Fair and Effective Markets Review Final Report June 2015

Fair and Effective Markets Review Final Report June 2015
FAIR AND EFFECTIVE
MARKETS REVIEW
Fair and Effective
Markets Review
Final Report
June 2015
Contents
Foreword
5
The Review’s policy recommendations
7
Executive summary
9
1
What do ‘fair’ and ‘effective’ mean for FICC markets?
18
Box 1
19
Fairness, effectiveness and liquidity
2
Microstructure and competition in FICC markets
2.1
The role and importance of FICC markets in the economic and financial system 21
Box 2
Trading mechanisms in FICC markets
21
24
2.2
Potential links between structure and misconduct
22
2.3
Progress in addressing structural issues
25
Box 3
28
2.4
Structural changes to boost fairness and hence effectiveness
2.4.1
2.4.2
2.4.3
2.5
The implications of MiFID2 for European FICC markets
27
Enhancing transparency in ways that maintain FICC market
effectiveness
30
Box 4
31
Enhancing the transparency of spot FX trading practices
Promoting effective competition and market discipline
34
Box 5
35
Innovations in fixed income and FX markets
Catalysing market-led reform that may be held back by co-ordination
failures
37
Tackling new and emerging structural conduct risks
38
Box 6
39
The 15 January 2015 events in FX markets
3
FICC benchmarks: achieving robust global standards
41
3.1
Where was fairness and effectiveness deficient?
41
3.2
What has already been done to put this right?
42
Box 7
3.3
Implementation of the Review’s August 2014 benchmark
recommendations
42
Where are the remaining gaps?
45
3.3.1
Maintaining the push towards compliance with the IOSCO Principles
45
3.3.2
Clarifying the role and responsibilities of benchmark users
46
4
Improving standards of market practice in FICC markets
48
4.1
Where was fairness and effectiveness deficient?
48
4.2
What has already been done to put this right?
49
4.3
Where are the remaining gaps?
50
4.3.1
4.3.2
High level FICC market standards in language that can be readily
understood
50
Box 8
51
Trading behaviours in wholesale FICC markets
A new FICC Market Standards Board
Box 9
Examples of guidelines and case studies drawn from existing codes 52
Box 10 Examples of trading practices where further guidelines and
case studies could help improve and clarify standards
Box 11
4.3.3
51
54
Market Practitioner Panel analysis of conduct risks associated
with stop loss orders
56
Spot FX: a new global code, and new market abuse legislation in the
United Kingdom
55
5
Raising standards of professionalism in FICC markets
59
5.1
Improving accountability; and preventing the ‘recycling’ of staff with poor
conduct records
59
5.1.1
Where was fairness and effectiveness deficient?
59
5.1.2
What has already been done to put this right?
59
5.1.3
Where are the remaining gaps?
60
5.1.3.1
5.2
Using the Senior Managers and Certification Regimes to
give ‘teeth’ to voluntary codes
61
Box 12 Proposed individual Conduct Rules
61
5.1.3.2 Extending the scope of the Senior Managers and
Certification Regimes
61
5.1.3.3 Tackling ‘rolling bad apples’
62
Box 13 Respondents’ views on information for possible
inclusion in a regulatory reference
64
Towards credible market-wide standards for wholesale FICC training
and qualifications
66
5.2.1
Where was fairness and effectiveness deficient?
66
5.2.2
What has already been done to put this right?
66
5.2.3
Where are the remaining gaps?
66
Box 14 Alternative approaches to financial market qualifications
68
Box 15
69
Blueprint for training and qualification standards
5.3
Raising standards and promoting good practice in control and governance
structures
70
5.3.1
Where was fairness and effectiveness deficient?
70
5.3.2
What has already been done to put this right?
70
5.3.3
Where are the remaining gaps?
70
Box 16 Non-revenue factors in pay and promotion decisions
73
Box 17
74
Measuring ‘culture’
Box 18 Priority areas for raising standards of governance and
control structures in FICC markets
5.4
6
78
Improving the alignment of remuneration and conduct risk
79
5.4.1
Where was fairness and effectiveness deficient?
79
5.4.2
What has already been done to put this right?
79
5.4.3
Where are the remaining gaps?
80
Box 19 Ways in which the FSB standards for remuneration might
be developed
82
Box 20 Illustrating the conduct incentives of
equity vs debt compensation
83
Stronger, more forward-looking tools for firms and regulators to detect and
address misconduct
84
6.1
Where was fairness and effectiveness deficient?
84
6.2
What has already been done to put this right?
84
Box 21
6.3
87
Where are the remaining gaps?
86
6.3.1
Extending criminal sanctions for market abuse
88
6.3.2
Firms’ role in misconduct surveillance and penalties
89
Box 22 Recent developments in firm-level surveillance
90
Forward-looking supervisory and early intervention actions
89
Box 23 Forward-looking supervision and early intervention actions —
the FCA toolkit
92
Suspicious Transaction Reports in relation to FICC instruments
91
6.3.3
6.3.4
7
Scope of the civil and criminal market abuse regime in
the United Kingdom
Conclusions and next steps
93
Table C Fair and Effective Markets Review: recommendations and proposed
owners
94
Box 24 Future research into the fairness and effectiveness of FICC markets
96
Annex: Competition law and wholesale markets
Glossary and acronyms
98
104
Fair and Effective Markets Review Final Report Foreword
5
Foreword
The Fair and Effective Markets Review was launched by the
Chancellor of the Exchequer and the Governor of the Bank of
England in June 2014 to reinforce confidence in the wholesale
Fixed Income, Currency and Commodities (FICC) markets in
the wake of the serious misconduct seen in recent years; and
to influence the international debate on trading practices.
FICC markets are global in scope and size. To take just three
examples, turnover in foreign exchange markets is some
$5 trillion a day; the global stock of corporate, financial and
government bonds is nearly $100 trillion; and FICC
‘over-the-counter’ derivatives amount to some $620 trillion in
notional terms. The scale and complexity of these markets
can make them seem remote from most peoples’ day-to-day
lives. Yet they affect us all. They help determine the
borrowing costs of households, companies and governments,
set countries’ exchange rates, influence the cost of food and
raw materials, and enable companies to manage the financial
risks they incur through investment, production and trade.
They also support employment for many around the world,
not least in the United Kingdom, which hosts a substantial
share of these markets. So it is vital that they work well, and
in the best interests of everybody.
These goals have been sorely tested in recent years.
Attempted manipulation of benchmarks and market prices,
misuse of confidential information, misrepresentation to
clients and attempted collusion have led to huge fines,
reputational damage, diversion of management resources and
the reining in of productive risk taking. Market effectiveness
has been impaired. And public trust has been severely
damaged. Repeated attempts to draw a line under the issue
have been undermined as further instances of past misconduct
have come to light — something that continued during the life
of this Review.
It was against this backdrop that we launched our public
consultation in late October 2014. We heard from market
users, intermediaries, infrastructure providers, national and
international authorities, public interest groups and academics
— many of them either based in, or representing organisations
from, countries outside the United Kingdom. We undertook
well over 200 bilateral meetings and phone conversations and
spoke with nearly 800 people. We also held large-scale
consultation events in London, Brussels, Washington,
New York and Singapore. And we received nearly 1,000 pages
of written submissions.(1) In this, as in every aspect of our
work, we were ably supported by a high-quality Secretariat
drawn from staff across the Bank of England, FCA and
HM Treasury,(2) and led by Andrew Hauser, Director of Markets
Strategy at the Bank.
This Report represents the culmination of the Review’s work.
It has three main purposes. First, it provides an analysis of the
root causes of recent misconduct and other sources of
perceived unfairness in FICC markets. Second, it evaluates the
impact of the significant reforms already completed or under
way. And, third, it makes recommendations to fill remaining
gaps. Broader issues, such as how to boost the effectiveness
and resilience of financial markets from a macro-economic
and financial stability perspective, are beyond the scope of this
Review. They are however being discussed by many other
national and international bodies. They will also be central to
the Open Forum to be held at the Bank of England in the
autumn of 2015, which will bring together a wide range of
stakeholders to draw these various strands together. The
purpose of the recommendations in this Review is to enhance
the fairness of FICC markets while also boosting their overall
effectiveness, by increasing confidence and reducing risk
premia. But they clearly need to be seen against the broader
canvas of other ongoing reforms to the international financial
system.
Our main policy proposals are set out on page 7. One
important recommendation — that a further seven major
UK FICC benchmarks be brought into the scope of
UK regulation — has already been implemented, and came
into force on 1 April 2015. Our remaining recommendations
have been shaped around six key principles. The first four
principles, which give rise to specific near-term actions to raise
conduct standards, are:
1.
Individuals active in FICC markets should be more
accountable for their actions;
2. Firms active in FICC markets should take greater
collective responsibility for developing and adhering to
clear, widely understood and practical standards of
market practice, in regular dialogue with the
authorities;
(1) Available at: www.bankofengland.co.uk/markets/Pages/femrresponses.aspx.
(2) Geoffrey Coppins, Barry King and Sam Robbins (Deputy Heads of the Secretariat);
Anoushka Babbar, Ashleigh Brigden, Nick Butt, Rhys Davies, Anthony Hanlon,
Su-Lian Ho, Tanveer Hussain, Jan Lasik, Natalie Lovell, Analise Mercieca, Guy Morton,
Edward Ocampo, Mathieu Vital, Sebastian Walsh, Matthew Wooderson and
John Younger.
6
Fair and Effective Markets Review Final Report Foreword
3. The UK authorities should extend the regulatory
perimeter, broaden the regime holding senior
management to account and toughen sanctions against
misconduct; and
senior membership drawn from across the full range of
stakeholders, has provided particularly valuable input. But we
should not be naïve about the challenge that lies ahead.
Bilateral market discipline played little or no part in helping to
maintain standards in the pre-crisis period — and few people
we spoke to felt confident that would change in the period
ahead. We must find more collaborative ways to harness
the technical knowledge and innovation of market
participants, while using the powers available to the
authorities to hold firms to their responsibilities. If firms and
their staff fail to take that opportunity, more restrictive
regulation is inevitable.
4. International authorities should collaborate to raise
standards in global FICC markets.
But this is not enough. A key lesson of the financial crisis was
that the ‘hard’ infrastructures supporting markets, and the
‘soft’ infrastructures (standards and norms) by which those
markets operated, failed to keep pace with market innovation.
To prevent that recurring, market participants and authorities
need to work together in the years ahead:
5. To promote fairer FICC market structures while also
enhancing effectiveness; and
6. To ensure a more forward-looking approach to the
identification and mitigation of conduct risks.
The next few years offer a crucial opportunity for market
participants to step forward and take responsibility for
improving standards in FICC markets. We have been
encouraged by the level of commitment to that project that
we have encountered over the past year. The Review’s
independent Market Practitioner Panel, chaired by
Elizabeth Corley (CEO of Allianz Global Investors) and with
Charles Roxburgh
HM Treasury
June 2015
Minouche Shafik
Bank of England
This Report concludes the work of the Review itself. The real
test comes next, in delivering the recommendations in both
letter and spirit. Some of the Review’s recommendations are
for domestic implementation, by public authorities and
market participants. But, given the global nature of FICC
markets, several will require international discussion and
co-ordination, including with the Financial Stability Board
(FSB), the International Organization of Securities
Commissions (IOSCO), and other national and international
authorities. To ensure that momentum is maintained on the
parts of the programme under our control, we will provide a
full implementation update to the Chancellor of the
Exchequer and the Governor of the Bank of England, as
commissioners of the Review, by June 2016.
Martin Wheatley
Financial Conduct Authority
Fair and Effective Markets Review Final Report Policy recommendations
7
The Review’s policy recommendations
Near-term actions to improve conduct in FICC markets:
1
Raise standards, professionalism and accountability of
individuals
3
Strengthen regulation of FICC markets in the
United Kingdom
a.
Develop a set of globally endorsed common standards for
trading practices in FICC markets, in language that can be
readily understood, and which will be consistently upheld;
a.
Extend the UK regulatory framework for benchmarks to
cover seven additional major UK FICC benchmarks —
accepted and implemented by HM Treasury on
1 April 2015;
b. Establish new expectations for training and qualifications
standards for FICC market personnel, with a requirement
for continuing professional development;
c.
Mandate detailed regulatory references to help firms
prevent the ‘recycling’ of individuals with poor conduct
records between firms;
b. Create a new statutory civil and criminal market abuse
regime for spot foreign exchange, drawing on, among
other things, work on a global code (see recommendation
4a);
c.
d. Extend UK criminal sanctions for market abuse for
individuals and firms to a wider range of FICC instruments;
and
e.
Lengthen the maximum sentence for criminal market
abuse from seven to ten years’ imprisonment.
2
Improve the quality, clarity and market-wide
understanding of FICC trading practices
a.
Create a new FICC Market Standards Board with
participation from a broad cross-section of global and
domestic firms and end-users at the most senior levels,
and involving regular dialogue with the authorities, to:
d. Extend elements of the Senior Managers and Certification
Regimes to a wider range of regulated firms active in
FICC markets; and
e.
Improve firms’ and traders’ awareness of the application
of competition law to FICC markets.
4
Launch international action to raise standards in global
FICC markets
a.
Agree a single global FX code, providing: principles to
govern trading practices and standards for venues;
examples and guidelines for behaviours; and tools for
promoting adherence. The Review strongly welcomes the
recent announcement by central banks to work towards
those goals;
– Scan the horizon and report on emerging risks where
market standards could be strengthened, ensuring a
timely response to new trends and threats;
– Address areas of uncertainty in specific trading
practices, by producing guidelines, practical case studies
and other materials depending on the regulatory status
of each market;
– Promote adherence to standards, including by sharing
and promoting good practices on control and
governance structures around FICC business lines; and
– Contribute to international convergence of standards.
Ensure proper market conduct is managed in FICC markets
through monitoring compliance with all standards,
formal and voluntary, under the Senior Managers and
Certification Regimes;
b. As part of that work, improve the controls and
transparency around FX market practices, including ‘last
look’ and time stamping;
c.
Explore ways to ensure benchmark administrators publish
more consistent self-assessments against the IOSCO
Principles, and provide guidance for benchmark users; and
d. Examine ways to improve the alignment between
remuneration and conduct risk at a global level.
Fair and Effective Markets Review Final Report Policy recommendations
8
Principles to guide a more forward-looking approach to FICC markets:
5
Promoting fairer FICC market structures while also
enhancing effectiveness, through:
6
Forward-looking conduct risk identification and
mitigation, through:
a.
Improving transparency in ways that also maintain or
enhance the benefits of diverse trading models, including
over-the-counter;
a.
Timely identification of conduct risks (and mitigants)
posed by existing and emerging market structures or
behaviours;
b. Promoting choice, diversity and access by monitoring and
acting on potential anti-competitive structures or
behaviour; and
c.
Catalysing market-led reform held back by private sector
co-ordination failures.
b. Enhanced surveillance of trading patterns and behaviours
by firms and authorities; and
c.
Forward-looking supervision of FICC markets.
Fair and Effective Markets Review Final Report Executive summary
9
Executive summary
1 The Review’s consultation document(1) posed four key
questions. First, what do ‘fair’ and ‘effective’ mean for Fixed
Income, Currency and Commodities (FICC) markets? Second,
where have fairness and effectiveness of FICC markets been
deficient, focusing in particular on the root causes of recent
misconduct? Third, to what extent are the necessary reforms
already completed or under way? And, fourth, what gaps
remain, and how should they be filled?
2 This summary addresses each of those questions in turn,
drawing on responses to the Review’s consultation and
subsequent analysis. Supporting material, providing further
detail on each of the four questions above by topic area, is
provided in the body of this Report.
What do ‘fair’ and ‘effective’ mean for
FICC markets?
3 To evaluate fairness and effectiveness, the Review has used
the following definitions, described in more detail in Section 1.
4 Fair FICC markets are those which: (i) have clear,
proportionate and consistently applied standards of market
practice; (ii) are transparent enough to allow users to verify
that those standards are consistently applied; (iii) provide
open access (either directly or through an open, competitive
and well-regulated system of intermediation); (iv) allow
market participants to compete on the basis of merit; and
(v) provide confidence that participants will behave with
integrity.
5 Effective FICC markets are those which also: (i) allow
end-users to undertake investment, funding, risk transfer and
other transactions in a predictable way; (ii) are underpinned
by robust trading and post-trade infrastructures enabling
participants to source available liquidity; (iii) enable market
participants to form, discover and trade at competitive prices;
and (iv) ensure proper allocation of capital and risk.
Where was fairness and effectiveness
deficient?
6 Judged against these definitions, FICC markets have
historically demonstrated many important strengths. They
have often delivered tight pricing and deep liquidity for more
actively traded instruments, including government bonds,
standardised derivatives and major foreign currencies. And
they have also facilitated trading in a wide range of less
standardised assets, tailored to users’ needs. Commitment of
capital by market makers, trading as principal, has helped
sustain liquidity in a number of secondary FICC markets,
particularly for more bespoke assets, larger trade sizes, and
during periods of market-wide stress. These positive
characteristics were widely welcomed by end-users and other
respondents to the Review’s consultation.
7 At the same time, the misconduct seen in recent years has
damaged trust and impaired market effectiveness. That has
been particularly costly at a time when capital markets have
been called on to play a bigger role in helping to fund the
global economic recovery. Responsibility for these abuses lies
both with firms and with the individuals involved, and their
own standards of personal conduct. But, over and above this,
misconduct has reflected a range of deeper root causes
specific to particular FICC markets or business models,
including:
• Market structures that presented opportunities for abuse,
including: poor benchmark design; unmanaged conflicts of
interest in intermediaries acting as both principal and agent,
exacerbated by horizontal integration across diverse
business lines; vulnerabilities to collusion; and thin markets
for less liquid assets;
• Standards of acceptable market practices, particularly in
bilateral over-the-counter (OTC) markets and less heavily
(or un-) regulated instruments including spot FX, that were
sometimes poorly understood or adhered to, short on detail
or lacked teeth;
• Systems of internal governance and control that placed
greater reliance on second and third lines of defence than on
trading or desk heads, proved incapable of asserting the
interests of firms and the wider market over those of
close-knit trading staff, and failed to identify emerging
vulnerabilities or ensure that conduct lessons learned in one
business line were fully applied elsewhere;
• Limited reinforcement of standards through bilateral
market discipline from sell-side and buy-side firms, or from
end-users;
(1) www.bankofengland.co.uk/markets/Documents/femr/consultation271014.pdf.
10
Fair and Effective Markets Review Final Report Executive summary
• Remuneration and incentive schemes that stressed
short-term returns over longer-term value enhancement
and good conduct; and
12 Transparency in some FICC markets has improved, and is
likely to improve further over time, reflecting a range of
regulatory reforms, including: the progressive transfer of
derivatives business on to exchanges or electronic platforms as
a result of reforms agreed by the G20 in 2009; the extension
in 2017 of MiFID2 transparency rules to a wide range of
FICC assets; and initiatives to increase transparency in
securitisation markets. There has also been heightened
interest in industry-led initiatives to increase the use of
agency-based, order-driven electronic trading platforms and
other forms of transparency-enhancing technology (for
example the use of techniques to identify holders of illiquid
assets or estimate the fair value price of infrequently traded
instruments). Over time that may help boost fairness and
effectiveness for smaller trade sizes in more standardised
assets, providing cheaper and faster access to more
transparent and broader liquidity pools, with fewer
principal/agent conflicts, less discretion and clearer rules.
• A culture of impunity in parts of the market, coloured by a
perception that misconduct would go either undetected or
unpunished.
8 Taken together, these factors contributed to a process of
‘ethical drift’, where unethical behaviour went unchecked, and
hence became progressively more widespread and accepted as
the norm. Some of the vulnerabilities were common across
financial markets generally. But others appear to have been
concentrated in FICC markets, reflecting the relatively
heterogeneous range of instruments and participants, more
decentralised market structures, greater cross-border activity,
and, in some cases, lighter regulatory coverage.
9 Respondents to the Review also noted a range of other
perceived deficiencies in the fairness and effectiveness of
FICC markets which, although not as clearly linked to recent
misconduct, were related to some of the same underlying
factors outlined above. These included a perceived lack of
transparency in some FICC markets, and reported deficiencies
in the level of market access or choice available to end-users.
What has already been done to put this right?
10 Substantial progress has been made in identifying and
addressing these deficiencies in recent years. Major
enforcement actions have been carried out in the
United Kingdom, United States, continental Europe and
elsewhere. And there has been widespread reform both to
regulation — through legislation such as the Market Abuse and
European Market Infrastructure Regulations (MAR and EMIR)
and the new Markets in Financial Instruments Directive and
Regulation (MiFID2) in Europe and the Dodd-Frank Act in the
United States — and to market and firm-level structures,
systems and controls.
11 The design and oversight of key FICC benchmarks — the
proximate source of many of the recent misconduct cases —
has been overhauled. That process has included: the 2012
Wheatley reforms to Libor; the 2013 international IOSCO
standards; the 2014 FSB reform packages for interest rate and
foreign exchange benchmarks, now being implemented in
major jurisdictions; the introduction of MAR in Europe, which
will make benchmark manipulation a civil offence from 2016;
and the prospective EU Benchmarks Regulation. The Review
itself recommended in August 2014 that the UK regulatory
framework originally applied to Libor, as well as criminal
penalties for manipulation, should be extended to cover seven
additional major FICC benchmarks.(1) Those provisions came
into force on 1 April 2015.
13 Action against anti-competitive behaviour in FICC
markets has been taken by competition authorities in Europe
and elsewhere. In the United Kingdom, the FCA has been
given new powers to enforce against breaches of competition
law. Those powers sit alongside the FCA’s existing
competition objective, which the FCA meets by identifying
and addressing areas where competition may not be working
effectively. The FCA undertook a review of competition in
wholesale markets, which concluded in February 2015, and
subsequently began a market study into competition in
investment and corporate banking.
14 Some standards of market practice have been clarified or
strengthened. In March 2015, international foreign exchange
committees agreed a new common ‘global preamble’ to
national codes governing trading in foreign exchange, setting
out shared high level principles for personal conduct, the
handling of confidential information, and execution practices.
In the European Union, MAR will extend the coverage of civil
market abuse rules to a wider range of FICC markets from
July 2016, and MiFID2 will extend and strengthen many
conduct of business rules from 2017. Many financial firms
have upgraded their internal guidance and training
programmes on acceptable trading practices. And, in the
United Kingdom, the Banking Standards Board has been
established by leading firms to promote high standards of
behaviour and competence across the UK banking industry.
15 The framework for ensuring that remuneration is aligned
with risk has improved significantly. The FSB concluded in
November 2014 that implementation of its international
principles and standards for sound compensation practices had
(1) Specifically: the ICE Swap Rate (formally ISDAFIX), WM/Reuters London 4pm Closing
Spot Rates, SONIA, RONIA, the LBMA Gold Price (formerly the London Gold Fixing),
the LMBA Silver Price, and the ICE Brent Index.
Fair and Effective Markets Review Final Report Executive summary
been essentially completed. The United Kingdom’s rules will
be among the most comprehensive globally, reflecting among
other things the recommendations of the Parliamentary
Commission on Banking Standards (PCBS). The authorities
have consulted on proposals for senior bank managers’
bonuses to be deferred for periods of up to seven years
(instead of the current three to five years), during which time
they may be reduced or cancelled in the event of employee
misbehaviour (‘malus’). Variable remuneration already paid
may also be ‘clawed back’ in certain circumstances. In 2014,
firms used a combination of malus and significant reductions
in current-year bonus pools to reflect fines for misconduct in
FX and other markets.
16 Substantial efforts have been made to improve firms’
internal governance, accountability and control structures.
From March 2016, UK banks, building societies, credit unions
and PRA-designated investment firms will be subject to new
Senior Managers and Certification Regimes. These regimes
will allocate responsibilities to specific senior individuals,
including those at the very top of firms, and hold them directly
accountable for failures in their areas of responsibility. Firms
will also be responsible for certifying the fitness and propriety
of their own staff (including traders). And, under proposed
FCA rules, all staff (except those carrying out purely ancillary
functions) will be required to follow a set of enforceable
Conduct Rules.
17 Alongside these changes, sell-side firms have embarked on
wide-ranging programmes of reform, running from senior
executive and board levels (including an improved ‘tone from
the top’, codes of conduct and values statements, board
conduct committees, and metrics) through middle
management (eg ethical and conduct training, peer reviews,
‘balanced scorecards’) to control structures (eg new
reputational committees, reformed HR processes, and
structured reviews of client relationships). Firms subject to
misconduct fines or other identified failures have also been
required to undertake remediation programmes by the FCA in
the United Kingdom and regulators internationally.
18 Finally, a number of developments have increased
individuals’ perceptions of the probability that misconduct
will be detected, and the scale of punishment. Large fines
and other enforcement measures have underscored the
commitment of public authorities to tackle wrong-doing.
Sell-side firms have invested in larger compliance teams and
are starting to develop more sophisticated forms of electronic
surveillance of their own staff’s trading and broader
behaviours. Market participants report early signs of a greater
willingness on the part of some firms to be open about the
reasons for disciplining those found to have engaged in
misconduct. Whistleblowing arrangements have been
strengthened at some firms. And regulators will have access
to progressively larger amounts of transaction data in many
11
FICC markets over the coming years from new reporting
requirements under EMIR, MiFID2 and other new regulations.
Where are the remaining gaps?
19 Taken together, the changes listed above should deliver a
substantial improvement in fairness and effectiveness over
time. However, significant uncertainties remain: for example,
on the final shape of regulation such as MiFID2 (discussed in
Box 3 in Section 2); on the extent of lasting improvements to
firms’ systems of control; and on the efficacy and penetration
of technological innovation. More profoundly, the Review
identified a number of gaps that current reforms do not tackle.
First, the professionalism and accountability of individuals in
FICC markets remains too low and variable. Second, key FICC
markets lack effective mechanisms for agreeing, promulgating
and adhering to common standards of market practice.
Third, gaps remain in the coverage of regulation. And, fourth,
there is more to do to raise standards in global markets,
including those for spot FX. Over the medium term, more
forward-looking approaches are needed to develop fairer and
more effective FICC market structures, and to identify and
mitigate new or emerging risks.
20 These considerations provide the key headings for the
Review’s recommendations, outlined in more detail below.
Assessing the impact of these changes is however complicated
by the fact that important adjustments are also under way to
the economics of FICC business models. In particular,
intermediaries have reduced the amount of capital committed
to OTC market-making, reflecting among other things
heightened risk aversion, subdued market volatility, and
post-crisis prudential regulatory measures required to improve
the resilience of the financial system. Many respondents to
the Review’s consultation said they were concerned that these
changes might permanently reduce the effectiveness of
FICC markets.
21 It is unclear how large these effects will ultimately be. The
reduction in liquidity across FICC markets has varied quite
widely, with some reporting little change. Pre-crisis liquidity in
some markets was in general too plentiful, causing sharp
reversals or even closures during the adjustment phase, which
harmed rather than enhanced effectiveness. And balance
sheet capacity may increase in the future, if volatility
normalises, if investors are willing to tolerate wider bid/offer
spreads, or if other market participants, including the
traditional buy-side, become more significant liquidity
providers. A more complete analysis of these issues, and the
broader implications for economic and financial stability, is
beyond the scope of this Review, but is being conducted by
other national and international bodies. They will also be
central to the Open Forum to be held at the Bank of England
in the autumn of 2015, which will bring together a wide range
of stakeholders to draw these various strands together. The
12
Fair and Effective Markets Review Final Report Executive summary
focus of this Review has been to develop a package of
measures designed to increase fairness while also enhancing
effectiveness, through improved price discovery, higher market
confidence and lower conduct risk premia.
23 The unprecedentedly large enforcement fines on firms in
recent years have played an important role in focusing firms
on conduct issues and tackling the culture of perceived
impunity that prevailed in many firms in the pre-crisis period.
A criminal conviction for conspiracy to defraud has also been
secured in the United Kingdom in relation to Libor, and a trial
and other investigations are under way in relation to FX and
Libor manipulation. At the same time, respondents to the
Review’s consultation were concerned that firms might
increasingly treat fines as costs of doing business, and
encouraged the Review to explore ways of further increasing
the focus on individuals. Two specific barriers are the
currently limited scope of the UK criminal sanctions regime,
and the length of sentence available for criminal market abuse
convictions, which is lower than that for other comparable
financial crimes. The Review therefore recommends:
Recommendations: near-term actions to
improve conduct in FICC markets
1 Raise standards, professionalism and accountability
of individuals
22 Many of those involved in recent enforcement cases were
aware — and all of them should have been aware — that their
actions were unacceptable. But raising standards consistently
across FICC markets as a whole requires a focus on more than
just the most egregious cases. Evidence gathered by the
Review painted a broader picture in which there was
insufficient attention in many firms to what conduct standards
meant in practice, and excessive confidence on the part of
individuals that the consequences of developing a poor
conduct record in one firm could be avoided by moving to
another. Respondents to the consultation were particularly
concerned that the last of these problems might become
worse when responsibility for appraising the fitness and
propriety of staff in UK banks, building societies, credit unions
and PRA-designated investment firms moves from the
regulators to firms under the new Senior Managers and
Certification Regimes. To tackle these issues, the Review has
three recommendations:
• 1a: There should be a set of common standards for
trading practices in FICC markets, written in language
that can be readily understood, and which will be
consistently upheld. These would be most effective if
developed and promulgated globally. Section 4.3.1 gives
further detail.
• 1b: The new FICC Market Standards Board (FMSB)
proposed in recommendation 2a should give guidance on
expected minimum standards of training and
qualifications for FICC market personnel in the
United Kingdom, including a requirement for continuing
professional development. Section 5.2.3 sets out a
blueprint for a possible framework.
• 1c: The FCA and PRA should consult on a mandatory form
for regulatory references, to help firms prevent the
‘recycling’ of individuals with poor conduct records
between firms, with a view to having a template ready for
the commencement of the Senior Managers and
Certification Regimes in March 2016. In due course, the
FMSB should consider whether there is scope to reach an
industry-wide agreement to disclose further information.
Section 5.1.3.3 discusses this issue.
• 1d: That the UK criminal sanctions framework for market
abuse for individuals and firms be updated, through an
extension to a wider range of FICC instruments (by
including all of those covered under the Market Abuse
Regulation); and
• 1e: That HM Treasury introduce legislation to lengthen
the maximum sentence for criminal market abuse from
seven to ten years imprisonment, aligning it with that for
fraud and bribery.
24 Section 6.3.1 discusses the background to both
recommendations in more depth. Recommendations 3c and
3d below will also play an important part in further
strengthening individual accountability.
2 Improve the quality, clarity and market-wide
understanding of FICC trading practices
25 One striking insight from recent enforcement cases was
that policies, procedures and training in place within firms
often appeared to give little or no practical guidance to traders
or their internal supervisors about what principles, regulations
and rules meant in practice. This issue arose in a wide range of
areas, including the handling of conflicts of interest or
confidential information, the use of electronic messaging
services, and general trading conduct. These gaps reflected
failings on the firms’ part, and there is no doubt that the
specific instances of behaviour in those cases involved clear
breaches of regulatory rules. But firms’ development of
guidance material in response to these actions has lacked
co-ordination. And respondents to the Review flagged a range
of uncertainties about where the line between acceptable and
unacceptable market practices lay, for example in the use of
information, in the timing of hedging transactions, or in the
categorisation of counterparties.
26 Whether there are genuine uncertainties will depend on
the specifics of each case. In some areas, market uncertainties
Fair and Effective Markets Review Final Report Executive summary
may simply reflect gaps in understanding of existing
regulatory rules. In others, they may reflect ambiguities in
market practices that are either intrinsic to the trading in
question, or arise because of changes in market structure or
practice over time. Whatever the cause, the Review has
concluded that FICC markets require stronger collective
processes for identifying and agreeing standards of good
market practice, consistent with regulatory requirements, that
respond more rapidly to new market structures and trading
patterns, apply to both traditional and new market players,
and are more effectively monitored and adhered to within
(and between) firms. Without these processes, there is a risk
that FICC markets will fail to operate effectively, either
slipping back into poor practices as memories fade, or
adopting overly-conservative interpretations of standards that
impair the functioning of markets. To tackle this issue:
• 2a: The Review calls on the senior leadership of FICC
market participants to create a new FICC Market
Standards Board (FMSB) with participation from a broad
cross-section of global and domestic firms and
end-users at the most senior levels, and involving regular
dialogue with the authorities, to:
• scan the horizon and report on emerging risks where
market standards could be strengthened, ensuring a
timely response to new trends and threats;
• address areas of uncertainty in specific trading
practices, by producing guidelines, practical case studies
and other materials depending on the regulatory status
of each market;
• promote adherence to standards, including by sharing
and promoting good practices on control and
governance structures around FICC business lines; and
• contribute to international convergence of standards.
27 Initially established in the United Kingdom, the body
should aim to have international reach through its private
sector membership, and should over time seek opportunities
to work with similar organisations and authorities in other
jurisdictions. To be effective, its membership would need to
be significantly broader than the existing UK Banking
Standards Board (BSB), including a range of non-banking firms
active in FICC markets such as broker-dealers, investment
managers, infrastructure providers, corporate issuers and asset
owners. The BSB could potentially provide some
administrative services to the FMSB, but it is not for the
authorities to determine the scope and commercial
arrangements for these services. Further analysis of these and
other issues is given in Section 4.3.2.
13
28 For the body to be effective, a number of tests will need
to be met. Membership will need to be drawn from across
the full range of market participants and end-users, avoiding
dominance by any one group. Members will need to have
sufficient authority to muster their institutions’ endorsement
of the body’s outputs. And the body will need to demonstrate
high levels of expertise in relevant markets, both in its board
members and in its secretariat. There is no scope for the body
to take the role of the regulators. But the intent would be to
support the maintenance of an effective but proportionate
standards regime for wholesale markets. To achieve that, the
body will need to stay in close two-way contact with the
authorities, when drawing up its work programme and
producing statements of market practice.
29 Another important test will be whether effective
mechanisms can be found to ensure market participants abide
by the new body’s market practice statements. Historically it
was thought that bilateral market discipline — the threat of
removing business from firms who fail to abide by market
practices — would play a key role in this area. However, the
Review found few market participants who felt either willing
or able to act in this way (Section 2.4.2). Recommendations
3c, 3d and 4a involve ways to give greater teeth to voluntary
market codes. But this is an area that will need to be kept
under close review. If firms and their staff fail to take the
opportunity to clarify market practices in an effective way,
more restrictive regulation is inevitable.
3 Strengthen regulation of FICC markets in the
United Kingdom
30 The UK regulatory regime for market abuse already covers
activity in some FICC markets, and its scope will be extended
with the introduction of the Market Abuse Regulation in 2016
(Section 6.3.1). The Review’s recommendations focus on three
areas: first, closing remaining gaps; second, strengthening the
tools for ensuring the adherence of FICC market staff to
market standards; and, third, increasing awareness of
competition law.
31 Other than the WM/Reuters benchmark, the manipulation
of which was made an offence as a result of the Review’s
August 2014 recommendation (3a), spot foreign exchange
markets remain outside the scope of UK market abuse
legislation, and will continue to do so even after the
introduction of the Market Abuse Regulation. Given the
international scope of spot FX markets, it is important that the
principles governing good conduct should be agreed globally,
as set out in recommendation 4a below. In light of those
discussions, however, the Review recommends that:
14
Fair and Effective Markets Review Final Report Executive summary
• 3b: A new statutory civil and criminal market abuse
regime should be created for spot foreign exchange,
drawing on, among other things, the work of the
international project to draw up a global foreign exchange
code. The regime should be supported by a requirement on
firms to keep records of orders and transactions, and report
suspicious cases to the regulator; and should allow for the
possible extension, with relevant consultation, to other OTC
FICC markets outside the scope of the Market Abuse
Regulation. Further detail is given in Section 4.3.3.
• 3d: HM Treasury should consult on legislation to extend
elements of the Senior Managers and Certification
Regimes to a wider range of regulated firms, covering at
least those active in FICC wholesale markets.
Section 5.1.3.2 provides further background.
32 As described above, one of the biggest challenges with
securing adherence to market codes of best practice has been
their lack of effective ‘teeth’. That will change under the new
Senior Managers and Certification Regimes, which will hold
traders and other staff in covered institutions personally
accountable for observing ‘proper standards of market
conduct’, which proposed FCA guidance indicates will tend to
include compliance with relevant market codes. That should
provide important support to existing codes, the output of the
FMSB and the proposed global code for foreign exchange. The
Review therefore notes that:
• 3c: Proper market conduct should be managed in FICC
markets through regulators and firms monitoring
compliance with all standards, formal and voluntary,
under the Senior Managers and Certification Regimes.
Section 5.1.3.1 provides further background.
33 The Senior Managers and Certification Regimes currently
apply only to UK banks, building societies, credit unions and
PRA-designated investment firms, leaving a significant group
of regulated FICC market participants, such as inter-dealer
brokers and asset managers, out of scope. Respondents
expressed a range of views on the merits of extending the
scope of these regimes. After careful consideration, the
Review has concluded that there is a case for extending
elements of them to a broader range of firms active in FICC
markets, in order to establish common standards and provide
a robust and consistent implementation framework.
34 The elements to be extended would include: regulatory
pre-approval and statements of responsibility for senior
managers; certification of individuals with the potential to
pose ‘significant harm’; and enforceable Conduct Rules for
individuals. The extension would also have the effect of
substantially increasing the effectiveness of the mandatory
regulatory references for firms outlined in recommendation 1c
for staff moving between regulated buy-side and sell-side
firms. The Review did not judge it proportionate to extend,
beyond their existing scope, the additional provisions included
in the Banking Reform Act which gave effect to a ‘presumption
of responsibility’ (described further in Section 5.1.2). The
Review therefore recommends that:
35 The Review’s research has raised a number of questions
about the role of competition in FICC markets. Some of the
most serious instances of recent misconduct involved
collusion by staff at rival firms. And some respondents to the
Review’s consultation and outreach highlighted areas in which
firms might be inappropriately exercising market power, for
example to limit access to new trading platforms. At the same
time, respondents reported conditions in many FICC markets
to be highly competitive, with increasing returns to scale
allowing market makers to offer extremely tight pricing. New
powers to judge on such issues have recently been given to the
FCA, so it is timely for the Review to recommend that steps
should be taken to:
• 3e: Improve firms’ and traders’ awareness of the
application of competition law to FICC markets, including
through the communication by the FCA of material
presented in this Report to authorised firms active in
FICC markets, through firms’ internal training
programmes, and through the new guidance on
FICC market qualifications and training to be developed
by the FMSB. Section 2.4.2 and the Annex to this Report
discuss this issue in more depth.
4 International action to raise standards in global
FICC markets
36 One of the strongest messages from the Review’s
consultation was that global markets need global standards.
At a time when misconduct fines have reached all-time highs,
and increased reliance is being placed on capital markets to
finance the economic recovery, the need to tackle misconduct
at an international level has taken on a new significance. That
message has been echoed by the FSB(1) and IOSCO.(2) The
Review has recommendations in three key areas: foreign
exchange, benchmarks and remuneration.
37 Foreign exchange, and particularly spot FX, is the most
global of all markets. Reflecting the challenge of devising a
single global regulatory framework for a market that trades
around the clock across multiple jurisdictions, standards in
spot FX have historically been guided by voluntary sets of
principles drawn up on a national basis, and focused as much
on operational as on conduct issues. It became clear through
recent enforcement cases that few firms had integrated the
provisions of these codes into their internal control systems.
The Review has two recommendations:
(1) www.financialstabilityboard.org/wp-content/uploads/FSB-Chairs-letter-to-G20April-2015.pdf.
(2) https://www.iosco.org/news/pdf/IOSCONEWS366.pdf.
Fair and Effective Markets Review Final Report Executive summary
• 4a: There should be a single global FX code, providing: a
comprehensive set of principles to govern trading
practices around market integrity, information handling,
treatment of counterparties and standards for venues;
comprehensive examples and guidelines for behaviours;
and stronger tools for promoting adherence to the code
by market participants. The Review strongly welcomes the
recent announcement by central banks(1) to work towards
those goals. To strengthen adherence further in UK markets,
the Review recommends that these global principles should
be drawn on to shape a new statutory market abuse regime
for spot FX, as discussed above.
• 4b: As part of that work, or otherwise, particular
attention should be given to improving the controls and
transparency around FX market practices where there
may be scope for misconduct, including ‘last look’ and
time stamping. Further information on these issues,
including thoughts on how transparency might be improved
more broadly, are given in Sections 2.4.1 and 4.3.3.
38 Second, although respondents to the Review’s
consultation widely praised the global efforts to reform many
aspects of benchmark design and oversight, they noted the
varied state of implementation of the voluntary IOSCO
Principles for Financial Benchmarks by administrators.
Relatedly, the Review has also concluded that more could be
done to strengthen the degree of market scrutiny and
discipline on benchmark design, including from benchmark
users. The Review therefore recommends that:
• 4c: The IOSCO Task Force on Financial Benchmarks
should consider exploring ways to ensure that more
consistent self-assessments against the benchmark
Principles are published by administrators, and provide
guidance for benchmark users, including the need for
robust fall-back provisions. This recommendation is
discussed in more detail in Section 3.3.
39 Finally, although substantial progress has been made in
developing a range of tools for improving the alignment of
remuneration with conduct risk, the effective application of
those tools remains uneven, and the share of variable pay in
overall compensation has fallen. The Review therefore
recommends that:
• 4d: The FSB should examine further ways to improve the
alignment between remuneration and conduct risk at a
global level. Section 5.4.3 sets out material as input into
that discussion.
15
Principles to guide a more forward-looking
approach to FICC markets
40 The preceding sections summarise the Review’s main
recommendations for near-term actions to raise standards in
FICC markets. But one-off changes are not enough. A key
lesson of the financial crisis was that more effective
forward-looking mechanisms are also needed, involving both
the authorities and market participants, to ensure that the
‘hard’ and ‘soft’ infrastructures supporting markets keep pace
with future innovation and change. Identifying alternative
ways to do that will be an important theme of the
Open Forum. The next two sections consider these issues
from the perspective of this Review.
5 Promoting fairer FICC market structures while also
enhancing effectiveness
41 Many of the recent misconduct cases exploited
vulnerabilities in aspects of FICC market structures. Some of
those vulnerabilities, in particular those relating to the design
of benchmarks, are being addressed. But others — for
example those relating to the greater scope for market
manipulation in thin markets for less standardised assets,
conflicts of interest among those acting as both agent and
principal (such as OTC market makers), and the potential
adverse implications of increasing returns to scale — reflect
more deep-seated aspects of FICC markets that are less
susceptible to straightforward structural solutions.
Historically, vulnerabilities of these kinds have been managed
primarily through the application of regulatory rules and other
public policy tools (such as competition policy). The
recommendations summarised above are designed to
strengthen those controls further. Substantial structural
change is also under way in response to the regulatory and
technological reform triggered by the financial crisis. It will be
important to monitor these developments closely, and stand
ready to act if they fail to enhance fairness and effectiveness.
42 Other than reducing vulnerability to misconduct, the
guiding principles for designing fairer markets flow directly
from the Review’s definition of fairness: transparency, open
access and competition on the basis of merit, allowing
market participants and end-users to choose between
alternative solutions. The challenge is to identify policy
interventions that enhance one or more of these
characteristics while also boosting market effectiveness. That
goal is further complicated by the fact that the effectiveness
of a given market structure depends on the end-user’s needs.
OTC market-making may be the most effective way to
minimise execution risk for larger-sized transactions in less
liquid assets. Conversely, those wishing to undertake
smaller-sized transactions in relatively liquid or standardised
(1) https://www.bis.org/press/p150511.htm.
16
Fair and Effective Markets Review Final Report Executive summary
assets with substantial two-way trading interest may prefer to
trade on anonymised electronic ‘all-to-all’ order-matching
platforms or exchanges. For these reasons, no single model is
likely to maximise both fairness and effectiveness for all users.
So there is a good case for promoting a diverse range of
models.
particular corporate issuers, were strongly opposed to
centrally mandated standardisation of bond terms, noting that
they wished to retain the right to choose how and when to
issue debt in order to match their cash flows and the needs of
investors. But it is less obvious that the potential benefits of
alternative options for greater standardisation have been well
set out in an independent way, and issuers may become more
interested in the idea as interest rates normalise. Experience
with the standardisation of other instruments, such as
Credit Default Swaps, suggests that a market-led approach,
catalysed by the authorities, may yield effective results. The
Bank of England recently suggested one possible approach for
establishing agreed principles for standardisation of
terminology, documentation, settlement and trading
protocols in its response to the European Commission’s
Green Paper on Capital Markets Union.(1)
43 Against that backdrop, the Review has identified three
important themes for the future evolution of FICC market
structures. First, in markets where OTC trading remains the
preferred model, authorities and market participants should
continue to explore the scope for improving transparency,
in ways that also enhance effectiveness. For markets in
Europe falling within the scope of MiFID2, that will require
careful calibration of regulatory transparency requirements to
ensure they take due account of market-making and the
economic reality of the markets in the instruments covered.
For markets lying outside the scope of direct regulation, there
may be scope to enhance transparency further. Section 2.4.1
outlines some principles that might be applied in FX markets.
A number of organisations are considering the merits of
market-led initiatives in other markets, for example the recent
strategic review launched by the London Bullion Market
Association. And there is scope for more consistent levels of
transparency over the pricing and allocation methodologies
used when issuing fixed income instruments. These and
other topics could usefully be discussed at the upcoming
Open Forum.
44 Second, competition authorities including the FCA need
to be alert to the potential for incumbents seeking to
prevent the development of challenger technologies
through anti-competitive structures or behaviour. Cost
pressures and reduced liquidity from some traditional
providers have induced a substantial wave of innovation, both
in markets where the use of advanced technology is less
well-developed (such as fixed income) and where it is
relatively mature (such as FX). But adoption of such
technologies has sometimes been slow, even in markets where
the underlying assets appear well-suited to such trading. In
part that may reflect co-ordination failures among users, or a
failure of specific technologies to provide the services that
users need. But it may sometimes also reflect competitive
impediments, including limitations on access to essential
infrastructure, requirements for counterparties to identify
themselves on what may be notionally anonymous platforms,
or threats to withdraw liquidity. The FCA will maintain a
watching brief on such obstacles, and stand ready to use its
powers if needed.
