Related provisions for CASS 6.2.13
1 - 19 of 19 items.
This chapter (the custody rules) applies to a firm:21(1) [deleted]22(a) [deleted]22(b) [deleted]22(1A) 2when it holds financial instruments belonging to a client in the course of its MiFID business;7(1B) 2when it is safeguarding and administering investments, in the course of business that is not MiFID business;7(1C) when it is acting as trustee or depositary of an AIF;
79(1D) when it is acting as trustee or depositary of a UCITS; and97(1E) in respect of any arrangement for a
2The regulated activity of safeguarding and administering investments covers both the safeguarding and administration of assets (without arranging) andarranging safeguarding and administration of assets,5 when those assets are either safe custody investments or custody assets. A safe custody investment is, in summary, a designated investment which a firm receives or holds on behalf of a client. Custody assets include designated investments, and any other assets that the firm holds
(1) Firms to which the custody rules apply by virtue of CASS 6.1.1R (1B), (1D) or CASS 6.1.1R (1E) must also apply the custody rules to those custody assets which are not safe custody investments in a manner appropriate to the nature and value of those custody assets.10(2) Firms to which the custody rules apply by virtue of CASS 6.1.1R (1C) must also apply the custody rules:10(a) to those custody assets which are not AIF custodial assets but are safe custody investments; and(b)
2In accordance with article 42 of the Regulated Activities Order, a firm ("I") will not be arranging safeguarding and administration of assets if it introduces a client to another firm whose permitted activities include the safeguarding and administration of investments, or to an exempt person acting as such, with a view to that other firm or exempt person:(1) providing a safe custody service in the United Kingdom; or(2) arranging for the provision of a safe custody service in
24(1) The custody rules do not apply where a client transfers full ownership of a safe custody asset to a firm for the purpose of securing or otherwise covering present or future, actual, contingent or prospective obligations.[Note: recital 27 to MiFID]4(2) 4Excepted from (1) is a transfer of the full ownership of a safe custody asset:(a) belonging to a retail client;(b) whose purpose is to secure or otherwise cover that client's present or future, actual, contingent or prospective
(1) 9A firm must ensure that any arrangement relating to the transfer of full ownership of a client'ssafe custody asset to the firm for the purposes set out in CASS 6.1.6R (1) and CASS 6.1.6AR (1) is the subject of a written agreement made on a durable medium between the firm and the client.(2) Regardless of the form of the agreement in (1) (which may have additional commercial purposes), it must cover the client's agreement to: (a) the terms for the arrangement relating to the
(1) Subject to (2) and CASS 6.1.12B R and with the written agreement of the relevant client, a9firm need not treat this chapter as applying in respect of a delivery versus payment transaction through a commercial settlement system if:9929(a) in respect of a client's purchase, the firm intends for the asset in question to be due to the client within one business day following the client's fulfilment of its payment obligation to the firm;9 or9(b) in respect of a client's sale, the
(1) 9The amount of client money a firm segregates for the purposes of CASS 6.1.12R (3) may be determined by the previous day's closing mark to market valuation of the relevant safe custody asset or, if in relation to a particular safe custody asset none is available, the most recent available valuation.(2) Where a firm is segregating money for the purposes of CASS 6.1.12R (3) it should, as regularly as necessary, and having regard to Principle 10:(a) review the value of the safe
(1) 9In line with CASS 6.1.12 R, where a firm receives a safe custody asset from a client in respect of a delivery versus payment transaction the firm is carrying out through a commercial settlement system in respect of a client's sale, and the firm has not fulfilled its payment obligation to the client by close of business on the third business day following the date of the client's fulfilment of its delivery obligation to the firm, the firm should consider whether the custody
(1) 9If a firm makes use of the exemption under CASS 6.1.12 R, it must obtain the client's written agreement to the firm's use of this exemption. (2) In respect of each client, the written agreement in (1) must be retained during the time that the firm makes use, or intends to make use, of the exemption under CASS 6.1.12 R in respect of that client'ssafe custody assets.
