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Investment Management Regulatory Update – Q3 2012

Developments this quarter

Welcome to the fourth edition of our Investment Management Regulatory Update which summarises the regulatory developments affecting the UK investment management sector.

In this edition we cover key international, European and UK regulatory developments including:

Supervision of asset managers under the FCA – speeches from the FSA 

On 25 September, a number of senior regulators gave speeches at the Financial Services Authority’s (FSA) Asset Management Conference in London.

Martin Wheatley (Managing Director, FSA and CEO designate of the Financial Conduct Authority (FCA)) introduced the conference and spoke on his vision for conduct regulation and how it will affect asset managers.  Mr Wheatley set out that the FCA will seek to use its new powers to act sooner and more decisively.  He highlighted three current issues within the asset management sector:

  • Charging - finding a way to make sure that customers’ reasonable expectations are met and that firms’ conduct allows for the fair treatment of customers.
  • Competition - ensuring effective competition including on fees and charges in addition to aspirational future performance criteria.
  • Understanding customers - understanding why consumers behave in the way they do and making it easier for consumers to make rational decisions, increasing transparency around fees and charges.

Following on from Mr Wheatley, Clive Adamson’s (Director of Supervision, Conduct Business Unit, FSA) speech entitled ‘Supervision of Asset Managers under the Financial Conduct Authority’ set out the FCA’s approach to supervision of firms, including asset managers.  Mr Adamson explained how the FCA’s approach will differ from that of the FSA. This includes the division of firms into four new supervision categories – C1, C2, C3 or C4 – according to their impact on consumers and the market. C1 firms are those likely to be the largest, most complex firms with very large client assets or trading bases whereas C4 firms are likely to be those smaller firms with simpler business models and products. Firms are expected to be notified of their categorisations at the beginning of 2013.

Mr Adamson also outlined the three pillars underlining the FCA’s approach to day-to-day supervision:

  • A new Firm Systematic Framework (FSF) - achieving a forward looking assessment of a firm’s conduct risks by analysing firms’ business models and strategies to ensure that the fair treatment of customers and market integrity are properly embedded in how the firm runs its business.
  • Event driven work - dealing with issues that are emerging or have happened and were unforeseen in their nature. Covering everything from mergers and acquisitions whistleblowing allegations to spikes in reported complaints at a firm.
  • Issues and products - dedicated sector teams working with front-line supervisors and other non-supervision staff to produce Sector Risk Assessments of conduct risks across all sectors.

On the subject of prudential regulation, Mr Adamson noted that the FCA will retain responsibility for the prudential regulation of 23,000 firms. In a shift from the current philosophy of aiming to reduce the probability that a firm fails, the FCA’s aim will be to reduce the impact on customers and the market in the eventuality that a firm does fail. There will therefore be more focus on the ability to achieve an orderly wind-down of a firm’s business, including how resolution could be achieved.

Mr Adamson indicated that more details will be provided in the FCA’s Approach Document which will be issued in October 2012.

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Wealth management: FSA to commence further thematic work 

In August 2012, the FSA stated that it had commenced a new phase of thematic reviews focusing on the suitability of client portfolios in the wealth management sector. This follows a review of the suitability of client portfolios of a sample of wealth management firms in 2011 from which the FSA identified the following as key areas of weaknesses:

  • The inability of firms to demonstrate suitability due to the lack of or out-of-date know-your-client (KYC) information; inadequate risk-profiling; failure to implement Markets in Financial Instruments Directive (MiFID) client classification requirements; inadequate record keeping of a client’s financial situation; and the failure to obtain adequate information on clients’ knowledge, experience and investment objectives.
  • The risk of unsuitability due to inconsistencies between portfolios and the client’s risk appetite; and inconsistences between portfolios and the client’s investment objectives.

The review led to enforcement referrals, skilled person’s reports and significant remediation programmes within the firms that were sampled. The new thematic review will focus on the suitability of client outcomes and will also conduct a direct assessment of firms’ systems and controls in relation to the suitability of client portfolios.

