K BR IEFIN
Welcome to our quarterly round-up of legal and compliance issues impacting private banks and their clients.
p2 | FCA and PRA Priorities for 2019/20
p2 | Product Intervention: FCA Measures on Binary Options and CFDs
p3 | Complaints: FCA Complaints Data for Second Half of 2018 and FOS Annual Review
p3 | Consumer Protection: Enforcement and Modernisation of EU Rules
p3 | ï¿½Policy:ï¿½Definitionï¿½ofï¿½aï¿½Privateï¿½Bankï¿½inï¿½FCAï¿½Rules
p4 | ï¿½POAs:ï¿½Guidanceï¿½forï¿½Staffï¿½inï¿½Regulatedï¿½Marketsï¿½inï¿½ Relation to Lasting Powers of Attorney, Enduring Powers of Attorney, and Deputy Court Orders
p4 | Unfair Terms: FCA Finds Termination Clause to Be Unfair
p4 | Policy: FCA Feedback Statement on a New Duty of Care
p5 | FCA Call for Input: Evaluation of Retail Distribution Review and Financial Advice Market Review
p5 | TCF: UK Finance Principles for Exiting a Customer
p5 | Payments: New PSR Industry Code Entitles Victims of Fraud to Reimbursement
p6 | MiFID II: ESMA Final Report on Integrating Sustainability Risks and Factors
p6 | MiFID II: ESMA Launches Supervisory Work on Appropriateness
p6 | PRIIPs: European Commission Refuses Opportunity to Clarify Application to Bonds
p7 | Outsourcing: FCA and PRA Fine Bank for Serious Outsourcing Failings
p7 | Lessons From Enforcement: Are Your Competition Risk Arrangements Up to Scratch?
p8 | Global Insights
p9 | TechTrends: IOSCO Report on the Treatment of Cryptoassets
p10 | What to Look Out for in Q3 2019
Issues Impacting the Private Bank Sector
In This Edition
2 | PRIVATE BANK BRIEFING LATHAM & WATKINS
Product Intervention: FCA Measures on Binary Options and CFDs Following its consultation in December 2018, on 29 March 2019 the FCAï¿½setï¿½outï¿½itsï¿½finalï¿½rulesï¿½inï¿½PS19/11 to permanently prohibit the sale, marketing, and distribution of binary options to retail consumers by firmsï¿½thatï¿½carryï¿½outï¿½activitiesï¿½in,ï¿½orï¿½from,ï¿½theï¿½UK.ï¿½Theï¿½prohibitionï¿½hasï¿½ applied since 2 April 2019.
The FCAâ€™s rules are in substance the same as ESMAâ€™s existing ban on binary options, which has applied since July 2018 with some subsequentï¿½modifications,ï¿½althoughï¿½theï¿½FCAï¿½isï¿½alsoï¿½applyingï¿½itsï¿½rulesï¿½ to securitised binary options. These are binary options that are listed on a formal trading venue, are subject to a prospectus, and have minimum contract periods from the point of entry to the expiry of the binary option.
Theï¿½FCAï¿½hasï¿½significantï¿½concernsï¿½aboutï¿½theï¿½saleï¿½ofï¿½allï¿½typesï¿½ofï¿½binaryï¿½ options to UK retail consumers. These concerns are based on evidence of aggressive or misleading marketing of these products, their inherent complexity, a lack of transparency, and the level and speed of retail consumer losses experienced when trading binary options.
Private banks will need to observe the outcome of this consultation closely, as the broad definition of CFDs proposed could potentially capture various structured products.
Meanwhile,ï¿½theï¿½FCAï¿½isï¿½stillï¿½consideringï¿½itsï¿½finalï¿½rulesï¿½forï¿½CFDsï¿½andï¿½ CFD-like options. On 26 April 2019, the FCA published a statement announcing that it is delaying publication of these rules and will publish aï¿½Policyï¿½Statementï¿½andï¿½anyï¿½finalï¿½Handbookï¿½rulesï¿½inï¿½theï¿½summerï¿½ of 2019. Private banks will need to observe the outcome of this consultationï¿½closely,ï¿½asï¿½theï¿½broadï¿½definitionï¿½ofï¿½CFDsï¿½proposedï¿½couldï¿½ potentially capture various structured products. Whether industry feedback on this point will be taken into account by the FCA remains to be seen.
FCA and PRA Priorities for 2019/20 The FCA and the PRA published their Business Plans for 2019/20 in April 2019.
As expected, with Brexit remaining a key focus, there are few new initiatives for this year. The FCAâ€™s Business Plan sets out both cross-sectorï¿½prioritiesï¿½andï¿½sector-specificï¿½priorities.ï¿½Manyï¿½ofï¿½theï¿½FCAâ€™sï¿½ cross-sector priorities (see table) remain the same as in previous years, although the FCA is placing a greater emphasis on operational resilience. The FCA and PRA plan to publish a joint Consultation Paper on building operational resilience towards the end of 2019, following the 2018 joint Discussion Paper. There is also more of a focus on the FCAâ€™s vision for the future.
This ties in with an FCA speech in which Andrew Bailey set out the FCAâ€™s plans for the future of regulation. In the speech, Mr. Bailey discussed the need for a public debate on what the future of regulation should look like. He emphasised the role that outcomes and principles have to play, noting that rules are only one way of achieving the desired outcomes and principles. As part of this plan for the future, the FCA intends to further examine the role of its Principles for Businesses.
Of relevance to private banks, the FCAâ€™s sector priorities include:
â€¢ Evaluating the FCAâ€™s review of the PRIIPs Regulation and consideringï¿½whatï¿½theï¿½FCAï¿½canï¿½doï¿½toï¿½resolveï¿½theï¿½issuesï¿½identified.
â€¢ ï¿½Reviewingï¿½firmsâ€™ï¿½complianceï¿½withï¿½theï¿½MiFIDï¿½IIï¿½productï¿½ governance regime.
