The Global Regulatory Brief provides monthly insights on the latest risk and regulatory developments. This brief was written by Bloomberg’s Regulatory Affairs Specialists.
Trading and markets regulatory developments
Regulatory authorities continue their reform agenda for securities markets and trading practices. From the US to India, the following global developments in trading and markets from the past month stand out:
- Korea: FSC strengthens penalties on unfair trading activities
- EU: Parliament adopts final MiFIR-D review texts as ESMA prepares for implementation
- India: SEBI consults on T+0, instant settlement of equity trades
- India: SEBI tightens rules for disclosing short selling trades
- US: SEC adopts rules on SPACs, shell companies, and projections
- Saudi Arabia: CMA provides further clarity on the alternative trading system for bonds
- EU: Supervisory Authorities consult on draft technical standards under the European Single Access Point
- Israel: Authorities set out policy measures to accelerate capital market activity
- Hong Kong and China: Central banks announce measures to deepen financial cooperation
- US: FINRA files proposed rule change of TRACE reporting timeframe to one minute
Korea strengthens penalties on unfair trading activities
Korea’s Financial Services Commission announced that the revised Financial Investment Services and Capital Markets Act has gone into effect to prevent the occurrence of unfair trading activities in Korean capital markets.
The intention: The changes are expected to help detect and prevent unfair trading activities through the following measures:
- Introducing a penalty surcharge system on unfair trading activities
- Legislating a method for calculating the amount of unfairly gained profits
- Providing a leniency to those reporting violations committed by oneself or others
Penalty surcharge – in more detail: The revision introduces a penalty surcharge system on unfair trading activities and enables authorities to impose a penalty surcharge of up to twice the amount of unfairly gained profits.
- With the introduction of penalty surcharge, a speedier and more effective sanctioning will now be possible on unfair trading activities
- In terms of the procedure for imposing a penalty surcharge, in principle, the FSC is able to impose a penalty surcharge after receiving an outcome of investigation from the prosecution service.
- However, when the matter has been consulted with the prosecution service, or if it has been more than a year since the case was first reported to the prosecution service, the FSC is allowed to impose a penalty surcharge even before receiving an investigation outcome from the prosecution service
Calculating the amount of unfairly gained profits – in more detail: The revision establishes a clear legal ground for calculating the amount of unfairly gained profits, which will be a total income minus total cost.
- More specifically, the amount of unfairly gained profits will be defined as profits realized, profits unrealized and losses avoided
- Calculation methods have been prepared for each type of violation, such as the use of undisclosed material information, manipulation of market price and unfair trading, and the gains made by transactions deemed to be a part of motivation for violation can also be counted towards unfairly gained profits
- Moreover, the revision sets out a method for calculating the amount of unfairly gained profits for when an external factor (for instance, presence of a third party) is involved
Leniency in reporting violations – in more detail: The revision establishes a leniency rule for those reporting unfair trading activities of their own or others
- This is intended to help facilitate whistleblowing on unfair trading activities committed by a group of individuals in an organized manner
- More specifically, the leniency rule can provide a reduction of penalty surcharge between 50% to 100% based on the level of cooperation
Looking ahead: The FSC will continue to ensure the enforcement of the revised rules and root out unfair trading activities in capital markets. The FSC and other related organizations will strictly enforce sanctions based on the principle of zero tolerance to foster a more fair and credible environment in capital markets.
EU Parliament adopts final MiFIR-D review texts and ESMA prepares for implementation
The European Parliament formally adopted the final texts amending the Markets in Financial Instruments Directive (MiFID II) and the Markets in Financial Instruments Regulation (MiFIR) that regulate investment services and activities of EU-based trading venues.
Looking ahead: The Council representing the member states will follow in coming weeks, which puts an end to the legislative procedure.
- Publication in the Official Journal of the EU is expected in late February, with entry into force of MiFIR amendments 20 days afterwards in March
- A number of key new provisions will need to be developed in technical rules, which means that part of the rules will not apply before mid-2025
- The European Securities and Markets Authority (ESMA) is expected to launch the first consultation on technical rules in May
ESMA outlines calendar for MiFIR Review implementation: A number of the new key provisions will need to be developed in technical rules. ESMA’s overview outlines the timeline for MiFIR-D consultations this year:
- Q1: Position management controls and position reporting
- Q2: Non-equity transparency for bonds; Consolidated tape provider; Cost of market data & the reasonable commercial basis concept
- Q3: Equity transparency (RTS 1); Circuit breakers
- Q4: Non-equity transparency for derivatives; Revision of RTS 13 on DRSP authorization for the purpose of CTP authorization
Consolidated tape workshops: ESMA is organizing two virtual hearings on the consolidated tapes in mid-February, one for potential applicants and one for market participants.
