The Financial Policy Committee published the final UK framework for the Systemic Rick Buffer for ring-fenced banks and large building societies (i.e. those that will be subject to the UK ring-fencing rules from 2019 with assets over £25 billion). The SRB, a discretionary buffer under the EU Capital Requirements Directive, aims to mitigate and prevent long-term non-cyclical macro-prudential or systemic risk.  

The Financial Conduct Authority published an Occasional Paper on the emerging issues and market contributions associated with market-based finance. The paper focuses on the more comprehensive concept of market-based finance, emphasizing the roles of markets and market-making mechanisms in the modern banking system. The FCA published the paper to better understand the impacts of market-based finance on the stability of the financial system as a whole. The FCA’s findings are based on a substantial review of existing literature on market-based finance, trade press and various web sources and discussions with internal and external stakeholders. 

The Bank for International Settlements published the Phase 1 materials for a global Code for the FX market. The Code is a set of principles providing common guidelines to promote the integrity and effectiveness of the global wholesale FX markets and has been prepared as a result of the recent spate of misconduct cases in the FX markets. The Code covers governance, risk management and compliance, ethics, information sharing, execution and confirmation and settlement processes. The final Code is expected to be published in May 2017. In the meantime, the authors hope that market participants will begin to embed the Code into their day-to-day activities. The Code does not impose any legal or regulatory obligations on market participants and is intended to supplement local laws, rules and regulations by identifying global good practices and processes.

View the Code.

View the update on adherence to the Code.

The European Commission adopted two Delegated Regulations with Regulatory Technical Standards which will supplement the revised Markets in Financial Instruments Directive and the Markets in Financial Instruments Regulation. The first RTS, relevant to MiFIR, set out the criteria that the European Securities and Markets Authority must use to assess whether derivatives that have been declared subject to the clearing obligation (under the European Market Infrastructure Regulation) have sufficient third-party buying and selling interest to be considered sufficiently liquid for the trading obligation to apply. MiFIR will introduce a trading obligation, whereby standardized volumes of sufficiently liquid non-equity instruments must be traded on a regulated market, multilateral trading facility, organised trading facility or equivalent third country platform (and not OTC).

Read more.

A Commission Implementing Regulation containing Implementing Technical Standards on the information to be provided to national regulators by investment firm and market operators of multilateral trading facilities and organized trading facilities was published in the Official Journal of the European Union. The ITS supplements the revised Markets in Financial Instruments Directive, setting out the information that the operator of a MTF or OTF will need to provide to its national regulator on the specific functionality of the trading system so that its national regulator can assess whether the system fits within the definition of an MTF or OTF and also assess compliance with the requirements under MIFID II for an MTF or OTF. The information to be provided includes, amongst other things, the asset classes of financial instruments traded on the platform, the rules and procedures that ensure non-discriminatory access to the platform, arrangements for market making and rules on suspension or removal from trading of a financial instrument. MTFs or OTFs will also need to notify their regulators of any material changes to the information previously submitted. The RTS also sets out the format for the provision of this information. An OTF is a new category of trading platform that the MiFID II Directive and Markets in Financial Instruments Regulation will introduce. The ITS will apply from the date that the MiFID II Directive applies from.

View the ITS.

The European Commission published a consultation paper on proposed options for implementing principles of proportionality in the upcoming capital requirements framework, to review the Original Exposure Method and replace the current standardized approached for counterparty credit risk with a new standardized approach.  The consultation looks at the potential introduction of new standards for market risks in the prudential framework as it provides an opportunity to reassess the issue of proportionality for smaller or simpler financial institutions. The current risk framework contained in the CRR establishes some principles of proportionality but there is no derogation for small trading book businesses which would allow firms with non-significant trading activities to use a simplified prudential framework to calculate requirements for their trading exposures. The proposed Basel Committee for Banking Supervision standardized approach would bring significant modifications to the current approach in the CRR, making it more risk sensitive and better suited for complex financial instruments. The Commission is considering whether to implement a simplified version of the new standardized approach or to keep the current standardized approach. 

The CFTC issued for public comment a supplement to the CFTC’s December 2013 position limits proposal. The supplement would permit exchanges to recognize, subject to CFTC review, certain positions in commodity derivative contracts as non-enumerated bona fide hedges or enumerated anticipatory bona fide hedges, as well as to exempt from federal position limits certain spread positions. 

