Consultation Draft Financial Markets Conduct Bill - Debt Capital Markets

The recent release of the exposure draft of The Financial Markets Conduct Bill (Bill) provides more detail on this key part of the Ministry of Economic Development's Securities Law review. The Bill represents a major re-write of New Zealand's securities law. It will replace, consolidate and update the current primary and secondary securities markets regulation contained in the Securities Act 1978 and the Securities Markets Act 1988. It will introduce a unified regime of governance and reporting for managed investment schemes, replacing the existing rules in the Unit Trusts Act 1960, the Superannuation Schemes Act 1989 and parts of the KiwiSaver Act 2006. It will also augment the existing regulation of market services in the Financial Advisers Act 2008 by providing a parallel licensing regime for 'discretionary investment management services' and introducing a voluntary licensing regime for 'prescribed intermediary services' (initially limited to peer-to-peer lending services).

Submissions are sought by 6 September and, given the size of the Bill, this is a tight deadline.

In this update, we focus on the key aspects of the Bill.The Bill has critical implications for the financial services industry and we are assisting a number of our clients to prepare submissions on the Bill. We are keen to hear your comments on the Bill's proposals and are happy discuss any concerns your business may have, provide advice and assist in the preparation of submissions.

Preliminary matters

The Bill's main purpose is to:

promote the confident and an informed participation of businesses, investors and consumers in financial markets; and
promote and facilitate the development of fair, efficient and transparent financial markets.

It has as additional purposes:

timely and accurate provision of information;
provisions of appropriate governance of financial products and services;
avoiding unnecessary compliance costs; and
promoting innovation and flexibility in financial markets.

Misleading or deceptive conduct or false or misleading representations

Part 2 of the Bill will regulate advertising of financial products and services. It largely imports into securities law the provisions of the Fair Trading Act 1986 relating to misleading or deceptive conduct and false or misleading representations.

There are exceptions for publication in news media of material which is not an advertisement of a financial product or service, or information relating to the offer or supply of a financial product or service. Activities in relation to regulated takeovers, or the buyback or redemption by a company of its own shares under the Companies Act 1993 are also exempted.

Offers of financial products

The Bill imposes disclosure, governance, administrative,accounting and audit requirements for offers of financial products. Under the current Securities Act 1978 regime, these requirements are triggered if the offer is to 'the public'. The Bill will do away with that test. Instead, all offers of financial products on the primary market will be subject to the regulatory requirements, unless one or more exclusions apply to all persons to whom the offer is made.

The exclusions are set out in the first Schedule of the Bill:

Offers to wholesale investors (defined below);
Offers to relatives and close business associates;
Offers made through a discretionary investment management service provider (explained below) or a prescribed intermediary service (initially limited to peerto-peer lending);
Offers to employees under employee share schemes.This exemption is subject to certain criteria;
Offers under dividend reinvestment plans;
Offers where no consideration is payable (excluding KiwiSaver and superannuation schemes where contributions may be required following subscription);
Small, personal offers of equity or debt securities (subject to a 20 investor / $2million per 12 months test and other calculation criteria). This will be useful for small businesses requiring capital; and
A number of more narrow exemptions relating to specific entities or products, many of which are exemptions from the current regime that have been brought across into the new regime. These include certain offers by banks, the Crown, local authorities etc.

Wholesale investors

The 'wholesale investor' tests include a number of the existing exemptions under the Securities Act 1978 (such as persons investing more than $500,000) but also aim to provide more certainty with 'bright-line' safe harbours for offerors.

The safe harbours under the wholesale investor exemptions encompass:

investment businesses (which include traders, banks,QFEs etc);
persons who meet certain quantitative investment criteria (which include habitual or experienced investors and also the 'wealthy' investor exemption in the Securities Act 1978. The current wealthy person exemption has been tightened by requiring these investors to not only have net assets over $2 million or income greater than $200,000 per year, but also meet one other of the investment activity criteria);
large entities, specified government agencies (such as local authorities, SOEs etc), and persons investing $500,000 or more.

There is also an 'eligible investor' safe harbour, where investors who do not qualify under one of the other safe harbours self-certify themselves as an eligible (and therefore wholesale) investor. The certification regarding experience in investing has to be confirmed by an authorised financial adviser. An offeror can also request that an investor certify in writing that they meet any of the other safe harbour requirements.

