Charlie Sheldon

Associate

London


Read full biography at www.orrick.com

Charlie has a broad range of corporate experience and advises clients on cross-border and domestic transactions in the areas of M&A, private equity, venture capital, renewable energy, corporate governance and restructuring.

Charlie frequently acts in the energy, technology and media sectors and is experienced in working with a range of clients, from large corporates, institutional investors and fast growing technology startups on a variety of matters including acquisitions and disposals, public takeovers, corporate restructurings, investments and corporate governance.

Posts by: Charles Sheldon

European Commission to Publish Legislative Proposal to Revise the Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (“EMIR”)

 

On January 31, 2017, the European Commission published a speech by Valdis Dombrovskis, Commission Vice President, on finance for growth in manufacturing.

The speech included the Commission’s recent review of EMIR, the outcome of which the European Commission reported on in November 2016.

Mr. Dombrovskis commented that, during the review process, the European Commission received substantial feedback on the rules governing derivatives. Several respondents, including regulators and industry participants, argued that there is scope to make the rules and reporting obligations in this area more proportionate, particularly for non-financial counterparties.

The European Commission agrees with this feedback and intends to address some of the issues by revising existing technical standards to make reporting standards simpler and clearer. It will publish its legislative proposal to revise EMIR in spring 2017.

ESMA Publishes New Methodology for Mandatory Peer Reviews of CCPS Authorization and Supervision Under EMIR

 

On January 5, 2017, the European Securities and Markets Authority (“ESMA“) published its methodology (ESMA71-1154262120-155) for mandatory peer reviews relating to the authorization and supervision of central counterparties (“CCPs“) under the European Market Infrastructure Regulation (“EMIR“) (the Regulation on OTC derivative transactions, CCPs and trade repositories (Regulation 648/2012)).

The scope of peer reviews under EMIR is defined, and ESMA has a specific role to further supervisory cooperation. Based on the experience of the first peer review undertaken in 2016 in the context of EMIR, ESMA’s Board of Supervisors decided that a methodology for the new type of peer reviews should build on the existing methodology. Further reviews will be conducted on, at least, a yearly basis.

The methodology sets out information relating to the legal basis and scope of the review, the topics covered, the assessment specifications and the approach taken to the questionnaire and report.

The application of the methodology will be restricted to peer reviews undertaken in the application of Article 26 of EMIR. This scope may be reconsidered by ESMA at a later date, when the mandatory peer reviews relating to other EU legislation need to be launched (for example, in relation to the Alternative Investment Fund Managers Directive (2011/61/EU) and the Regulation on improving securities settlement and regulating central securities depositories (Regulation 909/2014)).

ECB Consults on Changes to the Regulation on Oversight Requirements for Systemically Important Payment Systems

 

On January 3, 2017, the ECB published a consultation paper on the revision of the Regulation on oversight requirements for SIPS (“SIPS Regulation“).

There are four payment systems that fall under the SIPS Regulation, which are TARGET2, EURO1, STEP2-T and CORE(FR). The SIPS Regulation aims to ensure the efficient management and smooth operation of SIPS in the euro area.

A press release published with the consultation paper states that, under the SIPS Regulation, the general application of the SIPS Regulation must be reviewed every two years and amended if needed. Among other things, the revised version sets clearer requirements on liquidity risk mitigation and new requirements on cyber resilience, and assigns additional powers to the competent authorities.

As part of the revision, the ECB has also published a consultation paper on its decision relating to the methodology used to calculate sanctions that can be imposed in cases of non‑compliance with the SIPS Regulation.

The consultation closes on February 20, 2017.

EBA Requests European Commission to Revise Deadlines for the Submission of Certain Draft Technical Standards Under the CRD IV and the CRR

 

On January 3, 2017, the EBA published a letter (dated December 23, 2016) that was sent to the Director-General Financial Stability, Financial Services and Capital Markets Union (“FISMA“), by Andrea Enria, EBA Chairman, requesting the revision of deadlines for the submission of certain draft technical standards required under the CRD IV and the CRR.

