Related provisions for CONC 8.7.7

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CASS 6.3.1RRP
(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) [deleted]66(2) [deleted]66(3) When a firm makes the selection, appointment and conducts the periodic review referred to 2under
CASS 6.3.4RRP
(1) Subject to (2), a6firm 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.622(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
SUP 16.17.3RRP
(1) 4A firm to which this rule applies must submit a Remuneration Benchmarking Information Report to the FCA annually.(2) The firm must complete the Remuneration Benchmarking Information Report in the format set out in SUP 16 Annex 33A.(3) The firm must submit the Remuneration Benchmarking Information Report to the FCA within four months of the firm'saccounting reference date.(4) A firm that:(a) is not part of a UK lead regulated group must complete that report on an unconsolidated
SUP 16.17.4RRP
(1) A firm to which this rule applies must submit a High Earners Report to the FCA4 annually.104(2) The firm must submit that report to the FCA4 within four months of the end of the firm'saccounting reference date.104(3) A firm that is not part of a UK lead regulated group must complete that report on an unconsolidated basis in respect of remuneration awarded in the last completed financial year to all high earners of the firm who mainly undertook their professional activities
PRIN 3.4.3ARRP
(1) 6Paragraph (2) applies in relation to an individual who:(a) has provided, or is to provide, a guarantee or an indemnity (or both) in relation to a regulated credit agreement, a regulated consumer hire agreement or a P2P agreement; and (b) is not the borrower or the hirer.(2) If the individual is not a customer, they are to be treated as if they were a customer for the purposes of Principles 6 and 7.(3) For the purposes of this rule, a guarantee does not include a legal or
PRIN 3.4.4RRP
A contravention of the rules in PRIN does not give rise to a right of action by a private person under section 138D of the Act (and each of those rules is specified under section 138D(3) of the Act as a provision giving rise to no such right of action).
EG 7.6.1RP
2In certain cases, despite concerns about a person’s behaviour or evidence of a rule breach, the FCA may decide that it is not appropriate, having regard to all the circumstances of the case, to bring formal action for a financial penalty or public censure. This is consistent with the FCA's risk-based approach to enforcement. In such cases, the FCA may give a private warning to make the person aware that they came close to being subject to formal action.
EG 7.6.6RP
2A private warning is not intended to be a determination by the FCA as to whether the recipient has breached the FCA'srules. However, private warnings, together with any comments received in response, will form part of the person's compliance history. In this sense they are no different to other FCA correspondence, but the weight the FCA attaches to a private warning is likely to be greater. They may therefore influence the FCA's decision whether to commence action for a penalty
SUP 17.2.5RRP
(1) 21The operator of , an approved reporting mechanism2, or the operator of an MTF or a market operator through whose systems a reportable transaction is to be completed and which has, pursuant to SUP 17.2.3 R, agreed to make transactionreports2 to the FCA on behalf of a firm, must:2(a) make reports to the FCA in respect of each to which the agreement relates;2(b) ensure such reports 2contain the reporting fields specified in SUP 17 Annex 1, where applicable; and2(c) ensure
SUP 17.2.6GRP
(1) 1A transaction report should distinguish each individual transaction, using the firm's identifying code.(2) Reporting obligations under this chapter do not affect any obligation to report transactions under the rules of any market, trading system, matching or reporting system or exchange, whether or not that market, system or exchange is a regulated market.
LR 9.4.1RRP
(1) This rule applies to the following schemes of a listed company incorporated in the United Kingdom and of any of its major subsidiary undertaking (even if that major subsidiary undertaking is incorporated or operates overseas):(a) an employees' share scheme if the scheme involves or may involve the issue of new shares or the transfer of treasury shares; and(b) a long-term incentive scheme in which one or more directors of the listed company is eligible to participate.(2) The