The custody rules do not apply if a firm temporarily handles a
safe custody asset2
belonging to a client. A firm should temporarily handle a safe custody asset2 for no longer than is reasonably necessary. In most transactions this would be no longer than one business day, but it may be longer or shorter depending upon the transaction in question. For example, when a firm executes an order to sell shares which have not been registered on a de-materialised exchange, handling documents
When a firm temporarily handles a safe custody asset,2 in order to comply with its obligation to act in accordance with Principle 10 (Clients' assets), the following are guides to good practice:2(1) a firm should keep the
safe custody asset2
secure, record it as belonging to that client, and forward it to the client or in accordance with the client's instructions as soon as practicable after receiving it; and2(2) a firm should make and retain a record of the fact that the firm
2When a trustee firm or depositary acts as a custodian for a trust or collective investment scheme, (except for a firmacting as trustee or depositary of an AIF),7 and:
- (1)
the trust or scheme is established by written instrument; and
- (2)
the trustee firm or depositary has taken reasonable steps to determine that the relevant law and provisions of the trust instrument or scheme constitution will provide protections at least equivalent to the custody rules for the trust property or scheme property;
the trustee firm or depositary need comply only with the custody rules listed in the table below.
Reference |
Rule |
CASS 6.1.1 R to CASS 6.1.9 G and CASS 6.1.15 G to CASS 6.1.16C R |
Application |
Trustees and depositaries |
|
General purpose |
|
Protection of clients' safe custody assets |
|
Registration and recording |
|
Holding9 |
|
9CASS 6.3.1 R to CASS 6.3.4B G9 9 |
Depositing safe custody assets with third parties |
Use of safe custody assets |
|
Records, accounts and reconciliations |
The rules in this chapter are designed primarily to restrict the commingling of client and the firm's assets and minimise the risk of the client'ssafe custody assets2
being used by the firm without the client's agreement or contrary to the client's wishes, or being treated as the firm's assets in the event of its insolvency.2
1A firm must, when holding
safe custody assets2
belonging to clients, make adequate arrangements so as to safeguard clients' ownership rights, especially in the event of the firm's insolvency, and to prevent the use of
safe custody assets2
belonging to a client on the firm's own account except with the client's express consent.[Note: article 13(7) of MiFID]22
A firm must introduce adequate organisational arrangements to minimise the risk of the loss or diminution of clients' safe custody assets,2 or the rights in connection with those safe custody assets,2 as a result of the misuse of the safe custody assets,2 fraud, poor administration, inadequate record-keeping or negligence.[Note: article 16(1)(f) of the MiFID implementing Directive]222
To the extent practicable, a firm must effect appropriate registration or recording of legal title to a
safe custody asset2
in the name of:2(1) the client (or, where appropriate, the trustee firm), unless the client is an authorised person acting on behalf of its client, in which case it may be registered in the name of the client of that authorised person;(2) a nominee company which is controlled by:(a) the firm;(b) an affiliated company;(c) a recognised investment exchange;
4If:(1) the safe custody asset is an emission auction product that is a financial instrument; and(2) it is not practicable or possible for a firm to effect registration or recording of legal title in this asset in the manner set out in CASS 6.2.3 R, the firm must register or record legal title in its name provided it has notified the client in writing.
A firm may register or record legal title to its own
applicable assets2
in the same name as that in which legal title to a
safe custody asset2
is registered or recorded, but only if:22(1) the firm'sapplicable assets2
are separately identified in the firm's records from the safe custody assets;2 or22(2) the firm registers or records a
safe custody asset2
in accordance with CASS 6.2.3R (4).2
6A firm may either (i) liquidate an unclaimed safe custody asset it holds for a client, at market value, and pay away the proceeds or (ii) pay away an unclaimed safe custody asset it holds for a client, in either case, to a registered charity of its choice provided:(1) this is permitted by law and consistent with the arrangements under which that safe custody asset is held; (2) it has held that safe custody asset for at least 12 years;(3) in the 12 years preceding the divestment
(1) 6Taking reasonable steps in CASS 6.2.10R (4) includes following this course of conduct:(a) determining, as far as reasonably possible, the correct contact details for the relevant client;(b) writing to the client at the last known address either by post or by electronic mail to inform it: (i) of the name of the firm with which the client first deposited the safe custody asset in question; (ii) of the firm's intention to pay the safe custody asset to charity under CASS 6.2.10
6Where a firm divests itself of a client'ssafe custody asset under CASS 6.2.10 R, it must comply with either (1)(a) or (1)(b) and, in either case, (2).(1) (a) The firm must unconditionally undertake to pay to the client concerned a sum equal to the value of the safe custody asset at the time it was liquidated or paid away in the event of the client seeking to claim the safe custody asset in future.(b) The firm must ensure that an unconditional undertaking in the terms set out
(1) 6If a firm pays away a client's unclaimed safe custody assets to charity or liquidates a client's unclaimed safe custody assets and pays the proceeds to charity under CASS 6.2.10 R it must make and retain, or where the firm already has such records, retain:(a) records of all safe custody assets divested under CASS 6.2.10 R (including details of the value of each asset at that time and the identity of the client to whom the asset was allocated); (b) all relevant documentation
6Any costs associated with the firm divesting itself of safe custody assets pursuant to CASS 6.2.10 R to CASS 6.2.15 R should be paid for from the firm's own funds, including:(1) any costs associated with the firm carrying out the steps in CASS 6.2.10R (4) or CASS 6.2.11 E; and(2) the cost of any insurance purchased by a firm or the relevant member of its group to cover any legally enforceable claim in respect of the assets divested under CASS 6.2.10 R.
