Fitting it altogether: Other initiatives for the buy side Jonathan Herbst Partner Norton Rose Fulbright LLP 30 July 2013 Other key buy side issues • The EU agenda: • • • • Timings and how the key proposals fit together MiFID for the buy side A word on EMIR UCITS V • The reality of the FCA for managers and custodians and how to deal with it 2 Timeline: EMIR, MiFID and UCITS V August 2012: EMIR enters into force EMIR MiFID 20 June 2012: Council of the EU begins publishing compromise proposals European Parliament considers legislative proposals in plenary and refers them to ECON for reconsideration 2526 October 2012 2012 UCITS V 15 March 2013: Most RTS expected to enter into force First half 2013: ESMA expected to consult on collaterisation 18 June 2013: Council of the EU publishes General Approach November 2012: ECON draft report on Commission’s legislative proposals Mid-2014: First clearing obligations expected to apply 3 July 2013: European Parliament adopts amended version of ECON 24 April 2013: European Parliament report and publishes results of plenary publishes report vote containing draft legislative resolution with proposed amendments From 1 January 2014 at the earliest: Reporting obligations for credit and IRS apply 1 July 2015: Trades start to be reported to ESMA where there is no trade repository Summer 2015: Implementation of MiFiD II legislative proposals (at the earliest) 10 December 2013: European Parliament to vote on legislative proposals 2013 11 December 2012: Council of the EU publishes compromise proposals From 1 July 2013 at the earliest: Reporting obligations for credit and IRS apply 2014 Q4 2013: FCA expected to publish CP on UK implementation of UCITS V Q4 2013: ESMA expected to publish technical advice, guidelines and technical standards 2015 End 2015: Implementation of UCITS V (at the earliest) Remuneration: An example of how the rules fit together CRD IV AIFMD • The CRD IV is a comprehensive review of the EU's prudential requirements • Applies to authorised AIFMs • Same objectives as CRD III - view that CRD III was implemented incorrectly • Applies to MiFID investment firms and credit institutions AIFMD • Regulates the remuneration policies and practices for the AIFM and their ‘identified staff’ CRD • Includes a bonus cap • Applies to AIFMs when undertaking ancillary services set out in Article 6(4) of AIFMD UCITS V MiFID MiFID Guidelines • Focused on ensuring investor UCITS V • Focuses on undertakings for collective investment in transferable securities • Applies to UCITS management companies and UCITS investment companies that do not designate a management company • Detailed ESMA guidance expected Q4 2013 on application of rules protection when investment services are provided under MiFID • Applies to MiFID investment firms and those AIFMs performing ancillary services under Art 6(4) of AIFMD • Bottom up approach with regard to ‘relevant persons’ MiFID II 5 Where have we got to? • Council of the EU: – 18 June 2013: Council published General Approach – 23 compromise proposals so far: Latest published on 10 June 2013 – For several months negotiations have been held in working group at the Council: Council working group in early September and then trialogue dates fixed through September – Disagreement among Member States appears to be on three primary issues: Transparency, non-discriminatory access to CCPs and trading platforms and the new OTF category: Limited relevance to buy side – Lithuania is new Presidency in Q3 and finds MiFID II in its in tray • Level 2 drafts: – ESMA working paper due in early August – ESMA work will then gather pace 6 • European Parliament: – October 2012: Parliament adopted amendments to the legislative proposals but postponed plenary session vote and instead referred them back to ECON for further consideration – Parliament plenary vote now scheduled for 10 December 2013 The thicker layer of EU law: Best execution • General concern that the best execution regime has not been the agent for change it should have been • Well functioning pre-and post-trade transparency regime vital to assessing execution quality • Execution venues to produce public data on quality of execution of transactions: – Improvements in delivering best execution to different category of clients – Improvement in the ability of supervisors to monitor firms' compliance with best execution • Investment firms to produce annual public data on top 5 execution venues for execution of client orders for each class of financial instruments • Commission to produce guidance on relative importance of different execution factors • ESMA to develop draft implementing technical standards on content and format for execution venues and investment firms – ties to concern that current policies are too generic – Superficial view that no change on COBS ignores the Level 2 powers Inducements – Advised sales of funds • Independent investment advisers prohibited from accepting payments or benefits from product providers: – Limited non-monetary benefits permitted e.g. training – Services related to research: Query exact meaning? – But even permitted benefits cannot cut across obligation to act in the best interest of the client • Await to see how these proposals tie in with RDR: – The key question is whether the UK regime is super-equivalent • Further provision in Council text: – Provides that Member States may in exceptional cases impose additional