Wednesday, 25 March 2015

UK: The Companies (Disclosure of Address) (Amendment) Regulations 2015

The Companies (Disclosure of Address) (Amendment) Regulations 2015 were laid before Parliament yesterday and come into force on 30 June 2015: see here or here (pdf). An explanatory memorandum is available here (pdf). The purpose of the Regulations is to enable the Minister for the Cabinet Office to obtain the residential address of a director for the purposes of data matching under Schedule 9 of the Local Audit and Accountability Act 2014.

UK: FRC publishes 2015/16 budget and plan

The Financial Reporting Council has published its budget and plan for 2015/16, following an earlier consultation: see here (pdf). The priorities for the FRC include work on the following: supporting better engagement between boards and shareholders; helping smaller listed and AIM companies to improve the quality of their reporting; and reviewing how effective boards establish company culture and practices and embed good corporate behaviour.

Tuesday, 24 March 2015

UK: PRA policy statement - strengthening individual accountability in banking and insurance

The Prudential Regulation Authority has published a policy statement titled Strengthening individual accountability in banking and insurance: see here (pdf). The statement contains the first set of final PRA rules to implement the Senior Managers Regime and Certification Regime for relevant authorised persons (UK deposit-takers and PRA-designationed investment firms) and the Senior Insurance Managers Regime for Solvency II insurers.


[a] The policy statement does not contain all of the final rules necessary to implement the new regimes. For further information, and to track implementation, see the strengthening accountability section of the PRA's website.

[b] Policy and supervisory statements were published several days ago by the PRA in respect of its implementation of the Solvency II Directive: see here.

UK: JCPC considers duties of a nominee director

The Judicial Committee of the Privy Council gave its opinion today in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11: see here or here (pdf). A summary is available here (pdf).

The Board considered, amongst other things, the duties of a nominee director and held that such a director was "not entitled to forego, or surrender to another, any exercise of his discretion, however paltry the amount he may be paid" (para. [45]). The Board held that a director was in breach of duty when he gave effect, "blindly and ignorantly", to the instructions of others. It did not matter that those instructions were of benefit to the company: it was his duty to apply his own mind to the company's interests.  Moreover, whether a loss caused was not relevant in determining if there was a breach of duty.

Monday, 23 March 2015

UK: Joint Committee report calls for insolvency law changes

A report titled Impact of the closure of City Link on Employment was published today by the Scottish Affairs Committee and Business, Innovation and Skills Committee: see here or here (pdf). The report makes various recommendations and calls on the Government to change the order of distribution in insolvency, in particular to give a stronger priority to workers, sub-contractors and suppliers.

Friday, 20 March 2015

UK: a new corporate offence - the failure to prevent tax evasion

HM Treasury yesterday provided further information about the Government's proposals to introduce new criminal offences relating to tax evasion: see here. These include, in respect of companies, an offence of facilitating tax evasion and another of failing to prevent tax evasion. Little further information is available but it seems likely that the offence of failing to prevent tax evasion will be modelled on the new offence introduced by section 7 of the Bribery Act 2010: the failure of a commercial organisation to prevent bribery.

UK: England and Wales: Law Commission consultation - technical issues in charity law

The Law Commission for England and Wales has published a consultation paper seeking views on proposed reforms to various aspects of charity law, including the process by which governing documents are amended, transactions involving land, payments to trustees, charity mergers and insolvency. A copy of the paper is available here (pdf) and a summary is available here (pdf). Further information about the Commission's work in the field of charity law is available here.

UK: FRC publishes revised edition of FRS104 - Interim Financial Reporting

The Financial Reporting Council has published a revised edition of FRS104, Interim Financial Reporting: see here (pdf). Further background information, including an impact assessment, is available here.

UK: England and Wales: cross border merger approval - jurisdiction to make a conditional order

Judgment was given yesterday in Re International Game Technology Plc [2015] EWHC 717 (Ch). The trial judge, Mr Justice Birss, considered the operation of Regulation 16 ("Court approval of cross-border merger") of the Companies (Cross-Border Mergers) Regulations 2007 and held that the court had jurisdiction to make a conditional order.

Thursday, 19 March 2015

UK: competition and choice in banking

One of the documents published yesterday, as part of the Government's budget, was one titled "Banking for the 21st Century: driving competition and choice": see here (pdf). The document sets out what the Government has done to promote competition and also contains some further proposals, including, for example applying anti-money laundering regulation to digital currency exchanges in the UK.

UK: Financial Policy Committee - recommendations from the Chancellor

One of the amendments made to the Bank of England Act 1998 by the Financial Services Act 2012 was to require the Chancellor, on an annual basis, to provide recommendations to the Financial Policy Committee in respect of the financial stability objective given to the Bank of England. The Chancellor did this earlier this week: see here (pdf).

