvency II, EIOPA publishes this information on a monthly basis, in order to ensure consistent calculation of technical provisions across the EU.
On 30 September 2016, the BoE published a speech given by Chris Moulder, Director of General Insurance at the PRA, on dealing with a market-turning event in the general insurance sector. The speech, which was delivered at the Insurance Insider London 100 on 29 September 2016, discusses the background to the PRA’s recent consultation paper on the topic (CP32/16) and considers the issues that regulators and firms are likely to face in such a scenario and how to ensure they are as well prepared as possible.
On 30 September 2016, Lloyd’s published the seventh edition of its Conduct Standards and Complaints Newsletter, with a focus on recent changes to the complaints handling rules and requirements.
On 4 October 2016, Insurance Europe published a response to a consultation by EIOPA on its draft technical advice on delegated acts for the Insurance Distribution Directive (IDD). IE pointed out a number of instances in the draft technical advice that go beyond the rules set out in the IDD. EIOPA’s consultation paper (EIOPA-CP-16/006) was published on 3 July 2016, and the consultation closed on 3 October 2016.
On 4 October 2016, EIOPA published its Single Programming Document (SPD) for 2017–19, which sets out EIOPA’s strategic objectives and actions for the period and its work programme for 2017.
On 5 October 2016, EIOPA announced that Damian Jaworski, Director of Analyses and International Co-operation Department in the Polish Financial Supervision Authority (KNF), was reappointed as Chair of the EIOPA Review Panel.
On 5 October 2016, the FCA fined Aviva Pension Trustees UK Limited and Aviva Wrap UK Limited £8,246,800 for failings in their oversight of outsourced providers in relation to the protection of client assets. The FCA’s decision highlights the seriousness with which it regards breaches of the rules relating to the protection of client money and custody assets.
On 29 September 2016, the PRA issued a press release setting out its expectations on underwriting standards in the buy-to-let market, by issuing supervisory statement (SS): ‘Underwriting Standards for But-to-Let Mortgage Contracts’ (SS13/16). The SS is relevant to all firms regulated by the PRA that undertake buy-to-let lending which is not already subject to FCA regulation, and sets out principles and expectations on minimum standards which firms will need to meet on a phased basis by 30 September 2017. In addition to the SS, the PRA issued a policy statement (PS28/16) which outlines the responses to the consultation paper CP11/16, and any actions taken as a result.
On 3 October 2016, the Lending Standards Board (LSB) published information to support practitioners in adhering to its new Standards of Lending Practice. The LSB has produced information relating to product sale, account maintenance and servicing, money management, financial difficulty and consumer vulnerability to assist practitioners in adhering to the LSB Standards of Lending Practice.
On 5 October 2016, the Advertising Standards Authority (ASA) found an advert from Sainsbury’s Bank, which featured a young couple funding the renovation of their first house by using a Sainsbury’s credit cards, was irresponsible as it implied that the best way to finance a property renovation was by getting a credit card, and did not present consumer credit products in a socially responsible way. The ASA also upheld complaints regarding two other adverts.
On 29 September 2016, Payments UK, the trade association for the payments industry, published its amended Code of Conduct for Indirect Access Providers (IAPs) following a consultation with stakeholders. The principal aim of the Code is to improve the experience of Indirect Payment Service Providers (Indirect PSPs) by clearly setting out the responsibilities of IAPs that subscribe to the Code.
On 30 September 2016, the BoE published a consultation paper with a draft code of practice and supervisory statement on governance in recognised payment system operators (RPSOs). The consultation closes on 2 December 2016.
On 30 September 2016, the Treasury Committee published correspondence from Andrew Tyrie MP, Chairman of the House of Commons Treasury Committee, to Sam Woods, Deputy Governor of the Bank of England and Chief Executive Officer of the PRA, and Andrew Bailey, Chief Executive of the FCA, to request further assurances that the regulators are acting to strengthen the resilience and security of IT systems in financial services.
On 30 September 2016, ESMA published a speech given by Patrick Armstrong, Senior Risk Analysis Officer in ESMA’s Innovation and Products Team, at the FinTech Conference in Liechtenstein on 27 September 2016. Mr Armstrong focused on ESMA’s approach to monitoring and regulating financial innovation and the current EU regulatory response to robo advice, big data/artificial intelligence, crowdfunding and distributed ledger technology.
0330 161 1234