In a statement issued concurrently with the proposed rule, CFTC Chairman Timothy Massad noted that the proposed supplemental rule was a critical piece of the CFTC’s effort to finalize rules on position limits in 2016.

CFTC Commissioner Christopher Giancarlo also voiced support for the proposal in a separate statement, stating his belief that the proposal reflects practical realities by recognizing that most exchanges do not have access to sufficient swap position information to effectively monitor swap position limits. 
 
If adopted, the proposed supplement would relieve designated contract markets and swap execution facilities from setting and monitoring exchange limits on swaps until DCMs and SEFs have access to data that would enable them to do so. 

View the full text of the proposed supplemental rule. 

The Financial Stability Board published its thematic review on the implementation of the FSB Framework for Shadow Banking Entities. The objective of the review was to evaluate the progress made by FSB jurisdictions in implementing the FSB’s Policy Framework, in particular, evaluating efforts by entities based on economic functions and participation in the FSB information-sharing exercise. The FSB found that, despite progress having been made, the peer review findings indicated that implementation remains at a relatively early stage. The FSB concluded that more work is required to ensure that application of the Framework is sufficiently rigorous and that jurisdictions are able comprehensively to assess and respond to risks potentially posed by non-bank financial entities.

Read more.  

A Commission Implementing Regulation which amends the Implementing Technical Standards on uniform formats and dates for the disclosure of values used to identify global systemically important institutions under the CRR was published in the Official Journal of the European Union. The ITS supplement CRR provisions that require regulators to identify G-SIIs, based upon the templates issued by the Basel Committee on Banking Supervision. The amended ITS take into account revisions proposed by the European Banking Authority in January 2016. G-SIIs are now required to report the information used to identify G-SIIs (such as indicators, ancillary data and memorandum items) to the regulator in electronic format, using a template annexed to amending ITS. The amended ITS provides that G-SIIs publicly disclose the values of the indicators used for determining the score of G-SIIs in accordance with the Commission Delegated Regulation on the methodology for the identification of G-SIIs. Information required in the template includes general information such as bank name and reporting dates. The template will also include monetary values on indicators such as payments made in the reporting year, assets under custody and underwritten transaction in debt and equity markets. The amending ITS entered into force on May 26, 2016. 

View the amending ITS.

The European Banking Authority published guidelines for upcoming stress tests of deposit guarantee schemes under the Deposit Guarantee Schemes Directive. The Directive introduced a number of measures to improve the resilience of deposit guarantee schemes in Europe and the EBA is required to perform stress tests every three years; the first is to take place by July 3, 2017. The purpose of the stress test is to verify whether the operation and funding capabilities of the DGS are sufficient to ensure deposit protection, within the conditions of the Directive, during times of increased pressure.  The EBA has decided to produce guidelines for consistency across the European Union and to ensure that the stress test is a credible assessment tool. 

Read more.

The US Commodity Futures Trading Commission issued a rule implementing a cross-border approach to the CFTC’s margin requirements for uncleared swaps. The CFTC’s margin rule applies to CFTC-registered swap dealers and major swap participants for which there is no prudential regulator (collectively, Covered Swap Entities or CSEs) but these rules are closely aligned with the cross-border margin requirements already adopted by the prudential regulators. 

Read more.

A Commission Delegated Regulation outlining the Regulatory Technical Standards on when financial instruments should be removed or suspended from trading was adopted by the European Commission. The adopted RTS will supplement the revised Markets in Financial Instruments Directive, which requires a market operator of a regulated market, multilateral trading facility or organized trading platform to suspend or remove from trading financial instruments which no longer comply with the rules of the trading platform. 

Read more.

A Commission Delegated Regulation outlining the Regulatory Technical Standards for the admission of financial instruments to trading on regulated markets was adopted by the European Commission. The adopted RTS will supplement the requirements set out in the Markets in Financial Instruments Directive which requires a regulated market to have clear and transparent rules regarding the admission of financial instruments to trading. Such rules must ensure that any instruments admitted to trading are capable of being traded in a fair, orderly and efficient manner (and in the case of transferable securities, are freely negotiable).
 

