Related provisions for MCOB 9.4.138

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DTR 2.5.4GRP
(1) In the FCA’s opinion, paragraph 5(1)(8)(a) of the ESMA MAR delayed disclosure guidelines does3 not envisage that an issuer will: 2(a) delay public disclosure of the fact that it is in financial difficulty or of its worsening financial condition and is limited to the fact or substance of the negotiations to deal with such a situation; or2(b) delay disclosure of inside information on the basis that its position in subsequent negotiations to deal with the situation will be jeopardised
DTR 2.5.7GRP
(1) [deleted]2(2) Selective2 disclosure cannot be made to any person simply because they owe the issuer a duty of confidentiality. For example, an issuer contemplating a major transaction which requires shareholder support or which could significantly impact its lending arrangements or credit-rating may selectively disclose details of the proposed transaction to major shareholders , its lenders and/or credit-rating agency as long as the recipients are bound by a duty of confidentiality. An
EG 8.4.2RP
1Examples of the limitations that the FCA may impose when exercising its own-initiative variation power in support of its enforcement function include limitations on: the number, or category, of customers that a firm can deal with; the number of specified investments that a firm can deal in; and the activities of the firm so that they fall within specific regulatory regimes (for example, so that oil market participants,2corporate finance advisory firms and service
EG 8.4.4RP
1Examples of requirements that the FCA may consider imposing when exercising its own-initiative power in support of its enforcement function are: a requirement not to take on new business; a requirement not to hold or control client money; a requirement not to trade in certain categories of specified investment; a requirement that prohibits the disposal of, or other dealing with, any of the firm’s assets (whether in the United Kingdom or elsewhere) or restricts
DEPP 6A.3.2GRP
The following factors may be relevant to determining the appropriate length of the period of suspension, restriction,4 condition or disciplinary prohibition4 to be imposed on a person under the Act:3(1) DeterrenceWhen determining the appropriate length of the period of suspension, restriction,4 condition or disciplinary prohibition4 the FCA2 will have regard to the principal purpose for which it imposes sanctions, namely to promote high standards of regulatory and/or market conduct
DEPP 6A.3.3GRP
The FCA2 may delay the commencement of the period of suspension,4 restriction or disciplinary prohibition4. In deciding whether this is appropriate, the FCA2 will take into account all the circumstances of a case. Considerations that may be relevant in respect of an authorised person, sponsor or primary information provider2 include:22(1) the impact of the suspension or restriction on consumers;(2) any practical measures the authorised person, sponsor or primary information provider2
COLL 5.7.2GRP
(1) This section contains rules on the types of permitted investments and any relevant limits with which non-UCITS retail schemes operating as FAIFs must comply. These rules allow for the relaxation of certain investment and borrowing powers from the requirements for non-UCITS retail schemes under COLL 5.6 .(2) One example2 of the different investment and borrowing powers under the rules in this section for non-UCITS retail schemes operating as FAIFs is the power to invest up
COLL 5.7.5RRP
(1) This rule does not apply in respect of a transferable security or an approved money-market instrument to which COLL 5.6.8R (Spread: government and public securities) applies5.(2) Not more than 20% in value of the scheme property is to consist of deposits with a single body.(3) Not more than 10% in value of the scheme property is to consist of transferable securities or approved money-market instruments issued by any single body subject to COLL 5.6.23 R (Schemes replicating
COLL 5.7.11GRP
An authorised fund manager carrying out due diligence for the purpose of the rules in this section should make enquiries or otherwise obtain information needed to enable him properly to consider:(1) whether the experience, expertise, qualifications and professional standing of the second scheme's investment manager is adequate for the type and complexity of the second scheme;(2) the adequacy of the regulatory, legal and accounting regimes applicable to the second scheme and its
SUP 10C.11.9GRP
(1) SUP 10C.15 (Forms and other documents and how to submit them to the FCA) explains how revised statements of responsibilities should be submitted.(2) See the table in SUP 10C.11.19G for examples of how the requirements of this section about submitting revised statements of responsibilities apply in different situations.(3) In particular, the table in SUP 10C.11.19G gives examples of how SUP 10C.11.7D(2) and (3) work5.
SUP 10C.11.11GRP
(1) See SUP 10C.13 (Variation of conditional and time-limited approvals) for more details about applications to vary an approval.(2) SUP 10C.15 (Forms and other documents and how to submit them to the FCA) explains how applications to vary an approval should be submitted.(3) See the table in SUP 10C.11.19G for examples of how the requirements of this section about submitting statements of responsibilities with applications to vary an approval apply in different situations.
SUP 10C.11.19GRP

Table: Examples5 of how the requirements for submitting statements of responsibilities work

1Example

Comments

(1) A firm applies for approval for A to perform the executive director function5 and the money laundering reporting function5.

