Market Conduct

EMIR (the Regulation on OTC derivatives, central counterparties and trade repositories) (Regulation 648/2012) requires certain classes of over-the-counter (OTC) derivatives contracts to be cleared through a central counterparty (CCP). The requirement will have a significant impact on a large number of counterparties that engage in derivatives trading, including both regulated and unregulated entities. This note considers the scope and implications of the EMIR clearing requirements. For an overview of EMIR and timing of its implementation see Practice note, Hot topics: EMIR.

This note provides an overview of the proposals to reform LIBOR, focussing on those aspects that may impact existing and future finance agreements that refer to LIBOR.

This Note summarizes and compares the comprehensive regulatory framework for over-the-counter (OTC) derivatives in the US under the Dodd-Frank Act and in the EU under the European Market Infrastructure Regulation (EMIR) and review of the Markets in Financial Instruments Directive (MiFID II), with a particular focus on implications for end users of derivatives.

In recent years, international economic transactions have increased both in frequency and amounts in and between the world's various economic blocks. The main factors that have enhanced commercial activity between countries include: Greater access to international finance. Greater flow of goods and services between countries attempting to satisfy the growing market demand. The globalisation phenomena. Due to increasing global activity, more stringent regulation and alignment is required in every country that is involved in the economic status quo. The growth and development of commercial transactions between nations requires that the legal framework of the countries involved must consistently suit the incessant operations taking place around the world. Efforts towards avoiding law-infringement in piracy, data protection, international trade, transparency in government procurement and public bidding and foreign investment (among others) as well as with anti-corruption, aim to establish the rule of law and certainty for cross-border investors. Bribery is one of the most common challenges for foreign investors when they arrive at unknown territories to do business. Bribery is a major threat to commercial activity and economic factors, therefore, stronger anti-bribery measures are required wherever foreign investment is welcomed. Many countries have now embodied regulations and policies in their legal frameworks in order to ban, limit and sanction undue p

A number of states, including Switzerland, have enacted blocking statutes which may prevent or hinder the collection of evidence in multi-jurisdictional proceedings. Article 271 of the Swiss Criminal Code (Criminal Code) prevents an "official act" from being performed on behalf of a foreign authority on Swiss soil. This can have the effect of blocking the collection of evidence located in Switzerland that is intended for use in proceedings outside of Switzerland. Against this backdrop, this article: Considers the practical effects of Article 271 for parties gathering evidence outside Switzerland. Highlights the circumstances in which it is possible to breach Article 271 in the context of the gathering of evidence. Addresses how parties outside Switzerland can avoid risking infringement of Article 271 when gathering evidence during multi-jurisdictional proceedings or investigations. This article is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Argentina. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Canada. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in China. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Germany. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Indonesia. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Japan. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in South Africa. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in Turkey. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

A Q&A guide to corporate crime, fraud and investigations in the United States. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing. To compare answers across multiple jurisdictions, visit the Corporate Crime, Fraud and Investigations Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

Hackers attack large and small companies in every industry seeking secrets, notoriety, profits or revenge. This article explores how hacking began, evolved over the years, and what can we expect in the future. The article also examines what organisations and individuals can do to protect themselves against hacking. This article is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

Following the collapse of the world financial markets, many jurisdictions are experiencing increased litigation activity, much of which involves elements of fraud and asset tracing. Mavera injunctions (freezing orders) remain a crucial tool in ensuring that dishonestly obtained assets are not put beyond the reach of successful litigants or legitimate creditors. However, to meet the increasing complexity of corporate dealings and commercial relationships the law in this area is evolving significantly. Against this background, this article: Sets out the difficulties faced by litigants/creditors when seeking freezing orders against third parties in foreign jurisdictions. Details the case law development of the Chabra jurisdiction. Details how the Chabra jurisdiction has been specifically recognised and applied in the Cayman Islands. This article is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

This article looks at how organisations have responded to the UK Bribery Act and makes suggestions as to how organisations should focus going forward to reduce their bribery and corruption risk. This article is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

This article explores the current issues surrounding establishing an effective whistleblowing system in the light of recent legislation, in particular the US Dodd-Frank Act. While many companies do not fall under the jurisdiction of Dodd Frank, the issues and potential solutions involved in responding to its provisions can provide valuable insights to any company looking to implement or improve a whistleblowing system. This article is part of the PLC multi-jurisdictional guide to corporate crime, fraud and investigations law. For a full list of jurisdictional Q&As visit www.practicallaw.com/corporatecrime-mjg.

