CORPORATE REPORTER 10 November 2020 ITEMS IN THIS ISSUE INCLUDE: • Changes for the proposed COFI regime recommended • RBNZ relaunches review of IPSA • Progress made on Phase 2 of the Reserve Bank Act review • NZX makes listing rule changes for direct listings and issues new guidance notes • The FMA consults on fees guidance for KiwiSaver schemes COVID-19 relief measures extended • • New case law on directors’ duties and shareholder’s rights • Update on changes to the consumer credit contract regime • The latest media releases from the New Zealand Commerce Commission and the Australian Competition and Consumer Commission WELCOME to issue No.65 of Corporate Reporter, Bell Gully’s regular round-up of corporate and general commercial matters, designed to keep you informed on regulatory developments, legislation and cases of interest. For more information on any of the cases, articles and features in Corporate Reporter, please email [email protected] or call on +64 9 916 8849 CONTENTS CORPORATE REPORTER CONTENTS PAGE Capital Markets – general developments 4 Select Committee recommends changes to proposed COFI regime CoFR updates timing on regulatory initiatives affecting the financial sector Review of the Insurance (Prudential Supervision) Act Review of Insurance Insolvency Standards Government policy for mandatory climate risk reporting announced RBNZ consults on cyber risk management guidance for the financial sector Progress made on Phase 2 of the Review of the Reserve Bank Act Select Committee reports back on the Financial Market Infrastructures Bill The FMA’s standard conditions for a full Financial Advice Provider licence finalised FMA consults on proposed guidance for managers and supervisors of KiwiSaver schemes KiwiSaver default provider tender process opens FMA expresses its concerns in its Supervision Insight Report KiwiSaver Annual Report for 2020 Report on active and passive KiwiSaver funds FMA modifies the “Recognised Exchanges” class exemption notice FMA consults on recognising Australian financial advisers under New Zealand’s new regime FMA extends some current relief measures until new financial advice regime is in force Financial Markets Conduct (US Futures Commission Merchants) Exemption Notice 2020 NZX Listing Rules modified for direct listing disclosure requirements Lessons for New Zealand financial institutions in light of Australian AML penalty settlement AML/CFT Supervisors release updated CDD guidance Infrastructure Funding and Financing Act 2020 Capital Markets – COVID-19 temporary measures 11 FMA COVID-19 response insights NZX extends COVID-19 support package to assist issuers’ access to equity capital Takeovers Panel extends temporary COVID-19 exemptions to facilitate capital raising Mergers & Acquisitions 13 Emergency notification process for overseas investors extended New class exemption for voting agreements in Schemes of Arrangement New Takeovers Panel CodeWord Commercial 14 Climate Change Commission posts proposed timetable COVID-19 extension of modification relating to powers of attorney in security deeds COVID-19 UK test case on business interruption insurance ASIC takes enforcement action for cyber-security failings – implications for NZ institutions Consultation on new ‘safe harbour’ regulations for Privacy Act 2020 New online privacy breach reporting tool launched EU decision on international data transfer has implications for New Zealand Corporate Law 16 Supreme Court reverses Court of Appeal decision in directors’ duties case Court of Appeal delivers significant decision on shareholder rights Temporary safe harbour for directors has ended COVID-19 related corporate relief measures extended Companies Act (Overseas Incorporated Companies—Australian Wholly-owned Entities) Exemption Notice 2020 CORPORATE REPORTER Māori business identifier is being built into the NZBN Competition and Consumer Law 18 Commerce Commission commits to international cooperation on competition enforcement Responsible lending law in Australia and New Zealand Dates for the remaining 2019 amendments to the CCCFA finalised Regulations supporting the amendments to the CCCFA enacted Addendum to Responsible Lending Code extended to 31 March 2021 The latest media releases from the New Zealand Commerce Commission The latest media releases from the Australian Competition and Consumer Commission. Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any further action in relation to the matters dealt with in this publication. All rights reserved © Bell Gully 2020. 