SEBI consults on T+0, instant settlement of equity trades
The Securities and Exchange Board of India (SEBI) closed their consultation on the proposed regime for introducing an optional T+0 and optional instant settlement of equity trades, in addition to the current T+1 requirement.
Background: SEBI fully implemented T+1 settlement for Indian equity trades in January 2023, and have been expressing their intent to implement T+0 by March 2024 and instant settlements a year later.
Key features of proposed regime: SEBI is proposing to implement the accelerated settlement mechanism in two phases.
- In Phase 1, optional T+0 settlement cycle may be carried out (for trades till 1.30 pm), with settlement of funds and securities to be completed by 4.30 pm on the same day.
- In Phase 2, optional instant settlement may be carried out trade-by-trade (i.e. each trade settled separately). In this phase, trading will be carried out till 3.30pm.
- After implementation of Phase 2 (optional instant settlement), the mechanism for T+0 settlement will be discontinued.
- In terms of risk management, order level risk management system and mandatory prefunding of funds and securities will be required for instant settlements.
Potential benefits and concerns: The consultation paper set out potential benefits to T+0 or instant settlement of trades.
- For example, a shorter settlement cycle could further free up capital in the securities market, thereby enhancing market efficiency. Additionally, because trades would be backed up by upfront funds and securities, it could enhance risk management within Clearing Corporations.
- On the other hand, SEBI recognizes potential concerns, such as liquidity fragmentation (as there will be two settlement cycles co-existing), increased cost of trading (accounts will need to be pre-funded) and price divergence of the same security.
SEBI tightens rules for disclosing short selling trades
The Securities and Exchange Board of India (SEBI) tightened its short-selling rules, making it mandatory for institutional investors to disclose upfront at the time of order placement whether a securities transaction is a short sale. Individual investors will need to make a similar disclosure at the end of the trading day.
In more detail: Brokers should collect the details on scrip-wise short-sell positions, collate the data, and upload it to the stock exchanges before commencement of trading on the following trading day. Stock exchanges have to consolidate and disseminate such information publicly on their websites weekly.
- As naked short selling is prohibited in India, all investors should deliver the securities at the time of settlement.
- Institutional investors are not allowed to day trade. All transactions should be grossed for institutional investors at the custodian level on a gross basis.
US SEC adopts rules on SPACs, shell companies, and projections
The US Securities and Exchange Commission (SEC) adopted new rules and amendments relating to initial public offerings (IPOs) by special purpose acquisition companies (SPACs) and associated business transactions with target companies.
The details: The new rules and amendments require enhanced disclosures about conflicts of interests, SPAC sponsor compensation, and dilution.
- They also require registrants to provide additional information about the target company to investors and in certain instances require target companies to sign registration statements filed by a SPAC (or another shell company)
- Finally, the rules: eliminate the safe harbor from liability for forward-looking statements for SPACs; require disclosure of all material bases of projections and all material assumptions underlying the projections; impose a structured data requirement on SPAC disclosures
Compliance timeline: The rules will become effective 125 days after publication in the Federal Register. Compliance with the structured data requirements, which require tagging of information disclosed pursuant to new subpart 1600 of Regulation S-K in Inline XBRL, will be required 490 days after publication of the rules in the Federal Register.
Saudi CMA provides further clarity on the alternative trading system for bonds
Saudi Arabia’s Capital Market Authority (CMA) published answers to the main inquiries it has received in relation to the authorization applications to carry out the Securities Exchange activities as an Alternative Trading System (ATS) in the Kingdom.
The purpose: The answers are intended to provide color on the different aspects related to the authorization process to carry out the securities Exchange activities as an ATS in the Kingdom.
In more detail: The CMA provide answers to the following questions:
- What is an ATS?
- What is the required license to be obtained from CMA to operate as an ATS in the Kingdom?
- What are the categories under the license of the Exchange activities in the Kingdom?
- What are the authorization requirements to carry out the Exchange activities as an ATS in the Kingdom?
- Can a legal person established as a joint stock company out of the Kingdom apply to obtain authorization to carry out exchange activities as an ATS in the Kingdom?
- What is the minimum paid-up capital required on the applicant of the authorization to carry out the activities of an Exchange in the form of ATS?
- What types of securities are allowed to be traded on the ATS?
- What are the categories of investors that will be qualified to trade at the ATS?
- What are the ATS’s membership/participation requirements to enable companies that are interested in trading the financial instruments available in the ATS?
- What is the difference between the license for an ATS and the license to carry out security businesses?
- Where an ATS is established outside the Kingdom, do the regulations for securities exchanges and depository centers require the ATS to have a physical presence in the Kingdom in order to operate?
- When applying to carry out Exchange activities in the form of ATS in the Kingdom, is the applicant required to finalize the incorporation procedures for having a physical presence in the Kingdom during the authorization application?
- What are the trading hours for the ATS?
