IP monitor: Federal Court raises the bar to grant protective orders
Canadian National Railway Company v BNSF Railway Company adds to recent case law that has seen the Federal Court refuse to issue routine protective orders.
The Securities and Futures Commission (SFC) published its consultation conclusion in May 2018 in relation to the proposed disclosure requirements for intermediaries providing discretionary account management services (Discretionary Account Managers). This consultation conclusion has been released in connection with the consultation on this topic issued by the SFC in November 2017. In view of the common practice resulting in some Discretionary Account Managers and/or their associates receiving benefits from product issuers and making trading profits which may incentivise them to trade certain products for their clients under discretionary portfolios, the SFC considers it helpful for clients to be made aware of such rewards or benefits in advance in order to address the potential risk of conflicts of interest and to enable investors to make better informed decisions when choosing Discretionary Account Managers.
The SFC has finalised the new paragraph 7.2 of the Code of Conduct for Persons Licensed by or Registered with the SFC (Code of Conduct). In summary, the SFC has decided to adopt the specific disclosure requirement for monetary benefits under an explicit remuneration agreement rather than the alternative option (being disclosure of the aggregate amount of monetary benefits in percentage terms). As a Discretionary Account Manager will be required to make specific or generic disclosures in the situations set out below:
|Specific Disclosure||Generic Disclosure|
|Situation||Details to be disclosed||Situation||Details to be disclosed|
|1. Discretionary Account Manager (and/or any of its associates) receives monetary benefits (whether quantifiable or not) under explicit remuneration arrangement from a product issuer for effecting a transaction for a client.||The maximum percentage of the monetary benefits receivable by it (and/or any of its associates) by the type of investment product.||1. Discretionary Account Manager effects a transaction in an investment product which is issued by it or any of its associates AND it will not explicitly receive monetary benefits when effecting such transaction for a client.||The fact that it or any of its associates will benefit from effecting such transaction.|
|2. Discretionary Account Manager takes no market risk and makes a trading profit from products purchased from or sold to third party for a client.||The maximum percentage of the trading profit to be made by the type of investment product.||2. Discretionary Account Manager (and/or any of its associates) receives from a product issuer non-monetary benefits for effecting a transaction for a client.||The existence and nature of such non-monetary benefits.|
Discretionary Account Managers should make the above one-off disclosures to clients at the account opening stage or prior to entering into a discretionary client agreement. Disclosure should be communicated through electronic or other means and made in writing in English or Chinese according to the language preference of the client. It should be prominent, presented in a clear and concise manner and easy for average clients to understand. Where there are changes to the disclosures made, an update must be provided to relevant clients as soon as reasonably practicable.
Discretionary Account Managers may be exempt from the disclosure requirements with respect to Institutional and Corporate Professional Investors.
The amendments to the Code of Conduct were gazetted on May 25, 2018 and will come into effect on November 25, 2018. Discretionary Account Managers should review their client documentation and systems and controls, and arrange necessary operational support to ensure compliance with the new disclosure requirements.
Industry participants may be interested to know about two recent developments in respect of the Hong Kong regulatory regime. In particular
The amendments to the PI Rules became effective on July 13, 2018. The principal amendments to the PI Rules were to extend the categories of persons who qualify as professional investors under the PI Rules and to increase the types of information intermediaries can rely on to evidence a person’s professional investor status under the PI Rules.
Amongst other amendments, the categories of professional investors under the PI Rules have been expanded to include
The Securities and Futures Commission (SFC) has also issued a circular requiring intermediaries to obtain confirmations to ensure that shareholders are properly informed of a holding company’s status before providing services to that holding company as a professional investor.
Intermediaries who provide services to non-institutional professional investors should update their client onboarding policies and procedures to reflect these changes. Overseas intermediaries should keep these amendments in mind when contemplating securities offerings to Hong Kong investors in reliance on the professional investor safe harbours.
On September 17, 2018, the SFC reached an agreement with the China Securities Regulatory Commission (CSRC) to implement an investor identification regime for northbound trading under Stock Connect.
The investor identification regime will permit the CSRC and relevant Mainland Stock Exchanges to conduct more effective monitoring and surveillance of northbound trading. Further information on the new investor identification regime is available on the website of The Stock Exchange of Hong Kong Limited.