45 Third, the authorities should stand ready to help
catalyse reform where markets are unable to do so. A good
example is the issue of the possible greater standardisation of
corporate bonds in order to increase secondary market
liquidity. Respondents to the Review’s consultation, in
6 A more forward-looking approach to conduct risk
identification and mitigation
46 As well as building fairer market structures over time,
reducing the future incidence of misconduct also requires the
early identification, and rectification, of emerging risks in
market structures and behaviours. There are important roles
here for both market participants and the authorities in three
main areas.
47 First, more can be done to scrutinise FICC market
structures and behaviours for potential conduct risks. In
some cases these risks might be inherent in existing structures
— as they were for example in Libor. As noted above, the
Review recommends further scrutiny of the controls and
transparency around FX market practices, including ‘last look’
and time stamping. Market participants also need to improve
their ability to identify the root causes of misconduct, and
apply those lessons to other business lines that may initially
appear unrelated. And firms and authorities need to be alert
to risks that may emerge from the use of new trading practices
and structures. For example, new trading technologies may
help reduce or remove the scope for some of the types of
misconduct seen in recent years, and increase market
effectiveness. But they may also introduce new challenges,
including through opaque trading algorithms or protocols, or
fragmentation of trading platforms and liquidity. The new
FMSB could play an important role in highlighting such risks
and identifying potential solutions in terms of market practice
standards. Given the vibrant pace of technological innovation
in fixed income markets, a ‘White Paper’ on the opportunities
and challenges posed by these technologies from a conduct
perspective would be particularly timely. The authorities will
also continue to flag risks that they identify in the course of
their regulatory, market operations and wider market
intelligence activities.
(1) See page 11 of www.bankofengland.co.uk/financialstability/Documents/cmu/
greenpaperesponse.pdf.
Fair and Effective Markets Review Final Report Executive summary
48 Second, more can be done to identify potentially
inappropriate trading patterns in FICC markets through
effective and timely market surveillance. An important part
of the answer lies in greater focus within firms on trading
oversight by desk heads, and innovative use of ‘big data’ and
other advanced analytics to extract patterns from electronic
communications, trading systems, financial ledgers and other
behavioural data. But, as Section 6.3.4 discusses, FICC market
participants also need to do more to ensure that they are
meeting their obligations to report suspicious transactions to
the regulator. The extended reporting requirements that
come into force with MAR will require firms to report
suspicious transactions and orders across a wider range of
FICC markets regulated under MiFID2. The FCA will continue
to take steps to ensure that these regimes are working
effectively in these markets.
49 Third, there is an important role for forward-looking
supervision. Enforcement investigations are costly and
time-consuming for both regulators and firms. Those costs
may be avoided, or reduced, where misconduct, or the
potential for misconduct, can be identified earlier in the
behavioural cycle. A key part of this responsibility lies with
firms’ senior management, something that will be reinforced
by the Senior Managers and Certification Regimes. But, as
Section 6.3.3 discusses, regulators can also deploy a variety of
forward-looking supervisory and ‘early intervention’ actions,
ranging from thematic reviews and ‘deep dives’ through to
skilled persons reviews or the exercise of formal powers to
require the temporary suspension of specific trading activities.
A number of respondents to the Review’s consultation said
they would welcome greater proportionate use of such
measures in FICC markets. The FCA recently set out its
supervisory programme in its 2015/16 Business Plan. It will
also respond in due course to the recommendations aimed at
ensuring that regulators choose the most appropriate
regulatory tools for the circumstances contained in
HM Treasury’s December 2014 Enforcement Review.
17
Conclusions and next steps
50 Table C in Section 7 gives the Review’s recommendations
in full, along with proposals about who might take the work
forward. For the avoidance of doubt, no part of those
recommendations, or any other part of the Report, constitutes
formal guidance from the UK regulatory authorities.
51 The recommendations vary quite widely in nature. Some
can be implemented relatively quickly, or are already
under way. Others require further discussion, international
negotiation or legislative change. Where implementation falls
to the UK authorities, they will develop and consult on
proposals in the normal way. The Review’s terms of reference
require that it should have regard to the impact of its
recommendations on: the stability, efficiency and
effectiveness of the financial sector, and its capacity to
contribute to the growth of the UK economy in the medium
and long run; the need to maintain vibrant competition in
wholesale financial markets; the competitiveness of the
UK financial and professional services sectors and the wider
UK economy; and the resources needed for implementation.
In the view of the Review’s Chairs, the package of
recommendations in this Report takes appropriate account of
these considerations. But, where required, formal cost/benefit
analyses will also need to be completed for legislative and
other changes requiring public consultation.
52 To ensure that momentum is maintained on those
recommendations that are under the control of the
UK authorities, the Review’s Chairs will provide a full
implementation update to the Chancellor of the Exchequer
and the Governor of the Bank of England by June 2016.
53 The Open Forum, to be held at the Bank of England in the
autumn of 2015, will also provide an important opportunity
for a broad range of stakeholders to discuss the
recommendations in this Report, and the role they can play as
part of building a wider, dynamic reform programme.
18
Fair and Effective Markets Review Final Report Section 1
1 What do ‘fair’ and ‘effective’ mean
for FICC markets?
1 This section defines the high-level characteristics of fair and
effective FICC markets that guide the analysis and policy
recommendations in the rest of this Report. A defining feature
of FICC markets is that they typically involve professional
counterparties, who do not require the same degree of
regulatory protection necessary for retail customers. It is
nevertheless vital that these markets also operate in the
interests of the broader economy, in a fair and effective way.
2 The definition presented in the consultation document was
well received by a wide range of key stakeholders, including
end-users, market participants, national and international
authorities, public interest groups and leading academics. The
characteristics described in this section therefore differ only
modestly from those presented in the earlier paper. The main
changes are: highlighting that effective markets ensure proper
allocation of capital and risk; stressing the importance of
market resilience more explicitly; recognising the importance
of proportionate standards of market practice; and flagging
the role that choice plays in fair and effective markets. Box 1
discusses the interaction between the definition and the
concept of liquidity — one of the most widely raised points in
the consultation.
1.1 Defining ‘fair’(1)
3 The first characteristic of fair wholesale FICC markets is that
market outcomes should result from clear, proportionate and
consistently applied standards of market practice. That
implies there should be good collective knowledge among
market participants of the relevant codes, rules and other
means of encapsulating acceptable market practices. It
implies clarity about the responsibilities and duties of the
parties involved. And it implies confidence that market
participants will apply those standards consistently and
rigorously in accordance with the objective categorisation of
the parties to the transaction and the nature of their
relationship. It does not imply that rules, codes and market
practices should necessarily be uniform across all markets,
participants and jurisdictions. Nor does it imply that they
must be highly prescriptive in nature.
4 The second characteristic is that there should be
appropriate levels of transparency, giving participants
common access to the information necessary to allow them to
verify with confidence that rules and practices are applied
consistently. So, for example, there should be enough
‘Fair’ FICC markets are those which:
(i) have clear, proportionate and consistently applied
standards of market practice;
(ii) are transparent enough to allow users to verify that those
standards are consistently applied;
(iii) provide open access (either directly or through an open,
competitive and well-regulated system of intermediation);
(iv) allow market participants to compete on the basis of
merit; and
(v) provide confidence that participants will behave with
integrity.
‘Effective’ FICC markets are those which also:
(i) allow end-users to undertake investment, funding, risk
transfer and other transactions in a predictable way;
(ii) are underpinned by robust trading and post-trade
infrastructures enabling participants to source available
liquidity;
(iii) enable market participants to form, discover and trade at
competitive prices; and
(iv) ensure proper allocation of capital and risk.
meaningful post-trade transparency to allow a firm to verify
that its broker has achieved satisfactory execution. More
broadly, beneficial owners should have the means to verify
that their agents have followed their instructions and
mandates faithfully. This definition allows for the possibility
that there may be instances — depending, for example, on
market conditions or instrument characteristics — in which
increases in the extent or timeliness of transparency beyond
some point may reduce the effectiveness of a market.
(1) As in the Review’s consultation document, the suggested characteristics of fair FICC
markets draw among other things on the literature on ‘organisational justice’ (see, for
instance, Greenberg, J (1987), ‘A taxonomy of organizational justice theories’, The
Academy of Management Review, Vol. 12, No. 1, January, pages 9–22). This literature
suggests that outcomes are typically perceived to be fair in the presence of
procedural, informational, interpersonal and distributional justice.
Fair and Effective Markets Review Final Report Section 1
Box 1
Fairness, effectiveness and liquidity
One commonly-raised issue in the consultation responses on
the definition of fairness and effectiveness related to market
liquidity, with several respondents arguing that liquidity
should be a characteristic of effectiveness in its own right.
In a broad sense, market liquidity refers to the ease with which
investors are able to transact in reasonable quantities of an
instrument without discontinuity of price formation. The
existence of markets that are sufficiently liquid and not prone
to sudden closure matters both for issuers (who want to be
able to borrow when required at competitive terms) and for
investors (who want to be able to move smoothly in and out
of positions).
The role of liquidity is a central part of characteristics (i) and
(ii) of the Review’s definition of effectiveness. However, the
liquidity of secondary markets in a given instrument will
depend on a range of factors — including the degree of
standardisation of the instrument, the extent to which
investors are willing to buy and sell the instrument (as
5 The third characteristic is that there should be open access
to FICC markets for all, either directly or through an open,
competitive and well-regulated system of intermediation.
This criterion implies that access to a market should be on
terms that: (i) are reasonable and transparent; (ii) do not
confer unfair advantage on large or otherwise incumbent
firms; and (iii) allow, at a minimum, effective intermediated
access for all. Evaluating such terms may nevertheless be far
from straightforward in practice, and may vary depending on
the market considered or the obligations of those firms
seeking to participate in a market (for example, whether as a
user or a market maker).
6 The fourth characteristic of fair markets is that fairness
should be consistent with competition on the basis of merit,
reflecting equality of opportunity rather than equality of
outcome. This concept, similar to that used in competition
policy, means that market participants who innovate
successfully, leading to superior capabilities, relationships or
processes, should be able to earn a return on that investment
in the form of superior prices and allocations for a period,
provided those outcomes are merit-based. Such a concept is
necessary in order to ensure there are incentives for market
participants to invest and innovate. Competition on the basis
of merit also preserves the ability of market participants to
choose between alternative solutions, allowing them to
exercise their preferences and enforce market discipline where
necessary. This criterion may on occasion be challenging to
assess in practice, however. For example, firms may seek to
19
opposed to ‘buy and hold’), and broader macro-financial
conditions. There is therefore not a simple one-for-one
relationship between liquidity and effectiveness.
This point can be illustrated with some simple examples.
Relatively low levels of liquidity may not indicate that a
specific market is structurally ineffective: for example, if
instruments are highly bespoke, if supply and/or demand is
highly price inelastic, or if there is widespread stress in
financial markets because of an extreme geopolitical or other
exogenous risk event. Equally, plentiful liquidity may not
always indicate high market effectiveness. For example, many
market participants now recognise that liquidity was
oversupplied ahead of the recent financial crisis. That build-up
of liquidity proved unsustainable and was followed by a severe
retrenchment. So the unsustainably high levels of liquidity
ultimately proved damaging, rather than supportive of, market
effectiveness.
For these reasons, the definition of effectiveness refers to
‘sufficient’ levels of liquidity, ‘where possible’, for ‘reasonable
quantities’ of an instrument.
exploit an initially beneficial technology to establish a lasting
incumbency position, preventing fair market entry by others,
and preventing competition from delivering better outcomes
(either in terms of prices, quality of service or choice) for
end-users.
7 Finally, and importantly in light of the misconduct of recent
years, fair markets are markets in which participants behave
with integrity. Among other things, that means participants
should be confident that they will not be subject to fraud,
deception, disinformation, misrepresentation, manipulation or
coercion. In particular, where one party acts for another, that
other party’s essential interests should be reasonably
protected. It follows that attempts to manipulate market
prices or benchmarks are wholly inconsistent with fair
markets.
1.2 Defining ‘effective’
8 First, effective FICC markets also allow end-users,
borrowers, end-investors and their intermediaries to
undertake transactions in a predictable way and in support of
the broader non-financial economy, including: (i) the
channelling of savings to investment; and (ii) risk transfer.
9 Second, to be effective, FICC markets must be underpinned
by robust trading and post-trade infrastructures enabling
participants to source available liquidity. That implies as an
20
Fair and Effective Markets Review Final Report Section 1
outcome that markets should be sufficiently liquid and
resilient to enable participants to transact in reasonable
quantities (where possible without discontinuity of price
formation). The appropriate degree of liquidity may however
vary by instrument and over time; and more is not always
better, as discussed in Box 1.
11 Fourth, effective FICC markets also ensure proper
allocation of capital to productive uses, and proper allocation
of risks to those well placed to bear them. The third and
fourth characteristics of effectiveness both require markets to
be free from collusion, coercion, unwarranted barriers to entry
or other restraints on trade.
10 Third, effective FICC markets allow market participants to
form, discover and trade at competitive prices, via a price
discovery process reflecting the current and expected balance
of supply and demand.
Fair and Effective Markets Review Final Report Section 2
21
2 Microstructure and competition in
FICC markets
1 The Fixed Income, Currency and Commodities (FICC)
markets lie at the heart of the global economy. Most
respondents to the Review’s consultation felt that they were
generally effective, and served the interests of their end-users.
Some of the most serious cases of misconduct nonetheless
exploited vulnerabilities in benchmarks and other aspects of
FICC market structures, harming public trust and impairing
market effectiveness. FICC markets have also faced a number
of broader challenges, as discussed in the Executive Summary.
So the case for structural reform requires careful attention.
Chart 1 Global debt securities(a)(b)
Corporate
Financial company
Government
US$ trillions
100
80
60
40
2 This section first considers the importance of FICC markets
and how participants transact within them (Section 2.1). It
then describes how the structure of these markets (including
the effectiveness of competition within them) created
opportunities for misconduct (Section 2.2), before
summarising subsequent progress made to mitigate these
vulnerabilities (Section 2.3). Section 2.4 assesses some of the
challenges that remain, and sets out a number of principles to
promote fairer FICC market structures while also enhancing
effectiveness. Section 2.5 concludes by reviewing emerging
challenges. The role played by FICC benchmarks is discussed
in Section 3.
2.1 The role and importance of FICC markets
in the economic and financial system
20
Dec.
1998 2000
0
02
04
06
08
10
12
14
Source: Bank for International Settlements debt securities statistics.
(a) Chart ends at June 2014.
(b) Total debt securities combine international and domestic debt securities. They are compiled
from data reported to the BIS by central banks, including data sourced from national
statistical offices.
Chart 2 Gross market value of OTC FICC derivative
contracts
Commodity contracts
Interest rate contracts
Credit default swaps(a)
Other
Foreign exchange contracts
US$ trillions
40
35
3 FICC markets help determine the borrowing costs of
households, companies and governments, set countries’
exchange rates, influence the cost of food and raw materials,
and enable companies to manage financial risks associated
with investment, production and trade. They are large in size,
and highly diverse. To take just three examples, turnover in
foreign exchange (FX) markets is some US$5 trillion a day; the
global stock of corporate, financial and government debt
securities is nearly US$100 trillion (Chart 1); and FICC
‘over-the-counter’ (OTC) derivatives amount to some
US$620 trillion in notional terms, or US$20 trillion in market
value (Chart 2). FICC markets also support employment for
many around the world, not least in the United Kingdom,
where a substantial share of these markets is based. So it is
vital that they work both fairly and effectively.
4 Given this range of uses, FICC instruments are highly
heterogeneous. Some are standardised and liquid — for
example, developed economy currency pairs or government
bonds. But many others are bespoke, designed to fit the
30
25
20
15
10
5
June
1998
June
2002
June
06
June
10
June
14
0
Source: BIS semi-annual survey of OTC derivatives.
(a) CDS data start in December 2004.
particular funding or hedging needs and maturity profiles of
borrowers or investors. In some cases, that customisation
may take the form of variation of terms in otherwise relatively
standard asset types — for example, variations in coupons or
maturities in otherwise ‘plain vanilla’ corporate bonds or
interest rate swaps. In others, the customisation may take
Fair and Effective Markets Review Final Report Section 2
22
Table A Illustrative liquidity and standardisation characteristics
of selected FICC instruments
Typically more
standardised
terms/features
Typically less liquid
Typically more liquid
• Single name CDS
• G10 government bonds
• Listed interest rate
futures/options
• Market Agreed Coupon
interest rate swaps
• General collateral repo
•
•
•
•
Typically fewer
standardised
terms/features
(overnight)
CDS indices
G10 spot FX
Listed FX futures and options
Listed commodity
futures/options
• Corporate bonds
• Asset backed securities
• Synthetic collateralised debt
• Supranational bonds
• Agency mortgage-backed
• Exotic derivatives
• Interest rate
securities
• General collateral repo (term)
obligations
• Structured notes and deposits • Interest rate swaps
caps/floors/swaptions
• Covered bonds
• FX forwards/swaps/OTC
options
• Physical commodities
Note: The table shows a highly simplified, judgemental categorisation of selected FICC instruments. The same
broad product types can trade with either standardised and non-standardised terms (eg, Market Agreed Coupon
interest rate swaps vs interest rate swaps) and complex products may become more standardised where
industry consensus can be achieved (as happened with CDS contracts). Standardisation of contract terms is a
pre-requisite for exchange trading. Almost any contract can be standardised, but where user demand for
customisation is high, standardised contracts are rarer. Liquidity can also vary substantially over time within
specific asset classes.
more exotic forms (for example, pre-payment provisions in
mortgage and asset backed securities). Table A shows
illustrative examples of FICC products classified according to
their typical degrees of standardisation and liquidity.
5 Reflecting the diversity of FICC assets, there is also a range
of ways in which participants choose to transact. Figure 1
summarises the main trading models across major markets,
and Box 2 defines terms used throughout the section. Some
instruments, including futures and options on short-term
interest rates and commodities, are traded on multilateral
trading venues such as exchanges. Trading on multilateral
venues enables venue members (or smaller institutions who
access the market indirectly via those members) to transact in
standardised contracts, using fast and transparent trading
systems, often linked to facilities allowing trades to be cleared
through a central counterparty (CCP) rather than bilaterally.
This method of conducting transactions is typically best suited
to more liquid and standardised instruments where there is
substantial continuous two-way trading interest (see top-right
corner of Table A).
6 However, a significant share of FICC trading is conducted
bilaterally with market makers, transacting on an OTC
‘request for quote’ (RFQ) basis, often via voice. This method
of trading is often favoured by end-users when finding a
potential counterparty to a transaction is difficult, for
example when trading in large size or in less standardised
assets (see bottom half of Table A). OTC markets are often
segregated quite sharply into separate ‘dealer-to-dealer’ and
‘dealer-to-client’ segments. The market has evolved in this
way to allow market makers to service clients’ needs while
also being able to lay off risk among themselves in a way that
maximises their ability to perform their market-making
functions. OTC trades are ‘information intensive’, in the sense
that: (i) pricing them effectively requires having information
about the likely pattern and depth of future demand and
supply; and (ii) they may have the capacity to move market
prices against the end-user if transacted in a single block in
markets lacking sufficient instantaneous depth to
accommodate them. To meet those challenges, market
makers specialise in gathering information about demand and
supply, and provide temporary balance sheet capacity (or
‘warehousing’) to bridge between fluctuations in trade flows,
making continuous two-way prices available to investors in
return for compensation via a bid/offer spread.(1)
7 Between the exchange and voice OTC trading models, a
wide range of hybrid models have been developed in recent
years. For example, alternative venues have sought to
increase multilateral trading in the bond markets. And, while
spot FX remains an OTC market, most trades are now
executed through automated electronic single-dealer or
multi-dealer platforms.
2.2 Potential links between structure and
misconduct
8 Respondents to the Review cited many important
advantages to the ways in which trading is undertaken in
FICC markets, and said that in general they felt these markets
served their needs well. At the same time, the design of
certain FICC market structures may have exposed users of
those markets to a number of misconduct risks that, if not
properly managed, could harm fairness and effectiveness.
Section 3 explains the role played by flaws in key FICC
benchmarks, the proximate source of many of the recent
misconduct cases. The rest of this section describes the wider
benefits and risks of FICC market structures, and highlights
examples of how the latter have crystallised.
9 The OTC market-making model, which remains central to
many FICC markets, can allow end-users to transact smoothly
in and out of large positions without excessive price volatility,
even where the underlying instruments may be relatively
illiquid or less standardised, across a range of market
(1) For a further analysis of the role of market makers, see the Committee on the Global
Financial System report on ‘Marking-making and proprietary trading: industry trends,
drivers and policy implications’: www.bis.org/publ/cgfs52.pdf.
Fair and Effective Markets Review Final Report Section 2
23
Figure 1 Trading models by asset class(1)
Dealer
to client
channel
(D2C)
Dealer
Dealer
to dealer
channel
(D2D)
Total share
of volume
e-traded(b)
Share traded
electronically
Listed futures
and options
Cash equities
• Dealer platforms
• Voice
• Dealer platforms
• Voice
Agent
• Exchanges
• Internal liquidity
Spot and
forward FX
• Dealer platforms
• D2C platforms
• All-to-all platforms
• Voice
Principal or agent
• Exchanges
• Internal liquidity
Government
bonds
• D2C platforms
• Voice
Principal
• All-to-all platforms
• IDB platforms
Interest rate
swaps
• D2C platforms
• Voice
Principal
• IDB platforms
• Internal liquidity
Principal
• IDB platforms
• Internal liquidity
Corporate
bonds
• D2C platforms
• Voice
Principal
• IDB platforms
• Internal liquidity
• Internal liquidity
>80%
<10% share of trades(a)
50%–70%
10%–30% share of trades(a)
>80%
50%–60%
>30% share of trades(a)
20%–30%
Metric
Share
executed
electronically(a)
Role
Share
traded
electronically(a)
15%–20%
>60% share of trades(a)
Source: Oliver Wyman (based on BIS, Celent, Euromoney and Oliver Wyman proprietary data and analysis).
(a) Share of total trades (electronic plus voice) within channel.
(b) Share of trade volume across all platform types.
conditions. It allows companies, financial institutions, and
governments to tailor the terms of their bilateral contracts in
order to manage their financial risk profile more precisely.
And where central clearing is not available, it also gives
counterparties certainty over their counterparty credit
exposure in markets such as FX where there can be extended
exposures related to settlement or other risks.
10 But at the same time market makers have to have effective
controls in place to manage two key risks relating to how they
manage the use of information:
• First, the need to take principal risk gives market makers an
interest in future price movements that can benefit, but may
also sometimes conflict with, the interests of their clients.
This is because traditional market makers can (and
frequently have to) trade simultaneously as a principal with
their clients (eg when responding to a RFQ) and for
themselves (eg when trading in markets to implement
hedges and manage inventory). The co-existence of these
roles, while intrinsic to the provision of market-making
services, can also give rise to an incentive to trade against a
customer’s interest, which in some cases has driven
attempts at market manipulation. For example, the FCA
fined one firm £26 million for failing to manage conflicts of
interest between itself and its customers in relation to the
Gold Fixing. The trader was also fined and banned from
performing any function in relation to any regulated
activity.(2)
• Second, the information that market makers gather as part
of their role on market trends and customer demand
enables them to provide customers with a number of
beneficial services. But it may also be used to undertake
transactions, or engage in other activities, which work
against customer interests — for example, it may facilitate
inappropriate ‘front running’, the practice of principal
trading in possession of private client information with the
aim of taking advantage of the anticipated price effect of a
future order.
11 Some FICC markets, particularly for less standardised
products like some corporate bonds, are relatively thin and
trade infrequently. Small transactions can therefore
potentially lead to large price movements as participants
adjust prices that may have become out of date. Such market
conditions may increase the scope for firms to manipulate
markets by deliberately conducting transactions, either singly
or in collaboration, which result in price changes favourable to
their trading books.
12 The risks relating to information abuse are by no means
unique to market makers. For example, interdealer brokers,
acting as agents to a trade, will often have confidential
information about order flow which could potentially be
misused (for example, to win business) even though such firms
normally do not take principal positions. Indeed, a number of
(1) The Review Secretariat is grateful to Oliver Wyman for assistance, including
proprietary data, on some specific areas.
(2) www.fca.org.uk/news/barclays-fined-26m-for-failings-surrounding-the-london-goldfixing.
24
Fair and Effective Markets Review Final Report Section 2
Box 2
Trading mechanisms in FICC markets
Internalisation
All-to-all platform
A multilateral system open to several classes of market
participant which, in particular, allows buy-side firms to trade
directly with other buy-side firms.
Central limit order book (CLOB)
A mechanism, often employed by exchanges and other
multilateral trading systems, where trading counterparties
disclose prices and volumes at which they are willing to buy
and sell, and the system concludes transactions between them
according to a pre-determined set of rules.
Electronic communication network (ECN)
An electronic trading system that facilitates a broad range of
trading requirements including, for example, the automatic
matching of buy and sell orders at specified prices. ECNs are
often associated with the interdealer FX market.
Exchange
A traditional form of regulated multilateral trading system,
often also associated with the primary issuance of securities.
Exchanges are subject to a range of regulatory requirements
relating to, for example: pre and post-trade transparency;
non-discriminatory access; and monitoring and governance.
Interdealer broker (IDB)
A brokerage firm that acts as an intermediary between major
dealers to facilitate trades.
The process by which customer and other trading interests
are matched within a firm, often as part of that firm’s
single-dealer platform (SDP), rather than executed in the
open market.
Market maker
A market participant who facilitates trading in a financial
instrument by supplying (tradable) buy and sell quotes.
Market makers may act as members of exchanges, though
FICC markets more often rely on market makers trading on an
OTC basis.
Multi-dealer platform (MDP)
A trading venue where liquidity is provided by many different
market makers.
Multilateral trading venue/system
A marketplace for trading in financial instruments where
multiple buying and selling trading interests come together to
agree transactions.
Over-the-counter (OTC)
Transactions that are bilaterally negotiated between two
market participants.
Request for quote (RFQ)
A mechanism for arranging transactions where customers ask
one or more market makers to provide quotes for a financial
instrument before agreeing to trade.
Single-dealer platform (SDP)
A trading venue which is owned by a bank or broker-dealer
who acts as the sole market maker on that venue.
interdealer brokers were fined for involvement in the
attempted manipulation of Libor.(1) Asset managers (which
have grown significantly in size and influence in recent years)
also have increasing informational advantages, reflecting the
breadth and depth of their relationships across the dealer
community, and in some cases significant investment in
trading and information technology. Consequently, standards
of market practice which address how information is used by
both sell-side and buy-side firms are critical to ensure the
fairness and effectiveness of markets. Box 10 in Section 4
considers the need for further guidelines and case studies in
these and other areas.
13 The need to specialise in information gathering means that
market-making has increasing returns to scale: a market
maker that sees more trades in a particular market is more
likely to possess the information needed to set more efficient
prices. In the pre-crisis period, many firms on the sell-side
sought to enhance those efficiencies further by engaging in
so-called ‘horizontal integration’ between market-making in
cash products, derivatives and structured products, for
example. This helped to provide users with a ‘one stop shop’
for a range of ancillary services and products. However, those
returns to scale (combined with other factors that can
potentially act as barriers to new entry) also mean that some
areas of FICC markets can be characterised by elevated levels
of concentration. In turn, increased concentration can
facilitate collusion, as co-ordination is easier when there are
fewer firms in the market. Attempted collusion between
traders has been a feature in recent misconduct cases — for
example the European Commission levied fines of €1.7 billion
against two groups of firms for colluding to fix interest rate
benchmarks.(2)
(1) www.fca.org.uk/news/icap-europe-limited-fined and www.fca.org.uk/news/pressreleases/martin-brokers-uk-limited-fined-630000-for-significant-failings-in-relationto-libor.
(2) http://europa.eu/rapid/press-release_IP-13-1208_en.htm.
Fair and Effective Markets Review Final Report Section 2
14 The trend towards horizontal integration also provided
scope for complex price differentiation between different
combinations of products and different counterparties — using
techniques such as bundling (the sale of two services together)
or cross-subsidisation (when the margins on one service are
used to enable another service to be provided at a lower
price). Buying a set of services from the same provider over
time can provide cost savings for customers, for example
because firms do not need to invest in several relationships.
However, it may also obscure the cost of the individual
underlying services, making it harder for users to assess value;
and it may act as a barrier to entry to potential competitors
able to offer a subset of the individual services on superior
terms.
15 To the extent that the market-making model relies on
bilateral price discovery and execution (historically often by
phone), transparency can sometimes be limited. To a
substantial degree, the lack of pre-trade transparency (the
publication of orders and quotes in advance of trading) and/or
post-trade price transparency (the publication of prices and
volumes after trades have occurred) reflects users’ desire to
undertake large transactions without their trading strategies
being revealed to the market. The ability to trade in this way
was one of the key strengths highlighted by end-users in
responses to the Review. But it also means that pricing for the
same instrument may differ across counterparties and market
segments in a way that is hard or impossible for counterparties
to assess. This can exacerbate informational asymmetries.
And it may allow individual traders to exploit conflicts of
interests while facing lower risks of being detected by
authorities, counterparties, or their own firms' internal control
functions. As discussed elsewhere in this Report, confidence
that wrongdoing was unlikely to be exposed may have led to a
progressive slippage in conduct standards.
16 It has historically been assumed that market discipline
would play a primary role in policing conduct and ensuring
effective competition in FICC and other wholesale markets.
Buy-side firms and end-users who felt their interests had been
harmed would withdraw or curtail their business from
counterparties they suspected of abuse; and knowledge of
that potential reaction would help to incentivise appropriate
market conduct. FCA-regulated firms are also expected to
inform the regulator if they detect misconduct. But while
some of the largest investors and corporates told the Review
they could still exercise market discipline when required,
others felt the scope to do so was limited, citing increased
concentration on the sell side, the need to maintain
relationships with horizontally-integrated banks or the
intrinsic difficulty of detecting market abuse. This issue is
discussed further in Section 2.4.2.
17 Although the risks above are described primarily in the
context of OTC market-making, other forms of trading
25
structures also give rise to a number of potential
vulnerabilities to misconduct. For example, trading on
all-to-all venues using ‘central limit order books’ (CLOBs)
typically requires participants to publish details of their trading
interest (how much they are committed to buy and sell, and at
what price) on the venue. That gives rise to at least two
potential risks. First, some participants may post trading
interest without any intention to transact, cancelling that
interest if the market price approaches it. This practice, which
has a number of specific variants including ‘spoofing’ or
‘layering’, involves creating a false impression of supply and
demand to induce a short-term price move from which
unscrupulous venue participants can profit. Algorithmic or
high frequency trading, where interest can be posted and
cancelled in milliseconds, may increase the vulnerability of
CLOB venues to such behaviour. A second risk is information
leakage, leading prices to rise or fall in anticipation of further
similar transactions coming through the market (this is a
particular risk for large transactions or transactions in illiquid
assets). For these reasons, there is no one trading structure
that is uniquely less vulnerable to misconduct.
2.3 Progress in addressing structural issues
18 Few of the vulnerabilities in market structure described in
the previous section are new. Well-managed market-making
businesses have long understood the need to have controls in
place to prevent the abuse of conflicts of interest, confidential
information, or market power. Similarly, sophisticated
investors have long known the importance of handling
information about future orders carefully. In addition,
regulators have set out clear standards relating to the
management of conflicts of interest. The FCA Handbook, for
example, requires firms to: take all reasonable steps to
identify conflicts; operate effective arrangements to prevent
damage to clients’ interests; and (as a last resort), where
conflicts may still exist, and the arrangements to manage
them are not sufficient to prevent damage to clients, disclose
them to clients.
19 Some firms have introduced physical separation of certain
functions to help control the flow of sensitive information and
manage potential conflicts of interest (for example, locating
primary syndication and secondary market bond traders on
different floors). In the United Kingdom, administrators and
submitters to regulated benchmarks are subject to a number
of requirements (highlighted in Section 3), including the need
to have effective governance arrangements in place to manage
conflicts of interest around the benchmark setting process.
And the Financial Stability Board (FSB) report on
FX benchmarks recommended that banks establish and
enforce internal systems and controls to address potential
conflicts of interest arising from managing customer flow.(1)
(1) www.financialstabilityboard.org/wp-content/uploads/r_140930.pdf.
26
20 In addition to these existing controls and requirements, a
number of recent regulatory reforms are driving further
changes to FICC market structures that could help tackle these
vulnerabilities, improving fairness and hence effectiveness:
• The design and oversight of key FICC benchmarks has
been overhauled — as discussed in Section 3.
• Increased transparency: a number of regulatory changes
are likely to improve transparency in many FICC markets
over time. There will be a progressive transfer of derivatives
business onto exchanges or electronic venues as a result of
reforms agreed by the G20 in 2009 (implemented in Europe
through EMIR and MiFID2, and in the United States through
the Dodd-Frank Act). In Europe, the MiFID rules relating to
pre and post-trade transparency will be extended in 2017 to
a wider range of FICC assets (see Box 3). The EU Regulation
on Energy Market Integrity and Transparency (REMIT) for
wholesale energy markets, which came into force in
December 2011, requires, among other things, energy
market participants to provide records of transactions to a
registered reporting mechanism, along with timely public
disclosure of inside information. And there have been a
number of initiatives to increase transparency in
securitisation markets. For example, the Bank of England
and the European Central Bank (ECB) have introduced
loan-level information requirements as part of their
collateral eligibility criteria in recent years. As part of a joint
Discussion Paper they also welcomed ongoing work by the
European Securities and Markets Authority (ESMA) to seek
further improvements in disclosure of transaction
documentation and performance information.(1)
• Improved access to, and standards on, FICC market
trading venues: the introduction under MiFID2 of a new
type of venue category, the ‘Organised Trading Facility’
(OTF), should result in some of the more liquid FICC
markets trading on regulated venues in the future, including
some corporate bonds, many government bonds and all
standardised derivatives subject to the G20 trading
obligations. Participants in these markets will be covered by
rules covering non-discriminatory access and venue
neutrality (in addition to the increased transparency
requirements described above). The extent to which MiFID2
achieves its stated goals will however depend on the final
calibration of the measures, and practical implementation
(see Box 3).
• Oversight of anti-competitive behaviour: international
authorities have taken action to tackle the potential for
anti-competitive behaviour in FICC markets. In the
United Kingdom, the FCA’s regulatory toolkit was extended
on 1 April 2015 to include powers to enforce against
breaches of competition law.(2) These powers sit alongside
the FCA’s existing competition objective, which the FCA
Fair and Effective Markets Review Final Report Section 2
meets by identifying and addressing areas where
competition may not be working effectively. Taken
together, they significantly strengthen the FCA’s ability to
ensure competitive markets for financial services, and put
the FCA in a better position to engage with European
competition authorities to address cross-border issues. The
FCA undertook a review of competition in wholesale
markets, which concluded in February 2015. Based on the
findings of that review, the FCA has begun a market study
into competition in investment banking and corporate
banking services, focusing on the impact of transparency
and bundling on competition in debt and equity capital
markets and merger and acquisition services.(3) It has also
announced plans to commence a market study on asset
management in 2015/16.
• Resilience of financial firms: a number of prudential
regulations are in the process of being introduced to
improve the resilience of financial firms, including many of
those playing a key role in FICC markets. The third Basel
Accord (Basel III), which is implemented in Europe via the
Capital Requirements Directive (CRD IV), contains a number
of measures including revised trading book capital
requirements to ensure adequate capitalisation of positions
that cannot be exited quickly, and a leverage ratio, a
non-risk-weighted capital requirement that ensures banks
have a minimum amount of capital relative to their overall
exposures. In the European Union a new liquidity coverage
requirement will be introduced from October 2015, and
work is underway on measures to ensure that firms have
sufficient stable funding sources. Some of these measures
are not due to be fully implemented for several years — for
example, in Europe, the Net Stable Funding Ratio and the
leverage ratio requirement will not be introduced until 2018.
But the impact of these measures has in many cases already
been anticipated and reflected in market behaviour. And in
the United Kingdom, the Financial Policy Committee (FPC)
intends to recommend the introduction of a leverage ratio
requirement for UK globally systemically important banks
and other major domestic UK banks and building societies as
soon as practicable to avoid the emergence of financial
stability risks over the coming years.
21 By returning the cost of liquidity and capital to more
sustainable levels, this last set of regulatory measures should
make some of the major firms in FICC markets more resilient,
which in turn should mean markets are less prone to sudden
disruptions caused by problems at an individual institution,
increasing their effectiveness. But market participants report
that liquidity in some FICC markets is lower than it was before
(1) www.bankofengland.co.uk/publications/Documents/news/2014/paper300514.pdf.
(2) These competition functions will be discharged in concurrency with the Competition
and Markets Authority (CMA).
(3) www.fca.org.uk/news/fca-publishes-terms-of-reference-investment-corporatebanking-market-study.
Fair and Effective Markets Review Final Report Section 2
the financial crisis, and have argued that these regulations
have contributed to that. Whether that implies an overall
reduction in fairness and effectiveness is less clear. The
reduction in liquidity across FICC markets has varied quite
widely, with some markets experiencing little change.
Pre-crisis liquidity in some markets was in general too
plentiful, causing sharp reversals or even closures during the
adjustment phase, which harmed rather than enhanced
effectiveness. And liquidity provision may increase in the
future, for example, via an increase in profitability if volatility
returns to more normal levels, if investors are willing to
tolerate wider bid/offer spreads, or if other market
participants, including the traditional buy-side, become more
significant liquidity providers. A more complete analysis of
these issues, and the broader implications for economic and
financial stability, is beyond the scope of this Review, but is
being conducted by other national and international bodies,
and will be central to the Open Forum to be held at the
Bank of England in Autumn 2015.
22 Finally, there have also been a number of technological
developments within firms that, while not directly motivated
by reducing misconduct, may nevertheless help to boost the
fairness and effectiveness of FICC markets. For example, in
light of a decline in revenues from FICC trading (due to the
exceptionally low volatility seen across a range of markets in
recent years, lower economic activity more broadly and the
impact of the regulatory reforms described above) many
market makers have made adjustments to their businesses.
Some have simplified their product portfolios and focused
more on clients they consider to be core. There has also been
widespread interest in ways of reducing operating costs over
the medium term, for example through the use of more
automated trading processes like ‘straight-through
processing’, which enables trading to be conducted
electronically without manual intervention, and investment in
innovative platforms that seek to match trading interest
without the need for dealer intermediation. These methods
can help make trading execution more transparent (by making
price information more easily available to a wider group of
participants) and efficient by lowering firms’ operating costs
(which should lead to more competitive prices). There has
also been heightened interest in industry-led initiatives to
increase the use of order-driven electronic trading platforms
and other forms of technology (for example the use of
techniques to identify holders of illiquid assets or estimate the
fair value price of infrequently-traded instruments). Box 5
describes some of the drivers behind the development of these
technologies.
27
2.4 Structural changes to boost fairness and
hence effectiveness
23 Taken together, the regulatory and technological changes
to benchmarks, transparency, access, resilience, oversight of
anti-competitive behaviour and innovative trading platforms
should, over time, deliver material improvements in the
fairness, and hence effectiveness, of FICC market structures.
Much of that reform remains in train, however — so it will be
some time before the scale of any improvement is clear. It will
be important for the authorities to monitor these
developments closely, and stand ready to act if they fall short.
But with so much change underway, the Review has decided
not to recommend using regulatory or legislative tools to
bring about further major structural reform at this stage.
24 Market structures evolve constantly, however, and the
authorities also have an important role in guiding future
changes through both formal and less formal means. Other
than vulnerability to misconduct, the guiding principles for
designing fairer markets flow directly from the Review’s
definition of fairness: transparency, open access and
competition on the basis of merit, allowing market
participants and end-users to choose between alternative
solutions. The challenge is to identify interventions that
enhance one or more of these characteristics while also
boosting market effectiveness. That goal is further
complicated by the fact that the effectiveness of a given
market structure in general depends on the end-user’s needs.
OTC market-making may be the most effective way to
minimise execution risk for those seeking to trade in large size
or less liquid assets. Conversely, those wishing to trade in
smaller size in relatively liquid or standardised assets may
prefer to trade on anonymised electronic all-to-all
order-matching platforms or exchanges. For these reasons,
no single model is likely to dominate. So there is a good case
for promoting a diverse range of models. This section
identifies three key themes to guide that future evolution:
• In markets where OTC trading remains the preferred model,
authorities and market participants should continue to
explore the scope for improving transparency, in ways that
also enhance effectiveness. (Section 2.4.1)
• Competition authorities, including the FCA, need to be alert
to the potential for incumbents seeking to prevent the
development of challenger technologies through
anti-competitive structures or behaviour. (Section 2.4.2)
• Authorities should stand ready to help catalyse reform
where markets are unable to do so. (Section 2.4.3)
25 These themes are reviewed in turn below, drawing on
current developments and challenges within FICC markets as
well as specific examples identified in responses to the
Review’s consultation.
28
Fair and Effective Markets Review Final Report Section 2
Box 3
The implications of MiFID2 for European
FICC markets
participants, and will encompass venues ranging from
interdealer brokers to new derivatives trading platforms. As a
result, many of the more liquid FICC markets will, in future,
trade on MiFID venues, including some corporate bonds, many
government bonds and all standardised derivatives subject to
the G20 trading obligation (see below).
The Markets in Financial Instruments Directive (MiFID) is the
overarching framework for many aspects of market regulation
in the European Union. It sets out rules determining how
investment firms must behave when dealing with clients and
other market participants, and governs the operation of
exchanges and other trading venues. The original Directive
(often referred to as ‘MiFID1’) came into force in 2007 and was
primarily focused on increasing transparency and competition
in the equity markets. A major revision of the MiFID
framework was agreed in May 2014, significantly amending
the original Directive and introducing a new Regulation. The
new regime, known as ‘MiFID2’, will be implemented in
January 2017 and focuses much more heavily on FICC markets.
This box summarises the main measures affecting
FICC markets, and their potential implications for fairness and
effectiveness.
1 Trading venue requirements
MiFID sets out several regulatory categories which aim to
capture forms of trading that bring multiple parties together
to conduct transactions in financial instruments (known as
‘trading venues’). The broad objective of MiFID is to support
competition and choice between business models, while
establishing a number of common requirements aimed at
ensuring venues operate fairly and effectively. These
requirements include: pre and post-trade transparency;
transparency of execution protocols; rules for admission of
instruments to trading; non-discriminatory access to venues;
management of conflicts of interest; and monitoring and
governance requirements.
MIFID1 established two categories of multilateral trading
venue: ‘Regulated Markets’ (RMs) and ‘Multilateral Trading
Facilities’ (MTFs). The former category was designed to
capture traditional exchanges, while the latter was designed to
improve competition by providing for the authorisation of
challenger venues. Although both categories applied to all
relevant financial instruments, the majority of trading venues
established under the MiFID1 framework covered equities.
Most trading in FICC assets remained outside these trading
venues either because transactions were arranged bilaterally,
or because they were arranged multilaterally through systems
that did not fit the RM or MTF categories.
To address this latter case, MiFID2 will introduce a new venue
category, known as the ‘Organised Trading Facility’ (OTF), in
particular for FICC markets. OTFs are venues where the
operator takes an active role in sourcing liquidity and
managing the trade matching process between market
The extension of venue requirements has the potential to
contribute to the fairness and effectiveness of these markets
in a number of ways. Three of the most significant cover:
(i) Transparency
MiFID2 will extend pre and post-trade transparency
requirements to FICC markets. These obligations will apply to
all multilateral trading venues (RMs, MTFs and OTFs) and
organised forms of bilateral trading conducted by ‘Systematic
Internalisers’ (including, for example, large OTC market
makers).
The MiFID2 transparency regime has the potential to enhance
the fairness and effectiveness of FICC markets considerably, as
many respondents to the Review’s consultation noted.
However, care is required in its implementation. For example,
applying transparency requirements to large transactions or
transactions in illiquid instruments can make it harder for
market makers to trade such instruments with their clients
without suffering a price movement when they hedge the
position taken onto their book. In such situations, market
makers may have to widen spreads to price in this risk,
reducing market effectiveness for end-users. The MiFID2
framework seeks to address this issue by introducing:
(i) waivers from pre-trade transparency requirements for
illiquid assets and transactions that are ‘large-in-scale’; and
(ii) deferrals for post-trade reporting in similar cases.
This approach provides a sensible way to improve the fairness
of FICC markets without compromising their effectiveness.
However, as many responses to the Review highlighted, the
success of this approach will be critically determined by the
calibration of the waivers and deferrals.(1) A number of factors
will need to be taken into account. First, it is important to
ensure that the classification of liquid instruments accurately
reflects the economic reality of the market for those
instruments, and does not seek (for ease of implementation or
otherwise) to force assets into the liquid category if they do
not belong there. Second, the MiFID framework makes clear
that waivers for the ‘size specific to the financial instrument’
should be set so as not to ‘expose liquidity providers to undue
risk’. To be effective, these waiver levels must take due
account of market-making, and not be set according to
distributional analysis of transaction sizes in a way that
(1) These are covered in draft implementing regulations currently being developed by the
European Securities and Markets Authority (ESMA).
Fair and Effective Markets Review Final Report Section 2
ignores the potential impact that disclosure could have on
liquidity provision. Finally, at a more general level, MiFID2
aims to introduce a more ambitious system of transparency
than has ever been previously implemented in FICC markets.
It is therefore essential that the regime is regularly reviewed.
