MiFID II Overview and Impact on Non-EU Firms

Transcription

1 MiFID II Overview and Impact on Non-EU Firms Session Chairman: Walter Zebrowski, JD, CPA, Chairman, Regulatory Compliance Association Senior Fellow from Practice: Drew Chapman, Partner, King & Spalding Guest Lecturers: Angela Hayes, Partner, King & Spalding, London Daniel Hirschfield, Sr. Associate, King & Spalding, London Elisa Menardo, Director, Public Affairs and Policy (Europe), Credit Suisse. Chair of the MiFID Steering Committee, Association for Financial Markets in Europe Dick Walker, Partner, King & Spalding 1

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8 Session contents Overview of MiFID II and changes under MiFID II Market structure and trade transparency Conduct of business Extraterritorial impacts Unresolved issues Interplay with other key EU regulations 8

9 Overview of MiFID II and changes Background MiFID II (effective January 3, 2018) refers to: Revised Markets in Financial Instruments Directive; and Markets in Financial Instruments Regulation Delegated regulations, delegated directives and technical standards Directive vs Regulation National implementing measures ESMA Guidelines & Q&As 9

10 Application MiFID investment service in relation to a MiFID financial instrument Direct application to an EU investment firm or credit institution or an EU branch of a third country firm Indirect application to - a third country firm: engaging in activities in respect of which MiFID 2 seeks to impose requirements with more extensive scope transacting with clients who are themselves directly impacted by MiFID 2 10

11 MiFID 2 Key Elements Core Provisions Product governance Best execution requirements Revised suitability and appropriateness regime Ban on inducements to independent advisers/disclosure Disclosure rules on quality of advice (independent) and cost Regulatory oversight of products, including ban or limitations on marketing to retail Core Provisions Mandatory position limits for commodity derivatives Reporting requirements to regulators Third-country access regime and use of third country venues based on equivalence test by EU Commission External controls/ reporting Investor Protection/ Distribution MiFID 2 Internal controls/ governance Market Transparency Market Structure Core Provisions Increased regulatory and client transaction reporting requirements Enhanced SI regime: pre- & post trade transparency Core Provisions Introduction of organized trading facility (OTF) Bringing more transactions onto regulated markets/mtfs Rules on high frequency/ algorithmic trading Open access to trading venues ETD clearing Core Provisions Governance requirements regarding management body Qualitative requirements for management bodies Tone from the Top Remuneration 11

12 Trading topics Market structure and pre-trade transparency (MSPTT) Portfolio Compression Algorithmic/ High-Frequency Trading, DEA Indirect clearing ETD Trading Topics Transaction and trade reporting Commodities Clock synch 12

13 Conduct of Business Order management and record-keeping Best execution Inducements and research Conduct of Business Topics Conflicts of interest Complaints handling Remuneration Organisational requirements Costs and charges Client classification Suitability and appropriateness Product Governance - Institutional/retail Client assets 13

14 Market structure, transparency and reporting requirements 14

15 Core concepts Systematic internaliser an investment firm which, on an organised, frequent systematic and substantial basis, deals on own account when executing client orders outside a regulated market, an MTF or an OTF without operating a multilateral system Trading venues: EU regulated market EU multilateral trading facility EU organised trading facility (non-equities only) Execution venues: Trading venues as above Systematic internalisers Market makers Other liquidity providers Equivalent third country venues 15

16 Trading obligation for shares and derivatives New requirements to carry out certain share trades and derivative transactions on regulated venues Aims: to increase volume of organised trading on regulated trading venues to improve trade transparency to help fight against market abuse as venues subject to market surveillance Exceptions: Obligation does not apply if the trading is: Non-systematic, ad-hoc, irregular and infrequent; or Carried out between eligible counterparties or professional clients and does not contribute to price discovery process Technical standards clarify when a transaction does not contribute to price discovery process 16

17 Trading obligation: derivatives Linked closely to clearing obligation in EMIR Classes of derivative transactions caught: Starting point is derivatives subject to clearing under EMIR (so-called bottom up approach) Venue test: must be admitted to trading or traded on a trading venue or equivalent third country venue ( TOTV ) Liquidity test: must be sufficient third-party buying and selling interest in the class of derivatives so that it is considered sufficiently liquid to trade only on specified venues ESMA also required to identify derivatives that are not subject to the EMIR clearing obligation but which should be subject to trading on a specified trading venue (so-called top down approach) Who is subject to the obligation: Not limited to investment firms Both counterparties must be qualifying counterparties 17

