Regulatory Recap - 10 August 2016

Recent Key Developments

  • The High Court dismissed a class action appeal by ANZ customers over late credit card payment fees.

  • Big banks to be called before the House of Representatives Standing Committee on Economics annually to explain funding issues, ensuring the banks will be regularly and permanently accountable to the Committee.

  • The Governance Institute released the results of a survey, which indicate that large corporations, the banking, finance and insurance sectors and government have significantly negative ethics ratings.

Australia

  • High Court dismissed the appeal of customers who brought a class action against ANZ over credit card late payment fees, with the majority of the Court agreeing with ANZ's claim that the costs to banks of late payments include making provisions for soured loans, for holding regulatory capital, debt collection costs, as well as finding that late payment fees did not amount to unconscionable conduct, unjust transactions, unfair contract terms or penalties: > read more

  • CHOICE and Consumer Action Law Centre responded with a campaign for law reform from the Turnbull Government, fearing that this outcome could lead banks to increase fees: > read more

  • ASIC released a consultation paper about its proposals to provide guidance to responsible entities in the managed funds sector regarding ASIC's expectations for compliance with their obligation to maintain adequate risk management systems under s912(A(1)(h) of the Corporations Act: > read more

  • IFA reported that a couple in NZ are suing ANZ and its subsidiary OnePath on the grounds of racial discrimination, in relation to the definition of permanent resident in OnePath's life insurance policy: > read more

  • ASIC is going through a period of intense enforcement activity, banning five individuals over the past fortnight for misconduct including fraud: > read more 

  • Governance Institute of Australia conducted a survey for its inaugural Ethics Index, which found that Australians view big businesses, banks and politicians as unethical: > read more

  • ASIC Chairman Greg Medcraft spoke about culture, values and ethics at the launch of the Ethics Index: > read more 

  • ASIC Chairman Greg Medcraft spoke about trust and confidence and how ASIC is working on building it across Australia's equity, debt and derivatives markets, including using cyber resilience, listing standards and new technology: > read more

  • Prime Minister and Treasurer announced that the major banks would be required to appear annually before the Standing Committee on Economics to explain factors that would impact the cost of funds, how they are responding to regulatory issues and to provide their perspective on the performance of the Australian economy, including strengths and risks.

International

United Kingdom

  • FCA emphasised that getting culture and conduct right is central to the role of the regulator: > read more 

  • FCA announced the next steps in its remediation program to ensure UK FX firms address root causes of failings and drive up standards across the market: > read more

  • Lloyds Banking Group will eliminate an additional 3,000 jobs and a further £400M of annual expenses, as the UK's largest mortgage lender attempts to stave off a Brexit-induced earnings slump: > read more

  • FCA published its second consultation paper on the Markets in Financial Instruments Directive II implementation, which will introduce wide-ranging measures designed to improve investor protection and promote market integrity, in relation to the regulatory framework introduced in 2007 for the buying, selling and organised trading of shares, bonds, units in collective investment schemes and derivatives across the EU: > read more

  • FCA published its findings of a credit card market study and set out a package of measures to help consumers take better control of their spending: > read more

  • FCA found shortcomings in the control and oversight of appointed representatives by their principal firms in the general insurance sector: > read more

  • FCA seeks a clearer mission, according to its new chief executive: > read more

United States

  • Consumer Financial Protection Bureau released a fifth birthday retrospective giving an overview of its action in the realms of rulemaking, supervision and enforcement: > read more 

  • US Regulators (FRB, FDIC, FHFA, NCUA, OCC and SEC) proposed a joint rule to regulate incentive-based compensation paid to senior executives by banks, investment advisers, broker-dealers and credit unions with over $1 billion in assets: > read more

Our Regulatory Risk + Strategy Team

Scott Atkins

I'm unapologetically determined and fearless. I pursue excellence. Always.

Scott Atkins Partner

Scott is the Chair of our Board and an internationally renowned insolvency and restructuring lawyer. He is an inaugural Fellow and a member of the Board of INSOL International. Scott is also Vice President of the Australian Restructuring Insolvency and Turnaround Association (ARITA).

