CASS 7 Annex 5 Guidance notes for acknowledgement letters (CASS 7.18)1
Introduction
1 This annex contains guidance on the use of the templates for acknowledgement letters in CASS 7 Annex 2, CASS 7 Annex 3 and CASS 7 Annex 4.
2 Unless stated otherwise, a reference to 'counterparty' in this annex is:
(a) in the context of a client bank account acknowledgement letter (and CASS 7 Annex 2), to the relevant bank;
(b) in the context of a client transaction account acknowledgement letter (and CASS 7 Annex 3), to the relevant exchange, clearing house, intermediate broker, OTC counterparty or other person (as the case may be); and
(c) in the context of an authorised central counterparty acknowledgement letter (and CASS 7 Annex 4), to the relevant authorised central counterparty.
General
3 Under CASS 7.18.2 R (2) and CASS 7.18.3 R (3)1, firms are required to have in place a duly signed and countersigned acknowledgment letter for a client bank account or client transaction account (respectively) before they are allowed to hold or receive client money in or into the client bank account, or allow the relevant person to hold any client money on the client transaction account (respectively).
14 However, a firm may place client money at an authorised central counterparty in connection with a regulated clearing arrangement if it has provided the relevant authorised central counterparty with a signed and completed authorised central counterparty acknowledgement letter (see CASS 7.8.3 R).
5 For each client bank account or client transaction account, a firm is required to complete, sign and send to the counterparty an acknowledgment letter identifying that account and in the form set out in CASS 7 Annex 2 (Client bank account acknowledgment letter template), CASS 7 Annex 3 (Client transaction account acknowledgment letter template) or CASS 7 Annex 4 (Authorised central counterparty acknowledgment letter), as appropriate.
6 When completing an acknowledgment letter using the appropriate template, a firm is reminded that it must not amend any of the text which is not in square brackets (acknowledgment letter fixed text). A firm should also not amend the non-italicised text that is in square brackets. It may remove or include square bracketed text from the letter, or replace bracketed and italicised text with the necessary wording, in either case as appropriate. The notes below give further guidance on this.
Clear identification of relevant accounts
7 A firm is reminded that for each client bank account or client transaction account it needs to have in place an acknowledgement letter. Accordingly, it is important that it is clear to which account or accounts each acknowledgement letter relates. As a result, the templates in CASS 7 Annex 2, CASS 7 Annex 3 and CASS 7 Annex 4 require that the acknowledgement letter include the full title and at least one unique identifier, such as a sort code and account number, deposit number, reference code or pool ID, for each client bank account or client transaction account to which the letter relates.
8 The title and unique identifiers included in an acknowledgement letter for a client bank account or client transaction account should be the same as those reflected in both the records of the firm and the relevant counterparty, as appropriate, for that account. Where a counterparty's systems are not able to reflect the full title of an account, that title may be abbreviated to accommodate that system, provided that:
(a) the account may continue to be appropriately identified in accordance with the requirements of CASS 7 (eg, 'designated' may be shortened to 'des', 'designated fund' may be shortened to 'des fnd', 'segregated' may be shortened to 'seg', 'account' may be shortened to 'acct', etc); and
(b) when completing an acknowledgement letter, such letter must include both the long and short versions of the account title.
9 A firm should ensure that all relevant account information is contained in the space provided in the body of the acknowledgement letter. Nothing should be appended to an acknowledgement letter.
10 In the space provided in the template letters for setting out the account title and unique identifiers for each relevant account/deposit, a firm may include the required information in the format of the following table:
Full account title
Unique identifier
Title reflected in [name of bank] systems
[Investment Firm Client Bank Account]
[00-00-00 12345678]
[INV FIRM CLIENT A/C]
11 Where an acknowledgement letter is intended to cover a range of client bank accounts or client transaction accounts, some of which may not exist as at the date the acknowledgement letter is countersigned by the relevant person (or, in the case of an authorised central counterparty acknowledgement letter, the date it is sent by the firm to the relevant authorised central counterparty), a firm should set out in the space provided in the body of the acknowledgement letter that it is intended to apply to all present and future accounts which: (a) are titled in a specified way (eg, with the word 'client' in their title); and (b) which possess a common unique identifier or which may be clearly identified by a range of unique identifiers (eg, all accounts numbered between XXXX1111 and ZZZZ9999). For example, in the space provided in the template letter in CASS 7 Annex 2 which allows a firm to include the account title and a unique identifier for each relevant account, a firm should include a statement to the following effect:
Any account open at present or to be opened in the future which contains the term ['client'][insert appropriate abbreviation of the term 'client' as agreed and to be reflected in the Bank's systems] in its title and which may be identified with [the following [insert common unique identifier]][an account number from and including [XXXX1111] to and including [ZZZZ9999]][clearly identify range of unique identifiers].
