The Cost Transparency Initiative publishes industry cost disclosure templates

On 21 May 2019, the Cost Transparency Initiative (the CTI) published new templates and guidance for asset managers to enable them to report costs and charges to institutional investors in a standardised format. The CTI is a partnership initiative between the Pensions and Lifetime Savings Association, the Investment Association and the Local Government Pension Scheme Advisory Board and was launched in November 2018 to implement, promote and encourage new cost transparency templates across the pensions and investment industries. It is hoped that the new templates and guidance will allow pension scheme trustees to make clear costs and charges comparisons across their different asset manager suppliers.

The CTI has said that it expects asset managers to be in a position to report against December 2019 and April 2020 year-ends using the new Cost Transparency Initiative tools. The Investment Association has recommended that its members aim to be ready to use the CTI framework for defined benefit scheme reporting periods ending December 2019.

Although the new framework is voluntary, both the FCA and the Government have indicated there may be further intervention if the new framework is not adopted quickly. The CTI has said that it will be reviewing the take-up of the new framework after April 2020.

Further information, including copies of the new CTI templates and guidance, can be found here

ESMA publishes speech on its current priorities

On 13 May, ESMA published a speech given by Evert van Walsum, the Head of Investors and Issuers Department at ESMA, in which Mr van Walsum set out ESMA’s current priorities. The priorities identified by Mr van Walsum were as follows:

  1. Sustainable Finance – Ahead of an upcoming new regulation on ESG disclosures aimed at improving disclosure requirements around how institutional investors integrate ESG factors in their risk processes, ESMA (together with EIOPA and EBA) will be preparing a significant number of draft technical standards. These technical standards broadly relate to:
    1. Public disclosure of ‘principal adverse impacts’ of investment decisions on sustainability factors
    2. Pre-contractual disclosures showing how products meet environmental or social characteristics or sustainable investment objectives
    3. Public disclosure of how relevant products meet environmental or social characteristics or sustainable investment objectives
    4. Periodic reporting requirements on how financial products meet environmental or social characteristics and the overall sustainability related impact of products with sustainable investment objectives
    5. The standard presentation of the promotion of environmental or social characteristics and sustainable investments in marketing communications.

These draft technical standards must be delivered within 12 months of the new regulation coming into force (which is currently expected to be this summer).

  1. Fund Fees – It has come to ESMA’s attention that national practices on performance fees across member states are not always consistent (not only in terms of disclosure but also the way performance fees are calculated). This creates the risk of different levels of protection for the retail investor depending on where the fund is domiciled. Consequently ESMA is working on some common principles to harmonise the way EU regulators approach performance fees and the way they allow asset managers to structure them while creating funds. The objective of ESMA’s work is to set high-level convergence principles on key areas, such as:
    1. The frequency for computation and payment of performance fees
    2. Ensuring consistency between the performance fee model and investment objective of the fund
    3. Enhancing disclosure to retail investors for whom the impact of performance fees on the overall return of the investment can be difficult to assess.
  2. Consumer Protection – ESMA has initiated a broad review of the PRIIPs Delegated Regulation and expects to hold a public consultation in Q3 this year. ESMA’s review includes proposals to review the performance scenarios section of the PRIIPs KID, which have shown over-optimistic results in certain cases. The review also covers cost related issues, such as presentation and calculation of costs.

For further information regarding Mr van Walsum’s speech, a full copy of the published speech can be found here.

Investment Association publishes industry guidance on benchmarks and performance

The FCA’s policy statement on the Asset Management Market Study – further remedies (PS19/4) in February introduced new rules and guidance on fund objectives and the use of benchmarks. In response to these new rule changes and questions from the industry, the Investment Association has published guidance to help members comply with these new requirements. The new guidance covers the following areas:

  1. An overview of the new benchmark requirements, including what you need to achieve and when you need to achieve it by
  2. How to determine the correct level of engagement with the FCA and investors, including whether FCA approval is required and how to classify any changes under COLL
  3. Addressing industry questions around the benchmark definitions
  4. Answering industry questions around how benchmarks should be disclosed
  5. Guidance on the new rules for presenting past performance
  6. Answering additional questions around the Investment Association’s sectors (and whether they constitute benchmarks) and property funds (and whether they fall within the remit of the benchmark requirements).

The guidance has been shared (but not approved) by the FCA. A full copy of the Investment Association’s guidance can be found on its website.

ESMA publishes final report on integrating sustainability risks and factors in UCITS Directive and AIFMD

On 30 April, ESMA published its technical advice to the European Commission on integrating sustainability risks and factors in the UCITS Directive and AIFMD. ESMA’s advice recommends changes to the UCITS and AIFMD level 2 legislation with respect to organisational requirements, operating conditions and risk management. In summary, ESMA recommends the following changes:

  1. Organisational requirements – ESMA recommends that the Commission introduces changes to UCITS and AIFMD regulations to ensure UCITS managers and AIFMs take into account sustainability risks in their processes, systems and controls, devote sufficient resources to the integration of sustainability risks and ensure that senior management is responsible for the integration of sustainability risks
  2. Operating conditions – ESMA recommends changes to the legislative texts to ensure that fund managers take into account sustainability risks in their due diligence processes and consider conflicts of interest that may arise in relation to the integration of sustainability risks
  3. Risk management – ESMA recommends that the Commission includes sustainability risks in the list of material risks to be managed by UCITS management companies and AIFMs.