requirements on investment firms – will have to be objectively justified and proportionate • In reality probably not much change from RDR regime with new FCA extensions to execution only sales of products 8 Inducements – The big change in management • Inducements regime amended to ban receipt of third party inducements: – Receipt of commissions by portfolio managers from product providers has attracted attention by regulators, due to the discretionary nature of this service – Going back to CESR, EU regulators have commented re conflict between inducements and duty to act in the best interest of the clients – National approaches vary, e.g. Italian market reaction through reduction in the use of inducements has resulted in an increase in charges on investors – Commission argued that customer would have borne these charges implicitly as the product provider would have charged higher fees to the manager and these fees would have been deducted from the investment returns achieved • Portfolio manager must not accept or receive fees commissions or any monetary benefit: – A lot of issues on the classic fund distribution structures, e.g. payments to distributors and also the problem of dual relationships with discretionary client and with investors to whom units/shares are sold by distribution arm – This may lead to distribution arms being placed in separate entities 9 Inducements – The big change in management • Relevant to institutional management as well as retail sector • Unbundling obligation: – ESMA to develop guidance on cross selling: Firm to tell clients about possibility of unbundling and to provide evidence of costs and charges or each component PRIPs • On a separate track to MiFID • Reminder of headlines: – Very relevant to any retail buy side distribution – All ‘investment product manufacturers’ regardless of sector will have to prepare and maintain a KID for each investment product – Whoever sells an investment product to a retail investor has the obligation to provide him/her with the KID – Definition of ‘investment product’ to include all investment funds, retail structured products and investments packaged as insurance policies – Only investment products that are sold to retail investors will be covered and KIDs should be accurate, fair, clear, short, concise and written in non-technical, jargon-free language – Very low loss burden of proof: The manufacturer will be held liable for any loss suffered by a retail investor due to the use of a KID which does not comply with the requirements of the Regulation – Transitional provisions allow UCITS to continue to use the UCITS-KIID in accordance with the UCITS Directive for five years from the entry into force of PRIPs 11 PRIPs • Next steps: – 18 November 2013: Indicative plenary sitting date for European Parliament – Mid 2015: Date by which the Regulation on KIDs for PRIPs could apply, depending on the date it enters into force PRIPs: How does it all fit together? ECON draft report on PRIPs proposals 20 December 2012 13 Execution only • A variation on the theme that retail investors are being sold risky products without protections: Carve out from appropriateness regime • Addressing the uncertainty in execution-only market between complex and non-complex products • Broader scope of complex products: – Shares in non-UCIT collective investment schemes – Shares that embed derivatives – Bonds that embed derivatives – Bonds with a structure which makes it difficult for a client to identify the risk involved – Money market instruments that embed derivatives/structure which makes it difficult for a client to identify the risk involved – Structured UCITS providing algorithm-based payoffs linked to performance 14 Execution only • Appropriateness regime already well established for CFDs: Warning if not appropriate will continue but no ban on trading • Execution-only services where client is provided with credit or loans to carry out transaction will be treated as complex • Credits or loans such as current accounts and overdraft facilities are not captured The best ex link to the markets debates: OTFs • MiFID in many ways a tale of two halves: Radical change in the markets space and incremental change on most of COBS • Asset managers will need to revisit their best ex policies in the light of new regulatory concepts • Political background is the broker crossing system debate: View against unregulated trading venues and close link to the SI debate • Broadly defined: All types of organised execution and arranging of trading which does not correspond to RM or MTF • Includes: – Broker crossing systems which execute client orders against other client orders – Systems eligible for trading clearing-eligible and sufficiently liquid derivatives • Does not include: – Facilities where there is no genuine trade execution or arranging taking place in the system, such as bulletin boards, entities aggregating or pooling potential interests or electronic post-trade confirmation – Bilateral systems • Key question will be inclusion in policies and the evidence needed to prove best execution from a buy side perspective 16 Extension of transparency regime – May impact asset managers Shares and equity-like instruments Pre-trade Probably not relevant to buy side as only applies to SIs: Extended to equity-like instruments such as depositary receipts, exchange traded funds and certificates traded on a trading venue Some amendments