Beware of the EU's Mifid II unintended consequences

To say that the EU's Markets in Financial Instruments Directive II (Mifid) regime is suffering from ‘teething problems’ is an understatement. The problem is the rules as written are inherently ambiguous. No matter how carefully the documents are scrutinised – whether outside consultants are used or not – it is quite possible for different individuals within a firm to come to very different interpretations, let alone across the industry.

This may sound like an indictment, but it is not. Or rather it is par for the course when it comes to far-reaching regulations of this sort. Take the early days of the Market Abuse Regulation in 2016, which introduced the concept of ‘market soundings’ by an adviser when asking existing shareholders about a potential event for a company. This threw up a tonne of questions over what exactly counted as a market sounding. This was not a fatal flaw. Two years on and Market Abuse Regulation works well. The ambiguities were ironed out and a consensus emerged over time. Best practice when it comes to Mifid II will evolve in the same way, but it will take time and will not be achieved by simply referring back to the rules-as-written.

Then it was market soundings, now the tricky element is ‘inducement’ by an investment bank to an investor. What exactly does this cover? The question has wide-reaching implications. Take for instance a recent interaction between research house Jefferies and estate agency Purplebricks. Jefferies put out a damning sell note on Purplebricks, causing a price fall so sharp that Purplebricks felt compelled to put out an unscheduled trading update in response, specifically referencing the Jefferies note and contesting it with its own view.

Under the new rules only those who paid for Jefferies’ note should have seen it. However, Purplebricks’ response effectively made the contents of the note available to all. Does this mean all those who read the Purplebricks update were induced? And who is liable? To what extent should a firm be able to respond to such a note in this way? Not responding could lead investors to make poor decisions when research is not freely available.

Another thorny question is how to measure the value of unfamiliar research relationships. What if it is just one call a year, but the call is rumoured to be highly worthwhile? Similarly, is selling too cheaply or at a discount a form of inducement on the hope of commission via order flow? Is the regulator now in the business of policing fair pricing, and how will this work? Especially when the same content will inevitably be distributed to a number of institutions on different fee rates.