Other than for offers to wholesale investors or those with a close relationship to the issuer, the other offers that are exempt from the disclosure requirements may still require limited, prescribed disclosure that will be subject to an obligation not to be misleading or deceptive. The disclosure obligation will only apply if regulations require it, but it is inevitable that these regulations will be drafted. We will keep you updated as regulations are released. Clients who take advantage of exemptions under the current regime should contact us to see how and if they have been amended under the exposure draft and submissions can then be made. If the exclusions do not apply, then the Bill's disclosure, governance, administration, accounting and audit requirements will be triggered.

Financial Products

As with the current Securities Act 1978 regime, the exact content of the obligations will differ depending on the type of financial product in question. The Bill will replace the existing categories of financial product defined in the Securities Act 1978 with four categories (equity securities,debt securities, managed investment products and derivatives) intended to capture the economic substance rather than the legal form of the product in question. The FMA will have the power to move a particular product from one category to another by designation and also move products inside and outside the regime entirely by declaration.

Disclosure

With disclosure remaining the primary means of consumer protection, one of the purposes of the Bill is to provide for timely, accurate and understandable information to be provided to investors to assist them in making decisions relating to financial products or the provision of financial services. The Bill proposes a product disclosure statement (PDS) in the place of the two tier investment statement and prospectus. The purpose of the PDS is to provide key information to investors. Other material information will be required to be maintained on the public register of financial products.

While the Bill provides high-level guidance on the PDS, the technical detail of its content will vary from product to product and will be set out in regulations. The ability to tailor PDS content and the meaning of "material information" will be the most important determinant of PDS content and length.

A PDS must be prepared and lodged with the Registrar, together with information for the registry entry before any offer or distribution of application forms can be effected. The PDS must be worded and presented in a clear, concise and effective manner. As well as content, regulations will detail the layout or method of presentation, including the length. A PDS must be provided to a potential investor before an application is made to acquire the financial product.

Consultation is sought on two proposed definitions of 'material information'. Option A is expressed in terms of a material effect on demand and has the advantage of consistency with the test used in trading on markets. Option B is derived from the Australian materiality test for continuous disclosure and focuses on the effect that the

information would have on a particular type of hypothetical investor ('reasonable person as a retail client', 'investors and their professional advisers', 'a prudent but non-expert investor' or a 'reasonable person'). Consent must be obtained, and referred to in the PDS, or register entry, in respect of any statement made by a person - extending the consent requirements from just statements made by experts.

Void / voidable allotments

The removal of the draconian provisions automatically voiding or making voidable allotments where there is a disclosure failure will be welcomed by issuers. The remedy will in most cases be compensation, although in certain circumstances, there is a limited period in which the investor who should have received the documentation is able return the securities and seek a refund and interest.

The position of investors is strengthened in that there is a rebuttable presumption that materially adverse misstatements have caused a product's loss in value and so investors will not have to prove actual reliance on a defective PDS or register entry.

Advertising

There are strict restrictions on advertising or any indirect reference to an offer or intended offer by the issuer, offeror or any associated person. Any communication must comply with the prescribed requirements. The Bill also prohibits offers of financial product in an entity that is not yet formed, and offers in the course of unsolicited meetings or telephone calls. Directors will be held liable for any contravention of the advertising provisions.

On-going disclosure

There are three forms of on-going disclosure required of issuers and again directors will be liable for any contravention. The register must be kept up to date, information must be disclosed to particular investors and there is a duty to make information publicly available in prescribed circumstances.

Governance of Financial Products

Debt Issuers

The Bill's requirements for debt issuers largely follow from current requirements. The key requirements remain to have a trust deed and trustee. Key points to note are that the trustee will now be held to a higher, professional standard in the discharge of its functions of overseeing the issuer. Debt security holders will also have a statutory right to call a meeting and remove the Trustee on achieving certain thresholds.