In the letter, the EBA states that it cannot deliver on all the mandates required under the CRD IV and the CRR due to a “significant workload” and “considerable resources constraints” and goes on to request submission within new time limits for the following mandates, which were due to be delivered by the end of December 2016:

  • Regulatory technical standards (“RTS”) and implementing technical standards (ITS) on the authorization of credit institutions. The EBA currently expects to be able to accomplish these mandates during 2017, most likely around mid-2017.
  • RTS on consolidation methods under Article 382(5) of the CRR. The EBA currently expects to deliver on this mandate by the end of 2017, subject to developments relating to revisions of the CRR.
  • RTS on the exclusion of transactions with non-financial counterparties established in third countries under Article 382(5) of the CRR. The EBA expects to submit the RTS during Q1 2017.
  • RTS on disclosure of encumbered and unencumbered assets under Article 443 of the CRR. The EBA intends to deliver these during Q1 2017.

The letter goes on to address some of the remaining mandates given to the EBA under the CRD IV and the CRR, which, in the light of EU and international developments, were assessed as less meaningful by the supervisory community. Mr. Enria notes that these are continuously re‑prioritized due to scarce EBA resources. He highlights the following:

  • With regard to the credit risk mitigation (“CRM”) framework, in particular the RTS on immaterial portfolios for the internal ratings approach, RTS on conditional guarantees and RTS on eligible collateral within the CRM framework.

With regard to the operational risk area, in particular the RTS on the combined use of different approaches.

European Systemic Risk Board (ESRB) Publishes Country-Specific Warning on Vulnerabilities in the Residential Real Estate Sector

 

On November 28, 2016, the European Systemic Risk Board (“ESRB“) published a report on vulnerabilities in the EU residential real estate sector, together with eight country-specific warnings and a Q&As document.

The warnings on medium-term vulnerabilities in the residential real estate sector are addressed to the relevant ministers in eight Member States: Austria, Belgium, Denmark, Finland, Luxembourg, the Netherlands, Sweden and the UK. The ESRB decided to issue the warnings following a forward-looking EU-wide assessment of vulnerabilities relating to residential real estate. These vulnerabilities may be a source of systemic risk to financial stability in the medium term. As a result, on September 22, 2016, the ESRB adopted warnings addressed to the eight member states and decided to make the warnings public. The member states were given a period of time to respond.

For the remaining member states, the ESRB has either not identified a build-up of any material vulnerabilities relating to the residential real estate sector, or such vulnerabilities have been identified but the current policy stance is sufficient to address them. The ESRB advises that the latter is the case for Estonia and Slovakia. It also advises that, for the UK, it has not assessed whether policies in place are appropriate and sufficient given the uncertain impact of the vote to leave the EU on the medium-term outlook for the UK housing market.

The ESRB has also published a recommendation on closing real estate data gaps (Recommendation ESRB/2016/14), which it adopted on October 31, 2016. The recommendation, which covers both the residential and commercial real estate sectors, aims to establish a more harmonized framework for monitoring developments in EU real estate markets. It provides a common set of indicators that national authorities are recommended to monitor in assessing risks originating from the real estate sector, along with working definitions of these indicators. The deadline for implementing the recommendation is the end of 2020. ESMA will monitor compliance with the recommendation via an “act of explain” mechanism. As follow-up work to the recommendation, the ESRB believes that a regular data collection on these indicators should take place at the EU level, and considers that the European Central Bank (ECB) is well placed to play a leading role in this.

European Commission Adopts Delegated Regulation Amending List of High-Risk Third Countries Under the Fourth Money Laundering Directive

 

On November 28, 2016, the Council of the EU published a Commission Delegated Regulation (C(2016) 7495 final) amending Commission Delegated Regulation (EU) 2016/1675 supplementing the Fourth Money Laundering Directive ((EU) 2015/849) (“MLD4“) by identifying high-risk third countries with strategic deficiencies.

