IOSCO: Credible Deterrence in the Enforcement of Securities Regulation

The International Organisation of Securities Commissions (IOSCO) published a paper on the factors of Credible Deterrence in the Enforcement of Securities Regulation. The factors referred to in the paper highlight useful enforcement practices and powers adopted by various regulatory authorities around the world to promote and encourage credible deterrence of misconduct.

The paper reflects the collective experience and expertise of the member jurisdictions of IOSCO’s Committee 4 on Enforcement and the Exchange of Information.

The study of misconduct is relevant in light of the impact it has in securities and investment markets. Consumers, investors, capital markets, institutions, national economies and global financial systems are all impacted when the integrity of securities and investment markets are undermined by misconduct.

As defined in the paper: ‘ Deterrence is credible when would-be wrongdoers perceive that the risks of engaging in misconduct outweigh the rewards and when non-compliant attitudes and behaviours are discouraged. Deterrence occurs when persons who are contemplating engaging in misconduct are dissuaded from doing so because they have an expectation of detection and that detection will be rigorously investigated, vigorously prosecuted and punished with robust and proportionate sanctions’.

The task of regulators and supervisors is to develop and enforce strong regulation that holds individuals and entities accountable and deters misconduct, and in doing so, promotes public confidence in financial markets. Although the paper focuses on the enforcement programmes, it also recognizes that other regulatory activities, such as authorisation and supervision, also have a strategic function in deterring misconduct.

The enforcement scheme involves an effective sanctions regime, strong and resilient regulatory governance, comprehensive enforcement powers, and good regulatory practices such as timeliness of enforcement intervention and holding individuals and entities accountable.

The paper emphasises the difficulties faced by authorities when they take the compromise to guarantee, in absolute terms, that those who engage in misconduct will be detected, prosecuted and sanctioned, and will receive no personal benefit from their wrongdoing. Thence, there is no one-size-fits-all approach but whatever the regulatory model (twin peaks, integrated, industry-based or functional) and approach (risk, principles or rule- based) a common implied or explicit objective of enforcement programmes is credible deterrence.

The paper complements the IOSCO Objectives and Principles of Securities Regulation (IOSCO Principles), which set out a framework to achieve the objectives of regulation. It does not alter the Principles or the Methodology, which support the assessment of compliance with the Principles.


The paper is available here

Basel Committee publishes revised version of the Corporate Governance Principles for Banks

The Basel Committee on Banking Supervision published the revised principles on Corpotate Governance. This set of principles provides a framework within which banks and supervisors should operate to achieve robust and transparent risk management and decision-making and, in doing so, promote public confidence and uphold the safety and soundness of the banking system. One of the features of the revised version is the emphasis on having effective corporate governance that contributes to the safety and soundness of banks. It also promotes the value of internal control and risk governance systems, and stresses the important role of boards,senior management and committees.

The full text available here

MiFID II and MiFIR for OTC Derivatives

The Markets in Financial Instruments Directive (MiFID) sets out which investment services and activities should be licensed across the EU and the organisational and conduct standards that those providing such services should comply with. In 2011, the European Commission published legislative proposals to amend MiFID by recasting it as a new Directive MiDIF II and a new Regulation (MiFIR). After a long political debate the final texts were published on 12 June 2014 and entered into force 20 days later on 2 July 2014. Entry into application will follow 30 months after entry into force on 3 January 2017.

MiFID II and MiFIR introduce a new category of trading venue, the organised trading facility (OTF). Alongside regulated markets (RMs) and multilateral trading facilities (MTFs), this will be a third type of multilateral system in which multiple buying and selling interests can interact in a way that results in contracts. 

The differences between RM and MTFs, and OTFs are:

1) OTFs will only relate to bonds, structured finance products, emission allowances or derivatives.

2) The execution of orders on an OTF is carried out on a discretionary basis. There are two different levels of discretion for the operator of an OTF: (i) when deciding to place or retract an order on the OTF, and (ii) when deciding not to match a specific client order with another order available in the system at a given time, provided it is in compliance with specific instructions received from a client and best execution obligations. 

