Financial Adviser Regulations: Discretionary Investment Management Services and Custody Submission by Forsyth Barr General or introductory comments We agree with aligning the requirements for AFAs providing personalised DIMS with the requirements that will apply to DIMS licensees under the FMC Bill. Obligations on a DIMS licensee under the FMC Bill should apply similarly to providers of DIMS under the FAA. Alignment of the two regimes makes sense, and is likely to be in the interests of both investors and providers. We do not believe custodian independence will provide any significant benefit to investors relative to what we submit would be a superior regulatory approach as outlined in this submission. As an NZX Participant we are already subject to regulation in respect of custody. These requirements or the enforced use of an independent custodian would add significant additional cost and reduced efficiency in providing any investment service which includes custody. However we do believe the custodian should be a separate legal entity to the entity providing the investment service, and both entities should not have the same parent. All custodian providers should be recorded on a register maintained by FMA which should be publicly available for investors to search to ensure they are dealing with a registered custodian. This should be regardless of whether they are holding securities on behalf of discretionary or non discretionary services. All custodians should be required to undergo an annual assurance review by an auditor accredited by NZICA. These reviews should be conducted in accordance with the guidelines in the International Standard on Assurance Engagements (New Zealand) 3402: Assurance Reports on Controls at a Service Organisation (ISAE (NZ) 3402), issued by the Board of the New Zealand Institute of Chartered Accountants. A copy of these reports should be submitted to FMA annually in order to maintain registration (akin to say a warrant of fitness).
Such reports should be made available to investors using the custodian on request and at no charge. Obviously there are costs associated with the above however if it provides investors with confidence and eliminates the likelihood of another Ross Asset Management then it will be beneficial to the whole investment industry. Simply requiring independence is insufficient if the outsourced provide in itself is deficient the classic scenario highlighting the weakness of this approach being a party that, say, used Ross Asset Management as their independent custodian. Funds should be held in a Trust or Client Funds account and segregated from the custodian s bank account. A strong control environment in a custodian (eg segregation of duties, etc) is imperative. The requirement of an annual assurance review of the custodian by an external auditor in accordance with ISAE (NZ) 3402 would provide an independent assessment of the control environment. In our opinion this is the single most important factor to avoid a repeat of the Ross Asset Management situation. 1. Do you agree that AFAs who offer DIMS under the FAA should be subject to similar requirements to FMC DIMS licensees? If not, why not? Yes 2. Are there any further requirements than those proposed that we should consider? 3. Do you agree that AFAs providing DIMS should be required to demonstrate that they have adequate systems and procedures to operate a DIMS and for complying with their regulatory obligations? What would be the benefits and costs of the proposed approach? 4. Are the proposed eligibility tests appropriate? Should other matters be considered as well or instead of these tests? Yes there should not be any risk of regulatory arbitrage between DIMS provided under the FAA and a DIMS licence under the FMC Bill. Systems and procedures for complying with regulatory obligations should be a level playing field. As a QFE we consider that we should be promoting an approach that combines assessment of both the entity capabilities as well as the eligibility of the AFA rather than separating these into two eligibility regimes. The AFA eligibility proposal (that they can demonstrate effective performance of the service) needs further explanation. Again if as a QFE we can demonstrate an effective service and advisor compliance with our processes, that should be another
eligibility option. 5. Should there be a maximum limit to DIMS offered under the FAA? If so, what would an appropriate limit be (for example, a combination of funds under management, number of staff and number of clients offered DIMS)? 6. Do you agree that AFAs offering DIMS should be required to disclose the proposed matters? If not, why not? 7. Are there any other further matters that AFAs offering DIMS should be required to disclose? 8. Should these matters be disclosed through the existing disclosure statements, or would a separate disclosure statement for DIMS be more appropriate? 9. What additional costs would AFAs incur in complying with these requirements? 