(ii) Open access
MiFID2 will extend non-discriminatory access requirements to
FICC trading venues classed as OTFs. Many FICC markets have
a two-tier structure of separate dealer-to-dealer and
dealer-to-client markets. Dealer-to-dealer markets exist to
allow market makers to lay off risk among themselves in a way
that maximises their ability to perform their market-making
functions. But it is important to ensure that access to these
markets is appropriate, and free from artificial barriers. Access
criteria should only exclude participants where absolutely
necessary to ensure the effective functioning of the market.
Open access requirements should help to remove unnecessary
barriers, and support moves to more all-to-all trading.
However, much will depend on how the MiFID framework is
applied in practice. Several responses to the Review’s
consultation highlighted recent experiences in the
United States, in which certain classes of market participant
felt they had been excluded from being able to access the new
category of ‘Swap Execution Facilities’. If the move to OTFs is
to be successful in broadening access within FICC markets, it
will be necessary for supervisors to monitor OTFs actively to
ensure that venues do not introduce or maintain access
criteria that serve to exclude market participants
unnecessarily.
(iii) Venue neutrality
MiFID2 will also introduce strong requirements on venue
operators to prevent or manage conflicts of interest, including
banning operators from most forms of dealing against their
own capital within the system. The rules should act as a
strong safeguard against the incentive for operators to profit
from information concerning trading flow at the expense of
participants within their trading systems. However, the
prevention of dealing against own capital will not address all
conflicts an operator may face. Where FICC markets follow a
similar trajectory to the equity markets and move to more
trading on independently-run venues, it will be important to
ensure that new biases are not introduced — for example
venues unfairly favouring market participants who place the
largest number of orders.
2 Implementation of the G20 trading obligation
At the Pittsburgh summit of 2009, G20 leaders agreed to a
range of measures designed to address risks associated with
the OTC derivatives market. Most of the measures concerning
the clearing of standardised OTC derivatives were
implemented in the EU via the European Market Infrastructure
Regulation (EMIR). However, the final limb of the G20
29
commitments — the obligation, where appropriate, to trade
liquid, standardised derivatives on electronic trading venues —
will be implemented by MiFID2. The trading obligation should
serve to improve both the fairness and effectiveness of the
markets for standardised derivatives. However, it is essential
that a co-ordinated approach is taken to implementing the
obligation, given the international character of the derivatives
markets and the risks of fragmentation that could occur if
jurisdictions implement the obligation differently.
3 Non-discriminatory access between trading venues
and central counterparties (CCPs)
MiFID1 introduced principles of non-discrimination concerning
market participants’ rights to access trading venues and CCPs.
MiFID2 will extend this policy by introducing rights for trading
venues to access CCPs on non-discriminatory terms, and
converse rights for CCPs to access trading venues. This new
measure seeks to ensure that market participants are not
bound to particular clearing or trading infrastructures when
they trade certain assets. The Review considers that this
measure will bring important benefits to the effectiveness of
markets for cleared FICC instruments, notably
exchange-traded derivatives and derivatives subject to the
G20 trading obligation.
4 Conduct of business requirements
MiFID2 will extend conduct of business requirements to a
wider range of market participants. Whereas previously there
had been a presumption that the most sophisticated
wholesale market participants could take care of their own
interests, this shift under MiFID2 highlights the recognition
that conduct risks can affect the integrity of the market as a
whole and should not be judged solely at the level of
individual participants. MiFID2 extends a number of
obligations for investment services provided to sophisticated
market participants, known as ‘eligible counterparties’,
including: (i) a high level principle for firms to act honestly,
fairly and professionally and to communicate with eligible
counterparties in a way that is fair, clear and not misleading;
(ii) the application of information requirements when firms
provide investments services to eligible counterparties; and
(iii) requirements to report to eligible counterparties
periodically on services provided.
MiFID2 also introduces new requirements for firms executing
client orders. These requirements increase the level of firm
and execution venue disclosure, take steps to prevent firms
from receiving remuneration from routing client orders to
particular trading or execution venues and prescribe more
detail to be provided in their execution policies. These
changes should enhance end-investors’ ability to monitor the
order routing and execution arrangements of brokers and
asset managers, and also provide tools for monitoring
principal trading and other OTC activity.
30
Fair and Effective Markets Review Final Report Section 2
5 Other measures
allow regulatory authorities to monitor more effectively
against market abuse, as discussed in Section 6. Finally,
position limit and position management controls will be
introduced for commodity derivatives traded on venues.
These provisions aim to improve the fairness and effectiveness
of commodity markets, by introducing systems to help
prevent the occurrence of ‘short squeezes’ (price spikes caused
by shortages of supply near the expiry date of a futures
contract).
MiFID2 contains a number of other measures which will, to
some extent, impact on FICC markets. New rules on
algorithmic and high frequency trading seek to improve the
stability of markets, and reduce opportunities for unfair
practices (Section 2.5 explores the future implications of
algorithmic trading for FICC markets). Transaction reporting
requirements to regulators will be extended to all MiFID
financial instruments traded on regulated trading venues,
including when those assets are traded OTC. Given the
creation of the OTF category, this will mean that more
FICC assets are subject to reporting requirements which will
2.4.1 Enhancing transparency in ways that maintain
FICC market effectiveness
26 Improved transparency, where it is sensitive to the
liquidity and size characteristics of trading, can improve price
discovery, liquidity provision, trading surveillance and the
monitoring of best execution. That principle is embedded in
the MiFID2 framework, which will extend pre and post-trade
transparency requirements to a range of regulated
FICC markets, the opportunities and challenges of which are
discussed in Box 3. But there may also be scope to enhance
transparency in markets lying outside the scope of this
regulation. The Review’s consultation highlighted a number
of areas where, at a minimum, further market-led
improvements would be desirable, three of which are
highlighted here:
(a) ‘last look’, time stamping and other trading practices in
FX markets;
(b) the trading of some of the more liquid and standardised
physical commodities; and
(c) the allocation of primary bond issuance.
Enhanced transparency around ‘last look’, time stamping
and other trading practices in FX markets
27 In some important aspects, FX markets are highly
transparent. FX is the most well developed electronic market
in the FICC landscape (see Figure 1), significantly enhancing
pre-trade transparency. The proliferation of electronic venues
and the growth of non-bank financial counterparties (including
high frequency traders) as potential liquidity providers has,
however, created a fragmented market structure, increasing
complexity. More informed market participants typically use
liquidity aggregation technologies and sophisticated order
execution strategies to connect to various pools of liquidity.
But the market’s complexity can increase pre-trade search
costs for participants who do not have access to these
technologies. The availability of post-trade transparency is
variable: for example, inter-dealer multilateral trading venues
provide post-trade price transparency; but in dealer-to-client
bilateral markets, post-trade transparency can be low.
28 Several market participants and third-party service
providers have sought to address this by offering so called
‘transaction cost analysis’ tools — which seek to assess any
slippage between prevailing market prices and a customer’s
actual execution level. This can be challenging in an OTC
market with no single source of ‘best price’. However, several
independent price sources are now available, which aggregate
pre-trade order books across multiple electronic platforms.
29 There is scope to improve transparency further in ways
that do not harm the effectiveness of FX markets. In
particular, the Review has identified a number of trading
practices where, at a minimum, more consistent transparency
is required to ensure that market participants and authorities
have sufficient information to make informed judgements
about these practices.
30 First, there are inconsistent practices around the provision
of information about order execution in spot FX transactions.
In particular, although it is common in wholesale markets to
provide ‘time stamps’ showing the precise execution time of
each transaction, it is not universal. In part that may reflect
the fact that institutional investors have not always demanded
them. When managing diverse multi-currency securities
portfolios, asset managers or their clients sometimes
outsource FX trades related to routine trade settlements and
income distributions en bloc to the end investor’s custodian
bank. As these typically result in a large number of smaller
trades every day, the prices achieved have not always been
scrutinised on a trade-by-trade basis. However, the absence
of time stamps provides potential opportunities for abusive
practice — for example, if rates on trades not confirmed until
the end of the day were consistently skewed towards the
inferior end of the day’s trading range. The Review has
concluded that there should be greater transparency
concerning information relevant to the execution of orders
and, in particular, that time stamps showing the point of
Fair and Effective Markets Review Final Report Section 2
execution should always be provided, to minimise the scope
for any such practices. Section 4.3.3 sets out how standards
on time stamping might be delivered through the new global
code, and in time formal regulation.
31 Second, the practice of ‘last look’ gives market makers —
whether using voice-based or algorithmic trading — a final
opportunity to reject an order after a client commits to trade
at a quoted price. This practice was developed to provide
protection against unanticipated market movements and
predatory trading practices, while allowing market makers to
maintain tight bid-offer spreads for their clients. However, the
Review shares the concerns raised in several responses to the
consultation that last look, in its current form, could also
potentially be abused by market makers, either by
asymmetrically accepting or rejecting orders based on market
moves after the order is placed, or by using the order to
inform other trading activity prior to acceptance. At a
minimum, further transparency measures are required to
ensure market participants are sufficiently informed about
how last look is employed in practice. Section 4.3.3
recommends that the new international standards process on
FX markets should also set out clearer standards on the use of
last look, including whether it should remain an acceptable
market practice.
32 The third practice is the increased use of ‘internalisation’,
where market makers match trades across their own books
rather than through an external broker. Most market
participants responding to the Review agreed that
internalisation may enhance market effectiveness to the
extent that it enables tighter pricing for clients. However, the
lack of transparency associated with internalisation could limit
the ability of clients to assess the quality of execution they
Box 4
Enhancing the transparency of spot FX trading
practices
While pre-trade price transparency in spot FX is generally
strong, transparency of trading practices is less consistent. For
example, it can be difficult for market participants to assess:
how orders have been handled once received; whether
matching methodologies favour particular styles of trading;
whether algorithms deliver expected outcomes; or whether
venue rulebooks are faithfully enforced. In some cases,
information on these issues is already provided. But
approaches are inconsistent, and due diligence of trading
practices can be particularly challenging in a global market
with a diverse pool of inter-connected trading venues.
31
receive. Further transparency measures would help to
evidence the fairness of the order execution process and the
efficiency of the client’s resulting execution.
33 There is scope to improve transparency in relation to these
and other trading practices through a market-led initiative to
provide a combination of public and bilateral disclosures.
However, given that spot FX is a global market, those changes
will only be fully effective if they are adopted across the
market in a consistent way. The recently-announced work
programme to develop an enhanced set of global standards
for FX, discussed further in Section 4.3.3, offers a good
platform to consider these issues. As an input to that process,
Box 4 describes a high level framework which, suitably
developed, could be adopted by market participants to
enhance transparency through the use of targeted metrics.
Market-led improvements in post-trade transparency in
commodities markets
34 There may also be scope for market-led initiatives to
increase post-trade transparency in certain liquid, standardised
physical commodities markets. For example, the Market
Practitioner Panel noted in its response to the Review that for
some of the more liquid, standardised physical markets (such
as gold bullion trading) ‘availability of post-trade reporting
would provide an understanding of liquidity, help to dispel
some concerns over information abuse, work towards levelling
the playing field and allow for more reliable benchmarks to be
constructed’. Similar points were raised by the London Bullion
Market Association (LBMA), which argued that the precious
metals market should report transaction data anonymously.
The LBMA has subsequently launched a review to identify
opportunities to increase transparency and liquidity in the gold
market, including potentially through the development of an
This box explores ways in which further light might be shone
on these practices in ways that do not harm the effectiveness
of FX markets, through market-led initiatives. Suitably chosen
metrics, either publicly or bilaterally disclosed, could allow
customers to make more informed choices about their
execution strategies, and also allow internal stakeholders or
public authorities to assess conduct standards. They could
also be implemented without full post-trade transparency of
prices and volumes in the form of a consolidated tape,
something which could be both challenging to implement in a
fully global market and would not, in isolation, necessarily
shed light on all types of potentially problematic trading
practices. Work to develop such metrics could be taken
forward in the context of the work programme to develop
an enhanced set of global standards for FX.
32
Fair and Effective Markets Review Final Report Section 2
Evaluating current trading practices
2. Mapping vs fair and effective characteristics: Having
categorised market participants, the next task would be to
identify market practices where meaningful disclosures
might enhance fairness without harming effectiveness.
One way to do this would be to map the services provided
by each type of participant against relevant characteristics
of fairness and effectiveness, such as those set out by this
Review.
The following are examples of metrics that might be explored
to throw light on current trading practices such as those
discussed in the main text:
• Fill rates (the percentage of orders executed where a quote
is hit by a client) and the elapsed times between the
orders’ receipt and its execution/rejection could help
evidence the integrity of a market maker’s order handling
process when they use ‘last look’.
• Time stamps for all trade executions could facilitate
customer due diligence on the efficiency and fairness of
trade executions and demonstrate adherence to clear
standards of market practice and integrity.
• Summary data on the concentration of counterparty types
on electronic trading platforms (where information is
available) could evidence the fairness and effectiveness of
venue matching rules to their users. For example, a measure
that suggested orders were often matched against particular
types of counterparties might be evidence of matching
mechanisms which favoured such counterparties.
• Recording of independent, external price comparators
when market makers internalise agency flows could help
evidence the efficiency and fairness of trade executions.
Developing a more general framework
The above are only examples of metrics which could shed light
on a few specific aspects of current FX trading practices. To
evidence fair and effective practices in a more forward-looking
way — a key theme of the Review — a methodology for
identifying additional, relevant metrics to supplement existing
disclosures would be required. Recognising that data
collection and promulgation is costly, careful consideration
would be required to select practical and effective metrics.
The steps outlined below describe a process that could be
followed to do this:
1. Categorisation by services provided: The potential range
of meaningful metrics will vary depending on the role a
market participant is performing, and the trading practices
associated with each of the services they provide. For
example, different metrics could apply to: (a) operators of
multilateral trading platforms; (b) brokers who provide
market access across platforms, including via algorithmic
trading; and (c) market makers (including non-bank liquidity
providers). Where participants provide multiple services, for
example where a market maker also works orders on behalf
of clients, metrics relevant to each function would be
appropriate.
3. Metric selection and alignment: To identify potentially
relevant metrics for each type of participant and market
practice, a selection process would need to consider: the
scope of metrics required (in order to assess relevant
practices without unnecessary overlap); their level of
impact versus the practicality of their production; the
appropriate level of aggregation; and any standardisation
judged necessary to facilitate comparisons across venues
and participants.
4.Metric usage assessment: Appropriate metrics, and their
level of granularity, would vary depending on the recipient
and the intended use of the information. Full public
disclosure lies at one end of the spectrum. Alternatively,
metrics could be provided privately for the following uses:
customer due diligence, internal firm surveillance, and/or
use by the public authorities.
5. Proof of effectiveness: Finally, historical examples of
abusive practices could be used to test whether the
proposed metrics would have been effective at identifying or
discouraging the selected cases of market misconduct.
Figure 2 gives a hypothetical illustration of how such a
high-level framework might be applied. The usefulness of
such an approach would require further consideration, for
example as part of the international work to develop global
standards and principles.
Per trade/volume
Mean fees and range
Rebates/discounts
Request to quote
Order to fill
Order lifetime
Volume/concentration
Counterparty types
New entrants
Surveillance statistics
Disruptions
Enforced cancellations
Price
Fees
Latency
Counterparties
Governance
Aggregate trade volumes
Order-to-trade ratios
Mean trade sizes
Fill rates, failure rates
Price availability
Effective spreads
Time stamps
Volume
Macro categories Metrics
Input – Filtered list of mediumand high-value metrics
Yes
No
Eliminate or
revise metric
No
Eliminate
metric
No
Will public
Will the
Is the cost of
disclosure
disclosure
production
Yes justified?
Yes compromise
improve
confidentiality
fairness
Are metrics
or disrupt
and
appropriately
competition?
effectiveness?
specified?
Mapping and
metric selection
Figure 2 Hypothetical decision tree for metric selection and usage
Is the metric
of broader
public
interest?
No
No
Would private
disclosure
inform
execution
decisions?
Yes
No
Yes
Public disclosure
Public authorities
Internal firm
surveillance
Customer due
diligence
Metric usage
Fair and Effective Markets Review Final Report Section 2
33
34
Fair and Effective Markets Review Final Report Section 2
OTC trading platform or exchange service.(1) The Review is
supportive of the broad goal of enhancing transparency —
though the specific models for achieving this should be subject
to careful consultation with a wide range of market
participants and end-users.
failure of specific technologies to provide the services that
users need. But it may sometimes also reflect competitive
impediments.
Transparency of the corporate bond issuance process
35 The perceived fairness and transparency of primary
corporate bond issuance was raised in a number of responses
to the Review. A range of market participants including
buy-side, sell-side and issuing firms noted that large investors
tended to receive the largest allocations on new issues. Some
felt this was justified by their role as valued long term
investors, but small investors typically reported feeling
disadvantaged. Some buy-side firms also raised concerns
about the criteria by which the tail of smaller lots were
sometimes allocated.
36 Judgements about bond allocations must ultimately lie
with the debt issuer. But more consistent levels of
transparency over the criteria used by bookrunners(2) to decide
on allocations, and suitably aggregated ex post data on
allocation outcomes, may help to improve perceptions of
fairness, and also thereby enhance effectiveness. While the
International Capital Markets Association (ICMA) provides
non-binding guidance on best practice in the book building
process(3) and some bookrunners produce distribution reports,
there is no requirement for firms to do so, and reports are not
standardised. In its response to the Review’s consultation, The
Investment Association called for consistent public disclosure
of geographical location, and type, of investors and other
information which would allow greater scrutiny of allocations.
By contrast, only a minority of the Market Practitioner Panel
supported a greater level of transparency on allocations.
There was support though for greater scrutiny of orders and
allocations by bookrunners (including by internal audit) from
both the Market Practitioner Panel and ICMA.
37 Firms issuing fixed income instruments should have access
to a wider range of options for allocation. One means of
increasing transparency, raised by the consultation document,
is the use of auctions. The transparency of the corporate bond
allocation process will be assessed as part of the FCA’s market
study of investment and corporate banking.(4)
2.4.2 Promoting effective competition and market
discipline
38 Cost pressures and reduced liquidity from some traditional
providers have induced substantial innovation both in markets
where the use of advanced technology is relatively novel (such
as fixed income) and where it is relatively mature (such as FX).
Adoption of such technologies — discussed in Box 5 — has
sometimes been slow, however, even in markets where the
underlying assets appear well suited to such trading. In part
that may reflect co-ordination failures among users, or a
39 Respondents to the Review also identified other areas
where they perceived competition might not be operating
effectively. These included: the pricing of investment
banking services, including the fees paid on corporate bond
issuance; the awareness of how competition law applies to
FICC markets; and the effectiveness of market discipline in
ensuring competitive outcomes and good standards of market
conduct.
Fair and open access to diverse trading structures
40 An increase in the use of transparent, anonymised,
all-to-all electronic trading venues is likely to improve
fairness and effectiveness in markets for liquid and
standardised assets, including through increasing choice for
market users. A range of FICC instruments already trade on
exchanges, such as commodity, interest rate and gilt futures,
and some CDS contracts (such as indices). Other relatively
standardised assets might also be amenable to a move to
greater all-to-all trading. But there are a number of challenges
to more rapid adoption.
41 The emergence of such trading structures may challenge
the informational advantages at the heart of the
market-making model. And that could lead to responses by
incumbent market makers which seek to restrict effective
competition. As more of these venues move into the
regulated space (as a result of MiFID2 and the Dodd-Frank
Act(5)), it will be important to ensure that regulatory
requirements for non-discriminatory access are appropriately
applied to ensure effective competition to these markets. In
the Review’s outreach, respondents described observing a
number of techniques to limit access, including for example
the use of high access fees to limit the access of the buy-side
to inter-dealer broker platforms, threats to remove liquidity
unless certain platforms were (or were not) used, or limits (or
conventions) on the number of dealers from whom investors
could request on-platform quotes.
42 The requirement of ‘post-trade name give-up’ set out in
the operating rules of some venues (ie disclosing the name of
a counterparty to a market maker once a trade is agreed) may
be necessary when parties to a trade need to manage their
(1) www.lbma.org.uk/_blog/lbma_media_centre/post/lbma-launches-strategic-bullionmarket-review.
(2) Bookrunners are banks involved in the primary issuance process who aim to ensure
new issues are executed effectively while meeting the requirements of the issuer in
terms of size, pricing and distribution.
(3) Covering, for example, discounting or removal of inflated orders and best practice on
exercising judgement during allocations (Appendix B, ICMA Primary Market
Handbook).
(4) www.fca.org.uk/your-fca/documents/market-studies/ms15-1-1-investment-andcorporate-banking-market-study-tor.
(5) In particular, the Dodd-Frank trading obligation and impartial access requirement.
Fair and Effective Markets Review Final Report Section 2
Box 5
Innovations in fixed income and FX markets
Recent years have seen substantial innovation in
FICC markets, aimed at reducing one or more of the costs that
typically arise when entering into a transaction:
• Search costs: the time and effort associated with finding a
counterparty that is willing to trade;
• Intermediation costs: the fees and/or spreads paid to
market makers or venues; and
• Execution costs: the extent to which the user bears the
price risk from any market impact of the trade.
This box describes a number of those innovations, many of
which have occurred in fixed income or FX markets. Some
reduce more than one of the costs listed above.
Reducing search costs
Search costs in OTC markets can be reduced by enabling firms
to request quotes from multiple dealers simultaneously on an
electronic trading venue backed by multiple market makers.
Such multi-dealer platforms are not new but save time
(relative to contacting several dealers in turn), ensure that
multiple quotes obtained remain comparable (as all quotes are
current) and promote competition between liquidity providers.
However, in OTC markets for heterogeneous assets, buy-side
firms may not always be able to identify which market makers
would be willing to trade in a particular instrument. To
address this issue, some firms have been developing new
information protocols enabling market makers to share the
status of their inventories and their readiness to trade
automatically with selected firms.
Another innovation has been to create logs of unexecuted
indications of interest on electronic trading venues. Such
features provide a database of participants’ intentions to trade
and may reduce search costs by tapping into latent liquidity.
Alternative approaches to reducing search costs include
developing ‘hybrid’ trading models where liquidity is
concentrated through time-limited trading sessions, or
periodic auctions, focused on specific instruments or
securities.
35
Reducing intermediation costs
Several providers have sought to address the costs of
intermediation. For more standardised and liquid
FICC instruments such as spot FX, some trading venues
replicate parts of the equity trading model, including
anonymous trading on central limit order books.
For instruments that trade infrequently, other trading venues
try to address the pricing difficulty that arises by using large
data sets to estimate what are described as ‘fair value’ prices
based on past trades and comparable financial instruments.
Making these price estimates available on screen to market
participants may help to alleviate some of the barriers to
order-driven all-to-all markets in less liquid FICC markets.
Finally, some firms have developed solutions to enable the
buy-side to bypass the sell-side altogether, for instance by
developing order matching engines in buy-side only liquidity
pools.
Reducing execution costs
Attempting larger or otherwise less standard transactions on
venues where orders are visible to multiple counterparties can
lead to ‘information leakage’, moving market prices adversely
and creating so-called ‘execution slippage’. A number of
solutions have emerged to address such risks.
Large market makers in FX markets have developed
internalisation engines enabling their counterparties to find
matching trades within the dealer’s order book, thereby
avoiding wide disclosure of their trading interest, and
potentially also reducing intermediation costs. Section 2.4.1
discusses broader transparency challenges with such
approaches.
In addition, algorithmic execution strategies have been offered
to buy-side firms by their brokers or specialised vendors to
reduce execution costs. These strategies are designed to
minimise execution cost by splitting orders and executing
these across multiple trading venues. Market impact can also
be reduced by algorithms taking into account and anticipating
the typical trading volumes associated with the instrument
traded.
36
counterparty risk, but is more questionable as a practice when
trades are centrally cleared. In the latter case, the retention of
post-trade name give-up may act as a barrier to entry to some
classes of market participant who need to protect information
about their trading strategies. Limitations on venue access
may occasionally be necessary to ensure effective market
function. But in some cases it can be hard to identify any such
justification. The preliminary conclusion by the European
Commission that a range of parties infringed competition law
by colluding to prevent exchanges from entering the CDS
market underscores the potential vulnerabilities as well as the
seriousness of such restrictions (see case study 4 in the
Annex).
43 The FCA will maintain a watching brief of potential
obstacles to the development of all-to-all trading and other
innovations, including the possibility of competitive abuse by
firms (or their staff) that occupy existing dominant positions,
and will stand ready to use its appropriate competition or
regulatory powers, including open access requirements under
MiFID2 (see Box 3) if required.
Pricing and sale of investment banking services
44 A number of responses to the Review’s consultation raised
the practices of bundling, cross-selling or cross-subsidisation
of products or services in FICC markets. Despite the possible
advantages from purchasing bundled services, some
respondents noted that the practice may reduce choice in
some circumstances, as it may limit their ability to switch
providers for just one service (such as bond issuance),
especially if banks demand exclusivity. The issues may be
exacerbated for smaller clients, which only have a relationship
with one bank and have relatively less bargaining power than
larger firms.
45 The use of cross-subsidisation or bundling may also
potentially affect the level of fees charged on corporate debt
issuance. The Association of Corporate Treasurers (ACT)
noted to the Review that some firms may face difficulty in
switching to alternative providers due to market concentration
or certain types of market practice that reduce choice. And
the Market Practitioner Panel thought that reducing the
number of bookrunners to one or two (compared with the
usual three to five used currently in the sterling corporate
bond market) might actually help to improve competition and
reduce fees, by providing issuers with greater flexibility to
choose alternative bookrunners in a concentrated market.
46 As noted earlier in this section, the FCA has begun a
market study into competition in investment and corporate
banking which will cover bundling and cross-subsidisation of
investment bank services.
Fair and Effective Markets Review Final Report Section 2
Improving awareness of competition law in FICC markets
47 There is a well-developed body of competition law in the
United Kingdom and at EU level — and the evidence presented
in recent enforcement cases suggests that most of those
involved were aware that their behaviour was inappropriate.
However, collusion can have a highly damaging effect on the
integrity of FICC markets, and consultation responses and the
Review’s analysis and outreach suggest there are shortcomings
in the understanding of the extent and power of competition
law. For example, firms and staff should be aware that:
• there have been a number of successfully prosecuted
competition cases in FICC markets including: cartels related
to interest rate derivatives and commodities; disclosure of
confidential pricing information; abuse of market power via
discriminatory behaviour; and limiting the supply of services
to customers;
• competition law covers all market segments and firms;
• breaches can have very serious consequences for individuals
(who may face a maximum 5 year custodial sentence and/or
an unlimited fine) as well as firms (which can be fined up to
10% of their annual group global turnover); and
• businesses and individuals that come forward to report
their own involvement in a cartel may have their financial
penalty reduced or avoid a penalty altogether under the
Competition and Markets Authority leniency programme.
48 The Review recommends that steps should be taken to:
• 3e: Improve firms’ and traders’ awareness of the
application of competition law to FICC markets, including
through the communication by the FCA of material
presented in the Annex of this Report to authorised firms
active in FICC markets, through firms’ internal
programmes, and through the new guidance on FICC
market qualifications and training to be developed by
the FMSB.
Strengthening market discipline in FICC markets
49 As highlighted in Section 2.2, one of the most
disappointing findings of the Review has been that market
discipline over standards of conduct appears to have been
weak or even non-existent in many FICC markets. Some larger
buy-side institutions said they had the capacity in principle to
move business if irregularities were detected, or to report
misbehaviour to a sell-side firm’s compliance department. But
many firms reported being either unable or unwilling to do so,
saying they focused their monitoring of counterparty
performance on a narrow range of metrics, often related
primarily to pricing. A number of possible reasons for weak
market discipline include:
Fair and Effective Markets Review Final Report Section 2
• the limited choice of alternative counterparties, reflecting
increased concentration and reduced balance sheet capacity
on the sell-side, and the fairly widespread incidence of
historic misconduct in some recent cases;
• a potential tension between moving business to send a clear
signal on conduct standards and the need to maintain
relationships with a range of counterparties to ensure best
execution in accordance with fiduciary duties, sometimes
combined with the fear of possible retaliatory action;
• reported difficulties of detecting when abuse or misconduct
had occurred, due to limited post-trade transparency in
some FICC markets, and the investment needed to develop
appropriate monitoring tools;
• limited incentives on buy-side firms to monitor misconduct
actively, given the limited share of transaction costs in their
overall cost base, the linking of fund management fees to
performance against industry-wide benchmarks, and/or
limited pressure from end-investors to investigate such
practices;(1) and
• the possibility that some on the buy-side might be subject
to conflicts between their clients’ interests and their
relationship with their sell-side counterparties.
50 Taken together, these explanations suggest that there are
serious grounds for concern that bilateral market discipline is
not providing a sufficiently powerful check on market
misconduct.
51 Some respondents to the consultation suggested that
there might be room for greater co-ordination by the buy-side
on this issue, for example via relevant committees of buy-side
trade associations. Some reported increased activism by some
end-investors, who were asking fund managers to sign up to
their own codes of conduct. And obligations on firms to
report suspect transactions to the FCA will shortly be
extended to a wider range of FICC markets as discussed in
Section 6.3.4.
52 The Open Forum to be held at the Bank of England in
Autumn 2015 will provide an opportunity to discuss more
innovative ways in which market discipline might be improved
over time. The Review’s recommendations have nevertheless
been informed by the current perceived weakness of market
discipline. If firms and their staff fail to take those
opportunities, more restrictive regulation is inevitable.
2.4.3 Catalysing market-led reform that may be held
back by co-ordination failures
53 In some cases the main impediment to changes in market
structure may be the absence of a ready means for users to
co-ordinate on a preferred way forward. For example, like
37
other forms of network, potential users of a new all-to-all
platform may only be willing to incur the cost of joining if they
know that others will also do so, in particular those willing to
provide liquidity. Differences of view about preferred
technologies or trading protocols may impede that process.
Although the co-existence of a large number of rival products
can be healthy in terms of innovation, the fixed costs of
evaluating and connecting to multiple platforms can be
prohibitive, particularly for smaller market participants and
the buy-side. And the consequences in terms of fragmented
liquidity may impede the development of a viable
marketplace.
54 Wide adoption of all-to-all trading may be facilitated by
OTC bilateral and all-to-all trading running jointly and in
parallel in some markets. For example, some venues are
offering all-to-all trading platforms alongside dealer-to-client
and dealer-to-dealer options with the intention of
encouraging market makers to participate on new platforms,
helping them gain critical mass. The extent to which market
makers deal on all-to-all venues will be influenced by the
trading revenue that they can earn from participation on such
venues, the ownership structure or sharing of revenue (subject
to ensuring venue neutrality), and the extent to which the
buy-side use such venues.
55 In other cases, realising the full economic benefits of
secondary markets may require agreement on more
fundamental changes to the nature of the underlying assets,
and particularly the degree of their standardisation (illustrated
in Table A). Standardisation, by concentrating liquidity,
removing bespoke features and aligning terms may make
instruments more amenable to all-to-all trading, benefiting
secondary market function and pricing. Initiatives in FICC
derivatives markets show that standardisation can be
market-led. For example, in 2009 the International Swaps
and Derivatives Association (ISDA) oversaw industry-wide
standardisation of single-name CDS contracts and
conventions, including through: centralising decisions over
credit events; reducing the number of restructuring clauses;
and establishing fixed coupons and standardised accruals
(which facilitates netting of derivative positions). And in 2013
ISDA published standardised interest rate swap confirmation
and terms (so-called ‘Market Agreed Coupon’ or MAC swaps).
Standardisation can also have advantages in non-derivative
markets, as seen for example with the establishment of large,
highly liquid benchmark issues in government bond markets,
including gilts.
(1) Consistent with this, the FCA noted in its recent Wholesale Sector Competition
Review that end-investors may not be able to assess effectively whether they are
getting value for money from asset managers and that asset managers may not have
sufficient incentives or ability to control costs incurred along the value chain. See
www.fca.org.uk/news/fs15-02-wholesale-sector-competition-review-2014-15.
38
Fair and Effective Markets Review Final Report Section 2
56 Corporate debt instruments typically remain less highly
standardised. Although some of the largest issuers of
corporate bonds have followed the lead of governments and
also concentrated issuance in a small number of maturities, in
general corporate bond markets remain highly heterogeneous.
That reflects a deliberate choice by issuers, who value being
able to choose the terms of their debt to match both their
underlying cashflows and the requirements of investors (who
often want to match the bonds against their own liabilities
and hold them to maturity). The consequence of this is that
secondary market liquidity in many corporate bonds can be
very low, with turnover often falling to near-zero at times.
59 To be effective, discussions would need to take place
across a broad range of market participants and end-users,
catalysed as appropriate by public authorities — as suggested
by the Market Practitioner Panel and Association of Corporate
Treasurers (ACT) in their responses to the Review’s
consultation. The Bank of England recently suggested a
possible process for collective consideration of principles for
standardisation of terminology, documentation, settlement
and trading protocols in its response to the European
Commission’s Green Paper on Capital Markets Union.(1)
57 This state of affairs may suit the interests of traditional
issuers and investors. Responses to the Review’s consultation
and outreach, in particular from corporate issuers, were
strongly opposed to the centrally-mandated standardisation
of bond terms. Respondents said they saw no case for being
required to issue debt less well-suited to their cashflow needs
in return for benefits in terms of the ability to trade in
secondary markets that were seen as likely to be modest at
best. That view may have been strengthened by the currently
very favourable market conditions for debt issuance. The lack
of greater standardisation does however have a number of
consequences. First, thin secondary market liquidity can make
it harder to price new issuance effectively and may lead to
higher issuance costs. Second, it may impede the ability, or
raise the costs, of smaller and medium sized firms bringing
their debt to market. And, third, it may be impeding the
development of a richer investment base, not least by holding
back the development of alternative trading venues.
58 The Review has concluded that there is no case for
enforced standardisation. But there is a case for a richer and
better informed market-wide debate about the costs and
benefits of alternative market-led solutions. A fuller
assessment would need to examine, among other things, the
extent to which standardisation could broaden the investor
base and lead to greater secondary market activity, the likely
impact of this on issuers’ pricing, and how these factors may
change as interest rates normalise. It could consider how
standardisation might interact with recent innovations that
seek to reduce the trading costs for less standardised or illiquid
instruments (as discussed in Box 5). And it could consider the
different dimensions that standardisation might take place
across, including: documentation (including prospectuses);
the minimum size and increments of issuance; re-opening (or
tapping) of existing bonds to concentrate issuance into a
smaller number of large benchmarks; standardising terms
(such as ‘make-whole’ call options) and settlement and
trading protocols; and aligning coupon and payment dates
with those on derivative instruments. Some of these may be
more amenable to market-led change than others.
2.5 Tackling new and emerging structural
conduct risks
60 Innovation in FICC markets is welcome, and some of the
new technologies described in the previous section and Box 5
may offer material gains in terms of fairness and effectiveness.
However, they may also create opportunities for new forms
of misconduct, and change the nature of trading and risk
sharing.
61 Many of these issues have already been experienced in
other markets. And some regulatory steps have already been
taken. For example, MiFID2 will introduce a range of new rules
on algorithmic and high frequency trading, which aim to
improve the stability of markets and reduce opportunities for
unfair practices. All firms employing algorithmic trading
techniques will be required to apply robust systems and
controls and keep audit trails on all placed orders. Those
algorithmic traders employing ‘market-making’ strategies will
be required to remain in the market for fixed proportions of
the trading day. Firms employing high frequency trading
strategies, based on latency (the speed at which information is
processed and trades are executed), will also require specific
authorisation by regulators. A range of obligations will apply
to trading venues, including the introduction of circuit
breakers, minimum tick sizes and caps on the number of
unexecuted orders that participants may place. And venues
will also be subject to requirements to ensure that their fee
structures do not contribute to disorderly trading or market
abuse.
62 However, while these rules will apply to many FICC
instruments and should help improve the fairness and
effectiveness of those markets, not every instrument is
covered (for example, spot FX). In addition, new
vulnerabilities may emerge in the future. The Review
therefore recommends that greater attention be given to
these issues in coming years, both by market participants and
by the authorities. The precise nature of these vulnerabilities
will depend on asset types and trading structures, but
particular areas for attention include:
(1) See page 11 of www.bankofengland.co.uk/financialstability/Documents/cmu/
greenpaperesponse.pdf.
Fair and Effective Markets Review Final Report Section 2
Box 6
The 15 January 2015 events in FX markets
As shown in Figure 1, the majority of spot and forward FX
trading now takes place on electronic platforms — including
single-dealer, multi-dealer and all-to-all venues. This has
contributed to broadening market access, improving choice,
reducing costs and enhancing transparency. But high-speed
electronic financial markets can also be vulnerable to new
risks. Some of these vulnerabilities were highlighted by the
events on 15 January 2015 — when the Swiss National Bank
(SNB) removed the official ceiling on the exchange rate
between the euro and the Swiss franc(1) — though it is also
clear that no market structure would have emerged unscathed
from such an event, given the size and unanticipated nature of
the adjustment.
The first vulnerability highlighted was the speed with which
firms can accumulate losses when they depend on
automated high frequency pricing algorithms to make
markets. A number of banks reported significant losses on
trades following the announcement, as large exchange rate
movements occurred between the time that orders were filled
on systems serving clients and the time the resulting risk
positions were offset (typically on the electronic
communication networks (ECN) that sit between market
makers in the FX market). These losses may have been
exacerbated by the potential pricing inflexibility of some
automated models used to transact with clients.
The second vulnerability highlighted was that a multiplicity of
prices displayed on-screen is not always a guarantee of
continuously executable liquidity. A number of banks
• Algorithmic trading may reduce the scope for misconduct
along one dimension (by reducing the scope for human
discretion in trading decisions) but may also create risks to
the effectiveness of markets, as recently discussed for
example by Simon Potter of the Federal Reserve Bank of
New York.(1) No market structure could reasonably have
expected to have emerged unscathed from the volatility
that followed the Swiss National Bank’s removal of the
Swiss franc peg In January 2015. But the response of the
FX markets nonetheless highlighted some of the ways in
which the authorities’ understanding of market behaviour is
likely to have to adjust with the increased use of electronic
trading strategies, as discussed in Box 6.
• Further reductions in latency may also require innovative
tools to ensure fairness for all participants. Firms that invest
in faster trading technologies are likely to benefit from
better execution. This is not a new development, and is
often consistent with competition on the basis of merit.(2)
39
suspended trading on their main single dealer FX platforms
when exposures from selling uncovered Swiss francs exceeded
stop loss limits or other safeguards. A short time later,
liquidity also became impaired in the interdealer market as the
suspension of trading on single dealer platforms interrupted
the flow of price data upon which ECNs can depend. When
liquidity on ECNs became thinner, it is possible that the pricing
algorithms used by banks further adjusted to reflect declining
ability to hedge positions in the interdealer market.
Interdependencies in the price formation process in high speed
electronic markets might have given rise to feedback loops
which further accelerated the speed at which liquidity dried up
across all types of electronic trading venues.
Finally, more diverse markets may be more resilient —
electronic platforms may need support from other trading
mechanisms in order to recover liquidity following a
substantial shock. After approximately an hour, liquidity
progressively improved in the euro/Swiss franc market,
beginning when market users reverted to more traditional
methods of sourcing of liquidity such as voice trading.(2) This
might also have helped stabilise ECNs, where liquidity
recovered and trading volumes increased over the course of
the day. That market participants were able to trade again
more or less normally within an hour after the SNB’s
announcement shows the resilience of the foreign exchange
market. But it also highlights the importance of diversity in
trading methodologies.
(1) See www.snb.ch/en/mmr/reference/pre_20150115/source/pre_20150115.en.pdf.
(2) See www.bankofengland.co.uk/publications/Documents/quarterlybulletin/
2015/q1.pdf, page 79 for more details on these events.
But as the Market Practitioner Panel noted in its
consultation response, the costs of some new technologies
risk creating barriers to entry. Alongside the regulatory
requirements of MiFiD2, part of the answer may lie in new
trading approaches such as ‘heartbeat’ matching (where
orders are matched at pre-determined intervals), periodic
auctions or ‘speed bumps’ (randomised delays which provide
incentives for high frequency trading only up to a point)
which in a variety of ways aim to refocus competition on
price rather than solely on latency.
• While the emergence of multiple platforms may increase
choice it may also impose costs, including the cost of the
technology needed to connect to multiple venues. There is
(1) www.newyorkfed.org/newsevents/speeches/2015/pot150413.html.
(2) For example, the FCA wholesale sector competition review 2014–15 found that
co-location (the practice of trading venues enabling firms to place their servers close
to the trading venue) was generally welcomed by respondents who noted that it has
levelled the playing field for market participants requiring reduced latency.
Fair and Effective Markets Review Final Report Section 2
40
scope for such developments to occur in a range of
FICC markets, including those with lower levels of
secondary market trading such as corporate bond markets.
• Innovations in trading technology can also lead to the
proliferation of order types and related incentive structures.
Fees and rebates may incentivise certain types of trading
behaviour which are inconsistent with fair and effective
markets and may create scope for misconduct.
63 The proposed FICC Market Standards Board (FMSB)
(described in Section 4.3.2) could play an important role in
highlighting such risks and identifying potential solutions in
terms of market practice standards. Given the vibrant pace of
technological innovation in fixed income markets, a
‘White Paper’ on the opportunities and challenges posed by
these technologies from a conduct perspective would be
particularly timely. The authorities will also continue to flag
risks that they identify in the course of their regulatory,
market operations and wider market intelligence activities.
Fair and Effective Markets Review Final Report Section 3
41
3 FICC benchmarks: achieving robust
global standards
3.1 Where was fairness and effectiveness
deficient?
1 Many recent misconduct cases in FICC markets involved
attempts to manipulate key benchmarks. Benchmarks play a
particularly important role in many FICC markets, because the
combination of periodic illiquidity and/or a predominantly
bilateral trading model means they lack a single, widely
available, real-time traded market price. In such markets,
benchmarks that aggregate disparate prices or quotes can
therefore help to reduce information asymmetries between
dealers and the buy-side, and provide crucial reference rates
for use in financial contracts. That in turn helps to encourage
market participation by a wide range of less informed agents,
lowers transaction costs and enhances liquidity, improving the
effectiveness of these markets.(1)
2 Given those public good characteristics, attempts at
benchmark manipulation can have significant social costs.
Responsibility for that misconduct lies in the first instance
with the individuals and firms involved. However, recent
misconduct also highlighted key vulnerabilities in the design
and governance arrangements of FICC benchmarks. In many
cases, those vulnerabilities can be traced back to design
decisions originally made in an attempt to compensate for a
lack of centrally available prices in over-the-counter
(OTC) markets. But the arrangements that may have once
been adequate for relatively small-scale usage failed to keep
pace with the significant increase in scale and diversification of
their usage and developments in the underlying markets. This
created opportunities for abuse or misconduct that were
unlikely to have been as evident when the benchmarks were
first created. Three specific examples illustrate this point:
(i) An important vulnerability with Libor was its
submission-based design. That was originally introduced
to deal with periodic illiquidity in the underlying
unsecured interbank market. However, as the unsecured
interbank market became progressively thinner during the
crisis, submissions to the benchmark became increasingly
reliant on judgement rather than transactions, and thus
more vulnerable to attempted manipulation by panel
banks. Compounding this vulnerability, the use of Libor
had broadened over time from credit products (eg loans
and money market instruments) into much larger interest
rate derivatives markets (such as swaps, options and
forwards), even though a substantial part of this market
would arguably have been better served with a near
risk-free reference rate, rather than one incorporating
bank credit risk. This widening of use exacerbated
conflicts of interest within panel banks, and some
misconduct cases involved inappropriate influence being
exerted on Libor setters by their bank’s derivatives traders,
who had incentives to attempt to move the fixing in order
to profit from contracts referencing the benchmark. The
attempted manipulation of Libor, Euribor and other
interbank rates affected every major financial centre and
has so far resulted in total fines on institutions of around
US$9 billion by US, UK and European regulators.
(ii) In the foreign exchange market, the key WM/Reuters
(WM/R) benchmarks are, at least for the most widely used
currencies, based on actual trades, supported by
executable bids and offers extracted from electronic
trading systems. Their design vulnerabilities were
therefore quite different in nature from Libor. Instead, it
was the combination of a narrow one-minute calculation
window and the practice of netting off agency trades
ahead of the 4pm WM/R FX fix, originally undertaken to
mitigate balance sheet risks, which gave traders (in
collusion with traders at other firms) a tool to attempt to
manipulate market prices. Fines of more than
US$10 billion have been imposed on seven banks by
global regulators to date.
(iii) Several precious metals benchmarks, including the Gold
and Silver fixes based in London, were historically
calculated using an auction undertaken via a conference
call of participating members. However, this process
lacked sufficient transparency and relied on a small
number of contributors, which meant there was greater
potential for any given trader to influence the fix. This
vulnerability crystallised in the gold market, when the
Financial Conduct Authority (FCA) fined one firm
£26 million after an options trader deliberately placed
orders during the fixing window with the intent of
manipulating the benchmark below a certain price to
avoid having to make a payment to one of the bank’s
customers.(2)
(1) See Duffie and Stein (2014), ‘Reforming Libor and Other Financial-Market
Benchmarks’, and Duffie, Dworczak and Zhu (2014), ‘Benchmarks in Search Markets’,
for further analysis of the role of benchmarks in OTC markets.
(2) www.fca.org.uk/news/barclays-fined-26m-for-failings-surrounding-the-london-goldfixing.
42
Fair and Effective Markets Review Final Report Section 3
Box 7
Implementation of the Review’s August 2014
benchmark recommendations
• WM/Reuters London 4pm Closing Spot Rate, the
dominant global foreign exchange benchmark;
In August 2014, as an interim output, the Review
recommended to HM Treasury that the scope of the
UK regulatory framework for benchmarks originally
implemented in the wake of the Libor misconduct scandal
should be extended to cover the following seven major
UK-based FICC benchmarks:(1)
• SONIA (Sterling Overnight Index Average) and RONIA
(Repurchase Overnight Index Average), key reference rates
for overnight index swaps in sterling;
• LBMA Gold Price (formerly the London Gold Fixing) and
the LBMA Silver Price (formerly the London Silver Fixing),
which determine the price of gold and silver in the London
market;
3 In principle, these design weaknesses could have been
managed by effective controls within firms on (a) the
governance of benchmark submissions and (b) acceptable
trading practices around fixes. In many cases, however, those
controls were absent or ineffective. Similar issues applied in
terms of benchmark administrators, who in several cases failed
to ensure that their fixing methodologies, internal controls,
transparency and governance arrangements were appropriate.