The FSA has stated that it will carry out interviews with key individuals from the firms that were sampled in the previous review. The purpose of these interviews will be to determine whether these firms have sufficiently addressed the FSA’s concerns in relation to identifying the suitability of client portfolios and in identifying and compensating customers who may have suffered in the past as a result of these deficiencies. Additionally, the FSA has expressed concerns that these weaknesses may also be common in other firms within the wealth management industry that were not sampled.

The FSA considers suitability and the ability to demonstrate it a key area of risk within the wealth management sector and will continue to increase its supervisory focus in this area.

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Undertakings for Collective Investment in Transferable Securities (UCITS) Directive update 

European Commission proposals on Packaged Retail Investment Products (PRIPs) and a revision of UCITS

On 3 July, the European Commission published PRIPs and UCITS V proposals as part of a consumer protection package.

PRIPs seeks to harmonise disclosure rules for retail investment products across sectors, proposing the disclosure of the Key Information Document, a concise and highly standardised document, when investment products are sold to retail investors. The proposed Regulation will pose certain strategic and operational challenges for investment product ‘manufacturers’, those that produce investment products as well as those that make substantive changes to the risk or cost structure of an existing investment product, in the lead up to its application date, anticipated in 2015.

UCITS V seeks to harmonise the role and liability of UCITS depositaries, in line with proposals under the Alternative Investment Fund Managers Directive (AIFMD), and promote investor protection through proposing rules relating to the depositary function, remuneration of UCITS managers and sanctions. In particular, UCITS V proposes to strengthen the depositary’s role by increasing its liability and oversight responsibilities.

The Deloitte EMEA Centre for Regulatory Strategy has further information on this topic here.

ESMA guidelines on ETFs and other UCITS issues

On 25 July, the European Securities and Markets Authority (ESMA) published a report and consultation paper on guidelines for strengthening investor protection and ensuring greater harmonisation in regulatory practices. The report focuses on securities lending agreements, repo and reverse repo transactions and over-the-counter (OTC) financial derivatives transactions.

The proposed guidelines require the following:

  • all revenues generated as a result of efficient portfolio management (EPM) techniques should be returned directly to the UCITS;
  • prospectuses will have to be updated to include disclosures of: techniques and instruments to be employed, risks involved, potential conflicts of interest and a policy relating to the costs arising as a result of EPM;
  • the inclusion of EPM techniques in liquidity risk management processes to ensure they do not compromise UCITS’ ability to meet redemption requests;
  • financial indices will only be eligible investments for UCITS when the investor has access to the information needed to replicate the index;
  • UCITS ETFs will be required to include an identifier in their name and be prepared to redeem shares purchased on secondary markets in exceptional circumstances e.g. in times of significant market disruption;
  • UCITS must be able to recall any security lent and terminate any securities lending agreement immediately; and
  • UCITS must combine the risk exposure to a counterparty arising from EPM techniques and OTC financial derivative instrument transactions when calculating counterparty risk limits.

European Commission consultation on the UCITS framework

On 26 July, the European Commission published a consultation paper on product rules, liquidity management, depositary, money market funds and long-term investments regarding UCITS.

The consultation outlines eight key areas for consideration:

  • eligible assets and use of derivatives;
  • EPM techniques;
  • OTC derivatives;
  • extraordinary liquidity management tools;
  • depositary passport;
  • money market funds;
  • long-term investments; and
  • addressing UCITS IV.

This consultation is distinct from the UCITS V proposals published in the previous day, and represents the start of the UCITS VI process under which any further amendments to the UCITS regime will be included.

The Commission has invited industry contributions by 18 October 2012. A feedback statement and proposals will then be produced which may be subject to further consultation before they are presented to the Council of Ministers and European Parliament for adoption under the co-decision procedure.

ESMA publishes Q&As on KIID for UCITS

On 25 September, ESMA published a Q&A on the Key Investor Information Document (KIID) for UCITS  designed to promote common supervisory approaches and practices in the application of the revised UCITS Directive and the related technical implementing measures.

The Q&A addresses issues relating to the following topics:

  • preparation of the KIID by UCITS that are no longer marketed to the public or by UCITS in liquidation;
  • communication of the KIID to investors;
  • treatment of UCITS with share or unit classes;
  • past performance;
  • clear language; and
  • identification of the UCITS.