There should be a single statement of responsibilities document that covers the two functions.

The combined document should be included with the application for approval.

(2) Firm X applies for approval for A to perform the executive director function5. Firm Y applies for approval for A to perform the money laundering reporting function. Both firms are SMCR firms5.

There should be separate statements of responsibilities for each firm.

This is the case even if Firm X and Firm Y are in the same group.

(3) A firm applies for approval for A to perform an FCA-designated senior management function and a PRA-designated senior management function.

The arrangements in SUP 10C.9 for FCA functions to be absorbed into PRA ones do not apply and so there are separate applications to the FCA and PRA.

The firm is a PRA-authorised person.6

The single statement of responsibilities document should cover both the FCA and the PRA functions.

(4) A has approval to perform the executive director function5. Later, A is to be appointed to perform the money laundering reporting function5 for the same firm. This will also result in substantial changes to A’s duties as an executive director.

The firm should not use Form J to notify the changes to A’s duties as an executive director.

The firm should submit a revised single statement of responsibilities document along with the application to perform the money laundering reporting function5.

The single statement of responsibilities document should cover both functions. The part relating to A’s duties as an executive director should be updated.

(5) A has approval to perform the executive director function5. Later, A is to be appointed to perform the PRA's chief risk officer designated senior management function for the same firm. This will also result in substantial changes to A’s duties as an executive director.

The firm is a PRA-authorised person.6

The firm should not use Form J to notify the changes to A’s duties as an executive director.

The firm should submit a revised single statement of responsibilities document along with the application to perform the PRA function.

The firm should not submit the revised single statement of responsibilities document separately to the FCA. Instead, it should include it as part of the application to the PRA.

The single statement of responsibilities document should cover both the FCA and the PRA functions. The part relating to A’s duties as an executive director should be updated.

(6) A has approval to perform the money laundering reporting function5. The approval to perform the money laundering reporting function5 is subject to a condition. The firm is applying to vary that condition.

The firm should include a revised statement of responsibilities with the application.

The firm should not use Form J. It should submit a revised statement of responsibilities along with the application to vary the approval.

(7) A has approval to perform the executive director function5 and the money laundering reporting function5 for the same firm. The approval to perform the money laundering reporting function5 is subject to a condition. The firm is applying to vary that condition. As part of the same arrangements, there are to be substantial changes to A’s job as an executive director.

The firm should not use Form J to notify the changes to A’s duties as an executive director.

The firm should submit a revised single statement of responsibilities document along with the application to vary the approval for the money laundering reporting function5.

The single statement of responsibilities document should be updated and should cover both functions.

(8) A has approval to perform the executive director function5 and the PRA's chief risk officer designated senior management function for the same firm. The arrangements in SUP 10C.9 for FCA functions to be absorbed into PRA ones do not apply and so there are separate FCA and PRA approvals.

The approval to perform the PRA's chief risk officer designated senior management function is subject to a condition. The firm is applying to vary that condition. As part of the same arrangements, there are to be substantial changes to A’s job as an executive director.

The firm is a PRA-authorised person.6

The firm should not use Form J to notify the changes to A’s duties as an executive director.

The firm should submit a revised single statement of responsibilities document along with the application to vary the PRA function.

The firm should not submit the revised document separately to the FCA. Instead it should include it as part of the application to the PRA.

The single statement of responsibilities document should cover both the FCA and the PRA functions and should be updated.

(9) A has approval to perform the executive director function5 and the money laundering reporting function5 for the same firm.

Sometime later, A is to give up the money laundering reporting function5 and take up the PRA's chief risk officer designated senior management function. This will involve major changes to A’s role as executive director.

The firm is a PRA-authorised person.6

The answer to example (5) applies.

The application to the PRA to perform the PRA function should be accompanied by a single document that:

(1) contains the statement of responsibilities for the new function;

(2) contains the revised statement of responsibilities for the executive director function5; and

(3) reflects the fact that A is no longer performing the money laundering reporting function5.

