Tracker, Financial Services Regulation & Compliance - Cross Sectoral / Other

DOMESTIC

Central Bank publishes a Guide to Prospectus Approval in Ireland

The Central Bank published a Prospectus Handbook - Guide to Prospectus Approval in Ireland. The Prospectus Handbook provides a practical guide for market participants as to the procedures and practice of the Central Bank in order to provide the market with an overview of the prospectus review, approval and publication process. The information contained in the Prospectus Handbook is derived from, but is not a substitute for, the relevant requirements of the Irish Regulations, the Prospectus Regulation and the Rules.

ISE publishes updated rules for ESM listed companies

The Irish Stock Exchange (ISE) published updated Enterprise Securities Market (ESM) rules. The updated rules are designed to:

  • align the ESM and AIM Rules, and
  • reflect Irish legislative changes arising from the 2014 Companies Act.

Minister prescribes the call notice and information notice to be circulated to dissenting shareholders

The Minister for Jobs, Enterprise and Innovation has published SI 498/2015 pursuant to the Companies Act 2014 prescribing the form of “call notice” and “information notice” required pursuant to section 457(4) and (6) concerning the right to buy out shareholders dissenting from scheme or contract approved by majority and right of such shareholders to be bought out.

Central Bank updates Credit Union Handbook chapters and publishes Q&A document

The Central Bank has published draft Credit Union Handbook (Handbook) chapters. The existing Handbook will be replaced with an updated version which reflects the commencement of the remaining sections of the Credit Union and Co-Operation with Overseas Regulators Act 2012 and the introduction of the Credit Union Act 1997 (Regulatory Requirements) 2015. The Central Bank will publish a consolidated version of the updated Handbook at that time.

The Central Bank has also published FAQs to address questions which credit unions may have in relation to the implementation of the 2015 Regulations.

EU & INTERNATIONAL

European Commission publishes guidance on transatlantic data transfers

Following the Court of Justice ruling in the Schrems case, the European Commission intends to conclude discussions with US authorities on a new safe framework on transfer of personal data within 3 months.

The Commission's guidance analyses the consequences of the judgment and sets out the alternatives for transfers of personal data to the US in the meantime. The guidance clarifies that:

  • the Safe Harbour arrangement can no longer serve as a legal basis for transfers of personal data to the US;
  • the Commission will continue and finalise negotiations for a renewed and sound framework for compliant transatlantic transfers of personal data, notably as regards limitations and safeguards on access to personal data by U.S. public authorities;
  • other adequacy decisions will need to be amended to ensure that Data Protection Authorities (DPAs) are permitted to investigate complaints by individuals.

The alternatives are:

  • Contractual solutions: Model standard contractual clauses are available on the Commission website.
  • Binding Corporate Rules for intra-group transfers: Internal group transfer rules have to be authorised by the DPA in each Member State from which the group companies wish to transfer data.

The Commission has also published a Q&A document on transatlantic data transfers.

EU finalises proposal for investment protection and Court System for TTIP

The EU has published its proposal for an Investment Court System, a reformed approach on investment protection and a more transparent system for resolving disputes between investors and states under the Transatlantic Trade and Investment Partnership (TTIP).

The final text aims to safeguard the right to regulate and create a court-like system with an appeal mechanism based on clearly defined rules, with qualified judges and transparent proceedings. The proposal also includes additional improvements on access to the new system by SMEs. SMEs will, under the new proposal, benefit from faster proceedings and enjoy privileged treatment in comparison with large multinational companies.

The EU will resume negotiations with the US on the subject of investment protection and resolution of investment disputes, and the Investment Court System.

Separately, the European Commission and other countries will also start work on setting up a permanent International Investment Court. This would lead to the full replacement of the "old ISDS” mechanism with a modern, efficient, transparent and impartial system for international investment dispute resolution.

Committee on Payments and Market Infrastructures publishes report on digital currencies

The CPMI has published a report considering potential implications of interest to central banks arising from innovations in digital currencies, especially those including an embedded decentralised transfer mechanism based on the use of a distributed ledger. Implications include potential disruption to business models and systems, as well as facilitating new economic interactions and linkages.

Currently, such schemes face a series of challenges that could limit their future growth. However, some digital currency schemes demonstrate the feasibility of peer-to-peer transactions in the absence of a centralised third party. Where intermediation through a central party is not currently cost-effective such technology may have potential to improve some aspects of the efficiency of payment services and financial market infrastructures.

CPMI-IOSCO consults on guidance on cyber resilience for financial market infrastructures

The Committee on Payments and Market Infrastructures (CPMI) has published a consultation paper on guidance on cyber resilience for financial market infrastructures. The proposed Cyber Guidance sets out the measures that financial market infrastructures should undertake to enhance their cyber resilience capabilities. It also provides authorities with a set of internationally agreed guidelines to support consistent and effective oversight and supervision of financial market infrastructures in the area of cyber risk.

Responses should be submitted no later than 23 February 2016

Financial Stability Board publishes reports on transforming shadow banking

On 12 November the Financial Stability Board published the following reports:

  • Progress report on Transforming Shadow Banking into Resilient Market-based Finance
  • Global Shadow Banking Monitoring Report 2015
  • Regulatory framework for haircuts on non-centrally cleared securities financing transactions.

