SUP 12.5 Contracts: required terms

The Appointed Representatives Regulations17 include, among other things, the prescribed requirements applying to contracts between firms and appointed representatives for the purposes of section 39(1)(a)(ii) of the Act.

1. (1)

   Regulations 3(1) 8and (2) of the Appointed Representatives Regulations make it a requirement that the contract between the firm and the appointed representative (unless it prohibits the appointed representative from representing other counterparties) contains a provision enabling the firm to:4

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   1. (a)

      impose such a prohibition; or

   2. (b)

      impose restrictions as to the other counterparties which the appointed representative may represent, or as to the types of investment in relation to which the appointed representative may represent other counterparties.

2. (1A)

   [deleted]21

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3. (2)

   Under the Appointed Representatives Regulations17, an appointed representative is treated as representing other counterparties if, broadly, it4:

   1. (a)

      makes arrangements (within article 25 of the Regulated Activities Order) for persons to enter into investment transactions with other counterparties; or

   2. (b)

      arranges the safeguarding and administration of assets by other counterparties; or

   3. (c)

      gives advice (within article 53(1)16 of the Regulated Activities Order (Advising on investments)) on the merits of entering into investment transactions with other counterparties;4

   4
   1. (d)

      assists in the administration and performance of a contract of insurance (article 39A of the Regulated Activities Order);42

      4

      where an "investment transaction" means a transaction to buy, sell, subscribe for or underwrite a security or a relevant investment (that is, a designated investment (other than a P2P agreement)11, structured deposit (where applicable)18, funeral plan contract, pure protection contract, general insurance contract or right to or interest in a funeral plan; or4

   2. (e)

      arranges:4

      4
      1. (i)

         for persons to enter (or with a view to persons entering) as customers6 into home finance transactions (or as plan providers in the case of a home reversion plan)6 with other counterparties;4

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      2. (ii)

         for a person to vary a home finance transaction6 entered into by a person as customer (or as plan provider in the case of a home reversion plan)6 before 31 October 2004 (in the case of a legacy CCA mortgage contract), or15 on or after 31 October 2004 (in the case of any other15regulated mortgage contract) or 6 April 2007 (in all other cases) with other counterparties;4

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   3. (f)

      gives advice (within articles 53A, 53B or 53C6 of the Regulated Activities Order) on the merits of:4

      66
      1. (i)

         persons entering as customers6 into home finance transactions (or as plan provider in the case of a home reversion plan)6with other counterparties;4

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      2. (ii)

         persons varying home finance transactions6 entered into by them as customer (or as plan provider in the case of a home reversion plan)6 before 31 October 2004 (in the case of a legacy CCA mortgage contract), or15 on or after 31 October 2004 (in the case of any other15regulated mortgage contract) or 6 April 2007 (in all other cases)6 with other counterparties;54

         6
   4. (g)

      giving basic advice on a stakeholder product10;75

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   5. (h)

      effects introductions (within article 36A (Credit broking) of the Regulated Activities Order) of individuals to other counterparties;10

   6. (i)

      facilitates persons becoming the lender and borrower under an article 36H agreement (within the meaning of the Regulated Activities Order) on behalf of other counterparties;10

   7. (ia)

      facilitates a person assuming the rights of the lender under an article 36H agreement (within the meaning of the Regulated Activities Order) by assignment or operation of law on behalf of other counterparties;16

   8. (j)

      carries on any of the other activities specified in article 36H(3) of the Regulated Activities Order on behalf of other counterparties in the course of, or in connection with, facilitation mentioned in (i) or (ia)16 by the appointed representative or its principal;10

   9. (ja)

      gives advice (within article 53(2) of the Regulated Activities Order) on the merits of:16

      1. (i)

         a person entering into a ‘relevant article 36H agreement’ (within the meaning of the Appointed Representatives Regulations) as a lender or assuming the rights of a lender under such an agreement by assignment or operation of law; or16

      2. (ii)

         a person providing instructions to a P2P platform operator with a view to entering into a ‘relevant article 36H agreement’ as a lender or assuming the rights of a lender under such an agreement by assignment or operation of law, where the instructions involve:16

         1. (A)

            accepting particular parameters for the terms of the agreement presented by a P2P platform operator; or16

         2. (B)

            choosing between options governing the parameters of the terms of the agreement presented by a P2P platform operator; or16

         3. (C)

            specifying the parameters of the terms of the agreement by other means; or16

      3. (iii)

         a person enforcing or exercising the lender’s rights under a ‘relevant article 36H agreement’; or16

      4. (iv)

         a person assigning rights under a ‘relevant article 36H agreement’;16

      on behalf of other counterparties;16

   10. (k)

       takes steps (within article 39D (Debt adjusting) of the Regulated Activities Order) on behalf of other counterparties;10

   11. (l)

       gives advice to a borrower (within article 39E (Debt-counselling) of the Regulated Activities Order) on behalf of other counterparties;10

   12. (m)

       takes steps (within article 39F (Debt-collecting) of the Regulated Activities Order) to procure the payment of debts on behalf of other counterparties;10

   13. (n)

       performs duties (within article 39G (Debt administration) of the Regulated Activities Order) under, or exercises or enforces rights under, an agreement on behalf of other counterparties;10