â€¢ Finalising the FCAâ€™s proposed pricing remedies in the overdrafts market.
â€¢ Carrying out a second review on suitability of advice and disclosure, and starting to review the impact of the Financial Advice Market Review.
â€¢ Following up on its Strategic Review of Retail Banking Business Models.
â€¢ Ensuring that open banking services are introduced securely.
â€¢ ï¿½Continuingï¿½toï¿½focusï¿½onï¿½marketï¿½abuseï¿½risks,ï¿½particularlyï¿½inï¿½fixedï¿½ income markets.
â€¢ Undertaking diagnostic work to understand access to and use of data in wholesale markets.
The PRAâ€™s Business Plan notes a shift from focusing on post-crisis reforms, to supervisory business as usual. The PRA will switch from helping to establish the ring-fencing regime to policing it, and inï¿½doingï¿½soï¿½willï¿½reviewï¿½firmsâ€™ï¿½proprietaryï¿½tradingï¿½activities.ï¿½Asï¿½wellï¿½asï¿½ concentrating on operational resilience in conjunction with the FCA,ï¿½theï¿½PRAï¿½alsoï¿½plansï¿½toï¿½evaluateï¿½theï¿½effectivenessï¿½ofï¿½theï¿½ SMCR and remuneration policies. Finally, the PRA notes increased expectationsï¿½onï¿½firmsï¿½toï¿½identifyï¿½andï¿½manageï¿½financialï¿½risksï¿½arisingï¿½ from climate change.
FCA Cross-Sector Priorities Current priorities Brexit
Continuing priorities Culture & governance Operational resilience
Fair treatment of existing customers
Strategic challenges The future of regulation Innovation, data and data ethics
PRIVATE BANK BRIEFING | 3 LATHAM & WATKINS
Complaints: FCA Complaints Data for Second Half of 2018 and FOS Annual Review The FCA has published its complaints data for the second half of 2018, and the FOS has published its annual review for 2018/19. Points of note for private banks are set out below.
FCA Complaints Data
â€¢ ï¿½3.91ï¿½millionï¿½complaintsï¿½wereï¿½reportedï¿½byï¿½firmsï¿½inï¿½theï¿½secondï¿½halfï¿½ofï¿½ 2018,ï¿½aï¿½5%ï¿½decreaseï¿½comparedï¿½withï¿½theï¿½firstï¿½halfï¿½ofï¿½2018.ï¿½Thisï¿½figureï¿½ marksï¿½theï¿½firstï¿½timeï¿½theï¿½numberï¿½ofï¿½complaintsï¿½hasï¿½fallenï¿½sinceï¿½firmsï¿½ were required, in 2016, to change the way they report complaints.
â€¢ PPI remains the most complained-about product, followed by current accounts and then credit cards â€” in relation to which complaints are increasing (this trend corresponds to the increase in FOS complaints about credit products, shown below).
â€¢ The total redress paid to consumers in the second half of 2018 was Â£2.26 billion, a 12% (Â£216 million) decrease compared with Â£2.57 billionï¿½inï¿½theï¿½firstï¿½halfï¿½ofï¿½2018.
FOS Annual Review
â€¢ In 2018/19, the FOS received 388,392 new complaints, an increase of 14% on 2017/18.
â€¢ Complaints about consumer credit products and services grew by 89%, representing one in three of all new cases received (excluding complaints about PPI).
â€¢ Complaints arising from the move to online banking, including the impact of banksâ€™ IT failures, have increased.
â€¢ Complaints concerning vulnerability and harm, including the penalisation of customer loyalty in the insurance sector and banksâ€™ treatment of victims of fraud, have come under particular focus.
â€¢ An online portal for use by complainants will be introduced in 2019. This tool will change the way in which complaints can be made, and firms may therefore need to update their customer documentation to reflect this change.
Consumer Protection: Enforcement and Modernisation of EU Rules As part of the European Commissionâ€™s â€œNew Deal for Consumersâ€ package, designed to ensure that the rights of EU consumers are fully respected and that existing consumer protection measures are fitï¿½forï¿½purpose,ï¿½onï¿½17ï¿½Aprilï¿½2019ï¿½theï¿½Europeanï¿½Parliamentï¿½approved a proposal for a Directive that will amend existing consumer protection Directives in the following four areas: unfair commercial practices, consumer rights, unfair contract terms, and price indication.
The Directive is designed to protect consumer rights in the internet age by mandating that online marketplaces and comparison websites provide more information about how online rankings work, and when those rankings derive from paid placements. Such marketplaces and sites will also be required to make the use of online reviews and personalised pricing more transparent for consumers.
Additionally, the Directive will address the â€œdual quality of productsâ€ issue. This is when products marketed under the same brand in differentï¿½EUï¿½countriesï¿½differï¿½inï¿½compositionï¿½orï¿½characteristics.ï¿½Theï¿½ Directive will clarify how national authorities should handle misleading marketing. If a marketing practice meets certain conditions (e.g., itï¿½amountsï¿½toï¿½marketingï¿½productsï¿½thatï¿½haveï¿½aï¿½significantlyï¿½differentï¿½ character or composition as being identical), it may amount to a misleading practice and be prohibited.
Theï¿½Europeanï¿½Councilï¿½isï¿½expectedï¿½toï¿½formallyï¿½adoptï¿½theï¿½Directiveï¿½atï¿½firstï¿½ reading without further discussion at one of its next meetings.