Financial Stability Board publishes guidance on cooperation and information sharing

The Financial Stability Board published a guidance document on cooperation and information sharing with host authorities of jurisdictions where a Global Systemically Important Financial Institution (G-SIFI) has a systemic presence that are not represented on its Crisis Management Group (CMG). Host regulators who are not part of CMGs require access to relevant information about a firm even if the market they supervise is not considered systemic for the firm. It is important where, for example, the failure of an institution could be systemic for the non-CMG country. The guidance sets out a way for resolution authorities and host regulators to address these matters.

Financial Stability Board publishes 'Principles for Cross-border Effectiveness of Resolution Actions'

The need to give cross-border effect to resolution actions may arise with respect to a firm undergoing resolution in its home jurisdiction that operates a branch or controls a subsidiary in a foreign jurisdiction; or a firm that holds assets, liabilities or contracts located or booked in, or subject to the law of, another jurisdiction in which the firm is not established.

The Principles set out statutory and contractual mechanisms that jurisdictions should consider including in their legal frameworks to give cross-border effect to bank resolutions. The Principles are not intended to be comprehensive, and each jurisdiction will need to consider what is required in the context of its own legal environment for such a legal framework to be effective. Some of the principles may also be relevant to other types of financial institutions as well as to financial market infrastructures.

GFMA, ISDA and IIF letter to Basel Committee regarding Fundamental Review of the Trading Book

On 30 October GFMA, ISDA and IIF wrote to the Group of Governors and Heads of Supervision (GHOS) and the Basel Committee on Banking Supervision in respect of the Fundamental Review of the Trading Book (FRTB). The letter identifies aspects of the framework that require further consideration. Highlighted issues include:

  • Non risk sensitive measures will drive the capital outcomes;
  • The Standardised Approach will not be a credible fall-back to the Internal Models Approach, unless the calibration is improved;
  • Capital charges on sovereign bonds and equities are inconsistent with the underlying risk;
  • Punitive treatment of securitised products;
  • Need to review the impact on emerging market assets; and
  • More time needed for calibration of the profit and loss attribution test.

Financial Stability Board publishes reports on implementation of OTC derivatives market reforms

The Financial Stability Board (FSB) has published two reports on implementation of the reforms to over-the-counter (OTC) derivatives markets.

The Thematic Peer Review of OTC Derivatives Trade Reporting recommends that further work be undertaken to ensure that the data collected by trade repositories (TRs) can be effectively used by regulators.

The report finds, amongst other things, that:

  • there are widespread legal and regulatory barriers to reporting complete transaction information. FSB members have agreed to address remaining legal and regulatory barriers to reporting complete information by June 2018 at the latest. Masking of counterparty-identifying data will be discontinued by end-2018.
  • Barriers that impede authorities’ access to TR data are also widespread. FSB members have agreed that by June 2018 all jurisdictions should have legal frameworks in place to facilitate data access for domestic and foreign authorities.

FSB members will be asked to report on their planned actions by June 2016.

The Tenth Progress Report on Implementation of OTC Derivatives Market Reforms details, amongst other things, the following:

  • 19 out of the 24 FSB jurisdictions have trade reporting requirements in force covering over 90% of transactions in their markets. Authorities’ ability to access, use and aggregate TR data remains challenging.
  • 12 out of 24 FSB jurisdictions have central clearing frameworks in force that apply to over 90% of transactions in their markets. Eight jurisdictions' platform trading frameworks are in force that apply to over 90% of transactions. The report recommends that all jurisdictions have frameworks in place for assessing when it is appropriate for transactions to be centrally cleared, or executed on organised trading platforms.
  • Most jurisdictions are in the early phases of implementing the BCBS-IOSCO framework for margin requirements for non-centrally cleared derivatives. The report suggests that authorities should continue to advance implementation of these requirements to ensure the agreed phase-in period commences in September 2016.

The FSB welcomes feedback from the public on this tenth progress report. Feedback should be submitted by 4 December 2015.

Focus on PRIIPS KID

On 5 November 2015, Insurance Europe published views on key information documents (KID) for packaged retail investment and insurance-based investment products (PRIIPs).  A core issue emphasised by Insurance Europe is that insurance premium should appear in a separate insurance section of the KID (not in the cost section) to allow comparison of the premium with the insurance element of similar products.  On 11 November 2015, the Joint Committees of the European Supervisory Authorities (ESAs) published a consultation paper on the presentation, content and provision of the KID.  Comments are invited until 29 January 2016.

New compliance statement, audit committee/confirmation requirements – are you prepared?

The Companies Act 2014 introduced new requirements for certain companies in relation to compliance statements, audit committees and audit confirmations, for financial years commencing on/after 1 June 2015.  Many Irish companies will begin their new financial year on 1 January 2016 and should begin preparations with a view to satisfying those requirements.  Other companies whose financial years have already begin begun since 1 June 2015 should already have taken measures to comply (or, if not, should do so). For further information please contact a member of the Financial Regulation team.

Date published: 03 December 2015