including minimum quote size, two way quotes and price improvement for retail as well as professional clients Other instruments Post-trade 17 Applies where investment firm concludes transaction on behalf of clients so can apply to buy side firms Investment firms must make public trades through an Approved Publication Arrangement Applies to instruments traded on a trading venue but if venue can defer, this should also apply to OTC trades Make public volume, price and time of transaction Unclear how this will work in buy/sell side chains of firms Probably not relevant to buy side as new SI regime extended to bonds, structured finance products, emissions allowances and derivatives Must provide quotes where liquid market and asked by clients Must make available to other clients and trade if up to certain size Price improvement permitted in justified cases Applies where investment firm concludes transaction on behalf of clients so can apply to buy side firms Investment firms must make public trades through an Approved Publication Arrangement Detailed information requirements to be set by Level 2 Competent authority can permit deferral, or restricted disclosure and can suspend and this also applies to OTC trades Unclear how it applies to lookalikes EMIR 18 EMIR overview: Obligations and participants Sell side Definitions CCP clearing Requirements for non-CCP cleared derivatives Reporting 19 Buy side Financial counterparty: Any firm authorised under EU FS legislation including: – MiFID investment firms – CRD credit institutions – Insurance, assurance and reinsurance undertakings – UCITS and their managers – AIFs managed by AIFMs – Institutions for occupational retirement provision • OTC derivatives subject to obligation • OTC derivatives subject to obligation • All financial counterparties • • Intra-group exemptions All financial counterparties but transitional provisions for pension schemes • Intra-group exemptions End users Non-financial counterparty: Any other undertaking established in EU In-scope non-financial counterparty is one whose net positions exceed thresholds to be set by ESMA: – 30 working days – Count OTC derivatives entered into by other non-financial entities in group – Don’t count positions that are objectively measurable as reducing risks directly related to commercial or treasury financing activity • OTC derivatives subject to obligation • In-scope non-financial counterparties subject to possible phase-in • Intra-group exemptions • All non-cleared OTC derivatives • All non-cleared OTC derivatives • All non-cleared OTC derivatives • All financial counterparties • All financial counterparties • • Intra-group exemptions • Pension scheme transitional provision does not apply Some provisions apply to all end users; others just to in-scope non-financial counterparties • Intra-group exemptions • Intra-group exemptions • All derivatives • All derivatives • All derivatives • All financial counterparties • All financial counterparties • All counterparties UCITS V 20 UCITS V: A recap • European Commission published UCITS V legislative proposals in July 2012. Key proposals relate to: • UCITS depositary function: Single appointment similar to AIFMD – Depositary duties: Similar list of duties – Delegation: Same approach as AIFMD on objective reasons and ongoing monitoring of delegate – Eligibility criteria: EEA authorised credit institution or other investment firm custodian – Liability regime: Similar to AIFMD on reversal of the burden for assets in custody – Redress: Creating a level playing field across the EEA UCITS V: A recap • Remuneration – Controversial area: The fixed bonus cap was defeated but a lot of other tough provisions, e.g. not less than 50% of variable in units, considerable clawback required in case of negative performance of fund and at least 25% deferred over life cycle of redemption policy of the UCITS with this normally 3 to 5 years and going up to 60% if variable particularly high – Disclose the amount of remuneration in each financial year in the UCITS fund’s annual report • Sanctions: – Minimum catalogue of administrative sanctions/measures, a minimum list of sanctioning criteria and competent authorities/UCITS managers to establish whistleblowing criteria UCITS V: Where have we got to? • 3 July 2013: European Parliament adopted amended version of an ECON report on UCITS V and published results of plenary vote indicating that agreement reached on: – Depositaries – Remuneration – Sanctions • Negotiations on the final text are on-going with the European Parliament and the Council of the EU • Latest Council of the EU compromise proposals published 11 December 2012 UK implementation: • FCA Business Plan 2013/14: FCA is actively participating with HM Treasury in the on-going negotiations between the European Parliament and the Council of the EU • FCA expects Level 1 text to be agreed Q3/Q4 2013 and will consult on any necessary changes to its rules “shortly thereafter” The reality of the FCA for managers and custodians and how to deal with it 24 The new philosophy: What it means for the buy side • Regulatory objectives: – A lot of work within FCA on competition objective: Competition within financial services in interests of consumers in regulated financial services and markets – Particularly relevant to retail distribution but will also impact wholesale COBS: Also institutional asset management often has underlying retail