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Markets in Financial Instruments Directive (MiFID) and Regulations (MiFIR) update 

ECON vote on compromise text

The ECON has voted on compromise amendments to the Commission’s MiFID and MiFIR proposals. Key areas of focus included high frequency trading, the use of organised trading facilities (OTFs), non-discriminatory access to trading venues and central counterparties (CCPs),  third country provisions, position limits and reinforcement of best execution requirements.

The Cypriot Presidency is seeking a General Approach in Council in October 2012 with a view to agreeing the Council position at the November ECOFIN meeting. This should allow trialogue negotiations to begin between the Commission, Council and Parliament with the aim of reaching a first reading agreement by Q1/Q2 2013.

Remuneration consultation paper

On 17 September, ESMA published a consultation paper entitled ‘Guidelines on remuneration policies and practices (MiFID)’. The consultation contains proposed ESMA guidelines to strengthen investor protection by improving remuneration practices.

The proposed guidelines would require firms providing investment services to:

  • ensure remuneration is not paid in a manner intended to circumvent MiFID requirements;
  • design and monitor remuneration policies and practices to take account of potential conduct of business and conflicts of interest risks; and
  • place adequate controls on the implementation of their remuneration policies and practices to ensure that they deliver the intended outcomes.

The focus of the guidelines within the consultation is on the remuneration of all staff involved in the provision of investment or ancillary services – in particular staff that can have a material impact on the service provided, the conduct of business risk profile, or who can influence corporate behaviour.

The deadline for comments is 7 December 2012, after which ESMA intends to publish its final report and guidelines by Q2 2013.

ESMA publishes update on MiFID waivers from pre-trade transparency

On 8 August, ESMA published its update on MiFID Waivers from Pre-trade Transparency to help firms by providing clarity as to the content of the MiFID requirements and to assist them when they intend to develop new trading functionalities. For each of the waivers, the guidance sets out examples of functionalities which do and do not satisfy the criteria contained in MiFID.

The background to this is that under MiFID, operators of Regulated Markets and Multilateral Trading Facilities (MTFs) must make public current bid and offer prices and the depth of trading interests in respect of shares admitted to trading on a regulated market unless exemptions apply. However, MiFID allows competent authorities to grant four types of waivers for the following systems in certain circumstances:

  • reference price systems;
  • negotiated trade systems;
  • order management facilities; and
  • large-in-scale transactions.

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Short Selling Regulation (SSR) update 

FSA CP12/21: SSR– FSA Handbook changes

On 30 August, the FSA published consultation paper CP12/21 seeking views and comments on the proposed amendments to the FSA Handbook in relation to the implementation of the incoming SSR.

The SSR comes into force in all EEA member states on 1 November 2012 and introduces new requirements for reporting significant net short positions in shares and sovereign debt. Given that the SSR is being implemented as a Regulation and not a Directive, it does not require adoption and implementation into domestic legislation and FSA rules. However, some provisions of SSR allow members states discretion as to how they exercise their powers. The FSA is exercising this discretion by proposing changes to the Handbook to ensure the effective implementation of the SSR in the UK.

The discussion points focused on:

  • repeal of the domestic short selling regime;
  • applying the existing penalties regime as set out in the Decision Procedure and Penalties manual (DEPP) to SSR;
  • amendments to SUP which will allow the FSA access to a firm's premises to fulfil its obligations under SSR; and
  • insertion in FINMAR 2 outlining the framework for the use of temporary suspension powers given in SSR.

The consultation period closed on 20 September and the FSA and HMT will finalise rules following the outcome of this consultation paper.

ESMA publishes Q&As on  the implementation of the SSR and certain aspects of credit default swaps

On 13 September, ESMA published a Q&A on the ‘Implementation of the SSR and certain aspects of credit default swaps’ designed to promote common supervisory approaches and practices amongst the EU’s national securities markets regulators on the requirements of the SSR once it comes into force on 1 November 2012 and to provide clarity on the requirements of the new regime to market participants and investors.

