Industry calls for improvements to UK regime for overseas firms

The report, ‘The UK regime for overseas firms’, found that the UK’s existing framework for overseas firms was generally considered internationally competitive, being based on the principle of openness to cross-border trade. However, the IRSG did identify areas for improvement as many rules remain overly complex or poorly signposted.

The IRSG, which is co-sponsored by City of London Corporation and TheCityUK, also found instances of conflicts between UK rules, and recently onshored EU regulations. For example, currently firms from countries covered by an existing UK equivalence determination, denoting they have similar rules to the UK, are in a worse position than those operating under the UK’s general Overseas Person Exclusion (OPE) [2].

The IRSG urges UK government and regulators to reform the equivalence framework inherited from the EU to make sure it takes into account the UK’s existing competitive overseas regime. They should also take the opportunity to make the UK’s approach to granting market access clearer and more coherent.

Dr Kay Swinburne, Chair of the IRSG, said, “The UK’s regulatory regime is one of the best regarded in the world, as it has consistently developed to respond to innovation and has been framed by the highest global standards. One of the key features of the UK’s regulatory regime is its openness to international business. It is vital for UK global competitiveness that this continues. We believe that with minor targeted improvements, the access regimes could help to make the UK even more attractive for international firms.”

Rachel Kent, Head of Financial Services Regulation, Hogan Lovells, said, “There is a real opportunity for the UK to consolidate and streamline legislation which would improve international market access and competitiveness. The UK’s Overseas Person Exclusion is widely perceived as a major contributing factor to the success of the UK financial services sector and with small changes it could be even better.”

Key recommendations from the IRSG include:

• The UK regulatory perimeter is not as clear as it could be. New guidance should be issued in order to allow overseas firms to understand what services they can provide to UK users of financial services, either with or without authorisation in the UK.
• The overseas persons exclusion (OPE) is a valuable element of the UK’s regulatory perimeter. There is some scope to rationalise it and make it clearer, but the UK should not be considering any changes that would restrict the OPE at least in relation to wholesale business.
• The regime for overseas firms to establish regulated branches in the UK should be updated to include, in particular:

- a clearer framework, particularly with regard to the scope of ‘deference’ to the home supervisor of the overseas firms);

- establishing better processes through which applications will be considered;

- amending the factors for authorisation to introduce a requirement that the UK regulators ‘have regard to’ the attractiveness of the UK as an inward investment destination, innovation and applicable international standards; and

- simplifying and improving the navigability of the regulatory requirements applicable to UK branches.

• For cross-border access for overseas firms not covered by the OPE regime, the UK should continue to have an equivalence-style regime, but based on the concept of “deference” rather than an EU-style detailed analysis of equivalence. The UK should also consider whether this would be a suitable basis for allowing wider access in relation to retail financial services.

Notes to editors

[1] International Regulatory Strategy Group (IRSG) and Hogan Lovells, ‘The UK regime for overseas firms’ 8 July 2021
[2] Firms from jurisdictions determined to be equivalent under the on-shored Article 46 MiFIR would be subject to more restrictions than overseas firms that rely on the OPE would be, because: (i) firms from those jurisdictions could only rely on the on-shored equivalence regime where they are authorised and supervised in the relevant jurisdiction; (ii) those firms would have to be registered with the Financial Conduct Authority before they can make use of the regime; and (iii) those firms would have to comply with certain conduct obligations when dealing with UK clients and counterparties (disclosing their regulatory status and offering to submit any disputes to settlement in a UK forum). Overseas persons that can rely on the OPE are not subject to these requirements

To arrange an interview or for further information, please contact:

Jack Neill-Hall / 020 3696 0114 or 07793 932 885 / [email protected]
Jennifer Green / 020 3696 0115 or 07899 102 889 / [email protected]
Kenny Ferguson / 020 3435 7463 or 075 8560 7492/ [email protected]

About the International Regulatory Strategy Group (IRSG)

The International Regulatory Strategy Group (IRSG) is co-sponsored by City of London Corporation and TheCityUK. It is a practitioner-led body comprising of leading UK-based figures from the financial and related professional services industry from within TheCityUK membership. Within an overall goal of sustainable economic growth, it seeks to identify opportunities for engagement with governments, regulators and European and international institutions to promote an international framework that will facilitate open and competitive capital markets globally. Its role includes identifying strategic level issues where a cross-sectoral position can add value to existing industry views.

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