18 Derivatives trading obligation(continued) Qualifying counterparty: Financial counterparties (FC) Above threshold non-financial counterparties (NFC+) Two third country entities (if derivatives contract has a direct, substantial and foreseeable effect in the EU) A third country entity that would be an FC or NFC+ if it were established in the EU Deemed equivalence for complying with requirements of an equivalent third country ESMA register derivatives subject to trading obligation venues where those derivatives admitted to trading or traded date from which obligation takes effect ESMA opinion on meaning of traded on a trading venue for OTC derivatives Equivalence decisions to date: Trading venues for the purpose of trading obligation for derivatives and shares Deemed equivalence for trading execution of derivatives Exemptions 18

19 MiFID2 - key changes for cash equities New shares trading obligation Restriction on OTC trading EU investment firms will be required to trade cash equities admitted or traded on a European trading venue on a European SI, European trading venue, European MTF or third country trading venue deemed equivalent by the European Commission Impact when the main liquidity pool is outside the EU in a non-equivalent country Impact of equivalence determinations - which are, as of March 12, 2018: US ( Hong Kong ( Australia ( Switzerland (NB time limited) ( Trade transparency - double volume cap for dark trading Limits the use of the reference price and the negotiated transaction waivers from pre-trade transparency so that dark trading volume in any given stock in any 12-month period is limited to: In each trading venue : 4% of total volume on all EU trading venues in that stock Across EU trading venues: 8% of total trading under those waivers across all EU trading venues 19

20 Trade transparency rules Financial crisis exposed weakness in transparency of financial markets Aims: Provide investors with access to information about trading opportunities Facilitate price formation Assist firms in providing best execution to clients Trade transparency vs transaction reporting Existing regime only applies to shares traded on a regulated market Scope is extended significantly: Applies to all shares and equity-like instruments such as depositary receipts, exchange traded funds, certificates Applies to bonds, structured finance products and derivatives Traded on a trading venue: regulated markets, multilateral trading facilities, organised trading facilities 20

21 Trade transparency rules (continued) Operators of trading venues required to publish: on a continuous basis current prices and depth of trading interests (pre-trade transparency) as close to real time as possible price, volume and time of transaction after a trade has been executed (post-trade transparency) Requirements calibrated for different types of trading systems (including bookorder, quote-driven and auction trading) Pre-transparency waivers narrowed + volume cap Pre-trade disclosure regime for systematic internalisers to make public firm quotes on a regular and continuous basis Post-trade disclosure regime for all investment firms when they conclude transactions in relevant financial instruments: Specified investments traded on a trading venue Covers equity and non-equity instruments Not relevant if particular transaction takes place on trading venue Volume, price and time 21

22 Trade transparency rules (continued) Publication through Approved Publication Arrangement Transactions concluded on a third-country venue Awaiting publication of ESMA of third-country trading venues considered acceptable for MiFIR post-trade transparency regime Non-EU firms: opportunity to focus on EU markets given enhanced transparency? 22

23 Pre & Post Trade Transparency SI Regime Overview The key objective of the MIFID2 pre and post trade transparency requirements is to provide greater transparency to investors and the market Multi-lateral trading (client v client) must be conducted on a regulated market, MTF, or new Organised Trading Facility (OTF) e.g. money brokers or matched principal trading. Where an investment firm systematically and frequently executes client flow against its own capital, the firm must register as a Systematic Internaliser ( SI ) Cannot operate as both an SI and an OTF within the same legal entity. The SI regime applies both to Equity (and Equity like instruments, ETFs ADR/GDRs) as well as Non Equity instruments where the instrument has been admitted to trading on a trading venue. Once a firm is classified as an SI there are conditional obligations that differ for liquid and illiquid/large in scale transactions. Liquid Instruments Pre-Trade Price transparency requirements will apply. Transaction reporting also applicable. Illiquid Markets No Pre-Trade Price transparency but must still report transactions post trade. Transaction Reporting obligations fall on the SI, where the trade counterparty is not an SI. For this reason many entities that do not have transaction reporting capabilities have announced that they will only transact with SIs. Where both counterparties are SIs, the seller will owns the transaction reporting obligation. 23