Wednesday, 18 March 2015

UK: The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015

The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015 was made earlier this week and comes into force on 6 April 2015: see here or here (pdf). The Order will amend the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 in order to create a new regulated activity: the giving of advice on the conversion or transfer of a class of pension benefits known as safeguarded benefits (the latter being defined in the Pension Schemes Act 2015). An explanatory memorandum is available here (pdf).

Tuesday, 17 March 2015

UK: Senior Managers Regime - near final rules published

The Financial Conduct Authority and Prudential Regulation Authority yesterday published a near-final set of rules for the new Senior Managers Regime and further information about the new Certification Regime and Conduct Rules: see here (pdf). A joint consultation paper has also been published on the accountability regime for foreign firms with UK branches: see here (pdf).

Monday, 16 March 2015

UK: Grant Thornton's charity governance review

Grant Thornton has published its third annual review of charity governance, based on the disclosures made in trustees' reports of the top 100 charities in England, Wales and Scotland: see here (pdf). The report notes that charity boards vary significantly in size: the smallest has four members, the largest 33. Average board size - 13 members - is higher than the average for FTSE350 companies (9.5 members).

Friday, 13 March 2015

Hong Kong: SFC consults on Principles of Responsible Ownership

The Securities and Futures Commission has published a consultation paper setting out seven principles of responsible ownership: see here (pdf). The principles are very similar to those found in the UK Stewardship Code and, like the UK Code, operate on a 'comply or explain' basis. According to the SFC, the principles are designed to provide guidance on how shareholders should fulfil their ownership responsibilities in relation to their investment in a listed company. It is the SFC's view that all owners of shares should "assume responsibility and a sense of ownership for their investments".

UK: England and Wales: credit broker liable for commission received without clients' informed consent

The Court of Appeal gave judgment earlier this week in McWilliam v Norton Finance (UK) Ltd (t/a Norton Finance in Liquidation) [2015] EWCA Civ 186 and held that the relationship between a credit broker and its consumer clients was fiduciary in character and that, as such, the broker was liable to account for commission received without the clients' informed consent.

Thursday, 12 March 2015

UK: Pre-Emption Group publishes revised principles on the disapplication of pre-emption rights

The Pre-Emption Group has published a revised edition of its statement of principles concerning the disapplication of pre-emption rights: see here (pdf).

Europe: insider dealing - the meaning of the 'precise nature' of information

The Court of Justice of the European Union gave its opinion yesterday in Jean-Bernard Lafonta v Autorité des marchés financiers (Case C-628/13). The court considered the meaning of information of a 'precise nature' in the context of Directives 2003/6/EC and 2003/124/EC on insider dealing and market abuse. It rejected the argument advanced by Mr Lafonta that information could not be regarded as precise unless it enabled the holder of the information to anticipate the direction of change in the price. The court noted:
A particular item of information can be used by a reasonable investor as one of the grounds for his investment decision and, accordingly, satisfy the condition laid down in Article 1(2) of that directive [Directive 2003/124/EC], even though it does not make it possible to determine the movement in a given direction of the prices of the financial instruments concerned.

... The increased complexity of the financial markets makes it particularly difficult to evaluate accurately the direction of a change in the prices of those instruments, as was stated in recital 1 to Directive 2003/124, which refers to several factors likely to affect those prices in a given situation. In those circumstances — which can lead to widely differing assessments, depending on the investor — if it were accepted that information is to be regarded as precise only if it makes it possible to anticipate the direction of a change in the prices of the instruments concerned, it would follow that the holder of that information could use an uncertainty in that regard as a pretext for refraining from making certain information public and thus profit from that information to the detriment of the other actors on the market.". 

A summary of the court's opinion is available here (pdf).

South Africa: King IV corporate governance code - an update

A review of South Africa's corporate governance code - known as King III, and named after Mervyn King the chairman of the committee that produced it - has begun. Further information about the work and process that is underway to create what will be known as 'King IV' is available here.

Wednesday, 11 March 2015

Europe: ESRB report on the regulatory treatment of sovereign exposures

The European System Risk Board has published a report on the regulatory treatment of sovereign exposures: see here (pdf). One of the arguments made in the report is that the current regulatory framework may have led to excessive investment by financial institutions in government debt.

