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The New Year Rings in New Requirements for NFA Member Asset Managers

In the final weeks of 2018, the National Futures Association (“NFA”) issued new requirements applicable to asset managers who are members of the NFA that will take effect in 2019. First, the NFA amended its Interpretive Notice 9070, “NFA Compliance Rules 2-9, 2-36 and 2-49: Information Systems Security Programs” (the “Cybersecurity Notice”). The amended Cybersecurity Notice adds an NFA notification obligation, employee training requirements, and specific approval procedures to the written information systems security program (“ISSP”) required of each NFA member firm (a “firm”) under the original Cybersecurity Notice issued in 2016. In addition, Interpretive Notice “NFA Compliance Rule 2-9: CPO Internal Controls System” (the “Internal Controls Notice”) requires commodity pool operator (“CPO”) members to establish a system of internal controls and provides guidance on designing and implementing such controls. The Cybersecurity Notice will become effective on April 1, 2019 and we expect the Internal Controls Notice to be effective on April 1 or soon thereafter.

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ESMA Releases Level 2 Regulations Under MiFID II

Time to Read: 1 minutes Practices: Hedge Funds, Investment Management, Private Investment Funds

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The European Securities and Markets Authority (“ESMA”) published today an important new set of rules under the revised Markets in Financial Instruments Directive (“MiFID II”). MiFID II came into force on 2 July 2014. It will not have effect until 3 January 2017, reflecting the period granted to European Union member states to transpose its provisions into national law and for production of the associated “Level 2” rules. 

ESMA published today:

  • its final “technical advice” on various topics covered by “regulatory technical standards”, following its six-month consultation on these topics. The regulatory technical standards are a form of Level 2 legislation (subsidiary to the Directive) that ESMA is responsible for drafting and comprise rules on numerous detailed matters that are covered at a high level in the Directive. 
  • a consultation paper that follows an earlier ESMA discussion paper on various topics covered by “implementing technical standards”, including transparency, data publication, requirements applying to trading venues, commodity derivatives and market data reporting. Implementing technical standards are a form of Level 2 legislation that ESMA is responsible for drafting. They cover more technical topics and involve less policy discretion on ESMA’s part.

The topics on which ESMA has produced final technical advice include important topics under MiFID II such as new product governance rules, conflicts of interest, best execution, broker soft commission and commission payments to distributors. In all cases, there will be a significant new layer of detail and prescription in these rules under MiFID II, compared to the first iteration of the Directive. On the assumption that ESMA’s final technical advice will be adopted in due course by the European Commission, today’s publication forms a significant new set of rules.

We will publish detailed Alerts on these topics.

ESMA’s releases can be accessed here

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