24 Non-equities market structure Systematic internaliser obligations: Where a firm is an SI in relation to a liquid non-equity instrument (bonds, SF products, derivatives) which is admitted to trading on a trading venue and FI is liquid, it must publish firm quotes it agrees to provide to clients, and make them available to other clients (subject to size quoted being below SSTI). illiquid, it must disclose the quote to clients on request (subject to no venue waiver). Obligation to make available subject to commercial policy (non-discriminatory requirement). 24

25 Transaction reporting Key regulatory priority given importance in identifying potential market abuse Now covers all instruments traded on regulated markets, multilateral trading facilities or organised trading facilities or whose underlying is admitted Investment firms which execute transactions must report complete and accurate details of such transactions to competent authority as soon as possible, no later than close of following working day Numerous data fields now include: ID of staff or algo who make investment decisions or execute trades Legal Entity Identifier of any firm on whose behalf the execution was carried out No LEI, no trade 25

26 Transaction reporting (continued) Delegation of reporting to receiving firm permitted in principle but onerous requirements Delegation of reporting to third parties must be an Approved Reporting Mechanism Indirect impact on non-eu firms EU firm with a non-eu branch or subsidiary EU branch/subsidiary of non-eu firm Transactions executed in a non-eu branch of an EU firm need to be reported Double reporting (EMIR and MiFIR) avoided ESMA guidelines on transaction reporting 26

27 Direct electronic access Direct electronic access (DEA) Defined as an arrangement where a member of a trading venue permits a person to use its trading code so the person can electronically transmit orders relating to a financial instrument directly to the trading venue and includes arrangements which involve the use by a person of the infrastructure of the member or participant or client, or any connecting system provided by the member or participant or client, to transmit the orders (direct market access) and arrangements where such an infrastructure is not used by a person (sponsored access). Firms dealing on own account IN THE EU and seeking DEA access to an EU trading venue must get authorised as an investment firm under MIFID II AT THE MOMENT non-eu firms accessing EU trading venues via DEA do not need EU authorisation (their DEA provider does) Requirements on DEA providers to assess client suitability and have binding written agreement allocating rights and obligations of parties - DEA provider retains regulatory responsibility 27

28 Algorithmic trading MiFID creates detailed framework of organisational and systems requirements for all investment firms engaging in algorithmic trading New requirements on EU venues that allow algo trading Limit ratio of unexecuted orders to transactions Algo flagging Throttle limits and, in some limited cases, kill switches Non-EU algorithmic traders may need to be licensed in some Member States 28

29 Commodity derivatives Regulators will be able to set position limits for commodity derivatives traded on RMs, MTFs, and OTFs and economically equivalent OTC derivatives Limits will apply to investment funds and to clients of portfolio managers New reporting requirements for commodity derivatives Trading venues will publish weekly reports on aggregate positions and firms trading OTC must make daily reports of their positions to regulator 29

30 Conduct of business and investor protection requirements 30

31 Best execution Firms required to take all sufficient steps to obtain best possible result for their clients when executing orders (vs MiFID I all reasonable steps ) Bespoke execution policies required for each class of financial instrument and investment service including more details of venues and brokers used, selection criteria and how execution factors of price costs, speed, likelihood of execution are considered Reporting Quarterly reporting: All execution venues must publish quarterly execution quality reports, except for shares subject to the trading obligation, where only trading venues and SIs are subject to this obligation. The quarterly execution quality reports must include: general information on each market segment it operates and all applicable costs instrument specific information related to the price for each trading day orders were executed on the instrument as well as execution likelihood Annual reporting: Investment firms executing client orders on EU execution venues and/or on non-eu entities performing similar activities must publish annually their top 5 execution venues for each class of financial instrument Impact on non-eu firms? 31

32 Investment research General ban on inducements results in requirement to pay for investment research and comply with strict governance requirements. Policy goals: address the conflict of interest from using client funds via bundled brokerage to purchase execution and research. In particular: i. aid transparency to underlying funds of spend on research. insufficient governance by asset managers over how they purchase research; ii. iii. iv. execution volumes/research payments linkage; a lack of price transparency in the market for research; enhanced disclosure Research definition is fairly broad Information that informs views on financial instruments, assets or issues within a sector and Explicitly or implicitly recommends or suggests an investment strategy and provides a substantiated opinion as to the present or future value or prices of such instruments or assets or otherwise contains analysis and original insights and reaches conclusions that could be used to inform an investment strategy and Is relevant and capable of adding value to the manager s and advisor s decisions on behalf of their clients. Does not include market colour 32