As previously announced by the SFC and the CSRC, a similar investor identification regime will be introduced for southbound trading to assist the regulators in performing their regulatory functions under Stock Connect. The investor identification regime for southbound trading will be implemented as soon as practicable.
On 27 April 2018, various financial regulators in China promulgated new measures further opening up the financial services industry to foreign investment, regulating non-financial entities to invest into financial institutions and tightening up control over the conduct of asset management business by financial institutions.
We set out in this briefing a summary of the key points in each of the new measures referred to above in the following three sections:
On 27 April 2018, the China Banking and Insurance Regulatory Commission (CBIRC) issued the Measures on Facilitating the Further Opening-up of Banking and Insurance Sectors (the Measures). The Measures largely echo the messages from the speech of Mr. Yi Gang (the new governor of People's Bank of China) on further opening up of China’s financial services industry at the Boao Forum for the Asia Annual Conference 2018 and set out the current legislation progress and the plan for future action in this respect.
We summarize below the major content of the Measures for your easy information:
|Type of financial institutions||Current legislation progress||Plan for future action|
|Other financial institutions||A draft decision will be issued shortly for public consultation concerning the removal of the restrictions on foreign ownership in financial asset management companies.||
|Insurance companies||The Notice on Expanding Business Scope of Foreign Invested Insurance Brokerage Companies was issued on 27 April 2018 by CBIRC (CBIRC Notice 19) (see below for further information).||
Under CBIRC Notice 16, the permitted scope of business of foreign-invested banks is expanded with details as follows:
According to the relevant commitments of China for accession to the WTO, foreign-invested insurance brokers were only allowed to provide insurance brokerage services in respect of large scale commercial risks, reinsurance, international marine, aviation, and transport insurance and related reinsurance. The CBIRC Notice 19, effective from 27 April 2018, has fully released such business scope limitation. Foreign-invested insurance brokers are allowed to compete with domestic insurance brokers on equal footing to engage in full categories of insurance brokerage services including:
According to CBIRC Notice 19, a qualified foreign-invested insurance broker shall apply for updating its business scope on its Insurance Operation Permit with the local counterpart of CBIRC so as to effect such business expansion. According to public sources, the local subsidiary of Willis Insurance Brokers in Shanghai has already obtained the first updated Insurance Operation Permit with the expanded business scope.
On 27 April 2018, the People’s Bank of China (PBOC), CBIRC and the China Security Regulatory Commission (CSRC) jointly issued the Guiding Opinions on Strengthening the Management on Investment into Financial Institutions by Non-financial Entities (the Opinions). The Opinions set out guidelines on the requirements applicable to the investment by non-financial entities (Non-FIs) into financial institutions (FIs) in terms of, inter alia, shareholders’ qualification, source of funds for investment, corporate governance and related party transactions in order to avoid improper transfer of interest between FIs and Non-FIs and cross-market pass-through of risks.
We summarise below the major requirements as set out in the Opinions for your information:
Stringent market entry requirements
Generally speaking, the major shareholder5 and the controlling shareholder6 of a FI shall have solid capital capability, good management and corporate governance, an appropriate debt/asset and leverage ratio and a clean shareholding structure.
Under the Opinions, for a Non-FI to qualify as a controlling shareholder of a FI, it must satisfy the following in-principle requirements:
A Non-FI is prohibited from becoming a controlling shareholder of a FI for 5 years if it bears significant liabilities in the operational failure or material misconduct of a FI that the Non-FI has invested. A Non-FI would also be regarded as unqualified to invest into a FI in any of the following circumstances:
In addition, the Opinions re-emphasize the reporting requirements on the FIs where there is an equity pledge, equity transfer or auction sale involving the equity interest in a FI and the qualification requirements on the in-coming major/controlling shareholder of the FI as a result of any of these transactions. In particular, the regulatory authority may, for the sake of prudent administration, impose limits on the percentage of the equity interest in a Non-FI on which any of its shareholders, its affiliates and concerted parties may set up pledge.
Requirements on source of fund for the investment
A Non-FI shall invest into a FI by using its own funds and the source of funds shall be true and legitimate. Investments using non-self-owned funds such as entrusted funds, indebted funds or “actual debts disguised as equity” are explicitly prohibited.