The European Commission adopted Regulatory Technical Standards on criteria relating to the methodology for setting the Minimum Requirement for Own Funds and Eligible Liabilities (MREL). MREL is the European equivalent of US TLAC. There are some differences between the adopted RTS and the final draft RTS submitted by the European Banking Authority with its Opinion published in February 2016 which expressed disagreement with certain of the European Commission's proposed amendments to the final draft RTS submitted in July 2015.

As part of his remarks at a global economic symposium in Paris, US Federal Deposit Insurance Corporation Vice Chairman Thomas Hoenig stated his objections to the Basel Committee on Banking Supervision’s recently proposed revisions to the Basel III leverage ratio framework. In his speech, Hoenig noted that the banking industry has begun to lobby for special treatment or exemptions from capital requirements for a host of assets included in the leverage ratio calculation. Hoenig argued that if accepted, the effect of such proposed revisions would be to again lower acceptable industry capital standards.

Read more.

An Order was published implementing provisions in the Banking Act 2009, providing powers to HM Treasury to make regulations about financial collateral arrangements. The relevant provisions come into force on May 25, 2016.  Financial collateral arrangements are arrangements under which financial collateral is used as security in respect of a loan or other liability, such as cash and securities. The scope of regulation HM Treasury can make is not restricted purely to provisions required in order to implement the Financial Collateral Directive. This is presumably a prelude to restating the Financial Collateral Arrangements (No. 2) Regulations 2003 in light of recent Supreme Court decision, The United States of America v Nolan, expressing doubt as to its enforceability owing to such regulations arguably going beyond EU laws in some respect and therefore not being made validly under the European Communities Act 1972. The relevant provisions of the Banking Act provide that HM Treasury can make any provision it deems necessary or desirable for the purpose of enabling financial collateral arrangements, whether or not with an international element, to be commercially useful and effective. The regulations may in particular make provision for the enforcement of financial collateral arrangements, and includes matters relating to the rule of law about formalities or evidence, insolvency, administration and receivership. 

View the Order.

View the Supreme Court Decision. 

The European Commission adopted Regulatory Technical Standards on the valuation of derivatives for the purpose of bailing-in derivative liabilities. The Bank Recovery and Resolution Directive provides that a resolution authority may bail-in relevant derivative liabilities provided that the authority complies with certain conditions, including exercising the bail-in power only upon or after closing out the derivatives and ensuring that derivatives subject to a netting agreement are bailed-in on a net basis following the terms of the netting agreement. Before exercising the bail-in power, a resolution authority is required to ensure that an independent valuation of the assets and liabilities of a firm is carried out. For derivative liabilities, the valuation will determine the value of those derivative liabilities at the moment of exercise of the resolution power. The adopted RTS provide a methodology for resolution authorities to follow when comparing the destruction in value that would arise from the close-out with the losses that those derivatives would incur in a bail-in, principles for determining the point in time at which the value of a derivative should be established and measures for establishing the value of classes of derivatives.  The Commission has adopted the final draft RTS submitted by the European Banking Authority without any substantive amendments. The adopted RTS will now be considered by the European Parliament and Council of the European Union. 

View the adopted RTS.

The FDIC extended the comment period for proposed recordkeeping requirements for FDIC-insured institutions with at least 2 million deposit accounts. The purpose of the proposed recordkeeping requirements is to facilitate rapid payment of insured deposits to customers if large institutions were to fail. The proposed requirements would not apply to smaller institutions, including community banks.

Read more.

The European Banking Authority published translations of its Guidelines on business reorganization plans following a bail-in. The Bank Recovery and Resolution Directive requires a firm that has been recapitalized through a bail-in to produce a reorganization plan that sets out how the firm will be restored to long-term viability and to submit progress reports twice annually throughout the reorganization period. The EBA's Guidelines provide the minimum criteria that the business reorganization plan must fulfil for approval by a resolution authority and set out how national regulators and resolution authorities should assess whether the business reorganization plan is credible, realistic and consistent with other business plans prepared by the firm in parallel. The Guidelines will apply to resolution authorities and national regulators from August 20, 2016.

View the Guidelines. 