Policy:ï¿½Definitionï¿½ofï¿½aï¿½Privateï¿½Bankï¿½inï¿½FCAï¿½Rulesï¿½ As we reported in the previousï¿½editionï¿½ofï¿½thisï¿½briefing, the FCA had beenï¿½proposingï¿½toï¿½useï¿½aï¿½definitionï¿½ofï¿½aï¿½privateï¿½bankï¿½inï¿½itsï¿½newï¿½rulesï¿½onï¿½ overdrafts that appeared to be unnecessarily restrictive, meaning that someï¿½privateï¿½banksï¿½wouldï¿½notï¿½beï¿½ableï¿½toï¿½benefitï¿½fromï¿½theï¿½privateï¿½bankï¿½ exemption in those new rules. To qualify as a private bank pursuant to thisï¿½definition,ï¿½moreï¿½thanï¿½halfï¿½ofï¿½theï¿½bankâ€™sï¿½(orï¿½brandâ€™s)ï¿½personalï¿½currentï¿½ accountï¿½customersï¿½mustï¿½meetï¿½theï¿½definitionï¿½ofï¿½â€œeligibleï¿½individualsâ€.ï¿½ However, the net worth threshold for eligible individuals was set by reference to assets held in cash and transferable securities only, therefore excluding assets held in most collective investment schemes.
This issue was raised with the FCA, and the FCA reported in its Policy Statement on overdrafts (PS19/16), published on 7 June 2019, that it has taken on board the feedback it received and is amending the
privateï¿½bankï¿½definition.ï¿½Theï¿½FCAï¿½willï¿½removeï¿½anyï¿½referenceï¿½toï¿½howï¿½ assets are held, so that eligible individuals simply need net assets ofï¿½Â£250,000ï¿½orï¿½above.ï¿½Theï¿½definitionï¿½alreadyï¿½appearsï¿½inï¿½BCOBSï¿½7ï¿½ (requirement to publish information about current account services) and will appear in BCOBS 8 (requirements to provide overdraft alerts), both of which also intend to exclude private banks. The FCA is consulting separately, in CP18/19,ï¿½onï¿½amendingï¿½theï¿½definitionï¿½ofï¿½aï¿½privateï¿½bankï¿½inï¿½ the same way in these Handbook provisions.
The fact that most private banks will be able to take advantage of the exemption from the stringent new rules on overdrafts is a welcome development. Private banks should note, however, that the new guidance on refused payment fees will apply to all payment services providers within scope of the Payment Services Regulations 2017.
4 | PRIVATE BANK BRIEFING LATHAM & WATKINS
Policy: FCA Feedback Statement on a New Duty of Care On 23 April 2019, the FCA published a Feedback Statement (FS19/2) to its July 2018 Discussion Paper on a duty of care and potential alternative approaches.
While most respondents agreed that change was needed, they did not agree on the best option for change.
The FCA had previously sought views on whether to introduce a new duty of care and, if so, what form this duty should take. The FCA also sought views on alternative approaches to strengthening consumer protection without introducing a new duty of care.
While most respondents agreed that change was needed, they did not agree on the best option for change. Some respondents felt that there should be a new duty of care, either as a statutory duty, or a duty expressed within the FCAâ€™s Principles for Businesses. Other respondents considered that the SMCR is already initiating the necessary change, and the FCA should wait and see what impact that change has before assessing whether a new duty of care is required.
Regardless of their views as to whether or not a new duty of care is needed, most respondents felt that the FCA should consider changes
to the way it uses the existing regulatory framework. This would include being more willing to take action in relation to breaches of the Principles, and being more transparent about expected standards for good customer treatment.ï¿½Respondentsï¿½considerï¿½thisï¿½approachï¿½wouldï¿½incentiviseï¿½firmsï¿½toï¿½ getï¿½thingsï¿½rightï¿½inï¿½theï¿½firstï¿½place,ï¿½ratherï¿½thanï¿½relyingï¿½onï¿½theï¿½regulatorï¿½toï¿½tellï¿½ them when their practices do not meet expectations.
The FCA concludes that there is not a sufficient basis for introducing a statutory duty of care at this stage, but plans to publish a further paper in autumn 2019 seeking detailed views on specific options for change.
The FCAâ€™s primary focus will be on:
â€¢ Reviewing how it applies the regulatory framework, particularly howï¿½itï¿½appliesï¿½theï¿½Principlesï¿½andï¿½howï¿½itï¿½communicatesï¿½withï¿½firmsï¿½ about this.
â€¢ ï¿½Strengtheningï¿½orï¿½clarifyingï¿½firmâ€™sï¿½dutiesï¿½toï¿½consumersï¿½withï¿½newï¿½orï¿½ revised Principles, including consideration of the potential merits and unintended consequences of a potential private right of action for breaches of Principles.
Private banks should follow these developments closely and consider the impact any change could have on their approach to, and interactions with, their clients.
POAs:ï¿½Guidanceï¿½forï¿½Staffï¿½inï¿½Regulatedï¿½Marketsï¿½inï¿½ Relation to Lasting Powers of Attorney, Enduring Powers of Attorney, and Deputy Court Orders Theï¿½Officeï¿½ofï¿½theï¿½Publicï¿½Guardianï¿½hasï¿½publishedï¿½aï¿½Guideï¿½forï¿½staffï¿½inï¿½ regulated markets in relation to lasting powers of attorney (LPAs), enduring powers of attorney (EPAs), and deputy court orders, which has been written in partnership with the UK Regulators Network, including the FCA.
Theï¿½Guideï¿½aimsï¿½toï¿½helpï¿½firmsï¿½understandï¿½whatï¿½theï¿½lawï¿½requiresï¿½ofï¿½themï¿½ when dealing with powers of attorney and deputy court orders, and containsï¿½guidanceï¿½forï¿½staffï¿½inï¿½regulatedï¿½firmsï¿½on:
â€¢ ï¿½Theï¿½differentï¿½typesï¿½ofï¿½LPAsï¿½andï¿½EPAs,ï¿½whenï¿½theyï¿½canï¿½beï¿½used,ï¿½andï¿½ whichï¿½areï¿½relevantï¿½toï¿½staffï¿½inï¿½regulatedï¿½markets.
â€¢ ï¿½Whatï¿½toï¿½askï¿½forï¿½ifï¿½someoneï¿½informsï¿½theï¿½firmï¿½theyï¿½haveï¿½aï¿½powerï¿½ofï¿½ attorney or deputy court order.