LR 9.4.4RRP
(1) This rule applies to the grant to a director or employee of a listed company or of any subsidiary undertaking of a listed company of an option to subscribe, warrant to subscribe or other similar right to subscribe for shares in the capital of the listed company or any of its subsidiary undertakings.(2) A listed company must not, without the prior approval by an ordinary resolution of the shareholders of the listed company in a general meeting, grant the option, warrant or
SUP 2.2.1GRP
Breaching Principle 11, or the rules in this chapter, makes a firm liable to regulatory sanctions, including discipline under Part XIV of the Act (Disciplinary Measures), and may be relevant to the use of the appropriate regulator's other powers, including the statutory information gathering and investigation powers (see further PRIN 1.1.7 G to PRIN 1.1.9 G). But, unlike a breach of a requirement imposed under the statutory powers listed in SUP 2.1.5 G, a breach of Principle 11
SUP 2.2.3GRP
The FCA1 would not normally seek to gather information using the methods described in SUP 2.3 or SUP 2.4 in a situation where the FCA1 could not have obtained it under the powers in Part XI of the Act (Information Gathering and Investigations). In particular, the limitations in the following sections of the Act are relevant to this chapter:11(1) section 175(5) (Information and documents: supplementary powers) under which no person may be required under Part XI of the Act (Information
SYSC 1.4.2RRP
A contravention of a rule in SYSC 11 to 2SYSC 213 does not give rise to a right of action by a private person under section 138D of the Act (and each of those rules is specified under section 138D(3) of the Act as a provision giving rise to no such right of action). 344
CONC 1.1.1GRP
(1) 1The Consumer Credit sourcebook (CONC) is the specialist sourcebook for credit-related regulated activities.(2) CONC applies as described in this chapter, unless the application of a chapter, section or a rule is described differently in the chapters, sections or rules in CONC.
CONC 1.1.3GRP
Firms are reminded that other parts of the FCA Handbook and PRA Handbook also apply to credit-related regulated activities. For example, the arrangements for supervising firms, including applicable reporting obligations, are described in the Supervision manual (SUP) and the detailed requirements for handling complaints are set out in the Dispute Resolution: Complaints sourcebook (DISP). The Client Assets sourcebook (CASS) also contains rules about client money that apply in certain
EG 19.14.3RP
1The Money Laundering Regulations add to the range of options available to the FCA for dealing with anti-money laundering failures. These options are: • to prosecute both authorised firms and Annex I financial institutions;to take regulatory action against authorised firms for failures which breach the FCA'srules and requirements (for example, under Principle 3 or SYSC 3.2.6R or SYSC 6.1.1R); and• to impose civil penalties on both authorised firms and Annex I financial institutions
EG 19.14.4RP
1This means that there will be situations in which the FCA has powers to investigate and take action under both the Act and the Money Laundering Regulations. The FCA will consider all the circumstances of the case when deciding what action to take and, if it is appropriate to notify the subject about the investigation, will in doing so inform them about the basis upon which the investigation is being conducted and what powers it is using. The FCA will adopt the approach outlined
MAR 2.5.1RRP
(1) A person who in any place outside the United Kingdom acts or engages in conduct:(a) for the purposes of stabilising2 the price of investments;(b) in conformity with the provisions specified in (2), (3) or (4); and(c) in relation to an offer which is governed by the law of a country (or a state or territory in a country) so specified;is to be treated for the purposes of section 89(3)(a) and section 90 (9)(b) of the Financial Services Act 20122 as acting or engaging in conduct
MAR 2.5.2RRP
