The Securities Financing Transactions Regulation (SFTR) entered into force on 12 January 2016. The SFTR has a broad scope with extraterritorial and retrospective reach, and impacts on both EU and non-EU financial and non-financial counterparties. All firms involved in securities financing transactions (SFTs) and reuse of financial instruments will need to assess the extent to which they need to comply with the reporting and disclosure obligations within the SFTR. UCITS managers and AIFMs will also need to consider whether the periodic and pre-contractual disclosure requirements in respect of SFTs, as well as total return swaps, will apply to the funds they manage.
After almost four years of debate, the European Commission, Parliament and Council finally reached political agreement on the proposed General Data Protection Regulation (the "GDPR") in December 2015.
The handling of material which is potentially subject to legal professional privilege is an important and often contentious matter in the investigations context. In a recent decision which addresses the practical aspects of evidence handling, the Divisional Court dismissed a claim that the SFO was under a duty to use independent third party IT staff to apply search terms to material in its possession in order to identify which material may be subject to legal professional privilege ("LPP"). The Court ruled that the SFO’s policy (as set out in its Operational Handbook), whereby search terms are applied by the SFO before any responsive material is then reviewed by independent counsel, was lawful.
The case (R (McKenzie) v Director of the Serious Fraud Office  EWHC 102 (Admin)) also has some read-across value for the approach adopted by other investigation agencies to potentially privileged material. In this e-bulletin we summarise the court's ruling and its implications.
The Transparency International (TI) Corruptions Perception Index (CPI) 2015 has been published. The Index is available here and TI's press release here. The CPI measures perceived levels of public sector corruption worldwide, using a scoring system on a scale from 0 (perceived to be highly corrupt) to 100 (perceived to be very clean), and is widely used by companies when undertaking risk assessments as part of their anti-corruption compliance procedures. Denmark topped the index, with North Korea and Somalia the joint worst performers.
Herbert Smith Freehills Singapore hosts round table discussion on “preserving privilege: practical issues in the context of disputes and investigations”
On Wednesday 13 January 2016, a cross section of our clients based in Singapore joined our Disputes and Corporate Crime & Investigations teams and Bankim Thanki QC, a leading commercial advocate and litigator who has practised extensively in the region and the editor of The Law of Privilege (Oxford), for a roundtable discussion on the preservation of privilege. To read more from our team in Singapore, click here.
Iran sanctions: Implementation Day (16 January 2016) marks a significant relaxation of EU and US sanctions against Iran
On 16 January 2016, or "Implementation Day", legislation in the United States ("US") and European Union ("EU") came into effect, relaxing significantly the sanctions in place against Iran. This followed the issuing of a report by the International Atomic Energy Agency ("IAEA") to the UN Security Council, confirming that Iran had complied with its commitments under the Joint Comprehensive Plan of Action ("JCPOA").
The EU announced on 14 January that it would prolong its existing suspension of certain (limited) sanctions on Iran until 28 January 2016 to allow time for implementation of the Joint Comprehensive Plan of Action (the "JCPOA"). Council Decision (CFSP) 2016/35, Council Decision (CFSP) 2016/36 (both amending Decision 2010/413 CFSP), and Council Regulation (EU) 2016/31 (amending Regulation (EU) 267/2012) were published in the Official Journal on 15 January to give effect to this extension.
In September, the European Securities and Markets Authority (ESMA) published the final draft of its technical standards for the Market Abuse Regulation (EU MAR), which will replace the current civil regime on 3 July 2016. EU MAR and the associated Level 2 measures considerably expand the scope of the present regime, introducing more stringent regulation and significant new procedural requirements in a number of key areas. We await publication of the further guidance mandated by EU MAR, and the European Commission's adoption of the Level 2 measures.
Following the announcement of the Joint Comprehensive Plan of Action ("JCPOA") in July 2015, companies have been preparing for the relaxation of sanctions that will allow them to re-enter Iran. As Implementation Day (the point at which many sanctions will be relaxed) approaches, the UK's Foreign & Commonwealth Office (the "FCO") has updated its guidance on doing business with Iran to assist British companies looking to take advantage of this new opportunity. The updated document includes guidance, among other things, on entry into MOUs or conditional contracts prior to Implementation Day, relating to currently prohibited activity.