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THE SECURITIES LENDING ROUNDTABLE<br />

62<br />

DEFINING BEST EXECUTION<br />

DR: In general terms, my understanding is that for agent<br />

lenders, best execution mean looking to get the best deal<br />

for customers, having policies setting out how you do that<br />

and being transparent with customers. Most people have<br />

behaved that way and we have a well regulated and fair<br />

industry in that respect in any case.<br />

MF: And shame on the industry for lobbying as they did<br />

and getting off the hook on this one.<br />

DR: I do not think that they did get off the hook, because<br />

I don’t think there was a hook in the first place<br />

MF: But there is no obligation to provide best execution.<br />

There was discussion as to whether it would be relevant<br />

and extended into the world of securities lending and the<br />

industry got together and wrote a letter, which quite<br />

frankly shocked me in terms of its contents and got off the<br />

hook. So, typical clients who spend very little time thinking<br />

about securities lending, would reasonably expect to be<br />

protected by MiFiD and best execution and they aren’t.<br />

DR: They will be actually, because many agent lenders are<br />

concluding that they actually do have to offer best execution<br />

to their clients, because they are going to be treated as<br />

professionals and depending on your interpretation of the<br />

runes from the European Commission, securities lending<br />

may or may not be—and some people are concluding that<br />

it is—an execution of client orders<br />

MF: That would be very welcome. I am heartened to here<br />

that, the clients will be too and that will be a winning<br />

strategic decision.<br />

DR: The question is what does best execution amount to?<br />

What it doesn’t amount to is that you have to execute at<br />

this market price, which is on a ticker tape, because that<br />

does not exist in securities lending and securities lending<br />

transactions are not as simple as equities sales. There are<br />

different dimensions to the transaction, and therefore<br />

acting in the client’s interest does not necessarily mean<br />

dealing at one particular price—it also depends on the<br />

client’s collateral needs and tax status, etc. So what the best<br />

execution will amount to is in effect having a policy that<br />

says to the customer that we will act in your best interests.<br />

RS: The debate has actually moved on. Looking at the latest<br />

guidance provided by the FSA and the response of the<br />

European Commission to CESR, a client will always need to<br />

be properly protected whether retail, professional or eligible<br />

counterparty. Every lending provider has to look at this in<br />

the context of the firm’s overall approach to best execution<br />

and JPMorgan has written a best execution policy which<br />

outlines very clearly how we would operate on behalf of our<br />

clients to obtain the best possible outcome. The challenge is<br />

that securities lending is not a business that fits very neatly<br />

into a trade by trade disclosure regime and people arguing<br />

for that are potentially going to do the industry a disservice<br />

by leveraging a huge cost base on it, which frankly it is not<br />

in a position to support at the moment.<br />

CJ: I would come back to the issue raised earlier about<br />

pricing and so called cherry-picking. It is a strange concept<br />

in this industry where some view that there is something<br />

bad about a beneficial owner choosing to take their assets<br />

and lend through a different route or a different provider.<br />

They feel that it is somehow unfair to a custody provider<br />

who now only has to charge transaction fees for supporting<br />

the custody function of lending. Securities lending is not an<br />

entitlement of custody providers so their pricing should just<br />

be set according to what service they provide. The industry<br />

should stop utilizing opaque pricing structures where the<br />

clients do not know how much they are actually paying for<br />

the different services being provided. These bundled<br />

arrangements prevent beneficial owners from evaluating all<br />

options and making proper informed decisions.<br />

JP: Until recently, I had never seen an RFP response from a<br />

custodian that did not include the condition that this<br />

pricing structure is conditional on them getting more<br />

securities lending.<br />

MC: When I asked this question of a custodian in a similar<br />

forum earlier this year, they told me that increasingly they<br />

were being asked to strip that out and quote separately for<br />

securities lending and ‘core’ custody. Because of the rise of<br />

third party lending agents, auction platforms, alternative<br />

routes to market, there is a desire on behalf of the ultimate<br />

customer to see that transparency and the custodians<br />

simply do not have a choice here.<br />

JP: That is very true but they used to just ignore it. In RFP<br />

exercises before I joined Mercer, we were absolutely<br />

explicit. The actual phrase used was: “You should assume<br />

that you will get none of our lending business”. We still got<br />

fee quotes that assumed a level of lending income. Then,<br />

there was then surprise when we lent the most lucrative<br />

asset classes through a third party.<br />

MF: I am asking for some adoption of standards that apply<br />

across the industry, not more information that is part of this<br />

kind of gentle obfuscation of pricing and information and<br />

bundling together of everything. Those days should be and<br />

are slowly going away, but this is just is just another subtle<br />

example of just more obfuscation.<br />

RS: Many of us use independent data providers to report to<br />

our clients on their programme performance. However<br />

most clients do not want to be called every day, preferring<br />

to look at it over a period of time and my second point is:<br />

what would the benchmark be, and could it have been<br />

implemented effectively in time?<br />

NOVEMBER/DECEMBER 2007 • <strong>FTSE</strong> GLOBAL MARKETS

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