Commission Delegated Regulation on deferral of extraordinary ex post contributions to a resolution financing arrangement and the criteria for determining critical functions was published in the Official Journal of the European Union. The Regulation sets out the assessment that a resolution authority should undertake of a firm's application for deferral from the obligation to contribute to extraordinary ex post contributions to a resolution financing arrangement, including an assessment of the impact on the firm's financial position. The Regulation also provides the criteria for determining whether a function is a critical function. The BRRD requires firms to identify all of the critical functions within the firm or its group in the firm's recovery plan to aid the assessment of how a critical function could be continued when the firm is under financial stress. The Regulation applies from June 9, 2016. 

View the Regulation.

The Financial Conduct Authority published a consultation paper outlining proposed changes to the rules and guidance in the Client Assets sourcebook and the Collective Investment Schemes sourcebook (COLL), following the adoption of the UCITS V (the Undertakings for Collective Investment in Transferable Securities V Level 2 Regulation).   The consultation paper also proposes minor changes to the Senior Management Arrangements Systems and Controls sourcebook (SYSC) and consequential amendments in COLL and the Investment Funds sourcebook (FUND) to reflect certain measures in the Securities Financing Transactions Regulation. The UCITS V Level 2 Regulation sets out additional, detailed requirements for UCITS management companies and depositaries and will apply to UCITS management firms from October 13, 2016. Requirements include, for example, minimum terms in the contract between a management company and depositary, detailed oversight, cash monitoring and safe-keeping requirements for depositories, and requirements for independence between management companies and the depositaries. 

Read more.

The Office of the Comptroller of the Currency issued a bulletin to highlight actions that national banks and federal savings associations should take and factors that banks should consider based on the US Securities and Exchange Commission's revised money market fund rules. Although these rules directly apply only to MMFs, the rules indirectly affect: (i) banks that make MMFs available to their customers through their fiduciary and custody activities; (ii) bank programs that automatically sweep funds between deposit accounts and MMFs; and (iii) banks that invest in MMFs. The MMF rules were revised in 2010 and again in 2014, and the 2014 rules are currently being phased in with a final compliance date of October 14, 2016.

The bulletin describes how the SEC's MMF rules are likely to affect banks and addresses the product and process changes that affected banks should consider. The bulletin also highlights how banks that are involved in any of these activities will likely be affected by compliance, liquidity, operational and strategic risks related to the SEC's revised rules.

View the OCC bulletin.

The UK Payment Systems Regulator published a consultation paper on the application of provisions in the Interchange Fee Regulation, which take effect in the UK from June 9, 2016. The Regulation sets a limit on interchange fees on debit and credit card transactions where both the issuer and acquirer are located in the European Economic Area and outlines a number of business rule provisions that require affected parties to amend their business practices. The consultation paper is Phase II of the PSR’s consultation on the Regulation; the previous Phase I paper outlined the PSR’s powers and procedures as the designated regulator for monitoring and compliance of the Regulation. The Regulation came into effect on December 9, 2015. This consultation concerns the PSR’s approach to the remaining provisions which will come into effect on June 9, 2016, focusing on three areas: (i) business rules; (ii) monitoring and enforcement of the business rules; and (iii) amendments to the Phase I Guidance. 

Responses to the consultation were due by July 8, 2016.

View the consultation paper. 

View further information on Phase I guidance.

The Financial Conduct Authority published initial feedback on the recovery plans submitted by investment firms regulated by it. Recovery plans are required to be submitted by banks and certain investment firms to national regulators under the EU Bank Recovery and Resolution Directive. The FCA regulates those investment firms in the UK that are not designated by the Prudential Regulation Authority. The FCA identifies key areas for improvement in recovery plans, including identifying and analyzing internal and external interconnectedness, identifying and calibrating recovery plan indicators, demonstrating that recovery plan options are comprehensive and credible, capturing the minimum range of scenarios or properly explaining why certain scenarios are not applicable, correctly defining core business lines and critical functions and designing appropriate communication strategies for crisis management. 

Read more.

The Consumer Financial Protection Bureau issued a semiannual update of its rulemaking agenda which provides an overview of the agency’s major current initiatives. Among other initiatives, the CFPB notes that it expects to issue a final rule this summer to create a comprehensive set of consumer protections for prepaid financial products, such as general purpose reloadable cards and other similar products. The CFPB issued a proposed rule in November 2014 to bring prepaid products expressly within the realm of the Electronic Fund Transfer Act and its implementing Regulation E as prepaid accounts and to create new provisions specific to such accounts. The agency also proposed to amend Regulation E and Regulation Z (which implements the Truth in Lending Act) to regulate prepaid accounts with overdraft services or credit features. The CFPB had previously announced Spring 2016 for the release of the final prepaid account rule, but the current rulemaking agenda now lists July 2016.