In order to ensure consistency, ESMA developed its final report in cooperation with EIOPA. ESMA further published a related final report on integrating sustainability risks and factors under MiFID II.

ESMA has said it will now cooperate with the Commission with a view to transforming the technical advice into formal delegated acts. For further information on the changes proposed by ESMA, a copy of the final report can be found here.

The FCA publishes its feedback statement on introducing a duty of care

Yesterday, the FCA published its feedback statement on ‘A duty of care and potential alternative approaches’ (FS19/2). In its earlier Discussion Paper on the topic, the FCA had invited an open discussion about the potential merits of a duty of care in response to stakeholder concerns that the existing regulatory framework, including the FCA’s Principles for Business (the 'Principles'), may not be sufficient or applied effectively enough to prevent harm to consumers.

Most respondents were of the view that levels of harm to consumers are high and that there needs to be change to better protect them. The key areas of discussion were:

  1. A New Duty: Some stakeholders were of the view that the FCA needed to provide a new definition of the standard of conduct firms owe to consumers to improve consumer protection. However, there were very different views as to whether such a ‘New Duty’ should be set out in legislation or within the FCA’s Principles, although most respondents did not support a statutory duty. There was further discussion around whether consumers should have a private right of action for damages based on breaches of the Principles.
  2. How the FCA uses the existing regulatory framework: The majority of stakeholders believe that the FCA should consider changes to the way it uses the existing regulatory framework, chiefly by both applying the Principles more broadly by acting more readily and being more transparent about what the FCA’s standards for good customer treatment are and how it acts to secure them.

In its feedback statement, the FCA’s initial view was that there was not a sufficient basis to make changes to primary legislation (including the introduction of a legislative duty of care), however, if its analysis revealed substantive reasons for supporting such a change, it would consider this further.

As a result of the feedback received, the FCA has identified the following options which it believes are most likely to address gaps in consumer protection and which will be the FCA’s primary focus. These are:

  1. Reviewing how the FCA applies the regulatory framework – particularly how it applies the Principles in its authorisations, supervisory and enforcement functions, and how it communicates this to firms, and
  2. New/revised Principles to strengthen and clarify firms’ duties to consumers, including consideration of whether a potential private right of action for Principles breaches is appropriate, and what any unintended consequences of this might be.

The FCA has said that it will publish a further paper in the autumn seeking detailed views on specific options for change. For further information, please see the FCA’s Discussion Paper, a copy of which can be found here.

FCA Business Plan 2019/2020 - What are the FCA’s priorities for the investment management sector?

On 17 April, the FCA published its Business Plan for 2019/2020. In its sector priorities for the investment management sector, the FCA has announced that it will focus on the three roles buy-side firms play when acting as:

  1. Agents to investors – where the FCA wants firms to uphold their investors’ interests
  2. Good market participants – where the FCA wants firms to maintain market integrity
  3. Good stewards – where the FCA wants firms to oversee their investments effectively.

In this regard, the FCA has said that its key priorities for the year 2019/2020 will be to focus on stewardship, to continue to address poor value of products as identified by the Asset Management Market Study (the 'AMMS') and to improve firms' operational resilience (the latter being a cross-sector priority not exclusive to the asset management industry).

The FCA expects to undertake the following activities in the year ahead:

  1. AMMS Remedies – As part of its supervisory work, the FCA plans to continue to focus on the implementation of the new AMMS requirements (such as its changes in PS18/8 and PS19/4) once they have all come into effect in October 2019. The FCA further plans to take forward its remedies following the Competition and Markets Authority’s final report on its investment consultants market investigation, including consulting on bringing the remedies into the Handbook.
  2. Stewardship – In addition to finalising its rule changes following its consultation as part of its implementation of the Revised Shareholder Rights Directive (CP19/7), the FCA intends to evaluate the responses from its Discussion Paper (DP19/1) about how to improve stewardship within the existing structure of UK capital markets.
  3. Investment firm prudential regime – The FCA has announced that in 2019/2020 it will consult on introducing a new prudential regime for MiFID investment firms. The proposed rule changes are intended to introduce more appropriate requirements for investment firms’ business models (aligned to the forthcoming EU Investment Firms Directive and Regulation) than those currently under the CRD IV regime. The consultation paper is expected to be published in the second quarter of 2019, once the EU Investment Firms Directive and Regulation has been finalised.
  4. Feedback on consultation paper on illiquid assets – The FCA proposes to publish its policy statement containing its final rules in the first half of 2019. The final rules are intended to ensure that retail clients are better informed about the inherent risks of investing in illiquid funds and reduce potential harm during times of market stress.
  5. Evaluating the PRIIPs review – Following concerns raised by firms in relation to aspects of the PRIIPs Regulation’s requirement for firms to produce a standardised key information document, the FCA has said it will continue to work with firms to resolve the issues identified.

