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UK Financial Conduct Authority Consults on Its Financial Promotion Rules for Cryptoassets and Other High-Risk Investments

By Kirsten E. Lapham, John Verwey, Amar Unadkat & Michael Singh on January 24, 2022
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On 19 January 2022, the UK Financial Conduct Authority (“FCA”) published a consultation paper (CP22/2) (the “Consultation”) setting out its proposals to strengthen its financial promotion rules for high-risk investments (including cryptoassets), as well as for authorised firms which approve and communicate such financial promotions. The Consultation builds on feedback received to its discussion paper (DP21/1) on how the FCA could strengthen financial promotion rules and also forms part of its ongoing work on addressing harm in the consumer investment sector, to pursue its Consumer Investments Strategy as published in September 2021.

The proposals set out in the Consultation relate to financial promotions for “high-risk investments,” being those which are subject to marketing restrictions under the FCA rules. This includes investment based-crowdfunding, peer-to-peer agreements, other non-readily realisable securities, non-mainstream pooled investments and speculative illiquid securities. The FCA has also confirmed that these will also include cryptoassets once they are brought into scope of the FCA’s financial promotions regime. Some of the key changes the FCA is seeking to implement, as set out in the Consultation, are as follows:

  • a rationalization of the rules set out in Chapter 4 of the FCA’s Conduct of Business Sourcebook (“COBS 4”), aimed at a clarification of what classifies as “high-risk investments” and the associated restrictions that apply;
  • changes to the “customer journey” in relation to high-risk investments, including a package of measures to strengthen risk warnings, ban inducements to invest, improve client categorisation and provide stronger appropriateness tests;
  • strengthening the financial promotion approval and communication regime, holding approvers of financial promotions to high standards; and
  • applying its financial promotion rules to qualifying cryptoassets, which will need to comply with the COBS 4 requirements.

The Consultation will be of interest to a wide range of market participants, including a number of firms in the “Fin-Tech” sector. Amongst others, this will include authorised firms that approve or communicate financial promotions, issuers of high-risk investments, certain financial advisers, asset managers and intermediaries, as well as firms operating in the crypto-asset market. The FCA is seeking feedback on its proposals by 23 March 2022 and intends to publish its policy statement and final rules in summer 2022.

Photo of Kirsten E. Lapham Kirsten E. Lapham

Kirsten Lapham is a partner specialising in financial services regulation. She advises a broad range of institutional clients on a variety of financial services regulatory and compliance issues. Her practice has a specific emphasis on the regulatory issues impacting asset managers arising under…

Kirsten Lapham is a partner specialising in financial services regulation. She advises a broad range of institutional clients on a variety of financial services regulatory and compliance issues. Her practice has a specific emphasis on the regulatory issues impacting asset managers arising under the AIFMD, and MiFID for a range of EU and indirectly impacted firms outside of the EU.

Kirsten has experience advising multiple clients on the EU marketing and registration regimes and overlaying local regulatory considerations, such as the U.K. retail distribution review and Financial Promotion regime. She has also worked on MIFID II, SFDR and the Senior Managers and Certification Regime (SMCR) implementation projects for firms subject to regulatory developments. Kirsten routinely advises on the regulatory issues that impact M&A transactions. She has represented some of the largest and most well-known alternative investment managers, including: TPG; PIMCO; Citi Private Bank; AnaCap Financial Partners, UBS, Pathway Capital LLC; and a number of US and UK boutiques among many others.

Kirsten is co-chair of Proskauer’s global ‘ESG Taskforce’ and as an expert in the sustainable financing space, regularly speaks at industry events and is quoted on these issues. In addition, She has assisted numerous firms on ESG driven projects including the drafting of ESG policies, and internal restructurings, capturing diversity and inclusion, modern slavery and broader internal issues related to responsible investing. Kirsten works closely with clients on best approach for disclosure to both investors and regulators, on the integration of ESG practices in investment processes.

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Photo of John Verwey John Verwey

John Verwey is a partner in the Corporate Department and a member of the Private Funds Group.

John advises on a wide number of regulatory issues at a national UK and European level, including firm authorisations, change in control, market abuse, Electronic Money…

John Verwey is a partner in the Corporate Department and a member of the Private Funds Group.

John advises on a wide number of regulatory issues at a national UK and European level, including firm authorisations, change in control, market abuse, Electronic Money Regulations, Payment Services Regulations and client money rules. He represents a variety of clients that range from private equity firms and insurance intermediaries to global investment banks and sovereign wealth funds.

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Photo of Amar Unadkat Amar Unadkat

Amar Unadkat is a special regulatory counsel in the Corporate Department and a member of the Private Funds Group.

Amar advises on a variety of financial services regulatory and compliance matters both from a UK and European perspective. Amar regularly advises his clients…

Amar Unadkat is a special regulatory counsel in the Corporate Department and a member of the Private Funds Group.

Amar advises on a variety of financial services regulatory and compliance matters both from a UK and European perspective. Amar regularly advises his clients on issues relating to the Alternative Investment Fund Managers Directive (“AIFMD”), the second Markets in Financial Instruments Directive (“MiFID II”), as well as the latest ESG developments. Amar also focusses on UK regulatory compliance matters, including the FCA’s change of control regime, the appointed representative regime and the Senior Managers & Certification Regime.

Amar’s clients include private equity firms, investment managers and advisers, firms in the FinTech space, wealth management businesses, banks and sovereign wealth funds.

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Photo of Michael Singh Michael Singh

Michael is an associate in the Private Funds Group in the Corporate Department.

Michael advises clients on a variety of regulatory issues both from a UK and European perspective. He also helps clients on fund related transactions. His clients include private equity firms…

Michael is an associate in the Private Funds Group in the Corporate Department.

Michael advises clients on a variety of regulatory issues both from a UK and European perspective. He also helps clients on fund related transactions. His clients include private equity firms, investment managers, FinTech companies and wealth management businesses.

He is dual-qualified as a German lawyer (“Rechtsanwalt”) and Solicitor of England and Wales and previously was in-house counsel at Deutsche Bank.

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  • Posted in:
    Corporate & Commercial, Technology
  • Blog:
    Blockchain and the Law
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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