The Commission adopted Delegated Regulation (EU) 2016/1675 in July 2016. The Delegated Regulation, for the first time, identified high-risk third countries with strategic anti-money laundering (“AML“) and counter-terrorist financing (“CTF“) deficiencies. The Commission advised at the time that it had taken into account the most recent Financial Action Task Force (“FATF“) public statements and that it would review the list, where appropriate.

The explanatory memorandum to the new Delegated Regulation explains that, as stressed in recital 28 to MLD4, the Commission will adapt its assessment to changes made to information sources from international organizations and standard setters, such as those issued by the FATF. As a consequence, the Commission aims to update the list to reflect the progress, or the lack of progress, made by high-risk third countries in removing the strategic deficiencies.

According to this latest information available to the Commission, it was found that Guyana has made significant progress on AML and CTF matters. On the basis of the progress made, with Guyana substantially completing all the action plan items agreed upon with the FATF, the FATF decided to conduct an on-site visit to Guyana to confirm that implementation had begun and that there is political commitment to continue to strengthen the AML and CTF regime. The FATF on‑site visit concluded that Guyana has a legal and institutional framework in place that addresses the strategic deficiencies of its AML and CTF regime. As a result, the FATF has removed Guyana from its document Improving global AML/CTF compliance: ongoing process.

The Commission’s analysis has similarly concluded that Guyana should no longer be considered to be a third country with strategic AML and CTF deficiencies. As a result, it is removing Guyana from the list of high-risk third countries under MLD4.

The Commission adopted the Delegated Regulation on November 24, 2016. The new Delegated Regulation states that it will enter into force the day after it is published in the Official Journal of the EU (OJ).

European Parliament Adopts Resolution on Finalization of Basel III

 

On November 23, 2016, the European Parliament published a provisional version of the text of the resolution it has adopted on finalization of Basel III.

Among other things, in the resolution, the Parliament:

  • Underlines the importance of sound global standards and principles for the prudential regulation of banks and welcomes the post-crisis work of the Basel Committee on Banking Supervision (“BCBS“) in this area. The Parliament notes the BCBS’ ongoing work to finalize the Basel III framework and underlines the need for greater transparency and accountability to enhance the legitimacy and ownership of the BCBS’ deliberations.
  • Stresses that the current revision should respect the principle of not significantly increasing overall capital requirements, while at the same time strengthening the overall financial position of EU banks. The Parliament also underlines the equally important principle to be respected of promoting the level playing field at the global level, by mitigating rather than exacerbating the differences between jurisdictions and banking models, and by not unduly penalizing the EU banking model.
  • Is concerned that early analysis of recent BCBS drafts indicates that the reform package at its current stage might not comply with the principles mentioned above. As a result, the Parliament calls on the BCBS to revise its proposals accordingly, and calls on the European Central Bank (“ECB“) and the Single Supervisory Mechanism (SSM) to ensure respect of the principles in finalizing and monitoring the new standard. The Parliament underlines that this approach would be instrumental in ensuring consistent implementation of the new standard by the Parliament as co-legislator.
  • Calls for dialogue and an exchange of best practices among regulators concerning the application of the principle of proportionality to be established at EU and international levels.
  • Calls on the European Commission to prioritize work on a “small banking box” for the least risky banking models. The Parliament also calls on the Commission to extend this work to an assessment of the feasibility of a future regulatory framework consisting of less complex and more appropriate and proportional prudential rules specifically adapted to different types of banking models.
  • Stresses the importance of the role of the Commission, the ECB and the EBA in engaging in the BCBS’ work, and in providing transparent and comprehensive updates on developments in the BCBS’ discussions. The Parliament calls for this role to be given stronger visibility during meetings of the European Economic and Financial Affairs Council (ECOFIN), and for enhanced accountability to its Economic and Monetary Affairs Committee (ECON).

The Parliament has instructed its President to forward the resolution to the Commission.

ICMA Guide to the European Corporate Debt Private Placement Market

 

On October 25, 2016, the International Capital Market Association (“ICMA”) published the European Corporate Debt Private Placement Guide (the “Guide”). The Guide is intended to provide a voluntary framework of best practices for European corporate private placement (“ECPP”) transactions. It aims to support the development of the ECPP market, and it builds on existing practices in the bond and bank loan markets and in other international private placement markets.

