LIBOR CODE OF CONDUCT CONTRIBUTING BANKS Issue 3: 1 August 2016 Confirmed as Industry Guidance by the FCA © ICE Benchmark Administration Limited. All rights reserved. For permission to copy please contact ICE Benchmark Administration Limited. Any reproduction, republication, transmission or reuse in whole or part requires our consent. 2 CONTENTS Preface Glossary 1. Governance arrangements 2. Staff training and awareness 3. Submission methodology 4. Managing conflicts of interests 5. Suspicions 6. Record keeping 7. Compliance and internal audit 8. Auditor reporting 9. Benchmark Administrator responsibilities 10.LIBOR Oversight Committee ANNEX 1 Submission methodology ANNEX 2 ICE LIBOR Output Statement © ICE Benchmark Administration Limited. All rights reserved. 3 PREFACE 1. Purpose This LIBOR Code of Conduct (“LIBOR Code” or “Code”) sets out the practice standards adopted by ICE Benchmark Administration Limited (“IBA”) for benchmark submitters to ICE LIBOR (“LIBOR”). The Code provides the framework within which contributing (or “panel”) banks should operate and assists users in deciding whether LIBOR is an appropriate benchmark to use in contracts. The Code also sets out the responsibilities of the Benchmark Administrator and its Oversight Committee. Whilst the Code summarises the relevant FCA rules in places, firms should refer to the FCA Handbook for the FCA rules themselves. 2. Background From 2 April 2013 the following two new regulated activities were introduced through the Regulated Activities Order:1  Providing information in relation to a specified benchmark, and  Administering a specified benchmark. LIBOR was the first specified benchmark under the new regulation. Knowingly or deliberately making false or misleading statements in relation to benchmark- setting was made a criminal offence (sections 91 and 92 of the Financial Services Act 20122). The Financial Conduct Authority (“FCA”) is the UK’s regulatory and supervisory authority for benchmarks, and has issued Rules governing benchmark setting by adding Chapter 8 (Benchmarks) to its Market Conduct Sourcebook. MAR 8.2 and MAR 8.3 contain the provisions for benchmark submitters and benchmark administrators, respectively. In accordance with MAR 8.3.10(1): “The benchmark administrator through its oversight committee must: (1) develop practice standards in a published code which, for the relevant specified benchmark, set out the responsibilities for: (a) benchmark submitters and (where applicable) persons who make benchmark submissions available; (b) the benchmark administrator; and (c) the oversight committee”. 1 Article 63O and Sch 5. 2 SI 2013/637 - The Financial Services Act 2012 (Misleading Statements and Impressions) Order 2013. © ICE Benchmark Administration Limited. All rights reserved. 4 Issue 1 of the Code became effective from 2 April 2013 when BBA LIBOR Ltd was the Administrator of LIBOR. It was the Interim Code at that time pending the appointment of a new Administrator. IBA became the Administrator on 3 February 2014 and adopted the text of the Interim Code. The Code is FCA-confirmed industry guidance under PS07/163. FCA confirmation means that the FCA will regard a firm following such confirmed guidance as complying with the relevant Handbook rule,4 but will not treat a firm’s failure to comply with such guidance as indicating that the firm has breached that rule, as in many cases there will be more than one way to comply. However, where a breach of FCA rules has been established, industry guidance is potentially relevant to an enforcement case. The ways in which the FCA may seek to use industry guidance in an enforcement context are similar to those in which the FCA may use FCA guidance or supporting materials. The Code does not affect firms’ obligations under applicable competition law such as the Competition Act 1998. 3. Introduction to Issue 3 of the Code In March 2016, IBA issued a Roadmap designed to deliver a seamless transition to an even more robust benchmark which will make LIBOR more sustainable for the long term. In order to achieve those objectives:  IBA is implementing a uniform submission methodology for LIBOR panel banks based on parameters defined by IBA and the LIBOR Oversight Committee  IBA has published a single, clear and comprehensive definition of LIBOR, and  Submissions will be non-subjective and fully transaction-based wherever feasible. In order to anchor LIBOR to the greatest extent possible in transactions, as well as reflect changes in banks’ funding models, IBA has designed a waterfall of submission methodologies to ensure that LIBOR panel banks use funding transactions where available. The waterfall is as follows:  Level 1: The Volume Weighted Average Price (‘VWAP’) of eligible transactions  Level 2: Submissions derived from transactions (including adjusted historical transactions, interpolation and parallel shift), and  Level 3: Expert Judgement, appropriately framed. 4. Transitional arrangements The standardising and updating measures set out in the Roadmap will be implemented progressively during 2016. This Issue 3 of the Code applies to a contributing bank from the date on which it transitions to the Roadmap methodology. Issue 2 of the Code applies to contributing banks before they transition to the Roadmap methodology. 3 Available at http://www.fsa.gov.uk/pubs/policy/ps07_16.pdf. 4 See PS07/16, paragraph 2.5. © ICE Benchmark Administration Limited. All rights reserved. 5 When all contributing banks have transitioned to the Roadmap methodology:  Issue 2 will be withdrawn, and  This section 4 (Transitional arrangements) of Issue 3 will be deleted. © ICE Benchmark Administration Limited. All rights reserved. 6 GLOSSARY OF TERMS Term/expression Meaning Benchmark Administrator An entity carrying out the regulated activity of administering a ( ICE Benchmark specified benchmark. Administration Limited) Benchmark manager An individual tasked with overseeing a contributing bank’s compliance with MAR 8.2. Benchmark submission The information provided to a benchmark administrator for the purposes of determining a specified benchmark. Compliance function A control function independent of the business area within which the LIBOR submission process is based. Contributing bank A bank carrying out the regulated activity of providing information in relation to a specified benchmark. In its Rules, the FCA refers to this as a ‘benchmark submitter’. Exceptional Market Event A mechanism to protect the integrity of the rate in times of severe market dislocation. Governance group A committee, working party or other group of senior individuals within a contributing bank charged with oversight of the contributing bank’s benchmark submission process. LIBOR Administrator’s A group which meets regularly with the Administrator to Operational Group discuss operational issues concerning LIBOR. Representatives of each contributing bank are included in this Group. MAR The FCA’s Market Conduct Sourcebook. Reviewer An individual within a contributing bank who reviews submissions, whether before or after the submission has been made. This person may also be the Benchmark manager. Regulated Activities Order The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 [SI 2001/544 as amended by SI 2009/1389 and SI 2013/655] Submitter An individual within a contributing bank who prepares a benchmark submission on behalf of the bank. © ICE Benchmark Administration Limited. All rights reserved. 