Financial Services Regulatory Update – May 2022 Round Up
| General Updates | |
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CBI Annual Report 2021 |
On 30 May 2022, the Central Bank of Ireland (the “CBI”) published its Annual Report 2021 and Annual Performance Statement 2021-2022 (here). This report provides an overview of the key activities and work undertaken by the CBI in 2021. The report also sets out the CBI’s strategic priorities for financial regulation in 2022, which include:
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Consumer Protection (Regulation of Retail Credit and Credit Servicing Firms) Act 2022 |
The Consumer Protection (Regulation of Retail Credit and Credit Servicing Firms) Act 2022 (Commencement) Order 2022 appointed 16 May 2022 as the day on which the Consumer Protection (Regulation of Retail Credit and Credit Servicing Firms) Act 2022 (the “Act”) came into operation (here). On 16 May 2022, the CBI released a suite of publications to address changes introduced by the Act, including:
The CBI has also updated its webpage on the authorisation process for retail credit firms and home reversion firms (here) to reflect changes introduced by the Act. For a more detailed discussion of the Act, see our briefing (here). |
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E-Money Regulations |
The European Communities (Electronic Money) (Amendment) Regulations 2022 were published in Iris Oifigiúil on 13 May 2022 (here). These Regulations amend the European Communities (Electronic Money) Regulations 2011 in respect of provisions relating to calculation of own funds and notifications of acquisitions and disposals of qualifying holdings. |
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PCF in-situ filing process |
Following the recent update of its pre-approval controlled functions (“PCF”) list (see our briefing (here) with further detail), the CBI updated the fitness and probity section of its website (here) to include guidance on completing the online reporting system (“ONR”) filing (here), a form of PCF return file and an update to the closing date for delivery of returns (now 30 June 2022). |
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Distance Financial Services Contracts – EU Legislative Proposal |
On 11 May 2022, the European Commission published a legislative proposal (here) for a directive concerning financial services contracts concluded at a distance. The proposed directive shall repeal the Distance Marketing of Financial Services Directive (Directive 2002/65/EC) (the “Distance Marketing Directive”) and transfer the framework for consumer protections relating to financial services distance contracts to the Consumer Rights Directive (Directive 2011/83/EU). The objective of the proposal is to make targeted modernising amendments. In particular, amendments will reflect the fact that a number of EU product-specific legislative acts (such as the Consumer Credit Directive or the Mortgage Credit Directive) and EU horizontal legislation (such as the General Data Protection Regulation) have been introduced since the Distance Marketing Directive took effect. The Commission notes, however, that the Distance Marketing Directive provides a safety net feature for consumers for contracts concluded at a distance in respect of financial products that were not as yet subject to any EU legislation (for example, in the absence of EU rules on crypto-assets, the Commission states that the Distance Marketing Directive applies). |
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Digital Operational Resilience (DORA) |
On 10 May 2022, the Council of the EU and the European Parliament reached a provisional political agreement on the proposed regulation on digital operational resilience for the financial sector (“DORA”) (here). DORA sets uniform requirements for the security of network and information systems of companies and organisations operating in the financial sector as well as for critical third parties which provide ICT-related services to those entities. The provisional agreement reached is subject to approval by the Council and the European Parliament before going through the formal EU adoption procedure. |
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Payments – Commission Consultation |
On 10 May 2022, the European Commission launched two public consultations in the field of payments:
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Benchmark Administrators - Supervision |
On 24 May 2022, two Delegated Regulations supplementing the Benchmarks Regulation were published in the Official Journal:
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CSDR Q&As |
On 20 May 2022, ESMA published an updated version (here) of its Q&As on the implementation of the Central Securities Depositories Regulation (“CSDR”). A new question 11 has been added addressing reporting of nominal values of securities to national competent authorities (“NCAs”). |
| Sustainability | |
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SFDR/Taxonomy Disclosures – Further Guidance |
The European Supervisory Authorities (the “ESAs”) and the European Commission published the following communications in respect of sustainability disclosures in May:
Our briefing (here) provides further detail on the content of the above communications, including the key clarifications which financial market participants should be aware of. |
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SFDR RTS –Further Amendments |