A person who is treated under MAR 2.5.1R (1) as acting or engaging in conduct in conformity with the price stabilising rules is also to be treated to an equivalent extent as so acting or engaging for the purposes of:(1) [deleted]2(2) Part XIV (Disciplinary measures); and (3) Part XXV (Injunctions and Restitution) of the Act.
BIPRU 12.3.2GRP
BIPRU 12.4 contains further rules and guidance on stress testing and contingency funding plans. These are both extensions of the overarching systems and controls provisions in BIPRU 12.3. In formulating the rules and guidance in these two sections, the appropriate regulator has taken account of the Principles for Sound Liquidity Management and Supervision dated September 2008 issued by the Basel Committee on Banking Supervision. It is intended that the content of BIPRU 12.3 and
BIPRU 12.3.3GRP
BIPRU 12.5.4R provides that, in relation to a standard ILAS BIPRU firm, it must include in its ILAA an assessment of its compliance with the standards set out in BIPRU 12.3and BIPRU 12.4, including the results of the stress tests required by the rules in BIPRU 12.4. A simplified ILAS BIPRU firm is not subject to BIPRU 12.5 and consequently it is not required to prepare an ILAA. Instead, the rules in BIPRU 12.6 provide that such a firm is to carry out an ILSA, being alone an assessment
BIPRU 12.3.7GRP
As well as the rules in BIPRU 12.3 requiring a firm to have robust systems to enable it to identify, measure, manage and monitor liquidity risk, an ILAS BIPRU firm is also subject to obligations in SUP 16 (Reporting requirements) requiring it to report quantitative data about its liquidity position to the appropriate regulator. That chapter of SUP sets out the applicable data items and the rules governing the frequency of their submission to the appropriate regulator. Absent a
CONC 3.7.4GRP
A firm should in a financial promotion or in a communication with a customer:(1) make clear, to the extent an average customer of the firm would understand, the nature of the service that the firm provides; [Note: paragraphs 3.7e and 4.8b of CBG](2) indicate to the customer in a prominent way the existence of any financial arrangements with a lender that might impact upon the firm's impartiality in promoting a credit1 product to a customer;[Note: paragraphs 2.2, 6th bullet and
CONC 3.7.6GRP
2CONC 3.7.5 R requires all financial promotions and communications with customers to specify the legal name of the firm: the rule does not prohibit the use of trading names, but does require the legal name to be given in addition to any trading name used. If the firm is a company registered under the Companies Act 2006, the firm's legal name will be the name by which it is registered.
SUP 10C.10.9DRP
(1) A firm must use Form E (SUP 10C Annex 3D) where an approved person is both ceasing to perform one or more controlled functions and needs to be approved in relation to one or more FCA-designated senior management function within the same firm or group. (2) A firm must not use Form E if the approved person has never before been approved to perform for any firm:(a) an FCA controlled function that is a significant influence function;(b) an FCA-designated senior management function;
SUP 10C.10.14GRP
Under section 60A of the Act, before a firm makes an application for approval, it should be satisfied that the candidate is a fit and proper person to perform the function to which the application relates. In deciding that question, the firm should have particular regard to whether the candidate, or any person who may perform a function on the candidate's behalf:(1) has obtained a qualification; (2) has undergone, or is undergoing, training; (3) possesses a level of competence;
SUP 10C.10.15GRP
For guidance on criteria that a firm should use for assessing whether an FCA candidate is fit and proper (including the FCArules referred to in SUP 10C.10.14G), see FIT.
SUP 10C.9.8RRP
A person (referred to as ‘A’ in this rule) is not performing an FCA governing function (referred to as the ‘particular’ FCA governing function in this rule) in relation to a PRA-authorised person (referred to as ‘B’ in this rule), at a particular time, if:(1) A has been approved by the PRA to perform any PRA-designated senior management function in relation to B;(2) throughout the whole of the period between the time of the PRA approval in (1) and the time in question, A has been
SUP 10C.9.9GRP