Signature and countersignatures
12 A firm should ensure that each acknowledgement letter is signed and countersigned by all relevant parties and individuals (including where a firm or its counterparty may require more than one signatory).
13 An acknowledgement letter that is signed or countersigned electronically should not, for that reason alone, result in a breach of the rules in CASS 7.19 1 . However, where electronic signatures are used, a firm should consider whether, under CASS 7.13.8 R 1 and taking into account the governing law and choice of competent jurisdiction, it needs to ensure that the electronic signature and the certification by any person of such signature would be admissible as evidence in any legal proceedings in the relevant jurisdiction in relation to any question as to the authenticity or integrity of the letter.
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Completing an acknowledgment letter
14 A firm should use at least the same level of care and diligence when completing an acknowledgement letter as it would in managing its own commercial agreements.
15 A firm should ensure that each acknowledgement letter is legible (eg, any handwritten details should be easy to read), produced on the firm's own letter-headed paper, dated and addressed to the correct legal entity (eg, where the counterparty belongs to a group of companies).
16 A firm should also ensure each acknowledgement letter includes all the required information (such as account names and numbers, the parties' full names, addresses and contact information, and each signatory's printed name and title).
17 A firm should similarly ensure that no square brackets remain in the text of each acknowledgement letter (ie, after having removed or included square bracketed text, as appropriate, or having replaced square bracketed and italicised text with the required information as indicated in the templates in CASS 7 Annex 2, CASS 7 Annex 3 and CASS 7 Annex 4) and that each page of the acknowledgement letter is numbered.
18 A firm should complete an acknowledgement letter so that no part of the letter can be easily altered (eg, the letter should be signed in ink rather than pencil).
19 In respect of a client bank account acknowledgement letter's governing law and choice of competent jurisdiction (see paragraphs (l) and (m) of the template in CASS 7 Annex 2R) or a client transaction account acknowledgement letter's governing law and choice of competent jurisdiction (see paragraphs (k) and (l) of the template in CASS 7 Annex 3 R), the letter should reflect a firm's agreement with its counterparty that the laws of a particular jurisdiction will govern the acknowledgement letter and that the courts of that same jurisdiction will have non-exclusive jurisdiction to settle any disputes arising out of, or in connection with, the acknowledgement letter, its subject matter or formation.
20 If a firm does not, in any client bank account acknowledgement letter or client transaction account acknowledgement letter, utilise the governing law and choice of competent jurisdiction that is the same as either or both:
(a) the law and the jurisdiction under which either the firm or the relevant counterparty are organised; and
(b) that specified in the underlying agreement/s (eg, banking, custody or clearing services agreement) with the relevant counterparty;
then the firm should consider whether it is at risk of breaching either CASS 7.18.6 R (3) 1 or, in the case of a client bank account acknowledgement letter, CASS 7.13.8 R 1 .
1121 The FCA recognises that some firms and their counterparties may wish to clarify through additional words in the governing law provision (see paragraph (l) of the template in CASS 7 Annex 2 and paragraph (k) of the template in CASS 7 Annex 3) that they are agreeing that the substantive law of the governing jurisdiction shall apply and that their intention is that a court should not decide to apply the substantive provisions of some other law instead of the parties' chosen governing law (a 'renvoi'). Where this is the case firms are permitted to insert additional text that seeks to provide increased legal certainty in the space provided. There is no restriction as to what additional words may be used (eg, additional words such as "without regard to the principles of choice of law" may be appropriate in the circumstances), but a firm should at all times have regard to the need to comply with CASS 7.18.6 R (3) 1 . However, for the majority of firms the FCA does not expect additional wording for the governing law provision to be necessary. This is likely to be the case where only a court that is subject to 'Rome I' (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008) is likely to accept jurisdiction over a dispute arising out of or in connection with the relevant acknowledgement letter.
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Authorised signatories
22 A firm is required, under CASS 7.18.9 R 1 , to use reasonable endeavours to ensure that any individual that has countersigned an acknowledgement letter returned to the firm was authorised to countersign the letter on behalf of the relevant counterparty.
