Financial. Legal Risks Associated with. Institutions. Eleanor Chin Managing Partner Chien Yeh Law Offices Global Association of Risk Professionals
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1 Legal Risks Associated with Financial Institutions Eleanor Chin Managing Partner Chien Yeh Law Offices Global Association of Risk Professionals April 3, 2014
2 Agenda I. Legal Risks of Offering and Sale of Financial Products II. FATCA and Risk of Personal Information III. Creditor Banks Risks When Their Borrowing Firm Faces Financial Difficulties IV. Management of Cross-Industry Issues related to Trusted Businesses Global Association of Risk Professionals. All rights reserved.
3 Legal Risks of Offering and Sale of Financial Products Background Recovery of the financial derivatives market Maturity of the financial derivatives Transactions and risks involved have grown complex Banks and other offering institutions should follow the rules and regulations of competent authorities in order to safeguard investors interests Directions for Banks Conducting Financial Derivatives Business Global Association of Risk Professionals. All rights reserved.
4 The Offering and Sale of Financial Derivatives by Financial Institutions Investors Classification Management System Classifying standards size and scale of assets risk tolerance professional ability Professional Investor v. Non-professional Investor Purposes of such classification Global Association of Risk Professionals. All rights reserved.
5 The Offering and Sale of Financial Derivatives by Financial Institutions Product Suitability System Characteristics assessment of the financial derivatives Know-your-customer (KYC) procedures Customer characteristics assessment Global Association of Risk Professionals. All rights reserved.
6 The Offering and Sale of Financial Derivatives by Financial Institutions Disclosure of Risks What should be disclosed to customers? Credit risk Interest rate risk Exchange rate risk Liquidity risk Market risk Legal risk Reinvestment risk Global Association of Risk Professionals. All rights reserved.
7 The Offering and Sale of Financial Derivatives by Financial Institutions Prevention of Non-compliant Offering and Sale Promotional materials for financial derivatives Clear, impartial, not misleading The possible rewards and risks of the product should be disclosed in a neutral and prominent manner Shall not use the approval, recordation or approval and recordation of competent authorities to mislead customers Global Association of Risk Professionals. All rights reserved.
8 Opening of Offshore Banking (OBU) Offshore Banking Act Preferential treatment where the businesses regulated therein are not subject to domestic legal restrictions Obligations remain for banks to fulfill their Duty of care and duty of loyalty: Criteria for acceptance of customer, KYC review procedures The product type and scope provided to customers Rules on product suitability Pre-sale review mechanism for products etc Global Association of Risk Professionals. All rights reserved.
9 FATCA and Risk of Personal Information Foreign Account Tax Compliance Act (FATCA) Purpose: to make it more difficult for U.S. taxpayers to conceal assets held in offshore accounts By requesting FFI to provide information on customers accounts Risks related to personal information Global Association of Risk Professionals. All rights reserved.
10 FATCA and Risk of Personal Information Main Obligations of FATCA Identification Reporting Withholding Global Association of Risk Professionals. All rights reserved.
11 FATCA and Risk of Personal Information FATCA Latest Implementation Schedule 2014/06/30 : First combination of account balances of the existing accounts (accounts opened prior to this date) 2014/07/01:Proceed with the identification of new customers as well as the withholding on FDAP 2015/03/31:First reporting (report information for the year 2014) 2015/06/30:Complete identification of existing accounts with high value (over US$ 1 million) 2016/06/30:Complete identification of all existing accounts 2017/01/01:Withholding of transaction payments and pass through payments Global Association of Risk Professionals. All rights reserved.
12 FATCA and Risk of Personal Information Conflicts between FATCA and Taiwan Law and Related Risks Collecting, handling, use and international transmission of customers personal information Conflict with Taiwan s Personal Information Protection Act Withholding or closing recalcitrant accounts Lack of legal or contractual basis Global Association of Risk Professionals. All rights reserved.
13 FATCA and Risk of Personal Information Coping with Risk of Personal Information Inform customers the purpose (including for the purpose of identification and reporting under FATCA regulations), period, target and method of the use of personal information Obtain customer s approval Global Association of Risk Professionals. All rights reserved.
14 Creditor Banks Risk when Their Borrowing Firm Faces Financial Difficulties Restrictions on Debt-Equity Swap for banks Credit rating restriction Quota restriction Inability to participate in the borrowing firm s operation 3-Year lock-up period for shares acquired through private placement Global Association of Risk Professionals. All rights reserved.
15 Management of Cross-Industry Issues related to Trust Businesses Main trust products: Securities, Derivatives, Financial assets, Real estates trusts Real estates trust further commission a professional real estate management agency Financial institutions still bear the risk of being liable management that is not under their control for Global Association of Risk Professionals. All rights reserved.
16 Q&A Eleanor Chin Managing Partner Chien Yeh Law Offices 62F, Taipei 101 Tower, 7 Xin Yi Rd., Sec. 5 Taipei, Taiwan Tel: eleanorchin@chienyeh.com.tw Website:
17 Creating a culture of risk awareness TM Global Association of Risk Professionals 111 Town Square Place Suite 1215 Jersey City, New Jersey USA nd Floor Bengal Wing 9A Devonshire Square London, EC2M 4YN UK + 44 (0) About GARP The Global Association of Risk Professionals (GARP) is a not-for-profit global membership organization dedicated to preparing professionals and organizations to make better informed risk decisions. Membership represents over 150,000 risk management practitioners and researchers from banks, investment management firms, government agencies, academic institutions, and corporations from more than 195 countries and territories. GARP administers the Financial Risk Manager (FRM ) and the Energy Risk Professional (ERP ) exams; certifications recognized by risk professionals worldwide. GARP also helps advance the role of risk management via comprehensive professional education and training for professionals of all levels Global Association of Risk Professionals. All rights reserved.
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