Table: Examples of how the need for dual FCA and PRA approval in relation to PRA-authorised persons is reduced

1Example

Whether FCA approval required

Whether PRA approval required

Comments

(1) A is appointed as chief risk officer and an executive director.

No. He is not treated as performing the executive director function.

Yes

Chief risk officer is a PRA-designated senior management function. A’s functions as a director will be included in the PRA-designated senior management function. To avoid the need for FCA approval, A’s appointment as director should not take effect before PRA approval for the chief risk officer role.

(2) Same as example (1), except that A will take up the role as an executive director slightly later because the approval is needed from the firm's shareholders or governing body.

No

Yes

The answer for (1) applies. The arrangements in this section apply if the application to the PRA says that A will start to perform the potential FCA governing function around the time of the PRA approval as well as at that time.

(3) Same as example (1) but the application to the PRA does not mention that it is also intended that A is to be an executive director.

Yes, to perform the executive director function.

Yes

SUP 10C.9.8R does not apply if the application for PRA approval does not say that A will also be performing what would otherwise be an FCA governing function.

(4) A is to be appointed as chief executive and an executive director.

No. A is not treated as performing the executive director function.

Yes

Being a chief executive is a PRA-designated senior management function. A’s functions as a director will be included in the PRA controlled function.

(5) A is appointed as chief risk officer. Later, A is appointed as an executive director while carrying on as chief risk officer.

Yes, when A takes up the director role. The executive director function applies.

Yes, when A takes up the chief risk officer role.

SUP 10C.9.8R does not apply because, when the firm applied for approval for A to perform the PRA chief risk officer designated senior management function, there was no plan for A also to perform the executive director function.

(6) A is appointed as an executive director. Later, A takes on the chief risk officer function and remains as an executive director.

Yes, when A is appointed as director. The executive director function applies.

Yes, when A takes up the chief risk officer role.

When A is appointed as chief risk officer, A is still treated as carrying on the executive director function. A retains the status of an FCA-approved person.

(7) A is appointed as chief risk officer. A then stops performing that role and for a while does not perform any controlled function for that firm. Later, A is appointed as an executive director with the same firm.

Yes, when A is appointed as an executive director. The executive director function applies.

Yes, when A takes up the chief risk officer role.

SUP 10C.9.8R does not apply because there is no current PRA approval when A is being appointed as a director.

(8) A is appointed as an executive director and chief risk officer at the same time. Later, A gives up the role as chief risk officer but remains as an executive director.

No, on A’s first appointment (see example (1)). But when A gives up the role as chief risk officer, FCA approval is needed to perform the executive director function.

Form E should be used. The application should state that it is being made as a result of A ceasing to perform a PRA-designated senior management function.

Form A should be used if there have been changes in A’s fitness (SUP 10C.10.9D(4))

Yes, on A’s first appointment.

When A stops being a chief risk officer, A stops performing a PRA-designated senior management function. However, being an executive director requires FCA approval. A does not have that approval because A did not need it when A was first appointed.

The combined effect of SUP 10C.9.8R and the relevant PRA rules is that the firm has three months to secure approval by the FCA. During that interim period, A keeps the status of a PRA approved person performing the director element of the PRA chief risk designated senior management function - which is included in that function under relevant PRA rules. The relevant PRA rules say that, during this transitional period, A is still treated as performing the PRA chief risk designated senior management function and SUP 10C.9.8R says that, for as long as A is performing a PRA-designated senior management function, A does not perform the executive director function.

(9) A is appointed as the chief finance officer and an executive director at the same time. Later, A switches to being chief risk officer while remaining as an executive director.

No

Yes

The arrangements in SUP 10C.9.8R continue to apply, even though A switches between PRA-designated senior management function after the PRA's first approval.

(10) A is appointed chief risk officer and an executive director. A goes on temporary sick leave. A takes up his old job when he comes back.

No, neither on A’s first appointment nor when A comes back from sick leave.

Yes

SUP 10C.9.8R still applies on A’s return because A does not stop performing either the PRA's chief risk function or what would otherwise have been the executive director function just because A goes on temporary sick leave.

(11) A is appointed to be chairman of the governing body and chairman of the nomination committee at the same time.

No. A does not need approval to perform the chair of the nomination committee function.

Yes, on first appointment.

Being chairman of the governing body is a PRA-designated senior management function. Therefore, the answer for example (1) applies.

2(12) ‘A’ is to be appointed to perform the Head of Overseas Branch PRA-designated senior management function (SMF19) for a third-country relevant authorised person. A is also an executive director of that firm’sUKbranch.

No. A is not treated as performing the executive3director function.

Yes

A’s functions as a director will be included in the PRA controlled function.

