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Financial institutions sector - external articles

A selection of articles which first appeared in legal and industry publications.

Financial services M&A: a competition role for the FCA?

Andrew Henderson, Lesley Farrell and Abby Green consider the Financial Conduct Authority’s new competition powers in the context of its obligation under Part XII FSMA to approve an acquisition of a target firm.

Read the full article, which first appeared in the October 2015 edition of the Butterworths Journal of International Banking and Financial Law.

Insisting on a modern approach to compensation in commercial trust cases

Whereas common law duties in contract and tort are premised on parties being “independent and equal actors” concerned primarily with their own self-interest, equitable fiduciary relationships have “trust, not self-interest at [their] core”. This was the observation of Lord Reed in the recent United Kingdom Supreme Court case of AIB Group (UK) plc v Mark Redler & Co Solicitors, paraphrasing from the minority judgment of McLachlin J in the Canadian Supreme Court case of Canson Enterprises Ltd v Boughton & Co.2 Such duties derive from the distinct historical legal traditions and court systems of Common Law and Chancery, merged under the Judicature Act 1873 (UK). But how do such differences, even today, affect the courts’ approach to the calculation of compensation?

Read the full article. This article was first published by Thomson Reuters in the Journal of Banking and Finance Law and Practice (JBFLP) and should be cited as (2015) 26 JBFLP 142. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at www.thomsonreuters.com.au/catalogue

Competition in interbank payments

The Payment Systems Regulator (PSR) is to review ownership arrangements and whether competition is effective in the way infrastructure is provided for the UK’s interbank payment systems. Abby Green, senior associate at Eversheds, who has recently returned from a year-long secondment to the PSR, examines the detail of the review, its objectives and possible outcomes.

Read the full article on Lexis PSL Financial Services.

The FCA and financial crime

In this practice note, FCA enforcement experts Douglas Cherry, Saira Choonka and Pooja Kohli review the role of the FCA in combating financial crime.

Read the full article, which first appeared on Lexis PSL Corporate Crime.

New regulator warns of unlimited fines for payment violations

EU and Competition Partner and payments expert, Julia Woodward-Carlton comments on the powers of the new Payment Systems Regulator, including potentially unlimited fines and new reporting requirements.

Read the full article, which first appeared in Payments Compliance in December 2014.

Bank clients’ requests for documents: should banks cooperate?

It is common for a client or former client which finds itself in a dispute with a third party to request that a financial institution locate, preserve and/or provide access to its files, where those documents relate to a mandate or transaction undertaken on the client's behalf, which may have some connection with the dispute. David Flack, Financial Services Disputes and Investigations Partner, considers: the legal position in relation to such requests; the risks to the financial institution in accommodating such voluntary requests for documents; and some practical steps which can be adopted to try to insulate the financial institution from such risks.

Read the full article, which first appeared in the November 2014 edition of the Butterworths Journal of International Banking and Financial Law.

Senior managers failing to engage with Solvency II models may get barred from industry, warn lawyers

Partner and head of Insurance Market group, Jeremy Irving comments on the need for senior managers to engage with Solvency II.

Read an extract from this article. The full article first appeared on Complinet in October 2014. 

MiFID II and the AIFMD: is an onshore model for third country asset managers inevitable?

Andrew Henderson, Financial Services Regulatory Partner, looks at what lies ahead for third country asset managers. Recast MiFID has provided welcome clarification for asset managers who wish to provide pan-European services in addition to the core services under AIFMD. EU managers should, therefore, be able to provide investors with a broad choice on investment solutions from a single regulated entity. However, the amendment has not been extended to non-EU managers. The newly introduced Third Country provisions in Recast MiFID and MiFIR should, therefore, be relevant to non-EU asset managers who are AIFMs. This, in turn, highlights the inconsistencies in the approach to Third Country firms between MiFIR, in particular, and AIFMD and raises the question of whether a "Portfolio Managers Directive" would bring coherence both to the regulation of Third Country and the regulation of domestic firms.

Read the full article, which first appeared in the September 2014 edition of the Butterworths Journal of International Banking and Financial Law.

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