Further details of the FCA’s priorities for the coming year, both for the investment management sector and more generally, can be found in the FCA’s Business Plan, a copy of which can be found here.

The FCA speaks on 'Towards more effective stewardship'

The FCA has published a speech given by Edwin Schooling Latter, the director of Markets and Wholesale Policy at the FCA, on 'towards more effective stewardship'. Mr Latter’s speech follows the recent publication of the FCA and FRC’s discussion paper on stewardship and consultation paper on implementing the Revised Shareholder Rights Directive (SRD II).

In his speech, Mr Latter sets out how the FCA understands stewardship and why the FCA considers it to be important. There were, Mr Latter suggested, a number of significant barriers to effective stewardship, including:

  1. Costs and free riding: active engagement with issuers takes time and resources. Where an investor engages with an issuer to influence positive outcomes, all investors benefit which risks some investors ‘free riding’ on the stewardship activities of others.
  2. Short-term incentives: there are cultural and structural features embedding short-termism in investment decisions and issuer’s strategies which makes it difficult for them to prioritise long term goals. For example, asset managers are often rated and selected on their short run performance and peer-group rankings.
  3. Information and complexity: increasing complexity also presents challenges due in part to (i) multiple parties being in the chain of intermediaries (including service providers (such as proxy advisers and investment consultants) who play a prominent role) and (ii) the geographical dispersion of UK investors’ assets/holdings of assets issued by UK companies.

Mr Latter identified a number of areas of possible change to create the right conditions and incentives for effective stewardship. These were:

  1. Meaningful and accessible disclosures on firms’ stewardship activities.
  2. Firm’s governance, culture and institutional structures: innovation in some of the key drivers of firms’ and individuals’ incentives might lead to improvements in the quality of stewardship. Mr Latter gave the composition of performance benchmarks, the criteria used in asset manager selection and remuneration policies as examples of where changes might help improve stewardship.
  3. Access to the right information from issuers: Investors must be able to understand how an issuer’s corporate strategy promotes sustainable, long-term value creation (and then have sufficient access to issuers to influence them) for stewardship to work effectively. Consequently, the FCA plans to consider the scope and quality of issuer’s disclosures and how they support stewardship.
  4. A supportive regulatory framework: the FCA wants to ensure that there are no impediments to effective stewardship in the regulatory framework. For example, the FCA has heard concerns that engagement between investors and issuers on stewardship is inhibited by concerns of breaking rules on sharing inside information and also that where investors act collectively when engaging with issuers they might be deemed to be ‘acting in concert’.

Mr Latter said that, informed by stakeholder engagement and responses to its discussion paper, the FCA would think carefully about how it can interact with the wider regulatory framework and market practices to create the right conditions and incentives for effective stewardship. A full copy of the speech can be found here.

ESMA updates its Q&A on the application of the UCITS Directive - Benchmark Disclosure

On Friday, ESMA published its updated Q&As on the application of the UCITS Directive to clarify the KIID benchmark and past performance obligations. The updates to the Q&As include:

Benchmark Disclosures:

  • UCITS must clearly disclose in the objectives and policy section of the KIID whether they have an index tracking objective or alternatively allow for discretionary choices. ESMA’s recommend practice is that index-tracking UCITS use the terms, ‘passive’ or ‘passively managed’ and that ‘index-tracking’ and actively managed UCITS use the terms ‘active’ or ‘actively managed’.
  • UCITS managed in reference to a benchmark is one where the benchmark index plays a role in the management of the UCITS, such as in the explicit or implicit definition of the portfolio’s composition and/or the UCITS’ performance objectives and measures. This might include:
    • The UCITS uses a benchmark index as a universe from which to select securities.
    • The UCITS portfolio holdings are based upon the holdings of the benchmark index (e.g. the individual holdings of the UCITS portfolio do not deviate materially from the benchmark).
    • The UCITS has an internal or external target to outperform a benchmark index.
    • Performance fees are calculated based on performance against a benchmark.
    • Marketing issued by the UCITS management company shows the performance of the fund against a benchmark.
  • The KIID should disclose how actively managed the UCITS is compared to its reference benchmark. The UCITS management company should take into account the following elements when disclosing this:
    • The description of the underlying investment universe of the UCITS should indicate to what extent the target investments are part of the benchmark index or not.
    • The KIID should describe the degree or level of deviation of the UCITS in regard to the benchmark index, including the quantitative and/or qualitative deviation limits underlying the investment approach as well as the narrowness of the investment universe.

Past performance:

  • Where funds name a target benchmark in their investment objectives and policies, the performance should be disclosed against the target benchmark, even if it has not been named as a ‘comparator’ benchmark.
  • The performance disclosure in the KIID regarding a benchmark index should be consistent with performance disclosure in other communications (across different offering documents and marketing materials, distribution channels and investor types).

A full copy of the updated ESMA Q&A can be found here.