Those weaknesses were further compounded by a lack of
effective market discipline from users of benchmarks, who
appear in some cases to have been unable or unwilling to
ensure that they were using benchmarks that were fit for
purpose. In part, that reflected a lack of alternative
benchmarks and/or a lack of transparent data or information
from administrators on how benchmarks were constructed.
3.2 What has already been done to put this
right?
4 In light of these weaknesses, there has been concerted
action, both in the United Kingdom and internationally, to
reform the design and regulation of key FICC benchmarks.
Initiatives in the United Kingdom
5 A framework of legislation for financial market benchmarks
was introduced in the United Kingdom following the 2012
Wheatley Review of Libor.(1) The legislation subjected
administrators of, and submitters to, specified benchmarks to
a number of regulatory requirements to ensure the integrity of
the submission process, including the identification of
potential conflicts of interest and the implementation of
robust governance and oversight arrangements.(2) Authorised
• ICE Brent Index, the crude oil futures market’s principal
financial benchmark; and
• ICE Swap Rate (formerly known as ISDAFIX), the principal
global benchmark for swap rates and spreads for interest
rate swap transactions.
After public consultation, the UK Government accepted the
Review’s recommendations, and the legislation became
effective on 1 April 2015, meaning that these benchmarks are
now subject to FCA authorisation and regulation and it is a
criminal offence to manipulate them. This represents an
important additional step in ensuring consumers and market
participants are protected against the risks associated with
major UK benchmarks.
(1) www.bankofengland.co.uk/markets/Documents/femraug2014.pdf.
firms may face a range of sanctions if they breach any of the
FCA’s rules and principles — including financial penalties,
suspensions and censures. The Financial Services Act 2012
also introduced a new criminal offence of manipulating a
‘relevant benchmark’: individuals found guilty face up to
seven years in prison.
6 This legislation was initially applied to Libor, reflecting its
systemic importance in financial markets. It was subsequently
extended to seven other benchmarks, following a
recommendation from this Review (see Box 7).
7 The administrators of many of the regulated benchmarks
have introduced, or are in the process of introducing,
important methodological improvements, complementing the
UK authorities’ actions to bring the benchmarks into the scope
of regulation. These changes, described in more detail in
Table B, include: moving from submission to
transactions-based structures wherever possible; broadening
the range of transactions on which benchmarks are based
(including through widening fix windows); expanding the
number of contributors; introducing more transparent pricing
methodologies (including auctions); and enhancing fall-back
provisions where primary input data are insufficient or
unavailable. In addition, the Bank of England and the FCA are
in discussion with the Wholesale Market Brokers Association
regarding the future evolution of SONIA and RONIA. As part
of that initiative, the Bank has announced it will collect data
on sterling overnight deposit transactions from banks and
(1) www.gov.uk/government/uploads/system/uploads/attachment_data/file/
191762/wheatley_review_libor_finalreport_280912.pdf.
(2) Formally set out in the ‘MAR 8’ section of the FCA Handbook:
http://fshandbook.info/FS/html/FCA/MAR/8.
Fair and Effective Markets Review Final Report Section 3
building societies active in sterling money markets. These
data should play an important role in providing a firmer
foundation for an overnight unsecured benchmark in future.(1)
8 The ownership of several regulated benchmarks has passed
to new, dedicated administrators in recent years. These
administrators, whose business models seek to monetise the
value of benchmark data, have incentives to invest in the
systems, controls and governance required for regulated
benchmarks. However, the Review’s Market Practitioner Panel
noted in its consultation response that there was a risk that
benchmark administrators may also refuse to grant access to a
benchmark or charge unreasonable or discriminatory fees. In
response to similar concerns raised during its consultation on
the implementation of the Review’s 2014 benchmark
recommendations, the FCA launched a consultation in June
on a proposal to introduce a requirement for regulated
benchmark administrators to provide their regulated
benchmarks at fair, reasonable and non-discriminatory
(‘FRAND’) prices.(2)
9 Finally, as foreshadowed in its 2014/15 Business Plan, the
FCA is undertaking a forward-looking thematic review into
how firms can reduce the risk of traders manipulating
benchmarks. The review will assess whether firms have learnt
lessons from Libor and other recent misconduct involving
benchmarks, and assess the progress made within firms to
establish adequate controls on traders’ behaviour and activity,
in particular around the identification and management of
conflicts of interest. The FCA expects to report its findings in
Summer 2015.
Initiatives by international authorities
10 Following on from the reforms to Libor, an International
Organization of Securities Commissions (IOSCO) task force —
initially co-chaired by the FCA and the Commodity Futures
Trading Commission — developed and published in July 2013
an internationally agreed set of Principles for Financial
Benchmarks (the ‘Principles’) that apply to benchmark
administrators and submitters.(3) The Principles cover four
main areas:
• Governance: covering the integrity of the benchmark
determination process and conflicts of interest;
• Quality of the benchmark: covering benchmark design, the
importance of having robust input data and the
transparency of benchmark determinations;
• Quality of the methodology: covering the calculation
methodology of benchmarks, how such methodologies are
updated, and the role of submitters; and
• Accountability: covering complaint handling, auditing, and
co-operation with regulatory authorities.
43
11 IOSCO asked benchmark administrators to disclose the
extent of their compliance with the Principles publicly by
July 2014 and annually thereafter. In February 2015, it
published a review of implementation, based on the responses
to a questionnaire sent to an anonymised sample of
administrators of 36 benchmarks across a range of regions
and asset classes.(4) It also considered any information which
the administrators had published, such as statements
of compliance and methodologies. That review indicated
that widespread efforts had been made to implement the
Principles by the majority of the administrators surveyed.
However, the Task Force also concluded that further steps
might need to be taken by IOSCO in the future although it
was too early to determine what those steps should be (see
Section 3.3).
12 In a previous workstream, mandated by the G20, IOSCO
also published a set of principles for Oil Price Reporting
Agencies in October 2012 to enhance the reliability of oil price
assessments referenced in derivatives contracts.(5) In a
subsequent progress review,(6) IOSCO concluded that the four
principal price reporting agencies had made good progress to
date. A further update will be made in the second half of
2015.(7)
13 Complementing IOSCO’s work, the international
community also initiated reforms to improve the integrity of
some of the most significant global financial benchmarks in
the fixed income and foreign exchange markets.
14 First, in July 2014, an Official Sector Steering Group
convened by the Financial Stability Board (FSB) and chaired by
the FCA and the Federal Reserve Board published a report that
included two key recommendations to reform major interest
rate benchmarks.(8) The first recommendation was that
existing benchmarks based on unsecured bank funding costs
(including Libor, Euribor and Tibor) should be strengthened by
underpinning them to the greatest extent possible with
transactions data. In the United Kingdom, the administrator
of Libor, ICE Benchmark Administration, plans to launch a
formal consultation in Summer 2015 on detailed proposals to
implement this (as outlined in Table B). The administrators of
Euribor (the European Money Markets Institute) and Tibor (the
Japanese Bankers Association) are taking similar steps to
strengthen those benchmarks. Australia, Canada, Hong Kong,
Mexico, Singapore and South Africa are also reforming their
equivalent rates.
(1) See Salmon (2015), ‘Remarks given at the first meeting of the Working Group on
Sterling Risk-Free Reference Rates’;
www.bankofengland.co.uk/publications/Documents/speeches/2015/speech811.pdf.
(2) www.fca.org.uk/your-fca/documents/consultation-papers/cp15-18.
(3) www.iosco.org/library/pubdocs/pdf/IOSCOPD415.pdf.
(4) www.iosco.org/news/pdf/IOSCONEWS368.pdf.
(5) www.iosco.org/library/pubdocs/pdf/IOSCOPD391.pdf.
(6) www.iosco.org/library/pubdocs/pdf/IOSCOPD448.pdf.
(7) In collaboration with the International Energy Association, International Energy
Forum and the Organization of Petroleum Exporting Countries.
(8) www.financialstabilityboard.org/wp-content/uploads/r_140722.pdf.
Wholesale Market
Brokers’ Association
ICE Benchmark
Administration
ICE Benchmark
Administration
Thomson Reuters
SONIA, RONIA
ICE Swap Rate
(previously
ISDAFIX)
LBMA Gold Price
(previously the
London Gold Fix)
LBMA Silver Price
(previously the
London Silver Fix)
WM/Reuters 4pm WM Company
London Closing
Spot Rate
• A meaningful increase in transaction volumes will enhance
robustness and reduce risk of manipulation.
• Plans to expand the range of eligible transactions that form SONIA to include bilateral as well as
brokered trades, through direct data collection from UK banks and building societies active in
sterling money markets.
• New calculation process is more transparent and independently
administered.
• Reduces ease of manipulation or collusion.
• Expanded the number of direct participants currently involved in contributing to the price from
three to six.
• Reduces ease of manipulation or collusion.
• New calculation process is more transparent (aggregated bids and
offers are published on-screen in real-time) and independently
administered.
• Transitioned on 15 August 2014 (previously a conference call based auction methodology) to an
electronic auction process.
• Expanded the number of direct participants involved in contributing to the price from four to
seven.
• Transitioned on 20 March 2015 to an electronic auction process (previously a conference call
based auction methodology).
• Transitioned on 1 April 2015 to a rate based on tradable quotes sourced from regulated electronic • Benchmark calculation no longer requires use of subjective or expert
trading venues (previously a submission-based rate, using inputs from a panel of banks).
judgment.
• Increases the transparency of the rates that determine the
benchmarks.
• Increases the range of FX trades captured during the fixing window,
giving a more representative and resilient fix.
• Reduces opportunities for manipulation.
• The rates, volumes and trade times of individual brokered trades used to determine the
benchmark were made publicly available from 30 April 2015.
• On 15 February 2015 the administrator widened the window used to calculate benchmark rates
from 1 to 5 minutes, and incorporated more trade and order data feeds into the benchmark
calculation.
• implement a ‘waterfall’ of calculation methodologies (transactions,
interpolation/extrapolation, and then expert judgement).
• Administrator launched a consultation in October 2014, and will publish a further consultation in • Should increase the extent to which the benchmark is underpinned by
actual transactions, reducing the need for subjective or expert
Summer 2015, on proposals to:
judgement, and thus reducing opportunities for manipulation.
• expand the range of transactions eligible to be used as the basis of submissions to include a
• Waterfall approach will help to underpin the availability of the rate,
wider range of funding sources and counterparties;
including in times of market stress, by addressing the risk of low
transaction volumes.
• allow submitters to take account of all transactions that have occurred since their Libor
submission on the previous day (not just those that occur around 11am each morning); and
ICE Benchmark
Administration
Libor
Benefits from the changes
Methodology changes (implemented or planned)
Current administrator
Benchmark
Table B Recent improvements in the design of UK-based FICC benchmarks
44
Fair and Effective Markets Review Final Report Section 3
Fair and Effective Markets Review Final Report Section 3
45
15 The Group also recommended that alternative near
risk-free reference rates, better suited to certain financial
transactions (including many of those involving derivatives),
should be developed to improve market choice. In response,
the Federal Reserve has initiated a committee of market
participants to identify a set of suitable near risk-free rates for
dollar markets and formulate a suitable adoption and
implementation plan.(1) The Bank of England has launched a
similar initiative for sterling markets,(2) as have the Bank of
Japan and the Japanese Financial Services Agency for yen
markets.(3) Other international authorities are also developing
implementation plans. Progress in implementing these
recommendations is being monitored by the FSB; an interim
report will be published in July 2015 and a further progress
report is planned for July 2016.
deemed ‘critical’. It will also address the treatment of
benchmarks produced outside the European Union
(third-country benchmarks), allowing their use in the
European Union only if equivalence conditions are met. In
their deliberations, the Council of the European Union and the
European Parliament have suggested supplementing the
European Commission’s original equivalence requirement with
recognition and endorsement regimes through which
individual third country benchmarks can continue to be used if
full equivalence cannot be determined.(6)
16 Second, the FSB Foreign Exchange Benchmark Group
(FXBG), co-chaired by the Reserve Bank of Australia and the
Bank of England, published fifteen recommendations in
September 2014 relating to: the calculation methodology of
the WM/R benchmark; market infrastructure for the
execution of fix trades; the behaviour of market participants
around the time of the WM/R benchmark; and the production
of central bank reference rates.(4) Good progress has been
made in implementing a number of the recommendations:
enhancements have been made to the WM/R benchmark (see
Table B); there are a number of initiatives in the marketplace
to provide independent fix execution and netting; and foreign
exchange committees around the world published a shared set
of global principles covering trading in FX markets in
March 2015 (see Section 4.2).
21 In addition to weaknesses in benchmark design and
governance, recent misconduct also highlighted uncertainties
over acceptable trading practices around fixes. A number of
bodies have been considering ways in which the robustness of
these practices might be improved. For example, the
US Treasury Market Practices Group formed a working group
in 2014 to improve understanding of the use of a range of
reference rates in the US Treasury, agency debt and agency
MBS markets and consider potential best practices that could
apply to market activity related to these benchmarks.(8)
Trading practice around benchmarks would also be an
important topic for the new FICC Market Standards Board
proposed by the Review (see Section 4.3.2).
17 However, the FXBG has noted that there is still scope for
further progress in some areas, particularly the pricing and
execution of the fix business within institutions.(5) The
regional foreign exchange committees have therefore been
asked by the FSB to report on progress in implementing these
recommendations in their jurisdictions by 31 July 2015, and
the FSB will then publish an assessment of progress ahead of
the G20 Leaders’ Summit in November 2015.
18 Third, to inform both of these FSB workstreams, IOSCO
completed reviews of the progress made by Libor, Euribor,
Tibor and the WM/R 4pm Closing Spot Rate against the
IOSCO Principles.
19 Finally, work is ongoing in the European Union to develop
legislation to regulate the provision of benchmarks in the
European Union. The legislation is currently being considered
by the European Parliament and the Council of the
European Union, and once this legislation comes into force, it
will replace the UK regulatory framework (but not the
UK criminal framework). The proposed Regulation is expected
to cover all benchmarks administered in Europe that are
referenced in financial contracts and instruments, with
additional requirements reserved for benchmarks that are
20 The manipulation and attempted manipulation of
benchmarks will also be covered as a civil offence under the
EU’s Market Abuse Regulation (which will apply from
July 2016).(7)
3.3 Where are the remaining gaps?
22 The workstreams described in Section 3.2 represent a
substantial package of reform by public authorities and firms
globally, and should, once completed, bring about a material
improvement in the fairness and effectiveness of benchmarks
used in FICC markets. That message was strongly endorsed in
responses to the Review’s consultation. Nonetheless, there
are two key areas where the Review recommends that
additional steps be taken.
3.3.1 Maintaining the push towards compliance with
the IOSCO Principles
23 The IOSCO Principles provide a strong framework within
which to achieve acceptable benchmark standards
(1)
(2)
(3)
(4)
(5)
www.newyorkfed.org/arrc/.
www.bankofengland.co.uk/publications/Documents/speeches/2015/speech811.pdf.
www.boj.or.jp/en/paym/market/sg/index.htm.
www.financialstabilityboard.org/wp-content/uploads/r_140930.pdf.
See the speech by Guy Debelle, (Assistant Governor (Financial Markets) of the Reserve
Bank of Australia) on 12 February 2015; www.bis.org/review/r150213c.htm.
(6) The precise criteria for designation as a ‘critical’ benchmark and the details of the
equivalence, recognition and endorsement regimes remain under negotiation.
(7) Box 21 in Section 6 summarises the scope of the civil and criminal market abuse regimes
in the United Kingdom.
(8) See meeting minutes from June 2014 onward, available at
www.newyorkfed.org/TMPG/meetings.html.
46
Fair and Effective Markets Review Final Report Section 3
internationally. The progress that many benchmark
administrators have made toward implementing these
standards, as highlighted in the recent assessment by IOSCO,
is therefore welcome.
FICC benchmarks are used, and the purposes for which they
were designed. For example, recent FSB reports highlighted:
24 However, further effort is needed to ensure that the
Principles are more consistently implemented, a point noted
by many respondents to the Review’s consultation. IOSCO’s
implementation report highlighted that progress varied
significantly by asset class (Chart 3). The quality of the
published disclosures was also variable, with some statements
less than a page long. Less than half of the fixed income and
commodities benchmark administrators surveyed reported full
or broad compliance. By comparison, almost all equity
benchmark administrators reported that they met these
standards. In part, that difference may reflect the fact that
around a third of the commodity and fixed income
benchmarks reviewed had either recently transitioned to a
new administrator, or were in the process of doing so. By
contrast, there were no examples of transition with the equity
benchmarks reviewed. Many affected administrators stated
that they would be conducting assessments of compliance
once the transition was complete.
Steps towards compliance
Chart 3 Steps towards compliance and detail of
compliance statement for the benchmarks reviewed
by IOSCO
Detail of statement of compliance
Equity Benchmark
Commodity Benchmark
Fixed Income Benchmark
Alternative Benchmark
Source: IOSCO Review of the Implementation of IOSCO’s Principles for Financial Benchmarks
(February 2015).
25 The Review welcomes IOSCO’s work to raise the standards
of benchmark administrators to those set out in the IOSCO
Principles, and recommends that :
• 4c: the IOSCO Task Force on Financial Benchmarks
should consider exploring ways to ensure that more
consistent self-assessments against the benchmark
Principles are published by administrators.
3.3.2 Clarifying the role and responsibilities of
benchmark users
26 As noted in Section 3.1, there can be sometimes quite
marked mismatches between the purposes for which specific
• that the users of some financial instruments (for example,
most cleared interest rate derivatives) would have been
better served if the instrument had been priced using a
risk-free or near risk-free reference rate, rather than one that
incorporated a bank credit risk component (like Libor); and
• that asset managers, including those who passively tracked
benchmarks, might not be getting best execution by
transacting at the FX fix.
27 There are a number of reasons why users of FICC markets
might have chosen benchmarks that were imperfectly
matched with their risk exposures, or exposed them to higher
costs. In some cases, the potential mismatch may not have
been particularly evident, given the sometimes limited
transparency over benchmark methodologies in the past. In
other cases, better matched alternatives may simply not have
been available, or transition costs may have been judged too
high.
28 Proactive user engagement is nonetheless critical to the
successful completion of ongoing reforms. In particular,
appropriate due diligence from benchmark users can help to
facilitate market discipline by encouraging competition and
innovation among benchmark administrators. Examples
include: where asset managers or financial advisors, acting as
fiduciaries, exercise discretion in selecting a market index as a
performance reference for a fund; where index providers use
rate fixings in their calculation of market indices; or where
asset managers elect to place orders with broker dealers at
fixing levels.
29 The IOSCO Principles provide valuable guidance for
benchmark administrators and submitters. However, they do
not provide any guidance for users. The Review therefore
recommends that:
• 4c: the IOSCO Task Force on Financial Benchmarks
should review the use of benchmarks and consider
supplementing its work on the Principles with a set of
guidance for users of benchmarks.
30 This could cover, for example, the need for users to:
• regularly review whether benchmarks being used are well
suited to the user’s requirements, and in particular that the
characteristics of the benchmark appropriately match the
risk profile of the underlying assets or liabilities;
• have robust contingency plans to deal with the potential
interruption or discontinuation of a benchmark, including
through fall-back provisions;
Fair and Effective Markets Review Final Report Section 3
47
• conduct appropriate due diligence on transactions executed
at benchmark fixes in order to satisfy best execution
requirements;
ESMA/EBA Principles for Benchmark-Setting Processes in the
EU(1) and ESMA’s UCITS guidelines regarding benchmark use
that apply to relevant asset managers in Europe.(2)
• take an active interest in the design and ongoing
development of benchmarks being used (eg through
providing feedback on public consultations by benchmark
administrators, and through participation on user and
oversight committees, as appropriate); and
32 Finally, the Review’s Market Practitioner Panel also
suggested the creation of a global database of
FICC benchmarks. This could centralise information relating
to: administrators; level of IOSCO compliance; nature of the
benchmarks; and metrics on their usage. Although some large
firms already compile aspects of these data relevant to their
own businesses, a widely accessible database could have
material public benefits in assisting benchmark users in
undertaking adequate due diligence on the benchmarks they
use, supporting the aims of the recommendation to IOSCO
above. The Review would welcome market-led initiatives to
take this idea forward.
• consider whether the administrators of benchmarks being
used have taken appropriate steps to comply with the
IOSCO Principles.
31 The work could usefully build on examples of existing
guidance highlighted by some of the respondents to the
Review’s consultation, including the guidance for users in the
(1) www.esma.europa.eu/system/files/2013-659_esma-eba_principles_for_benchmarksetting_processes_in_the_eu.pdf.
(2) www.esma.europa.eu/content/Guidelines-ETFs-and-other-UCITS-issues.
48
Fair and Effective Markets Review Final Report Section 4
4 Improving standards of market
practice in FICC markets
1 As set out in Section 2, many wholesale FICC markets
remain based around over-the-counter (OTC) market makers,
trading as principal. This model has a number of advantages
for end-users, allowing them to trade in large sizes or in less
intrinsically liquid assets with a high degree of certainty. But it
also poses potential misconduct vulnerabilities in terms of
conflicts of interest, potential abuse of confidential
information and market manipulation. None of these are new
issues, and can potentially be well controlled through effective
conduct standards, allowing the benefits of the market maker
system to be retained. But if markets are to be fair and
effective, those standards need to be sufficiently clear, well
understood, up to date, and adhered to by market participants
— and there is evidence that at least some of those tests were
not met in some major OTC FICC markets in recent years.
More recently, some market participants have noted
heightened uncertainty about where appropriate standards lie,
potentially impairing the effectiveness of those markets.
2 FICC markets are now moving to a more diverse range of
trading structures, as discussed in Section 2. Some of those
structures may be less vulnerable to some of the misconduct
vulnerabilities posed by OTC markets. But they will pose
other, new challenges for market participants and regulators.
And the OTC model will continue to play an important role in
many FICC markets. This section sets out recommendations
for a range of international, market-led and regulatory actions
to ensure that FICC market standards keep pace with changing
market conditions and have stronger clarity and ‘teeth’,
allowing FICC markets to operate more fairly and effectively.
4.1 Where was fairness and effectiveness
deficient?
3 Many of the recent cases of FICC market misconduct
occurred in OTC markets. The November 2014 enforcement
actions highlighted multiple cases of attempted manipulation
in the OTC spot FX markets. And OTC derivatives were at the
heart of cases involving attempts to manipulate Libor, Euribor
and the London Gold Fix. Historically, OTC markets have been
subject to less intensive regulation for market abuse and other
forms of market conduct, for two reasons. First, it is harder to
define concepts such as market abuse when there are multiple
bilateral prices, rather than a single price as there is on a
centralised venue or exchange. For that reason, detailed
market abuse legislation has historically focused
predominantly on transactions that take place on regulated
exchanges. Second, the predominantly wholesale nature of
most OTC markets means there are fewer retail customers to
protect, and a stronger public interest in ensuring efficient
price discovery and liquidity.
4 Despite these considerations, most key OTC market
participants are nevertheless subject to considerable
regulatory oversight. In particular, all firms operating in the
United Kingdom and authorised by the FCA or the PRA are
subject to the Principles for Businesses(1) — including in
particular Principles 1 (‘a firm must conduct its business with
integrity’), 3 (‘a firm must take reasonable care to organise
and control its affairs responsibly and effectively, with
adequate risk management systems’) and 5 (‘a firm must
observe proper standards of market conduct’). These
Principles are regulatory rules which apply in relation to all
regulated activities, and to unregulated activities in other
limited circumstances. When engaging in regulated activities,
firms will also be subject to the overarching conflicts of
interest requirements in the FCA Handbook in their dealings
with clients and counterparties. For professional clients the
conduct of business rules, including client order handling and
best execution, may also apply. Conduct in a number of less
heavily regulated OTC markets is covered by the
principles-based guidance set out in voluntary market codes,
such as the UK Non-Investment Products (NIPs) Code,(2)
which applies to sterling, FX and bullion wholesale deposits,
and spot and forward FX and bullion.
5 All of the FICC market enforcement actions brought against
firms in the United Kingdom involved clear-cut breaches of
one or more of the Principles for Businesses. They also clearly
contravened the provisions in the NIPs Code, in markets where
that Code applied. At the same time, respondents to the
Review noted that, given the high level nature of both the
Principles and the provisions in the Code, the findings of the
enforcement cases provided only limited forward-looking
guidance to appropriate market standards in circumstances
involving less extreme forms of behaviour, or in areas not
covered explicitly by the enforcement findings. The high level
nature of these standards may also partly explain (though in
no way excuse) why firms in OTC markets appeared to do so
little to translate both formal regulatory requirements and the
content of market codes into operational internal guidelines
for traders. Market codes such as the NIPs Code also lacked
(1) https://fshandbook.info/FS/html/FCA/PRIN/2/1.
(2) www.bankofengland.co.uk/markets/Documents/forex/fxjsc/nipscode1111.pdf.
Fair and Effective Markets Review Final Report Section 4
effective mechanisms for ensuring signatories to the codes
adhered to their terms in practice.
6 There are strong reasons for maintaining a principles-based
approach to regulation, both in terms of allowing flexibility to
respond to changes in market structure and practice, and to
avoid the vulnerability of overly detailed rules to ‘gaming’
behaviour. Nonetheless, respondents to the Review felt that
there was a pressing need to identify more effective
mechanisms to deliver: (i) better ways to keep market
practices up to date as markets evolved; (ii) greater clarity and
understanding of market-wide standards for trading practices
in FICC markets; and (iii) stronger adherence by firms and
their staff to those standards. In some cases, this may require
formal regulation. But in many cases, the Review has
concluded that it needs to be guided or led by some
combination of market participants and regulators.
4.2 What has already been done to put this
right?
7 Conduct standards in UK and other European FICC markets
will be materially affected by the introduction of the Market
Abuse Regulation (MAR) in 2016, and the revised Markets in
Financial Instruments Directive and new Markets in Financial
Instruments Regulation (MiFID2) in 2017.
8 As set out in Box 3 in Section 2, MiFID2 is expected to have
a significant impact on the fairness and effectiveness of FICC
markets. Although many of the new measures target market
structure, the new regulatory framework will also affect the
application of conduct standards across FICC markets. The
creation of the new ‘Organised Trading Facility’ (OTF)
category, in particular, will help to address some of the
difficulties of applying conduct standards to OTC markets, by
creating a venue category that can accommodate some
current forms of OTC trading. For example, markets for
standardised derivatives and many liquid fixed income
instruments that were traditionally traded OTC are expected
to trade on OTFs in future, meaning that rules governing
trading venues will apply in those markets.
9 MiFID2 will also strengthen the conduct of business
framework for wholesale business, in particular regarding the
treatment of the most sophisticated market participants,
known as ‘eligible counterparties’. A new high level principle
will be introduced requiring investment firms to ‘act honestly,
fairly and professionally and communicate in a way which is
fair, clear and not misleading, taking into account the nature
of the eligible counterparty and its business’,(1) and
transactions with eligible counterparties will become subject
to certain client reporting requirements. The best execution
regime will also be enhanced by various measures including
new transparency requirements designed to provide greater
49
information on the quality of execution on venues. These
changes will serve both to strengthen conduct standards and
broaden the range of trading situations in which those
standards apply.
10 MAR will extend the coverage of market abuse provisions
in FICC markets. The new regime will apply to all instruments
traded on regulated trading venues, whereas current market
abuse provisions only apply to the narrower category of
instruments admitted to trading on regulated markets. In
practice, this means that a greater range of FICC instruments
will be covered. As set out in Box 21 in Section 6, the regime
will also widen the scope of offences where behaviour in
financial instruments affects spot commodity markets and
create a new civil offence of benchmark manipulation. Several
of the historic cases of misconduct in fixed income
instruments that were, at the time, outside the scope of
market abuse rules, would have been directly captured had the
new regime already been in force. That includes cases related
to Libor and repo rate manipulation,(2) a 2005 case involving
manipulation of government bonds,(3) and a 2012 case
involving inappropriate disclosure of sensitive information
relating to an unlisted corporate bond.(4) The EU Regulation
on Energy Market Integrity and Transparency (REMIT) has also
established market abuse standards for wholesale energy
markets.
11 Central banks have also begun the process of drawing up
more detailed common standards for FX, including spot
transactions which lie outside the scope of MiFID2, MAR and
other global securities regulation. The ‘Global Preamble:
Codes of Best Market Practice and Shared Global Principles’
was released by global FX committees in March 2015,(5) and
makes an important start in helping to improve the fairness
and effectiveness of foreign exchange markets. These
common principles cover personal conduct, confidentiality
and market conduct, and policies for execution practices, and
apply as an extension to the different national codes that
exist. Compared with most previous existing national FX
codes, the new standards are substantially clearer on what
constitutes acceptable and unacceptable behaviour in the
markets, especially on issues concerning the appropriate
handling of information, and trading, in relation to client
orders. They also aim to improve adherence, by including
provisions for firms to: embed relevant FX codes within
internal systems and controls; train individuals in their
understanding of the code; establish whistleblowing
procedures; and link remuneration to conduct.
(1) Article 30(1) of the Directive http://eur-lex.europa.eu/legal-content/EN/TXT/
PDF/?uri=CELEX:32014L0065&from=EN.
(2) For example, www.fca.org.uk/news/lloyds-banking-group-fined-105m-liborbenchmark-failings and https://www.fca.org.uk/your-fca/documents/finalnotices/2013/fca-final-notice-2013-rabobank.
(3) www.fsa.gov.uk/pubs/final/cgml_28jun05.pdf.
(4) www.fsa.gov.uk/static/pubs/final/nicholas-kyprios.pdf.
(5) www.bankofengland.co.uk/markets/Documents/forex/fxjsc/globalpreamble.pdf.
50
Fair and Effective Markets Review Final Report Section 4
12 Following publication of the Global Preamble, the Review
worked with representatives of the global FX Committees to
extend the work into a single, global FX code of conduct
standards and principles, with stronger tools for promoting
adherence. On 11 May 2015, the Bank for International
Settlements’ (BIS) Economic Consultative Committee
announced its intention to take this work forward, as part of
the wider official international effort on market conduct
co-ordinated by the Financial Stability Board.(1) Further details
are provided in Section 4.3.3.
15 The remainder of this section outlines three sets of
recommendations designed to meet these objectives. The first
is a set of common high level standards for trading practices
across FICC markets, written in language that can be readily
understood, which the Review recommends would be most
effective if developed and promulgated globally. The second
is a proposal for a permanent FICC Market Standards Board to
analyse and report on emerging conduct vulnerabilities,
address areas of uncertainty in specific trading practices,
promote adherence to standards and contribute to
international convergence of standards. And the third
supports the recently announced international initiative to
develop ambitious global standards for FX markets, and
proposes that these standards should be used to shape
UK market abuse legislation to promote effective adherence in
domestic markets. Recommendations to give market codes
greater ‘teeth’ by tying compliance to the Senior Managers
and Certification Regimes, and to enhance FICC market
training and qualifications are discussed in Sections 5.1 and 5.2
respectively.
4.3 Where are the remaining gaps?
13 The developments outlined above are likely to lead to
significant improvements to market practice. But the Review
has concluded that there is substantially further to go to
achieve the goals identified by respondents to the
consultation. In particular, further work is needed to:
(i) Provide better means of keeping market practices up to
date as markets evolve — more permanent market-based
mechanisms for scanning the horizon for potential new
risks and vulnerabilities, and responding to them, are
required;
(ii) Provide greater clarity and understanding of
market-wide standards for trading practices in UK FICC
markets — in some areas, the primary need is for wider
and clearer communication of existing standards in terms
that traders cannot claim to have misread or
misunderstood; in others (such as spot FX), there is scope
for greater specification of standards; some markets
would benefit from greater provision of ‘real life’ case
studies in areas where uncertainties are genuinely large
and potentially detrimental to the effective operation of
those markets; and there should be more effective
training and qualifications; and
(iii) Develop stronger adherence by firms and their staff to
relevant standards — firms need to develop more
effective processes to fulfil their internal responsibilities
and ensure adequate incentives and controls; and there
need to be more effective formal and informal
mechanisms to ensure standards have ‘teeth’.
14 These considerations apply to some degree across all
markets, but in different ways. In regulated markets,
ownership of standard setting and enforcement of those
standards lies unambiguously with the relevant regulator,
although market participants can still help to describe good
and bad market practices for both trading and conduct
control, and help scan the horizon for uncertainties and new
risks. In less heavily regulated markets, market participants
have a correspondingly larger role to play.
4.3.1 High level FICC market standards in language
that can be readily understood
16 Market standards can be set by high level principles and/or
more detailed rules. The advantage of high level principles is
that they are concise, adjust to market developments and
allow for innovation. However, their application to market
practice does require judgement, by both regulators and firms,
and this may create uncertainty among market participants
about how the principles apply to particular issues. Detailed
rules by contrast are more precise and so there is less scope
for uncertainty about their application. However, their
precision means that they may hinder innovation, may need to
be regularly updated to address new developments in markets,
and can incentivise ‘gaming’ behaviour. As a result there can
sometimes be a tendency for rule books to become
increasingly long, legalistic and complex over time. Neither
extreme is ideal in a trading context: high level principles, on
their own, may provide insufficient practical detail; detailed
rulebooks risk not being comprehensible to individual traders.
17 In practice, regulators seek to achieve a workable balance
between these two extremes. But approaches can
nevertheless vary significantly across markets and across
jurisdictions. Firms may also differ widely in how they
translate principles and rulebooks into operational standards
for their traders. In some cases, highlighted in recent
enforcement findings, firms did little or nothing. More
recently, firms have been more actively drawing up internal
guidance — but their approaches have tended to lack
co-ordination. The risk is that, taken together, the guidance
available internally to traders will become ever more detailed
(1) www.bis.org/press/p150511.htm.
Fair and Effective Markets Review Final Report Section 4
and inconsistent, reducing rather than enhancing standards
while also impeding market effectiveness.
18 Detailed rules will continue to have their place. But one of
the Review’s most striking findings has been that, although the
specific aspects of individual misconduct may have varied
substantially across traders, firms and markets, the underlying
behaviours were remarkably similar in many cases and
relatively straightforward to describe. The Review has
therefore concluded that there is a strong case for drawing up
a common set of standards, designed to articulate the core
objectives of principles and rules in practical terms that are
relevant to the key behaviours that individual traders in
wholesale markets should uphold in their interactions with
clients and counterparties. These high level standards should
be drafted in a concise self-standing form, in language that can
be readily understood.
51
Box 8
Trading behaviours in wholesale FICC markets
Behaviours that should be upheld by participants in wholesale
FICC markets might include:
• Acting honestly, fairly and professionally when dealing with
clients or counterparties.
• Communicating with clients (including counterparties)
fairly, clearly and in a way which is not misleading.
• Taking all appropriate steps to identify and to prevent, or
manage fairly and effectively, any relevant conflict of
interest.
Behaviours that are unacceptable might include:
19 Box 8 lists the trading behaviours, positive and negative,
that came up most frequently in the Review’s market outreach
and its analysis of misconduct cases. They can be grouped
around three main themes. First, the bilateral relationships
between firms and their counterparties or clients. Second, the
duty of all market participants to uphold market integrity,
covering the practices of market abuse that have been at the
centre of many of the recent FICC misconduct cases. And,
third, the need to reinforce competition law as it applies to
wholesale FICC markets.
20 Experience from other markets, jurisdictions and wholesale
misconduct cases may suggest further examples. It would also
be important to ensure that standards are consistent with
existing regulatory rules and principles, while maintaining a
high premium on the brevity, clarity and simplicity needed to
ensure they have wide purchase. Given the international
character of many FICC markets, the Review has concluded
that such a set of standards would be most effective if
developed by an international body. The Review therefore
encourages the International Organization of Securities
Commissions (IOSCO) to develop and promulgate an
international set of expectations for trading practices in
wholesale FICC markets. The Review recommends that:
• 1a: There should be a set of common standards for
trading practices in FICC markets, written in language
that can be readily understood, and which will be
consistently upheld.
4.3.2 A new FICC Market Standards Board
21 Responses to the consultation and the Review’s own
analysis suggest that there has often been a lack of
market-wide agreement on the standards of market practice
implied by regulations and market codes. While there can be
no excuse for the failures of individuals or firms to adhere to
these requirements, the absence of a common understanding
• Colluding to manipulate markets or seeking to mislead
market participants.
• Engaging in trading behaviour that gives a misleading
impression of the available supply of, or demand for, a
financial instrument or secures the price at an artificial level.
• Engaging in behaviour that has the effect of manipulating a
benchmark.
• Spreading rumours that are known to be false.
• Improperly disclosing or trading on the basis of market
sensitive information.
• Misusing client information or committing any act that
would constitute a breach of client confidentiality.
• Front running a client order.
on certain issues of trading practice contributed to a drift in
standards of behaviour over time. This proved to be especially
serious in markets without direct regulation, where codes
provided very little guidance on acceptable market practice,
were updated infrequently, and had no mechanisms to give
them ‘teeth’. However, cases of misconduct in some
regulated FICC assets also suggested there was sometimes a
lack of understanding of the standards that should apply. At a
minimum, this points to a communication challenge in
ensuring that market participants are aware of the regulations
that apply to them.
22 Difficulties particularly tend to arise where complex,
technical trading practices exist which involve conflicts of
52
Fair and Effective Markets Review Final Report Section 4
Box 9
Examples of guidelines and case studies
drawn from existing codes
ensure that they do not deal for their own account or the
account of the institution which they represent, or induce
another party to so deal, on the basis of such information. For
the avoidance of doubt if a Dealer or Broker is working a pending
order from a client in relation to a particular instrument covered
by this Guide and which could have a significant impact on the
price of that instrument, the knowledge of that order would
constitute material non-public, price sensitive information for
the purposes of this Guide.
The Review envisages that two main types of material could
be used to raise standards in relation to specific trading
practices: guidelines and case studies. The following are
examples of guidelines and case studies that are currently
used within various international market codes:
Guideline 1: Managing large positions with care (taken
from the US Treasury Market Practices Group’s ‘Best
Practices for Treasury, Agency Debt, and Agency
Mortgage-Backed Securities Markets’)(1)
Market participants with large short positions should make
deliveries in good faith. Market participants with a particularly
large short position in an issue should be sure that they are
making a good-faith attempt to borrow needed securities in
order to make timely delivery of securities. Market participants
should avoid trading strategies designed to profit from
settlement fails. Examples of this type of behavior include the
practice of selling short a security in the repo market around or
below zero percent, and selling a dollar roll around or below
zero per cent, with little expectation of being able to obtain the
security to make timely delivery. In cases where transactions are
subject to a fails charge, different thresholds for profiting from
such behavior may be relevant.
Case Study: Execution of orders, etc. (taken from the
Tokyo Foreign Exchange Market Committee’s ‘Code of
Conduct: Guidelines of Foreign Exchange Transaction
(2015 Edition)’)(3)
In the following, ‘OK’ denotes an acceptable market practice
and ‘NG’ denotes an unacceptable market practice.
• When receiving an order to sell 100 million USD from a
counterparty, a dealer, in advance of executing the
counterparty’s order, sold USD for his/her own position at the
same or more advantageous price.
NG → Selling USD by the dealer impaired the counterparty’s
interest.
• When receiving an order to sell USD, a dealer quotes an
execution rate different from the market coverage level of the
dealer.
Guideline 2: Handling material non-public, price
sensitive information (taken from the Singapore
Foreign Exchange Market Committee’s ‘The Singapore
Guide to Conduct & Market Practices for Treasury
Activities’)(2)
OK → It is acceptable to reflect the cost and market risk taken
by banks/other financial institutions in an execution rate.
Dealers and Brokers must exercise extreme care when in
possession of material non-public, price sensitive information in
relation to the financial instruments covered by this Guide.
Subject to applicable laws and internal policies and procedures,
when in possession of such information Dealers and Brokers must
NG → Stop loss orders must not be executed malignantly
against clients’ interest.
interest for the participants involved. The Review raised a
number of such issues in its October 2014 consultation,(1)
including: the lack of clarity over trading relationships
between dealers and end-users; the distinction between
legitimate trading activity and illegal ‘front-running’; the
distinction between legitimate trading activity and market
manipulation; standards for external communication of
market activity; standards for internal communication of
market activity; and the lack of granular market-wide
standards for client suitability. There was widespread support
from consultation respondents for further clarification of
these issues. The nature of the clarification needed, however,
• A dealer quoted rate significantly diverged from the prevailing
market level for the purpose of executing a stop loss order.
(1) www.newyorkfed.org/tmpg/bestpractices_040414.pdf.
(2) www.sfemc.org/pdf/Singapore_Blue_Book.pdf.
(3) www.fxcomtky.com/coc/code_of_conduct_e2015.pdf.
differed from issue to issue. Some respondents pointed to
cases where they felt there was a need for guidelines to
determine where the line lay between acceptable and
unacceptable market practice. Others pointed to the need to
communicate better the standards that already existed. In
such situations, they felt that case studies which sought to
explain (but not define) acceptable market practices through
practical examples could perform a useful role in improving
the practical application of standards. Box 9 presents
(1) Box 7 in
www.bankofengland.co.uk/markets/Documents/femr/consultation271014.pdf.
Fair and Effective Markets Review Final Report Section 4
examples of guidelines and case studies drawn from various
international codes.
23 It would be neither practical nor desirable for regulatory
authorities to provide guidance on how principles should apply
in all market situations. To reduce the likelihood of a
recurrence of the cases of misconduct that have occurred in
recent years, it is essential that the market also takes greater
responsibility for raising standards of behaviour itself. FICC
markets require stronger collective processes for identifying
and agreeing standards of market practice, consistent with
regulatory requirements, that respond more rapidly to new
market structures and trading patterns, apply to traditional
and new players, and are more effectively monitored and
adhered to within (and between) firms. The Review therefore
supports the proposal in the Market Practitioner Panel’s
consultation response for the establishment of a new
market-led body to address issues of market practice.
24 Several market standard-setting bodies have been
established in other markets and other jurisdictions in recent
years, and have been successful in raising standards, including
the US Treasury Market Practices Group(1) and the Hedge Fund
Standards Board.(2) Drawing on some of the features of these
groups, a new ‘FICC Market Standards Board’ could be created
to address a number of gaps in the current approach to
standards of market practice in wholesale FICC markets.
25 First, regulatory approaches to standard setting often
struggle to keep pace with market developments. A new body
could help to bridge this gap by analysing emerging
vulnerabilities in trading practices that are identified by
market practitioners in the course of their work. Such analysis
would promote awareness of issues, and, where necessary,
help to inform work on new standards to address these issues.
26 Second, the style and structure of current regulatory and
other standards sometimes makes it difficult for market
practitioners to understand how the standards apply to
specific market practices. Provided it maintained a regular
dialogue with regulatory authorities, a new body could
perform a useful role in producing written materials which
explain good trading practices, through guidelines and case
studies, in areas where market participants perceive there is
less understanding of how standards should apply in practice.
Box 10 gives examples of specific trading practices that a new
body might address.
27 Third, the way in which firms ensure standards are
followed currently varies across the market. It is important
that firms retain full responsibility for their own governance.
However, a new body could help to reinforce adherence to
standards, by acting as a forum for sharing good practice on
issues relating to governance, controls and incentives.
Section 5.3 sets out a number of themes in this area identified
53
to the Review. As set out in Section 5.2, a new body could
also give guidance on expected minimum standards of training
and qualifications for wholesale FICC market participants.
Finally, it could also help to co-ordinate market input into
several ongoing and prospective international standard-setting
initiatives.
28 The Review has therefore concluded that a FICC Market
Standards Board (FMSB), with a membership drawn from a
wide range of market participants, could serve a useful
purpose in improving standards of market practice. However,
to be effective, such a body would need to adhere to a number
of principles:
(i) It should maintain a regular dialogue with relevant
regulatory authorities and put in place appropriate
governance structures to ensure that both its work
programme and the materials it produces take into
account relevant regulatory standards and initiatives.
(ii) Its membership should comprise a balanced
representation of all types of market participant, including
buy-side firms, sell-side firms, infrastructure providers,
corporate end-users and independents.
(iii) Its members should be senior business leaders with
extensive experience of FICC markets, who should
represent their own views rather than those of their firms.
(iv) Its members should have sufficient authority to engage
their firms’ senior management to marshal resources to
support the FMSB’s activities, and to muster their
institutions’ endorsement of proposed recommendations.
(v) It should be supported by a high quality, technically able
secretariat.
29 Although it is important that the FMSB should be run by
market participants, the UK authorities stand ready to assist in
the creation of the body, including through involvement in the
appointment of its first Chair. The Review expects that the
FMSB would be initially established in the United Kingdom.
However the body should aim to have international reach
through its private sector membership, and should over time
seek opportunities to work with similar organisations and
authorities in other jurisdictions. The relationship of the FMSB
with the existing UK Banking Standards Board (BSB) will also
be important. On the one hand, it is clear that the
membership of the FMSB would have to be significantly
broader than the BSB in order to represent all FICC market
participants fairly. However, there may be scope for
co-working on some issues of common interest to both
(1) www.newyorkfed.org/tmpg.
(2) www.hfsb.org.
54
Fair and Effective Markets Review Final Report Section 4
Box 10
Examples of trading practices where further
guidelines and case studies could help
improve and clarify standards
should then be executed. As a ‘proof of concept’, the Review’s
Market Practitioner Panel has recently analysed some of the
conduct risks associated with stop loss orders in the FX market
(see Box 11).
