Orrick's Financial Industry Week In Review

by Orrick, Herrington & Sutcliffe LLP
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Financial Industry Developments

CFTC Indicates Willingness to Help Incubate Fintech

On February 21, 2017, J. Christopher Giancarlo, the acting chairman of the U.S. Commodity Futures Trading Commission ("CFTC"), has diverged from other U.S. federal regulators, signaling he favors "regulatory sandboxes" in which fintech companies may experiment with new ideas. Unlike the Office of the Comptroller of the Currency (OCC) and the Federal Reserve, Mr. Giancarlo's approach is to "do no harm" to early-stage technology such as blockchain, and is in line with proposals by regulators in the U.K. and Singapore, among other fintech hubs.

In a recent Bloomberg BNA article, Nikiforos Mathews, partner and global co-head of Derivatives at Orrick, Herrington & Sutcliffe, gives his take on the acting chairman's position, noting that "I see a focus on trying to understand the technology and its potential benefits and fostering the advancement of the fintech sector in a way that it's under the watchful eye of the regulators," and suggesting that the agency may designate technology focused specialists to work with fintech innovators such that there is "breathing room" for growth and experimentation. "At the end of the day, with early regulatory involvement, regulators are going to understand the market better and put out smarter rules," Mathews said.

SEC, NASAA Sign Info-Sharing Agreement for Crowdfunding and Other Offerings

On February 17, 2017, the Securities and Exchange Commission (SEC) and the North American Securities Administrators Association (NASAA) signed an agreement to facilitate information sharing with respect to rules regarding intrastate crowdfunding and regional offerings. The information sharing agreement is intended to help state and federal securities regulators ensure that the rules regarding intrastate crowdfunding and regional offerings " are serving their intended purpose of facilitating access to capital for small businesses." Release.

 

Rating Agency Developments

On February 22, 2017, DBRS issued a report entitled DBRS Criteria: Recovery Ratings for Non‑Investment Grade Corporate Issuers. Report.

On February 22, 2017, DBRS issued a report entitled Rating Companies in the Services Industry. Report.

On February 22, 2017, DBRS issued a report entitled Rating Companies in the Industrial Products Industry. Report.

On February 22, 2017, Moody's issued a report entitled Securities Industry Service Providers. Report.

On February 22, 2017, Moody's issued a report entitled Securities Industry Market Makers. Report.

On February 21, 2017, DBRS issued a report entitled DBRS Criteria Commercial Paper Liquidity Support for Non‑Bank Issuers. Report.

On February 17, 2017, Fitch issued a report entitled Latin America RMBS Rating Criteria. Report.

On February 17, 2017, Fitch issued a report entitled Structured Finance and Covered Bonds Interest Rate Stresses Rating Criteria. Report.

On February 16, 2017, DBRS issued a report entitled DBRS Criteria: Rating Principal Protected Market‑Linked Securities. Report.

 

Investment Management

SEC Staff Issues Guidance Update and Investor Bulletin on Robo-Advisers

On February 23, 2017, the Securities and Exchange Commission ("SEC") published information and guidance for investors and the financial services industry on the use of robo-advisers, described by the Staff as "registered investment advisers that use computer algorithms to provide investment advisory services online with often limited human interaction." Press Release.

The guidance update (the "Update") was issued by the SEC's Division of Investment Management in order to address the unique issues raised by robo-advisers. It makes a number of specific suggestions on meeting disclosure, suitability and compliance obligations under the Investment Advisers Act of 1940 (the "Advisers Act"). The Update, however, is less prescriptive than the "Report on Digital Investment Advice" issued by the Financial Industry Regulatory Authority ("FINRA") in March 2016 (the "FINRA Report").

The FINRA Report generally addressed the issues faced by "financial services firms" (including both broker‑dealers and investment advisers) in the use of "digital investment advice tools." As stated by FINRA, the effective practices discussed in the FINRA Report are "specifically intended for FINRA-registered firms, but may be valuable to financial professionals generally." Accordingly, it is suggested that the Update be read carefully in conjunction with the FINRA Report, particularly by dually registered broker-dealers and investment advisers.

The Update notes that there may be a variety of means for a robo-adviser to meet its obligations to clients under the Advisers Act and that not all of the issues addressed in the Update will be applicable to every robo-adviser.

Also on February 23, 2017, the SEC's Office of Investor Education and Advocacy (OIEA) published an Investor Bulletin that "provides individual investors with information they may need to make informed decisions if they consider using robo-advisers."

The Investor Bulletin describes a number of issues investors should consider, including:

  • The level of human interaction important to the investor,
  • The information the robo-adviser uses in formulating recommendations,
  • The robo-adviser's approach to investing,
  • The fees and charges involved.

 

European Financial Industry Developments

EBA Publishes Final Draft RTS Report Specifying Requirements on More Secure Customer Authentication

On February 23, 2017, the European Banking Authority ("EBA") published a report setting out its final draft regulatory technical standards ("RTS") on strong customer authentication and common and secure communication under Article 98 of the Directive on payment services in the internal market ("PSD2").

The RTS were developed in close cooperation with the European Central Bank ("ECB") and consulted on by the EBA in August 2016. The key points raised in the consultation related to the scope and technologically neutral requirements of the draft RTS, the exemptions, including scope, thresholds and the request of many respondents for an exemption for transactions identified as low risk, access to payment accounts by third-party providers and the requirements around the information communicated.