7 LIBOR Oversight Committee A Committee of the LIBOR Administrator, responsible for overseeing the activities around LIBOR. The Committee must include representatives of contributing banks, market infrastructure providers, users of LIBOR and at least two independent non-executive directors of the Benchmark Administrator. © ICE Benchmark Administration Limited. All rights reserved. 8 CODE OF CONDUCT (Text from MAR 8 is shown in italics) 1. Governance arrangements MAR 8.2.1 R 1.1 A contributing bank must establish and maintain adequate and effective organisational and governance arrangements for the process of making benchmark submissions. Governance and structure 1.2 Governance arrangements should be within the context of a structure that reflects appropriate senior management involvement in, and awareness of, the LIBOR submission process. The overall approach, policies and procedures should cover:  Reporting structure and operating procedures  Oversight and monitoring arrangements  Escalation and reporting procedures  Business continuity arrangements for making LIBOR submissions 1.3 The contributing bank should charge a governance group of senior individuals with responsibility for the oversight of the submission process and for receiving reports on post submission reviews. In some contributing banks this may be a formally established group, whilst in others this oversight may be exercised within the bank’s existing accountability framework. 1.4 Each contributing bank must nominate an individual as a MAR 8.2.3 R Benchmark manager to be responsible for oversight of the bank’s compliance with the FCA’s MAR 8.2 requirements. The individual is also the primary point of contact for the LIBOR Administrator. MAR 8.2.4 G 1.5 The Benchmark manager is expected to be based in the United Kingdom. 1.6 The Benchmark manager or a delegate is expected to attend the LIBOR Administrator’s Operational Group meetings regularly. © ICE Benchmark Administration Limited. All rights reserved. 9 MAR 8.2.2 G (2), 1.7 There should be appropriate oversight of the submission (3) process by the compliance function of the firm to ensure compliance with the contributing bank’s obligations under the provisions of MAR 8. There should also be periodic internal audit reviews. 1.8 In respect of the LIBOR submission process, the role of the compliance function should include:  confirming the incorporation of the LIBOR activity and oversight of that activity into the contributing bank's policies, such as those covering Conflicts of Interest and Whistleblowing;  incorporating appropriate oversight activity into the annual compliance function plans;  incorporating the oversight activity into the contributing bank’s compliance policies and procedures and keeping this material up-to-date;  procedures for reporting findings. Designation of individuals 1.9 Each person directly involved in the submission process should be formally designated and documented as such within the contributing bank. The designation and documentation should include the person’s name, role and reporting line, as well as a detailed job description covering the involvement in the submission process. 1.10 At a minimum, this designation and documentation should include the following persons:  The Benchmark manager.  Submitters and reviewers (and their alternates).  An individual within the contributing bank’s compliance function as the point of contact for covering the Benchmark submission process. Policies and systems 1.11 A contributing bank should create, implement and enforce written policies and procedures designed to ensure the LIBOR Code is implemented and systematically applied within the bank so as to ensure the integrity of its LIBOR submissions. 1.12 The contributing bank’s internal compliance function must be able to access policies covering the LIBOR submission process. Policies should be made available, on request, to the LIBOR Administrator and the FCA. 1.13 All policies should be reviewed at least annually, and updated as necessary, and must reflect changes in the LIBOR Code. © ICE Benchmark Administration Limited. All rights reserved. 10 2. Staff training and awareness Experience and training 2.1 All submitters and reviewers should have relevant experience in the market for the LIBOR benchmark for which they are making submissions, or in a comparable market. The level of experience required to be demonstrated should be appropriate to the responsibilities of the function performed, in the context of the depth of the market concerned. MAR 8.2.3 R (2) 2.2 The Benchmark manager must have a sufficient level of authority and access to resources and information to enable him/her to carry out his/her responsibility, in line with the provisions of the LIBOR Code and with regulatory expectations. 2.3 All records relevant to the LIBOR submission process should be available to the Benchmark manager. 2.4  All submitters and reviewers should receive training on responsibilities, processes, systems and controls associated with setting LIBOR. Training should include at a minimum:  The LIBOR Code.  Internal policies and procedures related to LIBOR setting.  Inputs that should be taken into account when determining submissions.  The use of expert judgment, within the framework of submission guidelines.  The impropriety of attempting to influence the determination of submissions, and the need to report any such attempts that they become aware of.  The importance of conducting all business related to LIBOR submissions on recorded telephone and electronic communication systems and not on personal telephones or other personal electronic devices.  The employment and other potential consequences for firms and employees if employees act unlawfully or improperly in connection with the contributing bank’s submissions or the process for determining submissions, including under the Competition Act 1998. 2.5 Completion of training should be documented for each individual. Training should be provided promptly to new submitters and reviewers. For all submitters and reviewers training should be refreshed at least annually and whenever there are material changes to the LIBOR Code or applicable regulatory requirements. © ICE Benchmark Administration Limited. All rights reserved.