Cryptoassets – what should the second line of defence be focussing on?

First published on Thomson Reuters Regulatory Intelligence on 12 June 2019 (this version includes updates as at 28 June 2019).

In our first article on cryptoassets we discussed considerations for boards and senior management. This second article considers regulatory risks specific to cryptoassets which the second line of defence (i.e. compliance and risk functions) within the three lines of defence (TLOD) model of compliance should consider.

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Crypto asset compliance in an uncertain regulatory environment

First published on Thomson Reuters Regulatory Intelligence on 10 May 2019.

Authors: Clive Cunningham and Wendy Saunders

This is the first in a series of articles looking at crypto-assets (encompassing exchange tokens, security tokens, and utility tokens) through the lens of prevailing regulatory expectations of governance and risk management in the UK. In the absence of a specific regime for crypto assets, the legal and regulatory environment remains uncertain. Some crypto assets fall within the current regulatory regime; others do not. UK policymakers are in the process of clarifying the current perimeter and may expand it in the future.

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The head of Hong Kong’s Independent Commission Against Corruption (ICAC) has warned local investors to beware of rampant corruption in some Belt and Road countries.

ICAC commissioner Simon Peh Yun-Lu pledged the support of the agency, one of the world’s most respected and effective anti-corruption agencies, in helping investors and Belt and Road countries themselves with graft training.

Concern at corruption is far from new; President Xi Jinping highlighted the need for international counter-corruption cooperation at China’s Belt and Road Forum in May 2017. Continue reading

The Board’s responsibility to manage risk: key legal and compliance issues – a disputes perspective

At this recent conference, held by Herbert Smith Freehills and attended by close to a hundred clients, we explored some key legal and compliance risks facing major corporates and how those risks can be mitigated.

After opening remarks by dispute resolution partner and conference chair David Reston, presentations took place on corporate governance, financial crime, cyber security and risk transfer through insurance, as well as a panel session on business and human rights, class actions and investment protection. The morning concluded with Andrew Procter looking at the practicalities and challenges of designing and operating a risk control programme, from his perspective as a former regulator and compliance head at a global financial institution.

Read more of this post from our litigation team.

EU: EBA’s report on good practices for ETF risk management

The European Banking Authority (EBA) today published an opinion addressed to competent authorities (as defined in the Capital Requirements Directive) which outlines a high level description of good practices with respect to the management of key risks that credit institutions encounter through their ETF business units or when dealing with ETFs, to:

  • seek to ensure that potential risks associated with ETFs are managed adequately from the perspective of the credit institution – and indirectly from the perspective of its customers; and
  • provide guidance as to the evaluation of risk that might emerge at bank level through their operational relationships with ETFs.

Although the opinion is addressed to competent authorities, credit institutions that have business units managing ETFs within their group, and those who may act as counterparties in swaps, securities lending and repos, as market makers/ authorised participants, or as ETF investors, should read it carefully – not least since it contains (in part II) a three-page checklist of questions – under the general headings of  liquidity, counterparty credit risk, and operational risk/conflicts of interest – which they can, in due course, expect their supervisor to be posing to their risk management function (and on which firms need therefore to be able to provide answers/explanations).

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