ESMA updates its Q&As on the application of the AIFMD – calculation of leverage

On Friday, ESMA published its updated Q&As on the application of the AIFMD to provide clarification on the calculation of leverage under the AIFMD. The updated Q&As clarify that:

  • The calculation of leverage exposure of an AIF resulting from a short-term interest rate future should not be adjusted for the duration of the future under either of the gross or commitment methods.
  • AIFMs should clarify the leverage of each AIF that it manages as often as is required to ensure that the AIF is capable of remaining in compliance with leverage limits at all times. Consequently, leverage should be calculated at least as often as the NAV is calculated, or more frequently if required (such as for material market movements or changes to portfolio composition).

A full copy of the updated ESMA Q&A can be found here.

The UK Benchmarks Register

The FCA published a web page on the 22 March 2019, announcing that it has developed a new UK Benchmarks Register (the 'Register'). This Register will replace the current ESMA Register for UK supervised users and UK and third-country based benchmark administrators that want their benchmarks to be used in the UK.

The Register is being introduced in preparedness for if the UK leaves the EU without an implementation period. The new Register will include benchmark administrators and third-country benchmarks.

Further details of the new UK Benchmarks Register can be found here.

The IA updates its guidance on the classification of change events

On 1 March 2019, the Investment Association (‘IA’) announced that it had updated its guidance on the classification of change events for authorised funds. The purpose of the IA’s guidance is to help members determine how changes to authorised funds may be treated for the purposes of investor approval or notification under COLL 4.3 (and whether FCA approval or notification is required).

The guidance, which has been issued in draft subject to final approval from the Depositary and Trustee Association, has been updated to include four new categories of change, being:

  1. change of name of the AFM (but where the entity is continuing as AFM and the name of the scheme or sub-funds is not changing)
  2. change of name of umbrella fund (but where no changes are being made to the names of the sub-funds)
  3. introduction of wording in the prospectus to allow the AFM to make a mandatory conversion to a different unit class without unitholder instruction
  4. conversion of a unitholder’s or group of unitholders’ units to a different unit class without their instruction.

The final two change events (points 3 and 4) follow the recent FCA guidance in FG18/4 on moving investors from pre-RDR unit classes without their express instruction.

Further details of the IA’s classification guidance, including the recent changes outlined above, can be found on the IA website.

FCA publishes new materials on disclosure of costs by asset managers

The FCA has published a new web page setting out the findings of its multi-firm supervisory review on disclosure of costs by asset managers. The content provides clarity on what the FCA considers to be effective cost disclosures.

The review, conducted as a result of the Asset Management Market Study (MS15/2.3) which found there was weak price competition in the sector and initiated as an outcome of the occasional paper 32 published in April last year, took place in two work streams. The first work stream looked at transaction costs and how these are disclosed. The second was a desk-based review of the effectiveness and consistency of product cost disclosures across various information sources (including UCITS KIIDs, PRIIPs KIDs, factsheets and firm websites).

The FCA’s findings in relation to transaction costs were split out into the following key themes:

  • Incorrect application of the PRIIPs requirements by firms
  • Incorrect use of anti-dilution levies
  • Ineffective oversight of outsourced arrangements
  • Transaction costs in underlying funds disclosed under ‘other ongoing costs’ for UCITS products.

In relation to the effectiveness and consistency of cost disclosures work stream, the FCA made the following findings:

  • The impact of material portfolio transaction costs in UCITS is not reflected in KIIDs
  • Marketing communications for UCITS can provide information in addition to that specifically required by the KIID
  • Even when all costs are disclosed, they are still confusing
  • Some UCITS providers are still using unclear terms.

The key concern of the FCA is that firms are not giving consumers a clear account of how much they will pay when they invest in financial products and it wants firms to use a more holistic approach to disclosing costs to make sure they are fair, clear and not misleading.

Next steps: The FCA expects to see ‘improvements in the coming weeks and months’. They also ‘encourage firms to review how they are disclosing their costs and charges and also how they calculate transaction costs.’ It is likely that we will see more work from the FCA in this area, as they suggest that there may be ‘detailed investigations into specific firms, individuals or practices.’

Feedback Statement 19/1 – a helpful reflection on PRIIPS and KIDs

The FCA has published FS19/1 which sets out the next steps to be taken by the FCA as part of a European-level review of the PRIIPs legislation. It follows a call for input (CfI) that was issued in July 2018 on initial experiences of the PRIIPs regulation (Packaged Retail and Insurance-based Investment Products (PRIIPs) Regulation (Regulation (EU) No 1286/2014) and the related PRIIPs Regulatory Technical Standards (RTS) (Commission Delegated Regulation (EU) 2017/653)). The FCA received 103 responses from firms, trade bodies and consumer organisations to that CfI.

The PRIIPs legislation requires those who produce, advise on or sell PRIIPs to retail investors in the EEA to produce standardised ‘key information documents (KIDs) on each product. In the feedback statement several issues have been identified relating to:

  • Lack of clarity on the scope of PRIIPs regulation
  • Summary Risk Indicators in KIDs delivering unexpected results
  • Methodology for performance scenarios producing misleading illustrations, and
  • Methodology for transaction costs producing misleading results.