3 CORPORATE REPORTER - general developments Select Committee recommends changes to proposed COFI regime The Finance and Expenditure Select Committee’s report on the regulation of financial institutions' conduct in the Financial Markets (Conduct of Institutions) Bill, commonly referred to as COFI, recommends a number of changes, many of which reflect concerns raised by the industry. The recommendations include greater detail of the fair conduct principle and fair conduct programme; more limited requirements to publish fair conduct programmes; simplified regulation of intermediaries; greater constraints on regulating incentives; a longer transition period; and a five-year statutory review. For our commentary on the committee’s recommendations click here. The Financial Markets (Conduct of Institutions) Bill is expected to have its second reading when Parliament resumes. CoFR updates timing on regulatory initiatives affecting the financial sector In April this year the Council of Financial Regulators (CoFR) released a table of deferred regulatory initiatives for the financial sector resulting from the COVID-19 pandemic. This has now been updated with details of a “forward plan”. Amongst others, the forward plan indicates that the MBIE will consult on: • regulations for the Financial Markets (Conduct of Institutions) Bill before the end of 2020, and • the draft legislation for the insurance contract law review to take place in the first quarter of 2021. Review of the Insurance (Prudential Supervision) Act The Reserve Bank - Te Pūtea Matua (RBNZ) has relaunched the review of the Insurance (Prudential Supervision) Act. The review began in 2017 with industry consultation and was set to resume in March this year. However, it was delayed to free up market participants to address the challenges created by COVID-19. Over the next twelve months, the RBNZ will consult on the scope of the legislation - looking at which organisations and products should be captured, how ‘insurance’ is defined, the treatment of overseas insurers, statutory funds and the solvency regime. This will build on the 2017 issues paper and feedback, and take into account more recent developments which promote a more active supervisory approach, such as: • The International Monetary Fund’s Financial Sector Assessment Program review of New Zealand’s Financial Sector, • The report by John Trowbridge and Mary Scholtens on a review of the Reserve Bank’s supervision of CBL (in liquidation), and • The FMA/RBNZ Thematic Review of Life Insurer Conduct and Culture. Other recent developments which will also provide input include: • A thematic review of the appointed actuary regime for insurers. • A review of insurance contract law being conducted by MBIE. • The publication of new insurance accounting standards (IFRS 17) by the International Accounting Standards Board. • Recent reviews relating to seismic risk – Treasury’s review of property insurance availability and affordability, and the upcoming review of the Earthquake Commission Act 1993. An initial substantive consultation paper - on the scope of the Act and its treatment of overseas insurers - is expected to be issued this month. For further details on the scope of the review, and an anticipated timeline for the project, see the Insurance (Prudential Supervision) Act launch paper. 4 CORPORATE REPORTER The legislative process is expected to occur in the second half of 2023 at the earliest. Review of Insurance Insolvency Standards The RBNZ is also reviewing the Insurer Solvency Standards issued under the Insurance (Prudential Supervision) Act. These standards govern the minimum amount of capital that insurers are required to hold. RBNZ currently has several solvency standards on issue, the principal ones being the Solvency Standard for Life Insurance Business 2014 and the Solvency Standard for Non-Life Insurance Business 2014. RBNZ is seeking feedback by 12 November 2020 on a set of principles to guide the Solvency Standards Review and a timeline for the review set out in its Insurance Solvency Standards review paper. A second, substantive consultation paper outlining RBNZ’s response to a set of financial reporting standards known as IFRS 17, which represent a radical overhaul of the way insurance contracts are accounted for, and the structure of solvency standards is expected to be issued in December 2020. Government policy for mandatory climate risk reporting announced If approved by Parliament, financial entities could be required to report on climate risks as soon as 2023. The announcement was made in September by the then Minister for Climate Change, James Shaw (who has retained this role under the new government). The new regime is expected to follow the Task Force on Climate-related Financial Disclosures framework, which is widely acknowledged as international best practice. Financial sector entities covered by the requirements would be required to disclose on climate-related