![Global rules on foreign direct investment](https://www.nortonrosefulbright.com/-/media/images/nrf/nrfweb/knowledge/publications/us_24355_legal-update--fdi-alert.jpeg?w=265&revision=a5124a65-abf9-40e4-8e96-9df39ffdb212&revision=5250068427347387904&hash=96B456347C3246E5649838DF281C5F5D)
Publication
Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
United Kingdom | Publication | July 2022
Think you know how to run a pension scheme? Think again. As you may know, the Pensions Regulator is rationalising 10 of its existing Codes of Practice as one single “super” Code, which was published in draft for consultation in March 2021. We don’t yet know when it is going to be finalised: the Regulator has been considering more than 10,000 responses to its consultation. We do therefore expect some changes from the draft, but there is still no getting away from the fact it is coming.
It’s clear the Regulator is turning up the regulatory heat, and trustees and sponsoring employers will be expected to be more disciplined in their approach to running a pension scheme, whether it be defined benefit, defined contribution or a mix of both. There’s a lot to absorb and to implement. Even the most experienced and sophisticated of trustee boards will have to make changes; at the small scheme level the changes may have to be seismic.
The new Code will require much greater focus on having clear policies, processes and controls on managing risk, taking decisions and communicating with members and the Regulator. Trustees and managers need to review how their pension scheme is governed and brush up their processes and policies to be compliance-ready.
The Code reflects a raft of recent legislative changes which increase the amount of reporting and responsibility required of trustees. There are brand new requirements sitting alongside a general raising of the bar on expected standards of behaviour.
This briefing is the first in a series on aspects of the proposed new Code to give you an overview of the principal new expectations of trustees and administrators and how best to go about complying. We will focus here on one of the biggest changes of approach: the new(ish) universal obligation to have an effective system of governance.
Did you know you had to have an “effective system of governance” (or ESOG) for your scheme? The old requirement to have “internal controls” was beefed up under EU law to become an ESOG in January 2019 for almost all occupational pension schemes. The exception is authorised master trusts which have their own supervisory regime.
While UK schemes may have considered that they already had pretty clear governance requirements and there wouldn’t be much to do to implement this one last pre-Brexit change, the Regulator thinks otherwise and the draft Code is saturated with references to ESOG requirements.
What’s an ESOG?
An effective system of governance has to cover these minimum requirements:
*Internal controls cover:
These are all sensible ideas and you might think you have a perfectly good ESOG already. The existing guidance on internal controls already covers a lot of the same principles. However, the Regulator is adding a lot more detail in the Code, including a raft of policies, procedures and protocols that trustees are now expected to establish and maintain.
The key to reading the Code is to remember that how you go about compliance can be “proportionate to the size, nature, scale and complexity of the activities of the occupational pension scheme”. You would be forgiven for not realising that from the draft Code itself. We hope that the final Code will look more closely at what that might mean.
If your scheme has more than 100 members then the ESOG duties expand, as does the paperwork.
Extra ESOG duties for larger schemes
Schemes with 100 members or more are expected to perform “an own-risk assessment of [their] system of governance”. That means being able to document and evidence all aspects of your ESOG and test just how effective they really are.
The draft Code went all-in on what the Regulator expected of such an own-risk assessment (or ORA). The Regulator subsequently admitted in an interim response to its consultation that this was an area where respondents had raised concerns about the amount of work it would entail, the timeframe, what the finished product would look like and the burden it would place on smaller schemes. A future briefing will look at what an ORA might look like and how you can get ahead on putting documentation in place to help you with that process.
The Code certainly provides trustees and sponsors with plenty to think about. On the plus side, the pensions industry will be focused on good scheme governance. In the case of smaller schemes particularly, the new expectations should either drive better accountability and improved outcomes for members, or consolidation into larger schemes better able to deliver compliance. On the flipside, we are all going to be busy - significant trustee engagement and administrative and professional support will need to be directed to gap analysis and compliance.
The Code will have the same status as existing Codes of Practice. That means that although it will not actually be law and no direct penalties apply for failing to follow it, the Regulator may rely on it in legal proceedings as evidence of non-compliance with a requirement. Expectations set out in the new Code may be cited if the Regulator seeks to enforce improvement or compliance.
We are still waiting for the final version of the Code, but the underlying law is already in place. As a result we strongly recommend that you get ahead and check what you have, what you will need and what you will need to do to be compliant. We can help you with that gap analysis, and with getting your policies, procedures and protocols aligned to the new expectations.
Publication
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Publication
Artificial intelligence (AI) raises many intellectual property (IP) issues.
Publication
Taking place across three webinars, our team of experienced lawyers and consultants, along with industry professionals and regulators, explore the latest ESG developments and trends within financial services regulation. This series takes a cross jurisdictional perspective, covering ESG financial services regulation and trends from across the globe.
Subscribe and stay up to date with the latest legal news, information and events . . .
© Norton Rose Fulbright LLP 2023