News

Jan22

2013 and all that

You may well be thinking that you have had more unsolicited emails about AIFMD than you have had hot dinners. The trouble is that a lot of firms have a lot to do to adjust to the new, vastly superior European standard. Luckily we know from repeated assurances from them that the European Commission is the only body capable of producing really effective regulation. And where it is not effective, that is because national regulators don’t enforce it properly. Which is why MiFID II is introducing standardised enforcement measures. Things can only get better.

The surprising thing is that much of the industry still craves a single European rulebook. This is, I am sure, after they have carefully considered the dichotomy between European standardisation and national control. Would you rather have regulations that are the same as everyone else’s or would you like better ones? Standardisation has its benefits, but so too do good regulation and international competitiveness. And we won’t get them all. This is a live debate because financial services regulation will lie at the heart of UK re-negotiation. The industry can probably, just about, undermine the government’s efforts on this if the wrong voices prevail. The City needs a better-informed debate.

Meanwhile regulatory reform will be the talk of the town. As PRA takes up its new home and holds many a house-warming, the actual impact of the relocated deck-chairs will be modest. Most firms will be regulated only by the FCA rump and will be playing spot the difference. Is this really a new regulator is it the same crew with a similar name, similar rules (mostly European), same base in Canary Wharf, but desperately trying to prove how different it is? Actually that is going to be rather reassuring. After all, it is hardly as if we have not got enough regulatory change on the blocks, neatly lined up next to a series of hobby-horse themes, all of which will mysteriously survive the transmog.

So where do this year’s big risks lie? Watch the FSA lips. It’s promotion of unregulated collective investment schemes. It’s proper protection of client money. It’s conflicts of interest. It’s outsourcing arrangements. It’s anti-bribery procedures. And up to a point it will also be AIFMD readiness. So where do you start? Supervision themes are where the danger lies. If you are caught with trousers down in an area that FSA has already publicly identified as red light zone, you can only hope that you got your money’s worth. Inadequate precautions in any of these marked areas do not look clever.

But it is a different story for AIFMD. The regulator is going to do its best to be kind! FSA/FCA will use every concession that it can to lighten the burden of this directive. Remember how much FSA did not like AIFMD when first published. Some aspects have been tempered, but others have been no more than frayed at the edges by the constant chewing by the governments and regulators of the saner European nations. The point is that the directive reopens many ingrained assumptions about how best to structure an alternative fund. This is a time to look carefully at the cost base, at the implications of using exotic jurisdictions, at the marketing structure, at the agents. Given the transitional time that FSA has promised, it is not impossible to combine mandatory adjustment with strategic change. And that is exactly what the smart money will do.

 

 

Posted in: Miscellaneous
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Sep28

Extra territoriality

At the FSA’s annual Asset Management conference on 25th September, Oliver Lodge pressed US and EU regulators on their justification for imposing extra-territorial regulation. Oliver pointed out that the cost of this strategy was enormous while the benefits were very modest. He pressed them to comment on the implications of the possible spread of the habit and to consider the chaos caused if other countries such as Australia or Singapore took the self same approach. He pointed out that there was no equivalent measure for criminal law; the murder of a US citizen in London is dealt with by the UK authorities. What is the justification for extra-territoriality by financial services regulators?

Unsurprisingly, there were no good responses to the question. The SEC spokesman simply blamed the problem on Congress; the European spokesman said it was an essential aspect of the AIFMD investor protections function.

Given the inadequacy of these responses, Lodge spoke to both representatives in the conference sidelines and got some recognition of the impossible scenario that would result if the practice were to be imitated by others. There was no view on the cost of the requirements nor any rationale for financial services regulation taking a different approach from criminal law.

This is clearly an area where a non-proliferation treaty is needed. Those who have already transgressed should be taken to task at every opportunity so that any further attempts are shredded before they take root. The industry should not resign itself to unproductive, incompatible and expensive regulation for which no cost benefit analysis has ever been produced.

 

 

Posted in: AIFMD, FSA
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Aug6

Promotion of Unregulated Collective Investment Schemes

Many firms received a month ago from the FSA a Dear Compliance Officer letter requiring confirmation that, in the CO’s opinion, the firm had adequate policies and procedures covering its UCIS activities and requiring a range of data relating to those activities. This letter has attracted a great deal of criticism and it is good to see the CISI taking up this issue.

Some have not entirely recognised the trap that the FSA has fallen into on this one. Although it is not new for the FSA to require some form of attestation from firms, this is very rare, in fact possibly unique, in requiring that attestation from the Compliance Officer. In the past the letter has been addressed to the CEO. I suspect that the FSA does not entirely appreciate the great significance of this change.

For firms where the systems for the promotion of UCIS are working perfectly, it is easy enough to provide a positive response to the FSA’s demand. For others this is a real problem. The whole point is, of course, to put the firm, and especially the approved person signing the attestation, on the spot. If they provide confirmation and that proves to be unfounded, the individual is vulnerable to disciplinary action by FSA. Precisely that scenario has arisen in the past, in the context of client money compliance.

So what is the CO who has been pressing senior management to improve controls over UCIS promotion supposed to do? Does he tell the FSA bluntly – and formally – that his firm is not in compliance? That is a step that is bound to cause immense disquiet within the firm, with the real possibility that the CO’s position becomes extremely uncomfortable, to say the least. And if he puts his neck on the line for the firm, what leverage is he left with? The firm will, explicitly or otherwise, act in the knowledge that the CO can no longer criticise the firm’s promotion procedures – he has officially confirmed that they are adequate!

How different this is from the format where it is the CEO who is required to attest to the firm’s compliance. The CEO has the power to change procedures if he is not comfortable with what exists. The sensible CEO will seek guidance from the CO who will be able to point out what needs to be done in the firm to enable the CEO to sign with confidence. The FSA’s objective of procuring compliance will be achieved. An effective tool with a successful outcome. What a contrast.

It is very disappointing to see the FSA forgetting rule No 1 where compliance is concerned: senior management is the responsible party; Compliance is the adviser.

 

Posted in: FSA
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