(1) 1A firm may deposit
safe custody assets2
held by it on behalf of its clients into an account or accounts opened with a third party, but only if it exercises all due skill, care and diligence in the selection, appointment and periodic review of the third party and of the arrangements for the holding and safekeeping of those safe custody assets.222(1A) A firm which arranges the registration of a safe custody investment through a third party must exercise all due skill, care
In discharging its obligations under this section, a firm should also consider, together with any other relevant matters:(1) once a
safe custody asset2
has been lodged by the firm with the third party, the third party's performance of its services to the firm;2(2) the arrangements that the third party has in place for holding and safeguarding the safe custody asset;22(3) current industry standard reports, for example Financial Reporting and Auditing Group (FRAG) 21 report or
(1) A firm must only deposit
safe custody assets2
with a third party in a jurisdiction which specifically regulates and supervises the safekeeping of
safe custody assets2
for the account of another person with a third party who is subject to such regulation.22(2) A firm must not deposit
safe custody assets2
held on behalf of a client with a third party in a country that is not an EEA State (third country) and which does not regulate the holding and safekeeping of
safe custody
6A firm must have entered into a written agreement with any person with whom it deposits clients'safe custody assets under CASS 6.3.1 R, or with whom it arranges safeguarding and administration of assets which are clients'safe custody assets. This agreement must, at minimum: (1) set out the binding terms of the arrangement between the firm and the third party;(2) be in force for the duration of that arrangement; and(3) clearly set out the custody service(s) that the third party
6A firm should consider carefully the terms of any agreement entered into with a third party under CASS 6.3.4A R. The following terms are examples of the issues that should be addressed in these agreements (where relevant):(1) that the title of the account in the third party's books and records indicates that any safe custody asset credited to it does not belong to the firm;(2) that the third party will hold or record a safe custody asset belonging to the firm'sclient separately
(1) 1A firm must not enter into arrangements for securities financing transactions in respect of
safe custody assets2
held by it on behalf of a client or otherwise use such
safe custody assets2
for its own account or the account of another client of the firm, unless:22(a) the client has given express prior consent to the use of the
safe custody assets2
on specified terms; and2(b) the use of that client'ssafe custody assets2
is restricted to the specified terms to which the
Firms are reminded of the client's best interests rule, which requires the firm to act honestly, fairly and professionally in accordance with the best interests of their clients. For any transactions involving retail clients carried out under this section the FCA expects that:55(1) the firm ensures that relevant collateral is provided by the borrower in favour of the client;(2) the current realisable value of the
safe custody asset2
and of the relevant collateral is monitored
Where a firm uses
safe custody assets2
as permitted in this section, the records of the firm must include details of the client on whose instructions the use of the
safe custody assets2
has been effected, as well as the number of
safe custody assets2
used belonging to each client who has given consent, so as to enable the correct allocation of any loss.[Note: article 19(2) of the MiFID implementing Directive]222
(1) A firm must once every year, and by the time it is required to make a notification in accordance with4CASS 1A.2.9R (4), determine whether it is a CASS large firm, CASS medium firm or a CASS small firm according to the amount of client money or safe custody assets which it holds, using the limits set out in the table in CASS 1A.2.7 R.4(2) For the purpose of determining its ‘CASS firm type’ in accordance with CASS 1A.2.7 R, a firm must:(a) if it currently holds client money