The EBA states that it had to make difficult trade-offs between the various objectives of PSD2, including enhancing security, encouraging competition, allowing for technology and business‑model neutrality, contributing to the integration of payments in the EU, protecting consumers, facilitating innovation and enhancing customer convenience.

There was extensive input to the consultation paper. The EBA summarizes responses in section 4 of the report and provides its assessment as to whether changes have been made to the RTS as a result of the response.

The final draft RTS are set out in section 3 of the report. The draft will be submitted to the European Commission (EC), after which it will be subject to scrutiny by the European Parliament and the Council of the EU before being published in the Official Journal of the European Union. The RTS will apply 18 months after their adoption by the Commission as a delegated act. The EBA states that this suggests an application date of the RTS in November 2018 at the earliest.

ESAs and IOSCO Publish Statements on Variation of Margin Exchange under EMIR

On February 23, 2017, the Joint Committee of European Supervisory Authorities ("ESAs") published a statement on variation margin exchange under the EMIR regulatory technical standards ("RTS") on risk mitigation techniques for uncleared over-the-counter derivative contracts under Article 11(15) of the European Market Infrastructure Regulation ("EMIR"). The International Organization of Securities and Commissions ("IOSCO") has also published a related statement.

The statement responds to industry requests relating to operational challenges in meeting the deadline of March 1, 2017, for exchanging variation margin, the effect of which will be experienced particularly by smaller counterparties.

Neither the ESAs nor competent authorities ("CAs") have the power to disapply directly applicable EU legalization. As a result, any further delays of the application of the EU rules would formally need to be implemented through EU legislation, which the ESAs state is not possible due to the lengthy process for adopting EU legislation.

The ESAs outline their expectations of smaller counterparties as follows:

"The ESAs expect CAs to generally apply their risk-based supervisory powers in their day-to-day enforcement of applicable legislation. This approach entails that CAs can take into account the size of the exposure to the counterparty plus its default risk, and that participants must document the steps taken toward full compliance and put in place alternative arrangements to ensure that the risk of non-compliance is contained, such as using existing Credit Support Annexes to exchange variation margins. This approach does not entail a general forbearance, but a case‑by‑case assessment from the CAs on the degree of compliance and progress. In any case, the ESAs and CAs expect that the difficulties will be solved in the coming few months and that transactions concluded on or after March 1, 2017, remain subject to the obligation to exchange variation margin."

The statement points out that in 2015, the IOSCO had already granted a nine-month delay based on similar arguments from the industry. The ESAs comment that it is unfortunate that the financial industry has not prepared for the implementation. The ESAs had previously expressed concern about the delayed adoption of the then draft RTS.

In its statement, IOSCO explains that some market participants have faced difficulty in completing the necessary credit support documentation and operational processes to settle variation margin in accordance with the requirements. However, IOSCO expects all affected parties to make every effort to fulfill the necessary variation margin requirements by the deadlines. IOSCO adds that it believes that relevant IOSCO members should consider taking appropriate measures available to them to ensure fair and orderly markets during the introduction and application of such variation margin requirements.

The European Commission (EC) adopted Delegated Regulation 648/2012 supplementing EMIR with the RTS in October 2016. The Joint Committee of ESAs submitted the final draft RTS to the Commission in March 2016.

Council of EU Approves Commission Delegated Regulation to Extend PSA Transition Periods under EMIR

On February 23, 2017, the European Parliament updated its procedure file on the proposed Commission Delegated Regulation amending European Market Infrastructure Regulation ("EMIR") (Regulation 648/2012) as regards the extension of the transitional periods related to pension scheme arrangements (PSAs).

The procedure file states that the Council has raised no objection to the Delegated Regulation.

The Commission adopted the Delegated Regulation in December 2016.

The proposed Commission Delegated Regulation will enter into force unless the European Parliament objects. If the Parliament does not object, the Delegated Regulation will enter into force the day after it is published in the Official Journal of the EU.

ECB Publishes Letter on Development of SSM Guides on ICAAP and ILAAP for Significant Institutions

On February 20, 2017, the European Central Bank ("ECB") published a letter from Ms. Daniele Nouy, Chair of the Supervisory Board of the ECB, to the management of significant institutions under the Single Supervisory Mechanism ("SSM") on the development of comprehensive SSM guides on the Internal Capital Adequacy Assessment Process ("ICAAP") and the Internal Liquidity Adequacy Assessment Process ("ILAAP").

In January 2016, the ECB published a letter setting out its expectations as to the ICAAP and ILAAP information that institutions are expected to submit. Ms. Nouy explains that it has since become clear that there are still several areas in which improvements are needed across banks. To help move banks towards an adequate level of information provision, the ECB has started a multi-year project to develop comprehensive SSM guides on the ICAAP and ILAAP. The first step in this regard is to receive feedback from recipients of the letter on the two draft guides that are attached to the letter. The draft guides set out more detailed ICAAP and ILAAP principles, which provide a road map that the ECB intends to follow.

The ECB seeks comments on the guides by May 31, 2017. It will then review the guides in the light of the comments received and will publish the guides for consultation at the start of 2018.

In the meantime, institutions are expected to comply with the 2016 expectations and to submit corresponding documentation in accordance with the EBA guidelines on ICAAP and ILAAP information collected for the purposes of the supervisory review and evaluation process by April 30, 2017.

The full text of the letter can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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