Managed Investment Schemes

The Bill aims to provide a unified set of governance and reporting rules for managed investment schemes (MIS), regardless of legal form. This is a change from the current position where differing rules apply depending on the legal form of the scheme in question. The new MIS rules will repeal and replace the Unit Trusts Act 1960, Superannuation Schemes Act 1989 and part of the KiwiSaver Act 2006. Group Investment Funds will no longer be able to be used to offer funds to the general public. Existing fund structure of all types will need to be transitioned to the new regime. Transitional provisions are yet to be drafted and will be a key point on which clients will wish to focus their submissions.

In summary, the proposed unified requirements of the new MIS regime are:

Registration: Retail MIS will need to be registered on a new MIS register before proceeding to offer. Wholesale MIS have the option of registering and opting-in to the MIS regime, so will need to weigh up the benefits and costs.
Licensed manager: There will need to be a manager who manages, administers and promotes the MIS. The manager will need to be licensed by the FMA. The licensing requirements include a 'good character' test, the ability to effectively carry out the role and other requirements that have been deferred to regulations.The manager will also be subject to a professional duty of care and fiduciary-like duties (eg, to act in the best interests of investors). These are significant new obligations.
Independent, licensed supervisor: MIS will be required to have a supervisor that is independent of the manager with the role of acting on behalf of scheme participants and supervising the management of the MIS. The supervisor will need to be licensed by the FMA under the existing trustee licensing regime. The supervisor will also be subject to professional standards of care and a set of statutory duties that largely mirror those imposed under the current Unit Trusts Act 1960 and Securities Act 1978 regimes. This will raise the bar for statutory supervisors under the current regime and hold them to standards similar to those imposed on unit trustees under the Unit Trusts Act 1960.
Independent custodian: Assets of the MIS must be held in trust by the supervisor or another external custodian that is independent of the manager. The external custodian will be subject to the same duties as the supervisor in respect of the custody of the assets. In the case of a delegation, the supervisor and the custodian will be jointly and severally liable for the performance of the custody function.
Governing documents: The Bill sets out a number of matters that the governing documents must address. For example, asset pricing and valuations provisions must be included. Any indemnity or exclusion of liability must also be contained in the governing documents and must only be in relation to the discharge of functions in relation to the MIS. There are restrictions on the manner in which the governing documents can be changed. Generally, this will require the supervisor who must be satisfied that the change will have no materially adverse effect on scheme participants.

In addition to those requirements set out above, the Bill anticipates special eligibility requirements for regular KiwiSaver Schemes and Superannuation Schemes, as well as so-called 'restricted schemes' of both types (see below). These requirements are broadly consistent with status quo. However, a key change for Superannuation Schemes is that membership eligibility for these schemes must be restricted to those normally living in New Zealand and entitled to permanent residence. This may have significant implications for some New Zealand domiciled Superannuation Schemes that have special designations under overseas superannuation/taxation law eg, QROPS. A further issue is that the Bill as currently drafted requires the purpose of superannuation schemes 'must be to provide retirement benefits... for individuals'. This is a change from the current test which is that the scheme's 'principal purpose is to provide retirement benefits...to individuals'.

Employer and industry sponsored retirement savings schemes of both the Superannuation Scheme and KiwiSaver Scheme varieties, which have member eligibility restrictions may, subject to meeting certain requirements, register as 'restricted schemes'. This follows from and is substantially similar to the 'restricted scheme' concept that was introduced in the recent KiwiSaver amendments but will be new for superannuation schemes. Restricted schemes will not need to have a licensed manager or independent supervisor. Instead, the scheme's governing body must have at least one independent trustee licensed by the FMA as having a degree of investment skill and experience. Restricted schemes will be subject to additional prudential restrictions: a 5% limit on related party exposures and a total prohibition on related party lending.

The Bill makes provision for other important governance matters such as the calling of meetings and removal and replacement of the manager and the supervisor. These are largely based on the existing provisions in the Unit Trusts Act 1960 and existing trustee licensing regime. However, a key change is that scheme participants will have the power to remove the supervisor by special resolution. One issue that industry participants will need to consider is how these governance arrangements will work in the context of Master Trust superannuation structures with many participating employers.