For the purpose of calculating the value of the total amounts of client money and safe custody assets that it holds on any given day during a calendar year a firm must:(1) in complying with CASS 1A.2.2R (2)(a), base its calculation upon internal reconciliations performed during the previous year;(2) in relation to client money or safe custody assets denominated in a currency other than sterling, translate the value of that money or that safe custody assets into sterling at the
CASS firm types
CASS firm type |
Highest total amount of client money held during the firm’s last calendar year or as the case may be that it projects that it will hold during the current calendar year |
Highest total value of safe custody assets held by the firm during the firm's last calendar year or as the case may be that it projects that it will hold during the current calendar year |
more than £1 billion |
more than £100 billion |
|
an amount equal to or greater than £1 million and less than or equal to £1 billion |
an amount equal to or greater than £10 million and less than or equal to £100 billion |
|
less than £1 million |
less than £10 million |
Once every calendar year a firm must notify to the FCA in writing the information specified in (1), (2) or (3) as applicable, and the information specified in (4), in each case no later than the day specified in (1) to (4):44(1) if it held client money or safe custody assets in the previous calendar year, the highest total amount of client money and the highest total value of safe custody assets held during the previous calendar year, notification of which must be made no later
4A firm's 'CASS firm type' and any change to it takes effect:(1) if the firm notifies the FCA in accordance with CASS 1A.2.9 R (1) or CASS 1A.2.9 R (2), on 1 February following the notification; or(2) if the firm notifies the FCA in accordance with CASS 1A.2.9 R (3), on the day it begins to hold client money or safe custody assets; or(3) if the firm makes an election under CASS 1A.2.5 R (1), and provided the conditions in CASS 1A.2.5 R (2) are satisfied, on the day the notification
1A firm that holds custody assets or client money must:(1) provide the information in COBS 6.1.7 R for any custody assets the firm may hold for a client, including any custody assets which are not designated investments; and(2) provide the information in COBS 6.1.7 R and in (1) to each of its clients.
(1) For the purpose of CASS 10.1.7 R, the following documents and records should be retrievable immediately:(a) the document identifying the institutions referred to in CASS 10.2.1R (2);(b) the document identifying individuals pursuant to CASS 10.2.1R (4);(c) any written notification or trust acknowledgement letters referred to in CASS 10.2.1R (5);(d) the most recent internal reconciliations relating to safe custody assets referred to in CASS 10.3.1R (3);(e) the most recent external
(1) 1A firm must ensure that every prime brokerage agreement that includes its right to use safe custody assets for its own account includes a disclosure annex.(2) A firm must ensure that the disclosure annex sets out a summary of the key provisions within the prime brokerage agreement permitting the use of safe custody assets, including:(a) the contractual limit, if any, on the safe custody assets which a prime brokerage firm is permitted to use;(b) all related contractual definitions
(1) Principle 10 (Clients’ assets) requires a firm to arrange adequate protection for client's assets when it is responsible for them. As part of these protections, the custody rules require a firm to take appropriate steps to protect safe custody assets for which it is responsible.(2) Subject to paragraph (3), a 3prime brokerage firm should not enter into “right to use arrangements” for a client'ssafe custody assets unless:13(a) in the case of a CASS small firm or a firm to
A firm must include within its CASS resolution pack:(1) a master document containing information sufficient to retrieve each document in the firm'sCASS resolution pack;(2) a document which identifies the institutions the firm has appointed (including through an appointed representative, tied agent, field representative or other agent):(a) in the case of client money, for the placement of money in accordance with CASS 7.4.1 R or to hold or control client money in accordance with
For the purpose of CASS 10.2.1R (4), examples of individuals within the firm who are critical or important to the performance of operational functions include:(1) those necessary to carry out both internal and external client money and safe custody asset reconciliations; and(2) those in charge of client documentation for business involving client money and safe custody assets.
