Regulatory Recap - 21 March 2016

Welcome to our first edition of Regulatory Recap for 2016 from HDY's Regulatory Risk + Strategy team. 

This year commenced with significant activity from ASIC and we do not anticipate the pace of activity to slow. We eagerly await ASIC's views on structural change and regulatory reform at the ASIC Annual Forum 2016 on 21 and 22 March. We also look forward to seeing many of our colleagues at this event. 


In the meantime, please continue to let us know what you think of Regulatory Recap so that we can adjust and enhance the content to meet your needs. Simply click here to give us your feedback – it will be most welcome.

Recent Key Developments

  • Regulators in Australia, United Kingdom and United States have indicated their regulatory priorities for 2016.
  • The United Kingdom's Senior Managers Regime, the Certification Regime and Conduct Rules for deposit takers in the baking sector and the Senior Insurance Managers Regime for insurance companies, came into effect.
  • Andrew Bailey's appointment as Chief Executive of FCA prompts Australian media to speculate if Greg Medcraft will run for a further term as head of ASIC or if he will be replaced by Cathie Armour (current ASIC Commissioner), Belinda Gibson (former ASIC Deputy) or Pauline Vamos (former head of Association of Super Funds).

Australia

  • ASIC Deputy Chairman Peter Kell addresses Australian Mortgage Innovation Summit on Regulation and Innovation in Mortgage Lending, commenting on ASIC's focus on key protections in the home lending market such as responsible lending obligations: > read more 
  • ASIC Deputy Chairman Peter Kell addresses Insurance Council of Australia Annual Forum 2016, confirming ASIC will focus on general insurance add-on products in 2016: > read more
  • ASIC Commissioner John Price addresses Alternative Finance Australasia Summit on The Regulator and Marketplace Lending, confirming ASIC will soon release an information sheet on the topic: > read more
  • ASIC releases guidance on new protections for small businesses against unfair contract terms: > read more
  • ASIC publishes fourth report on corporate finance regulation, including relevant guidance on regulation of fundraising transactions, mergers and acquisitions, corporate governance issues, related party transactions and financial reporting: > read more
  • ASIC report 470 "Buying add-on Insurance in Car Yards: Why it can be hard to say no" demonstrates the use of behavioural economics to provide an explanation of how sales processes play on cognitive biases of consumers and influences purchasing decisions: > read more
  • APRA Chairman Wayne Byres appears before The Senate Economics Legislation Committee, noting issues on APRA's agenda for 2016 are refining the prudential framework for the deposit-taking sector, securitisation and bank funding: > read more
  • APRA Chairman Wayne Byres addresses The Australian Economic Forum on the Regulatory Agenda in Australia, noting the FSI's reforms and ongoing Basel Committee reforms will occupy much of APRA's banking policy agenda in 2016: > read more
  • APRA Chairman Wayne Byres participates in Regulators Panels at The Australian Economic Forum to discuss the current regulatory agenda in Australia: > read more
  • APRA member Geoff Summerhayes addresses the Insurance Council of Australia Annual Forum on The Art of Supervision – Culture, Rugby and Regulation, distinguishing the respective roles of regulation and supervision: > read more
  • Treasury announces release of Corporations Amendment (Client Money) Bill 2016 and Corporations Amendment (Client Money) Regulation 2016 in response to Financial System Inquiry and invites feedback on draft legislation: > read more

International

United Kingdom

  • FCA appoints Andrew Bailey as new permanent Chief Executive for 5 year term commencing in July 2016: > read more
  • FCA Acting Chief Executive Tracey McDermott addresses Bloomberg on Independence, Confidence and Fairness, noting the need for 'sustainable regulation': > read more
  • FCA Director of Strategy and Competition Christopher Woolard addresses FCA on UK FinTech: Regulating for Innovation: > read more 
  • FCA's Senior Managers Regime, the Certification Regime and Conduct Rules for deposit takers in the banking sector and the Senior Insurance Managers Regime for insurance companies, came into effect on 7 March 2016: > read more
  • FCA and Treasury release Financial Advice Market Review report providing recommendations to help address current concerns about affordability and accessibility of financial advice: > read more
  • FCA releases occasional paper on Economics for Effective Regulation: > read more
  • FCA releases discussion paper encouraging firms to do more to ensure UK’s ageing population can access the financial products and services they need at every stage of life: > read more

United States

  • SEC announces 2016 examination priorities with new areas of focus including liquidity controls, public pension advisers, product promotion, exchange-traded funds and variable annuities: > read more
  • SEC Chair Mary Jo White addresses SEC on Beyond Disclosure at the SEC in 2016, confirming continued action in 2016 in the asset management industry, structure of equity markets and disclosure regime: > read more
  • SEC Commissioner Kara Stein addresses SEC on What Lies Ahead: The SEC in 2016, noting the concepts of transparency and accountability will be central to the SEC's efforts in 2016: > read more
  • CFPB issues policy priorities over the next two years, including arbitration, consumer reporting, debt collection, demand-side consumer behaviour, household balance sheets, mortgages, open-use credit, small business lending and student lending: > read more
  • CFPB Director Richard Cordray addresses Consumer Bankers Association about the role and effects of financial regulation in the consumer marketplace: > read more
  • CFPB releases Winter 2016 Supervisory Highlights, noting violations involving consumer reporting, debt collection, mortgage origination, remittances and student loan servicing: > read more
  • CFPB establishes process for companies to apply for a statement from CFPB staff to reduce regulatory uncertainty for new products and services that offer the potential for significant consumer-friendly innovation: > read more

General

  • IOSCO publishes Securities Markets Risk Outlook for 2016, identifying and examining key trends in global financial markets and the potential risks to financial stability: > read more
  • IOSCO publishes Statement on Regulation of Crowdfunding, raising awareness of the major risks investors face when investing in crowdfunding: > 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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