Note: The relevant PRA rules can be found in Chapter 2 of the part of the PRA rulebook called ‘Senior Management Functions’
RCB 1.1.2GRP
The general purpose of this sourcebook is to set out the guidance, directions and rules made by the FCA under the RCB Regulations. Those regulations enable bonds to be issued which comply with Article 52(4)2of the UCITS Directive. 2
RCB 1.1.7GRP
An insurer (which is not a UKSolvency II firm,4non-directive friendly society, incoming EEA firm or an incoming Treaty firm) may benefit from increased counterparty limits under INSPRU 2.1.22R (3)(b). An insurer which is a UKSolvency II firm is subject to the rules in the PRA Rulebook which transpose the Solvency II Directive and also to Solvency II Regulation (EU) 2015/35 of 10 October 2014.4
CONC 7.6.2ARRP
(1) 2This rule applies where the terms of a regulated credit agreement or a P2P agreement do not provide for a continuous payment authority and it is proposed that a customer will grant a continuous payment authority to:(a) a lender or a person who has permission to carry on the activity of operating an electronic system in relation to lending; or(b) a debt collector¸ provided that the debt collector is acting under an arrangement with the lender or the person who has permission
CONC 7.6.2BGRP
(1) 2Where a regulated credit agreement or a P2P agreement does not incorporate the terms of a continuous payment authority, CONC 7.6.2AR enables a continuous payment authority to be put in place (for example, for a repayment plan) without necessarily requiring an amendment to the agreement. But CONC 7.6.2AR applies only where the customer is in arrears or default, and the creation of the continuous payment authority supports the fair treatment of the customer and facilitates
CONC 7.6.12RRP
(1) Subject to (3) to (5), a firm must not request a payment service provider to make a payment, under a continuous payment authority, to collect (in whole or in part) a sum due for high-cost short-term credit if it has done so in connection with the same agreement for high-cost short-term credit on two previous occasions and those previous payment requests have been refused.(2) For the purposes of (1) and (3):(a) if high-cost short-term credit has been refinanced, except in exercise
SUP 12.5.5RRP
A firm must ensure that its written contract with each of its appointed representatives:4(1) complies with the requirements prescribed in regulation 3 of the Appointed Representatives Regulations (see SUP 12.5.2 G);4(2) requires the appointed representative to comply, and to ensure that any persons who provide services to the appointed representative under a contract of services or a contract for service comply, with the relevant requirements in or under the Act (including the
SUP 12.5.6GRP
(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 (Information about the firm, its services and remuneration).979(2) The contractual requirements in SUP 12.5.5 R should extend to:(a) the activities of the appointed representative, if the appointed representative is an individual; and3(b) the activities
SUP 12.5.6BGRP
4(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.47(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(2)
DISP 4.2.3RRP
The following rules and guidance apply to VJ participants as part of the standard terms, except where the context requires otherwise:(1) DISP 1 (Treating complainants4fairly), except:4(a) DISP 1.94(Complaints record rule);4(b) DISP 1.104(Complaints reporting rules);84(ba) DISP 1.10A (Complaints data publication rules); and8(c) DISP 1.114(Lloyd's);4(2) DISP 2 (Jurisdiction of the Financial Ombudsman Service), except:(a) DISP 2.3 (Compulsory Jurisdiction); and(3) DISP 3 (Complaint
DISP 4.2.6RRP
The following rules in FEES apply to VJ participants as part of the standard terms, but substituting 'VJ participant' for 'firm':(1) FEES 2.2.1 R (late payment) but substituting 'FOS Ltd' for 'the FCA';1919(2) FEES 2.3.1 R and 2.3.2 R (remission of fees);(3) FEES 4.2.6 R (1)(b) (periodic fees);(4) FEES 5.3.6 R (general levy) but substituting:(a) 'Voluntary Jurisdiction' for 'Compulsory Jurisdiction' ; and(b) 'FOS Ltd' for 'the FCA';1919(5) FEES 5.3.8 R (calculation of general
REC 2.17.2UKRP

Schedule to the Recognition Requirements Regulations, Part II

2Paragraph 10 (Default rules in respect of market contracts)

(1)

The [UK RIE] must havedefault ruleswhich, in the event of amemberof the [UK RIE] being or appearing to be unable to meet his obligations in respect of one or moremarket contracts, enable action to be taken in respect of unsettledmarket contractsto which he is party.