The Opinions make it very clear that the ownership structure of a FI will be examined up to the de facto controller and ultimate beneficiary(ies). The conduct of concerted parties and ultimate beneficiary(ies) is strictly regulated. It is expressly prohibited to make an investment in a FI by way of a nominee structure or in any other noncompliant manner.
Requirements on corporate governance
An investment into a FI is required to be structured in a simple and transparent manner and in particular, amongst other requirements,
Requirements on related party transactions
Transactions between a Non-FI and the FI into which the former has invested are strictly regulated.
Related party transactions must comply with the applicable laws and regulations and accounting rules, follow the “at arm’s length” principle and be reported to the regulatory authorities on a regular basis. Significant related party transactions must be reported on a case-by-case basis.
A Non-FI shall, upon becoming a major shareholder or the controlling shareholder of a FI, submit an undertaking letter to the regulatory authority stating that it has no related-party relationship with any other existing shareholders of the FI other than its affiliates, nor will it conduct any improper related party transactions.
FIs are required to follow the “look-through” principle in managing its related party transactions and shall regard each of its major shareholders and their respective controlling shareholders, actual controllers, related parties, concerted parties and ultimate beneficiaries as related parties of the FI concerned.
The Opinions emphasize that the regulatory authorities will utilize big data and other creative supervisory methods in the administration of Non-FIs’ investment into FIs in order to ensure a dynamic and well-governed development of the financial services market of China. Any new investment into the FI industry by Non-FIs shall strictly comply with the requirements under the Opinions. With regard to any existing investment of Non-FIs into FIs by using non-self-owned funds or via noncompliant related party transactions, the regulatory authorities may require the relevant parties to rectify or, when deemed necessary, require the Non-FI to exit from its investment.
Prior to the issuance of the Opinions, private capital already entered certain sectors of the FI industry and the Opinions aim to address the noncompliance and risks which have arisen from the market practice. The competent regulatory authority governing each relevant sector (e.g. banking, insurance and asset management) of the FI industry is expected to promulgate detailed rules to implement the requirements under the Opinions.
On 27 April 2018, PBOC, CBIRC, CSRC and the State Administration of Foreign Exchange (collectively, Financial Regulators), jointly issued the Guiding Opinions on Regulating the Asset Management Business of Financial Institutions (the Asset Management Guidelines). Although the asset management business has already been regulated by individual Financial Regulators for years, this is the first time that all Financial Regulators have jointly issued guideline rules aiming to standardise the asset management business in China and thereby prevent regulatory arbitrage.
After the issuance of the Asset Management Guidelines, Financial Regulators involved are expected to issue detailed rules to further implement the Asset Management Guidelines. The Asset Management Guidelines also provide a transition period from the issuance date until the end of 2020 (Transition Period), during which, for those existing asset management products (the AM Products) which have been issued prior to the issuance of the Asset Management Guidelines and invested into unmatured assets, the relevant FIs are permitted to issue connected AM Products in order to maintain liquidity. Any new AM Products after the issuance date of the Asset Management Guidelines must strictly follow requirements under the Asset Management Guidelines. Once the Transition Period expires, except in very limited circumstance, no AM Product which is not in line with the Asset Management Guidelines can continue to exist.
We summarise in this briefing some major points of the Asset Management Guidelines which may be of interest.
Asset management business
Asset management business is defined as financial services provided by FIs (including but not limited to banks, trust companies, securities firms, fund houses, insurance asset management institutions, and financial asset investment companies), which are entrusted by investors to invest and manage the entrusted assets of the investors. As a regulated business, unless otherwise permitted (e.g. issuance and distribution of privately raised funds), Non-FIs are not permitted to engage in asset management business.
Asset management business is an off-balance sheet business, and thus no FI is permitted to guarantee the principal or return when conducting the asset management business. When there is any repayment difficulty, FIs are not allowed to advance funds for repayment purpose.
According to the Asset Management Guidelines, AM Products include (but are not limited to) the following products denominated either in Renminbi or foreign currencies:
Products relating to securitisation business or pension products do not fall within the scope of AM Products under the Asset Management Guidelines.