Hedging barrier and digital options
The Review has identified a number of key trading practices
where problems can occur if they are not managed
appropriately. The issue at the heart of many of these
practices is the conflict of interest that arises where a principal
has an agency, fiduciary or other duty owed to its client.
There is a general duty to manage conflicts, introduced by
regulation to promote market integrity and market
confidence. Whenever a principal makes an undertaking to a
client or counterparty (for example by taking an order), it
should be clear that the principal has a responsibility to act in
the interests of that client or counterparty to the extent of the
undertaking given. However, in situations where the principal
has to take on risk to execute that undertaking, they must also
manage those risks. Although a trader must always exercise
their judgement in managing such a conflict of interest, there
are a number of recurring practices where standards could be
raised.
The Review’s consultation document raised the issue of
‘defending’ or ‘triggering’ barrier or digital options. Deliberate
attempts to manipulate an underlying instrument in order to
influence the payout of an option should be considered
unacceptable practice. However, there are cases where
reasonable hedging practices may, if not carefully managed,
come close to having the effect of a manipulative transaction.
Specifically, where an option trader seeks to unwind a hedge
position near a barrier/digital event, there is a risk that they
could cause a market move that has adverse consequences for
their client (either triggering a negative payout, or preventing
a positive payout). Further materials on this issue could serve
both to improve understanding of the precise situations in
which a conflict can exist, and also show how to manage that
conflict in an appropriate fashion (for example by showing
how traders might place orders to unwind a hedge, while
minimising the likely market impact of their trading actions).
In relation to the following issues, the Review recommends
that case studies are developed in relation to regulated
activities and that specific guidelines and case studies are
developed elsewhere to illustrate acceptable market practice
and to show where a fair balance lies.
‘Market colour’
Trade-At-Close orders in the gilts market
The Review heard from several stakeholders that there might
be potential conflicts of interest and a lack of clarity around
standards that might apply in the execution of orders which
target published reference prices in particular gilts. In many
respects, these issues echo the difficulties that have arisen in
relation to benchmark targeting in other markets, especially
where a principal dealer undertakes to guarantee trade
execution at the fixing price, and therefore has to fairly
balance the assumption of that principal risk versus hedging it
without moving the market price to the detriment of the
client. The Review recommends that materials are developed
to guide acceptable market practices in relation to the
execution of such orders in the gilts market.
Stop loss orders
Stop loss orders are designed to protect market participants
from adverse price movements, by executing a market order
to close a position when a pre-determined market price is
reached. However, a number of challenges exist to ensuring
such orders are managed fairly and effectively in principal
markets where no central limit order book exists, including
how to measure when an order is triggered and how the order
‘Market colour’ refers to the practice of dealers providing
commentary and opinion on current market developments to
clients. If appropriately provided, market colour can help the
market to operate effectively by providing information that
allows clients to find liquidity and dealers to price risks
accurately. However, beyond a certain level of disaggregation,
such information can unfairly affect the market participants to
whom the information relates. Further materials are needed
to show examples of where ‘market colour’ is acceptable and
where it crosses the line into unacceptable disclosure of
market sensitive information.
‘Mark-up’
In the foreign exchange markets, it is conventional for firms to
charge for execution services through the addition of a
‘mark-up’ to the price given to clients. While it may be
acceptable for firms to charge for services in this way, the use
of mark-up can exacerbate conflicts of interest in situations
where a firm executes client orders against its own capital, or
where there is a lack of transparency over orders filled in the
market on a pure agency basis. The Financial Stability Board’s
FX Benchmark Group has called for more transparent charging
around benchmark fix transactions.(1) Further materials are
needed to ensure that charging for FX transactions, more
generally, is consistent with clients’ expectations of the
services being provided to them.
(1) www.bis.org/review/r150213c.htm.
Fair and Effective Markets Review Final Report Section 4
bodies. The BSB could also potentially provide some
administrative services to the FMSB, though it is not for the
authorities to determine the scope and commercial
arrangements for these services. To take this work forward:
• 2a: The Review calls on the senior leadership of FICC
market participants to create a new FICC Market
Standards Board (FMSB) with participation from a broad
cross-section of global and domestic firms and end-users
at the most senior levels, and involving regular dialogue
with the authorities, to:
• scan the horizon and report on emerging risks where
market standards could be strengthened, ensuring a
timely response to new trends and threats;
• address areas of uncertainty in specific trading
practices, by producing guidelines, practical case
studies and other materials depending on the
regulatory status of each market;
• promote adherence to standards, including by sharing
and promoting good practices on control and
governance structures around FICC business lines; and
• contribute to international convergence of standards.
30 In order to illustrate the role that a new body could
perform in raising market standards, the Market Practitioner
Panel analysed the specific conduct vulnerabilities that exist in
relation to the execution of stop loss orders. A summary of
this analysis is shown in Box 11.
4.3.3 Spot FX: a new global code, and new market
abuse legislation in the United Kingdom
31 The creation of the new Global Preamble represents an
important first step towards more harmonised standards
across the international foreign exchange markets. But in view
of the scale of misconduct that has come to light, substantial
further work is needed to raise standards in FX markets:
greater convergence is needed on the standards that apply in
different jurisdictions; further requirements on individuals,
firms and venues are needed to address key conduct
vulnerabilities; and conduct standards need stronger ‘teeth’.
32 Historically, national FX market committees, including in
the United Kingdom, have drawn up separate codes covering
their home jurisdictions. While there may be reasonable
grounds for favouring national approaches to specific local
operational issues, recent enforcement actions have shown
that conduct issues have important similarities across
jurisdictions. The Global Preamble acknowledged and acted
on this by creating an initial set of shared principles that will
be applied by all major currency centres. It should however be
possible to extend this process further, to develop a single,
55
global FX code containing a complete set of conduct standards
and principles.
33 In developing the Global Preamble into a single global
code of conduct standards, a number of issues need to be
addressed. First, the code will need to establish common
standards and principles to promote market integrity in
FX markets. Recent cases of misconduct have exhibited many
behaviours that would constitute market manipulation in
regulated markets, including attempts to secure an artificial
price and attempts to manipulate benchmarks. However,
most existing FX codes do not set explicit standards
concerning such behaviours. The global code should therefore
develop standards and principles concerning manipulative
behaviour that are relevant to FX markets, and also provide
worked examples and guidelines to illustrate practices that are
consistent or inconsistent with those standards. Second, the
code should further develop standards on the handling of price
sensitive information, including guidelines on the appropriate
communication of ‘market colour’ and guidelines on the types
of market sensitive information on the basis of which it would
be inappropriate to trade. Third, the code should set
standards for the treatment of clients and counterparties. This
section of the code should address issues such as the
prevention and management of conflicts of interest, especially
concerning mixed principal and agent roles. Finally, the new
code should establish standards for trading venues in
FX markets, covering issues such as the management of risks
introduced by high frequency trading and standards of
transparency.
34 Section 2.4.1 proposed a possible framework for evaluating
ways to enhance transparency around trading practices in the
spot FX markets. Those transparency measures and, where
necessary, additional controls could potentially form the basis
of a number of standards within the global FX code,
particularly those concerning the treatment of counterparties
and standards for trading venues. Two issues, in particular,
should be addressed by the code:
• First, as discussed in Section 2.4.1, the absence of ‘time
stamps’ on some client orders can make it difficult for
investors to assess the efficiency of their FX executions,
creating potential opportunities for abusive practice. The
Review has concluded that time stamps should always be
provided. Given the international character of FX markets,
discussions around the global code would offer the most
effective mechanism for establishing consistent standards
on time stamping, including any practical challenges that
may arise. But in light of those discussions, regulatory
steps are also sensible, as part of a broader statutory
market abuse regime discussed later in this section.
• Second, the code should address the practice of ‘last look’,
which gives market makers a final opportunity to reject an
56
Fair and Effective Markets Review Final Report Section 4
Box 11
Market Practitioner Panel analysis of conduct
risks associated with stop loss orders
The practice of ‘pre-hedging’ a stop loss order can also create
risks that the customer is treated unfairly. For example, the
dealer may believe it is appropriate to place an order in the
market before the stop loss is triggered to manage his/her
position. However, this practice introduces the risk that the
dealer’s hedging actions precipitate a market movement that
triggers the stop loss order, when it may otherwise not
have been hit.
In order to provide a ‘proof of concept’ of the style of analysis
that a future FICC Market Standards Board might perform, the
Review’s Market Practitioner Panel (MPP) recently undertook
work on the conduct risks associated with stop loss orders in
the FX market. While further work is needed to finalise this
analysis, this box summarises the MPP’s initial findings and
some of the lessons learnt from the exercise.
What is a stop loss order?
A stop loss order is an order triggered when a reference price
reaches a certain pre-determined level. They may be intended
for execution during the day, overnight, or until executed or
cancelled. The key types of stop loss order are:
Bid/offer stop
The order is triggered when the market bid (offer) price
reaches the level indicated by the bid (offer) stop order.
All taken/given
next stop
The order is triggered when the market is no longer
offered (in the case of a buy stop) or bid (in the case of a
sell stop) at the level indicated by the order.
One touch stop
The order is executed if the trigger level trades in the
market.
At price stop
The order is typically a ‘one touch stop’ where the dealer
will guarantee, under normal market conditions, that the
order fill will not exceed the level of the order.
Although stop loss orders are used in many financial markets,
a number of specific challenges can be identified in relation to
managing them in FX markets. The OTC structure of the
FX market means that key aspects of stop loss orders are
sometimes more difficult to observe and to act upon than
similar orders in markets where a Central Limit Order Book
exists.
Vulnerabilities of stop loss orders
The MPP identified a number of potential vulnerabilities
around the use of stop loss orders. For example, there is a risk
that the key terms of an order are insufficiently documented,
increasing the likelihood of disputes over whether an order was
appropriately managed. To mitigate this, the precise trigger
reference price for a currency pair needs to be clearly specified,
indicating whether the price to be used is sourced from an
external venue, the dealer’s own calculation or a combination
of the two. In addition, the order execution instructions (post
trigger) also need to be clear, setting out, for example, whether
the order will be executed to target best price using the
dealer’s discretion or an algorithm, or whether the dealer
guarantees the price at which the order is filled in advance.
Another challenge identified is that stop loss orders
potentially provide principal traders with an incentive to move
markets to trigger a stop loss event abusively with information
relating to stop loss orders being inappropriately shared
between traders.
A further risk the MPP identified relates to the pricing of stop
loss orders; where the charges for stop loss orders are not
transparent, there is a risk that dealers may engage in
practices that are, or are perceived to be, unfair to the
customer. Greater transparency and clarity can therefore help
to increase trust and confidence.
Next steps and lessons learnt
Based on this initial analysis of the risks, the MPP’s work
suggests that there is scope for the creation of a range of
enhanced standards related to stop loss orders to create
consistency and to reduce these risks. These new standards
would vary in granularity. At the more general level, guidelines
could be created to establish, for example, that market
participants should not deliberately enter into transactions
with the intention of triggering a stop loss order. Below that,
case studies could be used to illustrate good practice in the
management and execution of specific types of stop loss order.
While further work is needed to finalise the analysis, the
process so far has demonstrated the value that market
practitioner input could have in identifying and resolving areas
of uncertainty in the future. It has also highlighted a number
of practical challenges. First, the process demonstrated the
need to achieve the right number, level of seniority, and
breadth of market participants within the working group. It
proved important to have a group that was not too large,
which involved a mix of both senior figures and specialists.
Second, the group had to overcome legal and competitive
challenges to facilitate the sharing of firms’ internal guidance
on trading practices. Finally, it was important for the group to
engage with regulatory authorities at points during the
process, given ongoing supervisory work on related issues. The
lessons learnt from this exercise should be used to inform the
development of working groups within a future FMSB.
Fair and Effective Markets Review Final Report Section 4
order after a client commits to trade at a quoted price. As
set out in Section 2.4.1, this practice developed out of the
need to protect market makers against unanticipated
market movements and predatory trading practices.
However, in its current form, it can potentially be abused by
market makers, either by asymmetrically accepting or
rejecting orders based on market moves after the order is
placed, or by using the order to inform other trading
activity prior to acceptance. In addition to the transparency
measures discussed in Section 2.4.1, the global code should
also set out clearer standards on the use of last look,
including whether it should remain an acceptable market
practice.
35 Establishing a common set of standards should form one
part of the process. However, it will be equally important to
ensure that the new standards have ‘teeth’. As a global code is
developed, there is therefore also a need for parallel processes
to ensure firms have properly implemented standards. And a
range of further tools should be developed to deal with
breaches of the standards. A significant problem with
adherence to standards, historically, has been the lack of
effective market discipline (see Sections 2.2 and 2.4.2). New
tools could be developed to enhance market discipline,
including through the roles central banks play within the
FX markets. Such tools might include linking code adherence
to trading relationships between FX market participants, or the
loss of membership of an FX committee in the event of a
serious breach of the code. The Review therefore
recommends:
• 4a: There should be a single global FX code, providing: a
comprehensive set of principles to govern trading
practices around market integrity, information handling,
treatment of counterparties and standards for venues;
comprehensive example and guidelines for behaviours;
and stronger tools for promoting adherence to the code
by market participants.
• 4b: As part of that work, or otherwise, particular
attention should be given to improving the controls and
transparency around FX market practices where there
may be scope for misconduct, including ‘last look’ and
time stamping.
36 The Review strongly welcomes the recent announcement
by central banks to work towards the goal of a single global
code along lines similar to those set out here. That work
programme is expected to run until May 2017, and the Bank of
England will play a full role in all aspects of the project. Once
this work is complete, the Bank will review the NIPs Code to
see which elements are still needed. As far as possible, the
new global code should replace the sections of NIPs which set
conduct standards for FX markets. However, there may still
be a need to retain sections of the NIPs Code that deal with
57
other issues and other markets. Should it be necessary to
retain a local code for aspects of the FX market or other
UK non-investment products, the Review recommends that
the code is updated to follow a similar structure to that of the
new global FX code, cascading from core principles through to
guidelines and case studies to illustrate good and bad market
practices.
37 Given the global scope of spot FX markets, it is important
that the principles governing good conduct should be agreed
globally. In view of the seriousness of recent misconduct,
however, the Review recommends that those globally agreed
principles should be used to shape a new statutory market
abuse regime for spot FX in the United Kingdom, to maximise
the protections against market abuse. As discussed earlier in
this section, the new European Market Abuse Regulation
(MAR), which will apply from July 2016, will cover many of the
types of abuse that have occurred across most of the
FICC markets. But spot FX, as an asset class, is not directly
covered by MAR. So, although some of the behaviours
witnessed in the recent FX cases might be caught where
behaviour in the spot FX market affects a financial instrument
(such as an FX derivative) or a benchmark, others which relate
exclusively to the spot FX market — including front running
client orders and other forms of market manipulation — will
not.
38 MAR will also not cover other financial instruments which
trade exclusively OTC, and where the OTC instrument has no
impact on the price of a financial instrument that is traded on
a MiFID-regulated trading venue. The number of such markets
will fall considerably as a result of the increased number of
regulated trading venues expected following the
implementation of MiFID2. However, there may be cases
where an organised market exists for a financial instrument,
even though none of the transactions occur on a regulated
trading venue. The Review therefore recommends that a
future regulatory framework for market abuse retains the
flexibility to cover such markets, if a need is identified, and
following appropriate consultation.
39 These objectives could be achieved by the creation of a
new standalone legislative regime that could be applied to
spot FX and, as required, any other OTC FICC instruments
specified via secondary legislation. The regime should, at a
minimum, cover a similar range of behaviours as those
covered under MAR(1) and also include parallel criminal
offences. But some adjustment may be needed to take
account of differences between the instruments and markets
(1) MAR offences cover: insider dealing; unlawful disclosure of inside information;
behaviour that gives a false or misleading impression of the available supply of, or
demand for, a financial instrument or secures the price at an artificial level; behaviour
that affects the price of a financial instrument by employing a fictitious device or any
other form of deception or contrivance; dissemination of information through the
media or other means which gives a false or misleading impression as to the supply
of, or demand for, a financial instrument or secures the price at an artificial level; and
benchmark manipulation.
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Fair and Effective Markets Review Final Report Section 4
covered by this regime and the existing market abuse regime,
which focuses more on securities and their derivatives. In
particular, the definition of ‘inside information’, which covers
price sensitive information relating to a security or the issuer,
will have to be appropriately adapted for use in the
FX markets. The precise definition of the offences should be
informed by relevant sections of the new global FX code, as
soon as these standards are developed.
records of orders and transactions, together with a
requirement to report suspicious transactions and orders to
the regulator. Subject to work on relevant standards within
the global FX code, the regime should also include a
requirement to report details of executed orders to clients at
their request, including time stamps. The Review therefore
recommends:
40 In view of the very large volumes of transactions involved,
and the practical challenges that would pose to the building of
a real-time reporting regime, the Review recommends that the
regime should be supported by a requirement on firms to keep
• 3b: A new statutory civil and criminal market abuse
regime should be created for spot foreign exchange,
drawing on, among other things, the work of the
international project to draw up a global foreign exchange
code.
Fair and Effective Markets Review Final Report Section 5
59
5 Raising standards of professionalism
in FICC markets
1 The misconduct seen in recent years exposed serious
shortcomings in professionalism in at least some parts of
FICC markets, particularly at the level of trading desks. The
Review’s consultation identified widespread support for
tackling those shortcomings, including through greater
individual accountability, strengthened qualifications, stronger
governance structures and better-aligned incentives.
2 This section is split into four separate subsections focusing
on the ways in which each of these objectives can be
delivered. Section 5.1 includes recommendations for: giving
non-statutory market codes and guidelines ‘teeth’; improving
individual accountability by extending elements of the Senior
Managers and Certification Regimes to a wider range of
regulated firms active in FICC wholesale markets; and
introducing a mandatory form for regulatory references to
help prevent the ‘recycling’ of individuals with poor conduct
records between firms. Section 5.2 focuses on establishing
new training and qualifications expectations for FICC market
personnel in the United Kingdom. Section 5.3 sets out some
of the most important priorities for market practitioners in
sharing and promoting good practices on control and
governance structures around FICC business lines, and the role
that the FICC Market Standards Board proposed in
recommendation 2a might play. And Section 5.4 looks at
ways to improve the alignment between remuneration and
conduct risk.
5.1 Improving accountability; and preventing
the ‘recycling’ of staff with poor conduct
records
5.1.1 Where was fairness and effectiveness deficient?
3 The years prior to the financial crisis were characterised by
three key trends, all of which materially reduced the ability or
willingness of firms in financial markets to uphold strong
standards of market conduct:
(i) Senior managers became increasingly remote and
unaccountable for the maintenance of standards in
day-to-day trading operations. That reflected a range of
causes, including the increasing scale and breadth of firms’
trading operations, and the progressive delegation of
responsibility for oversight to firms’ second and third lines
of defence, and to regulators. A particular aspect of this
last factor in the United Kingdom was that firms relied
largely on the Financial Conduct Authority’s (FCA)
predecessor, the Financial Services Authority (FSA), to
assess individuals’ fitness and propriety to perform their
roles, under the Approved Persons Regime (APR).
(ii) Senior managers faced few apparent consequences for
failing to ensure that their teams upheld appropriate
standards of market practice. That was particularly true in
less regulated markets, where practices were governed by
voluntary codes which lacked ‘teeth’.
(iii) There was an increasing shift in power within firms and
their management teams towards trading staff, reflecting
the factors outlined above and the high profitability of
trading desks.
4 These trends were apparent in many of the recent
FICC enforcement investigations. For example, FCA
enforcement notices in relation to the attempted
manipulation of Libor identified weak or non-existent
oversight of trading staff in banks and brokers, and a lack of
clearly defined individual responsibilities. FCA enforcement
notices on misconduct in foreign exchange (FX) markets
showed that voluntary codes in FX and other markets had not
been translated into meaningful internal guidance within
firms. And trading staff in different firms attempted to collude
in order to manipulate markets, against the interests both of
the markets at large and, in some cases, their firms.
5.1.2 What has already been done to put this right?
5 The UK authorities have taken significant steps to improve
governance and accountability within UK-regulated firms.
Assessing the adequacy of governance in firms is now a
fundamental part of the Prudential Regulation Authority’s
(PRA’s) and FCA’s supervisory approach, and the regulators
regularly review the fitness and propriety of the most senior
individuals in authorised firms.
6 There has also been significant legislative reform. The
Parliamentary Commission on Banking Standards (PCBS)
argued that the APR had failed to set clear expectations for
individuals performing critical roles in banks, and
recommended strengthening the accountability of bankers
and their incentives to behave appropriately by shifting
governance responsibilities from the regulators to firms,
accompanied by stronger and more focused approval and
(1) www.parliament.uk/documents/banking-commission/Banking-final-report-volumei.pdf.
60
Fair and Effective Markets Review Final Report Section 5
enforcement powers for the regulators with respect to senior
individuals.(1) In response, the Senior Managers and
Certification Regimes (SM&CR) were introduced by the
UK government through the Banking Reform Act 2013. The
regulators have published final and near-final rules(1) on
elements of the regimes in response to their July 2014
consultation.(2) The remaining final rules are expected to be
published over the coming months, and the SM&CR will come
into force in March 2016.
10 The PRA also proposes to introduce a new regulatory
framework for individuals in insurance firms. The proposed
Senior Insurance Managers Regime (SIMR) incorporates
aspects of the SM&CR within the existing legislative
framework for insurers.(3) The SIMR will require insurance
firms to adopt clearer governance arrangements, and set
clearer allocations of responsibilities and accountabilities for
senior managers, in a manner similar to the SM&CR, but
without the ‘presumption of responsibility’. Senior managers
will require supervisory approval in order to perform
Controlled Functions or Senior Insurance Manager Functions.
The SIMR also takes into account the EU Solvency II Directive
measures relating to governance and fitness and propriety,
where — similar to the Certification Regime under the SM&CR
— insurers will be required to make their own assessments of
fitness and propriety in relation to a wide range of individuals,
including those who do not perform a Controlled Function or a
Senior Insurance Manager Function, but still perform a key
function within their firm. The SIMR is also expected to align
the Conduct Rules with those under the SM&CR, but with an
additional Conduct Rule relating to the advancement of the
PRA’s insurance objective.
7 The Senior Managers Regime will focus regulatory
attention on a smaller set of senior individuals than the APR,
limiting regulatory pre-approval to the most senior individuals
in banks, building societies, credit unions and PRA-designated
investment firms, known collectively as ‘Relevant Authorised
Persons’ (RAPs). As part of the regulatory pre-approval, firms
will be required to submit ‘Statements of Responsibilities’
setting out the areas for which a prospective senior manager
will be responsible. This should ensure that in the event of
misconduct, there are clear lines of accountability. Individuals
approved by the regulators as senior managers will continue to
be registered on the regulators’ public register. The Senior
Managers Regime includes a ‘presumption of responsibility’,
under which senior managers in RAPs are held to be
responsible for regulatory breaches in their areas of
responsibility unless they can demonstrate to the satisfaction
of the relevant regulator that they took reasonable steps to
prevent such breaches.
8 The Certification Regime recognises that some individuals
below senior managers, including traders, nevertheless have
the potential to pose ‘significant harm’ to the firm or its
customers. The Banking Reform Act introduces requirements
for RAPs to take responsibility for ensuring that such
individuals are fit and proper on an ongoing basis, and to
certify that this is the case at least annually. Regulators will
not approve these appointments. The regulators’ rules will
require a senior manager to be formally responsible for the
firm’s compliance with its obligations under the Certification
Regime.
9 Enforceable Conduct Rules under the SM&CR, as outlined
in Box 12, will also apply to a wide set of individuals within
each RAP. The new Conduct Rules will build on the
Statements of Principle and Code of Practice for approved
persons under the APR. If an individual breaches a Conduct
Rule, the regulators may choose to take enforcement action
against that individual. The regulators propose that the
Conduct Rules should apply to all senior managers and
certified persons. In addition, the FCA proposes to apply the
Conduct Rules to all other employees of relevant firms except
staff carrying out purely ancillary functions. Such firms will
also be required to notify the regulators of actual or suspected
breaches of any Conduct Rule, and of any disciplinary action
relating to a breach of the Conduct Rules by senior managers,
certified staff and relevant employees.
11 Implementation of the SM&CR will mean that a significant
group of staff in banks and other relevant firms, including
many types of traders, will no longer be subject to regulatory
pre-approval, but will instead have to be certified by firms. In
addition, some groups of staff who previously did not fall
within the scope of the APR will now fall within the scope of
the Certification Regime, so firms will be required to assess
and certify them as fit and proper.
12 The PRA and FCA consultations recognised that it was
important for firms to have access to relevant information
about an individual’s prior conduct record from past
employers to inform their certification decisions. Unless this
information were available to a new employer, individuals
with poor conduct records — so-called ‘rolling bad apples’ —
would be able to move between firms undetected. To address
this problem, rules proposed by the PRA and FCA under the
SM&CR will require firms to obtain, and to provide, so-called
‘regulatory references’ to one another when seeking to employ
an individual in a role that requires certification or
pre-approval. These references must include, among other
information, details of any disciplinary action taken in the past
five years to address a breach of the Conduct Rules.
5.1.3 Where are the remaining gaps?
13 The introduction of the SM&CR and the SIMR should
substantially improve accountability. The Review has however
concluded that the SM&CR can be used to help strengthen
(1) www.fca.org.uk/static/documents/consultation-papers/cp15-09.pdf; and
www.bankofengland.co.uk/pra/Documents/publications/cp/2015/cp715.pdf.
(2) www.fca.org.uk/static/documents/consultation-papers/cp14-13.pdf.
(3) www.bankofengland.co.uk/pra/Documents/publications/cp/2014/cp2614.pdf.
Fair and Effective Markets Review Final Report Section 5
standards in FICC markets further in three ways: first, by using
the regime to give stronger ‘teeth’ to voluntary codes; second,
by extending its application more widely across FICC markets;
and third, by mandating a more specific form for regulatory
references to minimise the risk of ‘rolling bad apples’. The
next subsections consider each point in turn.
5.1.3.1 Using the Senior Managers and Certification
Regimes to give ‘teeth’ to voluntary codes
14 Under the SM&CR, regulators will be able to hold
individuals to account for conduct failings and require all
traders and other relevant individuals to comply with the five
proposed individual Conduct Rules outlined in Box 12.
Individuals will be personally accountable for any breach of a
Conduct Rule, providing a strong incentive for individuals to
achieve higher standards of market conduct.
Box 12
Proposed individual Conduct Rules
Rule 1: You must act with integrity.
Rule 2: You must act with due skill, care and diligence.
Rule 3: You must be open and co-operative with the FCA, the
PRA and other regulators.
Rule 4: You must pay due regard to the interests of customers
and treat them fairly.
Rule 5: You must observe proper standards of market
conduct.
15 The proposed Conduct Rules will also give regulatory
support to market codes and guidelines. The FCA’s proposed
guidance in relation to Conduct Rule 5 indicates that
compliance with the FCA Code of Market Conduct(1) or
relevant market codes and exchange rules will tend to show
compliance with Conduct Rule 5. This will provide helpful
‘teeth’ to non-statutory market codes and guidelines, for
example the proposed global FX code discussed in
Section 4.3.3, and future materials that might be developed by
the proposed FICC Market Standards Board (FMSB). More
generally, it will help to ensure that firms adhere to clear
standards of market practice and encourage employees to
behave with greater integrity — two of the characteristics of
fair and effective markets identified by the Review.
16 Proposed guidance from regulators on the implementation
of the SM&CR also indicates that firms should ensure that
senior managers, certified staff and relevant employees
subject to the individual Conduct Rules have a deep
understanding of the practical application of the specific rules
61
which are relevant to their work. For example, individuals
subject to certification will be required to undertake ‘suitable
training’ and ‘have an awareness and broad understanding of
[the FCA Conduct Rules]’. Box 15 in Section 5.2 outlines a
high-level blueprint for FICC market training and qualification
standards, which could make an important contribution
towards the fulfilment of this requirement.
17 To support the existing codes and output of the FMSB, the
Review notes that:
• 3c: proper market conduct should be managed in
FICC markets through regulators and firms monitoring
compliance with all standards, formal and voluntary,
under the Senior Managers and Certification Regimes.
5.1.3.2 Extending the scope of the Senior Managers
and Certification Regimes
18 A significant group of regulated FICC market participants,
active in both the primary and secondary FICC markets, such
as interdealer brokers and asset managers, are currently out of
scope of the SM&CR. The Review’s consultation included a
question on whether the SM&CR, or some variant of it, should
be extended to this wider group.
19 Responses to the consultation were mixed on this issue. In
general, firms already covered by the regimes argued that they
should be extended, while those not covered argued that they
should not. The Review’s Market Practitioner Panel (MPP)
noted that views on this issue differed between its members
but argued that, on balance, time should be given to assess the
effects of the incoming regime before considering an
extension. A minority of members noted that, in the longer
term, consideration should be given to appropriate adaptation
followed by potential extension.
20 Some respondents argued that an extension would raise
standards and accountability across all FICC market
participants, bringing a level playing field across all firms.
Similar level playing field arguments have also been advanced
by former members of the PCBS.(2) Firms also argued that an
extension would prevent any gaps or overlaps that may arise
from running three(3) regimes in parallel and bring in a more
aligned approach for groups with multiple business functions.
21 After careful consideration, the Review has concluded that
there is a case for extending elements of the SM&CR to a
broader range of regulated FICC market participants. The
elements to be extended would include: regulatory
(1) FCA Code of Market Conduct (MAR 1),
https://fshandbook.info/FS/html/handbook/MAR/1.
(2) www.parliament.uk/documents/commons-committees/treasury/Statement_by_
former_Members_of_PCBS.pdf
(3) Viz., the Senior Managers and Certification Regimes, the Senior Insurance Managers
Regime, and the Approved Persons Regime.
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Fair and Effective Markets Review Final Report Section 5
pre-approval and ‘Statements of Responsibility’ for senior
managers; certification of individuals with the potential to
pose ‘significant harm’ to a firm or its customers; and
enforceable Conduct Rules for individuals. The Review did not
judge it proportionate to extend, beyond their existing scope,
the additional provisions included in the Banking Reform Act
which gave effect to a ‘presumption of responsibility’ in the
event of regulatory breaches in RAPs.
included in the Banking Reform Act. This new offence, which
was recommended by the PCBS, reflects concerns that the
consequences for the UK economy of the failure of a major
bank, building society or PRA-regulated investment firm might
be so grave that there could be circumstances in which it
might be justified to bring criminal proceedings against a
senior manager whose reckless decisions had directly led to
that failure. This offence is directed to prudential stability
concerns and not to issues of market conduct, reflecting the
fact that the consequences of some firm failures are
potentially detrimental to the UK economy and taxpayers. As
with any criminal case, the burden of proof would be on the
prosecution to prove the charges beyond a reasonable doubt.
There are a series of tests that have to be met before any such
prosecution could be brought:
22 There are a number of reasons for this proposed extension:
(i) recent FICC market misconduct was not limited to banks.
For example, a number of interdealer brokers were
involved in the manipulation of Libor;(1)
(ii) non-banks are becoming increasingly important players in
FICC markets;
(iii) as outlined above, the SM&CR will be an important means
for giving market codes greater ‘teeth’ in the
United Kingdom. Extending the Conduct Rules to a wider
range of regulated firms active in FICC markets would
emphasise that traders and other individuals in those
firms are personally responsible for observing proper
standards of market conduct; and
(iv) regulatory references required under the SM&CR can be
an effective tool to minimise the risk of ‘rolling bad
apples’ and should therefore be a requirement for a wider
range of regulated FICC firms.
The Review therefore recommends that:
• 3d: HM Treasury should consult on legislation to extend
elements of the Senior Managers and Certification
Regimes to a wider range of regulated firms, covering at
least those active in FICC wholesale markets.
23 This recommendation would need to be subject to
consultation. Among other things, that consultation would
need to consider the precise scope of the extension and the
exact makeup of an expanded regime. Any extension should
apply to authorised firms that are active in FICC markets, but
are currently out of scope of the existing regimes. That would
include: MiFID investment firms, including asset managers
and interdealer brokers; hedge funds under the EU Alternative
Investment Fund Managers Directive (AIFMD); and fund
managers under the EU Undertakings for the Collective
Investment of Transferable Securities Directive (UCITS).
HM Treasury and the FCA may also want to consider whether
firms active in financial markets other than FICC markets
should also be included, but that is outside the scope of this
Review.
24 The Review also considered the new criminal offence
relating to a decision causing a financial institution to fail,
(i) the senior manager is involved in taking a decision that
causes the institution to fail;
(ii) at the time the decision is taken, the senior manager is
aware of a risk that implementation of the decision could
cause the institution to fail; and
(iii) in all the circumstances, the senior manager’s conduct in
relation to the taking of the decision falls far below what
could reasonably be expected of a person in his or her
position.
25 The Review has not identified a case to extend this offence
to other institutions simply because they are active in the
FICC markets, where their failure would not pose a systemic
and prudential threat to public funds and the economy.
5.1.3.3 Tackling ‘rolling bad apples’
26 Respondents to the Review’s consultation and market
outreach expressed particularly strong views about the need
for further action to be taken to prevent the ‘recycling’ of
individuals with poor conduct records between firms: the
so-called ‘rolling bad apples’ problem outlined earlier in
this section. Similar concerns have also been expressed in
other jurisdictions — for example, the Reserve Bank of
Australia’s submission to the Review notes the merits of
adopting a global approach to the problem; and
President William Dudley of the Federal Reserve Bank of
New York raised the issue in a speech in October 2014.(2)
27 Firms report that it has become increasingly difficult to
acquire information on individuals’ conduct records from
previous employers through the use of employment
references. In part, that is said to reflect increased concerns
on the part of firms about the risks of legal challenge from
(1) www.fca.org.uk/news/icap-europe-limited-fined; www.fca.org.uk/news/two-formersenior-executives-of-martin-brokers-fined-and-banned; and
www.fca.org.uk/news/press-releases/martin-brokers-uk-limited-fined-630000-forsignificant-failings-in-relation-to-libor.
(2) www.newyorkfed.org/newsevents/speeches/2014/dud141020a.html.
Fair and Effective Markets Review Final Report Section 5
employees who feel they have been unfairly described. But in
part, it also reflects the increasing tendency to reach
‘compromise’ or ‘settlement’ agreements as part of negotiated
exits with employees, under which firms agree to limit the
scope of information released in references. That challenge is
further heightened when individuals resign before
investigations relating to disciplinary proceedings have been
concluded.
28 In the United Kingdom, respondents reported having taken
some comfort historically from the fact that, when judging an
individual’s fitness and propriety under the APR, regulators
had access to a broader range of conduct information than
that available to firms — gathered through supervisory
interaction and firms’ own reporting. However, the PCBS was
concerned that the APR resulted in an unclear allocation of
responsibility for the suitability of individuals within firms, and
that the volume of approvals under the APR was unrealistically
large for the regulators to process given the resources
required. The PCBS argued that it was more appropriate for
firms and their senior managers to take responsibility for the
suitability of their employees. With the transition from the
APR to the SM&CR, responsibility for the assessment of
certified individuals will pass to the firm. Despite the
proposed requirement to provide regulatory references for an
individual’s previous five years of employment under the
SM&CR, many respondents considered that moving to the
new regime could lead to a potentially significant loss of
information, materially worsening the incidence of ‘rolling
bad apples’.
29 A range of possible ways to tackle this problem were
highlighted to the Review. Some suggested retaining a central
‘licensing’ database of regulatory and other information (as
under the current APR), or a register similar to the
BrokerCheck(1) system operated by the Financial Industry
Regulatory Authority (FINRA) in the United States. Some
called for firms to be required to complete a mandatory form
when providing regulatory references, and for this to
incorporate a wider range of information than explicitly
required by the proposed PRA and FCA rules. Box 13 provides
examples of the type of information suggested by
respondents. Others suggested that this approach be further
strengthened by extending the ‘look back’ period for
regulatory references beyond five years, and/or storing
references in a central ‘warehouse’.
30 The Review agrees on the importance of tackling the
‘rolling bad apples’ issue, subject to respecting the principles of
the SM&CR (in particular the policy intent of switching
responsibility for assessing fitness and propriety), and the
constraints imposed by employment, data protection and
human rights law.
31 The principles of the SM&CR are not consistent with
continuing to operate a central regulatory ‘licensing’
63
mechanism of the kind used under the APR. It is, in any case,
not clear that the APR was effective in preventing ‘rolling bad
apples’ in wholesale FICC markets. Following implementation
of the SM&CR the FCA will nevertheless continue to maintain
a public register of individuals subject to prohibitions,(2) which
firms can use to help inform their assessment of an individual.
The SM&CR will also include requirements for regulated firms
to notify the regulators of actual or suspected breaches of any
Conduct Rule, and of any disciplinary action relating to a
breach of the Conduct Rules. The regulators will therefore still
be able to use information they receive from regulated firms
to inform their supervisory focus and approach.
32 The Review has concluded that there is a strong case for
the authorities to mandate a form setting out in detail the
minimum information that firms should include in regulatory
references, to ensure that there is a decisive break from past
referencing practices, and to improve firms’ ability to
investigate an individual’s past conduct effectively. Such a
form would build on the information requirements already
proposed under the new SM&CR rules, helping to promote
a uniform approach. Firms will not be able to use
non-disclosure agreements with departing employees to limit
disclosure of information required in such regulatory reference
forms by the new SM&CR rules.
33 The types of information suggested by respondents for
inclusion in regulatory references, as summarised in Box 13,
are broader than those currently proposed under PRA and FCA
rules. In particular the suggested types of information include:
items that may be uncertain or disputed — such as
information about investigations or disciplinary proceedings
begun, but not completed, before an employee’s departure;
and information going back significantly beyond the five-year
period currently proposed for regulatory references. To
consider whether it would be appropriate to mandate the
provision of these broader types of information, it is necessary
to take into account legal constraints, including the provisions
of human rights law, which limit interference by public
authorities with the private lives of individuals. It is likely that
mandating the inclusion of these broader categories of
information would require the creation of an extensive
framework of safeguards for individuals, entailing
disproportionate complexity and cost.
34 The constraints of human rights law referred to above
apply to the acts of public authorities. But they do not
preclude firms from deciding to disclose fuller information, or
from agreeing to participate in any industry initiative to
encourage fuller disclosure, provided those firms comply with
their obligations to employees and recipients of references
under the common law (in particular the obligation to ensure
(1) http://brokercheck.finra.org/Search/Search.
(2) www.fsa.gov.uk/register/prohibitedIndivs.do.
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Fair and Effective Markets Review Final Report Section 5
Box 13
Respondents’ views on information for
possible inclusion in a regulatory reference
Information about misconduct or disciplinary actions
This box summarises the types of information that
respondents suggested should be considered for inclusion in a
regulatory reference relating to a candidate for a senior
management position or role requiring certification. In some
cases, these data are already publicly available (for example,
whether an individual has ever been registered with the PRA or
FCA as a senior manager). In others, information is not
currently available but will be caught by the regulators’
proposed rules: for example, disciplinary action or the
application of malus or clawback(1) to an individual’s
remuneration linked to breaches of Conduct Rules. Other
suggested information would require an expansion of the
proposed rules. The regulators will need to consult publicly on
the content of a regulatory reference form. In doing so, they
should consider all suggestions from respondents to the
Review, taking into account relevant legal constraints.
Information about roles held and training or
qualifications
• Termination of employment: whether and in what
circumstances the candidate was dismissed, suspended, or
requested to resign from employment;
• Disciplinary proceedings: details of any internal
disciplinary proceedings, for example the issuing of a formal
written warning or notice or suspension;
• Resignation while under investigation: whether and in
what circumstances the candidate resigned or left
employment while under investigation for suspected
misconduct or breaches of any Conduct Rule or Fit and
Proper Criterion;
• Breach of regulatory requirements: details of any breaches
of the Conduct Rules or Fit and Proper Criteria in the
PRA Rulebook or FCA Handbook; and
• Application of remuneration ‘malus’ or ‘clawback’: details
of any reduction or recovery of the candidate’s
remuneration, linked to misconduct or a failure of risk
management.
• Basic personal information: including name, job title and
basic identifying information;
Outstanding liabilities or complaints
• Basic employment details: including dates of employment
and an outline of most recent roles and core responsibilities;
• Complaints: details of any outstanding or upheld
complaints against the candidate from a person eligible to
have a complaint considered under the Financial
Ombudsman Service; and
• Regulatory approvals: whether the candidate was ever
registered with the PRA or FCA, by the firm providing a
reference, as a senior manager under the Senior Managers
and Certification Regimes, and a description of senior
management functions and prescribed responsibilities;
• Certification by the employer: whether the candidate has
been certified by the firm under the Certification Regime;
• Transitional information about past regulatory approvals:
whether the candidate has ever been registered with the
PRA or FCA in a Controlled Function under the Approved
Persons Regime, including details of the Controlled Function
held and a description of the role held; and
• Outstanding commission payments: details of any
outstanding liabilities owed by the candidate relating to
commission payments.
Respondents noted that it is important that a regulatory
reference form should provide space for the candidate’s past
employer to provide additional context. The time period
covered by a reference was also an important consideration,
with respondents suggesting that it was important to achieve
an appropriate balance between providing a meaningful
picture of an individual’s pattern of conduct, while ensuring
that the information was still relevant.
• Training and qualifications: details of any relevant formal
training the candidate has attended and/or undertaken, and
any qualifications obtained.
(1) See Section 5.4 for a definition of these terms.
Fair and Effective Markets Review Final Report Section 5
that any reference is true, accurate and fair). The Review
therefore recommends that:
• 1c: the FCA and PRA should consult on a mandatory form
for regulatory references, to help firms prevent the
‘recycling’ of individuals with poor conduct records
between firms, with a view to having a template ready for
the commencement of the Senior Managers and
Certification Regimes in March 2016. In due course, the
FMSB should consider whether there is scope to reach an
industry-wide agreement to disclose further information.
35 It is important that the bilateral exchange of meaningful
regulatory references between former and potential
employers is fully and properly embedded across all
FICC market participants in the United Kingdom, through the
extension of the SM&CR to a wider range of regulated
FICC market participants. The regulators are committed to
supporting the industry in their efforts to ensure that bad
actors are identified and held to account for their conduct, and
to working with firms in their collective efforts to comply with
this important element of the new regime. Firms should
provide as complete a picture of an individual’s conduct record
as possible to new employers, seeking wherever feasible to
conclude investigative procedures before employees depart,
and avoid giving any legal undertakings to suppress or omit
65
relevant information in order to secure a negotiated release.
The regulators will expect firms to demonstrate how they
meet these standards and will consider how firms comply with
the requirements under the new regime through supervisory
assessments. Senior managers will need to have in place
policies, procedures and practices which deliver clear and
accurate references.
36 The Review also considered the suggestion from market
participants that the process of exchanging regulatory
references could be further strengthened if a central
warehouse of basic employment information or past
regulatory references were established. This proposal could
have some benefits if, for example, an individual’s past
employer no longer existed and an individual’s new employer
would not otherwise be able to obtain a reference. However,
in general the Review did not identify significant benefits in
terms of the content of information that would be exchanged,
over and above that in regulatory references. The central
registrar for such a central warehouse would also be subject to
potentially significant operational and legal risks. Therefore,
the Review has not established that there is a sufficient case
for the development of a central warehouse; however, the
case for such a warehouse, run if necessary in the private
sector, should be kept under review in light of experience with
regulatory references.
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Fair and Effective Markets Review Final Report Section 5
5.2 Towards credible market-wide standards
for wholesale FICC training and qualifications
5 Several qualification providers have also updated the way in
which they deliver their training and qualifications. Some have
introduced requirements for individuals to demonstrate their
ongoing adherence to codes of conduct. Some have
introduced new foundation-level qualifications aimed at
ensuring a greater range of new entrants receive formal
training. And some have improved testing methods, notably
by making greater use of case studies to test an individual’s
judgement.
1 Section 4 set out the need to ensure that clear standards are
defined for all FICC markets. However, it is equally important
to have mechanisms to ensure that individuals behave
according to those standards in practice. Training and
qualifications are important tools for ensuring that individuals
understand and then apply appropriate standards of
behaviour.
5.2.1 Where was fairness and effectiveness deficient?
2 Recent FICC market enforcement cases highlighted a range
of deficiencies in firms’ training programmes. For example:
submitters received no formal training on Libor or Euribor
submission processes;(1) there was insufficient training for
FX traders on how to apply general policies concerning
confidentiality, conflicts of interest and trading conduct to
their day-to-day activities;(2) and staff involved in the gold
fixing lacked adequate specific training.(3)
3 A wide variety of qualifications were available to wholesale
FICC market participants. But, other than some firm-specific
requirements, take-up has been voluntary since 2007. And
even where staff did hold specific qualifications, there were a
number of potential drawbacks in terms of ensuring
consistently effective application of standards of good market
conduct across FICC markets as a whole. Some qualifications
were narrowly focused on specific business lines or areas of
expertise. Some focused primarily on professional
competence rather than conduct standards. The qualifications
that did have a conduct component often focused primarily on
‘classroom’ or ‘desktop’ learning of high level principles, with
limited use of ‘real-life’ examples relevant to FICC markets, so
failed to assess the critical judgement of market participants
adequately. And some lacked continuous assessment
procedures, so failed to instil deep and lasting understanding
of conduct standards. It should be stressed that some
qualification providers did have a stronger approach to
conduct standards, including using withdrawal of qualified
status as a sanction for misconduct or non-completion of
continuing professional development requirements. But the
application of such standards was far from universal across
FICC market participants.
5.2.2 What has already been done to put this right?
4 There have been a number of positive developments within
firms since the height of the crisis. Considerable resources
have in some cases been devoted to enhancing training and
education programmes, often including specific modules on
conduct. And firms have in some cases moved towards a
more comprehensive ongoing approach that ensures training
programmes remain up-to-date and more adequately meet
the evolving demands of the roles that FICC market
participants perform.