In May 2022, ESMA published two letters received from the European Commission requesting that the ESAs propose amendments to the regulatory technical standards (“RTS”) adopted under the Sustainable Finance Disclosure Regulation. The first letter (here), dated 8 April 2022, requests the ESAs to jointly propose amendments to the RTS in relation to the information that should be provided in pre-contractual documents, on websites, and in periodic reports about the exposure of financial products to investments in fossil gas and nuclear energy activities. These amendments are requested by 30 September 2022, at the latest. A second letter (here), dated 11 April 2022, requests the ESAs to propose amendments in respect of principal adverse impacts indicators and transparency of financial products. These amendments should be provided, at the latest, within a period of 12 months following receipt of the letter, ie, April 2023. |
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STS Securitisations – Sustainability Disclosures |
On 2 May 2022, the ESAs published a consultation paper (here) setting out draft RTS on the content, methodology and presentation of information in respect of sustainability indicators for simple, transparent and standardised (“STS”) securitisations. The draft RTS aim to standardise the type and presentation of the information an originator may choose to disclose about the adverse impacts of the assets financed by the underlying exposures on the climate and other sustainability factors. The deadline for responses is 2 July 2022. |
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Environmental risks - Prudential Framework |
On 2 May 2022, the EBA published a discussion paper (here) on the role of environmental risks in the prudential framework for credit institutions and investment firms. The paper is intended to initiate discussion on the appropriateness of the current prudential framework to address environmental risk drivers and considers the potential justification for a dedicated prudential treatment of exposures substantially associated with environmental and/or social objectives. The paper provides an initial assessment of how the framework interacts with environmental risks and poses questions on whether adaptations are required to effectively address such risks. This discussion paper is open to responses until 2 August 2022. |
| EMIR | |
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RTS - Benchmark Transition |
On 17 May 2022, Delegated Regulation 2022/750 (here) amending the RTS in respect of the transition to new benchmarks referenced in classes of certain OTC derivative contracts subject to the clearing obligation was published in the Official Journal. The amendments to the RTS reflect the cessation of EONIA and LIBOR as benchmarks and the inclusion of classes of OTC interest rate derivatives referencing risk-free rates (€STR, SOFR, SONIA or TONA) that should be subject to the clearing obligation. |
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Initial Margin Valuation – ECB processes |
On 18 May 2022, the ECB published an article on valuation of initial margin in the context of supervised banks (here). The ECB states that it aims to have a model validation process designed by the time the corresponding regulatory process has been finalised. In the meantime, the ECB expects banks to monitor the development of new requirements closely, plan accordingly and assign resources and responsibilities for this task. |
| Capital Requirements/Credit Institutions | |
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Department of Finance - Retail Banking Review |
On 16 May 2022, the Department of Finance launched a public consultation seeking stakeholder views on its retail banking review (here). The focus of the review, and the public consultation, is on retail banking services and runs from the 16 May 2022 until the 8 July 2022. |
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Retail Bank CEO Roundtable –CBI Statement |
On 17 May 2022, the CBI announced it had met with the CEOs of the five main retail banks in Ireland to discuss the large scale migration of customer bank accounts and the actions necessary to ensure that this activity happens in line with customer needs and expectations (here). The CBI noted more work was required in the areas of planning, customer-focused arrangements, proactive communication and system wide engagement. |
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Charges Approval Process |
On 13 May 2022, the CBI published an updated information document on the Credit Institution Charges Approval Process to assist credit institutions when making a notification under Section 149 of the Consumer Credit Act 1995 (here). |
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RTS - Calculation of Credit Risk Adjustments |
On 12 May 2022, the European Commission adopted a Delegated Regulation (here) amending the RTS as regards the specification of the calculation of specific and general credit risk adjustments to determine the own funds requirement for credit risk under the Capital Requirements Regulation. The Council of the EU and the European Parliament will now scrutinise the Delegated Regulation. If neither object, it will enter into force 20 days after its publication in the Official Journal. |
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RTS - Emerging Markets and Advanced Economies |