beneficiaries, e.g. pension schemes – Must insofar as possible advance consumer protection and integrity objective to promote effective competition – Unclear yet how policy will be shaped in this area but questions already much more focussed for firms on competition issues 25 • Threshold conditions: – FCA threshold conditions for FCA authorised firms: Effective supervision, appropriate resources and business model threshold conditions being used to the full – Key point is the breakdown of the compliance versus commercial distinction in the new world – Ties closely into forward looking regulatory intervention and product regulation – Already plenty of evidence on how seriously the FCA is taking this in relation to both asset managers and custodians The end of certainty? - Themed visits • The key message: – Certainty on the cycle of visits and communications has gone: FCA will be preemptive and tough and firms can expect much more challenge • Reminder of FCA firm categorisation: – C1 and C2 to be fixed portfolio firms with a nominated supervisor – C3 and C4 to be flexible portfolio supervised by a team of sector specialists and no nominated supervisor: A lot of firms have or are losing their supervisor • The FCA three pillar supervisory approach: – Firm Systematic Framework (FSF), event-driven work and issues and products – FSF assesses the firm’s conduct risk and aims to answer the question: Are the interests of customers and market integrity at the heart of how the firm is run? – Fewer supervisors allocated to specific firms means more flexibility to assign resources to pillars 2 and 3 – Issues and products: Sector risk assessment which provides an assessment of the conduct risks across a sector – The reality of sector risk assessment is that firms without supervisors never know when the theme arc light may shine on them 26 Practical reality of themed visits • The new world makes life difficult for those firms who have lost their supervisor in particular • FCA will identify an area about which it has concerns or wishes to find out more: Areas may be identified by supervisors, policy work, or by looking at trends in complaints • Ties into FCA comments on wholesale conduct focus: CASS compliance, broker research, conflicts, best execution and distribution all possible areas for themed visits • Objectives of a themed visit: Identify good practice, address identified risks or determine the scale of risks identified from intelligence or surveillance • In reality, tight timing for documentation requests and visit shortly after that: Appears designed to stop “creation” of documentation • Message is to do proper trend analysis and have documentation and people ready at any time: Dawn raid prep is a good comparator 27 Practical reality of themed visits • Key issue for firms is to avoid 166 or disciplinary action: – Much more commercial focus with linkage to the new business model threshold condition: Firms need to be clear how their business model meets the needs of clients and customers – The focus on approved persons – Already seen results in investment managers ABC/AML, conflicts and transition management visits • A new NRF product: The Complete Themed Visit Response – A copy can be found in your seminar packs 28 CASS as an example • FCA is interested in clarity on the role of an asset manager: – Is it holding client money for CASS 7 purposes or just operating mandates? – Is the custody nexus clear: A lot of confusion in the markets about when a manager is arranging custody, providing custody or excluded from both regulated activities? • Do the legal documentation, disclosure material and internal processes all tie together? • In the case of custodians the list of areas to cover is large: – Use of sub-custodians and clarity on territorial scope of CASS – Questions where activities take place from another branch of the entity – Account naming conventions – The quality of the internal documentation – The legal documentation and disclosures to clients • Both managers and custodians should be ready with all their documentation at any time 29 The twist in the tail: Lessons from event driven work • The official position: – SUP 1A.3.4 definition: Dealing with problems that are emerging or have crystallised, and securing customer redress or other remedial work (e.g. to secure the integrity of the market) where necessary – Covers everything from deals where there has been a problem to whistleblowing allegations to spikes in reported complaints at a firm • FCA Business Plan 2013/14: – Delivering consumer protection FCA moving from a reactive approach to a more proactive one – Complex Event-Driven Crystallisation Team aims to resolve issues quickly and decisively • The reality: – Vital for firms to consider Principle 11 and breach notifications carefully as they may trigger referral to crystallisation team – A firm without a supervisor may suddenly find itself the subject of a lot of attention – Even for firms with supervisors the old world in which the supervisor was in control is largely gone: Other forces at work within FCA which have key input on outcomes 30 Pegasus: Our MiFID II online technical resource OTC Oracle: Our EMIR online technical resource Disclaimer Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members (“the Norton Rose Fulbright members”) of Norton Rose Fulbright Verein, a Swiss Verein. 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