6 Forthcoming policy initiatives will help underpin more
consistent use of training within firms. The Senior Managers
and Certification Regimes (SM&CR) set a number of
expectations on the use of training programmes. First, firms
will have to vet potential senior managers, having regard
among other things to whether candidates have ‘obtained a
qualification’ or have ‘undergone, or [are] undergoing,
training’. Second, individuals subject to certification will be
required to undertake ‘suitable training’, ‘have an awareness
and broad understanding of [the FCA Conduct Rules]’ and a
‘deeper understanding of the practical application of specific
rules which are relevant to their work’. These new rules will
require firms covered by the Regimes to take a more
structured approach to training senior managers and certified
individuals. Other initiatives have also flagged the importance
of improving training standards. For example, the new global
preamble to national FX codes(4) includes an expectation that
firms should provide training programmes for staff on
appropriate market conduct in foreign exchange markets and
require regular attestations.
5.2.3 Where are the remaining gaps?
7 Despite this progress, several gaps remain in the way
training and qualifications are used to enhance conduct
standards within wholesale FICC markets.
8 Responses to the Review highlighted that current
qualifications often make a sharp distinction between material
related to professional competence (which is often the
primary focus) and that related to conduct standards. Efforts
to bring the two together — a primary goal of the Review —
are still relatively uncommon. Material on conduct often
speaks only to high-level expectations of behaviour. This
means that course materials are often far detached from the
realities of working on a trading desk, and are likely to have a
lower impact on the standards of behaviour that candidates
subsequently apply in practical situations. The Review has
concluded that there is a need for greater use of training and
(1) See paragraph 4.55 in
www.fca.org.uk/static/documents/final-notices/deutsche-bank-ag-2015.pdf.
(2) See paragraph 4.26 in
www.fca.org.uk/static/documents/final-notices/final-notice-citi-bank.pdf.
(3) See paragraph 2.3 in
www.fca.org.uk/static/documents/final-notices/barclays-bank-plc.pdf.
(4) The ‘Global Preamble: Codes of best market practice and shared global principles’,
adopted by eight FX committees on 30 March 2015. See page 2 in
www.bankofengland.co.uk/markets/Documents/forex/fxjsc/globalpreamble.pdf.
Fair and Effective Markets Review Final Report Section 5
qualifications that focus on conduct standards, but using
materials that assess candidates’ understanding of those
standards through the use of ’real-life’ challenges that
candidates might face in specific markets.
9 Second, current qualifications too often fail to have a lasting
impact on candidates’ understanding of conduct standards.
This partly reflects the issues outlined above. But it also
reflects assessment standards. Too often, training relies
primarily on passing a simple, one-off exam, meaning that a
candidate’s understanding of standards becomes out of date,
or the standards are simply forgotten. Consultation responses
pointed to the importance of meaningful continuing
professional development (or ‘CPD’) as a means of improving
long-term adherence to conduct standards. The Review
agrees, and has concluded that an integrated approach to
training must include both rigorous initial assessment
procedures, and regular follow-up training.
10 Finally, there are no market-wide standards for training
and qualifications across the FICC markets in the
United Kingdom. Although the standard of training at the top
end may have improved markedly in recent years, the
approaches to training taken by individuals and firms still
varies widely. Responses to the Review’s consultation
highlighted that the diversity of FICC markets makes them
unsuitable for a single uniform qualification for all market
participants — for example, as used in some retail markets.
However, the Review has concluded that it should be possible
to establish common minimum training standards on some
issues (for example, training on relevant regulatory standards,
knowledge of competition law and relevant codes of conduct),
as well as a range of training and qualifications that are
relevant to specific business functions in specific markets.
11 To address these gaps, the Review assessed a range of
current approaches to qualifications for market participants,
summarised in Box 14. One option is for regulatory
authorities to impose training and qualification requirements
on FICC market participants, as is currently the case for certain
retail market activities. However, the diversity of
FICC markets means it would be challenging for a regulator to
apply and maintain a qualifications framework that was
appropriately calibrated to the range of different roles that
FICC market participants perform.
12 The Review has developed a blueprint for a training and
qualifications framework designed to improve conduct
standards. That blueprint, shown in Box 15, is intentionally set
out only at a very high level, in order to allow appropriate
flexibility for market participants to meet the practical
challenges of implementation. This framework could be taken
forward by a future FICC Market Standards Board (FMSB), as
proposed in Section 4. The Review therefore recommends
that:
67
• 1b: The new FICC Market Standards Board (FMSB)
proposed in recommendation 2a should give guidance on
expected minimum standards of training and
qualifications for FICC market personnel in the
United Kingdom, including a requirement for continuing
professional development.
13 One of the important design decisions of the framework
will be setting the minimum qualification standard. Existing
qualifications available to wholesale FICC market participants
are benchmarked to a wide range of Qualification and Credit
Framework (QCF)(1) levels. For example, most elements of the
Chartered Institute for Securities and Investment (CISI) Capital
Markets Programme are benchmarked as a QCF Level 3
(equivalent to an A-level qualification in the United Kingdom).
By contrast, Level III of the Chartered Financial Analyst (CFA)
Program and the CFA charter are benchmarked at Level 7
(equivalent to a Master’s degree). The Review recommends
that the minimum standard for the FICC-wide framework
should be set at QCF Level 3. However, the Review recognises
that flexibility may be required according to the role being
examined. In some cases, for example, the required
attainment level could be higher.
14 It will be important for the FMSB to work closely with
firms and qualification providers to develop this high level
blueprint into a set of expected training and qualification
standards within FICC markets. It is not anticipated that the
FMSB would itself provide such training — but it should work
with qualification providers to ensure that the minimum
standards are met.
15 The practical challenges of implementing such a
framework should not be underestimated. For example,
before more detailed standards can be developed, it will first
be necessary to establish a categorisation of business
functions within different FICC markets. It will be important
to recognise the differences in the training needs of, say, a
debt syndication manager and a spot FX trader, but at the
same time have categories that are sufficiently broad that the
framework can be practically implemented. Certain training
modules would be common to all business functions (for
example, knowledge of regulation and competition law). But
others would be specific to particular business functions.
16 The FMSB would need to address a number of practical
issues of implementation. First, there is a question of how
experience or prior education is recognised. And second,
provisions should be made for some recognition of
qualifications held by individuals transferring into the
United Kingdom from third countries. Nevertheless, in some
(1) The QCF is the national credit transfer system for education qualification in England,
Northern Ireland and Wales. It is referenced to the European Qualifications
Framework (EQF) which relates different countries’ national qualification systems to
a common European reference framework.
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Fair and Effective Markets Review Final Report Section 5
Box 14
Alternative approaches to financial market
qualifications
activities and therefore roles that cross over more than one
activity require individuals to hold an appropriate qualification
for each activity.
Financial Industry Regulatory Authority (FINRA) —
Series 7 Examination
In the United States, securities professionals must be
registered with FINRA to conduct securities transactions and
businesses with the public. As part of the process of becoming
registered, individuals must pass an exam, the most common
being the General Securities Representative ‘Series 7’
qualification which aims to assess the competency of those
entering the securities market. The exam measures the degree
to which candidates possess the regulatory, product, and
market knowledge needed to perform the critical functions of
a general securities representative, such as sales of corporate
securities, municipal fund securities, investment company
securities, variable annuities, direct participation programs,
options and government securities. There are additional
exams required for supervisors, financial and operational
professionals, and compliance officers, among others.
Once registered, FINRA requires individuals to complete
continuing education programmes consisting of compliance,
regulatory, ethical and sales practice standards within
120 days after the second anniversary of initial registration,
and every three years thereafter. Individuals must re-qualify if
out of the industry for more than two years. Securities firms
are responsible for continuing education on products and
markets.
FCA qualification requirements for customer-facing
activities
The FCA requires individuals to attain ‘appropriate
qualifications’ if they are carrying out certain activities for
retail clients. The qualifications are mapped to specific
areas, such as knowledge of regulation, it will be important for
individuals to receive additional training on the local standards
that apply.
17 Training could be provided in-house, so long as such
training involved structured learning programmes. The FMSB
should also work with providers to ensure training and
qualifications remain up-to-date and reflect market and
regulatory developments. Guidance on continuing
The content and level of an appropriate qualification is
prescribed through examination standards which are produced
and maintained by the FCA. The FCA then reviews and
approves qualifications produced by third party training
providers to ensure that the qualifications meet the required
standard.
In addition to the minimum qualification standard, retail
investment advisors must also complete a minimum of
35 hours of appropriate/relevant continuing professional
development (CPD) each year.
Voluntary qualifications for FICC participants
There are a variety of voluntary qualifications available to
wholesale FICC market participants, which some firms
mandate for employees. These qualifications include: the ACI
Dealing Certificate, the ACI Operations Certificate, the ACI
Model Code Certificate and the ACI Diploma administered by
the ACI Financial Markets Association; the Chartered Financial
Analyst (CFA) Program and the Claritas Investment Certificate
administered by the CFA Institute; the Chartered Institute for
Securities and Investment (CISI) Capital Markets Programme;
and the Chartered Alternative Investment Analysis Association
(CAIA Association) Charter Program.
In some cases these qualifications perform an additional
function of effectively licensing individuals to perform certain
functions, with withdrawal of qualified status serving as a
potential sanction for misconduct or non-completion of CPD
requirements.
professional development should, in particular, reflect current
developments in market standards (for example, when new
standards are enacted through regulation or codes including,
potentially, materials produced by the FMSB). The
longer-term ambition would be that firms adopt a consistent
approach to using training and qualifications as part of their
certification process for staff.
Fair and Effective Markets Review Final Report Section 5
69
Box 15
Blueprint for training and qualification
standards
For example, as part of a wider training programme for traders
in a particular market, a relevant topic to cover might be
‘trading around a specific market event’. In relation to this
topic, candidates would be expected to:
Principles
The Review recommends that a training and qualification
standards framework be developed around the following set of
principles:
• Recognise and understand the distinction between
legitimate trading activity and market manipulation, and be
able to apply that knowledge when faced with similar (but
not necessarily identical) circumstances;
• Training/qualifications should have a significant focus on
the understanding of conduct standards relevant to
wholesale FICC markets;
• Understand how to execute a trade around a specific market
event with confidence that it will not be misconstrued as
market manipulation;
• Training/qualifications should include course materials
that make extensive use of real-world scenarios that an
individual may face; and
• Be aware of the necessary steps needed to ensure that
conflicts of interest are prevented or managed fairly and
effectively if/when they do arise. For example, executing a
trade on behalf of a client while also having an opposing
interest as principal; and
• Training/qualifications should have rigorous and
continuing assessment procedures, to ensure a deep and
lasting understanding of relevant wholesale conduct
standards.
Framework
The framework should ensure that there is a common
standard of basic training for FICC market participants on the
regulatory framework, competition law and codes of conduct
(where relevant). Beyond these common minimum
qualifications, the framework should give guidance on training
for specific business functions in specific markets. These
standards should ensure that FICC market participants have
received training which critically assesses their judgement of
how conduct standards should be applied, across the full range
of issues that are relevant to the function they perform.
Across each business function in each asset class, the
framework would set out:
• A minimum qualification standard, which the Review
recommends to be set at Qualifications and Credit
Framework (QCF) Level 3 (equivalent to an A-level
qualification in the United Kingdom);
• Guidance on courses that meet the expected standards;
and
• Guidance on good practice for continuing professional
development (CPD).
Use of real-world scenarios
An important element of the training and qualifications
framework is that it should require providers to assess
candidates’ critical judgement through the use of ‘real-world’
scenarios.
• Understand the appropriate way in which information about
clients’ orders should be treated.
As is clear from this example, the issues to be tested would
build closely on the granular case studies to be developed by
the FMSB, as discussed in Section 4.
The course as a whole might be developed around a number of
central practices relevant to the particular market participant,
with the aim of assessing the complete range of conduct
standards that a candidate should know and apply in his/her
market.
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Fair and Effective Markets Review Final Report Section 5
5.3 Raising standards and promoting good
practice in control and governance structures
codes of conduct and introducing new values statements.
Board-level committees have been established, dedicated to
addressing conduct issues, often coupled with an increased
interest in metrics to improve analysis of conduct standards
lower down the firm structure.
1 Higher standards of professionalism in FICC markets will
only be achieved if firms have strong controls and governance.
Firms have committed significant resources to improve control
and governance structures, but face a collective challenge in
turning this effort into lasting change and finding ways to
reassert the interests of the market over those of individual
traders or groups of traders engaged in misconduct. This
section sets out some of the most important priorities for
market practitioners in this area identified during the Review’s
outreach and consultation, and discusses ways in which the
industry might adopt a more collaborative approach to deliver
consistently higher standards, including through the proposed
FICC Market Standards Board (FMSB).
5.3.1 Where was fairness and effectiveness deficient?
2 One of the clearest messages from FICC market
enforcement cases, and the Review’s outreach, is that firms, in
the past, either allowed or encouraged cultures to develop in
which the interests of individual traders diverged from the
interest of their employers and the interests of the market as a
whole. Aggressive trading and business strategies, supported
by remuneration schemes that rewarded short-term revenue
generation, encouraged the view, in at least some trading
teams, that good conduct was a competitive disadvantage
that could be cut in the pursuit of profits.
3 On top of this, traditional board and front-line management
structures struggled to control increasingly large, diverse and
horizontally integrated businesses. Firms responded to this by
placing ever more responsibility on the so-called second and
third lines of defence. Given the tendency of these
compliance and audit functions to focus on implementing
formal regulatory rules this shift in responsibility had a
profound impact in FICC markets, given their less extensive
regulatory coverage and greater reliance on bilateral rather
than exchange-based trading structures. Even when cases of
misconduct in firms’ FICC operations did emerge, they often
failed to identify the root causes and struggled to apply the
lessons learned to other business lines.
4 Taken together, these developments substantially
undermined confidence that FICC market participants would
behave with integrity — a key component of this Review’s
definition of fairness and effectiveness. Respondents to the
Review’s consultation felt that such ‘cultural’ failings were
among the most important drivers of recent misconduct.
5.3.2 What has already been done to put this right?
5 Many firms have embarked on costly and extensive
programmes of reform, often led by CEOs, in attempts to
address these failings. Recent emphasis on tone from the top
has seen some firms take positive steps, including remodelling
6 Leadership teams have also reportedly required middle
management to give greater focus to conduct issues,
employing new training programmes and peer review
processes, while new control structures have come into being
in the form of reputational committees, reformed
HR processes, and structured reviews of client relationships.
Compliance and conduct departments, meanwhile, have
grown dramatically in size and scope.
7 Regulators have played a role in driving or reinforcing these
change initiatives, through remediation exercises with those
firms where misconduct has been revealed and other
supervisory interventions, and through the introduction of
new policies and supervisory initiatives. In the
United Kingdom, these changes have included reforms to
remuneration rules (see Section 5.4), the introduction of the
new Senior Managers and Certification Regimes (SM&CR),
publication of new strategies for supervising culture,(1) and
cross-cutting thematic supervisory reviews by the FCA
covering issues relating to governance and controls, on topics
such as market abuse.(2) In 2015, the FCA is set to conclude
reviews into the controls over information flows within
investment banks and trader controls around benchmarks.
Authorities in other jurisdictions have developed initiatives
which, while they vary in approach, have similar aims. For
example, the Australian Securities and Investments
Commission (ASIC) has developed a ‘conduct calculator’: a
tool which helps firms identify gaps in their conduct risk
framework and assess where staff knowledge of conduct
issues is deficient.(3) And in the United States, Federal Reserve
Governor Daniel Tarullo has suggested that banks need to take
more effective steps to control the behaviour of those who
work for them to achieve a good standard of compliance with
regulations and legislation.(4)
5.3.3 Where are the remaining gaps?
8 The firm and regulator-led initiatives already in train have
significantly increased focus on conduct issues in wholesale
markets, and over time should deliver substantial
improvements in fairness and effectiveness. However, the
scale and effectiveness of change has varied widely across
different firms and sections of the FICC markets. There are
(1) See for instance ‘The use of PRA powers to address serious failings in the culture of
firms’, available at www.bankofengland.co.uk/pra/Documents/publications/policy/
2014/powersculture.pdf, www.fca.org.uk/news/regulation-professionalism and
www.fca.org.uk/news/the-commercial-importance-of-culture-to-industry.
(2) www.fca.org.uk/static/documents/thematic-reviews/tr15-01.pdf.
(3) http://asic.gov.au/about-asic/corporate-publications/newsletters/asic-marketsupervision-update/asic-market-supervision-update-previous-issues/marketsupervison-update-issue-57/.
(4) www.federalreserve.gov/newsevents/speech/tarullo20141020a.htm.
Fair and Effective Markets Review Final Report Section 5
also concerns that firms’ commitment to reform may wane as
they grapple with other pressures on their business models in
the post-crisis environment.
9 The Review’s outreach identified four priority areas for focus
by FICC market participants:
(i) ensuring that firm governance has the right management
structures, boards have the correct mix of skills and
experience, and firms foster a culture of effective
challenge;
(ii) promoting integrity through firms using the right
incentive structures;
(iii) employing robust systems to monitor that policies are
effective and identify problems quickly; and
(iv) reinforcing the first line of defence and developing strong
information management systems to guard against and
deal with developing problems.
10 Sections 5.3.3.1–5.3.3.4 review each theme in more depth,
and Box 18 summarises the key messages. Section 5.3.3.5
discusses ways in which the industry might adopt a more
collaborative approach to deliver consistently higher
standards.
5.3.3.1 Firm-level governance
11 In November 2014 the FCA fined five banks £1.1 billion for
failing to control business practices in their G10 spot foreign
exchange trading operations. Despite a programme of
governance change following Libor, undertaken by the banks
involved and the wider market, the cases demonstrated that
significant failings remained. In particular, the strategic
priorities and values set out by boards and the actions taken
by frontline staff were sometimes sharply incongruent.
12 A range of work has been carried out by international
authorities on improving board effectiveness. This includes
reports by the Bank for International Settlements (BIS),(1) the
Financial Stability Board (FSB),(2) the Group of Thirty (G30),(3)
the Organisation for Economic Co-operation and
Development (OECD)(4) and most recently guidance and a
draft supervisory statement from the FCA and PRA
respectively. These reports stress the important role played by
boards in a number of conduct areas including: establishing
and monitoring strategy, culture and objectives;
communicating these throughout the organisation; providing
effective oversight and challenge on key risks, with clearly
defined responsibilities; and ensuring that both the board
itself and staff throughout the organisation have the correct
mix of skills and expertise to implement the agreed strategy
effectively. These align with the areas identified during the
Review.
71
13 Boards should ensure that structures and mechanisms are
in place so that their strategy can be effectively
communicated and understood throughout the organisation.
As the Market Practitioner Panel noted in its submission to the
Review’s consultation, this can be achieved in part via an
increased role for middle management in ensuring that
required conduct standards are cascaded down through the
firm and in particular that front office desk managers embed
the standards expected in their areas. In this context it is
worth noting that the Banking Standards Board (BSB) has said
that it expects bank boards to set appropriate tone and
culture.(5)
14 An important role of a successful board is to provide
challenge to the executive within the firm. As noted in the
recent draft PRA statement on board effectiveness,(6) boards
should include non-executive directors who have sufficient
independence and breadth of understanding to provide
effective challenge to the executives. The guidance suggests it
is good practice for at least half of the board, excluding the
chairman, to be comprised of independent non-executives.
The PRA also expects firms it regulates to have an
independent, non-executive Chairman.
15 For independent non-executive board members to be
effective, they must also have the correct mix of skills. There
is a balance to be struck between broad experience, which may
help promote challenge and a diversity of thought, and the
specialist knowledge needed to scrutinise sometimes complex
business areas. For institutions operating across multiple
FICC markets, non-executive directors with very narrow
specialisms may not be well placed to contribute to broad
strategic debate. However, where firms’ business revenues
rely heavily on FICC market activities, the lack of industry
experience is likely to limit the effectiveness of challenge by
the board. It is striking that of the 124 non-executive
group-level directors at the top ten sell-side companies
globally, fewer than ten have disclosed any direct experience
of working in FICC markets.(7) Firms have pointed to the
difficulty of attracting non-executive directors with
FICC market experience. A partial solution to this problem
may be to draw on specialist advice from time to time. But
overall, further progress needs to be made in ensuring that
boards have sufficient expertise and knowledge to identify and
challenge risks in key business areas.
(1) www.bis.org/publ/bcbs294.pdf.
(2) www.financialstabilityboard.org/wp-content/uploads/r_131118.pdf.
(3) In 2012 the G30 released a report on effective governance of financial institutions
(see www.group30.org/rpt_64.shtml). In September 2014 a new G30 Working Group
was launched to look at corporate governance and risk culture.
(4) www.oecd.org/corporate/oecdprinciplesofcorporategovernance.htm.
(5) www.bankingstandardsboard.org.uk/assets/docs/may2014report.pdf. See page 7.
(6) www.bankofengland.co.uk/pra/Documents/publications/cp/2015/cp1815.pdf.
(7) This figure includes only non-executive directors who have disclosed direct experience
as a trader or line manager in FICC-dealing activities. While other FICC experience
(eg in staff functions or business development) is highly valuable, it is less well suited
to challenge issues that arise directly from trading activities.
72
Fair and Effective Markets Review Final Report Section 5
5.3.3.2 Incentivising good conduct
while the role of trading surveillance is discussed separately in
Section 6.3.2.
16 Remuneration in FICC markets, where there can be scope
for large short-term profits, is likely to play an important role
in determining behaviour. In the past, many buy-side and
sell-side firms relied on overly mechanical revenue-driven
approaches to determining pay. That incentivised short-term
risk-taking and tended not to factor in the negative effects of
poor conduct on both the firm and FICC markets more
broadly. Decisions on promotion were also frequently based
largely on revenue generation with insufficient weight put on,
for example, past conduct records or management ability.
17 Firms are increasingly recognising the importance of using
remuneration and promotion decisions to promote better
conduct. The Review has seen a number of firms on both the
sell-side and the buy-side trying to improve the way
conduct-related factors are incorporated into their
remuneration and promotion decisions, rather than basing pay
solely on financial performance (as discussed in Section 5.4).
This includes putting pay at risk in the event of misconduct
and using a range of other non-revenue factors in pay and
promotion decisions (see Box 16).
18 The FCA’s Business Plan for 2015/16 indicated that staff
throughout all levels of the business need to understand and
accept the values and practices of their firm. The FCA
announced that it expects to conduct a cross sector thematic
review on whether culture change programmes are driving the
right behaviour, focusing on the remuneration, appraisal and
promotion decisions of middle management and how
concerns are escalated and acted upon.(1)
19 There is a risk that progress may not be sustained where
firms cannot quickly identify commercial benefits of
improvements. Human resources departments need to play a
central role in embedding non-revenue factors into decisions
on pay, promotion, performance management and
recruitment. In addition, firms should ensure that their
internal codes are strongly embedded, for example through
the use of annual attestation and other processes.
5.3.3.3 Conduct monitoring
20 Effective governance and management of conduct and
culture require an understanding of risks inherent in a firm’s
business model, good real-time information, and effective
escalation of areas of concern. Firms in FICC markets have
typically had low levels of whistleblowing and escalation, and
the use of culture and conduct metrics has lagged behind
some other industries. Timely, reliable and well-designed
indicators of problems enable management to respond
effectively and allow firms to monitor their progress against
key objectives. Much of this work is in its infancy, and faces
substantial challenges. But it also offers significant promise
and would benefit from a collaborative approach. The roles of
conduct metrics and whistleblowing are discussed below,
Conduct metrics
21 Historically, FICC market participants appear not to have
put sufficient weight on the importance of measuring and
addressing issues of poor conduct. While considerable
resources have been invested in managing various types of
financial and operational risk, approaches to measuring and
changing conduct and culture have been much less well
developed. Recent misconduct has underscored the
importance of having good management information in these
areas as a complement to effective lines of defence, and as a
means of monitoring change.
22 In a relatively short period of time, progress has been
made in developing a range of tools to measure conduct and
culture. Some of these tools focus on using existing data to
produce management ‘traffic light’ ratings, or flags, triggered
by patterns of concerning behaviour across a range of
measures, including: personal account dealing; expenses and
authorisation; timeliness of training completion; adherence
to mandatory leave policies and trader mandates; Suspicious
Transaction Reports (STRs); client complaints; and staffing
data including team turnover.
23 Qualitative surveys provide another means of measuring
conduct and culture. Many firms rely on regular annual staff
surveys to measure firm culture, but these can face a number
of challenges. For example, questions may be poorly
correlated with the factor of interest, and survey responses
may be subject to biased responses owing to leading
questions. More carefully developed internal surveys to
measure risk culture can help management identify areas of
weakness within the firm and benchmark against others (see
Box 17). An alternative or complementary approach is to use
surveys of clients. Although historically less common in
wholesale markets, some firms carry out counterparty
satisfaction surveys, and increased interest is being shown in
asking conduct-related questions.
24 Increased public awareness of firms’ conduct — both good
and bad — may also help to align the incentives of executives,
shareholders and other investors, not least by bringing
competitive pressure to bear. Currently, there are challenges
in collating data on fines levied on firms in a consistent way.
Fines are published in different ways by different regulators,
and firms are under no obligation to disclose conduct costs,
often aggregating fines with other legal costs in their annual
reports. Greater clarity in reporting by firms would help
shareholders monitor progress on conduct issues, and has
been recommended by the BSB. The Conduct Cost Project
publishes details of fines levied by a range of authorities from
(1) See page 41 in www.fca.org.uk/news/our-business-plan-2015-16.
Fair and Effective Markets Review Final Report Section 5
Box 16
Non-revenue factors in pay and promotion
decisions
Market participants have taken steps to factor a range of
non-revenue factors into decisions on pay and progression,
although that progress has not been uniform across firms.
Specific steps flagged during the Review’s outreach include:
• Wider use of so-called ‘balanced scorecards’ which combine
measures of both financial and non-financial performance.
The non-financial features of a scorecard typically include
external factors, such as the development of client
relationships, and internal factors, such as involvement in
recruitment processes and surveys.
• Peer review and 360 degree surveys to help assess an
employee’s effectiveness at working with others and
managing people and risk. Greater weight may also be put
on management skills in addition to technical skills in
promotion assessments. For example, a number of firms say
they have made a point of promoting individuals with strong
communication and team management skills ahead of
individuals seen as solely revenue generating.
around the world, split by institution,(1) and a number of
private sector firms are also looking to develop conduct
ratings using data on fines and measures of their severity.
25 While developing credible conduct measures is receiving
significant focus from some firms, those involved in this work
have made it clear that this is a challenging area and work is in
its early stages. There is therefore particular scope for
co-operation across the industry to speed up progress. But
there are also pitfalls that need to be avoided. In particular:
• An overreliance on metrics or an overly mechanical
approach may lead to poor decision-making. Metrics are a
complement to, not a replacement for, an effective first line
of defence.
73
• Some firms use third parties to get client feedback on their
satisfaction with the sales and trading services that they
receive. Feedback scores can be used to help rank
individuals against their competitors at other firms and
within the firm.
• Negative factors, such as reported conduct issues or red
flags identified in a firm’s system of surveillance, are used in
some firms to reduce pay or count against a prospective
promotion.
• An individual’s understanding of the compliance function
and relationship with compliance staff is taken into account
in some institutions. For example, some firms report that
improvements in compensation and promotion were only
awarded if explicitly supported by the compliance function
directly related to an individual’s daily activities.
• Some firms say they have attempted to promote good
conduct by including individuals’ ability to demonstrate
behaviour reflective of a firm’s core set of values (such as
mentoring and helping with recruitment) in decisions on pay
and promotion.
management decisions, they may internalise this into their
responses to questions.
Whistleblowing
26 The opacity of some FICC markets means that misconduct
can be harder to detect than in more centralised,
exchange-based markets with well-developed reporting
structures. Whistleblowing regimes can help reduce this risk
by providing an alternative means of notifying firms and
regulators where employees become aware of potential
misconduct issues. Indeed, effective whistleblowing
procedures can by themselves act as a deterrent to
misconduct if they increase the perceived chance of detection.
• The selection of metrics may be subject to so-called
‘recency bias’. Selection of data must be forward looking
rather than focused on trying solely to address the most
recent cases of misconduct.
27 Research by Public Concern at Work (PCaW) suggests that
whistleblowing may be less effective in financial services than
in the rest of the economy. A survey,(2) conducted by PCaW
from 2007 to 2012 on a sample of 320 financial service
workers who had contacted PCaW for advice, showed that
only 66% of financial services whistleblowers raised their
concerns internally at the first attempt, falling to 35% at the
second attempt if their concern was not resolved on the first
occasion. That compares to 91% and 73% in the wider
economy (Chart 4). Staff in financial services are instead
more likely to raise their concern with external regulators than
• Qualitative surveys risk falling foul of gaming or bias. For
example, when staff know that survey results may affect
(1) www.ccpresearchfoundation.com/.
(2) www.pcaw.org.uk/silence-in-the-city-whistleblowing-in-financial-services.
• Although firms have large amounts of data, those data often
provide metrics of conduct that are imperfect at best. This
creates risks around data overload, ‘big data’ techniques
delivering spurious results, or systems delivering too many
false positives.
74
Fair and Effective Markets Review Final Report Section 5
Box 17
Measuring ‘culture’
• Questions found to be consistently interpreted, valid and
reliable measures of the factor of interest, and not
containing obviously socially desirable answers (ie that do
not ‘lead the witness’).
A number of survey tools have been developed to assess a
firm’s risk culture. For example, academics at Macquarie
University’s Applied Finance Centre have designed a survey(1)
to measure risk culture,(2) demonstrate its impact on the
effectiveness of institutions, and hence deepen understanding
of how it might be improved. The survey aims to do that by
identifying the characteristics of firms perceived to have a
strong culture, and the actions (including on governance,
remuneration and risk systems) that might be effective in
improving culture.
The survey has been subject to testing, first with a
medium-sized bank as a pilot, followed by a larger survey
spread across three large international banks. Features of the
survey include:
• A ‘factor model’ approach to identify groups of questions
which are correlated with, and therefore help measure,
different components of risk culture.
Related work in this area includes: the Better Banking
Project,(3) which looks to understand the behaviours that drive
actions in financial markets, and research by Ellul and
Yerramilli (2010), which constructs a risk management index
to assess the strength and independence of risk management
in banks.(4) There is scope for further research in this area as
discussed in Box 24 in Section 7.
• Measuring whether risk management is valued within the
organisation; whether risk issues and events are proactively
identified; whether risk issues and policy breaches are
ignored, downplayed or excused; and whether line
managers are effective role models.
(1) Sheedy, E A and Griffin, B (2004), ‘Empirical analysis of risk culture in financial
institutions: interim report’, FIRN Research Paper No. 2529803.
(2) The shared perceptions among employees of the relative priority given to risk
management, including perceptions of the practices and behaviours that are
expected, valued and supported.
(3) www.newamerica.org/economic-growth/the-better-banking-project/.
(4) Ellul, A and Yerramilli, V (2010), ‘Stronger risk controls, lower risk: evidence from
US bank holding companies’, The Journal of Finance, Vol. 68(5), pages 1,757–803.
in other sectors of the economy. This might imply that staff
do not trust internal processes. The proportion of internal
whistleblowers who report that nothing is done, even if they
raise their concerns twice, is potentially also concerning
(Chart 5). At the least, this suggests that there is a lack of
feedback to whistleblowers regarding how their concerns are
dealt with. But these findings may also suggest that firms may
be missing a crucial opportunity to respond to valid concerns
that are raised.
management; or concerns by potential whistleblowers about
the level of protection they will receive (despite many
benefitting from protection under the Public Interest
Disclosure Act).(2)
28 The Review’s outreach with market participants suggests
that there has been some limited progress in this area in
recent years. Market participants had whistleblowing
procedures in place and independent whistleblowing phone
lines that employees could call to raise concerns. But many
firms noted that their phone lines were either little used
(sometimes viewed as a sign of success) or mainly caught
lower level concerns or grievances. The Market Practitioner
Panel’s consultation response noted a low level of awareness
that the FCA Market Abuse Helpline accepts anonymous calls
for reporting suspected market abuse.(1)
29 The apparent ineffectiveness of these formal
whistleblowing procedures, particularly in identifying more
serious cases of misconduct, may reflect a number of factors,
including: a de minimis approach to whistleblowing
procedures that does not extend beyond putting the basics in
place; insufficient support from organisations’ senior
30 There are a number of areas that the industry should look
to take forward. PCaW and the Institute for Business Ethics
(IBE), among others, have stated that strong endorsement for
whistleblowing, by senior management up to and including
the CEO, sends a clear message about the importance of
raising concerns. Firms should ensure that there are adequate
protections in place for whistleblowers, and that victimisation
of whistleblowers is seen as unacceptable. And, crucially, staff
should feel able to raise concerns both formally and informally
with their managers. There are a number of initiatives in this
area to which firms can sign up, including guidance from the
IBE,(3) the Chartered Institute for Securities and Investment’s
(CISI) ‘Speak Up’ programme(4) and the Whistleblowing
Commission’s Code of Practice.(5)
31 In February 2015 the PRA and FCA launched a consultation
on a new whistleblowing regime designed to help firms foster
(1) The Market Abuse Helpline is 020 7066 4900 (or see
www.fca.org.uk/firms/markets/market-abuse).
(2) www.legislation.gov.uk/ukpga/1998/23/contents.
(3) www.ibe.org.uk/userassets/briefings/speak_up.pdf and
www.ibe.org.uk/userassets/pubsummaries/speak_up_procedures_summary.pdf.
(4) www.cisi.org/bookmark/genericform.aspx?form=29848780&URL=ethicsproducts
#speakup.
(5) www.pcaw.org.uk/files/PCaW_COP_FINAL.pdf.
Fair and Effective Markets Review Final Report Section 5
Chart 4 Proportion of whistleblowing through internal
channels(a)
First attempt
Second attempt
Per cent
100
90
80
70
60
75
‘first line of defence’ (FLOD) refers to the risk mitigation and
control exercised by front-line staff within business units,
including line managers and desk heads. The ‘second line of
defence’ includes support functions, such as risk management,
compliance, legal, human resources, finance, operations and
technology. And the ‘third line of defence’ is the internal audit
function that independently assesses the effectiveness of the
processes created in the first two lines of defence, and
provides assurance on those processes.
50
40
30
20
10
Financial services
0
Wider economy
Source: Public Concern at Work, ‘Silence in the City? Whistleblowing in Financial Services’ and
‘Whistleblowing: the Inside Story’.
(a) Definition of internal channels includes: line managers, senior managers, executive or
directors, compliance, risk, legal or audit functions and internal whistleblowing hotline or
designated officer.
Chart 5 Responses to internal whistleblowing in
financial services
Raised once
Raised a second time
Per cent
33 Recent FICC market enforcement cases suggest that this
model has not always been effective in recent years. In
particular, they show that firms were too reliant on the second
and third lines of defence. These second and third lines often
did not have sufficient knowledge, expertise, information or
authority to provide effective control or oversight. They were
functionally and physically separate from the activities of
traders and sales people. At the same time, effectiveness of
the first line was undermined by a lack of clarity about the
standards front office staff were expected to adhere to,
including how they should handle conflicts of interest. An
example of such failings was provided by the November 2014
foreign exchange (FX) enforcement actions, where the FCA
stated:
100
80
60
‘Between 1 January 2008 and 15 October 2013, ineffective
controls at the banks allowed G10 spot FX traders to put
their banks’ interests ahead of those of their clients, other
market participants and the wider UK financial system. The
banks failed to manage obvious risks around confidentiality,
conflicts of interest and trading conduct…
40
Resolution
inadequate or
not implemented
Investigation
(unknown
expectation)(a)
Wrongdoing
is stopped
Investigation
(high
expectation)(a)
Investigation (low
expectation)(a)
Nothing is done
20
0
Source: Public Concern at Work, ‘Silence in the City? Whistleblowing in Financial Services’.
(a) Detail in parentheses gives the whistleblower’s own expectation of the outcome of the
investigation: ‘low expectation’ signifies a lack of confidence; ‘high expectation’ signifies
confidence; ‘unknown expectation’ signifies uncertainty regarding the outcome.
a culture giving employees the confidence to speak out. Final
rules are expected later this year.(1) Implementation of the
new regime should provide a good opportunity for a
co-ordinated approach from industry to raising standards in
this area.
5.3.3.4 Effective first line of defence and information
management
Refocusing oversight on the first line of defence
32 The ‘three lines of defence’ model of risk management is
widely used within firms operating in FICC markets. The
Firms could have been in no doubt, especially after Libor,
that failing to take steps to tackle the consequences of a
free for all culture on their trading floors was unacceptable.
This is not about having armies of compliance staff ticking
boxes. It is about firms understanding, and managing, the
risks their conduct might pose to markets’.(2)
34 The BIS Review of Principles for the Sound Management of
Operational Risk(3) also highlighted similar shortcomings in
relation to: inappropriately classified responsibilities across
the three lines of defence; difficulty in showing independence
in FLOD risk reviews; and a lack of quality assurance in the
second line of defence.
35 The Review has heard of a number of industry initiatives in
train that go some way to addressing these problems. Many
of these developments have been on the sell-side, reflecting
(1) www.bankofengland.co.uk/pra/Documents/publications/cp/2015/cp615.pdf.
(2) www.fca.org.uk/news/fca-fines-five-banks-for-fx-failings.
(3) www.bis.org/publ/bcbs292.pdf. The BIS Review recommends action in the following
areas: improving the implementation of operational risk identification and
assessment tools; enhancing implementation of change management programmes;
strengthening the implementation of the three lines of defence, especially by refining
the assignment of roles and responsibilities; and improving board and senior
management oversight.
76
Fair and Effective Markets Review Final Report Section 5
the serious weaknesses that emerged. But the lessons are
often also germane to the buy-side, for example in relation to
ensuring best execution.
confidential information (such as during a primary issuance
sounding) and conflicts may arise between an asset manager
and its client or between fund managers within the same firm.
The FCA’s thematic review of asset management firms and the
risk of market abuse found deficiencies in some buy-side firms
in their ability to: identify when they were in receipt of inside
information; control access to, and manage disclosure of,
inside information; and use pre-trade controls and post-trade
surveillance tools to prevent insider dealing and market
manipulation.
36 One response in a number of firms has been to embed
compliance officers within the front line operations. By
connecting the second and first lines of defence, firms have
found that supervision is more effective. More importantly,
the desk head has easy access to support from compliance to
help inform his/her decisions. Firms on both the sell and
buy-side are developing better tools for monitoring trading
and communications to help detect market abuse and monitor
best execution, as discussed in Section 6.3.2.
37 Firms have identified ways to communicate messages
about the importance of good conduct from senior executives
more effectively to traders. This includes direct face-to-face
interaction with senior members of the firm, and videos of
senior executives recalling difficult trading situations they
were involved in and how they resolved them. A number of
firms run courses to inform traders of what is acceptable
conduct, with the more effective approaches typically
involving interactive discussions and debates between trading
teams and others responsible for risk, using real life examples.
38 Change in this area will be supported by the introduction
of the SM&CR. This will reinforce the accountability of senior
business managers, and also require firms to certify individuals
who could pose a risk of significant harm, which will include
many traders. Section 5.1.3.2 recommends that these
requirements be extended to a wider range of regulated firms
active in FICC markets.
Information handling and conflicts of interest
39 The appropriate use of confidential information is central
to the viability of the market making model. But inappropriate
handling of information was at the heart of many of the recent
cases of FICC market misconduct, including inappropriate
external communication in relation to benchmark fixings, and
misuse of information to front run client orders.
40 There has been mixed progress on improving the handling
of confidential data and managing conflicts of interest.
Sell-side firms have typically developed detailed
documentation and registers on conflicts of interest, but it is
unclear to what extent these sometimes lengthy documents
are of practical use to trading and sales staff. More promising
developments include thorough reviews of the use of
confidential information and increased scrutiny of trades that
are likely to be subject to conflicts or have a significant impact
on market prices. These are likely to be most effective when
backed up with direct oversight by front office managers and
when high quality locally-located compliance staff are
available to advise in cases of uncertainty.
41 Buy-side institutions are also vulnerable to potential
conflicts of interest. For example, firms may be in receipt of
42 Existing FCA rules and guidance (such as Principle 8 of the
FCA Principles for Businesses) require firms to manage
conflicts of interest fairly, both between themselves and their
customers and between a customer and another client.
Regulatory reforms are also in train to address some of the
vulnerabilities related to confidential information. But
changes in regulation need to be accompanied by
cross-industry work to make further progress in this area.
Further steps are needed to strengthen the management of
conflicts, including through: improved conflict identification;
monitoring of information barriers; and functional separation
where necessary. There is still a lack of clarity in some areas,
and existing codes and guidance appear insufficient to provide
clarity to sales and trading staff. The proposed FMSB’s work
to produce case studies on areas of uncertainty should help in
this area.
5.3.3.5 Fostering greater collaboration by market
practitioners
43 Responsibility for developing and operating effective
control and governance structures in the areas identified in
this section, and elsewhere, lies with individual firms. Change
is only likely to have lasting impact when it has strong
ownership by senior management, is well aligned with firms’
business strategies, and has a strong practical bias. As
discussed above, firms have already taken a number of
important steps. But progress overall has been uneven.
Responses to the Review strongly supported the idea of
identifying better mechanisms for sharing and promoting good
practice, to help ensure a more consistent approach and
maintain the momentum for change.
44 A number of mechanisms already exist in this area. The
FCA has an ongoing series of wholesale market thematic
reviews.(1) And firms meet in various formal or informal
groups periodically. But the Review’s analysis suggests that
there is a strong case for complementing these approaches
with a more coherent FICC-wide approach. One of the key
objectives of the proposed new FMSB would be to promote
adherence to standards by sharing and promoting good
practices on control and governance structures around FICC
business lines, as outlined in Section 4.3.2. The Review
(1) www.fca.org.uk/news/list?ttypes=Thematic+Reviews.
Fair and Effective Markets Review Final Report Section 5
recommends that an early priority for such a body should be
to set out a credible work programme for achieving this,
including ways it might enable market participants to engage
proactively with regulators to identify areas of both positive
behaviour and weakness, and open a two-way dialogue on
possible solutions.
77
78
Fair and Effective Markets Review Final Report Section 5
Box 18
Priority areas for raising standards of
governance and control structures in FICC
markets
• Exploring the scope for greater transparency over conduct
by firms, including better disclosure of fines.
Whistleblowing
• Delivering senior-level endorsement of whistleblowing
programmes;
This box summarises some of the most important priorities for
FICC firms and market practitioners to deliver lasting
improvements in governance and control structures identified
during the Review’s outreach and consultation.
• Developing effective formal and informal escalation
procedures to support the raising of concerns at an early
opportunity; and
Firm-level governance (see Section 5.3.3.1)
• Strengthening the effectiveness, and staff awareness, of
structures for protecting whistleblowers.
• Ensuring that the board has sufficient independence to
provide effective challenge;
• Ensuring that the board has sufficient expertise at its
disposal to scrutinise business areas; and
• Developing the structures and processes needed for
management to promulgate the board’s conduct strategy
effectively throughout the organisation.
Incentivising good conduct (see Section 5.3.3.2)
• Increasing the weight placed on non-revenue factors in pay
decisions;
• Developing measures of conduct that recognise good as well
as bad behaviour; and
• Embedding those measures into pay, promotion and
disciplinary decisions.
Conduct monitoring (see Section 5.3.3.3)
Conduct metrics
• Improving the use of existing firm-level data to monitor
conduct;
• Creating new tools, including robust surveys of firm culture,
to identify potential conduct vulnerabilities and their drivers;
and
Effective first line of defence and information
management (see Section 5.3.3.4)
Refocusing oversight on the first line of defence
• Fostering strong ownership of risk by business heads while
also developing an effective challenge culture;
• Supporting the first line of defence with effective ways to
identify and manage risks;
• Reinforcing standards of acceptable trading practice through
effective training; and
• Improving the support provided by the second line of
defence including through strengthened status, quality and
accessibility.
Information handling and conflicts of interest
• Developing a deeper understanding of where conflicts of
interest may occur, including the use of confidential
information;
• Identifying effective controls to reduce and manage conflicts
of interest; and
• Embedding these procedures and relevant future work on
guidelines and case studies into firm training.
Fair and Effective Markets Review Final Report Section 5
5.4 Improving the alignment of remuneration
and conduct risk
1 Remuneration is one of the central drivers of conduct in
FICC markets. So developing effective regimes to align
remuneration with conduct risk is an important priority in the
drive towards higher standards of professionalism. This
section outlines the significant progress that has been made
and suggests two important areas for further attention: first,
the increasing role of fixed pay; and, second, the extent to
which conduct risk is integrated into firms’ remuneration
decisions. The Financial Stability Board (FSB) has announced
its intention to conduct further analysis in this area and Box 19
makes a number of recommendations for further action.
5.4.1 Where was fairness and effectiveness deficient?
2 It is now widely recognised that, pre-crisis, bonuses and
other elements of the variable pay of staff at many firms were
too closely linked to short-term revenues, with insufficient
weight placed on longer-term value generation and risk for the
firm as a whole (including risk related to conduct). These pay
structures both incentivised excessive individual risk-taking
and left firms and their shareholders to absorb losses when
risks (including misconduct fines) materialised. The desire to
maximise short-term personal returns was evident in many of
the FICC market misconduct cases that have come to light,
and respondents to the Review’s consultation identified
remuneration as a central element in the drive to improve
incentives and governance across financial markets.
