A Regulation was published in the Official Journal of the European Union, setting out Implementing Technical Standards on the joint decision process for the application for certain prudential permissions under the Capital Requirements Regulation. The ITS deal with matters including: (i) the involvement of third country supervisory authorities in the assessment process; (ii) the steps and procedures for joint decision processes; (iii) the preparation of assessment reports and arriving at and communicating joint decisions; and (iv) resolution of disagreements and decisions taken in the absence of a joint decision. The Regulation enters into force on February 17, 2016.
 
View the ITS on the joint decision process for the application for certain prudential permissions.

A Regulation setting out Regulatory Technical Standards for prudent valuations under the Capital Requirements Regulation was published in the Official Journal of the European Union. The RTS relate to firms applying the CRR standards to assets measured on a fair value basis. The RTS deal with matters including: (i) the methodology for calculating Additional Valuation Adjustments; (ii) consideration to be given to available market data; and (iii) the simplified and core approaches for the determination of AVAs. The Regulation enters into force on February 17, 2016.
 
View the RTS for prudent valuation.

The US Office of Financial Research issued its 2015 Annual Report to Congress. Among other things, the report states that threats to US financial stability have “edged higher” since last year’s report, but remain in the moderate range. According to the OFR, that assessment has not changed since the Federal Reserve Board incrementally increased short-term interest rates in December. Additional OFR findings highlighted in the report include how policymakers have taken important steps to eliminate implied taxpayer support for large, complex financial institutions whose serious distress could threaten financial stability. Furthermore, the report notes that while clearing derivatives trades through central counterparties has significant benefits in reducing the risks to counterparties of default, a CCP can also be a single point of vulnerability for failure and creates the potential for propagation of risks.

View the OFR Annual Report to Congress. 

The US Commodity Futures Trading Commission announced the signing of a Memorandum of Understanding with the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) and Deutsche Bundesbank (Bundesbank) regarding cooperation and the exchange of information in the supervision and oversight of clearing organizations that operate in the United States and in Germany.

The MOU signifies a willingness among the CFTC, the BaFin, and the Bundesbank to collaborate in order to fulfill their respective regulatory mandates with respect to cross-border clearing organizations in the United States and Germany. The MOU accompanies the CFTC’s decision to grant Eurex Clearing AG registration as a derivatives clearing organization. 

View the MOU.
 

The European Supervisory Authorities published a letter, dated January 26, 2016,  from their Chairpersons to the European Commission on issues arising in the regulation and supervision of cross-selling financial products in the EU. The ESAs – the European Securities and Markets Authority, the European Banking Authority and the European Insurance and Occupational Pensions Authority – are responsible for preparing guidelines on the supervision of cross-selling of financial products for each of the securities, banking and insurance sectors. However, due to discrepancies between EU primary legislation which governs such cross-selling practices across the different sectors, the ESAs are unable to provide harmonized guidelines. The primary legislation includes the Mortgage Credit Directive, the Payment Accounts Directive, the Insurance Mediation Directive and the revised Markets in Financial Instruments Directive.  Differences identified relate to the formal wording of the legislation, scope, level of granularity and date of application. The ESAs consider that a more harmonized approach across the sectors would be beneficial for consumers, financial institutions engaged in cross-selling and national regulators supervising the practice. The ESAs therefore urge the Commission to consider reviewing the underlying legislation, including within the Commission's current consultations on Retail Financial Services in the Banking and Insurance Sectors and/or its Call for Evidence on the regulatory framework in financial services.
 
View the ESA's letter.

The Financial Conduct Authority published a statement on the application of the Senior Manager Regime to a firm's legal function. The SMR will come into effect on March 7, 2016. Firms are required, by February 8, 2016, to notify the FCA and the Prudential Regulation Authority of the individuals, currently Approved Persons, that will be transitioning to the new regime as Senior Managers. The FCA has become aware of significant uncertainty amongst firms as to whether an individual responsible for the firm's legal function would need to be approved as a Senior Manager. Where heads of legal are responsible for compliance, there is a clear need to register, but the position is less clear for heads of legal who do not hold this additional function. The FCA intends to consult further on this issue. In the interim, the FCA advises that firms that have sought to make decisions in good faith about whether an individual needs approval in their firm for this responsibility, based on the current rules and guidance, should not need to change their approach.
 
The PRA is encouraging firms to submit their grandfathering notifications in advance of the February 8 deadline on the basis that some firms that have already submitted the forms have had to re-submit their applications.
 
View the FCA statement.
 
View the PRA website.

 
The Payment Systems Regulator announced that it appointed Mr. Paul Smith as its Head of Policy from February 1, 2016.
 
View the press release.