Lack of clarity on the scope of PRIIPs regulation

PRIIPs for corporate bonds,  REITs (real estate investment trusts) and products manufactured or sold outside the EEA were identified as a key concern, as respondents were unclear as to whether the PRIIPs regulation applied to these investments.

Summary Risk Indicators in KIDs delivering unexpected results

Responses received to the CfI indicate that the Summary Risk Indicator has sometimes delivered lower risk ratings than expected where the underlying or reference asset is illiquid, which could mislead investors.

Methodology for performance scenarios producing misleading illustrations

It was noted in the feedback statement that ‘there was universal agreement in responses that the problems were caused by a reliance on past performance in the PRIIPs RTS methodology’. The FCA has said that it will ‘push for changes at EU level for a solution to the PRIIPs requirements that produce misleading performance scenarios’.  The FCA also provided that it will ‘consider the extent to which domestic interpretative guidance could mitigate this issue’.

Methodology for transaction costs producing misleading results

Responses to the CfI did not provide evidence to support claims that the methodology is not working as intended. The FCA has concluded that the ‘unrepresentative transaction costs in KIDs are a result of poor application of the PRIIPs methodology’.

The FCA has identified in the feedback statement that the unintended effects of the requirements to comply with PRIIPs and the uncertainty of scope of products that need to comply with PRIIPs could cause consumer harm if not addressed. Further, it will ‘consider the extent to which domestic interpretive guidance from the FCA could mitigate these issues’. Of course the relationship between the EU and the UK will be of paramount importance for any changes that may take place in this space.

FCA publishes Brexit guidance for participants in the UK wholesale markets (including asset managers)

On 26th February, the FCA published new Brexit guidance firms, including asset managers, operating in the UK wholesale markets. The guidance addresses the scenario of a no-deal Brexit, and the issues which UK firms doing business in the EEA will need to consider and the basis on which it may be possible for them to continue to provide their services after Brexit.

The guidance covers the following potential issues for UK firms in the event of no deal:

  • Outward passporting and the treatment of clients: When the UK leaves the EU, passporting rights will no longer apply and firms will need to consider how they will be able to continue to provide cross border services and take appropriate steps (such as by speaking with the relevant EEA regulators and/or applying for temporary permissions for certain jurisdictions). The FCA reiterates that it expects fair treatment of customers irrespective of where they are based and that in many cases it would be a poor outcome for clients to simply stop servicing them.
  • Access to financial market infrastructure: With EU withdrawal approaching, the FCA reminds firms to ensure that execution is managed appropriately and to discuss their future plans with the FCA (e.g. contingency plans and underlying assumptions), including in respect of market access models, operational models and execution arrangements. Firms are also expected to discuss how they will communicate to clients such changes and their impact. Specific guidance is given by the FCA in relation to (i) access to clearing and (ii) the ability of firms to trade on UK and EU trading venues following Brexit.
  • Continuing to meet threshold conditions: Firms are reminded that if they are expanding their presence into Europe, the structures they put in place must enable the FCA to supervise the conduct of their UK businesses effectively and ensure that they continue to meet the FCA’s threshold conditions.

For further information, please see the FCA’s guidance on its website.

Impact of MiFID II regarding investment research

Andrew Bailey delivered a speech on the impact of MiFID II regarding research provision at the European Independent Research Providers Association on 25 February 2019. He considered the effects of the unbundling of research following MiFID II. MiFID II requires brokers to price research separately from execution activities so that the cost of research is not influenced by, or conditional on, execution payments. Bailey concluded that overall the rules are ‘already having a positive impact’ citing that the FCA has seen ‘changes in behaviour which are starting to deliver the intended effects – reducing conflicts of interest, improving accountability and producing cost savings for investors’.

The changes brought in by MiFID II for research are intended to increase accountability and seek to promote a competitive market for research. Since their introduction there has been a shift by the vast majority of traditional asset managers to fund research from their own revenues – instead of using their clients’ funds. Bailey spoke of the outcome of a multi-firm review conducted by the FCA since summer last year that indicates that the new rules are having a positive impact on the accountability and discipline of the buy-side when procuring research and on the cost of execution services. He also said that the FCA acknowledged the impact that economies of scale have and they will ‘continue to monitor developments through engagement with firms and trade bodies'.

Bailey commented on how the FCA are completing their supervisory work to assess how the rules are bedding in, to analyse their impact on asset owners and consumers and on the market for research. He emphasised that the FCA have exercised flexibility in their rules where possible and they intend to be pragmatic about this.

You can read a full transcript of the speech here:

The IA publishes its fund communication guidance

On 18 February, the Investment Association (the 'IA') announced the publication of its fund communication guidance on clarity of language in fund documentation: fund objectives and investment policy.

The IA’s guidance comes off the back of the recent publication of the FCA’s policy statement on further remedies (PS19/4) following the Asset Management Market Study (the 'AMMS'). As part of the AMMS, it was agreed through the FCA’s Funds Objective Working Group that the IA would work with its members and consumer representatives, informed by consumer research, to promote the use of consistent terminology in fund communications. The IA has carried out detailed consumer testing to help managers explain fund objectives and policies more clearly and in a way that retail consumers can understand.