(10) A firm has approval for A to perform the executive director function5 and the money laundering reporting function5.

A then ceases to perform the money laundering reporting function5 but continues to perform the executive director function.5

The firm must submit:

(a) Form C for the money laundering reporting function5;

(b) Form J; and

(c) a single updated statement of responsibilities document that covers the executive director function and reflects the fact that A is no longer performing the money laundering reporting function5.

(11) A has approval to perform the executive director function5 and the PRA's chief risk officer designated senior management function for the same firm. Later, A gives up his role as chief risk officer.

The firm is a PRA-authorised person.6

The firm must submit:

(a) Form C for the PRA function;

(b) Form J; and

(c) a single updated statement of responsibilities document that covers the executive director function5.

The firm should not submit the revised single statement of responsibilities document separately to the FCA. Instead, it should include it as part of the notification to the PRA.

(12) A has approval to perform the executive director function5. Later, A is to be appointed to perform the money laundering reporting function5 for the same firm.

The application is rejected.

The single statement of responsibilities document submitted as part of the application will no longer be correct as it reflects the proposed new approval.

If the only changes to the single document in the version sent with the application are ones5 clearly and exclusively tied to the new function, the firm will not need to amend the document as the changes will automatically fall away.

In any other case (for instance if the application is approved conditionally), it is likely that the firm will need to update it using Form J.

In any case, the FCA may contact the firm to agree a revised single statement of responsibilities document.

(13) A has approval to perform the money laundering reporting function5. Later, A is to be appointed as an executive director5 for the same firm.

This will not result in any significant5 changes to A’s duties in the money laundering reporting function5. However, there have been some insignificant changes to A’s role in the money laundering reporting function5 since the firm submitted the most recent single statement of responsibilities document. The changes are not connected to A’s appointment as executive director5.

The answer for example (4) applies.

The single statement of responsibilities document should be updated to cover the changes to A’s duties in the money laundering role as well as covering A’s appointment to perform the executive director function. It does not matter that the changes to A’s money laundering role5 are not significant.

(14) A has approval to perform the executive director function5. Later, A’s business unit grows in size and so the firm needs to apply for A to be approved to perform the PRA's Head of Key Business Area designated senior management function. However, A’s responsibilities do not change.

The firm is a PRA-authorised person.6

The firm should submit a revised single statement of responsibilities document along with the application to perform the PRA function.

The firm should submit a single statement of responsibilities document that covers both the FCA and the PRA functions.

It should not submit the revised single statement of responsibilities document separately to the FCA. Instead, it should include it as part of the application to the PRA.

2(15) Firm X has a branch in the United Kingdom. Firm Y is a UK authorised subsidiary3 of firm X.

Firm X is an overseas SMCR firm that is not an EEA SMCR firm5 and firm3 Y is a UK SMCR firm5.

Both firms apply for approval for the same individual (P) to perform the executive director function5.

3

There should be separate statement of responsibilities for P for each firm.

7(16) An FCA-approved SMF manager goes on or returns from a temporary absence of longer than 12 weeks.

The firm must submit:

(a) Form D (SUP 10C Annex 6R);

(b) Form J (SUP 10C Annex 9D); and

(c) an updated statement of responsibilities document (SUP 10C Annex 10D).

Note:5 The single statement of responsibilities document means the single document described in SUP 10C.11.13D.5
BIPRU 7.10.27GRP
A firm may meet the requirement in BIPRU 7.10.26R by using different model parameters and employing a suitable adjustment mechanism to produce a figure which is equivalent to the figure produced using the parameters set out in BIPRU 7.10.26R. For example, a firm's model may use a 95% one-tailed confidence limit if the firm has a mechanism to convert the output of the model to reflect a 99% one-tailed confidence limit.
BIPRU 7.10.47GRP
This paragraph provides guidance onBIPRU 7.10.46 R (2). Take as an example a VaR model based on a factor model or on a historical simulation model. The ability of the model to explain price variation could be demonstrated by a statistical comparison over the same period of time between actual price changes on the portfolio and the profit and loss impact of risk factors included within the model. A firm may wish to include an estimate of residual variation not explained by the
BIPRU 7.10.54GRP
For example, BIPRU 7.10.53R might involve creating and documenting a prudent incremental PRR charge for the risk not captured in the VaR model and holding sufficient capital resources against this risk. In that case the firm should hold capital resources at least equal to its capital resources requirement as increased by adding this incremental charge to the model PRR. Alternatively the firm may make valuation adjustments through its profit and loss reserves to cover this material
PERG 2.6.11HGRP
  1. (1)