The European Banking Authority issued a press release announcing the launch of an impact assessment of the forthcoming implementation of the new financial instruments standard, the International Financial Reporting Standards 9, on a sample of around 50 regulated firms across the EU. The new standards supersede the reporting standards for financial instruments in force in the EU since 2005 and change the way financial instruments are accounted for. The new standards will apply to: (i) banks that are required to prepare consolidated financial statements in accordance with the IFRS; (ii) banks that are required to use the IFRS for the determination of own funds; and (iii) certain investment firms. IFRS also apply to listed issuers as a result of the Transparency Directive. The EBA will assess the impact of the new standards on regulatory own funds, the interaction between the standards and prudential requirements as well as how firms are preparing for the implementation of the new standards.
 
View the press release.

The Bank of England issued a press release announcing that Mr. Andrew Bailey has been appointed as the new Chief Executive Officer of the Financial Conduct Authority. In his new role at the FCA, Mr. Bailey will be a member of the Prudential Regulation Authority Board and Financial Policy Committee. Mr Bailey will remain in his role at the PRA as CEO and Deputy Governor and will leave his role as Deputy Governor of Prudential Regulation at the BoE only once a successor has been appointed.
 
View the press release.

The Financial Conduct Authority announced that it has appointed four new non-executive FCA Board members as of April 1, 2016. The new members are Mr. Bradley Fried, Ms. Ruth Kelly, Baroness Sarah Hogg and Mr. Tom Wright CBE.
 
View the press release for Mr. Bradley Fried.
 
View the press release for Ms. Ruth Kelly.
 
View the press release for Baroness Sarah Hogg.
 
View the press release for Mr. Tom Wright CBE.

 
The Chartered Banker Professional Standards Board issued a press release stating that over the past year, over 187,000 bankers achieved the CBPSB's Foundation Standard, meeting the desired target for 2015. The CBPSB is a programme that was launched in October 2011 by eight UK banks together with the Chartered Banker Institute, aiming to encourage professionalism in banking and restore public confidence in the banking industry. The CBPSB includes a Board, consisting of senior industry leaders, as well as a Professional Standards Committee, which engages in standard-setting activities. The CBPSB's standards set out the conduct and expertise required of all professional bankers, as well as the benchmarks against which professional competence can be measured. The Foundation Standard, which is one of three professional standards (the others being the Intermediate Standard and the Advanced Standard) sets out the skill requirements and professional and technical knowledge required by all those working in the banking industry.
 
View the press release.
 
View the Foundation Standard.

The European Securities and Markets Authority published the Memoranda of Understanding it entered into with the Financial Services Board of South Africa and the Comisión Nacional Bancaria y de Valores of Mexico. The MoUs are established further to the European Markets Infrastructure Regulation, under which ESMA is required to set out cooperation arrangements with non-EU authorities whose legal and supervisory framework for non-EU CCPs are deemed to be equivalent to European requirements. The MoUs provide ESMA with the tools to monitor the ongoing compliance of non-EU CCPs with the recognition conditions under EMIR. The MoUs are effective from November 30, 2015 and January 25, 2016 respectively.
 
View the South African MoU.
 
View the Mexican MoU.

The European Commission published a report on the appropriateness of the definition of "eligible capital" under the Capital Requirements Regulation. The definition of "eligible capital" is used for defining large exposures, setting large exposure limits, determining the prudential treatment of qualifying holdings outside the financial sector and setting the capital requirements for investment firms with limited investment services. 

Read more.

The US Commodity Futures Trading Commission granted permanent registration to 18 Swap Execution Facilities that trade interest rate swaps and credit default swaps, all of which were previously operating under temporary registration status. The SEFs approved for registration are: 360 Trading Networks Inc.; BGC Derivatives Markets, L.P.; Bloomberg SEF LLC; Chicago Mercantile Exchange Inc.; DW SEF LLC; GFI Swaps Exchange LLC; ICAP Global Derivatives Limited; ICAP SEF (US) LLC; ICE Swap Trade, LLC; Javelin SEF, LLC; LatAm SEF, LLC; MarketAxess SEF Corporation; SwapEx, LLC; Thomson Reuters (SEF) LLC; tpSEF Inc.; Tradition SEF, Inc.; trueEX LLC; and TW SEF LLC. The CFTC continues to review the registration of five remaining SEFs that are currently operating under temporary registration status. 

View more information regarding the CFTC-registered SEFs. 

Ms. Maria T. Vullo was nominated by New York Governor Mr. Andrew M. Cuomo to serve as the Superintendent of the New York State Department of Financial Services.

View the press release. 

The US Commodity Futures Trading Commission launched a new website to provide the public with information about whistleblower rights and protections, and to allow the public to submit tips about potential violations of the Commodity Exchange Act via the website. The website guides users through filing a tip and applying for an award and contains accessible information about the rules and regulations governing the CFTC’s Whistleblower Program and related updates.

View the CFTC press release. 

View the program website. 

