The fast-spreading coronavirus (COVID-19) is raising many questions and concerns among financial institutions. Our international COVID-19 Task Force, including financial sector experts, is at your disposal, should you need advice in any legal issues you are facing.
Below are some tips to help make decisions in a quickly changing situation.
Material contracts and key business partners
The announcement of a quarantine or a pandemic does not imply that the circumstance of force majeure is automatically applicable. The possibility of applying force majeure, any liability and the possibility of modifying or terminating a contract due to the change in circumstances all need to be evaluated case by case (read more here).
Each financial institution should consider how the outbreak may affect its ability to comply with its contractual obligations in situations where it acts as a supplier (eg if the financial institution acts as an intermediary in a payment service chain) and immediately inform the counterparty about the potential disruption of services. For example, a payment service provider needs to inform the relevant merchants of any potential or actual malfunction of the service provided.
Operational risk management and business continuity
According to the recommendations published by the European Central Bank, European Banking Authority and European Securities and Markets Authority to the financial markets on the effects of the coronavirus pandemic, all financial market participants must be ready to implement contingency plans to ensure business continuity. Therefore, all financial institutions are recommended to review their business continuity and operational risk management plans to identify how the outbreak may affect business continuity and to evaluate possible impacts, their impact tolerance (ie maximum tolerable level of disruption) and possible risk management measures. Financial institutions are recommended to hold discussions with material third-party service providers (eg support functions specialists, such as IT) to identify how their business continuity plans align with those of the financial institution.
Financial institutions should also consider setting up a crisis management team to deal with the crisis covering the following areas: setting the priorities within the financial institution, identifying actions and responsibilities, identifying people with the power to act, gathering information and communications.
Communications
Financial market participants should develop a communications strategy in case there is any material disruption to their activities. This should include plans for communicating with clients to ensure that they are kept appropriately updated, particularly if there is the possibility of delays or interruptions in the service provided or the closure of business premises. Similarly, each financial institution should aim to keep all of its employees informed of its planned response to the outbreak, the impact of remote working in relation to their function and any limits on the activities that they can carry out remotely.
Please note that despite the government’s declaration of quarantine in the Republic of Lithuania, the provision of financial services in physical offices is not prohibited. Therefore, financial institutions are not obliged to close their offices. However, it is strongly recommended that they set up alternative communication channels where practically possible.
If there is any material disruption in the provision of financial services, the financial institution should also consider events that are notifiable to the regulator (e.g. notifiable downtime of services, quarantined staff, closed offices, etc.), reporting channels and internal reporting lines and responsibilities.
Please note, that financial institutions whose securities are traded on regulated markets have an obligation to disclose immediately any significant information that is related to the effect of the virus on their activities under the transparency requirement of the Regulation on Market Abuse.
Remote working
It is not obligatory for private sector companies to organise remote working for their staff. However, it is recommended to do this, except for functions that must be performed in the workplace. Therefore, we recommend immediately evaluating the possibility of remote working and, if possible, organising it. If organised, the financial institution should consider how its management will supervise the employees who are working remotely to ensure business continuity. Accordingly, financial institutions should keep all their employees informed of their response to the coronavirus and any remote working conditions (if organised).