â€¢ How to check that an LPA, EPA, or deputy court order is genuine and valid, as well as the documents that should be retained in this respect.
â€¢ Common issues to look out for when dealing with attorneys and deputies.
â€¢ How to treat attorneys and deputies.
â€¢ How attorneys and deputies must act, and how to deal with any concerns or suspicions raised by an attorney or deputy.
The Guide provides a helpful point of reference for private banks in terms of assessing the adequacy of their policies and procedures, ongoing monitoring, and training. In particular, the Guide contains aï¿½numberï¿½ofï¿½workedï¿½scenariosï¿½thatï¿½privateï¿½banksï¿½mayï¿½findï¿½usefulï¿½toï¿½ provideï¿½toï¿½theirï¿½staffï¿½whoï¿½dealï¿½withï¿½attorneysï¿½and/orï¿½deputies,ï¿½orï¿½toï¿½ incorporate into any training that they may provide in this respect.
Unfair Terms: FCA Finds Termination Clause to Be Unfair On 9 May 2019, the FCA published a new undertaking in relation to an unfair termination clause in a customer contract for investment services.
Theï¿½clauseï¿½inï¿½questionï¿½allowedï¿½theï¿½firmï¿½toï¿½terminateï¿½theï¿½contractï¿½forï¿½anyï¿½ reason, without providing consumers with any advance written notice. Theï¿½FCAâ€™sï¿½concernï¿½wasï¿½thatï¿½ifï¿½theï¿½firmï¿½wasï¿½toï¿½terminateï¿½theï¿½contractï¿½ atï¿½shortï¿½notice,ï¿½consumersï¿½mayï¿½notï¿½haveï¿½sufficientï¿½timeï¿½toï¿½makeï¿½ arrangements with an alternative provider, causing them unnecessary inconvenience and expense.
Theï¿½firmï¿½agreedï¿½toï¿½amendï¿½theï¿½contractï¿½toï¿½provideï¿½consumersï¿½withï¿½atï¿½ leastï¿½20ï¿½businessï¿½daysâ€™ï¿½noticeï¿½inï¿½theï¿½eventï¿½thatï¿½theï¿½firmï¿½terminatesï¿½ the contract. This undertaking indicates that when drafting a termination clause firms must consider how long, in practice, a customer might take to find an alternative service. Private banks should take this factor into account when drafting and reviewing client documentation.
PRIVATE BANK BRIEFING | 5 LATHAM & WATKINS
On 28 May 2019, the Payment Systems Regulator (PSR) published an industry codeï¿½forï¿½theï¿½reimbursementï¿½ofï¿½thoseï¿½whoï¿½haveï¿½sufferedï¿½ authorised push payment (APP) fraud. The code is voluntary, and so far 16 banks and payment service providers have signed up.
Over Â£350 million was stolen from accounts last year through APP fraud, in which a customer is tricked into making a payment to another account that is controlled by a fraudster. Historically, victims of this sort of fraud have struggled to retrieve their money, which the fraudster quickly dissipates after the bank transfers the money in accordance with the customerâ€™s mandate. However, the code provides that customers will be reimbursed in all circumstances in which they have done everything expected of them under the code. These expectations include:
â€¢ ï¿½Takingï¿½appropriateï¿½actionï¿½inï¿½responseï¿½toï¿½anyï¿½â€œeffectiveï¿½warningsâ€ï¿½ given by the bank.
â€¢ Having a reasonable basis for believing that the transaction was legitimate.
â€¢ Having not been â€œgrossly negligentâ€.
Theï¿½codeï¿½makesï¿½aï¿½realï¿½differenceï¿½toï¿½theï¿½positionï¿½forï¿½banksï¿½andï¿½forï¿½ customers. Developments in banking that have led to quick and easy payment methods, combined with increasingly sophisticated cyber scams,ï¿½haveï¿½createdï¿½anï¿½environmentï¿½inï¿½whichï¿½fraudstersï¿½areï¿½flourishing.ï¿½
The code sets out standards of conduct for both sending banks and receiving banks that cover detection and prevention of APP fraud and the banksâ€™ response to it. In particular, these standards provide that sending banks should take reasonable steps to detect APP scams and sendï¿½â€œeffectiveï¿½warningsâ€ï¿½toï¿½potentialï¿½victimsï¿½aboutï¿½theï¿½riskï¿½andï¿½whatï¿½ they should do to protect themselves. However, even with these higher standards, some fraudsters will inevitably succeed, and the default position under the code is that the bank will be liable in these cases.
The code makes a real difference to the position for banks and for customers.
Although the code is voluntary, it is widely anticipated that the PSR will review its voluntary nature in the longer term. The PSR has also indicated that it may introduce legislation to cover APP fraud if voluntary adoption does not progress satisfactorily. Given this indication, and the industryâ€™s continued focus on protecting customers from the threat of APP scams, private banks should consider the contents of the code carefully and be mindful of future developments, such as the planned introductionï¿½ofï¿½â€œconfirmationï¿½ofï¿½payeeâ€ï¿½requirementsï¿½(underï¿½whichï¿½ customersï¿½willï¿½beï¿½alertedï¿½ifï¿½theï¿½intendedï¿½recipientâ€™sï¿½nameï¿½isï¿½differentï¿½ from that of the account holder).
Payments: New PSR Industry Code Entitles Victims of Fraud to Reimbursement
FCA Call for Input: Evaluation of Retail Distribution Review and Financial Advice Market Review On 1 May 2019, the FCA published a Call for Input to assess how the Retail Distribution Review and the Financial Advice Market Review have impacted the market to date, focusing in particular on whether advice and guidance services meet current consumer needs as well as whether they will continue to do so in the future.