5.4.2 What has already been done to put this right?
3 Significant steps have been taken by national and
international authorities aimed at improving the alignment of
remuneration with prudent risk-taking. The overarching global
approach is set out in the FSB’s Principles and Standards on
Sound Compensation Practices, issued in 2009.(1) These state
in particular that compensation should be:
• adjusted for all types of risk — including reputational and
compliance risk;
• symmetric with risk outcomes — a substantial proportion of
senior risk-takers’ compensation should be variable and paid
on the basis of individual, business-unit and firm-wide
measures that adequately measure performance;
• sensitive to the time horizon of risks — a substantial
proportion of senior risk-takers’ variable compensation
should be paid out gradually over a period of years, with the
unpaid component capable of being adjusted or cancelled in
the event of negative performance of the firm or
business-line (so-called ‘malus’); and
79
• composed of assets that incentivise appropriate risk-taking
— a substantial proportion of variable compensation should
be awarded in shares or other non-cash instruments that
create incentives aligned with long-term value creation and
the time horizons of risk.
4 In its November 2014 Progress Report,(2) the FSB concluded
that implementation of the Principles and Standards had been
essentially completed by member states, although some
jurisdictions continued to refine their regimes. In the
United Kingdom, the authorities have consulted on proposals
to extend the length of deferral for senior bank managers’
bonuses from a period of between three to five years (the
current minimum period under the EU Capital Requirements
Directive) to up to seven years, exceeding the minimum
periods stipulated in other countries. Deferred pay is required
to be reduced or cancelled in the event of employee
misbehaviour, material downturns in firm performance, or
failures of risk management.
5 The European Union has also put in place remuneration
requirements for alternative fund managers and providers of
certain types of collective investment funds under the
Alternative Investment Fund Managers Directive and the
Undertakings for the Collective Investment of Transferable
Securities Directive. These are similar to those that apply to
banks and investment firms, including the requirement for part
of variable remuneration to be deferred and paid out only if
that payment is sustainable and justified.
6 For banks in the United Kingdom, the PRA has introduced a
rule on ‘clawback’,(3) allowing firms in certain circumstances to
reclaim bonuses even after they have been paid, for up to
seven years (with proposals being considered to extend this in
certain circumstances to ten years for senior managers). The
FCA is also considering the introduction of a rule on clawback,
and consulted on it as part of a wider package of measures
during 2014. In addition, the United Kingdom is subject to
EU-wide rules, which go beyond the FSB standards in a
number of ways, notably in including a maximum ratio of
variable to fixed pay (the so-called ‘bonus cap’).
7 Recent events help to illustrate the impact of these changes.
A notable development has been the application of malus in
cases of misconduct and failures of risk management. Since
the implementation of the malus rule in December 2010,
major firms in the UK have made deductions from deferred
variable remuneration for individuals implicated in misconduct
in FICC markets and elsewhere, as shown in Chart 6. Banks
have also made significant deductions from current-year
firm-wide bonus pools in respect of misconduct and other risk
management failures.
(1) www.financialstabilityboard.org/what-we-do/policy-development/buildingresilience-of-financial-institutions/compensation/.
(2) www.financialstabilityboard.org/wp-content/uploads/r_141104.pdf.
(3) www.bankofengland.co.uk/pra/Documents/publications/ps/2014/ps714.pdf.
80
Fair and Effective Markets Review Final Report Section 5
Chart 6 Total reductions to unpaid deferred bonuses(a)(b)
(malus) by major UK banks
Chart 7 Compensation structure of CEOs and direct
reports to CEOs of major banks operating in the
European Union
£ millions
350
300
Long-term incentives and
mandatory deferrals
Guaranteed allowances
Short-term incentives
Base salary
Per cent
250
100
90
200
80
150
70
60
100
50
50
40
30
0
2011
12
13
14
20
Calendar year
10
Source: Published accounts — Barclays, HSBC, Lloyds, RBS and Standard Chartered.
(a) Excluding figures for individuals who resigned or had their contracts terminated.
(b) The figure for 2014 was amended on 26 June 2015.
5.4.3 Where are the remaining gaps?
8 Taken together, these steps represent considerable progress
at both national and international level. But the extent to
which reforms to compensation structures will bring about a
lasting reduction in incentives to engage in misconduct across
financial markets as a whole will depend on how those
reforms interact with wider developments in the industry.
Two issues in particular merit further attention: first, the
increasing role of fixed pay; and, second, the extent to which
conduct risk is integrated into firms’ remuneration decisions.
0
2011
12
13
CEOs
14
2011
12
13
14
Direct reports to CEO
Calendar year
Source: Mercer Oliver Wyman.
Chart 8 Breakdown of pay for the eight highest paid
senior non-board executives at four major UK banks(a)
Variable equity
Variable cash
Fixed pay
Per cent
100
90
80
70
9 Recent data suggest that fixed pay (salaries and certain
types of allowance) is forming an increasing proportion of
total pay for major banks operating in the European Union,
with an accompanying fall in the proportion of variable pay
(bonuses and long-term incentive plans). Chart 7 shows the
remuneration of CEOs and their direct reports over the past
four years. The proportion of CEO pay comprising base salary
rose from 46% to 68% during that period, while for their
direct reports the figure rose from 48% to 72%. The
proportion of CEO pay that may be subject to long-term
adjustments and deferrals fell from 41% to 21%, while for
their direct reports it fell from 34% to 16%.
10 A similar trend is visible in data for senior non-board
executives at a number of major UK banks (Chart 8). While it
is possible that part of this trend reflects a cyclical slowdown
in financial market activity, firms have also said that a
significant driver has been the impact of remuneration
regulation since 2010 and the need to retain staff who might
otherwise move to less regulated sectors. One way to retain
staff has been to limit the proportion of their pay that is
subject to adjustment (ie the variable portion) and shift the
balance towards the fixed portion, which is paid in cash and is
not subject to longer-term adjustments such as deferral,
malus or clawback. The EU bonus cap has added a further
60
50
40
30
20
10
2011 12 13 14
Bank A
11 12 13 14
Bank B
11 12 13 14
Bank C
11 12 13 14
Bank D
0
Calendar year
Source: Published accounts.
(a) Estimated future pay-outs of long-term incentive plans not included.
dimension to this debate by limiting the ratio of variable to
fixed pay.
11 In November 2014, the Chancellor of the Exchequer asked
the Review to consider the challenges posed by this
development.(1) There are two reasons why it may be a cause
for concern:
• First, as the variable proportion falls, the incentive effect of
remuneration rules weakens, because a shrinking proportion
(1) www.gov.uk/government/uploads/system/uploads/attachment_data/file/
377192/CX_MC_201114.pdf.
Fair and Effective Markets Review Final Report Section 5
of total pay is potentially subject to longer-term
adjustments. This limits the potential for variable pay to
exercise a positive influence on the day-to-day
decision-making of employees, and undermines efforts to
align compensation with risk.
• Second, as the fixed proportion of total pay rises, firms
accumulate larger fixed cost bases which cannot be adjusted
easily in times of stress.
12 More generally, poorly aligned incentive structures may
result in individual conduct that leads to significant losses and
reputational damage for a firm.
13 The Review’s work also highlighted the importance of
ensuring that conduct risk is integrated into firms’
remuneration decisions. The FSB’s November 2014 Progress
Report noted that banks had continued to improve their
governance frameworks for remuneration, and better practices
were being seen in terms of ex-ante adjustment of
remuneration for risk. However, challenges were reported to
remain in the application of risk metrics to business lines and
individuals, and the development of transparent and
consistent policies and procedures to guide the use of
discretionary pay awards. The Review has heard a similarly
mixed picture in its own outreach. Some firms said they have
had success in introducing so-called ‘balanced scorecards’ for
assessing remuneration awards, using both traditional revenue
and new conduct-based metrics. But the robustness of
metrics used, and the consistency of application, appears to
vary quite widely, as discussed in Section 5.3.3.2. Both
President William Dudley(1) of the Federal Reserve Bank of
New York and Governor Daniel Tarullo(2) of the United States
Federal Reserve Board have noted the importance of
remuneration structures in driving culture and behaviour.
81
President Dudley, in his speech in October 2014, pointed to a
number of innovative potential conduct-related measures in
that direction.
14 These concerns, and the importance of effectively
managing conflicts of interest relating to remuneration, are
not limited to banks. For example, a recent FCA enforcement
case involving a major asset manager highlighted a practice
known as ‘cherry-picking’ in which traders at the firm had
incentives to favour funds paying higher performance fees to
trigger higher pay.(3) These issues may become of greater
systemic importance if the relative size of trading volumes and
pay levels continues to shift towards the buy-side, as they
appear to have done in recent years.(4)
15 Following its March 2015 plenary meeting in Frankfurt, the
FSB announced its intention to review how the incentives
created by reforms to remuneration structures (among other
things) had helped to reduce misconduct, and whether any
additional measures were needed.(5) Given the global nature
of financial markets, it is right that this analysis should
proceed at an international level. Box 19 suggests two
potential areas for further investigation by the FSB. The
Review therefore recommends that:
• 4d: The FSB should examine further ways to improve the
alignment between remuneration and conduct risk at a
global level.
16 Closer focus on conduct may also call for fresh
consideration of the appropriate components of remuneration
packages, in particular the current preference for using cash
and equity (Chart 8). Box 20 considers whether the use of
debt structures could help to strengthen the alignment
between remuneration and conduct risk.
(1)
(2)
(3)
(4)
www.newyorkfed.org/newsevents/speeches/2014/dud141020a.html.
www.federalreserve.gov/newsevents/speech/tarullo20141020a.pdf.
www.fca.org.uk/your-fca/documents/final-notices/2015/aviva-investors.
http://newfinancial.eu/wp-content/uploads/2015/02/Feeling-the-squeeze-NewFinancial-report-on-pay-Feb-2015.pdf.
(5) www.financialstabilityboard.org/wp-content/uploads/Press-Release-FSB-PlenaryFrankfurt-final-26Mar15.pdf.
82
Box 19
Ways in which the FSB standards for
remuneration might be developed
The FSB might consider developing further analysis on the role
of remuneration in reducing the likelihood of conduct failures,
building on the points made in its November 2014 Progress
Report.(1) While consideration has been given to ex-post
measures that may apply after a conduct failure (such as
malus and clawback), less attention has been given to the
ways in which remuneration structures may anticipate
conduct-related risks and reduce the likelihood of misconduct
in the first place. At one level, this might involve firms
attaching to malus and clawback clauses more explicit
conduct-based triggers that are clearly linked to measures
such as conduct costs, balanced scorecards and client
satisfaction with standards of professional conduct. At
another level, this could involve revisiting the structure and
the qualitative components of both fixed and variable
remuneration. In that regard, two potential lines to explore
are discussed below.
• Ensuring that an appropriate proportion of remuneration
is variable. If the reduction in the proportion of
remuneration that is subject to adjustments persists, the
incentives towards good conduct will be weakened. FSB
Standard 6 recommends that a ‘substantial’ proportion of
material risk-takers’ compensation should be variable. To
underpin this standard, the FSB could consider clarifying
expectations around levels of variability in remuneration.
Key to this will be an analysis of how different proportions
of variable pay may exert more or less influence over the
Fair and Effective Markets Review Final Report Section 5
decisions and conduct of individuals: for example, could a
structural shift to receiving the bulk of remuneration as
fixed pay lead to complacency and a lack of attention
towards good standards of conduct? What are the practical
and legal challenges? What measures can be taken to
ensure that a lower level of variable remuneration is still
capable of driving good conduct? And how can this be
achieved while retaining the flexibility for firms to pay no
variable remuneration in situations where such payments
would be unjustified?
• Promoting the use of a wider range of instruments and
payout structures. The FSB could give further thought to
how the composition of remuneration incentivises conduct.
In particular, further consideration could be given to the
types of instruments used in remuneration. Although the
FSB’s Principle 7 states that ‘the mix of cash, equity and
other forms of compensation must be consistent with risk
alignment’, it is rare at present, particularly in banks, for
remuneration packages to comprise anything other than
cash and equity (typically in the form of shares). As
discussed in Box 20, there could be merits in applying a
more varied combination of equity and debt instruments as
part of variable pay, including debt-like structures such as
‘performance bonds’ which may have particular advantages
from a conduct risk perspective. In situations where the
variable proportion of remuneration is inadequate to
incentivise good conduct, the FSB may wish to consider
whether it is desirable to extend the use of such instruments
to fixed remuneration as well.
(1) See Section III.2.1, www.financialstabilityboard.org/wp-content/uploads/r_
141104.pdf.
Fair and Effective Markets Review Final Report Section 5
Box 20
Illustrating the conduct incentives of
equity vs debt compensation
In order to meet Standard 8 of the FSB’s Principles and
Standards on Sound Compensation Practices, which calls for a
significant part of total compensation to be paid in a non-cash
form, firms have so far shown a preference for the use of
equity (Chart 8) rather than debt instruments. But the
incentives imposed by equity differ significantly from those of
debt, not least in the area of conduct risk.
Chart A gives a stylised illustration of how a firm’s equity and
debt values vary with the value of the firm’s assets. While
equity-based remuneration has some useful risk-sharing
properties (in a downturn, equity starts to lose value sooner
than debt), it also offers potentially unlimited upside, which
may encourage a ‘double or quits’ approach to risk-taking and
a lack of attention to good standards of conduct as
equity holders try to drive up the firm’s value even further.
Debt-based remuneration on the other hand offers limited
upside even if the value of the firm increases, while at the
same time carries exposure to downside risk if the value of the
firm falls. This implies that the use of debt-based structures in
remuneration could help to temper the conduct and
risk-taking incentives of equity-based pay.
Chart A Stylised values of equity and debt instruments
as a firm’s asset value changes
Value of instrument
Equity
Point of insolvency
Debt
Asset value of firm
Traditional debt instruments (such as that illustrated in
Chart A) may not necessarily be ideal for this purpose as
typically they only start to lose their value at or near default,
which may be too late to impose the desired conduct
incentive effect. For firms operating in the European Union,
there are also detailed eligibility criteria for the use of debt in
remuneration, such as a prescribed maximum rate of return,
which may pose further implementation challenges.
Possible mechanism for implementation
An alternative would be to implement a debt-like structure
that is capable of more directly incentivising good conduct.
83
One such structure could be the ‘performance bond’
suggested by President William Dudley of the Federal Reserve
Bank of New York. Under this type of arrangement, part of
the employee’s remuneration could be paid into an account
where it remains held for a substantial period of time. Funds
in the account could be drawn on by the employer to meet
conduct-related costs such as regulatory fines, although the
employer could also attach other triggers or conditions as part
of the employment contract. If no such costs are incurred,
funds would be released to the employee at the end of each
holding period. Consideration might be given to the
proportionate application of such measures; for example how
it might be applied to senior managers and risk-takers.
Proposals to implement this type of structure would need to
consider some important implementation challenges:
• Shareholders have been reluctant to support the use of debt
instead of equity in remuneration, fearing that it could
weaken senior management’s incentives to act in
shareholders’ best interests. Firms may also seek to push up
pay levels to compensate for the more limited returns from
debt compared to equity-based awards. Both these
concerns may be addressed by ensuring that senior
management receive an appropriate combination of cash,
equity and debt-based remuneration. The inclusion of debt
as part of the award package could provide a better balance
to the current practice of pure cash-and-equity based
awards. And in the case of the ‘performance bond’
structure, there should be an added advantage for
shareholders in that a proportion of conduct costs will be
shifted from them to the staff whose funds will be used to
meet those costs.
• Firms may cite legal, regulatory and structural requirements
of debt issuance as making payment in debt instruments
costly and impractical. The issuance of new debt
instruments to meet changing remuneration requirements
each year may incur substantial costs, for example to meet
regulatory rules on prospectuses and to take account of
changing interest rate conditions. These concerns could be
addressed by using a debt-like structure like a ‘performance
bond’, which could be less complex because the terms do
not need to conform to external market conventions.
• It has been noted that firms may seek to remunerate staff in
a debt instrument that pays exceptionally high interest rates
in order to compensate them for the potential future loss of
earnings, thus partially or completely undermining the
intended positive incentive effect. To address this concern,
firms would need to take into account the overall incentive
effect of any debt-like structure when putting it in place.
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Fair and Effective Markets Review Final Report Section 6
6 Stronger, more forward-looking
tools for firms and regulators to
detect and address misconduct
1 This section examines ways of dealing with those who
engage in misconduct in FICC markets, looking both at how to
increase the likelihood of catching wrongdoing at an early
stage (surveillance), and how to increase the expected cost to
those found to be responsible (penalties). Although it is often
assumed that these tasks fall primarily to regulators, they are
in truth shared responsibilities between firms and authorities.
An important lesson from the enforcement actions of recent
years is that firms must ensure they have the means to detect
wrongdoing (since they are closest to the actions of their
own staff and counterparties) and act decisively when it is
detected (since they stand to lose the most, financially and
reputationally).
2 The Review’s consultation identified widespread support for:
(i) greater focus on punishment for individuals in addition to
action against firms, and (ii) a more forward-looking approach
to reducing misconduct in FICC markets, including earlier and
more comprehensive detection. After reviewing the sources of
the problems and the steps already taken to address it, this
section focuses on four areas where action is needed:
(i) extending the UK criminal sanctions regime for market
abuse; (ii) making use of IT developments and other tools to
help detect misconduct at an earlier stage;
(iii) forward-looking supervision and early intervention
measures by regulators; and (iv) ensuring that FICC firms
comply with suspicious transaction reporting requirements.
6.1 Where was fairness and effectiveness
deficient?
3 Evidence from enforcement actions and the Review’s
outreach with market participants suggests that, prior to the
crisis, there was a culture of impunity in some parts of
FICC markets, framed by a perception that misconduct would
go either undetected or unpunished. Benchmark
manipulation, and attempted manipulation, occurred in some
cases over periods of several years. Yet the language used in
electronic communications cited in enforcement cases
suggests that those involved did not expect their behaviour to
be identified by management, internal compliance or external
supervisors.
4 Respondents to the Review identified a number of potential
reasons for this apparent sense of impunity:
• First, the probability of detection by firms’ own
management or risk functions was perceived to be low in
some cases, reflecting the progressive delegation of risk
responsibilities to the second and third lines of defence
described in Section 5.3, and underinvestment in tools for
monitoring the behaviour of staff and counterparties.
• Second, those factors were felt to have been particularly
pronounced in some FICC markets, reflecting a combination
of patchy internal data sources (caused, for example, by
greater reliance on voice rather than electronic trading
systems), and a perception of limited formal guidance on
standards and external scrutiny — particularly in less
regulated markets such as spot FX. FICC markets that fall
outside the scope of the existing UK market abuse regime
also lay outside of the scope of the requirement to report
suspicious transactions to the FCA under the Suspicious
Transaction Reporting (STR) regime — an important tool for
detecting and deterring market abuse in equity and other
markets.
• Third, there was evidence of a reluctance to punish
misconduct by high performers in some firms even when it
was detected, which may have been heightened where
trading in FICC markets was contributing especially heavily
to firms’ overall revenues.
• And, fourth, there was a perception that civil or criminal
enforcement by the authorities was not a commonly used
tool in wholesale FICC markets in the pre-crisis period. In
particular, the range of instruments covered by the UK civil
and criminal sanctions regimes against individuals and firms
had failed to keep pace with the move towards organised
trading platforms in these markets.
6.2 What has already been done to put this
right?
Regulatory and criminal penalties
5 Since the financial crisis, significant steps have been taken
to maintain and enhance the effectiveness of enforcement and
criminal sanctions for market abuse in the United Kingdom.
The FSA and subsequently the FCA have adopted a more
active credible deterrence approach since 2008, and in 2010
Fair and Effective Markets Review Final Report Section 6
introduced a new policy to impose penalties in a more
transparent and consistent manner.(1) As a result, the
regulators materially increased the scale and breadth of their
enforcement actions across a number of products, markets
and practices, with the objective of effecting changes in
behaviour and culture, and deterring misconduct in financial
markets (Chart 9).
85
defraud has been secured in relation to Libor misconduct,(2)
while another trial and other investigations are ongoing in
relation to both Libor and FX manipulation.(3) Building on the
experience developed in recent years through prosecuting
market abuse offences, the FCA is now working with a number
of domestic and international partners including the National
Crime Agency and the Serious Fraud Office with a view to
tackling the most sophisticated types of offending.
Chart 9 FCA regulatory actions
£ millions
250
Value of penalties
(right-hand scale)
Number of Final Notices(a)
(left-hand scale)
1,600
1,400
200
1,200
Chart 11 Successful prosecutions for insider dealing
since 2009
Length of custodial sentence:
0–2 years
4+ years
2–4 years
Suspended sentences(a)
Number of prosecutions
1,000
150
12
800
10
Number of penalties
(left-hand scale)
100
600
8
400
50
200
0
6
0
2002 03
04
05
06
07
08
09
10
11
12
13
4
14
Source: FCA Final Notices 2002–14.
2
(a) Includes only Final Notices issued by FSA and FCA enforcement.
6 Within this total, fines levied in FICC markets, including
those relating to Libor and foreign exchange misconduct, have
risen sharply since 2010. Similar trends have been seen in
other jurisdictions (Chart 10).
Chart 10 International comparison of FICC fines(a)
16
Number of fines
Number of fines
90
United States
(right-hand scale)
14
100
80
12
70
10
60
8
50
6
40
2009
10
11
12
13
14
15
0
Source: FSA/FCA Annual Reports.
(a) Suspended sentences reflect substantial co-operation provided to FSA/FCA and/or the
particular personal circumstances of the individual involved.
8 The FCA has also taken regulatory enforcement action, with
85 Final Notices in respect of market abuse issued between
April 2003 and March 2015. Of these, 75 were to individuals,
including for example action taken for market abuse in the
gilts market.(4) In addition, the FCA has imposed sanctions
relating to similar failings in other FICC markets, such as the
Libor, FX and gold fixing cases.(5)
(a) Data include regulatory fines and certain criminal and civil market abuse penalties from
major financial centres.
9 The Senior Managers and Certification Regimes (SM&CR),
which come into force in March 2016, will place greater
emphasis on individual responsibility within UK banks, building
societies, credit unions and PRA-designated investment firms
(and potentially a wider range of FICC market participants as
proposed in Section 5.1.3.2). This should make it easier to
identify the matters for which a senior individual within a firm
is responsible, and therefore easier to hold individuals to
account when misconduct occurs.
7 The UK authorities have sought to focus on individual
accountability in their enforcement work wherever possible,
including through criminal prosecutions. Across financial
markets as a whole, there have been 27 successful
prosecutions by the FSA/FCA since 2009 for insider dealing,
23 of which have resulted in a custodial sentence of up to
four years (Chart 11). A criminal conviction for conspiracy to
(1) www.fsa.gov.uk/library/communication/pr/2010/036.shtml.
(2) www.sfo.gov.uk/press-room/latest-press-releases/press-releases-2014/libormanipulation-banker-pleads-guilty-to-conspiracy-to-defraud.aspx.
(3) www.sfo.gov.uk/press-room/latest-press-releases/press-releases-2012/libor-sfo-toinvestigate.aspx and www.sfo.gov.uk/press-room/latest-press-releases/pressreleases-2014/forex-investigation.aspx.
(4) www.fca.org.uk/your-fca/documents/final-notices/2014/mark-stevenson.
(5) www.fca.org.uk/static/documents/benchmark-fines.pdf.
United Kingdom
(left-hand scale)
30
4
Rest of World
(left-hand scale)
20
2
10
0
2010
11
12
13
14
0
Source: Corlytics.
86
Fair and Effective Markets Review Final Report Section 6
10 In addition to these steps, the UK criminal regime for
market abuse (which already covered Libor) has been
extended to cover seven major FICC benchmarks on the basis
of the Review’s August 2014 recommendation (see
Section 3.2). In relation to these benchmarks, it is now a
criminal offence to make misleading statements or create a
false or misleading impression of the value of investments that
could affect them.
July 2014 the FCA’s Market Watch newsletter outlined the
application of the STR regime to fixed income markets.(1) And
the implementation of MAR in July 2016 will require firms to
report suspicious transactions across a wider range of
FICC markets.
11 In July 2016, the Market Abuse Regulation (MAR) will come
into force. Box 21 provides a summary of the provisions set
out in the current market abuse regime and how the position
will change with the introduction of MAR.
Firm-level surveillance
12 Firms have made progress developing more sophisticated
techniques to monitor for misconduct by traders since the
crisis and in light of recent enforcement actions. Increased
investment in surveillance systems, and wider availability of
market-wide pricing and trading data in some FICC markets,
has improved the scope for firms to perform comparative
analysis of trading outcomes. The approaches used and the
number of trades surveyed vary across market participants,
with larger horizontally integrated firms generally employing a
wider range of surveillance techniques. The Review’s market
outreach indicated that some firms have increased the extent
to which more sophisticated techniques — such as analysis of
unusual patterns of trading behaviour or ad hoc reviews of
large or particularly profitable trades — are employed in the
detection of misconduct.
13 Firms with a significant volume of voice-brokered trading
face a particular surveillance challenge, because of the
difficulties of integrating electronic trade data with voice
recording systems, instant messaging and email systems. In
these cases, some FICC market participants have begun to
move away from manual monitoring of voice communication
towards more electronic techniques based on the
identification of key-words. Such techniques remain at an
early stage of technological development and their
effectiveness can currently be limited by the wide variation in
words used. Alternative approaches that monitor written
electronic communication channels (eg instant messaging or
email) for key-words (so-called ‘lexicon-based approaches’)
have been more widely adopted and can help to improve
surveillance levels. But traders who know they are being
monitored may attempt to switch to different channels and
new words. And staff reviewing the results of key-word
surveillance require a detailed understanding of the activities
taking place in order to identify genuine areas of concern.
15 MiFID2 extends general transaction reporting requirements
beyond instruments admitted to trading on traditional
exchanges to include all regulated trading venues, derivatives
which have instruments trading on trading venues as an
underlying, and derivatives related to those instruments. As
extended reporting requirements come into force with MiFID2
from January 2017, firms in the United Kingdom and across
the European Union will be required to provide data on
transactions across a wider range of FICC markets, and
regulators will have access to a progressively larger data sets
to perform market surveillance, using a variety of techniques
and technologies.
16 As well as reaching out to participants to discuss current
and emerging surveillance issues, the FCA has announced
plans to deliver an industry education programme on MiFID2
transaction reporting to provide market participants with the
knowledge and skills to improve transaction reporting in their
firms. This should lead to improved overall data quality and
enable more effective monitoring.(2)
6.3 Where are the remaining gaps?
17 Recent high profile FICC markets enforcement actions have
resulted in very significant fines for firms, and have shown that
conduct that undermines the integrity of financial markets will
not be tolerated by regulators. However, the Market
Practitioner Panel (MPP) noted in its response to the Review’s
consultation that it is possible firms may begin to treat large
enforcement fines as a cost of doing business, reducing the
potential deterrent effect. To bring about a more lasting
change in behaviour, responses to the Review highlighted four
main themes. First, the importance of holding individuals to
account for misconduct in FICC markets, in particular through
the possibility of longer jail sentences. Second, the
importance of improving firm-level surveillance and penalties
to detect and deal with misconduct without the need for
regulatory intervention. Third, the need to identify and deal
with cases of misconduct earlier in the cycle, through a
combination of more effective surveillance, a forward-looking
supervisory strategy and — where necessary — ‘early
intervention’ by regulators. And fourth, the importance of
suspicious transaction reporting requirements. These are
considered in turn below.
Regulatory surveillance
14 In recent years, the supervision of wholesale market
conduct has become more forward-looking in many countries,
reflecting the experience of the financial crisis. For example, in
(1) www.fca.org.uk/static/documents/newsletters/market-watch-46.pdf.
(2) www.fca.org.uk/static/channel-page/business-plan/business-plan-2015-16.html.
Fair and Effective Markets Review Final Report Section 6
Box 21
Scope of the civil and criminal market abuse
regime in the United Kingdom
The scope of the market abuse framework in the
United Kingdom is established in both civil regulation and
criminal law.
The current market abuse regime
The current UK civil market abuse regime prohibits two broad
categories of behaviour: insider dealing and market
manipulation. The regime was introduced in 2000, but was
substantially updated in 2005 to implement the EU Market
Abuse Directive (MAD).
Currently the regime applies only to behaviour ‘in relation to’:
(i) ‘Qualifying investments’: including listed equities,
UK government bonds, some corporate bonds and listed
derivatives, admitted to trading on a ‘prescribed market’.
(ii) Other investments, including derivatives, the price or
value of which depends upon or affects the price or value
of a traded investment caught under point (i) above.
This produces a somewhat wider scope than it might at first
appear, because a number of instruments that are in practice
traded largely OTC are brought into scope by virtue of being
also admitted to trading on a prescribed market. The regime
also captures trading in any physical commodity that seeks to
manipulate a related exchange-traded derivative.
In addition to this civil regulatory regime, the United Kingdom
also has a criminal market abuse regime that establishes
insider dealing offences and offences of market manipulation
through misleading statements or impressions, and
benchmark manipulation.
A significant proportion of FICC activity nevertheless falls
outside the scope of the existing civil and criminal regimes, for
example:
(i) Unlisted bonds, interest rate swaps, credit and commodity
derivatives that are traded OTC (provided the price or
value of such instruments does not depend upon or affect
the price or value of a traded financial instrument);
87
(ii) Spot commodities (except in respect of behaviour that has
a manipulative effect on a financial instrument admitted
to trading); and
(iii) Spot FX (except in respect of behaviour that has a
manipulative effect on a financial instrument admitted to
trading).
The future market abuse regime
A new Regulation relating to civil market abuse offences at an
EU level has recently been agreed. From July 2016, MAD will
be replaced by the Market Abuse Regulation (MAR).
Implementation of MAR will extend the scope of the UK civil
market abuse regime to financial instruments on all regulated
trading venues, including Multilateral Trading Facilities (MTFs)
and Organised Trading Facilities (OTFs). In the context of
market manipulation, MAR also specifically captures behaviour
in relation to spot commodity contracts which are related to,
or have an effect on, financial instruments traded on a venue.
In practice, this will mean that a greater range of FICC
instruments are covered, as these are often not admitted to
trading on the limited number of prescribed markets covered
by the current regime. MAR will also introduce a new civil
offence of benchmark manipulation. This will cover any
financial benchmark by reference to which the amount
payable under or value of a financial instrument is determined,
which should include all FICC benchmarks.
These changes mean that the main areas of FICC not covered
by MAR, absent any other changes, may be limited to:
(i) The spot FX market (except in respect of behaviour that
has a manipulative effect on a financial instrument
admitted to trading); and
(ii) Other markets which trade exclusively OTC (for example
bespoke derivative contracts) and where the price or value
of such instruments does not depend on or affect the
price or value of traded financial instruments.
Sections 4.3.3 and 6.3.1 discuss these cases.
88
Fair and Effective Markets Review Final Report Section 6
6.3.1 Extending criminal sanctions for market abuse
recently announced work towards a global code. The
extension of the scope of the UK criminal sanctions regime for
market abuse should take this recommendation into account
and allow for the possibility of further extension, with relevant
consultation, to other OTC FICC markets outside the scope of
MAR. HM Treasury may also wish to consider the extension of
the current market abuse regime to include financial
instruments and benchmarks which will be covered under
MAR but which fall outside FICC, to achieve consistency across
financial markets.
18 One barrier to the greater potential use of criminal
sanctions against individuals suspected of engaging in market
abuse in FICC markets is the limited scope of existing
legislation. It is possible that these gaps in the scope of the
criminal sanctions regime may have contributed to the sense
of impunity that prevailed before the financial crisis,
undermining overall confidence in market integrity. To close
these gaps, some respondents to the consultation felt that the
scope of the United Kingdom’s criminal sanctions regime
should be aligned with the forthcoming changes to the civil
market abuse regime (outlined in Box 21).
19 Respondents also agreed that changes to the UK criminal
sanction regime should be aligned with further changes in the
European Union being introduced through the Criminal
Sanctions Market Abuse Directive (CSMAD). CSMAD creates
new minimum criminal standards for the offences of insider
dealing and market manipulation, and makes manipulating or
attempting to manipulate any benchmark a criminal offence.
In 2014, the Government announced that the United Kingdom
would not opt into the EU rules set out in CSMAD, but that
the UK criminal sanctions regime for market abuse would be
updated, and would be at least as strong. The
recommendations below are designed to deliver that
objective, and could be implemented as part of the
forthcoming changes to the United Kingdom’s criminal
sanctions regime.
Extending the UK criminal sanctions regime for market
abuse to a wider range of FICC markets
20 It is important to ensure that the scope and coverage of
the regime reflects market developments and innovation.
Maintaining the existing UK regime would allow individuals
involved in market abuse to target instruments that fall
outside the scope of criminal sanctions in the United Kingdom.
21 The UK regime also applies criminal liability to firms in
respect of market manipulation, but it does not apply criminal
liability to firms in respect of insider dealing. To ensure a
consistent approach, the regime should be extended to apply
criminal liability to firms for both market manipulation and
insider dealing.
22 The Review therefore recommends:
• 1d: that the UK criminal sanctions framework for market
abuse for individuals and firms be updated, through an
extension to a wider range of FICC instruments (by
including all of those covered under the Market Abuse
Regulation).
23 In Section 4.3.3, the Review also recommends a new
statutory civil and criminal market abuse regime for spot
foreign exchange, drawing on, among other things, the
24 In addition the Ministry of Justice has been examining the
case for a new statutory offence of a ‘corporate failure to
prevent economic crime’, and the rules on establishing
corporate criminal liability more widely. The Review suggests
that HM Treasury considers whether further changes to
corporate criminal liability for market abuse offences are
appropriate and desirable once this work has concluded.
Lengthening the maximum criminal sentence for market
abuse offences
25 In the United Kingdom, the maximum sentence for both
insider dealing and market manipulation is seven years.
However, this maximum sentence is lower than for other
economic crimes such as fraud or bribery (which carry
maximum sentences of ten years) or money laundering (which
carries a maximum sentence of fourteen years). In terms of
seriousness and the harm caused to society, market
manipulation and insider dealing are comparable to other
economic crime offences such as fraud, and so should carry
the same maximum sentences of imprisonment.
26 When sentencing, a court will consider the circumstances
of the offence and any applicable guidelines. It will also seek
to identify any ‘aggravating’ and ‘mitigating’ factors which
apply to the offence and the offender. ‘Aggravating’ factors
identified by the courts as relevant for insider dealing cases
include: breach of trust and the nature of the offender’s
employment; deliberate, planned and dishonest action; level
of sophistication; steps taken to conceal criminal conduct;
offences committed over a prolonged period involving a large
number of individual trades; high levels of profit made; acting
in a group; and the impact of the offence on overall public
confidence in the integrity of the financial markets.
27 To date, no criminal market abuse case has been tried
which involved a significant number of these aggravating
factors, and so no case has yet resulted in a sentence being
imposed at the maximum level of seven years. Indeed, as
shown in Chart 11, the maximum sentence to date has been
four years (although in one case the original sentence was
five years four months, but reduced to four years through the
application of a sentencing discount of 25% for a guilty plea).
However, it is possible that in future there will be convictions
in a case where there are a larger number of aggravating
factors and either a very significant breach of trust by senior
Fair and Effective Markets Review Final Report Section 6
individuals and/or sophisticated criminality by organised
criminal groups. At present there would only be a limited
amount of headroom under the maximum sentence for judges
to impose an increased custodial sentence in order to mark
the seriousness of the offence and send an appropriate general
deterrent message.
28 The Review therefore recommends:
• 1e: that HM Treasury introduce legislation to lengthen
the maximum sentence for criminal market abuse from
seven to ten years imprisonment.
6.3.2 Firms’ role in misconduct surveillance and
penalties
Firm-level surveillance
29 Substantial further development of firms’ misconduct
surveillance is required to deliver fully effective oversight of
FICC markets, notwithstanding the progress noted earlier in
this section. For example, the FCA’s recent thematic review
on best execution and payment for order flow identified firms’
capability to monitor best execution — an important area of
focus for buy-side firms — as an area for improvement. The
FCA’s review found that most firms lacked effective
monitoring capability to identify failures in best execution and
noted that one firm had incorrectly concluded that fixed
income was generally out of scope of the best execution
rule.(1)
30 The forthcoming MiFID2 best execution regime will be
enhanced to require execution venues across all types of
financial instruments to disclose information on the quality of
execution they provide publicly. It will also require that firms
publicly disclose, on an annual basis, information on execution
venues they have used most frequently and the quality of
execution obtained. This will consolidate data on the quality
of execution and improve the comparability of data for
execution monitoring purposes. It is also anticipated, based
on the European Securities and Markets Authority’s technical
advice to the Commission, that firms executing orders or
taking decisions to deal in OTC products will be required to
check the fairness of the price proposed to the client, by
gathering market data used in the estimation of the price of
such product and, where possible, by comparing with similar
products.
31 The primary aim of firm-level surveillance is to identify and
mitigate behavioural and business risk by monitoring
individuals’ conduct and identifying vulnerabilities. Firms have
started to make progress in response to the limitations of
existing surveillance solutions, including the use of new
technology and analytics which go beyond the key-word
surveillance and simple statistical checks previously used by
firms to detect improper trading activity and discussed earlier
in this section. Further details on some of these themes are
outlined in Box 22.
89
32 As outlined in Section 4.3.2, it is expected that the
activities of the proposed FICC Market Standards Board
(FMSB) would include sharing and promoting good practices
on control and governance structures around FICC business
lines. The Review expects that the FMSB could play an
important role over time in helping firms to share and
promote good practice in relation to the development of
successful monitoring techniques to enhance surveillance and
oversight of FICC trading.
Firm-level penalties
33 Firms have primary responsibility for responding to
individual instances of misconduct and should have
sufficiently strong sanctions in place to deter bad behaviour.
Respondents to the consultation rightly noted the importance
of following due process in investigating such cases. However,
the Review is concerned that more effective action may still
be constrained in some cases by insufficiently challenging
internal cultures, or concerns to protect corporate reputations.
34 The appropriate response to these issues must be a
fundamental change in approach by firms. As discussed in
Sections 5.4 and 5.1, tools that could be used to strengthen
this response further include: reducing an individual’s bonus
through the use of malus or clawback, or disclosure to another
firm of an individual’s misconduct through a detailed
regulatory reference.
6.3.3 Forward-looking supervisory and early
intervention actions
35 Enforcement investigations are costly both for regulators
and for firms, and are often concluded a significant time after
misconduct took place. Where misconduct, or the potential
for misconduct, can be identified at an earlier stage, regulators
can make use of forward-looking supervisory strategies and
‘early intervention’ actions to address concerns in a more
timely way instead of (or prior to) a full disciplinary
investigation. Use of such actions covers a wide range of
scenarios, ranging from a firm changing its behaviour
voluntarily on account of supervisory prompting, to change
being imposed by the regulator’s formal use of its statutory
powers.
36 A number of respondents to the Review’s consultation
said they would welcome greater use of such actions in
FICC markets, provided that they were used in a proportionate
way. Respondents supported the onus remaining on firms in
the first instance to tackle conduct related concerns on a
pre-emptive basis, with discussions with the FCA around
remedial action where appropriate. In December 2014,
HM Treasury made recommendations aimed at ensuring that
regulators selected the most appropriate regulatory tool(s) in
(1) www.fca.org.uk/news/tr14-13-best-execution-and-payment-for-order-flow.
90
Box 22
Recent developments in firm-level
surveillance
Examples of developments in the monitoring of trading
activity highlighted to the Review include:
• ‘Pattern analysis’ which can be used to identify unusual
patterns of activity such as ‘spoofing’ (placing an order and
then cancelling it seconds later to encourage others to drive
up the price of a particular asset), front running and wash
trades, using predefined patterns of trading behaviour.
Fair and Effective Markets Review Final Report Section 6
pattern analysis, and can also be used to identify networks
of trading and communications activity which may
themselves identify vulnerabilities.
• ‘Predictive coding’, which looks to identify patterns of
activity, such as unusual use of communication, non-routine
patterns of leaving the office, non-completion of training, or
missing mandatory leave, which may flag potential conduct
concerns.
• Digitalisation of voice communications, which some firms
claim has the potential to be more effective than analysing
written communications.
• ‘Big data’ techniques, which typically use a far larger number
of inputs than standard surveillance techniques, helping to
straddle information silos. The algorithms used have the
potential to detect a wider range of suspicious activity than
These developments are in their early stages, but offer greater
scope for identifying misconduct, and reducing the number of
‘false positives’ from communications surveillance.
a particular set of circumstances.(1) The FCA and the PRA are
considering the recommendations, and plan to publish
information about their approach to implementation in due
course.
impose a requirement on a firm to undertake or cease a
particular action; and (ii) an ‘own initiative’ or ‘voluntary
variation’ of permission power under which the FCA in
voluntary cases (following an application by the firm in
question) can amend or remove a firm’s regulatory
permissions. Box 23 gives some specific examples of the use
of such powers.
37 The FCA already has an extensive set of forward-looking
supervisory and early intervention actions at its disposal, and
reconfirmed these as meeting its needs in its June 2014
responses to the Parliamentary Commission on Banking
Standards.(2) A summary of some of the forward-looking
supervision and early intervention tools which the FCA may
use is provided in Box 23. Wherever possible, regulators seek
to ensure that firms are incentivised to remedy conduct
failures voluntarily and as early as possible. Where a particular
risk is identified, the FCA may decide to undertake a further
in-depth assessment, or ‘deep-dive’ at a particular firm, and
such work may lead to risk mitigation programmes which
firms can undertake voluntarily or at the requirement of the
FCA. In these circumstances the FCA may request a voluntary
attestation from an approved person (or a senior manager
under the new SM&CR) in a regulated firm — a personal
commitment that specific action has been or will be taken to
address a particular regulatory concern. Thematic reviews can
also be used by the FCA to focus attention on current
practices and emerging trends across selected firms or a
specific sector of the market.
38 If conduct failures cannot be remedied with the voluntary
co-operation of firms through supervisory engagement, then
the regulators will consider whether formal early intervention
actions to force behavioural changes are an appropriate
response. This can include the use of statutory powers
through which the FCA can mandate significant changes in an
authorised firm’s behaviour, including: (i) an ‘own initiative’ or
‘voluntary requirement’ power under which the FCA can
39 In recent years, where such early intervention actions have
been used by FCA supervision and enforcement working
together, these have been primarily where a risk of harm to
consumers was identified. Of the 21 uses of these actions
identified by the FCA in its 2013/14 Annual Report, none
occurred in relation to the FCA’s integrity or competition
objectives, although a small number nevertheless related to
wholesale markets.(3) Greater use of these actions in pursuit
of the FCA’s integrity or competition objectives in wholesale
markets, and in wholesale FICC markets specifically, is to be
welcomed, especially where these tools can provide an
alternative to enforcement, while continuing to deliver
reductions in misconduct by firms.
40 Forward-looking supervisory and early intervention actions
have generally received limited publicity, in contrast to
enforcement actions and fines. To some extent that is
(1) ‘Review of enforcement decision-making at the financial services regulators’,
December 2014 (see recommendations 1–3), available at
www.gov.uk/government/uploads/system/uploads/attachment_data/file/389063/en
forcement_review_response_final.pdf.
(2) ‘Tackling serious failings in firms: a response to the special measures proposal of the
Parliamentary Commission on Banking Standards’, June 2014, available at
www.fca.org.uk/news/tackling-serious-failings-in-firms. See also the PRA’s related
response: ‘The use of PRA powers to address serious failings in the culture of firms’,
June 2014, available at
www.bankofengland.co.uk/pra/Pages/publications/powersculture.aspx.
(3) FCA Annual Report 2013/14, available at
www.fca.org.uk/static/documents/corporate/annual-report-13-14.pdf. Note that this
figure does not include voluntary agreements reached with regulated firms or skilled
person reviews in accordance with FSMA s.166.
Fair and Effective Markets Review Final Report Section 6
consistent with such actions being used as part of a graduated
response. However, increased publicity of their successful use
should be welcomed, especially where this would help ensure
firm or scenario-specific lessons are learnt. This should be
done in ways that ensure appropriate firm confidentiality is
maintained, so as not to impact the willingness of firms to
co-operate with regulators in such scenarios. This issue was
considered by HM Treasury as part of its Enforcement Review,
and its December 2014 report included a recommendation
that the regulators should explore how better information
might be provided, in relation both to formal enforcement and
early intervention actions. Both regulators are currently
considering these recommendations and plan to publish
information about their approach to implementation in due
course.(1)
6.3.4 Suspicious Transaction Reports in relation to
FICC instruments
41 Under existing FCA rules (giving effect to the Market Abuse
Directive), authorised firms must send a ‘Suspicious
Transaction Report’ (STR) to the FCA without delay if they
believe that a transaction which they have arranged or
executed might constitute market abuse. This requirement
applies across the same set of asset classes and markets to
which the market abuse regime outlined in Box 21 applies,
91
regardless of the venue or location of trading. STRs should
therefore be submitted even in respect of OTC trades if the
trade relates to an instrument falling within the regime. The
changes envisaged by MAR will extend the STR regime to
orders, attempted offences and a wider range of instruments,
while MiFID2 will extend general reporting and transparency
requirements to a greater universe of FICC market activity.
42 In 2014 the FCA received 1,626 STRs — a 24% rise on a
year earlier. Those STRs were reported to be generally of a
high quality. But, although firms’ STR submissions in
regulated FICC assets are increasing, they are nevertheless
only a fraction of those in equities. That could be for a
number of reasons, including the possibility that surveillance
capabilities for fixed income and derivatives activities are less
well developed than those for equities markets, perhaps
reflecting the more fragmented structure of some FICC
markets. Submitting STRs is nevertheless an FCA regulatory
requirement and is a crucial part of the FCA’s toolkit for
tacking market abuse related misconduct.
43 The FCA will continue to take steps to ensure that the STR
regime is working effectively in regulated FICC markets and
the Review calls on market participants to do more to ensure
they are meeting their obligations.
(1) ‘Review of enforcement decision-making at the financial services regulators’,
December 2014 (see recommendation 6), available at
www.gov.uk/government/consultations/review-of-enforcement-decision-making-atthe-financial-services-regulators-call-for-evidence.
