Allens

Banking & Finance

Our experienced Banking & Finance legal team regularly publishes articles and updates - the full list of publications appears below. These publications contain the latest news and developments, and look at the ramifications for your business. If you'd like to be notified when we add new banking & finance publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

See also our banking & finance pages for more information on our broad range of skills and experience in the financial sector, including capital raisings, securities, superannuation and managed investments.

Banking & Finance Publications

  • Unravelled: Draft code of ethics for financial advisers - in need of much more work

    9 April 2018

    You would be hard pressed to find a bigger load of nonsense than the draft code of ethics for financial advisers issued recently by the Financial Adviser Standards and Ethics Authority.

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  • Unravelled: The Royal Commission heats up

    9 April 2018

    The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry is well underway, with its first round of public hearings wrapping up less than a month ago. By reference to a number of case studies, the first round of hearings focused on consumer lending practices. In this article, we report on the key themes identified by the Commission as arising from the hearings.

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  • Focus: Trustee insolvency - the Full Federal Court weighs in to the debate

    29 March 2018

    We recently examined the implications of a Victorian Court of Appeal decision on trustee insolvency in the Amerind Appeal1. As we foreshadowed, the Full Federal Court has just released its decision on similar issues.2 It came to a similar position to the Victorian court in deciding that trust assets should be applied first in paying employees and other statutory preferred creditors (though for varied reasons). But it came to the opposite position in holding that trust assets could only go to trust creditors, not non-trust creditors. That finding will cheer lenders and others dealing with trusts, but leaves a confused landscape. Partner Philip Blaxill, Senior Finance Counsel Diccon Loxton and Associate Lucas Tan report.

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  • Unravelled: Preparing a target market determination for a financial product

    21 March 2018

    As the 'design and distribution' obligations for issuers and distributors of financial products inch closer, there is a good deal of hand-wringing taking place. Much of it concerns what a target market determination should look like. Guidance from the European Securities and Markets Authority on MiFID II provides a sense of what local issuers may be in for. But first - Treasury's proposal.

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  • Unravelled: Personal advice and the best interests duty

    21 March 2018

    There has been a great deal of attention given to the meanings of 'financial product advice' and 'personal advice' in the Corporations Act and many of us are eagerly waiting to see what Justice Gleeson will say about the topic in the case ASIC has brought against the BT trustees. However, whatever Her Honour decides in that case, it is unlikely to help very much, because the line between general advice and personal advice will always turn on the facts and, where the facts change with each interaction with a customer or client, it will continue to be difficult for licensees to be confident that they and their representatives are not giving personal advice. While that is a pity, it is, in my view, a greater pity that more licensees are not prepared to take the plunge and give personal advice. If licensees assumed that their interactions with customers and clients about financial products was personal advice, the difference between general advice and personal advice would not matter much.

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  • Focus: Statutory priority of secured creditors and trustee insolvency: implications of Re Amerind appeal decision

    13 March 2018

    The recent unanimous Victorian Court of Appeal decision1 in an appeal from Re Amerind has been widely welcomed by insolvency practitioners and others, as it brought some clarity to the question of whether the statutory order of priority applies to trust creditors. However, not all aspects of the decision will be as widely welcomed. In particular, in favouring a previous controversial decision of the court suggesting that trust assets should be applied in paying non-trust creditors, the Court of Appeal has resurrected a longstanding debate. Trust creditors and beneficiaries will be concerned if it is followed. Further, though insolvency practitioners and statutory preferred creditors will be generally pleased by the court's adoption of a wide interpretation of what is a 'circulating security interest' for the purpose of determining statutory priorities, it will concern secured creditors. Partner Philip Blaxill, Senior Finance Counsel Diccon Loxton and Associate Lucas Tan reflect on the decision and its ramifications.

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  • Allens insights: Australia - Fund Finance 2018, 2nd Edition

    27 February 2018

    Fund financing activities in Australia remained strong in 2017, with particular focus on infrastructure, private equity funds and private debt funds, which have taken advantage of the additional liquidity and funding flexibility in this market. Allens Partner Tom Highnam, Managing Associate Rita Pang and Senior Associate Victoria Johns provide an overview of the funds landscape in Australia, key developments and the outlook for the next 12 months.