The FCA highlighted its concern that parts of the market may be experiencingï¿½problemsï¿½withï¿½conflictsï¿½ofï¿½interest,ï¿½poorï¿½treatmentï¿½ofï¿½ consumers, and misleading or confusing communications â€” meaning
that consumers can struggle to assess the cost of advice and may overpay for services they do not need. The FCA will, however, use the feedback that it receives to the Call for Input (which has now closed) to inform the additional research that it will carry out during 2019.
Theï¿½FCAï¿½intendsï¿½toï¿½publishï¿½itsï¿½findingsï¿½inï¿½2020,ï¿½notingï¿½thatï¿½ifï¿½itï¿½identifiesï¿½ problems in the market, or ways to improve advice and guidance services, it will consider how best to intervene.
TCF: UK Finance Principles for Exiting a Customer On 4 June 2019, UK Finance published a set of principles for exiting a customer. The principles set out the approach that a bank should adopt whenï¿½communicatingï¿½aï¿½decisionï¿½toï¿½aï¿½customerï¿½thatï¿½itï¿½cannotï¿½offer,ï¿½orï¿½ continue with, the provision of its service.
The principles emphasise that, in every such case, a bank must treat the customer fairly and communicate in plain language. If a bank is consideringï¿½whetherï¿½itï¿½shouldï¿½notï¿½offer,ï¿½orï¿½continueï¿½with,ï¿½theï¿½provisionï¿½ of a service to a customer, the bank should discuss the matter with the
customer, so far as is feasible and permissible. The principles also set out the steps that a bank should take once it has concluded that it should notï¿½offer,ï¿½orï¿½continueï¿½with,ï¿½theï¿½provisionï¿½ofï¿½aï¿½serviceï¿½toï¿½aï¿½customer.ï¿½Forï¿½ example, the bank should endeavour to provide an appropriate period of time for the customer to make alternative arrangements.
Private banks may wish to ensure that these principles are integrated into their internal policies and procedures for exiting customers.
6 | PRIVATE BANK BRIEFING LATHAM & WATKINS
MiFID II: ESMA Final Report on Integrating Sustainability Risks and Factors On 3 May 2019, ESMA published its Final Report on technical advice to the European Commission on integrating sustainability risks and factors in MiFID II.
ESMA reports that most respondents agreed with the proposed principles-based approach to integrating sustainability risks and factors, given that a more prescriptive approach might risk stifling innovation or creating regulatory inconsistencies.
As reported in a previous editionï¿½ofï¿½thisï¿½Briefing,ï¿½ESMAï¿½consultedï¿½ on the draft technical advice in December 2018. The technical advice suggests how environmental, social, and governance (ESG) considerationsï¿½canï¿½beï¿½wovenï¿½intoï¿½firmsâ€™ï¿½organisationalï¿½requirementsï¿½ and the product governance and suitability regimes under MiFID II. In theï¿½draftï¿½technicalï¿½advice,ï¿½ESMAï¿½sensiblyï¿½suggestedï¿½aï¿½fairlyï¿½flexibleï¿½andï¿½ pragmatic approach to integrating ESG considerations. For example, in relation to the product governance requirements, ESMA suggested that
the amendments would not mean that investment products need always haveï¿½aï¿½reference,ï¿½inï¿½theirï¿½targetï¿½market,ï¿½toï¿½whetherï¿½theï¿½productsï¿½fulfilsï¿½ ESG preferences or not.
ESMAï¿½hasï¿½finalisedï¿½itsï¿½technicalï¿½adviceï¿½inï¿½relationï¿½toï¿½changesï¿½toï¿½theï¿½ MiFID II delegated acts (concerning organisational requirements and product governance), as it intends to complete amendments to the guidelines on suitability and product governance only after the amended legislation has been approved. ESMA reports that most respondents agreed with the proposed principles-based approach to integrating sustainability risks and factors, given that a moreï¿½prescriptiveï¿½approachï¿½mightï¿½riskï¿½stiflingï¿½innovationï¿½orï¿½creatingï¿½ regulatory inconsistencies. However, many respondents noted the need for a common and reliable taxonomy and standardised practices to be implementedï¿½beforeï¿½theï¿½changesï¿½comeï¿½intoï¿½effect.
The Commission must now develop the technical advice into formal delegated acts. Once these acts are adopted, there will be a 12-month period before the changes enter into force. Work on the common taxonomy remains ongoing and so it is hoped that this work will be finalisedï¿½beforeï¿½theseï¿½changesï¿½takeï¿½effect.ï¿½Clearlyï¿½firmsï¿½willï¿½faceï¿½ difficultiesï¿½ifï¿½theyï¿½areï¿½expectedï¿½toï¿½takeï¿½ESGï¿½considerationsï¿½intoï¿½accountï¿½ whenï¿½thereï¿½isï¿½noï¿½clearï¿½definitionï¿½ofï¿½whichï¿½productsï¿½fitï¿½thisï¿½label.
MiFID II: ESMA Launches Supervisory Work on Appropriateness On 3 June 2019, ESMA announced the launch of a â€œcommon supervisory actionâ€ regarding the MiFID II appropriateness requirements.
Participating national regulators will carry out supervisory work in the secondï¿½halfï¿½ofï¿½2019,ï¿½assessingï¿½howï¿½firmsï¿½applyï¿½theï¿½appropriatenessï¿½ requirementsï¿½throughï¿½aï¿½sampleï¿½ofï¿½investmentï¿½firmsï¿½underï¿½theirï¿½ supervision. ESMA believes that this initiative, and the related sharing of practices across national regulators, will help ensure consistent implementation and application of the MiFID II rules.
This work will use ESMAâ€™s supervisoryï¿½briefingï¿½onï¿½appropriateness
(whichï¿½wasï¿½updatedï¿½inï¿½Aprilï¿½2019)ï¿½asï¿½aï¿½startingï¿½point.ï¿½Theï¿½briefingï¿½isï¿½ aimed at national regulators, and provides an overview of the MiFID II rules on appropriateness, as well as indicative questions that supervisorsï¿½couldï¿½askï¿½themselves,ï¿½orï¿½aï¿½firm,ï¿½whenï¿½assessingï¿½aï¿½firmâ€™sï¿½ approach to the application of the rules.