The Q&A addresses issues relating to the following topics:

  • territorial scope;
  • transparency requirements;
  • calculation of net short positions;
  • uncovered short sales; and
  • enforcement regime.

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Capital Requirements Directive (CRD) and Capital Requirements Regulation (CRR) 

On 31 July, the European Banking Association (EBA) announced that finalisation of its technical standards on supervisory reporting had been delayed as a result of the push-back in adopting the CRR. As such firms would need some flexibility on reporting in early 2013.

On 1 August, the FSA published a statement expressing doubts whether the relevant legislation will enter into force in time to meet the 1 January 2013 implementation deadline for CRD 4. Nevertheless the FSA confirmed that it will continue to work towards the current timetable and expects firms within scope of CRD 4 to do the same.

On 3 August, the European Banking Industry Committee (EBiC) sent a letter to the European Council, Parliament and Commission outlining its concerns about the tight implementation deadline for revisions to the CRD 4 and the CRR. The letter expressed concern that whilst the new rules currently come into effect from 1 January 2013, the legislation may not be finalised by then and, even if it were, there could be significant changes made to the original proposals in the interim. This could be highly problematic for firms, particularly with regards to the development and improvement of data processes, IT infrastructure and internal risk models where they may struggle to fully understand and embed the new rules within such a tight timeframe.  

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HM Treasury consultation: Recovery and Resolution Plans for Financial Market Infrastructures 

On 1 August, HM Treasury published a consultation paper entitled ‘Financial sector resolution: broadening the regime’. The paper sets out Government proposals and questions for consultation on enhancing the recovery and resolution mechanisms available for dealing with the failure of systemically important non-banks. The consultation outlines four types of non-banks that are most likely to have the potential to be systemically important, which includes investment firms and parent undertakings.

The Government is aiming to establish a resolution regime for systemic investment firms incorporated in the UK which ensures the protection of client funds and assets while avoiding unnecessary interference with the operations of the infrastructure of financial market.

The Government is seeking responses on its proposed design of triggers, objectives, stabilisation powers and safeguards which will form the building blocks of the resolution regime. It is also consulting on whether the existing administration and run-off arrangements should be extended or whether a new comprehensive resolution regime should be introduced. The consultation closed for responses on 24 September 2012.

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FSA consultation and guidance papers 

FSA CP12/19: Proposals to restrict the promotion of Unregulated Collective Investment Schemes (UCIS) and similar products to retail investors

On 22 August, the FSA published consultation paper (CP12/19) which sets out its proposals to ban the promotion of UCIS, qualified investor schemes, securities issued by special purpose vehicles and traded life policy investments to the majority of retail investors in the UK. The FSA has already issued enforcement actions in this area.

The FSA is taking action as, following extensive research, it has concluded that: only one in every four advised sales of UCIS to retail customers was suitable; many promotions were found to breach the restrictions; and only a minority of advice was deemed suitable.

The proposed rules would mean that in the retail market, the promotion of UCIS will generally be restricted to sophisticated investors and high net worth individuals who meet the criteria for whom the products are more likely to be suitable. The proposals include an exemption for investment trusts, covered bonds and mainstream structured products. However, the exemption does not include Venture Capital Trusts (VCTs) or Enterprise Investment Schemes (EIS).

The consultation closes on 14 November 2012 and a policy statement providing feedback and setting out the finalised rules and guidance is expected in the first quarter of 2013.

FSA GC12/11: Risks to customers from financial incentives

On 5 September, the FSA issued a guidance consultation (GC12/11) on the risks to customers from financial incentives.  The paper is designed to help firms identify and manage the risks from incentive schemes. The FSA carried out a review of across a range of authorised firms and is concerned that incentive schemes with high risk features and the potential for sales staff to earn significant bonuses were common.  The paper gives examples of how financial incentive schemes can be a key driver of mis-selling and how firms are not adequately managing these risks.