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  • Focus: Move to require big banks' participation in comprehensive credit reporting

    23 February 2018

    The Federal Government has introduced draft legislation to establish a long-awaited mandatory comprehensive credit reporting regime for the major banks from 1 July 2018. Partner Gavin Smith, Senior Associate Emily Cravigan and Lawyer Dougald Coulson report.

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  • Client Update: ACCC's Enforcement and Compliance priorities for 2018

    22 February 2018

    A number of industries and issues are in the spotlight following release of the ACCC's 2018 Enforcement and Compliance Priorities by ACCC Chairman Rod Sims on 20 February 2018. The financial services, energy, commercial construction and agriculture sectors will be a focus in 2018, as well as the post-Harper misuse of market power and concerted practices provisions, digital platforms and large franchisors.

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  • Unravelled: Productivity Commission releases draft report on competition in the financial system

    20 February 2018

    The Productivity Commission's draft report on competition in the financial system, released earlier in February, makes 25 draft recommendations, a key focus of which are reforms to the regulatory system. We take you through the key issues and recommendations.

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  • Focus: Federal Government review into Open Banking

    14 February 2018

    The Federal Government has released its much anticipated Review into Open Banking in Australia. The Review makes 50 sweeping recommendations to implement Open Banking, including a new regulatory framework under which the regime would operate in the broader context of a new Consumer Data Right for all sectors. Partner Gavin Smith, Senior Associate Elyse Adams, Associate Leah Wickman and Lawyer Connie Ye report on some of the key elements of the report.

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  • Unravelled: A Commission of Inquiry - of the Royal, not the Parliamentary, kind

    19 December 2017

    Since the announcement of the Royal Commission into, ahem, financial services, much has been written and said – a lot of which suggests that little attention is being paid to the terms of reference. In this article I take a look at those terms.

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  • Client Update: Infrastructure investment in Australia - the road ahead for institutional investors

    11 December 2017

    With large-scale privatisations slowing and intense competition for assets that do come to market, institutional investors are looking to non-traditional assets to provide similar long-term, stable and predictable returns.

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  • Focus: Unitranche financing in the Australian market

    4 December 2017

    As regulatory and political pressure increases on the major banks in Australia, alternative credit providers are entering the market with a variety of products to attract borrowers. The unitranche loan is an example of one such product. Partner Warwick Newell, Senior Overseas Practitioner Alex Tonkin and Associate Hamish McCormack examine what makes unitranche loans unique – and what role they could play in the increasingly competitive Australian acquisition financing market.

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  • Unravelled: The BEAR has dropped, where to from here?

    9 November 2017

    The commencement date of the BEAR legislation is fast approaching and institutions should start planning how to comply with the regime. We look at the changes made to the BEAR legislation following industry submissions, the timing for implementation and key steps to take.

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  • Allens insights: Multisource financing: making multiple options work

    19 October 2017

    In an environment where Australian issuers, especially from the infrastructure sector, are actively seeking diversified funding options, two Allens Partners – James Darcy and Scott McCoy – discuss the key structuring considerations for issuers and sponsors wishing to establish debt platforms to access longer-term financing options.

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  • Unravelled: FX global code update

    4 October 2017

    The FX Global Code was launched in Australia earlier this year and applies to 'market participants', including most financial institutions, bank asset managers, brokers and E-trading platforms. The Code sets out 55 best practice principles and, although compliance is voluntary, it is expected that these principles will become the standard for the FX market industry.

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  • Unravelled: Spring overhaul of Australia's market licensing regime

    4 October 2017

    Australia's market licensing regime has long been crying out for an overhaul, with regulatory guidance that largely dates back to the early 2000s struggling in the face of significant developments in financial markets since then. Fortunately, ASIC has taken heed and is due to release an updated market licensing regulatory guide this month. If the draft guidance is anything to go by, we should soon see a much more modern and flexible approach to market licensing.

