The Federal Court’s recent decision in Australian Securities and Investments Commission (ASIC) v Scholz (No 2) [2022] FCA 1542 has important implications for those who discuss financial products and services on social media platforms. Handed down on 20 December 2022, the Court’s judgment heralds a warning that social media ‘finfluencers’ may be considered to be carrying on a financial service business and thus are required to have an Australian Financial Services License.
The Australian Government has released its Strategic Plan for Payments System: Consultation Paper. It is significant insofar as it demonstrates the current Government’s commitment to reform by creating a fit-for-purpose regulatory framework in respect of payments mirroring international developments. It is also significant in that the paper expressly states that the reform agenda includes implementing a tiered licensing framework for payment services providers. Interested parties are invited to comment on this consultation. Responses are due on 6 February 2022.
Belgium has finalized the basic banking service framework for companies, among others, by creating the long-awaited basic banking service chamber, as a result of which the new rules can now finally take effect.
The P2SK Law introduces the concept of financial instrument managers and trust fund managers. Both are designed as specific purpose entities licensed by Otoritas Jasa Keuangan and established to perform asset securitization and/or trustee fund management activities. The government expects the existence of SPVs to contribute to financial instrument diversification. Trustees, on the other hand, are regulated with the aim of increasing participation by financial market players and bringing about improvement in disclosure and good corporate governance regulations.
On 14 December 2022, the Securities and Exchange Commission proposed four separate rulemakings under the Securities Exchange Act of 1934 that would create a federally defined best execution standard for broker-dealers and overhaul the US equities market structure. If adopted in their current form, these proposals would meaningfully impact market participants and practices. Given the nearly 1,700 pages of combined rules proposals, firms may need to devote significant resources just to digest their potential impact on particular business models.
The second act on the effective enforcement of sanctions (Sanctions Enforcement Act II) came into force on 1 January 2023. This includes not only sanctions-related measures, but also amendments to other laws, in particular the German Money Laundering Act, and has implications for the obligations of companies with regard to the transparency register.
The EU’s Digital Operational Resilience Act aims to promote, improve and ensure operational resilience within the financial services sector. It requires financial institutions to comply with a number of obligations designed to ensure that their business lines remain operationally resilient against various risks. Being “operationally resilient” means being able to resist, recover from and adapt to adverse effects that can disrupt or prevent the provision of services.
The New Criminal Code became the first piece of legislation passed into Law in 2023 and was promulgated on 2 January as Law No. 1 of 2023. In the next three years, the New Criminal Code will replace the 100-year old criminal code currently in place. The New Criminal Code changes the landscape of the penal code in the field of digital information, bribery and corruption, and money laundering related crimes.
The soon-to-be enacted P2SK Law introduces “financing service businesses” as a new umbrella term for several categories of financing services, covering the businesses of finance companies (multifinance), venture capital companies, infrastructure financing companies, IT-based collective funding service providers (peer-to-peer lending platforms), and pawnbroker companies.
Watch and listen to Baker McKenzie specialists and industry experts talk about recent legal and commercial developments affecting financial institutions around the world. The latest webinar in the series looks at Sustainability for Financial Institutions – Global Trends and the LatAm Perspective.