Financial institutions (FIs) continue to expect cybersecurity and data disputes in the coming year, along with ESG disputes. We will see growth in climate-related litigation against financial institutions from NGOs and activist shareholders. Until recently, claims have focused on the disclosure of climate-related information. However, the trend is now moving to scrutiny of what prudent financial management means. For example, what fiduciary duties are owed when acting as a financial advisor in investment planning or M&A transactions?
A number of factors are driving up the incidence of climate related litigation and enforcement which has been most marked in North America but other regions are now catching up. Financial institutions given their critical place in financing economic activity are increasingly the focus of action. Financial institutions are well advised to prepare for and mitigate the risk, for example, from reviewing their corporate strategies around climate change and carbon reduction to taking note of regulators’ expectations.
On 13 April 2022, three organizations – the National Internet Finance Association of China, the China Banking Association and the Securities Association of China – jointly issued the Initiative to Prevent relevant Financial Risks of Non-fungible Tokens (“Initiative”). This is the first Non-Fungible Token (NFT) themed official document involving NFT compliance since the rapid development of NFT in China. Although the Initiative is only a self-regulatory statement and not mandatory regulatory rules, considering the special status of the three associations as official industry self-regulatory organizations, to a great extent it still represents the regulatory attitude and trend of supervision.
On March 21, 2022, the U.S. Securities and Exchange Commission (SEC or Commission) issued its long-awaited proposed ruleset (Rule Proposal) that, if adopted as currently drafted, would mandate both domestic and foreign registrants to make a variety of climate-related impact and risk disclosures in registration statements and in annual filings under the Securities Exchange Act of 1934 (Exchange Act).
On March 17, 2022, FINRA issued Regulatory Notice 22-10 clarifying the scope of potential liability for CCOs related to supervision lapses. Specifically, unless a CCO is actually designated, directly or indirectly, with supervisory responsibilities, within the meaning of the relevant rule, supervision failures or deficiencies will not result in a FINRA enforcement action against a CCO.
In the eighth installment in the Finding Balance series, we take a closer look at the phenomena of rising global indebtedness and alternative financing.