The guidance is split into two parts, with the first part examining the key regulatory disclosure components for fund objectives and policies with a view to reflecting the IA’s interpretation of the relevant requirements. The second part of the guidance then sets out the findings from the IA’s consumer research and what this means for the thought processes which managers should go through when preparing communications for retail customers. The guidance includes two lists of frequently used terms in fund communications, which the IA recommends are either used alongside simple explanations or which the IA recommends should be avoided entirely and replaced with a description. In each case, the IA recommends particular explanations or descriptions based upon the findings of their consumer research.

The guidance is not mandatory for fund managers and has not been officially approved by the FCA (although the FCA has welcomed this work in its policy statement). It is, however, a helpful guide for managers when preparing or making changes to the objectives and policies of their funds or when communicating with their investors more generally. It is anticipated that the guidance will develop as the IA undertakes further consumer testing of particular investment terms in the coming years.

EU Council and European Parliament agree to new CIS cross-border distribution Directive

Following our earlier blog 'EU Parliament to consider proposals for the cross-distribution of collective investment funds' in April, the EU Council announced on 5 February that a preliminary agreement had been reached with the European Parliament. According to the EU Council, the proposed new rules will 'facilitate the cross-border distribution of investment funds by eliminating current regulatory barriers and making cross-border distribution less costly'.

The proposed new rules will implement a number of changes to the current regulatory framework applying to the distribution of funds governed by the UCITS and AIFMD Directives. As explained previously, the proposed new rules will take the form of a new Directive and Regulation. In an announcement released by the Commission the same day, the Commission explained that the main changes introduced by the rules will be to:

  • Make it easier for EU alternative investment fund managers to test the appetite of potential professional investors in new markets (so-called ‘pre-marketing'). This will help them to take more informed commercial decisions before entering a new market.
  • Clarify customer service obligations for asset managers in their host Member State. This should ensure that investors have access to a uniform, high level of customer service across the EU without imposing on asset managers the cost of maintaining a physical presence or local facilities in all host markets.
  • Align procedures and conditions for managers of collective investment funds to exit national markets when they decide to terminate the offering or placement of their funds (so-called de-notification procedure).
  • Introduce increased transparency and creation of a single online access point for information on national rules related to marketing requirements and applicable fees. This should help managers who want to increase their cross-border activities to save the cost of legal advice on national rules.

The proposed new rules will now be submitted to EU ambassadors for their endorsement and will require legal linguistic revision before the final text can be formally adopted by the Council and Parliament. 

Asset Management Market Study – FCA issues policy statement on further remedies

On 4 February 2019, the FCA issued its policy statement on further remedies as part of its Asset Management Market Study. Following industry feedback as part of its consultation last year, the FCA has concluded that will be largely proceeding on the basis on which it consulted, with only minor drafting amendments in a few areas.

The policy statement includes:

  • non-Handbook guidance on how authorised fund managers (AFMs) should describe fund objectives and investment policies to make them more useful to investors
  • rule changes to require AFMs to explain why their funds use particular benchmarks or, if they do not use a benchmark, how investors should assess the performance of a fund
  • rule changes to require AFMs that use benchmarks to reference them consistently across the fund’s documents
  • rule changes to require AFMs that present a fund’s past performance to do so against each benchmark used as a constraint on portfolio construction or as a performance target
  • rule changes to require that where a performance fee is specified in the prospectus, it must be calculated on the basis of the scheme’s performance after the deduction of all other fees.

In addition, the FCA is clarifying how COBS 4 applies to the KIID (this change will come into force on 4 February 2019).

The new Handbook rules and guidance on benchmarks will come into force on 7 May 2019 for new funds on 7 August 2019 for existing funds. The FCA’s rules on performance fees will come into effect on 7 August 2019. The FCA reminds AFMs in the policy statement that 'We expect AFMs to take our guidance on fund objectives into consideration when reviewing fund documentation from the date of publication.'

ESMA and EU Regulators agree no-deal Brexit MoU with FCA

On 1 February, ESMA announced that it had agreed with EU Regulators and the FCA Memoranda of Understanding (MoUs) to protect the asset management industry in the event of a no-deal Brexit. The MoUs include a multilateral MoU between EU/EEA Regulators and the FCA covering 'supervisory cooperation, enforcement and information exchange between individual regulators and the FCA, and will allow them to share information relating to, amongst others, market surveillance, investment services and asset management activities. This, in turn, will allow certain activities, such as fund manager outsourcing and delegation, to continue to be carried out by UK based entities on behalf of counterparties based in the EEA.'

ESMA’s announcement will be welcome news to the UK asset management industry and helps address industry fears over the loss of EU fund managers’ ability to delegate investment management functions to UK managers in the event of a no-deal Brexit.

The Investment Association launches ESG consultation

On 25 January, the Investment Association launched an industry wide consultation on sustainability and responsible investment. The consultation seeks the views of asset managers and aims to bring greater clarity to investors navigating the ESG landscape.

