Corporate Criminal Liability and Internal Investigations – Expected Legislative Changes in Germany

In their March 2018 coalition agreement, the coalition partners CDU, CSU and SPD have agreed to establish new rules on criminal sanctions against companies and – for the first time – legal requirements for internal investigations. The agreement already sets out a clear framework and demonstrates a strong political will to tighten the level of sanctions, introduce an obligation to prosecute corporate crimes and create incentives for compliance measures as well as for the assistance in the clarification of criminal offences through internal investigations. The former Federal Justice Minister, Katarina Barley, declared the law reform to be a “priority project”. Following her election to the European Parliament, her successor, Christine Lambrecht, made the draft bill available to a small circle of experts in mid-August 2019 and started the consultation process with the other ministries. The legislative proposal is being discussed extensively in legal practice and academia.

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Herbert Smith Freehills launches new banking litigation blog

Our Banking Litigation team has launched their new Banking Litigation Notes blog, focusing on the latest banking litigation developments of interest to financial institutions.  The team’s first post highlights our recent briefing on the latest communication from the FCA and PRA to ensure firms are properly prepared for the transition from LIBOR to alternative interest rate benchmarks.

To subscribe to the Banking Litigation Notes blog, please click here.

The month ahead in financial services regulatory developments…

In this blog post, we round-up forthcoming developments in the UK and at EU and International levels in financial services regulation for June 2019.

3 Jun
5 Jun
8-9 Jun
  • G20 ministerial meetings:
    • finance ministers and central bank governors (Fukuoka, Japan)
    • trade and digital economy (Tsubuka, Japan)
10 Jun
11 Jun
12 Jun
13-14 Jun
14 Jun
15-16 Jun
19-20 Jun
20-21 Jun
21 Jun
26 Jun
27 Jun
28-29 Jun
29 Jun
  • Deadline for responses to the European Securities and Markets Authority (ESMA) CP on ELTIF RTS
By 30 Jun
End Jun
Jun
Jun/Jul
Jun-Aug

Proposed ‘duty of care’ in financial services: next steps

Authors: Jenny Stainsby, Jon Ford and Cheryl Jones

The FCA has published its Feedback Statement on ‘A duty of care and potential alternative approaches’ (FS19/2). This contains a summary of responses to its Discussion Paper on this subject which was published in July 2018 (DP18/5). For more information on the Discussion Paper, see our briefing here.

In the Feedback Statement, the FCA does not put forward any specific options for change but confirms that the “quality of responses received have given us a strong foundation on which to advance our consideration of the issues”.

So where does this take us and what can we expect next?

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Corporate Crime Update – Winter 2019

Welcome to the Winter 2019 edition of our corporate crime update – our round up of developments in relation to corruption, money laundering, fraud, sanctions and related matters. Our update now covers a number of jurisdictions.

For the full update on each jurisdiction, please click on the name of the jurisdiction below. Below we provide a brief overview of what is covered in each update.

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FCA consults on further changes to SMCR

Authors: Sarah Thomas, Cat Dankos and Hywel Jenkins

At the end of January, the UK Financial Conduct Authority (FCA) issued a further consultation paper (CP19/4, the CP) on the Senior Managers and Certification Regime (SMCR). Responses to the CP are requested by 23 April 2019. Alongside other minor proposed changes which seek to “optimise” the SMCR, the key proposals are:

  • For all firms (banks, insurers, and all solo regulated firms), the legal function will not need to have a SMF Manager responsible for it.
    • Responsibility still has to be allocated to someone, but that individual does not need to be a SMF Manager.
    • The FCA expects the Head of Legal to be a certified function and that the conduct rules will apply to all legal staff.
    • Banks and insurers need to think about whether to change their SMF Manager allocations in light of this confirmation (as well as statements of responsibility and responsibilities map), and how to depict the position of the legal function on their responsibilities map.
  • For all firms (banks, insurers and solo regulated firms) the certification regime definition of the ‘client dealing’ function has been clarified (with a narrowing effect). It will exclude individuals who have no scope to exercise discretion.
    • Insurers and banks may wish to cross-check their existing pool of client dealing staff against the proposed new definition in readiness for the final rules.
  • For solo regulated firms, the FCA has expanded the scope of the forthcoming Enhanced regime to cover more intermediaries.
  • For limited scope solo regulated firms, Manager Conduct Rule 4 (SC4) will be amended to cover non-approved executive directors.

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