It is not yet clear which national regulators will participate in the common supervisory action, but private banks may wish to revisit their implementation of the appropriateness rules ahead of any potential supervisory focus on this area.
PRIIPs: European Commission Refuses Opportunity to Clarify Application to Bonds On 28 May 2019, the European Commission published a letter it sent to the ESAs concerning the PRIIPs Regulation. The letter came in response toï¿½theï¿½ESAsâ€™ï¿½letterï¿½ofï¿½lastï¿½July,ï¿½whichï¿½flaggedï¿½concernsï¿½aboutï¿½bondsï¿½ with certain features falling within the PRIIPs regime, and asked the Commission to consider clarifying the scope of the regime.
Unfortunately, however, the Commission has not taken the opportunity to clarify the application of the PRIIPs Regulation to bonds. In the letter, the Commission emphasised that it is necessary to assess each type of bond on a case-by-case basis to determine whether or not the bond is a PRIIP, and that the reason or purpose for which investors acquire the bond is irrelevant for this determination.
Further, the Commission stated that, consequently, even categories of bonds that might appear to fall outside of the PRIIPs Regulation could still contain contractual terms and conditions that would in fact mean
that they are PRIIPs. Therefore, the Commission insists that â€œit is neither feasible nor prudent to agree ex-ante and in abstract terms whether some categories of bonds fall under the PRIlPs Regulation or notâ€.
The remaining uncertainty is unfortunate, as obtaining further clarity ahead of the formal review of the PRIIPs regime, due to take place this year, now seems unlikely.
â€œIt is neither feasible nor prudent to agree ex-ante and in abstract terms whether some categories of bonds fall under the PRIlPs Regulation or not.â€ European Commission
PRIVATE BANK BRIEFING | 7 LATHAM & WATKINS
On 29 May 2019, the FCA and the PRA announced that they had finedï¿½anï¿½independentï¿½UKï¿½bankï¿½forï¿½failingï¿½toï¿½manageï¿½itsï¿½outsourcingï¿½ arrangementsï¿½properly.ï¿½Theï¿½bankï¿½receivedï¿½separateï¿½finesï¿½ofï¿½Â£775,100ï¿½ from the FCA and Â£1,112,152 from the PRA for breaches of the regulatorsâ€™ï¿½high-levelï¿½principlesï¿½forï¿½authorisedï¿½firms,ï¿½asï¿½wellï¿½asï¿½theirï¿½ moreï¿½detailedï¿½rulesï¿½onï¿½outsourcing.ï¿½Eachï¿½fineï¿½includesï¿½aï¿½30%ï¿½earlyï¿½ settlement discount.
The bankâ€™s failings meant that it did not have adequate processes to enable it to understand and assess the business continuity and disaster recovery arrangements of its outsourced service providers.
The bank relied heavily on a number of outsourced service providers, including reliance on third-party card processors for the authorisation and processing of card transactions. The bankâ€™s failings meant that it did not have adequate processes to enable it to understand and assess the business continuity and disaster recovery arrangements of its
outsourced service providers. This lack of preparedness posed a risk to the bankâ€™s operational resilience, which crystallised when a technology incident at a card processor led to the unavailability of authorisation and processing services for over eight hours.
Theï¿½FCAï¿½andï¿½theï¿½PRAï¿½foundï¿½thatï¿½theï¿½bankâ€™sï¿½specificï¿½failingsï¿½resultedï¿½ fromï¿½â€œdeeperï¿½flawsï¿½inï¿½itsï¿½overallï¿½managementï¿½andï¿½oversightï¿½ofï¿½ outsourcing risk, from Board level downâ€, including:
â€¢ A lack of adequate consideration of outsourcing within its board and departmental risk appetites.
â€¢ An absence of processes for identifying critical outsourced services.
â€¢ Flaws in the bankâ€™s initial and ongoing due diligence of outsourced service providers.
This case emphasises the importance of conducting thorough due diligence on outsourced service providers, and ensuring that service providersâ€™ business continuity plans are considered in as much detail asï¿½aï¿½firmâ€™sï¿½ownï¿½plans.ï¿½Withï¿½theï¿½regulatorsâ€™ï¿½ever-increasingï¿½focusï¿½onï¿½ operational resilience, it is a crucial time for private banks to ensure that they have established proper outsourcing systems and controls.
Outsourcing: FCA and PRA Fine Bank for Serious Outsourcing Failings
Lessons From Enforcement: Are Your Competition Risk Arrangements Up to Scratch? The FCA published the full decisionï¿½inï¿½itsï¿½firstï¿½competitionï¿½enforcementï¿½ case on 22 May 2019. This case centred on information-sharing by threeï¿½assetï¿½managersï¿½inï¿½theï¿½lead-upï¿½toï¿½twoï¿½securitiesï¿½offerings.ï¿½
Although the conduct took place in a capital markets context, the case includes some interesting learning points around the sharing of information that are relevant across the financial services sector more broadly.
Notably, the conduct in question was fairly isolated and did not form partï¿½ofï¿½aï¿½broaderï¿½collusiveï¿½effortï¿½byï¿½theï¿½firmsï¿½involved.ï¿½Clearlyï¿½theï¿½FCAï¿½ was keen to make use of its competition powers as soon as it had the chance,ï¿½asï¿½theï¿½securitiesï¿½offeringsï¿½thatï¿½theï¿½regulatorsï¿½investigatedï¿½tookï¿½ place only months after the FCA gained its competition powers in April 2015.
Although the conduct took place in a capital markets context, the case includes some interesting learning points around the sharing ofï¿½informationï¿½thatï¿½areï¿½relevantï¿½acrossï¿½theï¿½financialï¿½servicesï¿½sectorï¿½ more broadly.