The consultation seeks industry views on key components of the ESG debate, including:

'Agreed standard definitions: Proposed definitions for the different sustainable investment approaches, including commonly used terms such as: environmental, social and governance (ESG) integration, impact investing, and negative screening, with the aim of agreeing an industry-endorsed set of standard definitions.

Development of a UK product label: A proposed voluntary UK product label designed to assist retail investors and their advisers to easily identify funds which have adopted a sustainable investment approach. The label would also draw attention to the sustainability and responsible investment expertise within the UK.

‘Stock-take’ of reporting frameworks: A review on reporting frameworks used by asset managers to disclose how they embed ESG considerations into their investment process, and the impact that their investments have had on wider sustainability indicators.

Members of the Investment Association are invited to respond to the consultation by 1st March 2019.

EU Parliament to consider proposals for the cross-distribution of collective investment funds in April

Back in December, the European Parliament’s Economic and Monetary Affairs Committee (ECON) announced that it had adopted drafts proposals from the European Commission for a new Directive and Regulation on the cross border distribution of collective investment funds. ECON subsequently published two reports outlining the proposed Directive and Regulation. The reports propose certain changes to the current UCITS and AIFMD Directives to 'further coordinate the conditions for fund managers operating in the internal market and facilitate cross-border distribution of the funds they manage', including outlining new rules and procedures to align the notification procedures under UCITS and the AIFMD.

Amongst the proposals outlined in ECONs reports is that the Regulation should amend the current PRIIPs Regulation to extend the exemption for UCITS funds from 31 December 2019 to 31 December 2021. The PRIIPs Regulation has been the subject of industry criticism, particularly in relation to its requirements around the prediction of future performance and estimations of transaction costs.

On 24 January, the European Parliament updated its procedure files so that the new Directive and Regulations proposed by ECON will be considered in its plenary session of 15 to 18 April. For further information on the proposed changes, please refer to ECON’s reports on the Directive and Regulation.

What is good culture in the investment management industry?

We all know the impact that good culture can have on a business. However, in a speech by Andrew Bailey on the 6 November 2018 at the Investment Association Culture Conference, it would appear that, further to the FCA’s discussion paper on Transforming Culture in Financial Services and the follow up conference, the FCA is looking to bring into focus the importance of culture. In his speech Bailey positioned how good trust and enabling good culture are intrinsically linked.

The focus of Bailey’s speech was on honouring the trust that retail investors put in the investment management industry. The responsibility that comes with trust was another point that was considered, with Bailey describing that it is reasonable that retail investors will want to put their trust in experts who can assist with decisions on saving and investment, which brings into play the culture and behaviour of those in whom trust is placed. In Bailey’s view the 'stakes are high'.

Bailey, referred back to the Asset Management Market Study and discussed some of the broader issues it raised, and how these can affect culture and trust. In particular:

  1. Transparency around fees and charges;
  2. The effectiveness of communication with investors (being, in Bailey’s view 'a test of culture'); and
  3. A tendency toward complacency or a 'lack of curiosity' as to how a firm can challenge itself and improve.

The FCA also hosted a webinar on ‘Creating a Speak up, Listen up culture in financial services’ on 23 November 2018.

Expectations seem to be mounting in this area for the asset management industry. We’ll keep you up to date on the regulator’s view of what good culture looks like as things progress.

European Commission reports on the success of AIFMD

On 10 January, the European Commission published its report on the operation of the Alternative Investment Fund Managers Directive or ('AIFMD'). Based on responses provided by stakeholders most affected by the AIFMD, the report assesses how the AIFMD has worked in practice over the seven years since it came into effect and the extent to which it has met its objectives.

The report generally concludes that the AIFMD has played a major role in helping to create an internal market for AIFs as well as a harmonised and stringent regulatory and supervisory framework for AIFMs. However, it also identifies a number of aims which have not been met and suggests where further improvements may be required. These include:

  • concerns in relation to the data which must be reported as part of the AIFMD reporting requirements
  • binary valuation rules impacting their effectiveness for certain asset classes
  • different interpretations between Member States regarding the depositary rules
  • excessive disclosure requirements to investors.

The report further acknowledges that the EU marketing passport regime under the AIFMD is lagging behind on its implementation due to different approaches taken by Member States.

The report does, however, acknowledge that there may be hidden risks affecting the system as a whole (such as new financial instruments where the embedded risk cannot yet be assessed), which may have yet to materialise since the AIFMD has yet to be fully tested.

The review of the AIFMD is a requirement under the AIFMD itself and the Commission is required to analyse the report and propose appropriate amendments to the AIFMD based on its findings. The Commission will continue its work on the AIFMD, focusing on the specific issues identified in the report and is expected to report to co-legislators later in 2019.

The FCA consults on illiquid assets and open-ended funds

The FCA recently published its consultation on illiquid assets and open-ended funds (CP 18/27) following its discussion paper from February 2017.

Open-ended funds investing in inherently liquidated assets (referred to in the consultation as 'FIIAs') present a challenge for fund managers since the illiquid nature of the FIIA’s underlying assets may inhibit the manager’s ability to raise cash quickly to meet redemption requests, particularly in stressed market conditions such as those following the result of the UK’s referendum on EU membership in June 2016.

