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Legal Shorts 21.04.17 including MiFID II: European Parliament concerns about SIs and EMIR: ESMA opinion on portfolio margining

posted 8 years ago

Welcome to Legal Shorts, a short briefing on some of the week’s developments in the financial services industry.
If you would like to discuss any of the points we raise below, please contact me or one of our other lawyers. 
 
Claire Cummings
020 7585 1406
claire.cummings@cummingslaw.com
www.cummingslaw.com

 

________________________________________
 
MiFID II: European Parliament concerns about SIs

The European Parliament’s MiFID II negotiating team has published a letter to the European Commission setting out its concerns relating to systematic internalisers (SIs) operating broker crossing networks. Although the Commission did set out an approach to the problem in a March 2017 letter, the negotiating team remain concerned about a potential circumvention of the MiFID II framework and are of the view that the Commission’s approach does not represent a sufficient reaction to the issue. The negotiating team expects the Commission to further investigate the matter as a priority and to commit to using legal instruments to address the problem i.e. a delegated act to adjust technical elements of definitions to market and technological developments.

________________________________________
 
EMIR: ESMA opinion on portfolio margining

ESMA has published an opinion on portfolio margining requirements under EMIR. A CCP may allow offsets or reductions in the required margin across the financial instruments that it clears if the price risk of one financial instrument or a set of financial instruments is significantly and reliably correlated, or based on equivalent statistical parameter of dependence, with the price risk of other financial instruments. ESMA’s opinion clarifies when two contracts can or cannot be considered as the same instrument for the purpose of portfolio margining (for all asset classes) and clarifies that CCPs have to limit the reduction in margin requirement when portfolio margining different instruments.

________________________________________
 
EMIR: ESMA signs MoU with NZ regulators

ESMA has entered into a memorandum of understanding with each of the Reserve Bank of New Zealand and the Financial Markets Authority of New Zealand, which means that CCPs established in New Zealand will be able to provide clearing services to clearing members or trading venues established in the EU. The MoUs came into effect as of 28 February 2017.

________________________________________
 
FCA 2017/18 business plan

The FCA has published its 2017/18 business plan, which will focus on the following: (i) firms’ culture and governance; (ii) financial crime and AML; (iii) promoting competition and innovation; (iv) technological change and resilience; (v) treatment of existing customers; and (vi) consumer vulnerability and access to financial services. The FCA has also published for the first time its sector views for 2017, which highlight the issues and developments the FCA sees in the sectors it regulates.

________________________________________
 
FCA mission 2017

In addition to its business plan above, the FCA has also published its Mission 2017, together with a feedback statement (FS17/1) outlining the FCA’s overall responses to its consultation paper on its future mission. The FCA notes that the considerable feedback was generally positive. The Mission sets out, at a high-level, the framework for the strategic decisions the FCA makes, the reasoning behind its work, and the way it chooses which tools to use.

________________________________________
 
FCA publishes minutes of February board meeting

The FCA has published the minutes of its board meeting on 22 and 23 February 2017, which included discussions on the following: (i) the objectives and preferred attributes that would be sought in a candidate for digital technology leadership; (ii) the work being undertaken in preparation for Brexit, including the first meeting of the joint HM Treasury and FCA Senior Steering Board in January 2017; and (iii) issues relating to LIBOR benchmark panels. The board noted the planned publication of a consultation paper in March 2017 that aimed to establish a more stable basis for LIBOR.

________________________________________
 
New FCA webpage on durable medium

The FCA has set up a new webpage which aims to clarify the meaning of durable medium, as well as explaining its origin, purpose and interpretation. The FCA points out that it is essential for firms to understand their obligations when using non-paper methods of communication, and how they might meet those obligations. The FCA is proposing to update the Handbook definition of durable medium by removing references to outdated media.

________________________________________
 
FCA occasional paper on financial promotion

The FCA has published a paper on behavioural insights into the advertising of financial products, which builds on its earlier work into behavioural biases. It summarises a large body of academic literature to explore the mechanisms behind consumer attention, understanding and behaviour. The FCA builds this into a framework for understanding how consumers process information in the form of advertisements. The FCA then applies its findings by looking at what the science says about an advert that may be unclear, unfair or misleading. The FCA advises that understanding psychology and how consumers process information is crucial to understanding the impact of advertisements and identifying when they might be unclear, unfair or misleading.

________________________________________
 
Project Innovate update

The FCA has published a speech which sets out what the next phase of Project Innovate will involve. Points of interest include: (i) the FCA is working more deeply with innovators than this time last year and has received more applications for the second cohort of its sandbox than for the initial cohort; (ii)  the FCA’s Advice Unit, which currently assists firms developing automated advice models, will now have a broader approach, taking in firms within the mortgage, general insurance and debt sectors, as well as firms that want to provide guidance instead of regulated advice; and (iii) the Innovate team has been asked to do more to lead the conversation about emerging trends and innovations.

________________________________________
 
Benchmarks Regulation

The FCA has published an update on the Benchmarks Regulation, which highlights the content of ESMA’s final report, published in March 2017, containing the majority of the final draft RTS and ITS required under the Benchmarks Regulation. The FCA also notes that it plans to publish its consultation paper on UK implementation of the Benchmarks Regulation (which will cover forms) “over the coming months”.

________________________________________
 
EONIA framework

The European Money Markets Institute (EMMI), the EONIA benchmark administrator, has announced that it has adopted an overarching governance framework for EONIA. The framework specifies the governance and control framework for EONIA, including the obligations of parties that play a role in its determination. It is in line with regulatory requirements and comprises the following elements: (i) the governance code of conduct; (ii) the code of obligations of panel banks; (iii) the code of obligations of calculation agent; and (iv) the benchmark determination methodology. The EONIA governance framework will enter into force on 1 August 2017.

________________________________________
 

We   have taken great care to ensure the accuracy of this version of Legal Shorts.   However, Legal Shorts is written in general terms and you are strongly recommended to seek specific advice before taking any action based on the   information it contains. No responsibility can be taken for any loss arising from, action taken or refrained from on the basis of this publication. If you would like to be removed from the mailing list of this publication please click unsubscribe below. Nothing within this communication may be copied, re-printed or similar without prior written consent from Cummings.
Authorised  and regulated by the Solicitors Regulation Authority. Please contact us if you would like to arrange a meeting. This message (including any attachments) from the law firm of Cummings is confidential and may contain information which is proprietary, privileged or otherwise legally protected against unauthorised use or disclosure. If you are not the intended recipient, please do not read, copy, distribute, disclose or otherwise use or place any reliance on any information in this message or any attachments; and please alert the sender by return e-mail, delete this message and any attachments from your system and destroy any hard copies. Neither Cummings nor the sender accepts liability for any corruption, interception or unauthorized amendment of messages or attachments transmitted by e-mail. It is your responsibility to scan this message and any attachments for computer viruses in accordance with good working practice. The firm is not authorised by the Financial Conduct Authority, but is authorised and regulated by the Solicitors Regulation Authority (for the code of conduct please see www.sra.org.uk/rules) and undertakes certain activities in relation to investments which are limited in scope and incidental to its legal services or which may reasonably be regarded as a necessary part of its legal services.

Cummings
Tel: + 44 20 7585 1406
Mob: + 44 7734 057 327

www.cummingslaw.com
21 April 2017 

 

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