View the CFPB's Spring rule making agenda.

View the proposed rule. 

The US Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the OCC and the Consumer Financial Protection Bureau issued interagency guidance regarding supervisory expectations on how financial institutions should handle consumer deposit discrepancies. In some instances, when a consumer makes a deposit, the sum the bank credits to the account may be different from the total amount deposited. These deposit discrepancies can occur if the amount written on a deposit slip does not match the cash transferred into the bank or as a result of encoding errors or a poor image capture by the bank when it scans or reads a deposit slip. The interagency guidance calls on banks to avoid or reconcile, or resolve deposit discrepancies and to adopt policies that treat consumers fairly when they make deposits and do not violate laws and regulations that apply to deposit discrepancy practices. If a financial institution fails to comply with applicable laws and regulations, including prohibitions against unfair, deceptive and abusive practices, it could open itself up to liability and possible action by an agency.

View the interagency guidance.

A Commission Delegated Regulation, outlining the Regulatory Technical Standards on ratios of unexecuted orders to transactions, was adopted by the European Commission. The adopted RTS will supplement the requirements set out in the Markets in Financial Instruments Directive on algorithmic trading for both investments firms and trading venues. 

Read more.

The UK Payment Systems Regulator published a Policy Statement and final Guidance on the application of the Payment Accounts Regulations 2015 in respect of alternative arrangements for switching accounts. The final guidance sets out the approach under the PSR to designating alternative switching schemes and is relevant to operators of alternative switching schemes, payment service providers, consumers and regulators.
 

The European Banking Authority published a Decision permitting the use of unsolicited credit assessments of certain External Credit Assessment Institutions for calculating firm capital requirements. The Decision aims to harmonize regulation related to the use of solicited and unsolicited credit assessments across the European Union. 

The Competition and Markets Authority published a provisional decision on market issues regarding personal current accounts and retail banking services for small-and medium-sized enterprises. The decision is part of the CMA’s retail banking investigation which commenced on June 19, 2013. The decision outlines proposals to combat issues hindering competition in personal current accounts and in banking services for SMEs. The CMA considers that competitive pressures in retail banking are weak and that diversification of the banking sector is not the most efficient and accurate way to increase competition.  Instead, the CMA is proposing a package of remedies, focused on innovation and the provision of information to customers, coupled with technological development. 

Read more.

The European Commission adopted Regulatory Technical Standards on the arrangements, systems and procedures for market participants disclosing inside information while conducting market soundings. The Market Abuse Regulation, which will apply from July 3, 2016 across the EU, provides that when a disclosing market participant discloses inside information during a market sounding, that disclosure will be deemed to be made in the normal course of the exercise of the person's employment, profession or duty provided that certain conditions are met. Such disclosure would not therefore constitute market abuse. The adopted RTS require disclosing market participants to establish procedures which describe the way in which market soundings are conducted, to provide certain information to the person receiving the market sounding, including, where possible, an estimate as to when the information will cease to be inside information, and to keep records of the persons who have received market soundings. 

As part of his remarks at the Institute of International Bankers Annual Anti-Money Laundering Seminar, US Financial Crimes Enforcement Network Deputy Director Jamal El-Hindi discussed certain US Department of Treasury efforts that have been rolled out in the last several months, including: (i) the final customer due diligence (CDD) rule; (ii) draft legislation requiring legal entities to provide beneficial ownership information at the company formation stage; and (iii) the use of FinCEN’s geographic targeting orders. The CDD final rule amends existing Bank Secrecy Act regulations to clarify and strengthen obligations of covered financial institutions, specifically banks, brokers or dealers in securities, mutual funds, futures commission merchants and introducing brokers in commodities. The final rule also adds a new requirement that these financial institutions know and verify the identities of the natural persons who own, control and profit from the legal entities the financial institutions service. Finally, the rule harmonizes BSA program rules and makes explicit several components of customer due diligence that have long been expected under existing regulations. El-Hindi noted how FinCEN relied on significant engagement with industry in finalizing this rule.