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  • Client Update: Blockchain reaction update - ASIC joins chorus on ICO regulation

    3 October 2017

    While ASIC has published information on the issue of coins or tokens in initial coin offerings, other regulators around the world have also been issuing guidance, with some taking a much more restrictive approach. Although Australia remains a relatively friendly regulatory environment for such offerings, there are a number of potential regulatory traps, both here and overseas, that issuers should carefully consider before launch. Managing Associate Simun Soljo, Senior Associate David Rountree and Lawyer Chris Walsh report.

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  • Client Update: The BEAR roars into action

    26 September 2017

    The Federal Government has released the exposure draft of the Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Bill, together with a draft Explanatory Memoradum. This follows on from the release of the Banking Executive Accountability Regime (BEAR) consultation paper in July which raised eyebrows with its short three-week consultation period. The exposure draft only provides five working days for interested parties to lodge a submission. This is a clear indication of the Government's desire to implement BEAR swiftly. Partner Michelle Levy and Senior Associates Sarah Burgemeister and Brenton Pollard report.

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  • Unravelled: APRA's new powers in superannuation - A worthy idea, but checks and balances required

    12 September 2017

    APRA is in line to get significantly increased powers of direction in respect of RSE licensees and their 'controlled entities' as part of the package of superannuation reforms announced in the Treasury Legislation Amendment (Improving Accountability and Member Outcomes in Superannuation) Bill 2017.

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  • Client Update: Vietnam opens its debt trading market to foreign investors

    1 September 2017

    Recent years have seen players in the Vietnamese banking sector making extensive efforts to recover non-performing loans (or bad debts). The Government has issued new regulations to improve the processes for recovering and handling bad debt in Vietnam and has implemented a framework to facilitate the trading of bad debt in a secondary market. Partner Linh Bui and Associate Dang Vu report on the key issues.

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  • Focus: New PPP guidelines for NSW

    28 July 2017

    The NSW Government has released updated guidelines that govern the Public Private Partnership procurement process in NSW and will provide welcome assistance to both NSW Government agencies and bidding consortiums. Partner Nicholas Adkins and Associate Sunny Jong report.

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  • Unravelled: UK's Financial Conduct Authority report into asset management: guidance for future direction

    6 July 2017

    ASIC often looks to overseas regulators for inspiration. So when a particularly influential regulator publishes a comprehensive report about a large segment of its regulated population, including possible new areas for regulation, it can pay to take note because it may be a guide to the future direction of Australian regulation.

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  • Unravelled: Raising capital, raising standards: managing conflicts of interest in sell-side research and corporate advisory

    6 July 2017

    ASIC continues its mission to enhance the regulation of Australia's equity markets, with its recent publication of Consultation Paper 290 on managing conflicts of interest when dealing with sell-side research and corporate advisory. The proposed amendments will primarily target investment banks and corporate advisers in the IPO and capital raising process.

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  • Client Update: ASIC sell-side research consultation and proposed regulatory guidance

    4 July 2017

    ASIC's new regulatory guidance focuses on managing conflicts of interest and material, non-public information when providing sell-side research. As well as providing extensive guidance on managing conflicts of interest during the capital raising process, ASIC provides its views on payment of discretionary fees, and the funding and structure of the research arm of banks, as well as foreshadowing a further view on allocation policies. Partner Julian Donnan and Senior Associate Addison Ma report.

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  • Client Update: Amendments to PPS lease law - what you need to know

    22 May 2017

    Legislation has come into force that will amend the Personal Property Securities regime. The amendments are designed to reduce the PPSA's impact on the equipment hiring industry. Previously hirers' equipment leases and bailment arrangements of an indefinite term, or short term leases of a year or more were deemed to be PPS leases, and security interests. If they were not perfected by registration, the owner of the equipment could lose priority, and could lose the equipment altogether if the lessee or bailee became insolvent. Many hirers were caught inadvertently. Now, those arrangements will only be caught if they are initially for two years or more, or the lessee or bailee ends up holding the equipment for two years or more. Partners Nicholas Creed and Ben Farnsworth explain.