The Board of Directors of the Federal Deposit Insurance Corporation released a revised notice of proposed rulemaking that would amend the manner in which banks with less than $10 billion in assets that have been insured by the FDIC for at least five years are assessed for deposit insurance. The rule reflects comments received on the initial proposed rule on small bank assessments that the FDIC released in June 2015 on topics such as calculation of asset growth and treatment of reciprocal deposits and Federal Home Loan Bank advances. Specifically, the new proposed rule, among other things: (i) uses a brokered deposit ratio as a measure in the financial ratios method for calculating assessment rates for established small banks (instead of the previously proposed core deposit ratio); (ii) removes the existing brokered deposit adjustment for established small banks; and (iii) revises the previously proposed one-year asset growth measure. The new proposed rule, like the June 2015 proposal, seeks to ascertain appropriate assessments that accurately reflect the risks taken by smaller banks. Comments may be submitted for 30 days, following the publication of the proposed amendments in the Federal Register.

View the FDIC press release. 

View the notice of proposed rulemaking. 

US Federal Deposit Insurance Corporation Chairman Martin J. Gruenberg and US Comptroller of the Currency Thomas J. Curry announced interim final rules expanding the examination cycle for institutions with less than $1 billion in assets that meet certain standards, under statutory power granted by the Fixing America’s Surface Transportation Act which was enacted on December 4, 2015. Specifically, the rule will permit institutions with total assets of $200 million or greater and not exceeding $1 billion that receive a composite CAMELS or ROCA rating of “1” or “2,” and that meet other qualifying criteria, to qualify for an 18-month examination cycle. Previously, the longer, 18 month exam cycle was only available to certain insured depository institutions with less than $500 million in assets. Comments on the interim final rule may be submitted for 60 days, following the publication of the proposed amendments in the Federal Register. 

View the FDIC Chairman's statement. 

View the OCC press release.

View the Comptroller's statement. 

View the interim final rule. 

The Financial Conduct Authority issued a consultation paper on loan-based crowdfunding platforms and the segregation of client money. Current FCA client money rules (CASS 7) require that investor monies held by a firm under a Peer-to-Peer agreement (i.e. money that is to be lent or received in repayments) is segregated from the firm’s own money. Money relating to unregulated Business-to-Business lending (i.e. B2B agreements) must also be segregated from investor monies held by a firm (but not from the firm's own money). The FCA's proposals would allow firms to hold client monies in relation to both P2P and B2B agreements together. This change would be less burdensome to firms, as some do not have systems in place that can distinguish between monies held for P2P and B2B agreement purposes. Firms would then be able to segregate P2P and B2B monies from the firm's money, but keep them together, without breaking the FCA rules. Responses to the consultation are due by February 11, 2016.
 
View the consultation paper.

Two international central bank committees published reports on the structure and liquidity of fixed income markets. The Committee on the Global Financial System's report is on fixed income market liquidity whilst the Markets Committee paper is on electronic trading in fixed income markets. The CGFS report identifies liquidity conditions to be prone to disruptions, with signs of fragility, as fixed income markets are seen to be in a period of transition following the effects of ongoing regulatory, technology and market structure changes. The report states that whilst it is difficult to identify the drivers of such fragility, the changes could be due to: (i) a rise in algorithmic trading in fixed income markets; (ii) banks reducing their trading-related exposures in response to lower risk appetite; and (iii) crowded trades and one-sided risk expectations for market participants. The Markets Committee report focuses on the rise in algorithmic trading, which tends to facilitate the matching of buyers and sellers and in turn usually improves market quality, but can also result in liquidity conditions that are less resilient in times of stress.
 
View the CGFS report.
 
View the Markets Committee report.

US Federal Deposit Insurance Corporation Vice Chairman Thomas M. Hoenig gave a speech to the Peterson Institute for International Economics, during which he challenged the Federal Reserve Board’s proposal on TLAC. While agreeing that converting debt is often part of a reorganization or recovery strategy, Hoenig discussed the risks of increased debt levels on the stability of the banking system. The proposed TLAC rule requires GSIBs to maintain sufficient long-term debt to facilitate a Single Point of Entry resolution approach, wherein only the top-tier holding company would be put into receivership and through conversion of debt to equity the operating subsidiaries would be recapitalized. Hoenig noted that the proposed rule estimates that to meet a collective $680 billion long-term debt requirement, GSIBs will need to issue approximately $100 billion in new debt. Hoenig also discussed the negative consequences of the proposal, notably the leverage that it would add to an already highly-leveraged industry, as well as the fact that it may encourage firms to adopt an SPOE resolution strategy and otherwise change their business models even where their Title I resolution plans do not currently contemplate an SPOE plan. The Vice Chairman suggested that “(t)he long-term debt requirement would place added earning demands on the banking system and could be counter-productive, especially during a period of financial stress”. Hoenig also suggested that rather than imposing a rule that facilitates only the SPOE strategy, regulators may want to adopt an approach that is tailored to the business model and resolution plan of each individual institution, even where the approach might call for varying debt and equity requirements. 

View the Vice Chairman's speech. 