10. Should risks of the investment approach be required as part of the disclosure statement? No as long as the AFA providing the DIMS can adequately demonstrate compliance with regulatory obligations and other relevant conditions then setting a limit is an unnecessary and arbitrary exercise. In other words, if a firm is granted a licence, then it should be done on the basis that the firm has demonstrated a sufficient level of management and resources to operate effectively. Such a limit is a disincentive to efficiency, investment in systems to aid productivity and hard work. Whilst much of the prescribed information proposed is already covered within the terms and conditions of client agreements, generally this type of disclosure information is provided after the client has been on-boarded. We agree that the additional disclosure by way of inclusion in advisor disclosure statements would aid highlighting these matters to prospective clients enabling them to make a better informed decision, but more significantly, prescribes a minimum set of disclosure requirements which should be required for all advisors providing a DIMS. AFAs should disclose if they are a Nominated Representative of a QFE; if so, reference should be made to that QFE s ABS as a source document These matters should be disclosed through the existing advisor disclosure statements, which has the obvious benefit of reducing the number of documents for a prospective client, and reduces compliance costs with having to maintain multiple disclosure documents. Insignificant, as long as the disclosure requirements are forward looking and not a requirement to re-paper retrospectively. No the risks of the investment approach for personalised DIMS are common for all personalised DIMS providers and as such there would be limited benefit in such comparability; a section on the risks and benefits of DIMS is better served within the client agreement. 11. Do you agree that the proposed matters should be required to be Yes - DIMS client agreements should include the matters proposed such as the
adequately provided for by AFAs client agreements for DIMS? If not, why not? 12. Are there any other matters that DIMS client agreements should be required to provide for? provision of custody arrangements. The process should be explained, and any limitations beyond the licensee s control such as limitations on the participation of custodial service holding in a corporate action etc. Client Reporting: the provision of regular client reporting should form part of the DIMS client agreement. We currently provide reports quarterly and consider that appropriate. Any provision to opt-out should be in writing by the client, dated and for a finite period. Any provision to opt-out should be client initiated and not coerced in any way by the advisor or DIMS licensee. An end of year income tax report: already a requirement under NZX Participant Rules for NZX Firms. An annual statement: covering content that is not already covered in the end of year income tax report may have merit, subject to content to be confirmed, but the timing of when these are distributed could be aligned to the anniversary of their start date rather than the financial year end. This would smooth the distribution process and avoid the potential for a spike on client contact at one time of the year. Termination rights: investors should have the right to terminate the contract within a specified period of notice and to be able to elect transfer or sale of assets held, the party to receive any transferred holdings and a bare trustee option for any non transferable securities. The transfer of assets must be achieved within a specified time limit and the investor should be able at any time to instruct sale of a security, prior to its transfer. The question of responsibility for management of the portfolio during the transfer/account closure period needs clarifying. A Client Agreement should disclose if the DIMS has the oversight of a QFE or other entity registered as a FSPR. 13. Would this proposal impose any additional costs on AFAs? If so, could you quantify these? 14. Do you agree that AFAs providing DIMS should be required to ensure clients Refer point 15 below.
are provided with a regular performance report? If not, why not? 15. Do you agree that the proposed matters should be included in the reports? Are there any other matters which should be included? Yes except for investment returns (performance reporting) which should be made available on client request only. Performance reporting is sensitive to the performance period and the timing and size of cash flows, and can often give investors an incorrect and skewed appearance of investment performance, particularly over small periods which are converted to an annualised rate. Further, as discrete accounts performance for Personalised DIMS will vary markedly with customised mandates, different histories, securities held by transfer or by client instruction and other unique characteristics. Furthermore if investment performance reporting is made available there should be a guidance note or industry standard must be confirmed to ensure consistency amongst providers. A description of how returns are calculated, and the valuation basis for different classes of security (including those impaired) should be included in the reports. 16. Would there be any practical difficulties in complying with these requirements? What additional costs would be incurred? 17. Should AFAs providing DIMS be able to rely on reports provided by the custodian or another third party? 18. What would be an appropriate reporting period? Would continuous access to this information through an electronic platform be a sufficient alternative? There shouldn t be. Yes AFAs/DIMS licencees should have, on request, access to all personal and financial information relating to client investments. i.e. access to all holdings in which their clients have a beneficial interest, and the market value of those holdings. The periodicity of reporting should align with NZX Participant Rules, which is quarterly. Continuous access to this information through an electronic platform would be beneficial but not regarded as a reputable or sufficient alternative.