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  • Client Update: Environmental bond and mine rehabilitation reform in Queensland

    15 May 2017

    Major reforms to environmental bonds and rehabilitation requirements are proposed in two discussion papers released by the Queensland Government. All mining sector operators should understand how the reforms will impact their current and proposed operations. Partner Bill McCredie and Senior Associate Gobind Kalsi report.

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  • Client Update: Ipso facto clauses, safe harbour for directors - our comments on the draft exposure legislation

    10 April 2017

    The Federal Government has released draft exposure legislation designed to facilitate company reconstructions. Senior Finance Counsel Diccon Loxton, Senior Associate Alicia Salvo and Associate Frances Navarro-Towan discuss some of the implications and issues. 

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  • Unravelled: ASIC's report on financial advice

    7 April 2017

    ASIC has recently released a report about its work with the big four banks and AMP on adviser misconduct. The report is essentially an update on the progress of ASIC's Wealth Management Project, and mostly contains information we already know. The most interesting part deals with the results of ASIC's review of adviser audit processes by the banks and AMP. They indicate that internal audits are not identifying compliance issues.

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  • Unravelled: A step closer to industry funding of ASIC

    7 April 2017

    Last week, the Federal Government moved another step closer to implementing an industry funding model for the recovery of ASIC's costs, by introducing the ASIC Supervisory Cost Recovery Levy Bill 2017 (as well as two related Bills) into Parliament. These Bills implement the recommendations of the Financial Services Inquiry and the Senate Economics Committee that ASIC be industry funded, and follows a number of rounds of industry consultation on exposure drafts and proposal papers.

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  • Unravelled: Clearing the way for social impact investing

    10 March 2017

    The Commonwealth Treasury is seeking feedback on how to kickstart social impact investment in Australia.

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  • Unravelled: Consumer protection in the banking, insurance and financial sector

    10 March 2017

    The Senate Economics References Committee is conducting an inquiry into the regulatory framework for the protection of consumers in the banking, insurance and financial services sector.

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  • Allens insights: Australia - Fund Finance 2017, 1st Edition

    24 February 2017

    Fund financing facilities have continued to flourish in Australia, providing sponsors, general partners and trustees with additional funding flexibility and liquidity. Allens Partner Tom Highnam, Managing Associate Rita Pang, and Associate Victoria Johns provide an overview of the funds sector, current funding options and structuring, the prevalence of sovereign wealth funds and what new developments may be expected over the next twelve months.

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  • Client Update: Take care! Court confirms the devil in the details for PPSA registrations

    10 February 2017

    In a recent case a leasing company lost $23 million worth of leased equipment because it had registered the lease against the lessee company's ABN rather than its ACN – involving just two extra digits. The equipment vested in the lessee company when it went into voluntary administration. The court upheld the constitutional validity of the provision under which this occurred. Senior Finance Counsel Diccon Loxton and Partners Karla Fraser and Renee Boundy report on the case: Alleasing Pty Ltd v Onesteel Manufacturing Pty Ltd (Admins Apptd) [2017] NSW SC 21, a decision of the New South Wales Supreme Court.

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  • Allens insights: Trends over the past year in the Australian projects and infrastructure sectors

    8 February 2017

    A substantial pipeline of both private and public infrastructure projects has attracted a variety of local and offshore project finance providers wishing to gain exposure to returns from these attractive Australian investment opportunities. Allens Partners Nick Adkins, Scott McCoy and Rob Watt look at how this is unfolding, the increase in non-bank lenders competing for projects, the various funding models at play, and the opportunities available in the near future.

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  • Unravelled: English High Court provides important guidance on approach to LIBOR mis-selling claims

    7 February 2017

    The English High Court has handed down its judgment on the first major case following the global regulatory investigations into alleged LIBOR manipulation.

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  • Unravelled: Retail banking remuneration review

    7 February 2017

    The Australian Bankers' Association last year commissioned Stephen Sedgwick to undertake a review of remuneration in retail banking.

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  • Unravelled: Seeking judicial advice on whether to seek judicial advice

    9 December 2016

    For more than 150 years trustees have been able to obtain advice from courts on matters affecting the management or administration of trust property and on matters respecting the interpretation of trust deeds. Trustees would usually only seek such advice, however, if they had doubts about a proposed course of action.