The European Banking Authority published proposed Guidelines on implicit support for securitization transactions (i.e. support provided by a firm where it is not contractually obliged to do so), as required by the Capital Requirements Regulation. Examples of implicit support include purchases of deteriorating credit risk exposures from an underlying pool or improvement of quality of credit enhancements through the addition of higher quality risk exposures. The CRR requires that any reduction in capital requirements gained through a securitization must be justified by a corresponding transfer of risk to third parties. The CRR restricts the provision of implicit support, because it does not result in significant risk transfer to third parties, by requiring firms to hold a minimum of own funds against all of the securitized exposures as if they had not been securitized. A transaction is not considered to provide support if it is executed under arm's length conditions and is taken into account in the assessment of significant risk transfer. The EBA's proposed Guidelines cover what constitutes arm's length conditions and when a transaction is not structured to provide support. 

Read more.

The Prudential Regulation Authority and the Financial Conduct Authority announced the launch of their new joint initiative, the New Bank Start-up Unit, which will provide information and support to newly authorized banks and those wishing to become a new bank in the United Kingdom. This initiative will help new banks through the regulatory authorization process via the use of dedicated PRA or FCA staff members, a dedicated website, helpline and email address. Case officers will be allocated to firms during the authorization process. The PRA and FCA have also published a guide on the New Bank Start-up Unit which includes useful information for those aiming to set up a bank.
 
View the Guide.

The US Board of Governors of the Federal Reserve System approved an application by Union di Banche Italiene, S.p.A., a foreign bank headquartered in Italy, to establish a representative office in New York under section 10(a) of the International Banking Act of 1978. UBI is organized as a joint stock corporation under Italian law and has total assets of approximately $108 billion. As part of its evaluation under the IBA and Regulation K, the Federal Reserve Board noted its previous determinations that other banks in Italy were subject to comprehensive, consolidated supervision by the Bank of Italy alone. However, UBI became subject to direct prudential supervision by the European Central Bank pursuant to the Single Supervisory Mechanism as of November 2014. This order appears to represent the first Federal Reserve Board order under the IBA since the SSM took effect, finding that a foreign bank is subject to comprehensive, consolidated supervision by the ECB and a home country supervisor (the Bank of Italy) acting through the SSM. 

View the order. 

The European Securities and Markets Authority published a letter from the European Commission, dated December 17, 2015, on ESMA's advice and opinion on the passport under the Alternative Investment Fund Managers Directive. ESMA advised the Commission in July 2015 on the extension of the EU passport under the AIFMD to managers and funds in to Guernsey, Jersey and Switzerland but advised that due to a lack of evidence for Singapore, Hong Kong and the US, it was unable to provide assessments for those jurisdictions. In the letter, the European Commission asks ESMA to provide an assessment for the US, Hong Kong, Singapore, Japan, Canada, Isle of Man, Cayman Islands, Bermuda and Australia by June 30, 2016. In addition, the Commission requests that ESMA provide: (i) a more detailed assessment of the capacity of third country supervisory authorities and their enforcement track record; and (ii) a preliminary assessment of the expected inflow of funds by type and size into the EU from the relevant third countries. The Commission concurs that a further opinion from ESMA on the functioning of the EU passport under the AIFMD and on the operation of the National Private Placement Regime is warranted once the AIFMD has been transposed into all of the Member States. It is noted that such an opinion would be useful ahead of the review of the AIFMD planned for 2017.
 
View the Commission's letter.  

A letter addressing possible competition issues between established and challenger banks dated October 7, 2015 sent from the Chairman of the Treasury Committee, Mr. Andrew Tyrie, addressed to the Deputy Governor for Prudential Regulation at the Bank of England, Mr. Andrew Bailey, was published. The letter refers to the potential difficulties challenger banks may face in satisfying the conditions required to use the Internal Ratings-Based approach for calculating credit risk. Mr. Tyrie is concerned that newer banks may be at a competitive disadvantage to more established banks, given that the IRB approach leads to lower capital requirements compared to the Standardized Approach which newer smaller banks would be able to use more easily. The letter asks whether: (i) the new corporation tax regime for banks encourages competition between new and established banks; (ii) adaptations made by the Prudential Regulation Authority's to capital requirements for new banks will be effective in overcoming the competitive disadvantage that new banks may face; (iii) the PRA has plans to make further adjustments to capital or other requirements for new banks; (iv) the PRA is restricted, and if so, to what extent, from making further adjustments to newer banks' capital requirements under the Capital Requirements Directive IV or other EU legislation; and (v) there has been a reduction in requests for pre-application discussions with the PRA and Financial Conduct Authority since the new tax regime was announced in July 2015.
 
View the letter.

The European Systemic Risk Board published a report on the systemic risk implications of CCP interoperability arrangements which are governed by the European Market Infrastructure Regulation. There are currently five interoperable links in operation in the EU, including four authorized EU CCPs, a Swiss CCP and its Norwegian branch. The ESRB considers that the EU's current regulatory framework for interoperability is sound. However, the ESRB recommends that: (i) more regulatory granularity should be included in the framework to provide clarity for supervisors and regulators, to avoid regulatory arbitrage and to ensure a harmonized EU approach; (ii) the expected proposed legislation on CCP recovery and resolution should clarify the interaction of an interoperability arrangement with the default waterfall framework as well as portability and other default management measures; (iii) further analysis of the risks involved in interoperable arrangements for derivatives should be carried out; and (iv) the ESRB should be given a consultative role on the future development of any guidelines and rules on interoperability. The European Securities and Markets Authority recommended in February 2015 that the interoperability provisions in EMIR, which are limited to transferable securities and money-market instruments, should not be extended to OTC derivatives but could be extended to Exchange-Traded Derivatives. The European Commission must take the ESRB and ESMA reports into account when it prepares its report to the European Parliament and Council on the issue.
 