As a result of this discretion, the operator of an OTF will owe certain conduct of business duties to its clients including acting in accordance with their best interests, appropriateness, best execution and so on.

In relation to Derivatives

MiFIR complements EMIR in the sense that it will implement the G20 commitment  to mandate the trading of standardised derivatives on exchanges and electronic platforms by requiring certain derivatives to be traded on a RM, MTF or OTF or certain trading venues in third countries that have been considered equivalent for that purpose and reciprocate by recognising EU trading venues. 

The obligation applies to financial and non-financial counterparties that are subject to the clearing obligation in EMIR, as well as third country entities that would be subject to it if they were established in the EU and either trade with in-scope EU entities or other third country entities where their transactions could have a direct, substantial and foreseeable effect within the EU or it is appropriate to prevent evasion of MiFIR.

Regulatory technical standards will be developed to determine which derivatives will be subject to this trading obligation. The European Securities and Markets Authority (ESMA) may specify additional characteristics and requirements in this matter.

To be mandated for trading, the derivatives must also be traded on at least one trading venue and be considered to be sufficiently liquid, taking into account the average frequency and size of trades over a range of market conditions, the number and type of active market participants and the average size of spreads. 

In this point, ESMA will take into consideration the impact of listing a derivative on its liquidity and the interest of end users. Similarly, ESMA will identify classes of derivatives that should be subject to the trading obligation but which no central counterparty (CCP) has been authorised to clear or which are not admitted to trading on a trading venue.

Relationships between trading venues and Central Counterparties CCPs

CCPs are required to clear financial instruments regardless of the trading venue on which a transaction is executed, although the CCP may require the trading venue to meet operational and technical requirements. 

The CCP may only grant access if a relevant Member State competent authority considers that this would not threaten the smooth and orderly functioning of the markets or, in certain cases relating to derivatives, where it would not require an interoperability arrangement. The CCP can only deny access under certain conditions to be defined in regulatory technical standards (likely to be in force in October 2015).

Likewise, a trading venue must, on request, provide trade feeds on a non-discriminatory and transparent basis to a CCP that wishes to clear transactions that are concluded on that trading venue.

In order to ensure that CCPs and trading venues  have access to relevant price and data feeds and information composition, there are also requirements on persons with proprietary rights in benchmarks. 

Non-EU (Third Country) trading venues that are recognised for the purposes of the derivatives trading obligation and non-EU CCPs that are recognised as such under EMIR are permitted to make use of these access rights if the Commission has concluded that the relevant third country provides reciprocal access to its trading and clearing infrastructure to foreign trading venues and CCPs. 

MiFID II and MiFIR will introduce new requirements for firms wishing to carry on investment activities with and provide investment services to clients in the EU. In most cases, these will require third country entities to establish a branch and become licensed in the relevant Member States for business with retail and elective professional clients or to register with ESMA for business with per se professional clients and eligible counterparties.

EBA issues advice on securitisation

One of the most important lessons of the 2007-2009 crisis is that defaults and losses associated with securitisation positions have varied substantially across different types of securitisations and regions. The crisis has also shown that the poor performance of certain products was associated with recurring factors, including: i) misalignment of interest between originators and investors resulting in loose underwriting standards on the underlying exposures; ii) excessive leverage; iii) maturity transformation; and iv) complex structures. 

The post-crisis regulatory approach to securitisation incorporates a distinction between qualifying securitisations and other securitisations. 'Qualifying' securitisation is defined following a two-stage approach whereby in order to qualify for differential treatment, a securitisation transaction should first meet a list of criteria ensuring simplicity, standardisation and transparency and, as a second step, the underlying exposures should meet criteria of minimum credit quality of the underlying exposures. 

The rationale of the proposed criteria on simplicity, standardisation and transparency is to ensure that all the risks arising in the securitisation are properly mitigated. For this reason the capital treatment proposed for ‘qualifying’ transactions should aim at more appropriate levels of non-neutrality of capital charge.