UK: England and Wales: FCA decision to discontinue investigation - judicial review claim dismissed

Judgment was given several days ago in Grout, R (On the Application Of) v Financial Conduct Authority [2015] EWHC 596 (Admin). Mr Grout sought a judicial review of a decision by the Financial Conduct Authority (previously the Financial Services Authority) to stop an investigation it has begun into his conduct. The FCA argued that it had a broad discretion not to continue an investigation and that its decision was not susceptible to challenge on public law grounds. The trial judge held that the FCA's decision was susceptible to judicial review but found lawful its decision to discontinue the investigation.

Tuesday, 10 March 2015

UK: The Solvency 2 Regulations 2015

The Solvency 2 Regulations 2015 were laid before Parliament yesterday: see here or here (pdf). The Regulations implement, in part, Directive 2009/138/EC (“the Solvency 2 Directive”).  For further information see: explanatory memorandum (pdf) | impact assessment (pdf) | transposition note (pdf) |.

UK: audit reforms consultation - BIS publishes supplementary information

Last year the Department for Business, Innovation and Skills published a discussion document seeking views on a range of reforms the purpose of which is to enhance confidence and strengthen the audit regime, in the context of new European law (Directive 2014/56/EU and Regulation (EU) No 537/2014): see here (pdf). The Financial Reporting Council published a related consultation paper at the same time: see here (pdf). A few days ago, BIS published supplementary information in the form of answers to questions that it has been asked since the launch of the discussion document: see here (pdf).

Ireland: Irish Collective Asset-management Vehicles Act 2015

A copy of the Irish Collective Asset-management Vehicles Act 2015, which became law earlier this month, has been published on the Irish Statute Book website: see here (pdf).

Germany: proposed amendments to the corporate governance code - information in English now available

Information in English is now available in respect of the amendments being proposed to the German corporate governance code by the Corporate Governance Code Commission: see here.

Monday, 9 March 2015

Japan: new corporate governance code published

The Council of Experts formed to develop Japan's new corporate governance code has published a final version of its code in English: see here (pdf).

UK: The Companies Act 2006 (Amendment of Part 18) Regulations 2015

The Companies Act 2006 (Amendment of Part 18) Regulations 2015 were made in early March and come into force on 6 April 2015: see here or here (pdf). The Regulations contain amendments the purpose of which is to clarify the operation of Part 18 ("Acquisition by limited company of its own shares") of the 2006 Act following changes made to it by the Companies Act 2006 (Amendment of Part 18) Regulations 2013. Further information is available in the accompanying explanatory memorandum: see here (pdf).

South Africa: Supreme Court of Appeal considers role and duties of auditors

The Supreme Court of Appeal gave judgment last week in PriceWaterhouseCoopers Inc v National Potato Co-operative Ltd (451/12) [2015] ZASCA 2, an important decision concerning the role and duties of auditors: see here or here (pdf). A summary of the decision is available here (pdf). With regard to the role of the auditor, the court endorsed the following view of Bingham LJ (as expressed in Caparo Industries plc v Dickman [1989] 1 All ER 798 (CA) at 804a-e):

At the heart of this case lies the role of the statutory auditor. That role is, I think, without close analogy. Its peculiar characteristics derive from the nature of the public limited liability company. The members, or shareholders, of the company are its owners. But they are too numerous, and in most cases too unskilled, to undertake the day-to-day management of that which they own. So responsibility for day-to-day management of the company is delegated to directors. The shareholders, despite their overall powers of control, are in most companies for most of the time investors and little more. But it would, of course, be unsatisfactory and open to abuse if the shareholders received no report on the financial stewardship of their investment save from those to whom the stewardship had been entrusted. So provision is made for the company in general meeting to appoint an auditor … whose duty is to investigate and form an opinion on the adequacy of the company's accounting records and returns, and the correspondence between the company's accounting records and returns and its accounts … The auditor has then to report to the company's members (among other things) whether in his opinion the company's accounts give a true and fair view of the company's financial position … In carrying out his investigation and in forming his opinion the auditor necessarily works very closely with the directors and officers of the company. He receives his remuneration from the company. He naturally, and rightly, regards the company as his client. But he is employed by the company to exercise his professional skill and judgment for the purpose of giving the shareholders an independent report on the reliability of the company’s accounts and thus on their investment".

Friday, 6 March 2015

UK: The Companies Act 2006 (Amendment of Part 17) Regulations 2015

The Companies Act 2006 (Amendment of Part 17) Regulations 2015 were made on 3rd March and came into force on 4 March: see here or here (pdf). In general terms, the Regulations amend section 641 ("Circumstances in which a company may reduce its share capital") of the Companies Act 2006 in order to restrict the ability of companies to effect a takeover through so-called cancellation schemes of arrangement. Further information is available in the accompanying explanatory memorandum: see here (pdf).