View the ESRB report.

The US Securities and Exchange Commission reopened the comment period for proposed amendments to rule 13n-4 of the Securities Exchange Act of 1945. The Dodd-Frank Act added sections 13(n)(5)(G) and (H) to the Exchange Act, requiring security-based swap data repositories to make data available to certain regulators and other entities, subject to certain conditions. The SEC proposed rules to implement those data access conditions on September 14, 2015. As part of the Surface Transportation Reauthorization and Reform Act of 2015 (Public Law 114 94) signed into law on December 4, 2015, certain of those conditions were revised, including, most notably, eliminating a requirement that the recipient of such data agree to indemnify the swap data repository and SEC for expenses arising from litigation relating to the information provided. The law also clarified that the data access was limited to security-based swap data, and not all data maintained by the repository, and added “other foreign authorities” to the list of entities that the SEC may determine it is appropriate to provide access to. Comments may be submitted for 30 days, following the publication of the proposed amendments in the Federal Register.

View the proposed amendments. 

The US Commodity Futures Trading Commission’s Division of Market Oversight extended no action relief originally provided in CFTC Letter 13‑41, which was issued on June 28, 2013. CFTC Letter 13-41 permits Part 45 and Part 46 reporting counterparties to mask legal entity identifiers, and certain other enumerated identifiers and identifying terms, and permits Part 20 reporting entities to mask identifying information, in required reports in light of privacy, secrecy and blocking laws in certain jurisdictions. The CFTC previously extended this relief through CFTC Letter 15-01, and is now further extending relief, subject to certain conditions, until the earlier of March 1, 2017 and the date that the reporting party no longer holds the requisite reasonable belief that privacy law bars reporting. 

View the CFTC press release. 

The US Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation and Office of the Comptroller of the Currency released an advisory indicating support for the Basel Committee on Banking Supervision’s March 2014 guidance entitled “External audits of banks” for internationally active banks. The advisory notes that while the guidance is largely consistent with existing US standards and practices, there are certain differences between the principles and the expectations of US regulators. The advisory defines “internationally active banks” as insured depository institutions that have consolidated total assets of $250 billion or more, consolidated total on-balance sheet foreign exposure of $10 billion or more and US depository institution holding companies that meet, or have a subsidiary depository institution that meets, the same standards (with the calculation of consolidated total assets excluding assets held by insurance underwriting subsidiaries, in the case of bank holding companies). Key differences highlighted in the advisory include: (i) unlike the guidance, US standards and practices do not require “tendering”, i.e., putting an external audit contract out for bid, but the US banking agencies recommend that institutions consider whether such practice is appropriate; and (ii) while the US banking agencies encourage open communication between external auditors and a financial institution’s supervisor, there is no generally applicable requirement for an external auditor to report directly to the institution’s primary regulators.

View the interagency advisory statement. 

The US Commodity Futures Trading Commission issued an order under the Commodity Exchange Act delegating to the National Futures Association certain reporting and administrative responsibilities, effective March 1, 2016. The NFA will receive, review and maintain notices of swap valuation disputes in excess of $20 million USD filed by swap dealers and major swap participants pursuant to CFTC regulation 23.502(c). The NFA will also be responsible for providing summaries and periodic reports related to these notices to the CFTC. The NFA is not authorized to render “no-action” positions, exemptions or interpretations with respect to applicable disclosure, reporting, recordkeeping and registration requirements.

View the order. 

The Basel Committee on Banking Supervision has published revised standards on minimum capital requirements for market risk, which form part of the new market risk framework as endorsed by the Group of Central Bank Governors and Heads of Supervision, known as GHOS, the Basel Committee's governing body. Improvements in the new risk framework include: (i) a revised boundary between the banking and trading books that will reduce scope for arbitrage; (ii) a revised internal models approach with more coherent and comprehensive risk capture; (iii) an enhanced model approval process and more prudent recognition of hedging and portfolio diversification; and (iv) a revised standardized approach that serves as a credible fall-back and floor to the model-based approach and facilitates more consistent and comparable reporting of market risk across banks and jurisdictions. The Basel Committee will also finalize its efforts to address the problem of excessive variability in risk-weighted assets by the end of this year. These efforts will include a proposal to remove the internal model approach for credit risk and limits on the use of internal models for credit risk (in particular, through the use of floors). The GHOS also agreed that the final design and calibration of the leverage ratio should be based on a Tier 1 definition of capital and should comprise a minimum level of 3%. The Basel Committee will finalize the calibration in 2016 to allow time for the leverage ratio to be implemented as a Pillar 1 measure by January 1, 2018.
 