    The main provision within the definition of alternative debenture arrangements that seeks to ensure that only instruments that display the characteristics of a debt security can be alternative debentures is set out at PERG 2.6.11CG (5). It provides that the amount of additional payments under the arrangements must not exceed an amount which would, at the time the bond is issued, be a reasonable commercial return on a loan of capital. Where the return is not fixed at the outset, it is the maximum possible amount of the additional payments that must be considered in deciding this question. The following example demonstrates how this condition should be approached.

    2. Example

    ABC Ltd is a property development company. It wishes to increase its portfolio on a short-term basis. It issues 5-year sukuk to investors and uses the proceeds to buy the head lease of a commercial property. The rental income from the lease is distributed to investors in proportion to their holdings without a cap on the level of return. After 5 years, the head lease is sold on at a profit and the proceeds shared between investors.

    In this example, the investors participate directly in the success or failure of the underlying property business. The sakk is not really in the nature of a debt instrument. It is unlikely to be an alternative debenture as:

    • additional payments under the arrangements would exceed a reasonable commercial return on a loan of the capital.

      Further, where the return is not fixed at the outset, it is the maximum possible amount of the additional payments that must be considered. Here, the issue terms of the sukuk impose no upper limit on the amount of the periodic distributions: a sakk holder subscribing 1,000 may, in a year, get back 200 or 2,000 or nothing depending on the rental market. The maximum potential return is clearly in excess of a reasonable commercial return on a loan of 1,000; and

    • the arrangements have not been admitted to an official list or admitted to trading on a regulated market or recognised investment exchange (see PERG 2.6.11CG (6)).
  2. (2)

    If, in the above example, investors returns were capped at 500 per sakk per year, then this is the amount that must be considered in deciding whether the return exceeds a reasonable commercial return on a loan, even where the amounts actually received turn out to be far lower.

  3. (3)

    In applying the reasonable commercial return test, the sakk should be compared to a hypothetical loan to the issuer on similar terms and carrying similar risks. For example, a conventional security convertible into shares will normally carry a lower rate of interest because the conversion right has a value. The return on an exchangeable or convertible sakk should be measured against the return on an equivalent exchangeable or convertible debt security.

  4. (4)

    The risk to investors in sukuk may vary slightly from that of a conventional bond in some instances. This may be due to the fact that sukuk holders only have recourse to the bond assets or some other structural feature which results in the risk profile being higher. In such instances it may be justifiable for the rate of return to be slightly higher than that of a conventional loan.

  5. (5)

    As with any financial instrument, the pricing of sukuk will depend on the issuers view of the market at the time of issue and reasonable commercial return may vary depending on the issuer and the economic circumstances prevalent at the time of issue.