Read more.

The Federal Reserve Bank of New York published a post on its Liberty Street Economics blog assessing the impact of interagency guidance intended to curtail leveraged lending issued by the Office of the Comptroller of the Currency, Federal Reserve Board and the FDIC in March of 2013. The post shows that banks, in particular the largest institutions, cut leveraged lending while nonbanks increased such lending after the guidance. During the same period of time, nonbanks increased their borrowing from banks, possibly to finance their growing leveraged lending activity. The post notes that this evidence highlights an important challenge of macroprudential policies. Since those policies reach beyond individual banks and target risk in the entire banking system, they are more likely to trigger significant responses that may have unintended consequences.
 

Chief Information Officer and Chief Privacy Officer of the US Federal Deposit Insurance Corporation, Lawrence Gross, testified before the Committee on Science, Space, and Technology of the U.S. House of Representatives’ Subcommittee on Oversight. He discussed the FDIC’s information security program and its ability to identify, analyze, report and remediate data security incidents. Gross noted that employees and contractors receive annual training to ensure they will report incidents when they have access to sensitive information. The FDIC also has a security incident response and escalation plan in place to ensure the systematic gathering and analysis of facts relevant to the incident, and an interdisciplinary team responsible for determining the appropriate course of action if there is an elevated risk of harm. After all facts have been gathered, the FDIC takes steps to mitigate the risk of harm and undertake appropriate reporting and notifications commensurate to the severity of the incident.  Gross also detailed several remedial steps the FDIC is currently taking to further lower the risk of sensitive information being exposed.

The European Banking Authority, European Securities and Markets Authority and European Insurance and Occupational Pensions Authority (known as the Joint Committee of the European Supervisory Authorities) published an Opinion on the European Commission's proposed amendments to the ESA's final draft Implementing Technical Standards on the mapping of credit assessments to the risk weights of External Credit Assessment Institutions under the Capital Requirements Regulation and Solvency II Directive. The ESA's submitted their final draft ITS to the European Commission in November 2015. The Commission notified the ESAs on March 30, 2016 that it intended to adopt the ITS with amendments by relaxing the ESA's approach to the mapping of ECAIs. The ESA's do not agree with the proposed amendments for several reasons including the fact that the Commission's approach favors promoting competition over financial stability risk concerns.  

View the Opinion.

A Commission Delegated Regulation containing Regulatory Technical Standards specifying the conditions for the application of derogations, concerning currencies with constraints on the availability of liquid assets, under the Capital Requirements Regulation was published in the Official Journal of the European Union.  The CRR sets out a Liquidity Coverage Requirement which requires firms to hold liquid assets to maintain adequate levels of liquidity buffers to cope with any possible imbalances between liquidity inflows and outflows. Firms may derogate from the LCR where the requirement exceeds the availability of those assets in a particular currency. 

Read more.

The Prudential Regulation Authority published a consultation paper on its proposed approach to Pillar 2 liquidity requirements for intraday risk, debt buyback and non-margined derivatives, including a proposed policy statement. The Capital Requirements Directive gives national regulators discretion to set Pillar 2 liquidity requirements, in addition to the standard Pillar 1 Liquidity Coverage Ratio which applies to all firms. The PRA is proposing that:   (i) the level of application for setting Pillar 2 requirements should be aligned to the Pillar 1 approach; (ii) there should be no specific disclosure requirements under Pillar 2, other than the disclosure of the high quality liquid assets required to cover Pillar 2 risks which are part of the LCR disclosure requirements; (iii) it will use supervisory discretion, guided by a firm's outstanding debt or exposures, to assess liquidity risk linked with debt buyback and non-margined derivatives; and (iv) the assessment of intraday liquidity risk will be based on a firm’s maximum net debits, stress testing framework and key characteristics, as well as the markets in which it operates. 
 

The International Organization of Securities Commissions announced that Mr. Ashley Alder had been appointed as the new Chair of the IOSCO board. Mr. Adler replaces Mr. Greg Medcraft, who has been chair for three years. Mr. Jean-Paul Servais will succeed Mr. Alder in his current position of Vice Chair.  Mr. Alder is also the Chief Executive Officer of the Securities and Futures Commission (SFC) Hong Kong.