View the revised minimum capital requirements for market risk.

The Prudential Regulation Authority published a consultation paper on proposals to introduce new rules on buy-outs of deferred variable remuneration, i.e. where a firm compensates a new employee for deferred variable remuneration not received from a previous employer due to the employee having left the former firm. The new rules would apply to PRA-regulated banks, building societies and designated investment firms and would amend the existing Remuneration Part of the PRA Rulebook (known as the PRA Remuneration Code until the PRA and Financial Conduct Authority Remuneration Codes were split). Current remuneration rules, which seek to encourage greater alignment between risk and reward as well as more effective risk management,  allow employers to withhold or reduce unpaid or unvested awards (i.e. the rules of malus) or recoup paid or vested awards (i.e. the rules of clawback). The practice of buy-outs could undermine these rules as employees could potentially evade being accountable for actions they carried out in their previous employment by moving to a new employer who buys-out their cancelled deferred remuneration. The PRA proposes that buy-out terms in contracts between new employers and employees should allow for malus or clawback to be applied following a notification by the old employer if an employee is found guilty of misconduct or risk management failings in his previous employment. The PRA is proposing to allow new employers to apply for a waiver for each employee if they believe the old employer's decision to apply malus or clawback was unfair or unreasonable. Responses to the consultation are due by April 13, 2016.
 
View the consultation paper.

The European Banking Authority published: (i) revised final draft Implementing Technical Standards on the uniform formats and date for disclosure of values used to identify Global Systemically Important Institutions; (ii) revised final draft Regulatory Technical Standards on the specification of the methodology for the identification of G-SIIs; and (iii) draft revised Guidelines on the further specification of the indicators of global systemic importance and their disclosure under the Capital Requirements Directive IV. 

Read more.

The US Securities and Exchange Commission issued its Office of Compliance Inspections and Examinations’ 2016 priorities. Areas of focus for this year include liquidity controls, public pension advisers, product promotion, and two investment products – exchange-traded funds and variable annuities. The priorities also provide for continuing emphasis on protecting investors in ongoing risk areas such as cybersecurity, microcap fraud, fee selection, and reverse churning. The examination priorities address issues across a variety of financial institutions, including investment advisers, investment companies, broker-dealers, transfer agents, clearing agencies, and national securities exchanges. The priorities may be adjusted in light of market conditions, industry developments and ongoing risk assessment activities. OCIE selected the priorities in consultation with certain SEC policy divisions and regional offices, the SEC’s Investor Advocate, and other regulators.

View the SEC press release.

View the SEC examination priorities for 2016.

The Consumer Financial Protection Bureau announced that Mr. David Silberman will serve as Acting Deputy Director beginning the week of January 11, 2106, replacing Meredith Fuchs. Mr. Silberman previously served as Associate Director for Research, Markets, and Regulations. Mr. Silberman will serve as Acting Deputy Director while a search for a replacement is conducted.

View the CFPB press release.

The European Central Bank's Banking Supervision division published its priorities for 2016. Under the Single Supervisory Mechanism Regulation, the ECB is responsible for the direct prudential supervision of the largest Eurozone banks and indirectly responsible for prudentially supervising the smaller Eurozone banks. The priorities, which aim to direct the ECB's supervision of the largest Eurozone banks, are business model and profitability risk, credit risk, capital adequacy, risk governance and data quality and liquidity. The ECB will be implementing initiatives around the priorities during 2016, including thematic reviews and holding dialogue with the banks.
 
View the 2016 SSM Priorities.

The Prudential Regulation Authority and the Financial Conduct Authority published proposed changes to their notification rules and forms under the Senior Managers and Certification Regimes. The regulators are proposing the changes in light of the changes to the regime that have been proposed by the UK Government, including extending the Regime to all financial services firms, removing obligation on a firm to notify the PRA or FCA when it knows or suspects that a senior manager or certified person has failed to comply with the conduct rules and replacing the presumption of responsibility with a duty of responsibility. It remains to be seen whether Parliament will approve those changes proposed by the Government. An amending Order, published in December 2015, stops the above-mentioned notification requirement and the presumption of responsibility from coming into force on March 7, 2016 – the date when the remainder of the new Regime will come into effect. The regulators therefore intend to amend their rules and forms to reflect the position that those provisions of the Regime will not enter into force on March 7, 2016. The PRA has also published an updated Supervisory Statement to take into account the changes. The consultations close on February 8, 2016.
 
View the PRA consultation paper.
 
View the FCA consultation paper.
 
View the PRA's updated Supervisory Statement.

The European Commission published a report on the effect of the revised International Accounting Standard 19 on the volatility of own funds of banks and investment firms. The Capital Requirements Regulation requires the Commission to assess whether the revised IAS 19 and the requirement on firms to deduct defined-benefit pension fund assets from Common Equity Tier 1 items for the purpose of calculating own funds would impact the volatility of the firm's own funds. The Commission has concluded that the potential additional volatility of own funds introduced by the revision of IAS 19 is limited and that the impact due to initial application has been mitigated by the transitional measures included in the CRR. The Commission therefore does not intend to propose amendments to the CRR in this regard.
 