The guidance sets out a number of potential ways in which firms can comply with the relevant requirements set out in the FSA Handbook, including:

  • properly considering if incentive schemes increase the risk of mis-selling and, if so, how;
  • reviewing whether governance and controls are adequate;
  • taking action to address any inadequacies;
  • where risks cannot be mitigated, taking action to change schemes; and
  • where a recurring problem is identified, investigating, taking action and paying redress where consumers have suffered detriment.

The guidance consultation marks the start of a programme of work to reduce the risk to consumers from poorly managed incentive schemes, which will be taken forward by the FCA.  Responses to the consultation are requested by 31 October 2012.

FSA CP12/22: Combined consultation paper and discussion paper on client money and custody assets regime for firms that undertake investment business

On 6 September, the FSA issued a joint consultation and discussion paper (CP12/22) on the client assets regime: European Market Infrastructure Regulation (EMIR), multiple pools and the wider review. The paper has several purposes:

  • Part I is a consultation on changes to the client assets regime that will modify CASS in order for it to adhere to EMIR. The FSA is proposing to amend CASS to exclude client money that is held by a clearing member firm in a client transaction account at a CCP from the pooling that occurs if that firm becomes insolvent. This is relevant to CCPs and regulated firms that are clearing members of CCPs.
  • Part II includes proposals to radically change client money rules. The FSA is proposing the introduction of multiple client money pools. This is relevant to CCPs and all regulated firms that hold client money in relation to investment business and their clients.
  • Part III seeks to discuss the wider client assets regime as part of a review of the regime. This discussion is relevant to all regulated firms that hold client money and/or custody assets in relation to investment business and their clients. The objectives of the review are to:
    • achieve faster return of client assets following the insolvency of investment firms;
    • reduce impact of insolvency of an investment firm that holds client assets on the market; and
    • achieve a greater return of client assets to clients in the event of insolvency of an investment firm.

The deadline for comments on Part I was 16 October 2012 with feedback and final rules expected in December 2012. The comment deadline for Part II and III is 30 November 2012 with feedback and final rules expected in the first half of 2013.

FSA CP12/24: Regulatory Reform - PRA and FCA regimes relating to aspects of authorisation and supervision

On 13 September, the FSA issued consultation paper 12/24 detailing how the Prudential Regulation Authority (PRA) and FCA would split responsibility for dual regulated firms in certain areas but also contained details of changes proposed to the Skilled Persons regime arising from the proposed changes to the PRA and FCA’s s.166 power. In summary, the proposals are:

  • amendments to reflect the extension of the s.166 power for the FCA to cover recognised investment exchanges;
  • amendments to reflect the power of the regulators to contract directly with the Skilled Person and rules to provide for the costs of a Skilled Person to be payable as a fee by the firm concerned; and
  • amendments to reflect the power of the regulators to commission a Skilled Person to collate or keep up-to-date information, where a regulated firm has breached regulatory requirements to do so.

In 2011/12, the FSA commissioned 111 reports with a total cost to produce the reports of £31m, the costs per report ranged from just under £3,000 to £3m.  

It is anticipated that the regulator will seek to contract directly with the Skilled Person in important cases, having conducted a formal procurement process. Where the regulator contracts directly with the Skilled Person, the Skilled Person will act as an agent of the regulator. This should eliminate any potential conflicts of interest that could arise when the contractual relationship exists between the Skilled Person and the firm under review.

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Futures and Options Association (FOA) publishes guidance for electronic trading environments 

On 20 September, the FOA published its ‘Guidance on Systems and Controls for Electronic Trading Environments’, to provide listed derivative market participants with industry standards that aim to mitigate risks in electronic trading environments.

The FOA’s guidance complements and builds on the ESMA ‘Guidelines on systems and controls in an automated trading environment’ which were published in May 2012. The key objectives of the guidance are to:

  • establish a standard for members to judge the appropriateness of their own control environments in relation to ESMA’s guidelines;
  • clarify the obligations and responsibilities market participants have to each other, their respective regulators and the market as a whole;
  • establish sample documentation and information required to be provided between industry participants to assist in the efficient but safe operation of markets; and
  • explain how the industry is implementing the ESMA guidelines in practice to ensure there is an appropriate control environment to minimise risks posed by electronic trading.