The FCA has proposed a package of measures in the consultation which are designed to:

  • reduce the risk of some investors being adversely impacted by the inaccurate valuation of units in FIIAs
  • improve the liquidity management of FIIAs
  • improve the disclosure of such liquidity risks to investors and how such risks will be addressed by the fund manager.

Key highlights from the FCA’s package of measures include:

Suspension of dealings in units

  • Introducing a new rule requiring a manager to temporarily suspend dealing in units where an independent valuer has expressed material uncertainty about the value of immovables representing at least 20 per cent of the value of the scheme property.
  • Giving specific guidance clarifying the circumstances in which it may be appropriate for a manager to suspend dealing where it is in the best interests of the unitholders to do so (for example where redemption demand cannot be met without significantly depleting the scheme’s liquidity or without selling off scheme property at a substantial discount).

Contingency plans

  • Introducing a new obligation on managers operating FIIAs to maintain contingency plans for dealing with liquidity risks which cover, among other things, the procedures the manager has in place with the depositary and relevant third parties to implement its liquidity management tools and arrangements.


  • New guidance on how managers should arrive at a fair and reasonable value for immovables where they need to be sold quickly to meet redemption requests.

Investment and borrowing powers

  • Clarifying, by way of guidance, that cash and near cash should not be accumulated or held for a significant duration in anticipation of unusually high and unpredictable volumes of redemption requests.

Naming requirements

  • Introducing a new rule that managers of FIIAs should include the following identifier – 'a fund investing in inherently illiquid assets' – in the final part of the fund’s name at least once in any communication with retail clients.

Disclosure in the prospectus

  • Requiring that the prospectus of the FIIA must include:
    • an explanation of the risks associated with the scheme investing in inherently illiquid assets and how these might crystallise
    • a description of the tools and arrangements the manager would propose using to mitigate these risks
    • an explanation of the circumstances in which these tools and arrangements would typically be deployed and the consequences for investors.

Financial Promotions

  • Introducing a new rule that all FIIA financial promotions (other than the prospectus/NURS-KII) must include a new risk warning (which must be prominently placed in the promotion) that due to the illiquid nature of the fund’s underlying assets, the investor may experience significant delays and/or the need to accept a discount when redeeming their units.

Respondents have until 25 January 2019 to provide their comments to the FCA, with a policy statement then expected in early 2019. Further details regarding the consultation, including the consultation itself, can be found on the FCA’s website.

How will the temporary permissions regime affect you?

In this blog we consider the FCA’s website update from 24 July 2018 on how the temporary permissions regime will operate.

On the same day, HM Treasury published draft legislation to establish the temporary permissions regime and the PRA also published a website statement on how the temporary permissions regime will operate.

The temporary permissions regime is being introduced to provide a 'backstop' if there is not a formal transition period and the passporting regime falls away when the UK leaves the EU.

In such circumstances the temporary permissions regime will allow EEA firms with inbound passports to continue operating in the UK for a limited period after 29 March 2019. It will also allow funds with a passport to continue temporary marketing in the UK.

As such it is important to note that the regime is intended to operate as a backstop, whereby it will only come into effect if required i.e. if there is no transition period and the current passporting regime falls away when the UK leaves the EU on 29 March 2019 at 23:00.

In these circumstances the regime aims to minimise disruption faced by EEA firms and UK businesses and consumers due to the loss of passporting rights arising from EU withdrawal and will ensure that firms can continue to carry out business as before, for a temporary period after exit day.

It will also mean that firms have appropriate time to prepare for and submit applications for UK authorisation and in the case of funds, UK recognition.

The FCA update covers which firms can use the regime, the additional requirements that will apply, how the regime will operate and the notification process. Firms in the regime will have Part 4A permission.

Securities financing transactions update

It is over two years since the Securities Financing Transactions Regulation (SFTR) first came into effect. The obligation under the SFTR to report securities financing transactions (SFTs) to trade repositaries is, however, yet to apply pending the European Commission’s adoption of the relevant Regulatory Technical Standards (RTS). In an internal communication dated 23 July 2018, the Commission proposed the endorsement of draft RTS prepared by ESMA with limited revisions. The communication could lead to the RTS being finalised and adopted in a matter of weeks and the reporting obligation consequently coming into force next year.

Once the reporting obligation under the SFTR comes into effect, borrowers and lenders of assets, such as bonds, cash and stock will be required to make daily disclosures to a trade repository which includes all the requisite data points specified in the RTS. It is expected that the detailed nature of the reporting requirements will have cost implications for the asset management industry, which has increasingly employed securities lending as a method of seeking greater returns. The cost of compliance may be even greater where the counterpary is located outside the EU and is not subject to the same reporting obligations as the EU party.

Further details regarding the final form of the RTS and likely timescales for its adoption will likely be known in the coming weeks, once ESMA has issued a response to the Commission. For further details on the SFTR, please see our article: Securities Financing Transaction Regulation – The Final Provisions. A copy of the communication (PDF) is also available on the Commission’s website.