The Bill requires the manager to prepare, register and adhere to a statement of investment policies and objectives and provides for the manner in which this can be amended. There are also procedures to be followed in the event of limit breaks, pricing errors and failure to comply with pricing methodology set out in the governing document or dictated by the FMA. Related party transactions will generally be prohibited. However, there are exceptions for transactions that have been approved by the supervisor, are at arm's length or are investments in other registered MIS.

There are mandatory whistleblowing provisions in the Bill for auditors, investment managers, administration managers and custodians. This provision has been imported from the Superannuation Schemes Act 1989. The FMA will also have various enforcement and oversight powers specific to MIS including the ability to require the supervisor to attest as to the manager's compliance with the rules, to give mandatory directions to the supervisor and to apply to Court for a range of orders, including winding up.

It had initially been proposed that the Bill would provide for a new legal form of managed investment scheme: the open-ended investment company (OEIC). OEICs are popular in many overseas jurisdictions, including the United Kingdom and Ireland. However, this proposal has not been implemented in the Bill.

WRAPs

It is intended that WRAP platforms will be excluded from the MIS regime. However, there is a prescribed statutory test that will need to be met to fall within this exclusion. WRAP platform providers will need to consider whether they meet this test.

Discretionary Investment Management Service

The Bill proposes to regulate 'discretionary investment management services' (DIMS) provided to retail clients. DIMS effectively cover the situation where a person (the DIMS provider) has the authority to manage the investments of another person. The rationale for regulating DIMS under the Bill is that they are in the nature of a managed investment scheme (except that the property is held directly for the client rather than being pooled with that of others) and therefore present similar risks.

DIMS are currently regulated by the Financial Advisers Act 2008, which imposes a range of authorisation, registration, disclosure and conduct requirements. The proposal is not to move all regulation of all DIMS from the Financial Advisers Act 2008 to the Bill. Rather, there will be two parallel regimes with some overlap. DIMS providers that are or choose to be regulated under the Bill will be subject to similar requirements as managers of MIS. The key requirements will be:

Licensing: The DIMS provider must be licensed by the FMA to provide the DIMS. The licensing criteria will include the 'good character' test and other criteria along the lines of those to which fund managers will be subjected.
Client agreement: The DIMS provider will need to enter into an agreement with the client setting out matters such as fees and any indemnity or exclusion of liability for the DIMS providers. This is similar to the governing document for MIS.
Investment mandate: The DIMS provider and the client must also agree an investment mandate in writing and provide the DIMS within the scope of that mandate. This is similar to the registered statement of investment policies and objectives for MIS. Any limit breaks will need to be reported to the FMA.
Duties: The DIMS provider will be held to a professional standard of care and subject to other fiduciary-like duties (eg, to act in the best interest of investors). These duties are consistent with the fund manager's duties under the MIS regime.
Independent custodian: The client's assets must be held by an independent custodian that will be regulated as a 'broker' under the Financial Advisers Act 2008.The DIMS provider and the custodian will be jointly and severally liable for the custodian's performance of its functions.
Disclosure: DIMS providers will be required to give a disclosure statement to retail clients before accepting authority to manage investments. The content of this is to be prescribed by regulations.
Related party transactions: Related party transaction will generally prohibited except where they are at arm's length or involve the dealing in interests in a MIS.The proposed changes will require consequential amendments to be made to the Financial Advisers Act 2008, which will be released when the Bill is put before Parliament.

Rationalising license applications

There is likely to be a degree of overlap in the industry between QFEs, fund managers and DIMS providers. The Ministry notes this in the explanatory material that accompanied the exposure draft and suggests that the Bill will contain a relatively straightforward route by which body corporates within a QFE group may be able to seek licenses for other regulated services. The Ministry is currently seeking suggestions about how that might be achieved in a resource effective manner.

Administration, accounting and audit

The Bill requires issuers to keep registers of financial products on issue, have these registers audited annually and (with certain exceptions) make these available to the public. For the most part, these are similar to the current regime. However, new rules will be introduced about public access to financial product registers, following concerns about registry information being used to make unsolicited and predatory offers to investors. Those seeking registry information will have to tell the issuer why they are seeking the information and this may be passed onto the FMA who may confirm to the issuer that it need not comply with the request. They will also be prohibited from using the information to contact product holders except to help them exercise rights under that product or as approved by the issuer. Regulations may also be made prohibiting other uses.