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EMIR – ESMA publishes technical standards for derivatives and CCPs 

On 27 September, ESMA published its final report on the draft technical standards on the European Market and Infrastructure Regulation (EMIR), which set out the specific details of how EMIR’s requirements are to be implemented.

The key changes to the draft technical standards that ESMA has previously consulted on include:

  • Increased transparency and supervision - ESMA has watered down plans to introduce limitations to portfolio margining. It has clarified that collateral reporting can be done on a portfolio basis, that reporting of mark-to-market values only applies to counterparties which have to calculate those values daily; the operation of the clearing thresholds has been set out, clarifying that employees’ benefits and acquisitions are covered by the hedging definition;
  • Reduction of counterparty risks - ESMA has set out the risk mitigation techniques for OTC derivatives that are not centrally cleared, e.g. timely confirmation, portfolio compression and mitigation; and
  • Ensuring sound and resilient central counterparties - ESMA has defined a set of organisational, conduct of business and prudential requirements for counterparties.

The final report has now been sent to the European Commission. The Commission has three months to decide whether to endorse ESMA’s draft technical standards.

The Deloitte EMEA Centre for Regulatory Strategy has further information on this topic here.

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Retail Distribution Review (RDR) update 

As we enter into the final phase of RDR implementation (31 December 2012), formal consultation papers and policy statements have given way to reminders and commentary on specific implementation issues published by the FSA.

In August 2012, the FSA published RDR Newsletter issue 7 covering:

  • the importance of holding the right permissions;
  • templates for disclosure documents;
  • information about gap-fill requirements for structured products; and
  • a reminder about our process for waivers to RDR requirements.

The FSA also uses this publication to flag concerns about wider areas of market development.

Distinction between product costs and the cost of advice

Post RDR, advisory firms are required to ensure that they only recover costs related to adviser charging from their clients. However, the FSA has flagged a concern that it is seeing markedly different approaches to the identification of costs that need to be recovered via the adviser charge and the distinction between these and product costs. Some firms have taken a very narrow interpretation of costs that are in relation to a personal recommendation that need to be recovered. It is clear from the wording of the rule that the regulator’s expectation is that ‘in relation to a personal recommendation’ should be considered in a wider context, i.e. all costs that are associated with being in a position to provide a personal recommendation or a related service. This is therefore intended to include costs such as IT, marketing budgets, property charges and costs relating to business development.

Non-commission payments and benefits

The FSA has already signalled its concern in this area with an article in RDR Newsletter issue 6. The FSA has found a number of firms looking for ways to circumvent the adviser charging rules. This includes soliciting or providing payments that do not look like traditional commission, but are generally intended to achieve the same outcome – to secure distribution. For example, some excessive marketing allowances, ‘pay-to-play’ arrangements and joint ventures could be being used to secure distribution. The FSA has stated that such arrangements are not in the spirit of the RDR and is keeping this matter under review.

For further information, visit www.deloitte.co.uk/RDR.

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Enforcement cases 

There has been a steady stream of enforcement cases published this quarter with 29 final notices appearing on the FSA’s website. As usual, the cases cover a diverse range of firms and sectors but many of the underlying themes are relevant to most authorised firms including investment managers. A selection of cases is set out below.

The FSA has cited issues in respect of the following:

  • Client money - failure to adequately protect client money and the potential for delay in recovering client money in the case of insolvency.
  • Anti-Money Laundering – failure to establish and maintain appropriate risk-sensitive procedures for higher risk activities including enhanced due diligence processes.
  • Suitability of advice and promotion of Unregulated Collective Investment Schemes (UCIS) - inadequate organisation and risk management controls around the suitability of advice given to clients for high risk products.  Promoting UCIS without conducting proper due diligence, failing to comply with the regulatory requirements for promoting a UCIS, using poorly drafted suitability letters and maintaining incomplete records.

The FSA is increasingly using enforcement notices as a method for communicating its position on issues within the industry.  Firms should pay particular notice to the issues raised as the FSA will expect consideration to be given to the outcomes of these cases.  A full overview of the FSA’s enforcement notices is available here.

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