On 17 May 2022, the European Commission adopted a Delegated Regulation (here) supplementing the Capital Requirements Regulation with regard to RTS on emerging markets and advanced economies. The Council of the EU and the European Parliament will now scrutinise the Delegated Regulation. If neither object, it will enter into force 20 days after its publication in the Official Journal. |
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Covered Bonds - Liquidity Coverage Requirements |
On 20 May 2022, Commission Delegated Regulation (EU) 2022/786 (here) amending the Commission Delegated Regulation EU 2015/61 (the “LCR Delegated Regulation”) with regard to liquidity coverage requirement (“LCR”) for credit institutions was published in the Official Journal. The amendments made are intended to amend the LCR to adapt same for the covered bond framework. This Delegated Regulation will apply from 8 July 2022. |
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ITS –Benchmarking Portfolios |
On 24 May 2022 the European Commission adopted an Implementing Regulation (together with Annexes) amending Commission Implementing Regulation (EU) 2016/2070 (here). This Implementing Regulation relates to ITS specifying the benchmarking portfolios and reporting instructions for institutions to be applied in the annual benchmarking exercises. If the European Parliament and Council do not object, this Implementing Regulation will enter into force 20 days after its publication in the Official Journal. |
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ITS - Credit Assessments of ECAIs for Securitisation |
On 3 May 2022, the EBA published a final report (here) with draft amended implementing technical standards (“ITS”) on the mapping of credit assessments of external credit assessment institutions (“ECAIs”) for securitisation in accordance with the Capital Requirements Regulation. This report will now be considered by the Commission. |
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RTS - Shadow Banking Entities |
On 23 May 2022, the EBA published a final report (here) on draft RTS on criteria for the identification of shadow banking entities under the Capital Requirements Regulation. This report will now be considered by the Commission. |
| Insurance / Insurance Distribution | |
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National resolution framework for (re)insurers |
On 13 May 2022, the Department of Finance published its feedback statement on its public consultation on the development of a national resolution framework for insurers and reinsurers which launched on 1 September 2021 and closed on 30 November 2021 (here). Since the consultation was launched, the European Commission published its separate proposal for an Insurance Recovery and Resolution Directive (“IRRD”). Given stakeholders' preference for an EU harmonised insurance resolution framework rather than a stand-alone domestic framework, the Department of Finance and the CBI state they will focus efforts on inputting feedback into IRRD negotiations and implementation. |
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Insurance Regulations 2022 Q&A |
On 6 May 2022, the CBI updated its Q&A document on Insurance Regulations 2022 (here), which covers general queries, pricing, annual review and record keeping, and automatic renewal arrangements. |
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Own Funds Reporting |
On 13 May 2022, Commission Implementing Regulation (EU) 2022/732 laying down technical information for the calculation of technical provisions and basic own funds for reporting with reference dates from 31 March 2022 until 29 June 2022 in accordance with Directive 2009/138/EC of the European Parliament and of the Council on the taking-up and pursuit of the business of Insurance and Reinsurance (here) was published in the Official Journal. |
| Investment Firms / MiFID | |
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MiFID II Q&As |
On 20 May 2022, ESMA published an updated version of its Q&As (here) on MiFID II and MiFIR transparency topics. The updates relate to reporting under the heading ‘Non–equity transparency’. |
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Best Execution Reporting |
On 25 May 2022, ESMA published its review of MiFID best execution reporting for investment firms (here). In summary, ESMA’s review recommends retaining RTS 28 and improving same (such improvements will require amendments to the MiFID II Directive and Delegated Regulation (EU) 2017/565). The next step is for the Commission to consider ESMA’s review. |
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RTS – Benchmark Transition |
On 17 May 2022, Delegated Regulation 2022/749 amending the RTS which specify the classes of OTC derivatives that are subject to the derivatives trading obligation under MiFIR was published in the Official Journal (here). |
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Data Reporting Service Providers |
On 24 May 2022, Commission Delegated Regulation (EU) 2022/803 (here) was published in the Official Journal. The Delegated Regulation sets out the procedure ESMA must follow to impose fines or penalties on data reporting service providers under its supervision. |
| Investment Funds | |
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CSA Costs and Fees |
On 31 May 2021, ESMA published a final report on the 2021 Common Supervisory Action (“CSA”) with national competent authorities (“NCAs”) on the supervision of costs and fees of UCITS across the EU/EEA (here). In its report ESMA:
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PRIIPs Developments |