(2)

The [default rules] may authorise the taking of the same or similar action in relation to amemberwho appears to be likely to become unable to meet his obligations in respect of one or moremarket contracts.

(3)

The [default rules] must enable action to be taken in respect of all unsettledmarket contracts, other than those entered into for the purposes of or in connection with the provision of clearing services for the [UK RIE].

3(4)

Sub-paragraph (5) applies where the exchange has arrangements for transacting business with, or in relation to common members of, a [recognised clearing house] or another [recognised investment exchange].

3(5)

A [UK RIE] must have [default rules] which in the event of the clearing house or the investment exchange being or appearing to be unable to meet its obligations in respect of one or more [market contracts], enable action to be taken in respect of unsettled [market contracts] to which that person is a party.

Paragraph 11 (Content of rules)

(1)

This paragraph applies as regards contracts falling within section 155(2)(a) of the Companies Act [1989].

(2)

The [default rules] must provide -

(a)

for all rights and liabilities between those party as principal to unsettledmarket contractsto which the defaulter is party as principal to be discharged and for there to be paid by one party to the other such sum of money (if any) as may be determined in accordance with the [default rules];

(b)

for the sums so payable in respect of different contracts between the same parties to be aggregated or set off so as to produce a net sum; and

(c)

for the certification by or on behalf of the [UK RIE] of the net sum payable or, as the case may be, of the fact that no sum is payable.

(3)

The reference in sub-paragraph (2) to rights and liabilities between those party as principal to unsettledmarket contractsdoes not include rights and liabilities -

(a)

in respect of margin; or

(b)

arising out of a failure to perform amarket contract.

(4)

The [default rules] may make the same or similar provision, in relation to [designated non-members] designated in accordance with the procedures mentioned in sub-paragraph (5), as in relation tomembersof the [UK RIE].

(5)

If such provision is made as is mentioned in sub-paragraph (4), the [UK RIE] must have adequate procedures -

(a)

for designating thepersons, or descriptions of person, in respect of whom action may be taken;

(b)

for keeping under review the question whichpersonsor descriptions of person should be or remain so designated; and

(c)

for withdrawing such designation.

(6)

The procedures must be designed to secure that -

(a)

apersonis not, or does not remain, designated if failure by him to meet his obligations in respect of one or moremarket contractswould be unlikely adversely to affect the operation of the market; and

(b)

a description of persons is not, or does not remain, designated if failure by apersonof that description to meet his obligations in respect of one or moremarket contractswould be unlikely adversely to affect the operation of the market.

(7)

The [UK RIE] must have adequate arrangements -

(a)

for bringing a designation or withdrawal of designation to the attention of thepersonor description of persons concerned; and

(b)

where a description ofpersonsis designated, or the designation of a description of persons is withdrawn, for ascertaining whichpersonsfall within that description.

Paragraph 12 (Content of rules)

(1)

This paragraph applies as regards contracts falling within section 155(2)(b) or (c) of the Companies Act [1989].3

(2)

The [default rules] must provide -

(a)

for all rights and liabilities of the defaulter under or in respect of unsettledmarket contractsto be discharged and for there to be paid by or to the defaulter such sum of money (if any) as may be determined in accordance with the [default rules];

(b)

for the sums so payable by or to the defaulter in respect of different contracts entered into by the defaulter in one capacity for the purposes of section 187 of the Companies Act [1989] to be aggregated or set off so as to produce a net sum;3

3(bb)

if relevant, for that sum to be aggregated with, or set off against, any sum owed by or to the investment exchange by or to AP under an indemnity given or reimbursement or similar obligation in respect of a margin set off agreement in which the defaulter chose to participate so as to produce a net sum;

(c)

for the net sum referred to in [(2)](b) or, if relevant, the net sum referred to in [(2)](bb) -3

3

(i)

if payable by the defaulter to the exchange, to be set off against -3

3

(aa) any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);3

(bb) to the extent (if any) that any sum remains after set off under (aa), any default fund contribution provided by the defaulter remaining after any application of such contribution;3

(ii)

to the extent (if any) that any sum remains after set off under (i), to be paid from such other funds, including the default fund, or resources as the exchange may apply under its default rules;3

3

(iii)

if payable by the exchange to the defaulter, to be aggregated with -3

(aa) any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);3

(bb) any default fund contribution provided by the defaulter remaining after any application of such contribution; and3

(d)

for the certification by or on behalf of the [UK RIE] of the sum finally payable or, as the case may be, of the fact that no sum is payable.