123 If an individual that has countersigned an acknowledgement letter does not provide the firm with sufficient evidence of his/her authority to do so then the firm is expected to make appropriate enquires to satisfy itself of that individual's authority.
24 Evidence of an individual's authority to countersign an acknowledgement letter may include a copy of the counterparty's list of authorised signatories, a duly executed power of attorney, use of a company seal or bank stamp, and/or material verifying the title or position of the individual countersigning the acknowledgement letter.
25 A firm should ensure it obtains at least the same level of assurance over the authority of an individual to countersign the acknowledgement letter as the firm would seek when managing its own commercial arrangements.
Third party administrators
26 If a firm uses a third party administrator ('TPA') to carry out the administrative tasks of drafting, sending and processing a client bank account acknowledgement letter, the text "[Signed by [Name of Third Party Administrator] on behalf of [CASS Firm]]" should be inserted to confirm that the acknowledgement letter was signed by the TPA on behalf of the firm.
27 In these circumstances, the firm should first provide the TPA with the requisite authority (such as a power of attorney) before the TPA will be able to sign the client bank account acknowledgement letter on the firm's behalf. A firm should also ensure that the acknowledgement letter continues to be drafted on letter-headed paper belonging to the firm.
Designated client bank accounts and designated client fund accounts
28 A firm must ensure that each of its client bank accounts follows the naming conventions prescribed in the Glossary. This includes ensuring that (i) all client bank accounts include the term 'client' in their title; and (ii) all designated client bank accounts or designated client fund accounts include, as appropriate, the terms 'designated' or 'designated fund' in their title, or in each case an appropriate abbreviation in circumstances where this is permitted by the Glossary definition.
29 All references to the term "Client Bank Account[s]" in a client bank account acknowledgement letter should also be made consistently in either the singular or plural, as appropriate.
Indirect clearing arrangements
30 For use with client transaction accounts maintained with a clearing member who facilitates indirect clearing through a regulated clearing arrangement, the square-bracketed text in paragraph (d) of the template letter in CASS 7 Annex 3 should remain in the letter, and, depending on the instruments being indirectly cleared using those client transaction accounts, should include the reference to either or both the EMIR indirect clearing default management obligations and the MiFIR indirect clearing default management obligations2.
31 All references to the term "Client Transaction Account[s]" in a client transaction account acknowledgement letter should be made consistently in either the singular or plural, as appropriate.
Direct clearing arrangements
32 For use with client transaction accounts maintained with an authorised central counterparty in respect of a regulated clearing arrangement, a firm may identify whether each account is an omnibus client account or an individual client account in the space provided in the body of the template letter in CASS 7 Annex 4. For example, if using the table mentioned in paragraph 10 above, a firm may include an additional column in which for each account it includes the reference "Individual Client Account" or "Omnibus Client Account", as appropriate.
33 All references to the term "Client Transaction Account[s]" in an authorised central counterparty acknowledgement letter should be made consistently in either the singular or plural, as appropriate.
Money market deposits
34 The client bank account acknowledgement letter in CASS 7 Annex 2 may be used with money market deposits identified as being client money.
35 A firm should ensure that client money placed in a money market deposit is clearly identified as client money (see CASS 7.13.15 G 1 ).
136 Before a firm places client money in a money market deposit, it must have a client bank account acknowledgement letter for that deposit. If the unique identifier which will be associated with a money market deposit consisting of client money is unable to be included in a client bank account acknowledgement letter before it is duly countersigned and returned to the firm, a firm should set out in the body of the letter: (a) the title and other account information for the client bank account from which the deposits will be placed with the bank; and (b) how the firm will notify the bank that a money market deposit placed with it consists of client money (eg, by the inclusion of the words 'Client Money Deposit'). For example, in the space provided in the template letter in CASS 7 Annex 2 which allows a firm to include the account title and a unique identifier for each relevant account/deposit, a firm should include a statement to the following effect:
[[CASS Firm] money market deposits placed from [title of relevant [client bank account], [sort code], [account number]] and identified with the reference '[Client Money Deposit]' as being client money)]
37 A firm which operates the alternative approach to client money segregation (see CASS 7.13.62 R 1 ) might not make deposits of client money in a money market deposit from another client bank account. In these circumstances, the firm need only include in the body of the letter how the firm will notify the bank that a money market deposit placed with it consists of client money. For example, the relevant space in the template letter in CASS 7 Annex 2 may set out that:
1[[CASS firm] money market deposits identified with the reference '[Client Money Deposit]' as being client money]