On 31 May 2022, the European Union (Undertakings for Collective Investment in Transferable Securities) (Amendment) Regulations 2022 were published in Iris Oifigiúil (here). These Regulations give effect to Directive (EU) 2021/2261 to confirm that where (a) an investment company, or (b) for each of the common contractual funds and unit trusts it manages, a management company, draws up, provides, revises and translates a document which complies with the requirements applicable to a key information document (“KID”) under the PRIIPs Regulation, the CBI shall regard that document as satisfying the requirements applicable to key investor information for the purposes of the UCITS Regulations. These Regulations come into operation on 1 January 2023. At European level, the ESAs published a report on 2 May 2022 setting out their technical advice to the European Commission in response to a call for advice on the Commission's review of the PRIIPs Regulation (here). On 10 May 2022, the ESAs issued a joint supervisory statement addressed to NCAs (here) on the ‘What is this product?’ section of the KID. This supervisory statement is aimed to improve the consistency of investor protection and national supervision with a focus on descriptions provided by PRIIPs manufacturers. |
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Sanctions in respect of conflict in Ukraine |
On 16 May 2022, the CBI issued a notice of intention in respect of the approval process for UCITS side pocket arrangements in relation to Russian, Belarusian and Ukrainian assets that are impacted by the Russian invasion into Ukraine and/or impacted by sanctions that have been imposed as a result of Russia’s invasion of Ukraine (here). This notice followed an ESMA statement (here) for fund managers on their obligations to investors in the light of the conflict in Ukraine. Our briefing (here) provides further detail on the CBI’s notice of intention. |
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Calculation of Performance Fees |
On 20 May 2022, ESMA published an updated version of its Q&As (here) on the application of the Alternative Investment Fund Managers Directive and, on 22 May 2022, an updated version of its Q&As on the application of the UCITS Directive (here). Both updates relate to calculation of performance fees and specifically how the performance reference period for the benchmark model should be set. ESMA confirms that it should be ensured that any underperformance is brought forward for a minimum period of 5 years before a performance fee becomes payable, i.e. fund managers should look back at the past 5 years for the purpose of compensating underperformances. In case the fund has overperformed the benchmark index, the fund manager should be able to crystallise performance fees. The Q&A also confirms that the only exception to the application of the 5-year performance reference period is ‘the fulcrum fee model and other models which provide for a symmetrical fee structure’. The Q&As also contain helpful worked examples. |
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Cross-border Marketing and Management of AIFs and UCITS |
On 17 May 2022, ESMA launched a consultation on draft technical standards for notifications for cross-border marketing and management of AIFS and UCITS (here). This consultation paper represents the first stage in the development of draft ITS and RTS to specify the information to be provided, as well as the content and format of notification letters to be submitted by UCITS, management companies and AIFMs to NCAs to undertake cross-border marketing or cross-border management activities in host Member States. The deadline for responses is 9 September 2022. |
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Funds Authorisation and Funds Service Providers – CBI website |
On 19 May 2022, the CBI updated the Funds Authorisation and Funds Service Providers sections of its website here. The updates include:
The CBI also updated its fund return profile template (here) and related guidance (here). |
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Amendments to AIFMD and UCITS Directive |
On 18 May 2022, the European Parliament's Economic and Monetary Affairs Committee published its draft report (here) on the proposed amending directive on delegation arrangements, liquidity risk management, supervisory reporting, provision of depositary and custody services, and loan origination by alternative investment funds under the Alternative Investment Fund Managers Directive (“AIFMD”) and the UCITS Directive. The draft report contains a draft European Parliament legislative resolution, which sets out suggested amendments in respect of identified areas for improvement. These include delegation and supervisory reporting, liquidity management tools, loan origination funds, depository services, transparency, data collection and disclosures. |
| Crowdfunding | |
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Extension of the Transitional Period for Crowdfunding Providers |
On 19 May 2022, the ESMA published a report (here) in which it expresses its support for the extension of the transitional period for crowdfunding service providers (“CSPs”) which have applied for authorisation pursuant to Regulation (EU) 2020/1503 (the “ECSPR”) by 1 October 2022. The European Commission shall now consider the report. |
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Crowdfunding Q&As |
On 22 May 2022, ESMA published an updated version of its Q&As (here) relating to the ECSPR. Updates include Q&As relating to the holding of transferable securities by a CSP, the provision of payment services by a CSP, use of tied agents and establishment of branches by CSPs. |
