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COBS 2.1 Acting honestly, fairly and professionally

The client's best interests rule

COBS 2.1.1RRP
  1. (1)

    1A firm must act honestly, fairly and professionally in accordance with the best interests of its client (the client's best interests rule).

  2. (2)

    This rule applies6:

    1. (a)

      in relation to designated investment business carried on6 for a retail client; 7

    2. (b)

      in relation to MiFID, equivalent third country or optional exemption business5, for any6 client; and7

    3. (c)

      in relation to insurance distribution, for any client.7

  3. (3)

    For a management company, this rule applies in relation to any UCITS scheme 8the firm manages.23

[Note: article 24(1)5 of MiFID, article 17(1) of the IDD7 and article 14(1)(a) and (b) of the UCITS Directive]2

Business with eligible counterparties

COBS 2.1.1AR

5In relation to its eligible counterparty business, a firm must act honestly, fairly and professionally, taking into account the nature of the eligible counterparty and its business.

[Note: article 30(1) of MiFID]

Exclusion of liability

COBS 2.1.2RRP

A firm must not, in any communication relating to designated investment business seek to:

  1. (1)

    exclude or restrict; or

  2. (2)

    rely on any exclusion or restriction of;

any duty or liability it may have to a client under the regulatory system.

COBS 2.1.3GRP
  1. (1)

    In order to comply with the client's best interests rule, a firm should not, in any communication to a retail client relating to designated investment business:

    1. (a)

      seek to exclude or restrict; or

    2. (b)

      rely on any exclusion or restriction of;

    any duty or liability it may have to a client other than under the regulatory system, unless it is honest, fair and professional for it to do so.

  2. (2)

    The general law, including the Unfair Terms Regulations (for contracts entered into before 1 October 2015) and the CRA, 4also limits the scope for a firm to exclude or restrict any duty or liability to a consumer.

AIFMs’ best interests rules

COBS 2.1.4RRP

3A full-scope UK AIFM 8must, for all AIFs it manages:

  1. (1)

    act honestly, fairly and with due skill care and diligence in conducting their activities;

  2. (2)

    act in the best interests of the AIF it manages or the investors of the AIF it manages and the integrity of the market;

  3. (3)

    treat all investors fairly; and

  4. (4)

    not allow any investor in an AIF to obtain preferential treatment, unless such preferential treatment is disclosed in the relevant AIF's instrument constituting the fund.

[Note: article 12(1)(a), (b) and (f) and article 12(1) last paragraph of AIFMD]

Subordinate measures for alternative investment fund managers

COBS 2.1.5GRP

3Articles 16 to 29 of the AIFMD level 2 regulation provide detailed rules supplementing the relevant provisions of Article 12(1) of AIFMD.