White Paper

The Financial Services Aspects of the Brexit White Paper

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On February 2, 2017, the Department for Exiting the European Union, the department of the UK government tasked with extricating the UK from the EU, published a white paper on the UK’s exit from and new partnership with the EU. The white paper contains further detail on the UK government’s approach to financial services in sections 8.22 to 8.26.

The white paper states that the UK government will target the following aims in its negotiations with the EU in respect of the financial services sector:

  • Achieving the “freest possible trade” in financial services between the UK and EU member states.
  • Establishing strong co-operation and oversight arrangements with the EU, reflecting the interconnectedness of financial markets. The paper suggest that the UK will continue to support and implement international financial standards.
  • Negotiating on the UK’s future status and arrangements with regard to EU agencies, including the European Supervisory Authorities (ESAs) (that is, ESMA, EIOPA and the EBA).
  • Agreeing on a “phased process of implementation” to allow for the UK and the EU to prepare for the new arrangements that will apply following the UK’s departure from the EU. It is suggested that the phased process might relate to the future legal and regulatory framework for business. In any event, the UK government will take steps to mitigate the impact on economic and other functions, including passing legislation if necessary.

The UK government argues that factors such as the UK’s legal system, language and infrastructure will help to ensure that it remains a preeminent global financial center after the implementation of Brexit.

Further to the publishing of the white paper, the Financial Markets Law Committee published a letter on February 3, 2017, addressed to Andrew Tyrie, Treasury Select Committee chair, commenting on the UK’s financial services industry in the context of the UK’s withdrawal from the EU. The letter has been written in response to the Committee’s inquiry on the UK’s future economic relationship with the EU. The letter notes that post-Brexit, the UK will lose access to the European single market in financial services and will become a third country from the perspective of EU law. The letter notes that there are serious uncertainties as to the conditions that the UK and regulators will have to satisfy as a third country. As such, staged transitional arrangements negotiated well in advance of the UK’s withdrawal from the EU will be valuable in promoting legal certainty and minimizing disruption.

OCC to Move Forward With Considering Fintech Charter Applications

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On December 2, 2016, Comptroller of the Currency Thomas J. Curry announced that the Office of the Comptroller of the Currency (“OCC“) would move forward with considering applications from fintech companies that conduct at least one of three core banking activities (i.e., receiving deposits, paying checks or lending money) to become special purpose national banks. Fintech companies will have the option to seek a charter, and the OCC will evaluate applicants to ensure they have a reasonable chance of success, appropriate risk management, effective consumer protection and strong capital and liquidity.

The OCC simultaneously published a paper discussing the issues and conditions that the agency will consider in granting special purpose national bank charters. Comments to the paper may be submitted through January 15, 2017. For further discussion relating to the announcement, please see “National Bank Charters for Fintech Companies.” Orrick Alert. Release. White Paper.

UK Government White Paper on Banking Reform

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On 14 June 2012, HM Treasury and the Department for Business, Innovation and Skills (BIS) published a white paper on banking reform setting out the government’s proposals for implementing the key recommendations of the Independent Commission on Banking (ICB) chaired by Sir John Vickers. White Paper.

Key proposals of the White Paper are:

• Retail banking operations will be ring-fenced, with operations core to consumer and small business services separated from investment banking.

• Those ring-fenced operations will face limits on exposures to other banks – they will only be allowed to carry out tasks like facilitating other institutions’ payments and managing liquidity.

• The biggest banks will hold 17% of risk-weighted assets as primary loss-absorbing capital.

• Bail-in bonds will be used to make creditors cover some of the cost of a bank failing, without a full collapse.

• But depositors will still be protected and will have a senior claim to bondholders, as well as a legal guarantee on deposits up to £85,000.

• Banks must comply with Basel III’s 3% tier one leverage ratio.

The deadline for responses to the White Paper is 6 September 2012 with the Government due to publish a draft bill in the autumn. The Government states in the white paper that it is committed to completing all primary and secondary legislation by the end of this Parliament in May 2015. The deadline for banks to comply with all of the ICB recommendations is 2019.

Fed Housing Market White Paper

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On January 4, the Fed released a white paper entitled “The U.S. Housing Market: Current Conditions and Policy Considerations” which discusses proposals for housing market and mortgage servicing practices, including a pending federal agency proposal for an REO to Rental program, servicer modification and foreclosure practices, loan underwriting standards and issues related to loan put backs by the GSEs. Fed White Paper.

Housing Finance Reform: House Hearing and Administration Proposal

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On February 9, the House Financial Services Committee held a hearing on GSE reform with a focus on immediate steps to protect taxpayers and end the bailout. On February 11, the Obama administration released a white paper on housing finance reform, outlining its plan to: (i) reduce government support for housing finance and wind down Fannie Mae and Freddie Mac on a responsible timeline; (ii) address fundamental flaws in the mortgage market to protect borrowers, ensure transparency, and increase the role of private capital; and (iii) target the government’s support for affordable housing in a more effective and transparent manner. The proposal also sets forth longer-term reform choices for structuring the government’s future role in the housing market. Congressional Hearing Link. Treasury Release. White Paper.  HFS Testimony and Archived Webcast.