19. Should any further information be required to be provided on an annual basis? Refer item 12 above. An annual statement covering content that is not already covered in the end of year income tax report may have merit, subject to content to be confirmed, but the timing of when these are distributed could be aligned if the provider prefers to the anniversary of their start date rather than the financial year end. This would smooth the distribution process and avoid the potential for a spike on client contact at one time of the year. For example, the content could include information reconfirming the elected service (DIMS) and the basis of this service and advice. Any changes to the entity/key persons controlling the DIMS should be disclosed annually in addition to any changes to material contracts essential to the offer of the DIMS. 20. Are there services that would fall within the definition of a custodial service that should not be subject to some or all of the proposed requirements? What are these services and why would the proposed requirements be unnecessary or undesirable? 21. Do you agree that any regulatory requirements for custodians should apply regardless of whether the custodian is subject to the NZX Rules? Would there be any unanticipated costs associated with this approach? No in principle we believe there needs to be a level-playing field. In principle, the regulatory requirements for custodians should be the same. However, custodians subject to NZX Participant Rules should be exempted from double regulation and be able to continue being regulated by NZX. We have reservations over the merits of overlaying a new set of requirements on top of those already in place for NZX Participants. In practice, we expect that most custodians will recognise the inevitability of what has been proposed, and be well positioned to accommodate any new requirements that are not already being observed. The enforced use of an independent custodian would add significant additional cost and reduced efficiency in providing any investment service which includes custody. However we do believe the custodian should be a separate legal entity to the entity
providing the investment service, and both entities should not have the same parent. We do not believe custodian independence will provide any significant benefit to investors relative to what we submit would be a superior regulatory approach as outlined in this submission. As an NZX Participant we are already subject to regulation in respect of custody. These requirements or the enforced use of an independent custodian would add significant additional cost and reduced efficiency in providing any investment service which includes custody. However we do believe the custodian should be a separate legal entity to the entity providing the investment service, and both entities should not have the same parent. All custodian providers should be recorded on a register maintained by FMA which should be publicly available for investors to search to ensure they are dealing with a registered custodian. This should be regardless of whether they are holding securities on behalf of discretionary or non discretionary services. All custodians should be required to undergo an annual assurance review by an auditor accredited by NZICA. These reviews should be conducted in accordance with the guidelines in the International Standard on Assurance Engagements (New Zealand) 3402: Assurance Reports on Controls at a Service Organisation (ISAE (NZ) 3402), issued by the Board of the New Zealand Institute of Chartered Accountants. A copy of these reports should be submitted to FMA annually in order to maintain registration (akin to say a warrant of fitness). Such reports should be made available to investors using the custodian on request and at no charge. Obviously there are costs associated with the above however if it provides investors with confidence and eliminates the likelihood of another Ross Asset Management then it will be beneficial to the whole investment industry. Simply requiring independence is insufficient if the outsourced provide in itself is deficient the classic scenario highlighting the weakness of this approach being a party that, say, used Ross Asset Management as their independent custodian. Funds should be held in a Trust or Client Funds account and segregated from the
custodian s bank account. A strong control environment in a custodian (eg segregation of duties, etc) is imperative. The requirement of an annual assurance review of the custodian by an external auditor in accordance with ISAE (NZ) 3402 would provide an independent assessment of the control environment. In our opinion this is the single most important factor to avoid a repeat of the Ross Asset Management situation. 22. Do you agree that custodians should provide clients with details of assets held on their behalf, either on a regular basis or continuously through an electronic facility? Yes DIMS clients should have, on request, access to all personal and financial information relating to their investments or dealing with a DIMS licensee or an AFA providing a DIMS. i.e. access to all holdings in which they have a beneficial interest, and the market value of those holdings. The periodicity of required reporting should align with NZX Participant Rules, which is quarterly. 23. Are there any other matters which should be mandated for custodian client reporting? 24. Would there be any practical difficulties in complying with these requirements? Would any types of retail custodial arrangements need to be exempted from such a requirement? 25. For custodians who do not provide continuous electronic access, what would be an appropriate reporting period? 26. Should regular reporting by custodians be required regardless of whether this information is continuously available through a website? Same requirements pursuant to NZX Participant Rules. We currently provide reports quarterly or upon request and consider that appropriate. The periodicity of reporting should align with NZX Participant Rules, which is quarterly. Regular reporting by custodian must be mandatory, regardless of whether this information is continuously available through a website. 27. Can you give an indication of any addition costs that custodians would incur in complying with the proposed requirement? 28. Do you agree that all custodians should be required to undertake regular Yes this should be standard practice and our proposed approach of annual
