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Articles by Alexandra Doucas
Is it all getting a bit out of hand? FCA Consultation Paper 17/40 on transitioning FCA firms and individuals to the Senior Managers and Certification Regime (SMCR) | Dentons - JDSupra
The SMCR for banks has now been in place for almost two years, but only a few months after it was implemented, statutory amendments were made to allow for its extension to virtually all firms. During the second half of 2017, the FCA published its proposals in relation to that extension, and (most recently) in relation to transition to the new regime.
Financial Markets Disputes and Regulatory Update - January 2018 - What can we learn from the second half of 2017
Cases which consider the construction and use of standard form financial agreements almost always deserve reading. Most notable in this category is the judgment of the Court of Appeal in Dexia v. Comune di Prato, allowing an appeal by Dexia against a first instance decision that would have caused considerable uncertainty for parties using standard form agreements governed by English law (in this case, the 1992 ISDA Master Agreement) in other jurisdictions.
Fraud, shift and cousenage
The Gaming Act of 1664 imposed a forfeit on anyone who won a wager or prize, if they did so by means of "fraud, shift, cousenage, circumvention, deceit or unlawful device, or ill practice whatsoever". It is, arguably, still perfectly creditable drafting. Its 21st century equivalent, the Gambling Act 2005, creates a rather more prosaic offence of "cheating at gambling".
Location, location, location - situs of the debt owed under letters of credit - Taurus Petroleum Limited v. State Oil Marketing Company of the Ministry of Oil, Republic of Iraq [2017] UKSC 64 | Dentons - JDSupra
This judgment of the Supreme Court was given in the context of proceedings to enforce an arbitration award. It is interesting in its consideration of: In February 2013, the appellant before the Supreme Court, Taurus Petroleum Limited (Taurus), obtained a final award in arbitration proceedings against the respondent, State Oil Marketing Company of Iraq (SOMO). SOMO did not pay the US$8,716,477 that it was ordered to pay pursuant to the award.
Who can sue for breach of the non-payment terms of a bearer note?
Secure Capital SA (SC) was the owner of the entire beneficial interest in a series of notes issued by Credit Suisse (the Notes). The Notes were governed by English law and issued in bearer form. SC held its interest in the Notes through Clearstream. It argued that a provision of Luxembourg law (under which Clearstream operates) gave it the right to assert a claim directly against Credit Suisse for breach of the terms of the Notes.
Six changes to the SMCR for banks
There might be a temptation for banks to think that the senior managers and certification regimes (SMCR) are old news, and they can just get on with the business of compliance. There are two main reasons, however, why banks may have to revisit their understanding of the SMCR. The first is a raft of changes already announced by the Prudential Regulation Authority (PRA), and due to come into effect in November.
How will the extended SMCR apply to NEDs?
The Financial Conduct Authority (FCA) has consulted on the way in which the senior managers and certification regimes (SMCR) will be rolled out to all authorised firms, probably from next year. From the inception of the SMCR, the FCA has faced some difficult decisions on how (and whether) to apply it to non-executive directors (NEDs). The extension of the SMCR to all authorised firms has offered it the opportunity to address this question again.
What does the FCA's Annual Report 2016/17 tell us about enforcement priorities?
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When can a note trustee lawfully adopt expenses incurred by noteholders? UBS AG, London Branch v. GLAS Trust Corporation Ltd. and another [2017] EWHC 1788 (Comm) | Dentons - JDSupra
The Commercial Court considered the extent to which it was lawful for a note trustee to adopt and pay expenses incurred by a group of noteholders in obtaining advice in relation to a securitisation. While the judgment deals with the specific wording of the agreements in this case, it raises issues that will be relevant to note trustees generally. A securitisation transaction took place in 2006, the subject of which was the cashflows generated by a portfolio of sheltered housing.
How much latitude will the court give a non-defaulting party under the GMRA and GMSLA?
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How to spot PEPs and what to do with them - the FCA's Finalised Guidance 17/5
The guidance issued by the FCA in FG 17/5 (the Guidance) is likely to make a significant difference to the way in which firms identify and manage their relationships with politically exposed persons (PEPs). The FCA has used the Guidance in order to illustrate some significant features of new law in this area, much of which is introduced in order to comply with the minimum standards required by the fourth money laundering directive (MLD4).
No duty of care owed by banks to customers in relation to IRHP review
- (1) CGL Group Limited; (2) Jacqueline Bartels and Adrian Bartels; (3) WW Property Investments Limited v.
Investment and corporate banking: prohibition of restrictive contractual clauses
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In the eye of the beholder? The concept of value for money, and the FCA's governance proposals for asset managers
The publication of the Financial Conduct Authority's Consultation Paper CP17/18 (the CP) and Asset Management Market Study mark a further milestone in the FCA's work on the functioning of the asset management industry. Summarising the FCA's conclusions in blunter, and less precise terms than it uses itself, it finds the industry to be too comfortable and too profitable. Price competition is said to be weak in a number of areas, resulting in charges eroding investors' returns unnecessarily.
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