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  • Client Update: Court confirms life easier for default interest clauses post-Paciocco

    6 December 2016

    A recent New South Wales Court of Appeal case considered the application of the penalties doctrine to default interest rate provisions in loan agreements following the High Court's liberal approach to the doctrine in Paciocco v ANZ. Senior Finance Counsel Diccon Loxton, Lawyer Hamish McCormack, and Law Clerk Ryan Abotomey report on Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328.

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  • Client Update: Mandatory margining: APRA final rules released

    20 October 2016

    APRA has released its long-awaited Prudential Standard CPS 226 Margining and risk mitigation for non-centrally cleared derivatives. While these rules are based on the Draft released in February of this year, and address some of the concerns raised during the consultation process, there are still a number of questions which remain unanswered. Partner Tom Highnam and Senior Associate Rod Aldus consider the new standard and some of the potential pitfalls for Australian and international derivative counterparties.

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  • Client Update: Designing effective remediation programs

    19 September 2016

    ASIC issued Regulatory Guide 256: Client review and remediation conducted by advice licensees late last week. In short, RG 256 says an Australian financial services licensee's duty to provide financial services 'efficiently, honestly and fairly' means they have to take responsibility for the consequences of things going wrong. When what has gone wrong amounts to a systemic error relating to advice provided to retail clients, taking responsibility means a review and remediation conducted in a 'comprehensive, timely, fair and transparent' manner. Partners Michelle Levy and Malcolm Stephens and Associate Jonathan Gardner report.

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  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

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  • Unravelled: Not better late - the Prime Trust appeal judgment

    6 September 2016

    The main Prime Trust appeal judgement is relatively well known, but a trust's responsible entities and their officers should look at what the appeal court had to say on other related matters.

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  • Unravelled: Improving the role of the Appointed Actuary

    6 September 2016

    APRA is seeking to improve the role of the Appointed Actuary in general and life insurance companies and has proposed some reforms in a discussion paper released earlier this year.

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  • Unravelled: Protecting accrued superannuation benefits from adverse changes

    6 September 2016

    For a long time now, superannuation lawyers have tried to work out the meaning of the following words: 'a beneficiary's right or claim to accrued benefits, and the amount of those accrued benefits, must not be altered adversely to the beneficiary by amendment of the governing rules or by any other act carried out, or consented to, by the trustee of the fund'. Two recent court decisions suggest that that endeavour may be unrewarding.

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  • Allens insights: Local issuers, international format

    31 August 2016

    At the same time as more international issuers appear to be looking at international programme formats for their Australian dollar issuance, so Australian borrowers are contemplating the use of EMTN programmes even for their domestic currency issuance.

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  • Unravelled: The High Court has its say on penalties

    9 August 2016

    In case you haven't heard, last week the High Court handed down its decision in Paciocco v Australia and New Zealand Banking Group Limited. In what was perhaps the most highly anticipated High Court decision of the year, the majority found that credit card late payment fees charged by ANZ were not penalties. Here we look at what the High Court had to say about the penalties rule and what this means for business and for class actions in the financial services space.

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  • Unravelled: Post-election policy recap

    9 August 2016

    As the dust settles following the recent federal election, it is a good time to reflect on what we can expect from the re-elected Coalition Government for the financial services sector. There are two main groups of policy proposals that are going to need to get through Parliament. The first is the fairly significant superannuation changes announced in the 2016/17 Budget in May. The second is the series of changes the Government announced in its response to the Financial System Inquiry. This brief article provides a refresher on each of them.

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  • Unravelled: Brexit and financial services regulation

    6 July 2016

    The idea that the UK could, on leaving the EU, simply walk away from a significant amount of EU financial services regulation seems fantastical. It is likely that the UK will, instead, have to adopt (on exit) vast amounts of EU financial services regulation. However, the UK will have no say on the future direction of EU financial services regulation - and it will also have to manage the inevitable future divergence between that regulation and its own domestic law.

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