Since the financial crisis, many regulatory reforms and initiatives, both at international and EU level, have been introduced or are still being proposed to address the shortcomings of the securitisation market. Reforms in each jurisdiction should be revisited depending on the progress and decisions taken by the Basel and IOSCO Committees on the definition of a global Simple, Standard and Comparable (STC) securitisations framework, and on the re-calibration of the BCBS 2014 securitisation framework to provide regulatory recognition to STC securitisations. In January 2014 the EBA recommended that a systematic review of the entire regulatory framework applicable to securitisations be carried out, across the different regulations and regulatory authorities, on a stand-alone basis and in comparison to the regulatory framework applicable to other investment instruments (i.e. covered bonds, whole loan portfolios). 

Following the public hearing held on June 26, the EBA published the full text of its advice to the European Commission on a framework for qualifying securitisation.  The report proposes a more risk-sensitive approach to capital regulation for long-term securitisation instruments, as well as for asset-backed-commercial paper. 

http://www.eba.europa.eu/-/eba-issues-advice-on-securitisation

FCA and PRA set out approach to Non-Executive Directors and the Senior Managers Regime

The PRA and the FCA published today the consultation paper on the new Senior Managers Regime (SMR) applicable to Non-Executive Directors (NEDs). As announced, the NED roles that will be in scope of the SMR are:

• Chairman;
• Senior Independent Director;
• and the Chairs of the Risk, Audit, Remuneration and Nominations Committees.

The individuals carrying out those functions will be subject to all aspects of the SMR, 'including regulatory pre-approval, the FCA’s and PRA’s new conduct rules and the presumption of responsibility'. The key concept of this approach to regulation of Senior Managers is accountability. It is expected that the new rules will incentivise the 'behaviour modification' of senior executives and staff when conducting the business for which they are responsible. 

The Consultation Paper is available here

The Press Release here

2015: the Regulatory Momentum for OTC Derivatives Market Reforms

2015 is expected to be a pivotal year for the OTC derivatives market regulation reaching the complete implementation of Basel III, Dodd-Frank Act and EMIR, the latter along with the subsequent reforms of the MiFID. 

The OTC derivatives trading through CCPs and the clearing obligation will be completely launched over the summer, thus buy-side firms are in the run of preparing themselves to meet the regulatory requirements. Although there have been tensions surrounding the systemic importance of CCPs and the correlative concentration of risk, the use of these market infrastructures has being gaining acceptance. Among the arguable advantages of the CCPs structure there are the capital efficiency, the better risk management, increase transparency  and the reduction of operating costs. 

Regulators are very keen to extend 'clearing' across all products, either through the mandatory obligation or by means of incentivising market participants (for uncleared derivatives).

There are still numerous aspects to be reviewed, among others we could anticipate: the further assessment of risk models, margin requirements on uncleared derivatives contracts and cross-border issues. 

One illustrative example of cross-border difficulties is the issue that concerns non-EU CCPs wishing to provide services in Europe. Under EMIR non-EU CCPs are required to be recognised in the EU, otherwise additional capital charges would be imposed to them. In this regard, the provisional decision of European regulators is to postpone the imposition of higher capital charges on unrecognised CCPs by six months to June 2015.

The reason for this sort of cross-border issues is that the European Commission has to officially recognise as equivalent the CCPs overseen by non-EU authorities, and such decision is yet to be made. The 'equivalence decision' means that the Commission is satisfied that: (Art.13 EMIR)

a) the rules on clearing, reporting, the clearing thresholds and risk mitigation in that third country are equivalent to those in EMIR

b) the third country has equivalent provisions on professional secrecy; and

c) the rules are effectively applied and enforced so as to ensure effective supervision and enforcement.

In terms of transparency the implementation of MiFID II brings new rules on pre and post-trade transparency, besides the European approach to swap execution. The final consultation on MiFID II was published in December 2014 (available in the previous post in this blog)

EU releases MIFID II consultation and technical advice

The European Securities and Markets Authority (ESMA) published today the final advice for more than 175 rules contained in the Markets and Financial Instruments Directive (MiFID II). The Directive introduces tougher rules in transparency for Commodities, OTC Derivatives, High-frequency trading. MiFID II also strengthens investor protection and eases systemic risk and competition.

Full market implementation due on January 3 2017.

ESMA Press Release