Scott is a trusted adviser to Australia's leading banks and insolvency and restructuring practitioners and has acted on some of the industry's most complex and sensitive banking and insolvency advisory and dispute resolution matters.

Prior to joining HDY, Scott practiced for 7 years as in-house counsel with Commonwealth Bank Group. He is now our Client Relationship Partner for the CBA Group. He is also the co-leader of our cross-border insolvency practice and our regulatory enforcement practice. Scott is recognised by his peers for his leading expertise in cross-border insolvency, acting on both inbound engagements in Australia and advising Australian clients on outbound engagements in the USA, UK, Cayman Islands, Hong Kong and The Netherlands, among other jurisdictions.

Scott was the Australian delegate on the Advisory Committee on Comparative Law established by the American Bankruptcy Institute as part of its Commission to Study the Reform of Chapter 11 of the US Bankruptcy Code. This resulted in a landmark report for the reform of Chapter 11.

He is a published author on insolvency and cross-border insolvency. Most recently, Scott was one of the Australian contributors to the 2015 publication 'International Contributions to the reform of Chapter 11 U.S. bankruptcy code' which is volume 2 of the European and International Insolvency Law Studies series. He also authored the Australian chapter of Avoidance of Antecedent Transactions and Cross-Border Insolvency (INSOL International). Among other publications, he is the co-author, together with Professor Rosalind Mason, of the Australian chapter of Look Chan Ho's leading text: Cross-Border Insolvency: Cases and Materials (Kluwer International).

Scott is a visiting lecturer on cross-border insolvency at the University of Sydney in its undergraduate and postgraduate law programs lead by Professor John Stumbles.

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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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John Martin Partner

John is a leading lawyer in both financial sector dispute resolution (complex and regulatory) and corporate insolvency and restructuring, with a particular specialty in cross-border insolvencies. He is recognised by his clients, peers and legal directories as a leader in his field.
 

Domestically, John advises on large and complex insolvencies and assists in finding solutions for financial institutions with regulatory and other complex issues. His clients include several of Australia's major banks, as well as insolvency practitioners appointed to insolvent entities.

Internationally, John has advised in connection with insolvencies in England, Fiji, Bermuda, Cambodia, Cayman Islands, Brunei, and Norfolk Island. His cross-border experience includes acting for the liquidators of an insolvent bank, and various liquidators of insurance and reinsurance companies.

John is a recognised authority on insolvency issues, with articles published in media outlets such as The Australian Financial Review and the Insolvency Law Journal. He has presented at numerous domestic conferences as well as internationally in the US, England, South Africa, Singapore, Canada, New Zealand, and the Netherlands.

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Claudine Salameh Partner

Claudine has over 15 years' experience dealing with legal issues in the financial services sector.

She is a banking and insolvency litigator and regulatory expert. She acts for the major Australian financial institutions in matters involving customer disputes and litigation, fraud, regulatory and compliance issues, regulatory investigations, inquiries and enforcement matters, security enforcement and insolvency litigation. She also acts for insolvency practitioners in formal receiverships, voluntary administrations and liquidations.

Claudine is well known for her ability to manage risks posed by litigation and regulatory inquiries and investigations. She is particularly attuned to reputational and business risks. She is highly strategic and creative and is recognised by her clients for being able to achieve the perfect balance between legal arguments and commercial and practical outcomes.

Claudine has been instrumental in working with clients to provide insights into the field of behavioural economics, which over the past few years, has been of interest to policy makers and regulators as a tool to engage in 'choice architecture'. On a practical level, Claudine has worked closely with clients to design approaches to customer engagement that make use of behavioural insights.   

Claudine is an expert in the conduct of review and remediation programs and provided assistance to the regulator, by way of submissions and her involvement in an industry working group, on ASIC's regulatory guide on review and remediation programs.

Claudine is very familiar with ASIC's powers to obtain documents and information from financial institutions and is called upon by financial institutions to provide assistance in these matters. She has a style that is conducive to having a fruitful dialogue with both the regulator and the various stakeholders within a financial institution.

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