Conduct Risk should not be underestimated during IBOR Transition
Wed 27 Nov 2019
With little more than two years to go, Libor’s cessation date continues to near. The voluntary agreement of panel banks submitting to Libor will conclude at the end of 2021, from which risk-free rates (RFR) are expected to replace Libor and similar indices.
paying enough attention to Libor updates?
cessation should be of concern to many – if not all – market participants: financial
institutions and corporates alike. Banks, asset and wealth managers, insurers,
retail banks, building societies and mortgage lenders, and other financial
intermediaries are likely to have primary exposure to Libor-linked products,
however, corporates should also be aware of Libor consultation updates. Product
hedges, debt issuances, credit lines, and any other Libor-linked exposures may
pose risks across firms’ business lines and strategies.
underpins a variety of fixed income products: notably mortgages, commercial and
personal loans, bonds, securitisations, and derivatives. The move to RFRs means
all products firms may hold on or off their balance sheets are susceptible to
IBOR transition risks.
FCA expects Senior Managers and boards to understand the risks associated with
Libor transition. Senior management should act to transfer exposures to RFRs
ahead of the Libor cessation date. This means firms need to implement a robust
governance in their risk mitigation arrangements, including the identification and
appointment of Senior Manager(s) with the relevant expertise and
responsibilities of overseeing Libor transition under the FCA’s Senior Managers
and Certification Regime (SM&CR).
Senior Managers and their firms need to approach Libor transition with potential conduct risk in mind.
Managers and their firms need to approach Libor transition with due diligence
and care to identify and transfer their Libor-linked exposures to RFR in a
timely manner, bearing in mind the potential conduct risk. Although the FCA
does not have a strict definition of conduct risk, in its Retail Conduct Risk Outlook 2011 report, the FCA referred to
conduct risk as ‘…the risk that firm behaviour will result in poor outcomes for
risk may emerge in a variety of ways, however, in the context of Libor transition,
is more likely to emerge from a lack of preparation in the identification of
Libor-linked products and slow implementation of a robust IBOR-fallback plan.
There is no one-size-fits-all framework for conduct risk, so the onus is on
firms to define their conduct risks and carry out regular reviews to ensure
their definitions continue to be fit for purpose.
their recent publication ‘Conduct risk during LIBOR transition’, the FCA stipulated guidance for replacing Libor with the SONIA RFR in existing
contracts and products. To ensure firms continue to operate effectively and
maintain their responsibilities toward clients, firms need to:
- Amend existing contracts with robust fallback provisions and/or
convert the contract to reference the appropriate RFR
- Manage the liquidity of the Libor-pegged instrument and prepare
for the risk of insufficient transaction data in building out the rate curve
- Ensure clients are treated fairly throughout the transition
process, specifically with regard to the contract amendment process
- Maintain consistent and continual communications with relevant
stakeholders throughout the transition process
- Engage further with clients and stakeholders to keep them aware as
well as provide education on general provisions and timings of the Libor
- Aim to issue new RFR-linked products
- Understand any and all issues which may relate to SONIA-issuance,
from legal papering to calculation methods
- Overarchingly, act in the best interest of their customers and
maintain high standards whenever and wherever possible
the FCA’s conduct risk guidance underscores the imperative for firms to
continually act in best interest of their clients. Remaining aware of the
pitfalls of IBOR transition are essential to maintaining clients’ best interests,
and the FCA has made it clear it will challenge instances where they believe
firms may be taking advantage of or, treating their clients unfairly.
upsides in the transition process are possible for firms who do understand the
requirements of IBOR transition measures. For example, opportunities will come
to fruition as firms who get ahead develop new products to meet client needs. To
ensure success in this regard, it is imperative for firms to acknowledge the
importance of early mover advantage in building out their Libor transition
Libor transition poses a significant hurdle for market participants, who face a
variety of risks and significant cost in transitioning their Libor exposures to
SONIA – or any other RFRs. Although
retail or corporate clients may prefer their financial institutions to provide
comprehensive and aggregated information regarding each clients’ individual
Libor-linked exposures, such work can be exceedingly challenging – if not
impossible – for financial institutions to deliver. Some of the reasons may be the
existence of regulatory or legal requirements, such as Chinese walls between
different businesses, (e.g. investment banking and trading businesses), legal
and regulatory differences across jurisdictions, etc.
All firms with Libor-linked exposures need to engage and develop appropriate guidance to meet the challenges ahead. They should be continually assessing their obligations, both to their clients and to their own business strategies. Additionally, ensuring that there are records of appropriate due diligence being continually performed is a must as, the FCA will likely challenge how institutions have considered mitigated conduct risk in the lead-up to IBOR transition. To conclude, at any point in time during the transition period, firms should keep in mind that they have a fundamental obligation to act with ‘due skill, care, and diligence’ to ensure conduct risk is minimised throughout firms’ IBOR transition.
Article written by Sophia Chiang (Associate at Mazars UK)
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