Except for continuous debt issuers, the accounting and audit provisions of the Bill do not significantly change current requirements for issuers. Issuers will continue to need to keep adequate accounting records in New Zealand, in English, retain those records for at least seven years and make them available to directors and supervisors. Financial statements will continue to be subject to the requirement for an annual audit with the provisions having been updated to take into account the new auditor registration and licensing regime to be introduced by the Auditor Regulation Act 2011.

Under the current Securities Act 1978 regime, continuous debt issuers are subject to a range of additional reporting and oversight provisions. These include monthly reporting by the issuer to the Trustee and the ability for the Trustee to replace the auditor in certain circumstances.

Corresponding provisions have not been hard-coded into the body of the Bill. However, we expect that similar provisions will be implied into continuous debt issue trust deeds by regulations.

Dealing in financial products on markets

Part 5 of the Bill largely restates and consolidates the provisions of the Securities Markets Act 1988 that regulates insider trading, market manipulation, substantial security holder disclosure, continuous disclosure and directors' and officers' disclosure for listed issuers. The Bill provides for the transfer of financial products, other than interests in a Superannuation Scheme or KiwiSaver Scheme, derivatives, or certain prescribed financial products. It also permits the Governor-General on the recommendation by the FMA to approve systems for electronic transfer of financial products.

Directors and senior managers are also required to disclose interests in specified derivatives, where the underlying physical security is a financial product of the listed issuer or a related body corporate.

The Bill also provides for the licensing of new exchanges, or markets for trading financial products. This is to enable the establishment and regulation of smaller or 'stepping stone' markets, as recommended by the Capital Markets Development Taskforce. Anyone operating a financial product market is required to hold a license unless an exemption applies. Exemptions will be available where trading will not exceed certain volume or value levels, where the market is a prescribed wholesale market, or it is a prescribed exempt market. Licensed markets must operate in accordance with the terms of their license and market rules for the relevant financial product market. The Bill envisages annual reports by licensed market operators to the FMA and the FMA will conduct annual reviews of each licensed market operator.

This part also covers unsolicited or 'low ball' offers for financial products, and is substantially in the form as introduced into the Securities Markets Act 1988 earlier this year.

Penalties for breaching the insider trading, market manipulation, continuous disclosure, and market license provisions are increased and can extend to the greater of the consideration for the relevant transaction, three times the amount of gain made or loss avoided, and $1 million in a case of an individual, or $5 million in any other case.

Penalties for breaching the other provisions in Part 5 are a maximum of $200,000 for an individual, and $600,000 in any other case.

Enforcement and Liability regime

The current enforcement and liability regime has been criticised on the grounds of being lacking in coherence and difficult to understand because it is contained in a variety of sources with overlap between provisions. In particular, in the Securities Act 1978, there is an overlap of criminal offences and civil pecuniary penalties in respect of the same conduct and it is not clear how the different forms of liability interact.

The Bill looks to remedy this with a comprehensive regime based on an escalating hierarchy of liability with a focus on greater use of civil remedies. Under the Bill, only egregious violations of securities law will be subject to serious criminal offences, such as knowingly or recklessly contravening provisions relating to disclosure, with other violations dealt with primarily through enforcement by the FMA, and a civil pecuniary penalty and compensation regime.

The FMA was provided with a range of enforcement powers under the Financial Markets Authority Act 2011. The Bill adds to these by providing the FMA with the ability to make stop orders. Stop orders could be used by the FMA to prohibit offers, issues, sales or transfers of financial products or the distribution of PDSs or communications, such as advertisements. The FMA also has power to make direction orders that direct persons to comply and take reasonable steps to comply with the requirements of the Bill. The High Court has wide powers, including the power to grant injunctions, make orders or give directions, and make management banning orderings which can be permanent or for a set period. Previously management banning orders could only be for a period of up to 10 years. Significantly the High Court can also make orders protecting the interests of aggrieved persons, such as investors, where an investigation or proceedings have commenced.