View the report.

The Federal Reserve Bank of New York announced the end of its Mortgage Operations Counterparty Pilot Program on December 31, 2015. The program, first announced in August 2014, was intended to discover ways to expand the range of firms acting as counterparties in the Federal Reserve’s open market operations, and to analyze the extent to which firms beyond the primary dealer community can raise the New York Fed’s operational capacity and resiliency in its monetary policy operations. Three firms participated in the MOC pilot program and began transacting with the Open Market Trading Desk in secondary market outright operations of agency mortgage-backed securities in December 2014. The results of the pilot programs will provide useful inputs in the Desk’s ongoing evaluations of the Federal Reserve’s counterparty framework.

View the New York Fed press release. 

The US Commodity Futures Trading Commission proposed a rule offering an alternative to the requirement for foreign natural persons to provide fingerprints when applying for CFTC registration. The proposal provides that any such person’s registered firm may complete a criminal history background check instead of submitting fingerprints. The proposal generally codifies CFTC Staff Letters 12-49 and 13-29 and would supersede those letters, if adopted. Comments on the proposed rule are due on or before February 11, 2016. 

View the CFTC press release. 

View the proposed rule. 

A European Central Bank Recommendation on dividend distribution policies for Eurozone banks was published in the Official Journal of the European Union. The recommendation is aimed at significant supervised entities (i.e. significant banks) and significant supervised groups (each as defined in the Single Supervisory Mechanism Framework Regulation) as well as national regulators. Under the SSM Regulation, the ECB is responsible for the direct prudential supervision of significant Eurozone banks. The Recommendation states that banks must use conservative and prudent assumptions when establishing dividend policies so that any applicable capital requirements, for example minimum capital requirements or countercyclical capital and systemic buffers, are still met after any distribution. The recommendation also makes suggestions for different categories of banks paying dividends for the 2015 financial year in 2016: (i) banks that satisfy the applicable capital requirements and have reached their fully loaded (i.e. calculated without applying the transitional provisions as set out in the Capital Requirements Regulation) capital ratios as at December 31, 2015 should distribute net profits in dividends conservatively; (ii) banks that satisfy the applicable capital requirements, but have not reached their fully loaded ratios as at December 31, 2015 should distribute net profits in dividends conservatively and in principle should only pay out dividends if a linear path to the required loaded capital requirements is secured; and (iii) banks that do not satisfy the applicable capital requirements should not distribute dividends. The Recommendation also states that should a bank not be able to comply with the ECB's Recommendation due to a legal obligation to pay out dividends, it should contact its supervisory team immediately.

View the Recommendation.

The revised EU Payment Services Directive, known as PSD2, was published in the Official Journal of the European Union. The aims of PSD2, which focuses on electronic payments and payment services within the EU, include making payments between Member States as secure, easy and efficient as those made within a Member State, regulating new types of payment services and payment services providers which are currently unregulated and stimulating competition in the electronic payments market. Member States must transpose PSD2 into their national laws by January 13, 2018 and apply those laws from that date, subject to certain exceptions and transitional measures. PSD2 will appeal the current Payment Services Directive with effect from January 13, 2018.
 
View PSD2.

The European Securities and Markets Authority launched a consultation on proposed Guidelines on transaction reporting, reference data, order record keeping and clock synchronization. ESMA is required to prepare the guidelines under the Markets in Financial Instruments Regulation and the revised Markets in Financial Instruments Directive, together known as MiFID II. The proposed Guidelines are based on ESMA's final draft Regulatory Technical Standards relating to transaction reporting, reference data, order record keeping and clock synchronization which are still due to be endorsed by the European Commission. The proposed Guidelines may therefore need to be amended, depending on the adopted version of the RTS. The proposed Guidelines aim to assist investment firms, approved reporting mechanisms, trading venues and systematic internalizers in complying with the provisions of the RTS, focusing on the preparation of transaction reports and order data records for various scenarios. Responses to the consultation are due by March 23, 2016 and ESMA aims to publish the final Guidelines in the second half of 2016. MiFID II will apply directly across the EU from January 3, 2017.
 
View the consultation paper.