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RTS - CSPs |
On 13 May 2022, the EBA published its final report (here) on draft RTS under the ECSPR relating to credit scoring and loan pricing disclosure, credit risk assessment and risk management requirements. The draft RTS are set out in Section 3 of the final report. In particular, they cover:
These draft RTS will be submitted to the European Commission for endorsement, after which they will be subject to scrutiny by the European Parliament and the Council of the EU before being published in the Official Journal. |
| Other | |
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Selected Consultations, Discussion Papers, Speeches and Reports Published |
AFME, EFAMA, BVI, and Cboe Europe - A Cross-Industry Consensus on the EU Equity Consolidated Tape Proposal Statement of Principles (here) BIS CPMI – Final report Extending and Aligning Payment System Operating Hours for Cross-Border Payments (here) CBI - Markets Updates Issue 4 (here) and Issue 5 (here) CBI – Update of Prudential Regulatory Flexibility Measures adopted in view of COVID-19 for Securities Markets, Investment Management, Investment Firms and Fund Service Providers (here) CBI - Speech by Director of Financial Regulation, Mr Gerry Cross, ‘Blockchain, cryptography, and financial services: a regulatory perspective’ (here) CBI - Speech by Governor Gabriel Makhlouf ‘Funds - facing the future’ (here) EBA - Final Report on Response to the Nonbank Lending Request from the CfA on digital finance (here) EBA - Decision concerning Supervisory Reporting for IPU Threshold Monitoring (here) EBA - Guidelines on the Equivalence of Confidentiality and Professional Secrecy Regimes of Third-Country Authorities (here) EBA – Report on the Peer Review on Supervision of NPE Management (here) EBA - Draft Implementing Technical Standards on amending Commission Implementing Regulation (EU) 2016/2070 with regard to Benchmarking of Internal Models (here) EBA - Report on the Convergence of Supervisory Practices across the EU in 2021 (here) EBA – Announcement on launch of annual 2022 EU-wide transparency exercise in September 2022 (here) EBA - Climate-related Risks to Financial Stability (here) EBA - Mapping between Technical Standards on Pillar 3 Disclosures and Technical Standards on Supervisory Reporting (v3.0) (here) EBA - Draft ITS specifying the templates to be used by credit institutions for the provision of information referred to in Article 15(1) of Directive (EU) 2021/2167 in order to provide detailed information on their credit exposures in the banking book to credit purchasers for the analysis, financial due diligence and valuation of a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself (NPL Transactions Data Templates) (here). The deadline for comments is 31 August 2022. ECB - blog by Mr Andrea Enria, ECB Supervisory Board Chair, on ‘the Desks Mapping Review – Integrating Brexit Banks into European Banking Supervision’ (here) ECB – Banking Supervision May 2022 newsletter articles (here) European Commission - Targeted Consultation on the Regime applicable to the use of Benchmarks administered in a third country (here). The deadline for responses is 12 August 2022. European Commission - report to the European Parliament and Council of the EU on the operation of the European Supervisory Authorities (ESAs) (here) European Commission - Updates to FAQs on sanctions adopted following Russia’s military aggression against Ukraine (here) ESMA - Net Short Position Notification Thresholds for Sovereign Issuers 1 May 2022 (here) ESMA - Annual LIS and SSTI Calculations for Bonds and the Quarterly Bond Liquidity Assessment (here) ESMA - Overview of planned Consultation Papers 2022 (here) ESMA – Recommendations for Disclosures of Expected Impacts of IFRS 17 Application (here) ESMA - Opinions on proposed amendments to the EU Market Abuse Regulation RTS for the promotion of the use of SME Growth Markets (here) and (here). ESMA - Relevant Authorities for Central Securities Depositories (here) ESMA - Speech by Ms Verena Ross, ESMA Chair, ‘Key Priorities for EU Retail Fund Investors’ (here) ESMA - April Newsletter (here) ESMA – TRV Risk Analysis, The Drivers of the Costs and Performance of ESG Funds (here) ESMA - Consultation Papers in respect of Guidelines supplementing the Regulation on the Recovery and Resolution of Central Counterparties (the CCP Recovery and Resolution Regulation or CCPRRR) (here) (here) (here) (here)). Responses are due by [1 August 2022]. ESMA also published six final reports on RTS and guidelines under the CCPRRR (here). The Commission will now consider these reports. ESMA - Report on Highly Liquid Financial Instruments for CCP Investment Policies (here) ESMA - ‘Leverage and Derivatives – the case of Archegos’ (here) European Payments Council - Clarification Paper on the SEPA Request-to-Pay scheme rulebook (here) FIA and ISDA - Response to the European Commission’s Request for Feedback on its CSDR Review Proposal (here) ISDA - Future Leaders in Derivatives, Sustainability-linked Derivatives: Where to Begin? (here) ISDA - Future Leaders in Derivatives, The Future of Derivatives Markets: A Roadmap for Innovation (here) ISDA - Report on crypto-asset risks and hedging (here) ISDA - “In Review” Newsletter April edition (here) and May edition (here) |
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This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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