   14. (na)

       gives advice (within article 53E of the Regulated Activities Order (Advising on conversion or transfer of pension benefits)) on behalf of other counterparties;19

   15. (o)

       enters into regulated credit agreement or exercises or has the right to exercise the lender's rights and duties under such agreements (within article 60B (Regulated credit agreements) of the Regulated Activities Order) on behalf of other counterparties;10

   16. (p)

       enters into regulated consumer hire agreements or exercises, or has the right to exercise, the owner's rights and duties under such agreements (within article 60N (Regulated consumer hire agreements) of the Regulated Activities Order) on behalf of other counterparties;10

   17. (q)

       takes steps on behalf of, or gives advice to, an individual in relation to the taking of any steps (in circumstances constituting the carrying on of providing credit information services) on behalf of other counterparties.10

4. (3)

   4If the scope of appointment covers, in relation to a contract of insurance, dealing in investments as agent, arranging, assisting in the administration and performance of a contract of insurance or advising on investments, regulation 3(4) of the Appointed Representatives Regulations makes it a requirement that the contract between the firm and the appointed representative contains a provision providing that the appointed representative is not permitted or required to carry on such business unless17 included in the Financial Services Register as carrying on insurance distribution activities20.

(Subject to SUP 12.5.13G)22 a firm should satisfy itself that the terms of the contract with its appointed representative (including an introducer appointed representative):

1. (1)

   are designed to enable the firm to comply properly with any limitations or requirements on its own permission;

2. (2)

   require the appointed representative to cooperate with the FCA as described in SUP 2.3.4 G (Information gathering by the FCA on its own initiative: cooperation by firms) and give access to its premises, as described in SUP 2.3.5 R (2);

3. (3)

   require the appointed representative to give the firm's auditors the same rights as are provided by section 341 of the Act17; and22

4. (4)

   22require the appointed representative to provide the firm with such information as is necessary to enable the firm to comply with its obligations under this chapter (SUP 12), including, without limitation:

   1. (a)

      as to any matters which might require the firm to undertake a review under SUP 12.6A.3R;

   2. (b)

      to enable the firm to comply with its reporting and notification obligations in SUP 12.7.

A firm should have the ability to terminate the contract with its appointed representative in the circumstances in SUP 12.6.1R(2). However, such a termination provision should not be automatic (see SUP 12.8.3R(1)). 4SUP 12.5.5R(4) also requires that the firm be able to terminate the contract in the event that the firm determines that it is no longer able to effectively oversee the activities of the appointed representative.22

1. (1)

   If the appointed representative is appointed to give advice on investments to retail clients7 concerning packaged products, the firm should also satisfy itself that the contract requires compliance with the rules in COBS 6 or COBS 6.1ZA18 (Information about the firm, its services and remuneration).9

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2. (2)

   The contractual requirements in SUP 12.5.5 R should extend to:

   1. (a)

      the activities of the appointed representative, if the appointed representative is an individual; and3

   2. (b)

      the activities of the employees of, representatives and introducers appointed by, the appointed representative.34

1. (1)

   The effect of SUP 12.5.6A R (1)(a) is that, in relation to designated investment business with retail clients7, appointed representatives are restricted to one principal.4

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2. (1A)

   The effect of SUP 12.5.6A R (1A) is that tied agents are restricted to one principal when acting as such. A tied agent who has a MiFID investment firm or a third country investment firm as a principal may have other principals who are not MiFID investment firms or third country investment firms.8

3. (2)

   The effect of the rule prohibiting multiple principals for certain activities6 is that, in relation to home finance activities6, appointed representatives are restricted to having four6principals: one for regulated mortgage contracts other than lifetime mortgages,6 one for lifetime mortgages4, one for home reversion plans and one for home purchase plans.6 However, if any of the business of the appointed representative involves MCD credit intermediation activity, the appointed representative is restricted to having one principal in relation to that business.12

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4As SUP 12.5.6A R does not apply to non-investment insurance contracts, there are no restrictions on the number of principals an appointed representative may have in relation to those contracts.

8Under section 39A(6)(a) of the Act a MiFID investment firm21 must ensure that the contract it uses to appoint an FCA registered tied agent complies with the requirements that would apply under the Appointed Representatives Regulations17 if it were appointing an appointed representative.

22If:

1. (1)

   a MiFID investment firm or a third country investment firm appoints an appointed representative that is a tied agent or a MiFID optional exemption appointed representative, regulation 3(6) of the Appointed Representatives Regulations requires the contract between the firm and the appointed representative to contain a provision that the representative is only permitted to provide the services and carry on the activities referred to in section 39(7) of the Act while entered on the Register;

2. (2)

   a firm appoints an appointed representative that is a structured deposit appointed representative, regulation 3(6) of the Appointed Representatives Regulations requires the contract between the firm and the appointed representative to contain a provision that the representative is only permitted to sell, or advise clients on, structured deposits while entered on the Register.

22To the extent that the appointment of the appointed representative includes CBTL business, a firm should satisfy itself that the terms of the contract with its appointed representative:

1. (1)

   are designed to enable the firm to comply properly with any direction issued or imposed under article 19 of the MCD Order; and

2. (2)

   require the appointed representative to deal with the FCA in an open and co-operative manner and give access to its premises, as set out in SUP 2.3.4G and SUP 2.3.5R(2), as applied by SUP 2.1.2AG.