The EU Regulation on the Reporting and Transparency of Securities Financing Transactions and of Reuse, known as the SFTR was published in the Official Journal of the European Union. The aim of the SFTR is to improve the transparency of securities lending, repurchase transactions, reverse repurchase transactions, buy-sell back or sell-buy back transactions and margin lending transactions which will help reduce the likelihood of banks seeking to avoid rules applicable to them by moving certain of their activities to the shadow banking sector. The SFTR requires: (i) all securities financing transactions, subject to certain exceptions for central banks and similar bodies, to be reported to EU recognized trade repositories; (ii) investment funds to disclose their use of SFTs to investors in regular reports and pre-investment documents; and (iii) minimum conditions to be met on the reuse of collateral, such as disclosure of risks and the need to obtain prior consent. The SFTR also makes certain amendments to the European Market Infrastructure Regulation, including inserting provisions through which equivalence decisions for third country trading venues for the purpose of OTC derivatives can be made and adding a number of authorities to the list of authorities to which trade repositories must provide trade reporting information. The SFTR will apply directly across the EU from January 12, 2016 subject to certain exceptions which will apply at a later date, including the reporting obligation (which is being phased in according to counterparty type), the transparency obligations on management companies and Alternative Investment Fund Managers, and the restrictions on rehypothecation.
 
View the Regulation.

The European Securities and Markets Authority published a final report and final Guidelines on cross-selling practices within the meaning of the revised Markets in Financial Instruments Directive. The Guidelines will apply from January 3, 2017 to the national regulators responsible for the conduct of business supervisory oversight of investment firms and credit institutions when providing investment services and to management companies and external Alternative Investment Fund Managers when they provide investment services under the Directive on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities and the Alternative Investment Fund Managers Directive respectively. Initially, ESMA had consulted jointly with the European Banking Authority and European Insurance and Occupational Pensions Authority on joint guidelines for the banking and insurance sectors. However, following feedback received to that consultation, it was decided that ESMA should adopt guidelines solely on the basis of the revised MiFID. Firms should note, however, that the final Guidelines do not affect their obligations to comply with other conduct of business standards that may be applicable to them.

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The International Organization of Securities Commissions published a report on the mechanisms for trading venues to effectively manage electronic trading risks and plans for business continuity. The report focuses on how trading venues manage technology, in particular, the potential risks that technological innovations pose to the markets. It stems from an IOSCO investigation into causes of the recent market disruptions which sought to identify steps taken by market participants and regulators to address the causes and probe whether the IOSCO High-Level Principles for Business Continuity issued in 2006 should be updated. In addition, IOSCO surveyed trading venues across more than 30 jurisdictions. The report discusses IOSCO's findings based on responses to the survey, makes recommendations to regulators and proposes sound practices for trading venues. IOSCO recommends that regulators should require trading venues to put mechanisms in place to help ensure the resiliency, reliability and integrity of critical systems and should require trading venues to establish, maintain and implement an appropriate business continuity plan.

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The International Organization for Securities Commissions published a report on market intermediary business continuity and recovery planning. The report sets two standards for regulators of market intermediaries and recommends sound practices for regulators to consider in their supervision of market intermediaries. The IOSCO standards state that regulators should require market intermediaries to create and maintain written business continuity plans and to update the plans in the event of any material change to the intermediaries' operations, structure, business or location and to conduct an annual review of the plan. The IOSCO recommendations on sound practices for regulators of intermediaries cover setting the components of a market intermediary's business continuity plan and addressing the need for data protection and client privacy, in particular, against cyber-attacks. IOSCO recognizes that the sound practices are flexible and may be tailored to the size and needs of a market intermediary.

View the report.

The International Organization of Securities Commissions published its final report on sound practices at large intermediaries relating to the assessment of creditworthiness and the use of external credit ratings. The report analyses responses to the survey conducted by IOSCO and proposes sound practices for regulators of large intermediary firms to consider in supervising such firms. Large intermediary firms may also find the proposed practices useful when they consider implementing their internal credit assessment policies and procedures. The report is intended to enhance the implementation of the Principles for Reducing Reliance on CRA Ratings issued by the Financial Stability Board. The proposed sound practices for regulators include requiring large intermediaries to: (i) establish an independent credit assessment function; (ii) involve senior management in implementing the credit assessment process; (iii) ensure the relevant committees have sufficient information on the credit risks posed to their firms; (iv) establish an appropriate oversight structure to ensure the credit assessment process is properly implemented; (v) avoid exposure to particular credit risks whenever the firm does not have the internal capability to independently and adequately assess the exposure; (vi) incorporate a wide variety of qualitative measures into robust credit assessment processes; and (vii) avoid mechanistically relying on external credit rating agency ratings.

View the report.

The US Securities and Exchange Commission issued (i) an advanced notice of proposed rulemaking, seeking public comment for new requirements for transfer agents and (ii) a concept release on the SEC's broader review of transfer agent regulation. Among other requirements, the ANPR proposes to impose on transfer agents revised registration and annual reporting requirements, and revised requirements relating to the safeguarding of funds and securities, antifraud requirements in connection with the issuance and transfer of restricted securities, and to impose new guidelines relating to cybersecurity and information technology.

The SEC concept release addresses a broader range of other issues and it is possible that the various proposals will be acted on separately by the SEC. Issues addressed in the concept release include the processing of book entry securities, recordkeeping issues, administration of issuer plans, outsourcing, the role of transfer agents to mutual funds, and crowdfunding.Comments on both the ANPR and the concept release must be submitted within 60 days of publication in the Federal Register.

View the SEC ANPR and concept release.