The Guide was first published in February 2015 (for more information, see Legal update: archive, ICMA guide to the pan-European private placement market). This edition of the Guide was produced as a result of developments in the ECPP market and is intended to replace and update the original 2015 version. The Guide now also covers aspects of the German Schuldschein market and contains an appendix on general principles of, and best practices applicable to, ECPP deal amendments and waivers. Guide.

European Commission Work Program 2017

 

On October 25, 2016, the European Commission issued a communication outlining its 2017 Work Program (COM(2016) 710 final). The communication is addressed to the European Parliament, the Council of the EU, the European Economic and Social Committee (“EESC”) and the Committee of the Regions. Alongside the communication, the Commission has published a Q&As document, together with the following Annexes to the communication.

In Annex 1 of the Work Program, the Commission proposes 21 key initiatives for 2017 to implement 10 priorities for the year. In respect of finance matters, the Commission proposes to:

  • Follow up on a review of the European System of Financial Supervision to strengthen the effectiveness and efficiency of oversight at both macro- and micro- prudential levels; and
  • Present a mid-term review of the Capital Markets Union Action Plan identifying obstacles and any additional measures required in Q2 of 2017. New CMU measures will include a framework for an EU personal pension product in Q2 2017, a REFIT revision of EMIR (the Regulation on OTC derivatives, central counterparties and trade repositories) (Regulation 648/2012) in Q1 2017 and an action plan on retail financial services in Q1 2017. The Commission notes that the adoption of the Prospectus Regulation and the Securitization Regulation should be accelerated.

Annex 2 sets out 18 new REFIT initiatives being launched, and it complements the items listed with new initiatives in Annex I. REFIT is the Commission’s regulatory fitness and performance program. This is designed to make EU law simpler and reduce regulatory costs without compromising policy objectives. One of the new initiatives relates to the Regulation on cross-border payments in the Community (Regulation 924/2009).

The Commission has also published a scoreboard that shows the current state of play in the implementation of 231 REFIT initiatives, together with a summary of the key developments and results of REFIT.

Annex 3 sets out 35 priority‑pending proposals in relation to which the Commission wants the Parliament and the Council to take swift action. These include the proposals for a European deposit insurance scheme (“EDIS”) and the CMU reforms. For more information on the EDIS, see Practice note, European deposit insurance scheme (EDIS).

Annex 4 lists the intended withdrawal of 19 pending proposals. These are proposals assessed as no longer relevant, as they have either been blocked or no longer meet the Commission’s criteria.

Annex 5 contains a list of existing legislation that the Commission intends to repeal.

The Commission has also published a document that summarizes the legislation that will become applicable in 2017. This includes the Regulation on transparency of securities financing transactions (2015/2365/EU).

ECB Amends Eligibility Criteria for Unsecured Bank Bonds

 

On October 5, 2016, the European Central Bank (“ECB”) stated that it will be making changes to its collateral framework by revising the collateral eligibility criteria and risk control measures in relation to senior unsecured debt instruments issued by credit institutions or investment firms (unsecured bank bonds or UBBs).

Under the current rules, UBBs will, except for these new changes, become ineligible on January 1, 2017. The ECB’s revisions to its collateral framework are aimed at temporarily maintaining the eligibility of UBBs (including the eligibility of statutorily subordinated UBBs that are not also contractually subordinated), beyond January 1, 2017.

Furthermore, UBBs will also be subject to additional risk control measures to remain eligible. The ECB has decided to reduce, as of January 1, 2017, the usage limit for uncovered bank bonds from 5% to 2.5%. The reduction will not apply where:

  • the value of such assets is equal to or less than €50 million (net of any applicable haircut); or
  • such assets are guaranteed (by a public sector entity that has the right to levy taxes) by way of a guarantee that complies with the provisions of Article 114 of the ECB Guideline on the implementation of the Eurosystem monetary policy framework.

The changes are expected to come into effect from January 1, 2017.