This Article analyzes the UK Vickers Report's ring-fencing proposals for commercial banks and compares those proposals with the analogous restrictions under US banking law. 

On 26 March 2013, the International Swaps and Derivatives Association (ISDA) published a guidance note and amendment letter in relation to the discontinuation of certain currencies and maturities of LIBOR.

The Financial Stability Board (FSB) has published a letter (dated 12 February 2013) sent to the G20 ahead of its meeting on 15 to 16 February 2013, reporting on the good progress being made in financial regulatory reforms.

HM Treasury has announced in a  written ministerial statement that the government accepts all the recommendations in the final report on the review of the London Interbank Offered Rate (LIBOR) undertaken by Martin Wheatley, FSA Managing Director and Chief-Executive designate of the Financial Conduct Authority (FCA).

PLC Cross-border has a new Corporate Crime, Fraud and Investigations multi-jurisdictional guide, which answers key questions on white-collar crime from the perspective of legal practitioners in 18 jurisdictions.

HM Treasury has published a discussion paper outlining initial thinking on the review of the London Interbank Offered Rate (LIBOR) being undertaken by Martin Wheatley, Chief Executive-designate of the Financial Conduct Authority (FCA). (Free access.)

The Council of the EU has adopted EMIR (also known as the Regulation on over-the-counter (OTC) derivative transactions, central counterparties (CCPs) and trade repositories).

The FSA has fined Barclays Bank plc £59.5 million for breaching Principles 2, 3 and 5 of the FSA's Principles for Businesses through misconduct relating to its submission of rates that formed part of the London Interbank Offered Rate (LIBOR) and Euro Interbank Offered Rate (EURIBOR) setting processes.

The Technical Committee of the International Organization of Securities Commissions (IOSCO) has published a final report on international standards for derivatives market intermediary (DMI) regulation.

A number of international trade associations have sent a joint letter to Tim Geithner, US Treasury Secretary and Michel Barnier, European Commissioner for Internal Market and Services, raising issues arising from extra-territorial legislation.

The European Commission has published a green paper on shadow banking, consulting on its regulatory approach to shadow banking entities and activities. (Free access.)

The Financial Stability Board has published an update on its legal entity identifier (LEI) expert group's work on developing a global framework for the LEI.  This includes early guidance on two technical features of the LEI.

The International Swaps and Derivatives Association (ISDA) has published recommendations for amending the proposed transparency requirements for over-the-counter (OTC) derivatives under the European Commission's proposals to revise the Markets in Financial Instruments Directive (2004/39/EC) (known as MIFID II).

An article has been published on ft.com, reporting that a coalition of trade associations has jointly commissioned a study into the viability of establishing a mutual recognition regime between US and European regulators.

The Bank for International Settlements has published a report by its Committee on the Global Financial System on the macrofinancial implications of alternative configurations for access to central counterparties in over-the-counter derivatives markets.

On 4 November 2011, the FSB published a number of papers, which were endorsed by the G20 leaders at the Cannes summit.

The G20 finance ministers and central bank governors have published a communiqué following their meeting in Paris on 14 and 15 October 2011.

The Financial Stability Board has published a consultation paper setting out options and proposals to improve the data on linkages between global systemically important banks and their exposures and financial dependencies.

The Financial Stability Board (FSB) has published a press release about its meeting in Paris on 18 July 2011.  Amongst other things, the FSB assessed vulnerabilities affecting the financial system and discussed key financial regulatory reforms.  

The International Swaps and Derivatives Association (ISDA) has published its response to the Financial Stability Board's (FSB) April 2011 progress report on implementing the G20 over-the-counter (OTC) derivatives market reforms.

The FSB has published a progress report on the work which is underway to implement the financial stability recommendations agreed by the G20 at its November 2010 Seoul summit.

The Council of the EU has published a press release announcing that the legislation reforming the EU supervisory framework was adopted at a meeting of the Economic and Financial Affairs Council on 17 November 2010.

On 27 September 2010, the Financial Stability Board published a press release setting out its progress on its global regulatory reform agenda, including its work on systemically important financial institutions, improving over-the-counter (OTC) derivatives markets and reducing regulatory reliance on credit ratings.

The government has announced major changes to the UK's financial services regulatory structure including the abolition of the FSA in its current form.