AM Products can be divided into publicly raised asset management products and privately raised asset management products. Also, according to investment natures, AM Products can be divided into (i) fixed income AM Products (80 per cent or more being invested into deposits and bonds etc.), (ii) equity AM Products (80 per cent or more being invested into stocks and unlisted equities etc.), (iii) commodity and financial derivative AM Products (80 per cent or more being invested into commodities and financial derivatives), and (iv) mixed AM Products (being invested into any or all three types of AM Products above with the investment ratio in each type of AM Products being lower than 80 per cent).
When managing the AM Products, FIs are required to expressly specify the type of AM Products which cannot be changed during the period between the establishment date and the mature date of the AM Products.
There are two types of investors under the Asset Management Guidelines, including unspecified public investors and qualified investors. Investors may not use non-proprietary funds (such as external loans or funds raised through issued bonds etc.) to invest into AM Products.
Compared with unspecified public investors, qualified investors should have corresponding risk identification capability and bear higher risk tolerance capability. The Asset Management Guidelines provide the standards for such qualified investors (including both individuals and entities) as follows:
Permitted and restrictive investment
Publicly raised AM Products can invest into (i) standardised debts assets, (ii) listed stocks, and (iii) commodities and financial derivatives. Unless otherwise permitted, publicly raised AM Products cannot invest in unlisted enterprise equities.
Privately raised AM Products can invest in a much wider scope of target assets, including: (i) both standardised and unstandardised debts assets, (ii) listed or exchange traded stocks, (iii) unlisted enterprise equities (including convertible bonds) and the relevant income rights.
AM Products cannot invest into banks’ credit assets directly, and restriction on investment into income rights over the banks’ credit assets will be regulated by the Financial Regulators separately.
FIs, whose main business does not include asset management business, must either establish a subsidiary or (if it is unable to set up a subsidiary) to establish a separate department to specifically engage in asset management business. FIs shall comply with the following business separation principles:
In addition, FIs are not allowed to commit to provide encumbrance on or repurchase, directly or indirectly, explicitly or impliedly, non-standardised debt assets or equity assets which are invested by the AM Products.
No more guaranteed return of AM Products
The Asset Management Guidelines expressly prohibit the following the guaranteed return of AM Products, which may subject the breaching FIs to penalties:
Restrictions on multiple layers of investment structure
A FI is generally permitted to invest its AM Products into another FI’s AM Products. However, the AM Management Guidelines expressly prohibit one FI from providing “channel services” for AM Products of the other FI, which may enable such other FI to circumvent the relevant investment restrictions.
AM Products are generally permitted to invest into another layer of AM Products. However, such invested AM Products can only further invest into mutual funds, i.e. publicly raised securities investment funds.
The AM Management Guidelines for the first time set out requirements for robo-advisory services, which can only be provided by qualified investment advisors.
When conducting asset management business by using robo-advisors, FIs shall also comply with the relevant requirements contained in the Asset Management Guidelines relating to appropriateness of investors, investment scope, disclosure and risk separation, etc., and must file/report requisite information to the Financial Regulators, which may include but is not limited to key parameters of robo-advisory models, main logic of asset allocation, robo-managed accounts separately set up for investors, disclosure on inherent defects and risks of robo arithmetic, etc. Non-FIs are not permitted to conduct asset management business by using robo-advisors.
The consultation conclusions are set out in the SFC’s Consultation Conclusions on Proposals to Enhance Asset Management Regulation and Point-of-sale Transparency and Further Consultations on Proposed Disclosure Requirements Applicable to Discretionary Accounts. The consultation conclusions can be accessed at: http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/openFile?refNo=17CP7
Under these measures a single foreign shareholder shall not hold more than 20 per cent equity interest in a domestic financial institution and the aggregate foreign shareholding in a domestic financial institution shall not exceed 25 per cent.
Some of the relaxation methods hereof above have already been addressed in CBIRC Notice 16.
This relaxation method was addressed in the speech of Mr Yi Gang at the Boao Forum but not set out in the Measures.
Under the Opinions, a major shareholder refers to a shareholder holding more than 5 per cent equity interest in a FI.
Under the Opinions, a controlling shareholder refers to a shareholder holding over 50 per cent equity interest in a FI, or although holding less than 50 per cent equity interest but having an actual control on the FI.
Canadian National Railway Company v BNSF Railway Company adds to recent case law that has seen the Federal Court refuse to issue routine protective orders.
Mexico’s Minister of Energy Rocío Nahle announced the start of the procurement procedure on March 18.