View the announcement.

The European Banking Authority published an Opinion on the European Commission’s proposed amendments to the EBA's final draft Implementing Technical Standards on benchmarking of internal approaches to regulatory capital. The Capital Requirements Directive sets out a framework for supervisory benchmarking of the internal approaches that EU firms use to calculate own-funds requirements for credit and market risk exposures. The final draft ITS, submitted by the EBA to the Commission in March 2015, include the benchmarking portfolios, templates, definitions and IT solutions for usage in that exercise. On April 16, 2016, the European Commission informed the EBA that it intended to adopt the final draft ITS with amendments.  

Read more.

The US Office of the Comptroller of the Currency released a mid-cycle status report on key actions that it has taken to date pursuant to its Committee on Bank Supervision’s annual operating plan for the fiscal year that commenced on October 1, 2015. The plan sets forth the agency’s broad supervision priorities and objectives and is used to develop individual bank supervisory strategies and make related resource allocation decisions.  Key actions completed in the first half of fiscal year 2016 include issuing various supervisory communications, including 557 reports of examination, conducting workshops, issuing guidance and reports surveying best practices, and ongoing outreach meetings and presentations to industry members. The OCC’s supervisory priorities for the duration of the 2016 fiscal year include compliance, operational resiliency, credit risk management, stress testing, strategic planning and execution, corporate governance, and interest rate risk.

View the OCC’s mid-cycle status report.  

The US Board of Governors of the Federal Reserve System announced that the Office of Financial Policy and Research has been renamed as the Division of Financial Stability and designated as a division of the Federal Reserve. Federal Reserve economist Nellie Liang, who was appointed to establish the office in November 2010 will stay on as director. The Division of Financial Stability is responsible for the Federal Reserve’s work on financial stability, including coordinating its interagency and international work, and its role as a member of the Financial Stability Oversight Council and the Financial Stability Board. According to the press release, the change reflects the growth in responsibilities and staffing of the Division. 

View the press release. 

The Bank of England published a Financial Stability Paper on legal certainty for central counterparty default management processes. In the context of legal certainty, the paper focuses on the ability of CCPs effectively to manage a large member default. The paper provides analysis of the three key stages in the process of managing a default at a clearing house: (i) declaration of default; (ii) returning to a matched book; and (iii) managing collateral to absorb the losses caused by the default.

The paper examines the rules governing CCP default management and the extent to which they provide legal certainty. The current legal framework provides certainty around many aspects of financial markets which has been created through the interaction of contract and legislation at both UK and EU levels. Legislation such as the UK Companies Act 1989, European Market Infrastructure Regulation, Settlement Finality Regulation and the Financial Collateral Arrangements (No. 2) Regulation all provide protections but apply in different situations resulting in a patchwork of partial safe harbors. The Bank of England highlights various steps that could be taken to make this legislative framework more robust and coherent.

View the Financial Stability Paper.

The European Banking Authority published a consultation paper on draft guidelines on liquidity coverage ratio disclosures, to complement the disclosure requirements of liquidity risk management under the Capital Requirements Regulation. The CRR provides general disclosure framework for firms for each category of risk where liquidity risk should be considered. Disclosure of ratios and figures to regulators is required under the CRR, in particular, ratios and figures that provide external stakeholders with a comprehensive view of the firm’s management of risk. In January 2015 the Liquidity Coverage Ratio Delegated Act was published, specifying the LCR for credit institutions. The ratio targets ensure that credit institutions maintain an adequate level of liquidity buffer to cover net liquidity outflows in the context of stressed conditions over a period of thirty days. The EBA proposes these draft guidelines to harmonize and specify disclosures required under the general principles in the CRR on liquidity and LCR. 

The European Banking Authority published a letter from it to the European Commission relating to the Calls for Advice on various aspects of the revised international regulatory capital requirements. The Commission has requested advice from the EBA on the revision of the own funds requirements for market risk, counterparty credit risk, exposures to CCPs, large exposures and the net stable funding requirement. 

Read more.