Fair and Effective Markets Review Final Report Section 6
92
Box 23
Forward-looking supervision and early intervention actions — the FCA toolkit(1)
Regulatory tool
Purpose
Practical examples
Request for
attestation
To ensure clear accountability and a focus
from senior management on remedying
conduct problems in regulated firms.(2)
The FCA’s current FX remediation programme requires senior management at impacted
firms to attest that sufficient remedial action has been taken such that the firm’s systems
and controls adequately and appropriately manage the risks arising in its spot FX
business.
Thematic reviews
To assess a current or emerging risk relating
to an issue or product across a number of
firms within a sector or market.(3)
Outcomes of thematic reviews can include (i) published reports, which highlight findings
and good or bad practice; (ii) consultation on new or refined guidance; and (iii) individual
firm feedback. Firms may also choose to benchmark themselves against published
reports as a way of keeping up with good practice.
Recent thematic reviews have looked at best execution and payment for order flow as
well as asset management firms and the risk of market abuse.(4) There are ongoing
thematic reviews into trader controls around benchmarks, controls over flows of
information in investment banks and conflicts of interest in dark pools. Proposed
thematic reviews include work in relation to cultural change in banks.(5)
Deep dives can cover a wide range of topics, for instance:
Deep dives
Skilled persons
reviews
Section 166
FSMA 2000
Requirement powers
(Own Initiative/
Voluntary Power or
‘OIREQ’/’VREQ’)
Section 55L-N
FSMA 2000
Variation of
permission powers
(Own Initiative/
Voluntary Variation of
Permission or
‘OIVOP’/’VVOP’)
Section 55H-J
FSMA 2000
Request for specified
information
Section 165
FSMA 2000
To take an in-depth supervisory look at an
issue at a specific firm.
(i) a firm’s new product approval process in relation to FICC products;
(ii) cross-selling between corporate lending and debt capital market businesses; and
(iii) a firm’s conflicts of interest in its debt capital markets business.
Skilled persons reviews are used to review emerging, current or crystallised risks and can,
for example, be used to look at:
To obtain an independent view of aspects of
(i) the effectiveness of a firm’s market conduct controls;
a firm’s activities that cause the regulator
(ii) the effectiveness of a firm’s board and executive-level governance arrangements;
concern, or where the regulator requires
(iii) the effectiveness of firms’ control functions (risk management or compliance for
further analysis.(6)
example); or
(iv) the effectiveness of a firm’s trader controls.
Where an issue is identified, and the
regulator determines that the imposition of
a formal requirement is appropriate and
necessary in the circumstances.
Examples of the use of these powers include:
(i)
requiring a firm to cease a particular trading activity until the firm in question has
remediated specified concerns in relation to the trading desk (for example access by
proprietary traders to inside information);
This can be done by agreement with the firm (ii) requiring a firm to put in place appropriate governance structures and committees
to oversee regulatory concerns about the firm meeting regulatory requirements;
(where the firm agrees to apply for the
imposition of the requirement) or, if the firm (iii) requiring an external party to be appointed to monitor and oversee the board’s
compliance with the regulator’s requirements, with a direct reporting line to the
does not agree, it can be imposed by the FCA
regulator.
on its ‘own initiative’.
To amend or remove a firm’s regulatory
permissions to perform specific regulated
activities.
The variation power might for example be used to impose limitations on the number or
This can be done by agreement with the firm category of customers that a firm can deal with, the number of specified investments
(where the firm agrees to apply for the
that a firm can deal in, or the types of activities the firm is permitted to carry on.
imposition of the variation) or, if the firm
does not agree, it can be imposed by the FCA
on its ‘own initiative’.
Request for specified information
Section 165 FSMA 2000.
While firms provide information to the regulators in the context of day to day
supervision, in certain instances it may be more appropriate for the FCA to require the
provision of information or documents using its formal information gathering power.
(1)
(2)
(3)
(4)
(5)
(6)
The PRA is also able to make use of these tools in order to pursue its statutory objectives.
www.fca.org.uk/about/what/regulating/how-we-supervise-firms/attestations.
www.fca.org.uk/about/what/regulating/how-we-supervise-firms/thematic-reviews.
www.fca.org.uk/news/list?ttypes=Thematic+Reviews.
www.fca.org.uk/static/channel-page/business-plan/business-plan-2015-16.html.
www.fca.org.uk/about/what/regulating/how-we-supervise-firms/reports-by-skilled-persons.
Fair and Effective Markets Review Final Report Section 7
93
7 Conclusions and next steps
1 Table C gives the Review’s recommendations in full, along
with proposals about who might take the work forward. For
the avoidance of doubt, no part of those recommendations, or
any other part of the Report, constitutes formal guidance from
the UK regulatory authorities.
3 To ensure that momentum is maintained on those
recommendations that are under the control of the
UK authorities, the Review’s Chairs will provide a full
implementation update to the Chancellor of the Exchequer
and the Governor of the Bank of England by June 2016.
2 The recommendations vary quite widely in nature. Some
can be implemented relatively quickly, or are already
underway. Others require further discussion, international
negotiation or legislative change. Where implementation falls
to the UK authorities, they will develop and consult on
proposals in the normal way. The Review’s terms of reference
require that it should have regard to the impact of its
recommendations on: the stability, efficiency and
effectiveness of the financial sector, and its capacity to
contribute to the growth of the UK economy in the medium
and long run; the need to maintain vibrant competition in
wholesale financial markets; the competitiveness of the
UK financial and professional services sectors and the wider
UK economy; and the resources needed for implementation.
In the view of the Review’s Chairs, the package of
recommendations in this Report takes appropriate account of
these considerations. But, where required, formal cost/benefit
analyses will also need to be completed for legislative and
other changes requiring public consultation.
4 The Review has also identified a number of rather deeper
questions about the underlying drivers of behaviour in, and
structure of, FICC markets that would benefit from
longer-term research by academics and others. With a view to
catalysing this work, Box 24 sets out some of the themes that
arose during the Review’s work, and encourages efforts by the
wider academic community, policy institutions and research
departments within financial institutions to deepen the
collective body of knowledge available in this area.
5 The Open Forum, to be held at the Bank of England in the
autumn of 2015, will also provide an important opportunity
for a broad range of stakeholders to discuss the
recommendations and research themes in this Report, and the
role they can play as part of building a wider, dynamic reform
programme.
Fair and Effective Markets Review Final Report Section 7
94
Table C Fair and Effective Markets Review: recommendations and proposed owners
Near-term actions to improve conduct in FICC markets
Proposed owner Section
1 Raise standards, professionalism and accountability of individuals
a
There should be a set of common standards for trading practices in FICC markets, written in language that
can be readily understood, and which will be consistently upheld.
IOSCO
4.3.1
b The new FICC Market Standards Board (FMSB) proposed in recommendation 2a should give guidance on
expected minimum standards of training and qualifications for FICC market personnel in the United
Kingdom, including a requirement for continuing professional development.
FMSB
5.2.3
c
FCA and PRA
FMSB
5.1.3.3
d That the UK criminal sanctions framework for market abuse for individuals and firms be updated, through an
extension to a wider range of FICC instruments (by including all of those covered under the Market Abuse
Regulation).
HMT
6.3.1
e
HMT
6.3.1
The FCA and PRA should consult on a mandatory form for regulatory references, to help firms prevent the
‘recycling’ of individuals with poor conduct records between firms, with a view to having a template ready
for the commencement of the Senior Managers and Certification Regimes in March 2016. In due course, the
FMSB should consider whether there is scope to reach an industry-wide agreement to disclose further
information.
That HM Treasury introduce legislation to lengthen the maximum sentence for criminal market abuse from
seven to ten years imprisonment.
2 Improve the quality, clarity and market-wide understanding of FICC trading practices
a
The Review calls on the senior leadership of FICC market participants to create a new FICC Market Standards Market
Board (FMSB) with participation from a broad cross-section of global and domestic firms and end-users at
participants and
the most senior levels, and involving regular dialogue with the authorities, to:
end-users
4.3.2
• scan the horizon and report on emerging risks where market standards could be strengthened, ensuring a
timely response to new trends and threats;
• address areas of uncertainty in specific trading practices, by producing guidelines, practical case studies
and other materials depending on the regulatory status of each market;
• promote adherence to standards, including by sharing and promoting good practices on control and
governance structures around FICC business lines; and
• contribute to international convergence of standards.
3 Strengthen regulation of FICC markets in the United Kingdom
a
Extend the UK regulatory framework for benchmarks to cover seven additional major UK FICC benchmarks
— accepted and implemented by HM Treasury on 1 April 2015.
HMT and FCA
(completed)
3.2
b
A new statutory civil and criminal market abuse regime should be created for spot foreign exchange,
drawing on, among other things, the work of the international project to draw up a global foreign exchange
code.
HMT and FCA
4.3.3
c
Proper market conduct should be managed in FICC markets through regulators and firms monitoring
compliance with all standards, formal and voluntary, under the Senior Managers and Certification Regimes.
Firms and FCA
5.1.3.1
d
HM Treasury should consult on legislation to extend elements of the Senior Managers and Certification
Regimes to a wider range of regulated firms, covering at least those active in FICC wholesale markets.
HMT and FCA
5.1.3.2
e
Improve firms’ and traders’ awareness of the application of competition law to FICC markets, including
through the communication by the FCA of material presented in this Report to authorised firms active in
FICC markets, through firms’ internal training programmes, and through the new guidance on FICC market
qualifications and training to be developed by the FMSB.
FCA
2.4.2
Fair and Effective Markets Review Final Report Section 7
Near-term actions to improve conduct in FICC markets
95
Proposed owner
Section
BIS and national
central banks
including the
Bank of England
4.3.3
b As part of that work, or otherwise, particular attention should be given to improving the controls and
transparency around FX market practices where there may be scope for misconduct, including ‘last look’
and time stamping.
BIS and national
central banks
including the
Bank of England
4.3.3
c
IOSCO
3.3
FSB
5.4.3
Proposed owner
Section
Authorities and
firms
2.4.1
b Promoting choice, diversity and access by monitoring and acting on potential anti-competitive structures
or behaviour.
FCA and CMA
2.4.2
c
Authorities and
firms
2.4.3
FCA and FMSB
2.5
b Enhanced surveillance of trading patterns and behaviours by firms and authorities.
Firms and FCA
6.3.4
c
FCA
6.3.3
4 Launch international action to raise standards in global FICC markets
a
There should be a single global FX code, providing: a comprehensive set of principles to govern trading
practices around market integrity, information handling, treatment of counterparties and standards for
venues; comprehensive examples and guidelines for behaviours; and stronger tools for promoting
adherence to the code by market participants.
The IOSCO Task Force on Financial Benchmarks should consider exploring ways to ensure that more
consistent self-assessments against the benchmark Principles are published by administrators, and provide
guidance for benchmark users.
d The FSB should examine further ways to improve the alignment between remuneration and conduct risk at
a global level.
Principles to guide a more forward-looking approach to FICC markets
5 Promoting fairer FICC market structures while also enhancing effectiveness, through:
a
Improving transparency in ways that also maintain or enhance the benefits of diverse trading models,
including over-the-counter.
Catalysing market-led reform held back by private sector co-ordination failures.
6 Forward-looking conduct risk identification and mitigation, through:
a
Timely identification of conduct risks (and mitigants) posed by existing and emerging market structures or
behaviours.
Forward-looking supervision of FICC markets.
96
Fair and Effective Markets Review Final Report Section 7
Box 24
Future research into the fairness and
effectiveness of FICC markets
Morris, David Vines and colleagues on restoring trust in
finance,(3) amongst others.
Many of the issues considered by the Review raised questions
about the underlying drivers of behaviour in, and the structure
of, wholesale FICC markets, which could usefully be informed
by further theoretical and empirical academic research. The
development of a formal academic literature in some of these
areas has been relatively limited in recent years.
Within firms, remuneration structures are among the most
important influences on conduct and a potentially effective
way of aligning risk and individual reward. As Section 5.4
discusses, a range of challenges remain in this area and the
Review is recommending that work on improving standards for
remuneration is taken forward by the Financial Stability Board.
Areas that would benefit from further research include: the
optimal proportion of variable pay; and how different payout
structures such as equity, debt and escrow accounts can be
used to improve the alignment of incentives between firms,
staff, shareholders, creditors and other stakeholders.
To compensate for that gap and to inform its wider work, the
Review consulted with academics across a wide range of
disciplines, including market microstructure theory, financial
economics, financial law, regulatory economics, corporate
governance, behavioural economics and competition. These
discussions made a valuable contribution to the work of the
Review. In part they helped to inform the specific
recommendations set out in the body of this Report. But they
also helped identify a number of issues and themes,
summarised briefly below, where further research could
usefully deepen the basis for future policymaking. In some
cases, this research might be conducted by the authorities —
for example through the FCA or the Bank of England’s One
Bank Research Agenda.(1) But the Review would also
encourage efforts by the wider academic community and
research departments within financial institutions to deepen
the collective body of knowledge available in this area.
What role do biases and organisational culture play in
shaping conduct and risk management?
Market participants and authorities are likely to be subject to
cognitive and behavioural biases that may affect the fairness
and effectiveness of markets. For example, cultures that
reward short-term performance may result in overconfidence.
Beliefs that wrongdoing may be unlikely to be exposed may
encourage slippage in conduct standards. And incentive
structures may encourage myopia or group behaviour such as
‘herding’.
A range of work is needed to improve understanding of these
effects in wholesale markets and help counter them. Areas for
future work include: understanding how trading environments
can affect the behaviour of individuals; improving the
measurement of conduct culture and risk management within
banks and other financial institutions; developing a better
understanding of effective control and supervision
interventions including the role of codes, education and
training; and assessing how the quality of firms’ risk
management and control functions affect the likelihood of
misconduct or poor performance in times of financial stress.
Recent work in this area has been completed by Elizabeth
Sheedy and colleagues on risk culture,(2) and by Nicholas
How does the composition of remuneration affect
systemic and conduct risk within financial firms?
How do changes in the structure of FICC markets
affect fairness and effectiveness?
Developments such as the increasing diversity of trading
platforms, the use of algorithmic or high-frequency trading,
and changes in levels of transparency are likely to have
profound effects on the fairness and effectiveness of market
structures, as discussed for example by the Government Office
for Science.(4) But further research is needed to deepen
understanding of the impact of these developments on FICC
market functioning. That might include: the impact of
algorithmic trading and systematic internalisation on market
quality, welfare, conduct risks and liquidity; how controls to
manage market volatility, such as circuit breakers, should
evolve to reflect new trading structures and strategies in OTC
markets; and the impact of potential fragmentation and the
related development of new order types on the effectiveness
and integrity of markets.
The structure of FICC markets also poses a number of
challenges to traditional industrial organisation theory. While
issues of vertical and horizontal integration, concentrated
markets and monopoly power are well understood, the
specific dynamics of competition in wholesale financial
markets may merit further research. Possible questions
include: the effectiveness of competition in markets where
concentration is moderate but interactions between firms are
very frequent; the scope for collusion in markets when
concentration is heightened for short periods of time, for
example around benchmark fixes; the impact of the structure
of markets (eg centralised versus decentralised) and market
microstructure (eg the extent of transparency) on
competition; and whether, or to what extent, competition
(1) www.bankofengland.co.uk/research/documents/onebank/discussion.pdf.
(2) www.mafc.mq.edu.au/mafc/assets/File/ELEMENTS OF RISK GOVERNANCE AND
CULTURE - 17 April 2013 Final(3).pdf.
(3) www.inet.ox.ac.uk/news/capital-failure.
(4) www.gov.uk/government/uploads/system/uploads/attachment_data/file/
289431/12-1086-future-of-computer-trading-in-financial-markets-report.pdf. .
Fair and Effective Markets Review Final Report Section 7
over speed might create potential competition concerns,
including barriers to entry in OTC markets.
Why does market discipline appear so weak in FICC
markets, and how might it be improved?
FICC markets are characterised by a profusion of often
extended principal-agent relationships. For example, market
makers both trade with counterparties and manage their own
principal risk. In such circumstances, it can be challenging for
end-investors to monitor the extent to which their asset
97
managers fulfil their duties (including, for instance, best
execution). These problems are likely to be compounded
when markets are opaque in nature, making monitoring (and
showing proof of harm) more difficult. Improved
understanding of these value chains and interactions, and the
influence of different levels of disclosure, may help explain the
current apparent ineffectiveness of market discipline and may
offer solutions to improving market-based policing in FICC
markets.
98
Fair and Effective Markets Review Final Report Annex
Annex: Competition law and
wholesale markets
1 Why does awareness of competition law
matter?
The ability of market participants to trade at competitive
prices and engage in merit-based competition are two
essential characteristics of fair and effective markets.
However, attempted collusion to manipulate market prices
has featured in many of the most prominent recent FICC
market misconduct cases. Based on the consultation
responses and its own analysis and outreach, the Review has
concluded that there needs to be much greater awareness and
understanding among market participants of the existing
UK and EU competition law framework as it applies to
wholesale FICC markets.
This annex, written in conjunction with the Competition and
Markets Authority (CMA), provides a high-level summary of
the competition law framework and the means by which it is
enforced. It aims to highlight unacceptable practices and
related sanctions, as well as reminding market participants of
the leniency programmes provided by UK and EU competition
authorities. It also sets out some illustrative case studies of
historical enforcement cases relating to financial markets.
The examples of scenarios or conduct which could result in
breaches of competition law given here are illustrative only
and not exhaustive.(1)(2)
The main messages are:
• The UK and EU competition law (or ‘antitrust’)
framework covers all firms and individuals including
those operating in the financial markets. No distinction
is made between wholesale and retail markets, or
between FICC and non-FICC markets. The framework
also applies to financial markets, including spot FX,
which may currently fall outside of the direct scope of
financial market regulation.
• Breaches of competition law can have serious
consequences for individuals as well as firms — including
possible fines, director disqualification, criminal
sanctions, damages claims by third parties, and
reputational damage.
• Businesses and individuals that come forward to report
their own involvement in a cartel may have their
penalties reduced, avoid a penalty altogether and/or be
granted immunity from prosecution under the ‘leniency’
programme.
2 What are the penalties for breaching
competition law?
Breaches of competition law can have serious consequences
for both firms and individuals participating in FICC markets,
including:(3)
• Significant financial penalties for firms: firms found to
have breached competition law can be fined up to 10% of
their annual group global turnover and ordered to change
their behaviour.
• Criminal penalties and fines for individuals: individuals in
firms who engage in certain types of cartel activity (for
example, agreements between competitors on pricing,
sharing or dividing up customers or markets, or engaging in
bid-rigging in auctions or tenders) may face criminal
prosecution for an offence under the Enterprise Act 2002,
which carries a maximum sentence of five years
imprisonment, or be made to pay a fine.
• Liability in civil litigation: companies or individuals that
have suffered as a result of practices that breach
competition law may sue the firm(s) involved and, if
successful, may obtain an injunction to stop the breach
and/or damages to compensate for the loss.
• Director disqualification: company directors can be
disqualified from directorships in any UK company for up
to fifteen years.
• Reputational damage: this can be significant and long
lasting.
(1) The information provided in this section is for general information and educational
purposes only. The information may not be applicable in all situations and may not,
after the date of this final Report, even reflect the most current authority. It is not
intended and should not be construed to constitute legal advice and should not be
relied or acted upon without the benefit of independent competition law advice.
(2) For further information on competition law, see ‘Competition Law Risk: A Short
Guide’ produced by the Institute of Risk Management and Competition and Markets
Authority, available at https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/372555/CMA_Risk_Guide.pdf — and the wide range of CMA
guidance publications available on www.gov.uk/cma.
(3) For more information on fines and penalties see OFT423 OFT’s guidance as to the
appropriate amount of a penalty (now adopted by the CMA); CMA9 Cartel offence
prosecution guidance; and OFT510 Director disqualification orders in competition cases
(now adopted by the CMA). The CMA has also produced a 60-second summary guide
for Directors on avoiding cartel infringements which can be accessed on
www.gov.uk/cma.
Fair and Effective Markets Review Final Report Annex
3 What types of behaviour could breach
competition law?
There are three broad types of anti-competitive behaviour,
discussed in further detail below:
(i) Cartels;
(ii) Other anti-competitive agreements or concerted
practices; and
(iii) Abuse of dominant market position.
i. Cartels
Cartels are a serious form of anti-competitive behaviour and
involve two or more competitor firms agreeing, whether
formally or informally, to limit or cease competition between
them. The operation of a cartel may involve price-fixing,
market sharing, bid-rigging, limiting the supply or production
of goods or services, or information exchange. The agreement
or arrangement between competitors could be formed in
many ways — including a written contract, a conversation over
the phone or at a social event, a meeting or chat room, or via
emails.
Cartel behaviour can have the most detrimental impact on
competition, which is why engaging in cartel activity may lead
to criminal prosecution of individuals (under the cartel offence
in the Enterprise Act 2002), as well as fines imposed on firms
(under UK/EU legislation on anti-competitive agreements and
arrangements).(1)
In FICC markets, potential examples of behaviour which may
be indicative of cartel behaviour include:
(i) Price-fixing: agreeing with one or more competitors
(directly or indirectly) the prices at which to supply
products or services to clients (such prices could include
commissions, fees, interest rates, benchmark submissions,
discounts or rebates). Case Study 1 gives an example
from the interest rate derivatives markets.
(ii) Market sharing: agreeing with one or more competitors
to share customers or markets. Examples include where
firms: agree among themselves not to compete in
providing certain financial instruments or services; agree
not to compete with one another in certain territories; or
agree not to compete with one another for certain classes
of customer.
(iii) Agreeing to limit production or sales: Case Study 2
gives an example from the zinc market.
(iv) Engaging in bid-rigging: where a group of firms agree to
collaborate over their response to a competitive auction
or tender; for example by agreeing not to undercut each
99
Case Study 1
Illegal cartels in the interest rate derivatives
markets(1)
In December 2013, the European Commission announced that
it had fined eight international financial institutions a total of
€1.7 billion for participating in illegal cartels in markets for
financial derivatives covering the European Economic Area.
The Commission found that:
• Barclays, Deutsche Bank, Société Générale and RBS had
participated in a cartel relating to euro-denominated
interest rate derivatives linked to Euribor and/or EONIA.
Traders in those banks discussed their bank's submissions
for the calculation of Euribor as well as their trading and
pricing strategies. The Commission imposed fines totalling
€1 billion (Barclays received full immunity for revealing the
existence of the cartel). The Commission has also opened
proceedings against Crédit Agricole, HSBC and JPMorgan,
which remain ongoing.
• RBS, UBS, Deutsche Bank, JPMorgan, and Citigroup had
participated in one or more bilateral cartels relating to
interest rate derivatives denominated in Japanese yen. The
broker RP Martin facilitated one of the infringements by
using its contacts with a number of Japanese Yen Libor
panel banks that did not participate in the infringement,
with the aim of influencing their Japanese Yen Libor
submissions. The Commission imposed fines totalling
€0.7 billion (UBS received full immunity for revealing the
existence of the cartels). In addition the broker ICAP was
found to have facilitated six of the infringements, resulting
in a €14.9 million fine from the Commission in
February 2015. (ICAP announced it would be challenging
this decision).
(1) http://europa.eu/rapid/press-release_IP-13-1208_en.htm.
other on price or to ‘take turns’ and rotate the order
among them.
ii. Other anti-competitive agreements or concerted
practices
A cartel is only one form of prohibited anti-competitive
agreement. Other anti-competitive agreements or
arrangements can be either ‘horizontal’ (between competitors)
(1) However, not all cartel arrangements will give rise to criminal liability under the cartel
offence. This is because the criminal cartel offence is framed more narrowly than the
law on anti-competitive agreements in the civil regime. The offence only applies to
price-fixing, market or customer sharing, agreements to restrict production or supply,
or bid-rigging and it applies only to reciprocal arrangements between competitors.
For more information on the cartel offence in the UK see CMA9 Cartel offence
prosecution guidance on www.gov.uk/cma.
100
Fair and Effective Markets Review Final Report Annex
Case Study 2
Zinc Producer Group(1)
Case Study 3
Unilateral disclosure of confidential and
commercially sensitive information(1)
In 1984 the European Commission found that the world's
major zinc producers had formed a cartel by agreeing to limit
their production to collectively agreed quotas and not to build
any new zinc production facilities without approval from the
cartel. The arrangements also included market sharing — and
the cartel agreed to introduce a common price in their supply
contracts, substituting this for the price set by the London
Metal Exchange (LME), while also agreeing not to sell on the
LME. The cartel was dismantled after the infringement came
to light.
In January 2011, the Office of Fair Trading (OFT), the
predecessor of the Competition and Markets Authority,
concluded that individuals at RBS had disclosed confidential
and commercially sensitive future pricing information to their
counterparts at Barclays with the aim of co-ordinating the
price of loans supplied to large professional services firms,
although there was no explicit agreement on those prices.
or ‘vertical’ (between suppliers and their clients).(1) Like
cartels, these can arise formally (for example, via a contract)
or informally (for example, via a conversation). Examples of
such agreements, formal or informal, which could arise in
FICC markets and which may raise concerns include:
Individuals at RBS shared generic information about the
market between October 2007 and February or March 2008.
For example in an email titled ‘Enemy Intelligence — RBS’,
Barclays’ Head of Team disclosed that he had ‘been verbally
approached by [the RBS Head of Team] to come to an
agreement over raising our pricing as margins are too low they
say they are suffering’. RBS also shared specific pricing
information: for example, a Barclays Regional Director said
that RBS had informed him that they would be pricing their
loan facility at a basis point margin ‘somewhere in the 70s’.
(i) Direct or indirect communication of non-public
commercially sensitive information such as future
pricing intentions between competitors. Case Study 3
gives an example involving the pricing of loans.
The disclosures by RBS staff took place through telephone
conversations and a number of informal contacts, such as a
bowling event organised by an accountancy firm, an industry
dinner for managing partners, and a seminar at a law firm.
(ii) Agreements between a firm and its client which restrict
the price and/or terms on which that client can resell a
product, service, instrument or data. For example, a firm
may require a client not to sell products below a certain
price or impose a condition that the client cannot resell a
financial instrument to the firm’s competitors.
The case demonstrated that an infringement of the law on
anti-competitive agreements does not require the sharing of
commercially sensitive information to be reciprocal: the
unilateral disclosure of such information is sufficient.
(1) http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31984D0405&
from=EN.
(iii) Where a group of firms (or individuals within such firms)
work together to prevent other competitors from
entering the market, thus protecting their position in
the market. For example, by imposing criteria or fees for
participating in a market that discriminate against smaller
players or new entrants in a way that is not objectively
justifiable.
(iv) Where a group of firms (or individuals within such firms)
agree to work together to prohibit the development or
introduction of new technologies which could reduce
their influence in the market and/or reduce their profits.
(v) Where a group of firms agree to work primarily or
exclusively with another firm(s) in a related (upstream
or downstream) market, and in exchange get beneficial
terms placing them at a competitive advantage to their
rivals. For example where a group of asset management
firms enter into an agreement with an investment bank in
return for beneficial treatment.
This case came to light because Barclays approached the OFT
seeking leniency. RBS was fined £28.59 million (which
included a 15% reduction in the fine to take into account the
early resolution of the case, involving RBS admitting the
breach and co-operating with the OFT). By contrast, Barclays
benefited from total immunity under the OFT leniency policy.
(1) http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/
shared_oft/ca-and-cartels/CE8950_08_dec.pdf.
Not all such agreements will breach the law. An agreement or
arrangement will be ‘exempt’ from the UK or EU law on
anti-competitive agreements and arrangements if (broadly
speaking) it brings economic or technical benefits which are
passed on to consumers and is restrictive of competition only
(1) For more information about how competition law may apply to agreements see
OFT401 (now adopted by the CMA) Agreements and concerted practices available on
www.gov.uk/cma. For more information on agreements between competitors see the
European Commission Guidelines on the applicability of Article 101 of the Treaty for the
Functioning of the European Union (TFEU) to horizontal co-operation agreements. For
more information on how competition law provisions may apply to agreements
between businesses at different levels of the distribution chain, see the European
Commission Guidelines on vertical restraints.
Fair and Effective Markets Review Final Report Annex
to the extent absolutely necessary (ie is ‘indispensable’) to
achieving those benefits. For example, some exclusivity
agreements will be exempt if they bring a new product to
market, provided that the exclusivity lasts only for a limited
period necessary to achieve that.
Case Study 4
European Commission investigations into
Credit Default Swaps(1)
The European Commission has two separate ongoing
investigations into (a) the activities of sixteen investment
banks, as well as the International Swaps and Derivatives
Association (ISDA) and the market information provider,
Markit, in relation to the Credit Default Swaps (CDS)
information market, and (b) the activities of nine investment
banks, as well as a clearing house provider, ICE Clear Europe,
in relation to the CDS clearing market.
In the CDS information market, the European Commission’s
preliminary statements of objections stated that thirteen of
the sixteen investment banks, together with ISDA and Markit,
infringed EU competition law by colluding to prevent
exchanges from entering the credit derivatives business.
Between 2006 and 2009, Deutsche Börse and the Chicago
Mercantile Exchange tried to enter the credit derivatives
business. The exchanges turned to ISDA and Markit to obtain
necessary licenses for data and index benchmarks, but,
according to the preliminary findings of the Commission, the
banks controlling these bodies instructed them to license only
for ‘over-the-counter’ (OTC) trading purposes and not for
exchange trading. Several of the investment banks were also
found to have sought to shut out exchanges in other ways, for
example by co-ordinating the choice of their preferred clearing
house.
In the Commission’s preliminary view the banks acted
collectively to shut out exchanges from the market because
they feared that exchange trading would have reduced their
revenues from acting as intermediaries in the OTC market.
The Commission’s investigations are ongoing and its
statement of objections does not prejudice the final outcome
of the investigation.
101
independently of the normal constraints imposed by
competitors, suppliers and consumers.(2) Having a dominant
position does not in itself breach competition law; it is the
actual abuse of such a position which is prohibited.
Competition law requires that dominant businesses compete
on the merits of the products or services they provide rather
than by trying to exploit clients and/or exclude their
competitors from the market by anti-competitive means.
A dominant firm can employ different strategies to exclude
competitors, and/or exploit customers. Examples of behaviour
in FICC markets which could potentially amount to an abuse
of dominance by a firm are considered in the non-exhaustive
list below:
(i) Refusing to supply an existing or new client, or refusing
to provide access to an essential facility, service or data
(or providing such access only on terms which are
unreasonable) without an objective justification.
(ii) Offering different prices or terms to similar clients
without an objective justification. For examples of both
(i) and (ii) see Case Study 5.
(iii) ‘Bundling’ or ‘tying’ two products. This is where a firm
stipulates that a client wishing to purchase one product
must also purchase another different one. In some
circumstances bundling can be efficient and lead to lower
prices for clients; however competition concerns arise
when the dominant firm uses its dominance in one
product market to push out competitors in another
market by bundling the two products together.
(iv) Stipulating that a firm will do business with a client only
on the condition that the client gives all of its business
to the firm. For example, where a large broker takes on a
client for prime brokerage services on the condition that
the client agrees to conduct all of its trading activity
through the broker (even though services such as
execution-only trading are separable and may be cheaper
elsewhere).
(v) Charging prices so low that they do not cover the cost
of the products or services being sold. For example,
where a firm offers a service at below-cost with the aim of
driving out competitors and then increasing prices again.
(1) http://europa.eu/rapid/press-release_IP-13-630_en.htm.
iii. Abuse of dominant market position
The practices described above are not always evidence of an
infringement of competition law. The specific facts and
circumstances of each case would be taken into account,
Both UK and EU competition law prohibits any firm with a
‘dominant’ market position from behaviour that may
constitute an abuse of its dominant position.(1) A dominant
position equates essentially to market power: a business is
only likely to hold a dominant position if it is able to behave
(1) For more information see OFT402 Abuse of a dominant position (now adopted by the
CMA) available on www.gov.uk/cma.
(2) One measure of market power is market share. As a rough rule of thumb a dominant
position is unlikely to arise with a market share of below 40%. However, market
shares are not the only factor to consider when assessing dominance.
102
Case Study 5
Clearstream (Clearing and Settlement)(1)
In 2004, Clearstream Banking AG, a provider of primary
clearing and settlement services for securities issued under
German law, was found by the European Commission to have
abused its dominant position in the market by:
(i) Refusing to supply primary clearing and settlement
services to Euroclear Bank, one of its customers, for more
than two years after it requested those services. This
contrasted with a usual delay of a maximum four months
within which other comparable customers were supplied
those services.
(ii) Discriminatory behaviour towards Euroclear Bank by
charging an unjustified higher per transaction price to
Euroclear Bank for clearing and settlement services than to
other similar customers outside Germany.
The above infringements came to an end before the
conclusion of the investigation and Clearstream agreed to
refrain from repeating the infringements in the future.
(1) http://europa.eu/rapid/press-release_IP-04-705_en.htm?locale=en.
including whether there was an objective reason for the
dominant firm undertaking such behaviour.
4 Who is responsible for competition law in
the United Kingdom and Europe?
Anti-competitive behaviour which may affect trade within the
United Kingdom is prohibited by UK legislation (under the
Competition Act 1998 and the Enterprise Act 2002). The
Competition and Markets Authority (CMA) and Financial
Conduct Authority (FCA) share enforcement powers in
relation to the provision of financial services in the
United Kingdom (although only the CMA is responsible for the
UK cartel offence). The FCA’s competition functions are not
limited merely to FCA-regulated activates and firms, but
extend to financial services as a whole, including parts of the
FICC markets which currently fall outside of the
United Kingdom’s financial services regulatory perimeter.
Where the effect of anti-competitive behaviour extends
beyond the United Kingdom to other EU Member States,
EU legislation (Articles 101 and 102 of the Treaty on the
Functioning of the European Union) is applicable. The
European Commission (through its Directorate General for
Competition) is tasked with enforcement of EU-wide
Fair and Effective Markets Review Final Report Annex
competition rules. The CMA and FCA also have powers to
enforce Articles 101 and 102 in the United Kingdom.
5 Reporting knowledge or suspicions of
breaches of competition law, and the leniency
programmes
Under leniency programmes operated by the CMA and the
European Commission, firms and individuals that come
forward to report their own involvement in a cartel to a
competition authority may benefit from a reduction or
annulment of the fines that would otherwise be imposed on
them.(1) To qualify for leniency, applicants must admit their
involvement, co-operate fully with the authority’s
investigation and immediately stop their involvement in the
cartel (unless the CMA directs otherwise, which it will do only
rarely).
Provided they co-operate, the directors of applicant firms may
also avoid disqualification and employees and officers may be
granted immunity from prosecution under the cartel offence if
the application is made to the CMA.
The CMA is prepared to offer financial rewards for information
about cartel activity (informant rewards). Additionally,
individuals who come forward with information about their
involvement in a cartel may be granted immunity from
criminal prosecution (called a ‘no-action’ letter).
The FCA expects that leniency applications will normally be
made directly to the CMA, in particular since the FCA cannot
grant immunity from criminal prosecution in relation to the
cartel offence. However, if a firm were to apply to the FCA
directly for leniency and it satisfied the relevant criteria, the
FCA would have regard to the CMA’s Penalty Guidance and
apply the CMA’s leniency policy in relation to its competition
enforcement.(2)
Individuals or firms who suspect a colleague, competitor,
supplier, customer or any other business may be infringing
competition law, should call the CMA Cartels Hotline on
020 3738 6888; or email [email protected]
For information about leniency and to apply call
020 3738 6833.
Individuals who are concerned about other instances of
potentially anti-competitive behaviour by their firm, a rival
firm, or other firm(s) can raise concerns, formally (through a
(1) For more information on the CMA leniency programme and no-action letters, see
OFT1495 Applications for leniency and no-action in cartel cases (now adopted by the
CMA); OFT1495i Quick Guide to Cartels and Leniency for Individuals (now adopted by
the CMA); OFT1495b Quick Guide to Cartels and Leniency for Businesses (now
adopted by the CMA); CMA9 Cartel offence prosecution guidance — all available on
www.gov.uk/cma.
(2) See the FCA consultation paper on ‘Competition Concurrency Guidance and
Handbook ammendments’, January 2015.
Fair and Effective Markets Review Final Report Annex
complaint) or informally, with the CMA or FCA. Firms
regulated by the FCA can also raise their concerns with their
supervisors.
103
Regulated firms may also be obliged to bring their own
contraventions to the FCA’s attention under Principle 11 of the
Principles for Businesses.
104
Fair and Effective Markets Review Final Report Glossary and acronyms
Glossary and acronyms
Glossary
Agent: An agent is a person or firm that arranges financial
transactions on behalf of others. The agent typically receives a
commission for arranging the transaction.
Circuit breaker: A mechanism employed to suspend trading
temporarily in certain conditions, including sudden, deep price
falls.
Corporate bonds: A debt security issued by a corporation,
typically with a term of more than one year.
Algorithmic trading: Trading using computer programmes
applying algorithms, which determine various aspects
including price and quantity of orders.
Dark pool: A trading venue where parties can post trading
interest without making such information publicly available.
All-to-all platform: A multilateral system open to several
classes of market participant which, in particular, allows
buy-side firms to trade directly with other buy-side firms.
Digital (or binary) option: An option which pays out a fixed
amount or nothing, depending on whether the underlying
price reaches a level at a specific point in time.
Barrier option: Barrier options are a type of option which are
either activated or cancelled if a pre-determined level of the
underlying market price is reached.
Electronic communication network (ECN): An electronic
trading system that facilitates a broad range of trading
requirements including, for example, the automatic matching
of buy and sell orders at specified prices. ECNs are often
associated with the interdealer FX market.
Bid-offer spread: The difference between the price at which a
market maker is willing to buy an asset and the price at which
it is willing to sell.
Bookrunner: The main underwriter or lead manager in the
issuance of new equity, debt or securities instruments.
Broker-dealer: A person or firm in the business of buying and
selling securities and other financial instruments, either for its
own account or on behalf of its customers, depending on the
transaction.
Buy-side: Financial institutions holding and dealing in
financial instruments for investment or asset management
purposes. Examples include mutual funds, pension funds and
insurance firms.
CDS Index: A basket of credit default swaps typically covering
numerous individual companies that have unsecured debt
trading in the broad secondary markets.
Central counterparty (CCP): An entity that acts as an
intermediary between trading counterparties to reduce credit
and settlement risk. If one of the trading parties defaults, the
central counterparty and/or its members absorbs the loss.
Central limit order book (CLOB): A mechanism, often
employed by exchanges and other multilateral trading
systems, where trading counterparties disclose prices and
volumes at which they are willing to buy and sell, and the
system concludes transactions between them according to a
pre-determined set of rules.
Electronic Trading Platform: An electronic trading platform
is a computerised system of trading for financial products.
Exchange: A traditional form of regulated multilateral trading
system, often also associated with the primary issuance of
securities. Exchanges are subject to a range of regulatory
requirements relating to, for example: pre and post-trade
transparency; non-discriminatory access; and monitoring and
governance.
First/Second/Third Line of Defence: The lines of defence are
the governance and controls to protect against risks in an
organisation. The First Line of Defence is risk mitigation and
control within the business function that generates the risks,
in particular through policies and procedures, training and line
management oversight. The Second Line of Defence is an
independent oversight function — commonly the risk
functions monitoring each key risk category. The Third Line of
Defence is an independent assurance function — the internal
audit function.
Front-running: Front-running is the practice whereby an
individual is trading in possession of private information about
an order designed to take advantage of the anticipated price
effect of a future order.
Futures: Financial contracts which oblige the buyer to
purchase an asset (or the seller to sell an asset), at a
predetermined future date and price.
Fair and Effective Markets Review Final Report Glossary and acronyms
High-frequency trading: A highly automated form of
algorithmic trading that is often characterised by holding
positions very briefly in order to take advantage of short-term
price rises and falls.
Interdealer broker (IDB): A brokerage firm that acts as an
intermediary between major dealers to facilitate trades.
Interest rate swap: An exchange of one interest payment for
another, based on a specified principal amount for a specified
term. Interest rate swaps often exchange a fixed payment for
a floating payment that is set with reference to a benchmark
rate (such as Libor).
Internalisation: The process by which customer and other
trading interests are matched within a firm, often as part of
that firm’s single-dealer platform (SDP), rather than executed
in the open market.
Last look: A practice whereby market makers have a final
opportunity to accept or reject orders where a client wishes to
trade against their quoted price.
Limit order: An order to buy a financial instrument at or
below a specified price, or to sell at or above a specified price.
Liquidity: The ease with which investors are able to transact
in reasonable quantities of an instrument without
discontinuity of price formation.
Listed security: A financial instrument that is admitted to
trading an exchange.
Market maker: A market participant who facilitates trading in
a financial instrument by supplying (tradable) buy and sell
quotes. Market makers may act as members of exchanges,
though FICC markets more often rely on market makers
trading on an OTC basis.
Market order: An order to buy or sell a financial instrument at
the best available price for immediate execution.
Multi-dealer platform (MDP): A trading venue where
liquidity is provided by many different market makers.
New issue (primary issuance): An offering of a debt or equity
security, sold to public for the first time.
Options: Contracts that give the buyer the right, but not the
obligation, to buy or sell an underlying instrument at a
predetermined price in the future.
Order-to-trade ratio: The ratio of the number of orders a
market participant submits to the number of actual trades
executed.
105
Over-the-counter (OTC): Transactions that are bilaterally
negotiated between two market participants.
Price discovery: The process by which market participants
obtain information about the prices at which counterparties
are willing to buy or sell specific financial instruments.
Price formation: The process by which market participants
decide the prices at which they are willing to transact.
Price transparency: The amount of information available to
market participants about prices. Price transparency takes two
forms: (1) ‘pre-trade price transparency’, ie the prices at which
counterparties advertise they are willing to buy or sell specific
financial instruments; or (2) ‘post-trade price transparency’, ie
the prices at which counterparties recently bought or sold
specific financial instruments.
Principal: A principal in a financial transaction makes an
outright purchase of the financial instrument and hence the
principal takes the instrument onto its balance sheet (and
bears all the risks of ownership), even if this is sometimes only
for a short period of time before it is sold to another party.
Repo: A repurchase agreement (‘Repo’) is a form of
asset-backed financing, usually for the short term. The
borrower sells securities (usually government bonds or other
high quality securities) to investors and agrees to buy them
back (at a price agreed at the start of the repo agreement) at
the end of the agreement.
Request for quote (RFQ): A mechanism for arranging
transactions where customers ask one or more market makers
to provide quotes for a financial instrument before agreeing to
trade.
Sell-side: Financial institutions (predominantly banks and
broker-dealers) involved with the creation, promotion, analysis
and sale of securities and other financial instruments.
Single-dealer platform (SDP): A trading venue which is
owned by a bank or broker-dealer who acts as the sole market
maker on that venue.
Spot FX: The exchange of two currencies at a rate agreed
today, where delivery of the currencies occurs within the
shortest standard settlement period for the currency pair.
Structured notes: A debt obligation that also contains an
embedded derivative component with characteristics that
adjust the security's risk and return profile.
Tick size: The minimum price movement allowed by a trading
venue for transactions in a particular financial instrument.
106
Fair and Effective Markets Review Final Report Glossary and acronyms
Acronyms
OTC – Over-the-counter.
OTF – Organised Trading Facility.
PCBS – Parliamentary Commission on Banking Standards.
PRA – Prudential Regulation Authority.
QCF – Qualifications and Credit Framework.
RAP – Relevant Authorised Person.
REMIT – Regulation on Wholesale Energy Market Integrity and
Transparency.
RFQ – Request for Quote.
RM – Regulated market.
RONIA – Repurchase Overnight Index Average.
SDP – Single-dealer trading platform.
SIMR – Senior Insurance Managers Regime.
SM&CR – Senior Managers and Certification Regimes.
SONIA – Sterling Overnight Index Average.
STR – Suspicious Transaction Reporting.
UCITS – Undertakings for the Collective Investment of
Transferable Securities.
WM/R – WM Reuters.
ACI – Association Cambiste Internationale.
ACT – Association of Corporate Treasurers.
AIFMD – Alternative Investment Fund Managers Directive.
APR – Approved Persons Regime.
ASIC – Australian Securities and Investment Commission.
BIS – Bank for International Settlements.
bps – Basis Points.
BSB – Banking Standards Board.
CAIA – Chartered Alternative Investment Analyst.
CCP – Central counterparty.
CDS – Credit Default Swap.
CFA – Chartered Financial Analyst.
CISI – Chartered Institute for Securities and Investment.
CLOB – Central Limit Order Book.
CMA – Competition and Markets Authority.
CPD – Continuing professional development.
CRD – Capital Requirements Directive.
CSMAD – Criminal Sanctions Market Abuse Directive.
EBA – European Banking Authority.
ECN – Electronic communication network.
EMIR – European Market Infrastructure Regulation.
ESMA – European Securities and Markets Authority.
EU – European Union.
Euribor – Euro Interbank Offered Rate.
FCA – Financial Conduct Authority.
FICC – Fixed Income, Currencies and Commodities.
FINRA – Financial Industry Regulatory Authority.
FLOD – First line of defence.
FMSB – FICC Market Standards Board.
FSA – Financial Services Authority.
FSB – Financial Stability Board.
FSMA – Financial Services and Markets Act.
FX – Foreign Exchange.
FXBG – FSB Foreign Exchange Benchmark Group.
G20 – The Group of Twenty major world economies.
HMT – Her Majesty’s Treasury.
ICE – Intercontinental Exchange.
ICMA – International Capital Markets Association.
IOSCO – International Organization of Securities
Commissions.
ISDA – International Swaps and Derivatives Association.
LBMA – London Bullion Market Association.
Libor – London Interbank Offered Rate.
LME – London Metal Exchange.
MAD – Market Abuse Directive.
MAR – Market Abuse Regulation.
MDP – Multi-dealer platform.
MiFID – Markets in Financial Instruments Directive.
MPP – Market Practitioner Panel.
MTF – Multilateral Trading Facility.
NIPs – Non-Investment Products.
OIREQ – Own-Initiative Requirement.
OIVOP – Own-Initiative Variation of Permission.
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