reconciliations of client assets? If not, why not? 29. What level of detail should be prescribed for reconciliation? If detailed requirements are warranted, what should such requirements be? 30. How prescribed should the timing of these reconciliations be? What would be appropriate time periods? 31. Would there be benefits in drawing a distinction between requirements for internal and external reconciliation? 32. Do you agree the proposed audit and assurance requirements would reduce the risk of misappropriation of client assets and help to ensure that custodians have systems in place to protect client assets? If not, why not? assurance reviews would deem such activity as crucially important. Prescription would be highly complex. The best solution is to have an annual assurance review regime as this will require the external auditor to apply judgment on any given organisation to whatever level they consider necessary to be able to issue their report. Refer answer above item 29. Refer answer above item 29. Yes, but we do not believe custodian independence will provide any significant benefit to investors. The enforced use of an independent custodian would add significant additional cost and reduced efficiency in providing any investment service which includes custody. However we do believe the custodian should be a separate legal entity to the entity providing the investment service, and both entities should not have the same parent. All custodian providers should be recorded on a register maintained by FMA which should be publicly available for investors to search to ensure they are dealing with a registered custodian. This should be regardless of whether they are holding securities on behalf of discretionary or non discretionary services. All custodians should be required to undergo an annual assurance review by an auditor accredited by NZICA. These reviews should be conducted in accordance with the guidelines in the International Standard on Assurance Engagements (New Zealand) 3402: Assurance Reports on Controls at a Service Organisation (ISAE (NZ) 3402), issued by the Board of the New Zealand Institute of Chartered Accountants. A copy of these reports should be submitted to FMA annually in order to maintain registration (akin to say a warrant of fitness). Such reports should be made available to investors using the custodian on request and at no charge. Obviously there are
costs associated with the above however if it provides investors with confidence and eliminates the likelihood of another Ross Asset Management then it will be beneficial to the whole investment industry. Simply requiring independence is insufficient if the outsourced provide in itself is deficient the classic scenario highlighting the weakness of this approach being a party that, say, used Ross Asset Management as their independent custodian. Funds should be held in a Trust or Client Funds account and segregated from the custodian s bank account. A strong control environment in a custodian (e.g. segregation of duties, etc) is imperative. The requirement of an annual assurance review of the custodian by an external auditor in accordance with ISAE (NZ) 3402 would provide an independent assessment of the control environment. In our opinion this is the single most important factor to avoid a repeat of the Ross Asset Management situation. 33. Is the proposed level of audit and assurance requirement appropriate? To what extent would industry best practice already comply with these obligations? 34. What would be the costs associated with an assurance engagement in compliance with this proposal? 35. Is it appropriate to place assurance requirements on all custodians of client assets, as opposed to only those providing custody for an associated party? 36. What would be the most effective way of notifying the public and/or the FMA of compliance with this proposal? NZX Participant Rule 18.15 (Custody) sets out requirements which should be incorporated into FMC Regulations as a minimum standard for all custodians holding securities on behalf of investors. Less than compulsory outsourcing to an independent provider. Yes the playing field should be level. Copies of assurance reports should be submitted to FMA annually in order to maintain registration (akin to say a warrant of fitness). Such reports should be made available to investors using the custodian on request and at no charge. A register should be maintained on either the MBIE or FMA websites (in the same way as Incorporated Societies a good example of how this could work). 37. Do you agree that wholesale investors would benefit from the protections offered by the obligations for brokers relating to handling client money and Yes
client property? If not, why not? 38. To what extent would industry best practice already comply with these obligations? 39. What particular obligations, including those proposed in this discussion paper, would be inappropriate to apply to wholesale investors and why? 40. Are there any particular types of wholesale arrangements that should be excluded from these obligations? If so, what would be the appropriate scope of such an exclusion? 41. Would applying the obligations by default, but allowing wholesale clients to opt-out, provide the appropriate balance between protecting investors and imposing unnecessary obligations on certain wholesale arrangements? If so, are there any requirements that wholesale clients should not be able to optout of? 42. Are there requirements that should apply to the custody of managed investment schemes that should not apply to wholesale custody in general? 43. Is any transition period required for existing AFAs to change their operations so that they no longer provide Class DIMS or so that they do so through an FMC DIMS licence? 44. Should AFAs providing DIMS be given additional time to transfer their clients portfolios to an independent custodian and if so how long? 45 Should existing AFAs be given additional time to comply with the eligibility requirements? If so, how long? Why would such a time period be appropriate? 46. Should new disclosure information be required to be given to an AFA s existing DIMS clients? Industry best practice is reflected in our submission that annual assurance reviews by an external auditor be the required regulatory standard. None Ross Asset Management sold his service to people who considered themselves wholesale investors. No underneath a wholesale fund is an individual investor. No No Yes - a transition period (to be determined) would seem a reasonable approach to permit existing AFAs to update their operations. Yes - a transition period (to be determined) would seem a reasonable approach. Yes - a transition period (to be determined) would seem a reasonable approach. Yes with providers permitted to include disclosures in their next formal communication with DIMS clients.
47. Should the requirements apply to existing client agreements? If so, what transitional provisions would be appropriate? 48. How long would it take for current AFAs to ensure that written investment authorities are in place which set out the matters required? 49. How long would AFAs providing DIMS need to transition to ensuring clients are provided with periodic reports and why? Refer answer above item 46. We suggest 12 months. NZX Participants providing DIMS already provide specific regular reporting, except for performance reporting. A reasonable transition could be 12 months. 50. Would it be appropriate for these reports to be provided to existing clients? Yes 51. How long would custodians need to ensure that their client reporting systems comply with the proposed requirements and why? A reasonable transition could be 12 months. 52. Would it be appropriate for this requirement to apply to existing clients? Yes 53. If particular reconciliation procedures are prescribed, how much time should be provided to comply? 54. If audit and assurance requirements are introduced, would a transitional period be required, and if so how long would be needed? A reasonable transition could be 12 months. A reasonable transition could be 24 months. 55. If requirements relating to the handling of client assets are expanded to cover broking of certain wholesale assets, would a transitional period be required? A reasonable transition could be 12 months.