US Deputy Attorney General Sally Yates discussed the history and implementation of the so-called “Yates Memo,” a September 2015 policy statement issued by the US Department of Justice entitled “Individual Accountability for Corporate Wrongdoing.” Yates stressed that the prosecution of individual employees and executives has always been a priority of the DOJ, and is essential to having a substantial impact on corporate culture. She highlighted the application of the policy to corporate actors in the financial services sector.  However, determining which individuals are actually responsible for corporate misdeeds can be challenging in light of blurred authority lines and large amounts of documents that may be subject to privacy protection laws. Accordingly, Yates shared that the DOJ convened a group of Department lawyers to focus on ways the DOJ could overcome these challenges, and their discussions culminated in the issuance of the Yates Memo. 

US Commodity and Futures Trading Commission Commissioner Christopher Giancarlo discussed the potential of distributed ledger technology, which he called "the biggest technological innovation in the financial services industry and financial market regulation in a generation or more." He noted the potential for distributed ledger technology to reduce dependence on third parties, mitigate centralized systemic risk, and perform margin payments in the event of a counterparty default.  In addition to the operational and transactional advantages that distributed ledger technology could bring to firms, Giancarlo suggested that it could also help financial market regulators in overseeing the broader financial market. As he has done in prior speeches, Giancarlo emphasized that in order for this technology to flourish, regulators must take a “do no harm” approach. He noted that regulations regarding distributed ledger technology are likely years away but suggested five steps for regulators to take to ensure that they “do no harm” to allow for distributed ledger technology innovation. Specifically, he recommended that the CFTC and other regulators designate teams to work collaboratively with FinTech companies, foster a regulatory environment that spurs innovation, participate directly in proof of concepts to ensure they understand the technology, work with innovators to determine how rules and regulations should be adopted, and collaborate globally.

View Commissioner Giancarlo’s speech.

The European Commission adopted a Delegated Regulation outlining the regulatory technical standards on the elements of a business reorganization plan and the minimum contents for reporting progress in the implementation of the plan. The adopted Delegated Regulation will supplement the requirements set out in the Bank Recovery and Resolution Directive which requires a firm that has been bailed in to submit a plan to the resolution authority on how the firm, or parts of it, might be restored to long-term viability within a reasonable timescale.

The adopted RTS require a business reorganization plan to set out the firm's strategy for restoring viability, the projected financial performance of the firm and how it meet its prudential regulatory requirements on a going-forward basis and quarterly implementation milestones and performance indicators. The business reorganization plan must be also include information that will allow the national regulator and resolution authority to conduct a viability assessment of the proposed strategy for restoration.

Read more. 

The Banking Supervision division of the European Central Bank announced that it is currently undertaking comprehensive assessments of four European Banks. The banks being assessed are Abanka d.d. (Slovenia), Akciju sabiedrība "Rietumu Banka" (Latvia), Banca Mediolanum S.p.A. (Italy) and Citibank Europe Plc (Ireland). The assessments are being undertaken separately to the European Banking Authority stress test. The assessments commenced in March 2016 and the ECB expects results to be published in November 2016.

View the announcement. 

Several industry associations jointly published a paper titled International Cybersecurity, Data and Technology Principles and urged the Financial Stability Board and the International Organization of Securities Commissions to take the Principles into account when developing policy and standards on cyber security, data and technology. The industry associations believe that cyber security for global financial institutions can only be addressed at an international level and are concerned that the rules of individual jurisdictions may lead to technology systems of global businesses becoming disintegrated, resulting in harm to competition, innovation and investors. The industry associations recommend that the Principles should be taken into account when any country creates laws, regulations, rules or standards on cyber security that could affect the framework of financial services firms that operate on a global basis. The industry associations are the European Banking Federation, the Global Financial Markets Association and the International Swaps and Derivatives Association.

View the Principles. 

Two pieces of secondary legislation brought the revised provisions published on May 5th in the Bank of England and Financial Services Act 2016 on senior manager misconduct into force. The revised provisions replace the presumption of responsibility for a senior manager when a breach of regulatory provisions occurs in the area that he is responsible for (originally brought in by the Financial Services (Banking Reform) Act 2013), with a duty of responsibility. For a senior manager to be found guilty of misconduct by one of the UK regulators, the Prudential Regulation Authority and/or Financial Conduct Authority will need to prove that a senior manager did not take reasonable steps to prevent the contravention by his firm from occurring or continuing.

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View the Regulations.