Civil remedies will be available that will make it easier for investors to bring claims in respect of certain key provisions of the Bill, such as disclosure. There are powers for the High Court to make a declaration of contravention. Once such a declaration is made, it can be relied on by any person when applying for a civil remedy. There are two tiers of pecuniary penalties of up to $1 million against an individual and $5 million against an entity. Compensatory orders can be made in respect of loss or damage suffered by an aggrieved person. The High Court as wide powers to make orders in the case of contravention of one these key provisions of the Bill. These can include orders restraining the exercise of rights attached to financial products. Orders can also be made restraining the issue or transfer of financial products. The Court also has significant powers which can prevent the party under investigation transferring funds or assets or directing their disposal. More than one civil remedy may be made for the same conduct but only one pecuniary penalty may be made for the same conduct. Rights to compensation for investors have been substantially enhanced in the Bill, in particular where there has been defective disclosure.

The March Cabinet paper proposed that breaches of securities law would be subject to six broad tiers of criminal liability, dependent on the breach. Under the Bill this has been reduced to four tiers of liability, ranging from:

Tier 1 offences under which a person can either be proceeded against under the Summary Proceedings Act 1957 and subject to a fine of up to $50,000 (where found guilty), or be served with an infringement notice and an infringement fee of up to $20,000; to
Tier 4 offences under which an individual may be liable on summary conviction to imprisonment for a term not exceeding 10 years, a fine not exceeding $1million or both, and in any other case a fine not exceeding $5 million.

A due diligence defence will be available for misleading and deceptive statements, as well as a general defence for misleading and deceptive statements or an omission from a disclosure where there has been reasonable reliance on information provided.

The Bill also includes offences for serious breaches of certain directors' duties, however it is anticipated these offences will be included as a separate amendment to the Companies Act 1993.

Regulations and exemptions

Regulations and FMA frameworks and methodologies

Much of the substantive and technical elements of the new regime will be dealt with in forthcoming regulations. As noted above, this will include key matters such as the content of the PDS, the detail of the MIS regime and licensing criteria for various regulated market services such as DIMS. The Ministry has indicated that there will be extensive consultation as these regulations are developed. In addition, various provisions of the Bill require that matters be undertaken in accordance with frameworks of methodologies issued by the FMA. These include, for example, the content of trust deed for debt issuers and governing documents for MIS. This power will allow the FMA to fine tune the requirements of the Bill and regulations made under it.

Exemptions

There are limitations in the current regime on the scope of exemptions that can be sought. There is a strong desire to ensure that the new regime is flexible enough to ensure that the regulatory requirements are proportional to the nature, size and risk of the various markets and provide greater certainty to enable the development of new markets. In line with this approach, Part 8 of the Bill will enable the FMA to grant exemptions on any terms and conditions as it sees fit to any person, class of person or transaction for compliance with substantive parts of the Bill. For example it will be able to exempt:

conduct which would normally be caught within the insider conduct or market manipulation provisions of the bill; and
different kinds or classes of financial products, services,persons or classes of persons from being caught within the general provisions applying to such entities under the Bill.

There is a requirement that any such exemption may only be granted if (a) it is necessary or desirable in order to promote the purpose of the Bill and (b) that the exemption is no broader than is reasonably necessary. As an additional safeguard, it is proposed that any exemption granted will only continue in force for a maximum of 5 years, from which date it will be treated as revoked.

As noted above, clients will need to consider whether and to what extent the existing exemptions under the current regime have or should be brought across to the new regime.

Recognition and application regimes in respect of other countries

The Bill essentially replicates the current Securities Act 1978 framework for mutual recognition of overseas securities law regimes. This allows regulations to made providing for overseas issuers to offer financial products in New Zealand with the requirements of their home jurisdiction rather than New Zealand requirements (provided certain procedural requirements are met) and for New Zealand issuers to offer financial products in overseas jurisdictions in compliance with New Zealand rather than overseas law. We expect that regulations will be made under the new regime that will effectively continue the currently implemented trans-tasman mutual recognition regime with Australia.

Next Steps

Submissions on the draft Bill are due by 6 September 2011. The Ministry's notes to the exposure draft noted that it expects the Bill to be introduced before the election. This is a very tight timeframe. The Select Committee stage will provide another opportunity for submissions. We expect the legislation to be enacted in late 2012 with a transitional period. For further information please contact us.

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

Australia: Consultation Draft Financial Markets Conduct Bill