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{{ | {{mifid2anat|42}}To the unsuspecting, a topic to be approached with great caution but to [[Mediocre lawyer|cross-border boxwallahs]] with much antipicatory licking of the lips. It’s all about one’s [[regulatory perimeter]] — a topic which will bore many people to tears, but provides a luxuriant lifestyle to the kind of attorney (aka a [[Mediocre lawyer|cross-border boxwallah]]) who can break through that outer crust of stale, doughy tedium and into the delicious, weed-strewn details of [[cross-border regulation]]<ref>If you are the sort of person that likes rocket or even dandelion on your salad, step this way.</ref>. | ||
Now if a fellow sets herself up to provide regulated financial services in, oooh, I don’t know, say the {{tag|United Kingdom}}, subject to and [[all watched over by the machines of loving grace]]<ref>{{Google|https://en.wikipedia.org/wiki/All_Watched_Over_by_Machines_of_Loving_Grace_(poetry_collection)}}.</ref> of the [[Financial Conduct Authority]], then | Now if a fellow sets herself up to provide regulated financial services in, oooh, I don’t know, say the {{tag|United Kingdom}}, subject to and [[all watched over by the machines of loving grace]]<ref>{{Google|https://en.wikipedia.org/wiki/All_Watched_Over_by_Machines_of_Loving_Grace_(poetry_collection)}}.</ref> of the [[Financial Conduct Authority]], then must she withhold her services from someone who [[reach out|reaches out]] from foreign shores to ask for them? Must she worry about the financial services regulations of that far-away place? | ||
The answer question depends on the [[regulatory perimeter|regulatory “perimeter”]] of that foreign jurisdiction. Normally, it will coincide with the physical borders of the country: as long as our fellow doesn’t provide her | The answer question depends on the [[regulatory perimeter|regulatory “perimeter”]] of that foreign jurisdiction. Normally, it will coincide with the physical borders of the country: as long as our fellow doesn’t provide her services ''in'' that jurisdiction she will not be subject to its laws and regulations. | ||
These days, the mod cons | These days, the mod cons — telephony, the world-wide internet — makes it all so much harder. What if our fellow stays in England and the client stays in its jurisdiction? Where then is the business conducted? | ||
===“At the client’s initiative”=== | ===“At the client’s initiative”=== | ||
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:''A service should be considered to be provided at the initiative of a client '''unless the client demands it in response to a personalised communication from or on behalf of the firm to that particular client, which contains an invitation or is intended to influence the client in respect of a specific financial instrument or specific transaction'''. A service can be considered to be provided at the initiative of the client '''notwithstanding that the client demands it on the basis of any communication containing a promotion or offer of financial instruments made by any means that by its very nature is general and addressed to the public''' or a larger group or category of clients or potential clients. | :''A service should be considered to be provided at the initiative of a client '''unless the client demands it in response to a personalised communication from or on behalf of the firm to that particular client, which contains an invitation or is intended to influence the client in respect of a specific financial instrument or specific transaction'''. A service can be considered to be provided at the initiative of the client '''notwithstanding that the client demands it on the basis of any communication containing a promotion or offer of financial instruments made by any means that by its very nature is general and addressed to the public''' or a larger group or category of clients or potential clients. | ||
The second is {{t|ESMA}}s Q&A, released as firms readied themselves for that great New Year’s Day push into the | The second is {{t|ESMA}}s Q&A, released as firms readied themselves for that great New Year’s Day push into the sun-enlightened uplands of modern securities regulation. {{esma on reverse solicitation}} | ||
===“It-definitely-was-a-reverse-inquiry-honest” letters=== | |||
The less imaginative [[legal eagle]] might hatch a plan to document your client’s stout assertion that it was her idea, and not yours, that you should do business. This is the classic “[[Disclaimer|the lady doth protest too much]]” gambit, and we would heartily caution against it. | |||
For what kind of offshore client, of her own motion, innocently writes her broker such a letter? Only one who has been told to, we submit. Now if you really can evidence the genuine unsolicited request for your services, as it arrived unbidden on your potential client’s scented personal notepaper, then happy days: keep the letter somewhere safe. If you can’t, don’t think contriving a phony letter pretending that happened will help. | |||
On the other hand, while it undoubtedly aggrieves ESMA that huckster brokers from the [[United Kingdom|failed states around the EEA periphery]] should be flirting outrageously with their innocent fund managers, not even ESMA has got so much time on its hands or bureaucratic energy that will send flying squads of Belgian paratroopers out to dawn-raid EU fund managers to see exactly how they came to meet their brokers: they are far too busy inspecting their [[Netting opinion|netting opinions]] for that. | |||
{{sa}} | |||
*[[Disclaimer]]s | |||
*Art. {{mifid2prov|42}} of {{tag|MiFID}} | |||
{{ref}} | {{ref}} | ||