Thursday, 5 March 2015

UK: The Senior Managers and Certification Regime - update on start date and application to UK branches of foreign banks

HM Treasury has announced that the Senior Managers and Certification Regime will apply from 7 March 2016 in respect of UK banks, building societies, credit unions and PRA-regulated investment firms as well as the UK branches of foreign banks: see here. The relevant legislative provisions will be brought into force by the Financial Services (Banking Reform) Act 2013 (Commencement No. 9) Order 2015.

UK: The Insolvency (Amendment) Rules 2015

The Insolvency (Amendment) Rules 2015 were laid before Parliament earlier this week: see here or here (pdf). The Rules make various amendments to the Insolvency Rules 1986 and will introduce new disclosure obligations for insolvency practitioners in certain insolvency procedures, including providing an estimate of fees (remuneration) and anticipated expenses. Further information about the Rules is available in the accompanying explanatory memorandum: see here (pdf). An impact assessment has been prepared: see here (pdf).

Wednesday, 4 March 2015

UK: Building societies and floating charges

The Financial Services (Banking Reform) Act 2013 (Commencement (No. 8) and Consequential Provisions) Order 2015 was laid before Parliament yesterday and comes into force on 26th March 2015: see here or here (pdf). The purpose of the Order is to commence paragraph 4 of Schedule 9 of the Financial Services (Banking Reform) Act 2013 in order to allow building societies to create floating charges. Further information is available in the explanatory memorandum: see here (pdf).

Tuesday, 3 March 2015

Spain: new edition of the Unified Code of Good Governance for Listed Companies

The codes and principles directory maintained by the European Corporate Governance Institute was updated yesterday to include a copy, in Spanish, of the Código Unificado de buen gobierno de las sociedades cotizadas (the Unified Code of Good Governance for Listed Companies, dated February 2015): see here.

India: Financial Code - update on introduction in Parliament

The Union budget was presented in Parliament last week: see here. A summary is available here (pdf) and a copy of the budget speech, delivered by Finance Minister Arun Jaitley, is available here (pdf). The Minister stated that a large number of suggestions had been received regarding the new Indian Financial Code and he hoped that the Code would be introduced in Parliament soon.

Monday, 2 March 2015

UK: PRA and external auditor engagement - proposals published

The Prudential Regulation Authority published a consultation paper on Friday titled Engagement between external auditors and supervisors and commencing the PRA’s disciplinary powers over external auditors and actuaries: see here (pdf). Amongst the proposals put forward is one concerning the information provided by auditors to the PRA: the PRA proposes that the external auditors of the largest UK-headquartered deposit-taking institutions that are not subsidiaries of non-UK firms should provide written reports to the PRA as part of the statutory audit cycle.

Germany: Commission seeks views on Code amendments

The Corporate Governance Code Commission has published proposed amendments to its Code: see here. A copy of the Code, containing the proposed amendments, is available here (pdf, in German). Information, in English, about the proposed changes will be published soon.

Friday, 27 February 2015

UK: The Insolvency Practitioners (Amendment) Regulations 2015

The Insolvency Practitioners (Amendment) Regulations 2015 were laid before Parliament today and come into force on 1 October 2015: see here or here (pdf).  One of the changes being introduced by the Regulations concerns the records that insolvency practitioners are required to maintain. A new record keeping obligation will be introduced and this will require insolvency practitioners to keep records sufficient to show and explain the administration of each case and any decisions taken which materially affect that case.  Further information is available in the explanatory memorandum accompanying the Regulations: see here (pdf).

UK: 'Goodbye ambiguity, hello clarity - the Bank of England’s relationship with financial markets'

Dr Minouche Shafik, the Deputy Governor for Markets and Banking at the Bank of England, delivered a speech yesterday titled Goodbye ambiguity, hello clarity: the Bank of England’s relationship with financial markets: see here (pdf). Early on in her speech she identified her recurring theme: "... the days when 'constructive ambiguity' was seen as a helpful foil for central bankers are behind us. In today's complex and globalised financial system, Governors' eyebrows and fireside chats are no match for a clearly communicated framework in which information will be gathered and decisions made".

Europe: ESMA peer review report - MiFID and best execution

The European Securities and Markets Authority has published a peer review report regarding best execution under MiFID: see here (pdf). The accompanying press release is available here (pdf). The review found that the level of implementation of best execution provisions by authorities was "relatively low".

Thursday, 26 February 2015

Australia: ASIC consults on updated collective action guidance for institutional investors

The Australian Securities and Investments Commission is consulting on the guidance it provides in respect of collective action by institutional investors: see here. A copy of the consultation paper is available here (pdf). The proposed amendments will, amongst other things, provide updated guidance on how the takeovers and substantial holding notice provisions apply to collective action by investors.