The regulatory landscape - emerging from the mist of the financial crisis | Practical Law

The regulatory landscape - emerging from the mist of the financial crisis | Practical Law

This article is part of the PLC Global Finance January 2010 e-mail update for the United Kingdom.

The regulatory landscape - emerging from the mist of the financial crisis

Practical Law UK Legal Update 2-501-3505 (Approx. 3 pages)

The regulatory landscape - emerging from the mist of the financial crisis

by Simon Lovegrove, Norton Rose LLP
Published on 26 Jan 2010

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This article highlights the most significant developments related to the financial markets in the United Kingdom in 2009, as well as looking forward to those to come in 2010.
Simon Lovegrove
At present the UK is one of the last major economies apparently still in recession, with France and Germany exiting recession last summer. However, it now appears that there may be light at the end of the tunnel.
On 12 January 2010, the BBC reported on the latest UK economic survey from the British Chambers of Commerce (BCC). The survey covered Q4 2009 and improvements had appeared in many areas, most strikingly in manufacturing. However, it was not all good news in the sense that despite exports in the service sector strengthening, services were still struggling overall. Despite this the BBC reported that the BCC chief economist thought that there was enough in the Q4 results to support the view that the UK was on the brink of leaving recession. This view gained further credibility the following day when the National Institute of Economic and Social Research predicted that the UK economy would be shown to have grown by 0.3% in Q4 2009, effectively bringing an end to the recession. All eyes will be on the UK’s official gross domestic product figures for Q4 2009, which will be released on 26 January 2010.
Whatever the economic conditions for 2010 the regulatory landscape will continue to evolve as a result of the financial crisis.
Starting with banking regulation. In mid-December 2009, a member of the Bank of England's Monetary Policy Committee, David Miles, gave a speech (The future financial landscape) in which he acknowledged that the way in which banks operate would now be different - in the near term because of the damage done to their balance sheets and the continuing fragility of their funding; and in the long term because of the need to ensure that the chances of another banking collapse like the one just seen are much reduced.
But how will this play out? Many commentators, including Miles, note that banks had been previously allowed to hold less capital than they used to and many had aimed to minimise their capital requirements. Banks were also holding less liquid assets than they used to and there was a wide belief that State support would be forthcoming in the event of difficulties. Whilst past events have shown that, to varying degrees, governments will support their banking sector, many of the other factors have already changed or will change in 2010. For instance, there seems to be universal recognition from regulators that banks need to hold more capital and more liquid assets. In 2010 the FSA will provide feedback on its Turner Review Conference Discussion Paper which looked at the trade-offs involved in increasing capital and liquidity requirements. It also discussed the problems of systemically important "too-big-to-fail" banks.
But banking regulation is not the only area changing:
  • The fundamental architecture of European regulation is changing. Following the recommendations in the De Larosiere report, the European Commission published legislative proposals in September 2009 calling for the creation of a European Systemic Risk Board and a new European system of financial supervisors. The Commission is keen to get the new system up and running before the end of 2010.
  • In 2010, the European Commission will propose legislation on many of the proposals contained in its 2009 Communications on ensuring efficient, safe and sound derivatives markets. However, the UK Government has already made public its views on many of the issues through its paper Reforming OTC Derivative Markets - A UK perspective. The UK has made it clear that it supports a Clearing Directive.
  • In 2010 there will also be further negotiation on the much publicised Alternative Investment Fund Managers Directive and the provisions of UCITS IV come into effect.
  • In investment banking, the Government published in December 2009 its consultation document, Establishing resolution arrangements for investment banks. The document outlined more than 30 policy initiatives that are designed to mitigate the impact of the failure of an investment firm.
  • In April 2009 the European Commission published a Communication on packaged retail investment products (PRIPs). This Communication outlined important investor protection and level playing field issues in the retail investment markets which broadly cover investment funds (UCITS and non-UCITS), retail structured products and insurance-based investment products. Just before Christmas the Commission published an update on its work on PRIPs. The Commission is now preparing legislative proposals based on the commitments and conclusions made in the Communication.
  • In 2009, the FSA published two key consultation papers on its Retail Distribution Review, CP09/18 and CP09/31. Feedback on these papers is expected in 2010, and in particular in Q1 2010 the FSA intends to publish a Policy Statement and final rules on adviser charging.
  • In December 2009, a former corporate broker intern and his father were given prison sentences for insider dealing. At the time the FSA's director of enforcement and financial crime, Margaret Cole, stated that more criminal prosecutions were to come. The FSA is currently prosecuting three other insider dealing criminal cases.
  • On 26 November 2009 the final recommendations of the Walker Review of Corporate Governance of the UK Banking Industry were published. It is for the Government to determine which of the review's recommendations it will take forward.
  • In 2009 there were many headlines on bankers pay. The FSA's remuneration code came into force for large banks, building societies and broker dealers on 1 January 2010. A Feedback Statement issued by the FSA in December 2009 confirmed that the code would not be extended to other sectors in the near future. However, the FSA has already committed itself to a review of the effectiveness of the code in mid-2010.
  • The Financial Services Bill was introduced in the Queen's Speech last November, although whether it will become legislation before the General Election is debateable. However, if there is a change of Government in 2010 there will be significant changes to the UK regulatory landscape. For example the Conservatives are calling for a radical overhaul of the tripartite structure.