For individuals less familiar with competition law, some of these points may be quite surprising and so understanding the sorts of conduct that may be problematic from a competition law perspective is critical.
The FCAâ€™s decision included the following key points:
â€¢ Competitors are prohibited from sharing â€œstrategic informationâ€, that is, information that reduces or eliminates uncertainty by allowing parties insight into how their competitors are likely to behave.
â€¢ The more granular the information, the more likely the information is to be strategic. However, even quite limited information, a one- offï¿½disclosure,ï¿½orï¿½justï¿½oneï¿½pieceï¿½ofï¿½informationï¿½inï¿½aï¿½seaï¿½ofï¿½otherï¿½ information can be strategic.
â€¢ ï¿½Aï¿½two-wayï¿½flowï¿½ofï¿½informationï¿½isï¿½notï¿½necessaryï¿½toï¿½establishï¿½aï¿½breachï¿½ by the discloser or the recipient; one party disclosing strategic informationï¿½toï¿½anotherï¿½partyï¿½isï¿½sufficient.
â€¢ There must be some form of knowing cooperation between parties, but this cooperation can be established if the recipient of the information merely accepted the information. In this context â€œacceptanceâ€ can be implied if the recipient does not distance themselves from the disclosure (for example, by reporting the disclosure to internal compliance).
â€¢ A breach can be established if the parties remain â€œactive in the marketâ€ after the sharing of strategic information, even if they do not alter their subsequent conduct or agree to any sort of joint strategy. Again, distancing oneself from the disclosure and rejecting the information can help avoid the presumption that they have acted in the knowledge of a competitorâ€™s intentions.
Theï¿½FCAï¿½alsoï¿½tookï¿½theï¿½opportunityï¿½toï¿½remindï¿½firmsï¿½thatï¿½theirï¿½knowledgeï¿½ and appreciation of competition law could be much improved. Consequently, private banks should ensure that their employees understand the application of competition law to their activities, and appreciate the circumstances in which disclosing information to, or accepting information from, competitors could breach competition law.
8 | PRIVATE BANK BRIEFING LATHAM & WATKINS
US: SEC Adopts Regulation Best Interest Package
On 5 June 2019, the US Securities and Exchange Commission (SEC) adopted Regulation Best Interest, which requires broker- dealers registered with the SEC to act in the best interest of their retail customers when making a recommendation of any securities transaction or investment strategy involving securities. The purpose of the rule, according to the SEC, is to make clear that a broker-dealer mayï¿½notï¿½putï¿½itsï¿½ownï¿½financialï¿½interestsï¿½aheadï¿½ofï¿½theï¿½interestsï¿½ofï¿½aï¿½retailï¿½ customerï¿½whenï¿½makingï¿½recommendations.ï¿½Theï¿½finalï¿½ruleï¿½doesï¿½notï¿½ explicitlyï¿½defineï¿½whatï¿½â€œbestï¿½interestâ€ï¿½means,ï¿½butï¿½insteadï¿½providesï¿½anï¿½ extensive set of requirements that a broker-dealer must comply with to meet the overarching Regulation Best Interest obligation.
The core of the rule is the requirement that broker-dealers disclose, mitigate, and eliminate conflicts of interest with the client for each recommendation made.
Regulation Best Interest includes the following four components:
â€¢ Disclosure: Broker-dealers must disclose material facts about the relationship between the broker-dealer and the customer, any risks andï¿½feesï¿½associatedï¿½withï¿½theirï¿½recommendations,ï¿½andï¿½anyï¿½conflictsï¿½ of interest related to the recommendations.
â€¢ Care: A broker-dealer must exercise reasonable diligence, care, and skill when making a recommendation to a retail customer.
â€¢ Conflict of Interest: Broker-dealers must establish, maintain, and enforce written policies and procedures reasonably designed to identifyï¿½andï¿½atï¿½aï¿½minimumï¿½discloseï¿½orï¿½eliminateï¿½conflictsï¿½ofï¿½interest.
â€¢ Compliance: Broker-dealers must establish, maintain and enforce policies and procedures reasonably designed to achieve compliance with Regulation Best Interest as a whole.
Theï¿½SECï¿½simultaneouslyï¿½adoptedï¿½aï¿½finalï¿½ruleï¿½mandatingï¿½theï¿½useï¿½ofï¿½theï¿½ Form CRS Relationship Summary. Registered broker-dealers (and investment advisers under the Investment Advisers Act of 1940) will be required to provide retail investors with simple, easy-to-understand informationï¿½aboutï¿½theï¿½natureï¿½ofï¿½theirï¿½relationshipï¿½withï¿½theirï¿½financialï¿½ professional, at the inception of the relationship.
While seemingly straightforward, the complexities that an SEC-registered broker-dealer faces in complying fully with Regulation Best Interest cannot be overstated. The requirements set forth in the rule apply to a broad range of transaction categories and business lines. Furthermore, a â€œretail customerâ€ for the purposes of the rule includes any natural person who receives a recommendation from a broker-dealer with respect to any transaction or investment strategy involving securities, and who uses such recommendation primarily for personal, family or household purposes, irrespective of the personâ€™s netï¿½worth,ï¿½financialï¿½literacy,ï¿½sophistication,ï¿½orï¿½experienceï¿½inï¿½investment- related matters.
Notably, the rule applies to every single transaction a broker-dealer recommends to a client. When a broker-dealer advises a client on more than one transaction, each transaction is considered a distinct recommendation, and the broker-dealer must determine that each transaction serves the customerâ€™s best interest, and also that the cumulative result of the series of transactions is in the best interest of the customer.
The core of the rule is the requirement that broker-dealers disclose, mitigate,ï¿½andï¿½eliminateï¿½conflictsï¿½ofï¿½interestï¿½withï¿½theï¿½clientï¿½forï¿½eachï¿½ recommendation made. The Form CRS Relationship Summary requirementï¿½reflectsï¿½anï¿½initialï¿½layerï¿½ofï¿½disclosureï¿½uponï¿½initiationï¿½ofï¿½theï¿½ relationship, while the ruleâ€™s general disclosure obligation requires additional layers of ongoing disclosure, as required over the course of theï¿½relationshipï¿½toï¿½mitigateï¿½possibleï¿½conflictsï¿½ofï¿½interest.