33 Investment research (continued) FICC research made available to any investment firms wishing to receive it or to the general public can be received free of charge. Openly available can mean on a password-protected website, as long as the password is made available to all investment firms wishing to have one. Options for research payments: Direct payments from the asset manager s own resources Dealing commission becomes execution only Payments from a separate research payment account (RPA) controlled by the asset manager and funded by the underlying client. i. Continue to be collected via dealing commissions e.g. CSAs ii. Charged directly to the fund with a frequency and methodology defined by the manager. Dealing commissions become execution only 33

34 Investment research (continued) Delegation of portfolio management to affiliates or third parties in non-eu Conflict with US regulatory framework for investment advisers U.S. research providers who sell research to EU asset managers threatened with prospect of having to register as investment advisers U.S. asset managers who pay for research with hard dollars threatened with loss of Section 28(e) safe harbor 34

35 Investment research (continued) SEC response: Three temporary no action letters (October 26, 2017) provide U.S. brokerdealers and investment advisers relief. U.S. broker-dealers will not be required to register as investment advisers if they receive separate payment for general, non-client specific research from EU asset managers. U.S. asset managers can continue to comply with Section 28(e) safe harbor when purchasing research as long as they make payments for research with hard dollars out of client assets along side payments for execution using a research payment account (RPA) that conforms to MiFID II requirements and the executing broker is legally obligated to pay for the research through an RPA. U.S. advisers may continue to aggregate client order for purchases and sales of securities where some clients pay different amounts for research (as a result of unbundling requirements), but all clients will continue to receive the same average price for the security and the same execution costs. 35

36 Investment research (continued) EU Guidance EU asset managers may pay a non-eu broker-dealer a single commission for research and execution services, provided that research component can be identified, thereby eliminating the need for unbundling. Non-EU broker-dealers are not required to separate out research charges, but in practice EU managers will require their assistance in doing so to comply with MiFID II. 36

37 Investment research (continued) Issues related to inducements and unbundling U.S. asset managers with both covered and non-covered clients 2 options: Full compliance with MiFID II through use of RPA s and hard payments for research; or Ring fence covered accounts and allocate research to one group of clients but not the other where research benefits all clients. Operational and compliance issues trading and allocating costs of research across multiple accounts. Estimated costs for 2017 were $2 billion. Corporate access Qualifies as research service under Section 28(e) but ESMA expects managers to assess whether corporate access services (e.g., conferences involving a corporate issuer) are material benefits or qualify as acceptable minor non-monetary benefits. 37

38 Product governance MiFID firms that manufacture investment products must: ensure products are designed to meet the needs of identified target market of end clients and carry out scenario analysis including risk of poor investor customers ensure distribution strategy is compatible with target market, take reasonable steps to ensure that product is distributed to target market make appropriate information available to distributors and carry out regular reviews of events that could affect potential risk or return to target market 38

39 Product governance (continued) MiFID firms that distribute such products and/or services must identify appropriate information on such products or services, have regard to identified target market, give appropriate disclosures, and make appropriate assessment of clients needs, regularly review the products they distribute and services they provide, and provide information to support product manufacturer s product reviews Non-EU manufacturers and distributors may be impacted indirectly through contractual obligations Interaction with PRIIPs Regulation 39

40 Extraterritorial impacts 40

41 Extraterritorial impacts Optional branch requirement if non-eu firm wishes to provide services to retail clients Direct access possible for certain services to eligible counterparties and professional clients ESMA registration and Commission third-country equivalence/reciprocity decision NB no equivalence decisions for these purposes as of March 12, 2018 Non-EU firms able to continue to make use of national regimes until 3 years after the equivalence decision Clients acting at their own exclusive initiative (reverse solicitation) 41

42 Key unresolved issues for non-eu firms Brexit Investment firm review- changes to equivalence criteria 42

43 Interplay with other key EU regulation EMIR MAR PRIIPs AIFMD 43

44 Closing Remarks 44

45 Faculty Biographies Drew Chapman, Partner, King & Spalding Drew Chapman is a partner in the firm s Financial Institutions Practice in the New York office and brings valuable multidisciplinary advice and experience in his representation of clients. Mr. Chapman focuses on complex transactions for hedge, credit and distressed, private equity and real estate funds and other alternative investment, asset management and financial services firms, as well as acting as sponsor counsel in the formation and operation of those funds. He counsels clients on crucial and complex policy, governance and regulatory issues, investigations and enforcement matters, litigation and adversarial situations as well as on transactions of all types, including mergers, acquisitions, dispositions, spin offs and spin outs, secondary transactions and restructurings. A focus of Mr. Chapman s practice is representing hedge, credit and distressed funds in connection with restructurings, workouts and refinancings; he also has particular expertise in representing sponsors and liquidators of, and investors in, troubled financial products, including all types of private funds and structured product vehicles. Mr. Chapman received his LL.M. degree from Fordham University School of Law and a LL.B. degree from Bond University, Queensland, Australia. He is consistently ranked as a leading attorney in legal publications, including Chambers and Legal