A firm must include, as applicable, within its CASS resolution pack the records required under:(1) CASS 6.3.1R (4) (safe custody assets: appropriateness of the firm’s selection of a third party);(2) CASS 6.4.3 R (firm’s use of safe custody assets);(3) CASS 6.5.1 R (safe custody assets held for each client), including internal reconciliations carried out pursuant to CASS 6.5.2 R as explained in the guidance at CASS 6.5.4 G;(4) CASS 6.5.2A R (client agreements: firm’s right to use);(5)
In deciding whether to cancel a firm'sPart 4A permission, the relevant regulator24 will take into account all relevant factors in relation to business carried on under that permission, including whether:24(1) there are unresolved, unsatisfied or undischarged complaints against the firm from any of its customers;(2) the firm has complied with CASS 5.5.80 R and CASS 7.2.15 R5 (Client money: discharge of fiduciary duty)24 and CASS 7.2.19 R5(Client money: allocated but unclaimed client
Table 1: CRD activities6 6 |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Taking6 deposits and other repayable funds from the public 6 |
Article 5 |
Article 74 |
2. |
Lending |
Article 61, 64 |
Article 88 |
3. |
Financial leasing |
||
4. |
Money transmission services |
||
5. |
Issuing and administering means of payment (eg credit cards, travellers' cheques and bankers' drafts) |
||
6. |
Guarantees and commitments |
||
7. |
Trading for own account or for account of customers in: (a) money market instruments (b) foreign exchange (c) financial futures and options (d) exchange and interest rate instruments (e) transferable securities |
Article 14, 21, 25 (see Note 1), 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 |
Article 77, 78, 80, 83-85, 89 Article 83-85, 89 Article 83-85, 89 Article 83-85, 89 Article 76-81, 89 |
8. |
Participation in share issues and the provision of services relating to such issues |
Article 14, 21, 25, 53, 64 |
Article 76-81, 89 |
9. |
Advice to undertakings on capital structure, industrial strategy and related questions and advice and services relating to mergers and the purchase of undertakings |
Article 14, 21, 25, 53, 64 |
Article 76-80, 83-85, 89 |
10. |
Money broking |
Article 25, 64 |
Article 77, 78, 89 |
11. |
Portfolio management and advice |
Article 14, 21, 25, 37, 53, 64 |
Article 76-81, 83-85, 89 |
12. |
Safekeeping and administration of securities |
Article 40, 45, 64 |
Article 76-81, 83-85, 89 |
13. |
Credit reference services |
||
14. |
Safe custody services |
1 | 16 | 1
615. |
Issuing electric money |
Article 9B |
Article 74A |
3Note 12: The services and activities provided for in Sections A and B of Annex I of MiFID when referring to the financial instruments provided for in Section C of Annex I of that Directive are subject to mutual recognition according to the CRD from 1 January 2013.6See2 the table at SUP App 3.9.5 G below for mapping of MiFIDinvestment services and activities.For further details relating to this residual category, please see the "CRD"6section of the passporting forms entitled "Notification of intention to establish a branch in another EEA State" and "Notification of intention to provide cross border services in another EEA State".2 266 |
|||
Table of FEES 4 rules that correspond to FEES 7 rules
FEES 4 rules |
Corresponding FEES 7 rules |
Part 1 of 6FEES 4 Annex 2A6 |
Part 1 of FEES 7 Annex 11 |
1Part 2 of FEES 4 Annex 11 |
Part 1 of FEES 7 Annex 1 |
1Part 5 of FEES 4 Annex 11 |
Part 1 of FEES 7 Annex 1 |
(1) 1A firm must make available to each of its clients to whom it provides prime brokerage services a statement in a durable medium:(a) showing the value at the close of each business day of the items in (3); and(b) detailing any other matters which that firm considers are necessary to ensure that a client has up-to-date and accurate information about the amount of client money and the value of safe custody assets held by that firm for it.(2) The statement must be made available
3The mandate rules do not apply to a firm:(1) in relation to client money that the firm is holding in accordance with CASS 5 or CASS 7 (including client money that the firm has allowed another person to hold or control in accordance with CASS 7.5.2 R) or CASS 115; or(2) in relation to custody assets6 that the firm is holding, or in respect of which the firm is carrying on safeguarding and administration of assets (without arranging), acting as trustee or depositary of an AIF or
(1) [deleted]88(2) Relevant matters to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition8may include but are not limited to:(a) (in relation to a firm other than a firm carrying on, or seeking to carry on, a PRA-regulated activity),8 whether there are any indications that the firm may have difficulties if the application is granted, at the time of the grant or in the future, in complying with any of the