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The UK’s consultation on deregulating commercial agents could have knock-on impacts on payment services and create regulatory divergence from the EU.

By Christian McDermott, Brett Carr, and Grace Erskine

On 16 May 2024, the UK government launched a consultation into the deregulation of the Commercial Agents (Council Directive) Regulations 1993 (the Commercial Agents Regulations). The Commercial Agents Regulations implemented Council Directive 86/653/EEC (the Commercial Agents Directive) and defined certain pro-agent terms of engagement between businesses and their self-employed commercial agents who are authorised to negotiate the sale or purchase of goods on their behalf.

The stated purpose of the consultation is to ensure that the Commercial Agents Regulations serve the needs of UK businesses post-Brexit, and to remove the legal complexities resulting from the interaction of the Commercial Agents Regulations with the English legal system’s rules on agency and contract law. The UK government’s current proposal is for existing contracts under the Commercial Agents Regulations to remain in force until termination or expiry, and to prevent new contracts from being subject to the Commercial Agents Regulations.

In addition to affecting relationships between UK agents and their principals, the proposals could also have knock-on effects for the payments sector, which we explore in this post.

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Consumers and service providers should take note of some of the enhanced risks upon an e-money institution’s insolvency.

By Hongbei Li

Technology is rapidly changing the way customers and businesses interact with financial systems. Fintech companies are a driving force behind the disruption of traditional banking and payment services, with regulatory innovation close behind.

In the 12 months to June 2021, electronic money institutions (EMIs) in the UK processed more than £500 billion of transactions, according to Financial Conduct Authority…

Latham lawyers explore the latest insurtech trends and regulatory developments impacting the sector in Europe and Asia.

Disruptive technology is revolutionizing insurance, enabling insurers to achieve growth by leveraging big data and creating innovative solutions to enhance customers’ digital experience. We are pleased to launch Insurtech Insights, a series of webcasts to discuss the most recent trends in the insurtech space and how to navigate regulatory developments.

Latham fintech lawyers and key industry leaders explore the progress and potential of CBDCs, use cases for stablecoins, and the global regulatory landscape.

Many central banks around the world are currently considering central bank digital currency (CBDC). According to the Bank of International Settlements’ recent survey of 66 central banks, 80% of surveyed central banks are engaged in CBDC work in some capacity, whether that work is conceptual research, experimentation, or pilot projects, and over a third stated that it is “possible” they will issue a retail CBDC within one to six years. Additionally, stablecoins based on Ethereum have surged in use recently, which, along with other large and well-publicized stablecoin projects, has drawn the attention of regulators around the globe.

Call for input: market players need to engage with the process for the procurement of the NPA

By Stuart Davis, David Little, Christian McDermott, Brett Carr, and Nathan Wilkins

This Call for Input is part of the development of the Payment Systems Regulator’s (PSR) policy for the future regulation of the newly procured New Payments Architecture (NPA). The PSR is asking for stakeholders’ views about possible competition issues so that it can provide greater clarity about the nature of regulation that might be applied to the NPA. The deadline for input is 24 March 2020.

The NPA will be the payment industry’s new way of organising the clearing and settlement of most of the UK’s domestic interbank payments, including payments that currently use the Bacs and Faster Payments systems.

The PSR plans to set out its regulatory policy in a consultation, and then publish its final policy statement by the end of 2020 (coordinating with Pay.UK’s NPA central infrastructure services (CIS) procurement timetable).

Upgraded legislation creates an enhanced regulatory framework for the new age of payments, including e-money and digital payment tokens. 

By Farhana Sharmeen and Simon Hawkins

After much anticipation, and following consultations with the industry at large, the game-changing Payment Services Act 2019 (PSA) has finally become operational.

The PSA, which came into effect on 28 January, is the omnibus legislation dealing with payment services and systems, which adopts an activity-based licensing framework and risk-based regulatory structure. The new legislation has been designed in recognition of the different kinds of payment services that are currently available, and with a view to anticipating the types of payment services that are likely to develop in the future.

The BoE is seeking feedback on the Introductory Phase of the ISO 20022 migration, that will create a common language for payments data globally.

By Christian F. McDermott, Grace E. Erskine, and Amy Smyth

In 2018, the Bank of England (BoE) consulted on the adoption of ISO 20022 — a global standard for payments messaging — for the payments industry in the UK. In response to consultation feedback and market developments such as SWIFT and the European Central Bank’s requirement that ISO 20022 messaging begin in November 2021, the BoE is now seeking further feedback from interested parties. The BoE’s latest consultation focuses on the Introductory Phase of the CHAPS ISO 20022 migration, specifically the early adoption of “enhanced” data. Feedback must be submitted by 16 October 2019. The BoE has set out two options for the implementation of the Introductory Phase:

European Commission confirms SCA measures should apply to EU consumers purchasing from UK websites in the event of a no-deal Brexit.

By Christian F. McDermott, Jagveen S. Tyndall, and Amy Smyth

Complex payment processing chains comprise multiple entities operating behind the scenes to support everyday transactions.

The strong customer authentication (SCA) requirements introduced by the revised EU Payment Services Directive (PSD2) aim to reduce fraud and make online payments more secure (as described in previous posts of June and August 2019). SCA requires that a customer provide two forms of identification that meet the following criteria:

Latest FCA and PRA fines against a retail bank show little tolerance for poor outsourcing systems and controls.

By Fiona M. Maclean, Christian F. McDermott, Laura Holden, and Charlotte Collins

On 29 May 2019, the FCA and PRA announced that they had fined an independent UK bank for failing to manage its outsourcing arrangements properly between April 2014 and December 2016. The bank received separate fines of £775,100 from the FCA and £1,112,152 from the PRA (resulting in a combined fine of £1,887,252) for breaches of the regulators’ high-level principles for authorised firms, as well as their more detailed rules on outsourcing. Each fine includes a 30% early settlement discount.

The bank was fined by both regulators as the failings resulted in breaches of both regulators’ rules, and went to both regulators’ statutory objectives (specifically, the FCA’s consumer protection objective and the PRA’s objective to promote firms’ safety and soundness). Although both regulators applied the same five-step penalty framework to calculate their penalties, the way in which they applied the framework led to different figures. In particular, because the PRA had previously fined the same bank for outsourcing failures in November 2015, the repeat failure was a significant aggravating factor that led to an uplift in the PRA’s penalty.

From August 2019, certain existing FCA rules and guidance will extend to payment service providers and e-money issuers in a signal that the FCA wants a consistent approach to consumer protection.

By Rob Moulton, Brett Carr, and Frida Montenius

The FCA has published a Policy Statement extending certain rules and guidance to the payment services and e-money sectors, following a Consultation Paper published in August 2018. The extensions concern the FCA’s Principles for Businesses (Principles) and the Banking Conduct of Business Sourcebook (BCOBS), along with new guidance concerning the communication and marketing of currency transfer services. The FCA has made these changes, aimed at payment institutions (PIs), electronic money institutions (EMIs), and registered account information service providers (RAISPs), with a hope to protect consumers by providing a clear and consistent set of rules that firms must abide by.