The SEC has established a compliance date of 30 June 2020. All broker-dealers (and their associated persons) that are registered with the SEC will be subject to the requirements of Regulation Best Interest.
PRIVATE BANK BRIEFING | 9 LATHAM & WATKINS
Hong Kong: SFC Delays Implementation of Online Platform Guidelines and Offline Requirements for Complex Products
On 19 March 2019, the Hong Kong Securities and Futures Commission (SFC) announced that the implementation date of the Guidelines on Online Distribution and Advisory Platforms and the new paragraph 5.5(a) to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission is to be extended by three months, to 6 July 2019.
The Guidelines, which were issued in 2018, set out additional requirements applicable to SFC-licensed or registered persons that operate online distribution and advisory platforms.
The Guidelines, which were issued in 2018, set out additional requirements applicable to SFC-licensed or registered persons that operate online distribution and advisory platforms, including requirements in relation to robo-advisory activities on online platforms, the application of the suitability requirement and other conduct requirements to services provided through online platforms, and the sale of complex products on online platforms. The new paragraph 5.5(a) of the Code of Conduct provides that the additional measures in respect of the sale of complex products under the Guidelines will also applyï¿½toï¿½licensedï¿½intermediariesï¿½inï¿½anï¿½offlineï¿½environment.ï¿½
In light of the marketâ€™s queries on the scope of paragraph 5.5(a) of the Code of Conduct, the SFC issued FAQs on 22 March 2019 and on 13 June 2019 to provide further guidance, notably the following:
â€¢ The requirement under paragraph 5.5(a) of the Code of Conduct is applicable only when a client purchases a complex product on an unsolicited basis.
â€¢ When an execution broker executes orders placed by an investment adviser or asset manager on behalf of a client (i.e., an external asset manager model or shared relationship structure is being used), the execution broker does not need to comply with the requirementsï¿½specifiedï¿½inï¿½paragraphï¿½5.5(a)ï¿½ofï¿½theï¿½Codeï¿½ofï¿½Conductï¿½ and the Guidelines, provided that certain conditions are met.
â€¢ In general, product information disclosures should be made on a transaction-by-transaction basis. Intermediaries may adopt a risk-based approach, having regard to the clientâ€™s circumstances (e.g., the clientâ€™s trading pattern, level of sophistication, and investor experience), when disclosing product information and warning statements for repeat transactions of complex products.
Separately, the SFC has added security tokens to its non-exhaustive list of examples of complex products, which includes products such as exchange traded derivatives and complex bonds. Intermediaries should check this list frequently, as the SFC may update it to include new investment products at any time.
TechTrends: IOSCO Report on the Treatment of Cryptoassets On 28 May 2019, the International Organization of Securities Commissions (IOSCO) published a consultation report entitled â€œIssues, Risks and Regulatory Considerations Relating to Crypto-Asset Trading Platformsâ€. The report aims to assist IOSCO members in assessing and evaluating the risks relating to cryptoasset trading platforms (CTPs). The comment period of the consultation will end on 29 July 2019.
Regulatory authorities globally are beginning to consider more closely theï¿½issuesï¿½surroundingï¿½cryptoassetï¿½trading,ï¿½specifically,ï¿½whetherï¿½ theseï¿½assetsï¿½areï¿½securitiesï¿½orï¿½aï¿½differentï¿½typeï¿½ofï¿½financialï¿½instrument,ï¿½ or whether they should be considered separately as having their own jurisdiction. As an example, the report highlights that, should a CTP trade a cryptoasset that would be considered a security, the basic principles or objectives of securities regulations should apply.
However, uncertainty remains surrounding the application of existing regulationï¿½inï¿½relationï¿½toï¿½cryptoassetsï¿½onceï¿½theyï¿½haveï¿½beenï¿½classifiedï¿½ as falling within scope of regulation. For example, there is a lack of clarity as to how existing consumer and investor protection, market integrity, tax evasion, and anti-money laundering and counter-terrorist financingï¿½requirementsï¿½shouldï¿½applyï¿½toï¿½regulatedï¿½cryptoassetsï¿½andï¿½ the intermediaries who deal with them (including CTPs). Hence, regulators are examining the application of such requirements in moreï¿½detail.ï¿½IOSCOï¿½intendsï¿½theï¿½reportï¿½toï¿½aidï¿½financialï¿½regulatorsï¿½whenï¿½ applying existing regulatory regimes to cryptoassets that fall within their jurisdiction, as well as create a degree of cross-border standardisation in relation to the regulation of cryptoassets.
Regulatory authorities globally are beginning to consider more closely the issues surrounding cryptoasset trading, specifically, whether these assets are securities or a different type of financial instrument, or whether they should be considered separately as having their own jurisdiction.
Acknowledging the evolving nature of CTPs, IOSCO created the report to address some of the unique issues that regulators are facing in the context of CTP regulation. Key considerations and toolkits in the report relateï¿½toï¿½accessï¿½toï¿½CTPs,ï¿½safeguardingï¿½participantï¿½assets,ï¿½conflictsï¿½ of interest, operations of CTPs, market integrity, price discovery, and technology. The report also sets out the relevant IOSCO Principles and Methodologies, looking primarily at those relating to cooperation, secondary and other markets, market intermediaries, and principles relating to clearing and settlement.
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â€¢ The ESAs are expected to hold a public consultation on the review of the PRIIPs KID RTS
â€¢ FCA to issue a Call for Input on data use and access to data in wholesale markets
â€¢ FCA to publish a Feedback Statement on its proposed guidance on cryptoassets
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What to Look Out for in Q3 2019