46 Faculty Biographies Angela Hayes, Partner, King & Spalding, London Angela Hayes is a partner in King & Spalding's London office specializing in the regulation of financial services business, together with white collar crime, bribery and corruption, anti-money laundering and sanctions. Angela's practice encompasses advice on compliant conduct of business through to internal investigations in response to incidents and defending investigations and enforcement action by regulators. Angela has experience in defending and responding to investigations and enquiries by the UK Financial Conduct Authority (and its predecessor the Financial Services Authority), the UK Serious Fraud Office, other EU regulators, and cross border investigations by the US Department of Justice, the Securities and Exchange Commission and Commodity Futures Trading Commission. Angela s white-collar crime work has included response to Serious Fraud Office and Department of Justice processes. Recent work also has included Bribery Act 2010 adequate procedures and internal investigations into potential bribery incidents. Angela's clients include investment and private banks, retail and alternative investment fund managers, insurers, broker dealers, financial advisers and, in relation to bribery and corruption and sanctions issues, other non-financial sector corporates. Earlier in her career, Hayes spent time in-house at the Financial Services Authority advising on key aspects on implementation of the Financial Services and Markets Act She is ranked in both the Chambers and Legal 500 guides for financial services. 46

47 Faculty Biographies Daniel Hirschfield, Sr. Associate, King & Spalding, London Daniel Hirschfield is a Senior Associate in our London office, specializing in financial services regulation. He has significant experience in the regulation of funds and asset managers, broker-dealers, banks, insurers and insurance intermediaries. In addition to spending time on secondment to a global financial institution, previous experience includes working at the financial regulator, where he gained practical insights into the implementation of policy proposals. Recent work includes advising on the application of the revised EU Markets in Financial Instruments Directive and on the FCA s Senior Managers and Certification regime. 47

48 Faculty Biographies Elisa Menardo, Director, Public Affairs and Policy (Europe), Credit Suisse. Chair of the MiFID Steering Committee, Association for Financial Markets in Europe Elisa Menardo is a financial services regulatory lawyer within the Public Affairs and Policy team at Credit Suisse. Previously, she ran the regulatory change advisory function within Credit Suisse and other investment banks. Earlier in her career Elisa worked at the UK Financial Services Authority, the European Commission and Herbert Smith Freehills, where she qualified as a solicitor in Elisa holds a MSc (Laurea) in economics and management of public and international organizations from Bocconi University (Milan) and postgraduate professional qualifications in law from the College of Law (Guildford). 48

49 Faculty Biographies Dick Walker, Partner, King & Spalding Former SEC Enforcement Director and General Counsel Dick Walker is a Partner in King & Spalding s Special Matters & Government Investigations practice group, twice named White Collar Practice Group of the Year by Law360. As part of the firm s Securities Regulation and Enforcement practice, Dick specializes in crisis management, government and internal investigations (including cross-border), complex financial litigation matters, including litigation assessment, corporate governance, and compliance issues. Dick represents banks, law firms, accounting firms, regulated entities and public companies who benefit from his ten years as a high-ranking SEC official and almost fourteen years as Global General Counsel for Deutsche Bank, a large international financial institution. While at Deutsche Bank, Dick held a number of senior positions, which included at various times serving as Vice Chairman, a member of the Bank s Global Executive Committee, Global General Counsel and Global Head of Compliance. He oversaw the Bank s legal and compliance departments worldwide. He was responsible for international and U.S. banking, securities, commodities, and other financial regulations as well as government investigations, transactional matters, corporate governance and related matters, data privacy, and litigation. Prior to joining Deutsche Bank, Dick served as the Director of the Division of Enforcement and prior to that, as General Counsel of the Securities and Exchange Commission after starting his career as Regional Director of the Northeast Regional Office. He is the only person in history who has served the SEC as both Enforcement Director and General Counsel. 49

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