3(2A)

In sub-paragraph (2), "margin set off agreement" means an agreement between the exchange and AP permitting any eligible position to which the Participant Member is party with the exchange and any eligible position to which the Participant Member is party with AP to be taken into account in calculating a net sum owed by or to the Participant Member to either the exchange or AP and/or margin to be provided to, either or both, the exchange and AP.

3(2B)

In sub-paragraph (2) -

"AP" means a [recognised clearing house] or another [recognised investment exchange] of whom a Participant Member is a member;

"eligible position" means any position which may be included in the set off calculation;

"Participant Member" means a person who

(a) is a member of the exchange;

(b) is a member or participant of AP; and

(c) chooses to participate, in accordance with the rules of the exchange, in such agreement.

3(2C)

The property, contribution, funds or resources referred to in (2)(c), against which the net sum is to be set off (or with which it is to be aggregated) are subject to any unsatisfied claims arising out of the default of a defaulter before the default in relation to which the calculation is being made.

(3)

The reference in sub-paragraph (2) to the rights and liabilities of a defaulter under or in respect of an unsettledmarket contractincludes (without prejudice to the generality of that provision) rights and liabilities arising in consequence of action taken under provisions of the [default rules] authorising -

(a)

the effecting by the [UK RIE] of corresponding contracts in relation to unsettledmarket contractsto which the defaulter is party;

(b)

the transfer of the defaulter's position under an unsettledmarket contractto anothermemberof the [UK RIE];

(c)

the exercise by theUK RIEof anyoptiongranted by an unsettledmarket contract.

(4)

A "corresponding contract" means a contract on the same terms (except as to price or premium) as themarket contractbut under which thepersonwho is the buyer under themarket contractagrees to sell and thepersonwho is the seller under themarket contractagrees to buy.

(5)

Sub-paragraph (4) applies with any necessary modifications in relation to amarket contractwhich is not an agreement to sell.

(6)

The reference in sub-paragraph (2) to the rights and liabilities of a defaulter under or in respect of an unsettledmarket contractdoes not include, where he acts as agent, rights or liabilities of his arising out of the relationship of principal and agent.

3Paragraph 12A (Content of rules)

3The rules of the [UK RIE] must provide that, in the event of a default, any default fund contribution provided by the defaulter shall only be used in accordance with paragraph 12(2)(c)(i) or (ii).

Paragraph 13 (Notification to other parties affected)

The [UK RIE] must have adequate arrangements for ensuring that -

(a)

in the case of unsettledmarket contractswith a defaulter acting as principal, parties to the contract are notified as soon as reasonably practicable of the default and of any decision taken under the [default rules] in relation to contracts to which they are a party; and

(b)

in the case of unsettledmarket contractswith a defaulter acting as agent, parties to the contract and the defaulter's principals are notified as soon as reasonably practicable of the default and of the identity of the other parties to the contract.

Paragraph 14 (Cooperation with other authorities)

The [UK RIE] must be able and willing to cooperate, by the sharing of information and otherwise, with the Secretary of State, anyrelevant office-holderand any other authority or body having responsibility for any matter arising out of, or connected with, the default of amemberof the [UK RIE] or any [designated non-member] or the default of a [recognised clearing house] or another [recognised investment exchange].34
REC 2.17.6GRP
The Companies Act 1989 contains provisions which protect action taken by a UK recognised body under its default rules from the normal operation of insolvency law which might otherwise leave this action open to challenge by a relevant office-holder.