- Is the ATS required to link with the CCP and Depository Center in the Kingdom for the clearing and settlement activities?
- What are the record-keeping requirements applicable to the ATS?
- What are the reporting requirements to CMA that are applicable to the ATS?
Important context: This publication follows the announcement in October 2023 that the CMA had opened the submission period for firms wanting to provide securities-trading facilities as an ATS for Sukuk and debt instruments as the Kingdom seeks to enhance its secondary market of debt instruments.
ESAs consult on draft technical standards under the European Single Access Point
The three European Supervisory Authorities (EBA, EIOPA and ESMA – the ESAs) have published a consultation paper on the draft implementing technical standards (ITSs) regarding the tasks of the collection bodies and the functionalities of the European Single Access Point (ESAP).
The background: The establishment of the ESAP is a flagship action of the Capital Markets Union Action Plan. The purpose of the ESAP is to facilitate access to publicly available information of relevance to financial services, capital markets and sustainability. This includes the mandatory information to be disclosed by companies captured by the EU’s sustainability disclosure rules.
Purpose of the consultation: The ESAP consultation gives interested parties the opportunity to provide their views on the proposed rules with regard to:
- The tasks of the collection bodies, including the time limits for providing the information to ESAP, and the indicative list of formats that are acceptable as data to be submitted to the collection bodies
- The functionalities of the ESAP, such as the classification of the types of information, and the characterization of industry sectors to classify the information contained in ESAP and allow users to search for it
Next steps: Stakeholders are encouraged to provide their feedback to this consultation by March 8, 2024.
Israeli authorities set out policy measures to accelerate capital-market activity
Israel’s Ministry of Finance and the Israeli Securities Authority (ISA) announced a legislative memorandum consisting of measures designed to accelerate Israel’s economy and the development of its capital markets.
In more detail: The package includes the following measures:
- Expanding dual-listing opportunities: The proposed removal of restrictions to allow companies with a dual-class share structure listed on foreign exchanges to also list in Israel and enable Israeli companies to pursue dual listings.
- Enhancing competition in commercial lending through regulatory relief for the Israeli commercial paper market: Proposed measures designed to promote the commercial paper market by permitting companies to extend the redemption period of commercial paper for up to five years, subject to one-year individual extensions. Safeguards will be implemented to protect investor interests during this extended period.
- Development of investment advisory services, particularly the financial research market: Proposed provision of general investment advice not tailored to specific investors to reflect a more modern investment advisory service. Distinction will be made between advice provided by regulated and non-regulated entities, with corresponding rules addressing conflicts of interest, compensation for advice, and disclosure requirements.
- Creating the infrastructure for private equity investment trusts: The proposal aims to establish “private equity investment trusts” to enable these funds to hold non-listed securities and non-security assets. Rules will be introduced to govern their activities and safeguard investor interests.
Wider context: The tightened rules for short selling came after the Supreme Court ordered a probe into the allegations of accounting fraud and stock manipulation against Adani group companies.
Looking forward: SEBI will investigate whether Indian investors suffered losses from the allegations linked to the Adani Group or if there were illegal short positions taken in the market.
Hong Kong and People’s Republic of China central banks announce measures to deepen financial cooperation
The Hong Kong Monetary Authority (HKMA) and the People’s Bank of China (PBoC) introduced six policy measures to enhance the financial cooperation between Hong Kong and the Mainland.
Policy measures: The policy measures include the following:
- Expanding the list of eligible collateral for the HKMA’s RMB Liquidity Facility to include RMB bonds issued onshore by the Ministry of Finance of the People’s Republic of China and the policy banks of the People’s Republic of China
- Further opening up the onshore repurchase agreement (repo) market to all foreign institutional investors (including Bond Connect investors) that already have access to the China Interbank Bond Market
- Releasing the amendments to the Implementation Arrangements for the Cross-boundary Wealth Management Connect Pilot Scheme in the Guangdong-Hong Kong-Macao Greater Bay Area (GBA)
- Implementing facilitative measures on the remittances for property purchase by Hong Kong and Macao residents in the Mainland cities in the GBA
- Promoting the collaboration on cross-boundary credit referencing to facilitate corporates’ cross-boundary financing activities
- Expanding the cross-boundary e-CNY pilots in Hong Kong
Looking forward: The relevant authorities will continue to work closely with each other and with industry to ensure timely and smooth implementation of these measures, and explore further enhancements.
US FINRA files proposed rule change of TRACE reporting timeframe to one minute
The Financial Industry Regulatory Authority (FINRA) has filed with the SEC a proposal that would reduce the TRACE reporting timeframe for securities currently subject to the 15-minute reporting outer limit to one minute.
In more detail: Manual trades and member firms with de minimis reporting activity would be exempt from the changes. Comments on the proposal are open through February 15, 2024.
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