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  • Financial Regulatory Developments Focus

    22 Nov 2017

    In this newsletter, we provide a snapshot of the principal US, European and global financial regulatory developments of interest to banks, investment firms, broker-dealers, market infrastructure providers, asset managers and corporates.

  • MiFID II, Research and Extraterritoriality: The SEC, European Commission and FCA Solution

    15 Nov 2017

    On October 26, 2017, the US Securities and Exchange Commission, European Commission and the UK Financial Conduct Authority released, in a coordinated manner, a series of significant orders and guidance to address some of the most problematic extraterritorial effects of the EU’s new financial regulation, MiFID II.

  • Financial Regulatory Developments Focus

    15 Nov 2017

    In this newsletter, we provide a snapshot of the principal US, European and global financial regulatory developments of interest to banks, investment firms, broker-dealers, market infrastructure providers, asset managers and corporates.

  • Icap v. Commission: General Court Upholds Cartel Liability of Facilitators, but Attempts to Rein in Commission’s Approach in Settlements

    13 Nov 2017

    On 10 November 2017, the European Union General Court (GC) handed down its judgment in Icap v Commission. The judgment serves as a reminder of the Commission’s ability to impose liability for cartel infringements on “facilitators” as well as on the cartel’s main participants, but equally draws the Commission’s attention to its procedural obligations when it comes to settlement procedures, particularly in hybrid cases. The judgment also restates case law on the establishment of a “by object” infringement of Article 101(1) Treaty on the Functioning of the European Union (TFEU).

  • Continuity of Contracts and Business on a “Hard” Brexit: Human Rights and Reverse Solicitation to the Rescue!

    31 Oct 2017

    Various industry bodies and regulators, including the Bank of England and Bafin, have recently raised fears that there will be a cliff edge on Brexit for certain types of financial contract, most notably derivatives and insurance, due to the loss of passporting rights.[1] This note explains why, in a no-deal Brexit scenario, this should not be the case. The loss of “passporting” rights and other freedoms under EU treaties should neither frustrate existing contracts nor render the performance of existing cross-border UK-EU contracts illegal nor cause them to be void or voidable.

    We discuss how the right to property under the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights, and the doctrine of “acquired rights” under public international law, protect contractual rights. The protections afforded will shield many contracts entered into between UK and EU-27 parties before Brexit and should therefore permit such contracts to be performed to their full extent in a hard-Brexit scenario. These human rights concepts will mean that, despite the removal of the financial services “passport” upon Brexit, any licensing requirements that spring into force on Brexit for parties performing existing contracts—and any other legislative changes that frustrate contracts—would be contrary to the human rights and other protections afforded to contracts entered into before Brexit.

    UK-based and EU-based businesses should be cognisant of these protections and, moreover, should take additional steps to future-proof their existing contractual agreements before the UK withdraws from the EU so that they can continue to provide a full range of services to their customers.

    Our previous client note on Brexit and the free movement of natural persons considered whether the concept of “acquired rights” would safeguard free movement rights post-Brexit. This note now evaluates the concept, and human rights law, in the context of businesses and contracts, with particular reference to financial sector contracts.

  • EU Proposals to Strengthen the Powers of the European Supervisory Authorities

    26 Oct 2017

    On 20 September 2017, the European Commission made proposals[1] to strengthen the regulatory and supervisory powers of the three European Supervisory Agencies (ESAs) namely the European Securities and Markets Authority (ESMA), European Banking Authority (EBA) and the European Insurance and Occupational Pension Authority (EIOPA). To become legally binding, the proposals must be approved by the European Parliament and the European Council. The proposals are part of the Commission’s plan to create more integrated financial markets, and to complete the Capital Markets Union and Banking Union. The EU has increasingly used regulations to implement new requirements in financial services instead of using directives which require member states to adopt national laws to implement the requirements. The intention has been to iron out local member state discrepancies. However, it is apparent that there are still differences in the application of EU regulations by national regulators and that this leads to distortions across the EU. The Commission considers that more integrated financial markets supervision is necessary and that enhancing the powers of the ESAs is key to achieving that objective.

  • Governance & Securities Law Focus: Asia Edition, October 2017

    Oct 2017

    In this newsletter, we provide a snapshot of the principal Asian, US, European and selected international governance and securities law developments of interest to Asian corporates and financial institutions.

  • Governance & Securities Law Focus: Europe Edition, October 2017

    18 Oct 2017

    In this newsletter, we provide a snapshot of the principal European, US and selected international governance and securities law developments of interest to European corporates.

  • Sanctions Round Up: Third Quarter 2017

    11 Oct 2017

    The third quarter was headlined by the imposition of broad new US legislative sanctions against Russia, Iran, and North Korea.  The Trump Administration also acted unilaterally to significantly expand sanctions against both North Korea and Venezuela, while removing decades-old sanctions against Sudan.  OFAC continued its recent trend of pursuing enforcement actions again non-financial entities.

  • MiFID II for Non-EU Investment Banks and Brokers

    18 Sep 2017

    The revised EU Markets in Financial Instruments package—known as MiFID II—takes effect on January 3, 2018. Some aspects of this legislation are extra-territorial. New rules on inducements, the unbundling of research, legal entity identifiers and the regulation of algorithmic trading are some of the areas where a non-EU investment bank or non-EU broker may find that it is impacted, directly or indirectly. Non-EU investment banks and brokers should consider how these new requirements will affect how they do business in the EU or with EU counterparties from the start of next year.

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