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| {{fullanat|cass|6.4.1}} | | {{a|cass|{{nuts|cass|6.4.1}}}} |
| This doesn’t seem to have changed under [[MiFID 2]]. Except for being clear about the means for evidencing "[[express prior consent]]" which one would like to think is the same as [[prior express consent]] - a term used elsewhere in [[MiFID II]], but then again one would like to think they could have used the SAME GODDAMN EXPRESSION in all places. | | “Arrangements for [[securities financing transaction]]s in respect of [[Safe custody asset - CASS Provision|safe custody assets]] held by it on behalf of a client” means [[agent lending]] facilities. This is ''not'' [[rehypothecation]]. Compare with Art 22(7) of UCITS: This is the only exception to the use of assets, also for [[agent lending]] purposes. |
| {{nuts|cass|6.4.1}}
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| ===Settlement fails and shortfalls... express prior consent=== | | The remainder — “... or otherwise use [[Safe custody asset - CASS Provision|safe custody assets]] held in such [[Omnibus account|an account]] for its own account or for the account of any other person” is more like [[PB]] style [[rehypothecation]]. |
| The [[Jolly Contrarian's]] firm view is that shortfalls arising through settlement fails in an omnibus account are not covered by “omnibus use” in {{cassprov|6.4.1}}(2) and therefore do not require a client’s [[express prior consent]]:
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| *[[Shortfall - CASS Provision|Shortfall]]s arising as a result of inbound settlement failures are not in the nature of deliberate, or even really “inadvertent” use of [[client assets]]: They are {{cassprov|shortfall}}s arising as a result of complying with client instructions on their own assets, and are covered by the [[Shortfall - CASS Provision|Shortfalls]] language introduced after PS14/9 by CASS {{cassprov|6.6.54}} R.
| | This doesn’t seem to have changed under [[MiFID 2]]. Except for being clear about the means for evidencing “[[express prior consent]]” which one would like to think is the same as “[[prior express consent]]” - a term used elsewhere in [[MiFID II]], but then again one would like to think they could have used the SAME GODDAMN EXPRESSION IN ALL PLACES, wouldn’t one? |
| *As {{cassprov|shortfall}}s, they have been subject to comprehensive review (PS14/9) and detailed specific provisions (CASS {{cassprov|6.6.54}}R) which do not require [[prior express consent]].
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| *There is no mention of “inadvertent” use in CASS {{cassprov|6.4.1}}.
| | ===But sir sir what about {{cassprov|shortfall}}s?=== |
| *If one accepts that a {{cassprov|shortfall}} is not a “use” per se (inadvertent or otherwise), then a non-compliant use under CASS {{cassprov|6.4.1}} sounds like an operational failure or contractual breach whereby the custodian (intentionally) uses assets wrt which it had no permission from the client to use.
| | {{inadvertent use}} |
| *The “express prior consent” requirement of {{cassprov|6.4.1}} applies to all clients (not just retail ones – simply the earlier text specified precisely how that prior express consent was to be evidenced for retail clients) has substantively been in place since 2007 ({{t|MiFID I}}) and was not materially been changed either by PS 14/9 or {{t|MiFID II}}.
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| *The meaning of “[[prior express consent]]”<ref>Is it the same thing as [[express prior consent]] though???</ref> in the context of MiFID was discussed by then regulator CESR in 2007 a discussion paper (albeit in the context of best execution) and said: “Where MiFID requires “prior express consent”, CESR considers that this entails an actual demonstration of consent by the client which may be provided by signature in writing or an equivalent means (electronic signature), by a click on a web page or orally by telephone or in person, with appropriate record keeping in each case.”
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| {{ref}} | | {{ref}} |