PERG 2.6.24AGRP
(1) 16A binary or other fixed outcomes bet is also treated as contract for differences. This is defined as something that meets the following conditions:(a) it is a derivative contract of a binary or other fixed outcomes nature; (b) it is not covered by PERG 2.6.23G(1) or (2); (c) it is settled in cash; (d) it is a financial instrument that falls within paragraphs 4, 5, 6, 7 or 10 of Part 1 of Schedule 2 to the Regulated Activities Order18 (see PERG 13, Q31A to Q34 for guidance
PERG 2.6.24BGRP
(1) 16Any derivative under MiFID will be an option, future or contract for differences where PERG 2.5.7G (Wider definition of certain specified investments when carrying on some kinds of EU business) applies.(2) So for example the following contract between X and Y would be a contract for differences.(a) At the start, X pays Y a fixed sum (equivalent to a stake in a bet).(b) If the ABC index closes above 6,500 when the contract expires, Y pays X a fixed sum being the stake and
EG 11.1.3RP
1The FCA has power to apply to the court for a restitution order under section 382 of the Act and (in the case of market abuse) under section 383 of the Act. It also has an administrative power to require restitution under section 384 of the Act. When deciding whether to exercise these powers, the FCA will consider whether this would be the best use of the FCA's limited resources taking into account, for example, the likely amount of any recovery and the costs of achieving and
DEPP 6A.3A.2GRP
1The following factors may be relevant when determining the period of limitation: (1) whether the FCA may be minded to reapprove the approved person in the future, for example if the approved person takes action specified by the FCA during the period of limitation;(2) the approved person's expected lost earnings if the FCA imposes a short period of limitation; (3) whether imposing a short period of limitation would cause the approved person serious financial hardship.
CONC 3.7A.2RRP
(1) A firm must, in any relevant communication, indicate the extent of its powers, in particular whether it works exclusively with one or more lenders (including, for example, if it works exclusively with lenders who are participants in the electronic system that the firm operates) or whether it works as an independent broker.[Note: article 21(a) of the Consumer Credit Directive](2) In this rule, a “relevant communication” means a financial promotion or a document which:(a) is
EG 3.7.4RP
1When it considers whether to use its investigative power, and whether section 169(4) applies, the FCA will first consider whether it is able to assist without using its formal powers, for example by obtaining the information voluntarily. Where that is not possible, the FCA may take into account all of the factors in section 169(4), but may give particular weight to the seriousness of the case and its importance to persons in the United Kingdom, and to the public interest.
SYSC 13.3.1AGRP
3The following is a non-exhaustive list of rules and guidance in the Handbook that are relevant to a firm's management of operational risk: (1) COBS contains rules and guidance that can relate to the management of operational risk; for example, COBS 2 (Conduct of business obligations), COBS 4 (Communicating with clients, including financial promotions), COBS 6 (Information about the firm, its services and remuneration), COBS 7 (Insurance distribution2), COBS 9 (Suitability (including
COCON 2.3.2GRP
(1) The steps that an SMCR firm3 must take to ensure3 that its conduct rules staff understand how the rules in COCON apply to them include the provision of suitable training.(2) Suitable training should always ensure that those who are subject to the rules in COCON have an awareness and broad understanding of all of the rules in COCON, and that they also have a deeper understanding of the practical application of the specific rules which are relevant to their work.(3) For example:(a)
DISP App 3.9.2GRP
In assessing redress, the firm should consider whether there are any other further losses that flow from its breach or failing or from its failure to disclose commission (as applicable), 1 that were reasonably foreseeable as a consequence of the firm's breach or failing or of its failure to disclose commission,1 for example, where the payment protection contract's cost or rejected claims contributed to affordability issues for the associated loan or credit which led to arrears
ICOBS 8.3.3GRP
(1) Principle 8 requires a firm to manage conflicts of interest fairly. SYSC 10 also requires an insurance intermediary to take all reasonable steps to identify conflicts of interest, and maintain and operate effective organisational and administrative arrangements to prevent conflicts of interest from constituting or giving rise to a material risk of damage to its clients. 1(2) [deleted]11(3) If a firm acts for a customer in arranging a policy, it is likely to be the customer's
EG 14.2.3RP
1The following are examples of situations where the FCA may consider it appropriate to seek a court order under section 258 (in the case of an AUT) or section 261Y (in the case of an ACS) to remove the authorised fund manager or depositary: (1) Where there are grounds for concern over the behaviour of the authorised fund manager or depositary in respect of the management of the scheme or of its assets. (2) Where an authorised
REC 2A.1.3GRP
2The RAP regulations apply modified provisions of the Act to a RAP. For example, a RAP is an exempt person in respect of its business as an auction platform due to the application of section 285 of the Act as modified by the RAP regulations. Similarly, section 293 of the Act is applied and modified by the RAP regulations to provide for notification rules and notification requirements in relation to RAPs.
EG 2.5.1RP
1Action before or following an investigation may include, for example, referring some issues or information to other authorities for consideration, including where another authority appears to be better placed to take action. For example, when considering whether to use its powers to conduct formal investigations into market misconduct, the FCA will take into account whether another regulatory authority is in a position to investigate and deal with the matters of concern (as far
DISP App 3.2.6GRP
The firm should take into account any information it already holds about the sale and consider other issues that may be relevant to the sale identified by the firm through other means, for example, the root cause analysis described in DISP App 3.4.
EG 4.9.1RP
1A clear division between the conduct of the investigation2 the ongoing supervision of the firm means that clarity as to who is carrying out what work in important, so that the focus on the various needs of the investigation and supervisory function are not lost. It is also important that the investigation can2 benefit2 from the knowledge of the firm or individuals that the supervisors will have built up, or from their general understanding of the firm's business or sector. In