ASIC extends relief for foreign financial service providers

Two year extension

On 28 September 2016, ASIC extended for two years the relief under seven class orders for certain foreign financial service providers providing financial services to wholesale clients in Australia. The class orders were due to expire between 1 October 2016 and 1 April 2017.

Generally, entities that carry on a financial services business in Australia must hold an Australian financial services licence unless they are otherwise exempted. ASIC provided relief for certain foreign financial services providers under the following class orders:

  • [CO 03/1099] UK regulated financial service providers;
  • [CO 03/1100] US SEC regulated financial service providers;
  • [CO 03/1101] US Federal Reserve and OCC regulated financial service providers; 
  • [CO 03/1102] Singapore MAS regulated financial service providers;
  • [CO 03/1103] Hong Kong SFC regulated financial service providers;
  • [CO 04/829] US CFTC regulated financial services providers; and
  • [CO 04/1313] German BaFin regulated financial service providers.

What do you need to do to rely on the relief going forward?

These class orders have been repealed but under the ASIC Instrument (known as ASIC Corporations (Repeal and Transitional) Instrument 2016/396) the relief under them will continue for two years commencing on the day the ASIC Instrument commenced, which was 28 September 2016. Applications for relief will continue to be made in the same way. ASIC does not require entities that are currently relying on relief provided under the above class orders to lodge any new notification with ASIC.

ASIC has added an extra condition for entities that are currently relying on the above exemptions that requires them to comply with any written notice given by ASIC directing the person to give to ASIC a written statement containing specified information about the financial service business operated by the person in this jurisdiction within a specific time frame. This obligation is broader than the current requirement, which can see ASIC requesting information about any financial service provided in this jurisdiction. This new condition could see ASIC, for example, requesting information in relation to whether, and the extent to which, a foreign financial services provider is carrying on a business in Australia which would require registration as a foreign company.

ASIC consultation

During the two year extension of the above relief, ASIC intends to consult with industry on proposals to amend the relief provided for foreign financial service providers. ASIC has indicated that any amendments will aim to strike an appropriate balance between:

  • facilitating the cross-border provision of financial services on the basis of substituted compliance; and
  • ensuring ASIC can adequately supervise these foreign entities in Australian markets.

ASIC has also released ASIC Consultation Paper 268: Licensing relief for foreign financial services providers with a limited connection to Australia (CP 268). Submissions are due on CP 268 by 2 December 2016.

Nikki Bentley

I understand the financial services industry and thrive on helping our clients in this industry succeed.

Nikki Bentley Partner

Nikki is the Group Leader of Henry Davis York's Corporate Group, which includes the legal teams for Corporate / Mergers & Acquisitions; Investments & Financial Services and Tax.

Nikki is a leading investment funds advisor specialising in financial services and corporate law.  She specialises in business establishment and structuring, fund establishment, funds merger and acquisition, product disclosure and distribution. Nikki leads HDY's corporate group which combines expertise from the Financial Services, M&A and Tax areas.

Nikki provides advice to leading Australian and global fund managers on a full range of corporate, commercial and regulatory issues facing their businesses. She has considerable experience in assisting clients with fund establishment (onshore and offshore), disclosure and distribution. Nikki regularly advises clients on establishing, buying, selling and restructuring their businesses. She also regularly assists clients responding to regulatory enquiries and investigations.

With more than 15 years funds management experience in private practice, government and as an in-house lawyer, Nikki's practice spans the range of funds management products, with particular expertise in hedge funds, property funds and equities.

Nikki is regularly involved in industry and government discussions on regulatory reforms impacting the Australian funds management industry. Nikki is a passionate advocate for the development of a new corporate collective investment vehicle because of the opportunities it could provide to grow the funds management industry. She is the Honorary Legal Counsel and Chair of the Regulatory Committee for the Australian branch of the Alternative Investment Management Association (AIMA) and is a regular participant on the Financial Services Council (FSC) working groups.

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Jon Ireland

I constantly strive for technical excellence and commercial outcomes that add real value for my clients.

Jon Ireland Partner

Jon has extensive experience in corporate and financial services law, specialising in complex transactions, funds management and investment distribution. Jon also advises on regulatory issues relating to the use of technology in financial services.

Jon provides advice to leading Australian and international financial services clients on the full range of corporate, commercial and regulatory issues facing these businesses. He has considerable experience advising them on establishing, buying into, selling and restructuring their businesses.

Jon regularly advises on funds management issues including fund structuring, disclosure, investment management and outsourcing arrangements. He has particular expertise in the area of investment distribution and has advised on key projects for platform operators and advice providers.

Recently, Jon has advised on the establishment of a fully digital investment platform, the negotiation of a material outsourcing arrangement for a global investment bank and a scheme modernisation project for a leading Australian fund manager. Jon has also recently advised on the establishment of the Australian operations of a global diversified financial services business, including regulatory and corporate issues related to its expansion.

Jon's clients value his advice on recent law reforms, including around product disclosure statements and the digital provision of financial services. Jon is consulting to the Committee for Sydney and is a regular participant on Financial Services Council working groups.

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Vinod Kumar

I aim to exceed expectations with commercial, innovative and engaging legal advice.

Vinod Kumar Senior Associate

Vinod advises fund managers and other financial institutions on corporate, commercial and regulatory issues facing their businesses. He specialises in funds management and general corporate law.

Vinod specialises in regulated and unregulated corporate transactions, funds management and financial services regulation. Vinod also provides general corporate advice on matters such as Corporations Act, ASX and regulatory compliance, corporate governance and disclosure.

Vinod's experience includes:

  • advising on a range of listed and unlisted funds, inbound and outbound investment and complex investment products including expertise in superannuation funds
  • foreign financial institutions establishing businesses in Australia
  • assisting clients to establish wholesale and retail funds (managed investment schemes and trusts). Assisting clients to apply for, vary, and administer Australian Financial Services Licences and Australian Credit Licences
  • advising trustees and responsible entities on governance, financial and operational requirements. Developing, implementing and reviewing compliance and risk management policies and procedures
  • advising on trust restructures and schemes, mergers and acquisitions of funds, fund investments and divestments
  • advising on financial services regulations including the Corporations Act 2001 (Cth), Superannuation Industry (Supervision) Act 1993 (Cth) and related regulations
  • launching new financial products including preparing information memoranda, product disclosure statements and advising on disclosure obligations generally, including under the ASX Listing Rules.

 

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Matthew Farnsworth

It's rewarding to partner with clients to find solutions that add value and help them succeed.

Matthew Farnsworth Special Counsel

Matthew has extensive experience in funds management and financial services law. He advises leading Australian and international financial services clients across a wide range of transactional and regulatory matters.

Matthew advises leading Australian and international financial services clients on transactional and regulatory matters.

Clients look to Matthew to assist them to establish, offer and operate retail and wholesale investment funds. He advises on Australian financial services licensing, fund governance, offer documents and fund restructures, including managed investment schemes and other collective investment vehicles (CIVs).

He also advises on outsourcing arrangements, compliance issues and on ongoing regulatory developments in the financial services sector.

Matthew is experienced in the full range of asset classes and has particular experience in the property funds sector, including fund establishment, capital raising and restructures.

He is also experienced in a wide range of transactions in the financial services sector, joint ventures and funds M&A.

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