Crossborder application of the cftcs margin requirements. The commissions october 12 release exempts swaps entered into prior to december 31 2012, or the date of an effective definition of us person, from being aggregated towards compliance thresholds. Cftc finalizes guidance on crossborder application of dodd. The resulting rulemakings would replace the crossborder guidance issued by the cftc in 20 and the crossborder rules proposed by the cftc in 2016, as well as address certain positions taken in cftc staff advisories and noaction letters. On august 18, 2015 the commodity futures trading commission cftc issued an order of exemption from registration as a derivatives clearing organization dco to asx clear futures pty limited asx clear of sydney, australia. Aug 26, 20 the crossborder application of title vii of the doddfrank act has been a vexing question for regulators. On may 1, 20, the sec proposed rules and interpretive guidance for parties to crossborder securitybased sb swap transactions, which include a proposed definition of the term u. Commodity futures trading commission office of public affairs 2024185080. Oct 30, 2012 the commissions october 12 release exempts swaps entered into prior to december 31 2012, or the date of an effective definition of us person, from being aggregated towards compliance thresholds. The cftcs proposed crossborder guidance is intended to help swap market participants determine. Cftc crossborder application of doddfrank title vii july 22, 20 contravene such rules or regulations as the cftc may prescribe or promulgate as are necessary or appropriate to prevent the evasion of any provision of title vii.
On july 12, 20, the cftc adopted final guidance concerning the regulation of cross border swap transactions mandated by the doddfrank act. And, its substituted compliance regime remains a somewhat arbitrary, rulebyrule analysis of cftc and foreign rules under which a. Under section 2i of the commodity exchange act, as amended by doddfrank, the cftc may apply the swaps provisions to activities outside the united states that have a direct and significant connection with activities in, or effect on, commerce of the. The definition would include collective investment vehicles including hedge funds that are directly or indirectly majorityowned by u. For this months big question, iflr asked lawyers specialising in cross border derivatives how the cftc should now proceed. The proposed rules modify the approach in the cftcs 20 crossborder guidance the 20 guidance2 by adopting various aspects of the cftcs crossborder margin rules for noncleared swaps the crossborder margin rules3 for the purpose of the crossborder application of the sd and msp registration thresholds and external. Notably, the cftc crossborder guidance included, inter alia, a definition of us person 14. Certain swap regulations interpretive guidance providing guidance as to when the cftc will assert jurisdiction over swap transactions that have a non u.
The proposal reflects certain aspects of the cross. Crossborder application of the cftcs margin requirements entity1 counterparty applicable margin requirements2 x u. Notably, the cftc cross border guidance included, inter alia, a definition of us person 14. Nov 03, 2016 this new definition would replace the cftcs current interpretation of the term in its 20 crossborder guidance, although the proposed rule largely mirrors the crossborder guidance. Person definition in the cftc guidance only applies to swap regulation under title vii of the dodd frank act and not to other cea provisions or regulations thereunder. An endusers guide to the cftcs final crossborder guidance.
Cftc crossborder reach cftc final guidance on extraterritoriality. For this months big question, iflr asked lawyers specialising in crossborder derivatives how the cftc should now proceed. Crossborder margin requirements for uncleared swaps. However, unlike the guidance, the proposed rule would not treat commodity pools, pooled accounts, investment funds, and other collective investment vehicles. The guidance took the form of substituted compliance determinations and noaction relief for swap dealers and major swap participants located in certain nonus jurisdictions. Cftc adopts final cross border margin rules for non cleared swaps. Commodity futures trading commission cftc issued final interpretive guidance with respect to the crossborder application of the doddfrank wall street reform and consumer protection acts doddfrank act requirements for swaps final guidance. Update on the cftcs crossborder application of doddfrank.
The final rules are closely aligned with the crossborder. Cftc crossborder action hints at rules normalcy itreasurer. Almost two years ago, in november 20, cftc staff issued a cryptic 2page advisory stating that swaps between a nonus swap dealer and a nonus person, even if they are booked outside the united states, are subject to certain transactionlevel requirements adopted by the cftc in implementing the doddfrank derivatives reforms, if the nonus swap dealer arranged, negotiated, or. Client update cftc proposes rules on crossborder application. The commission has issued proposed guidance and a final exemptive order regarding the crossborder application of the swap provisions of the cea as added by title vii of the doddfrank wall street reform and consumer protection act. Person definitions under the final exemptive order and.
District court for the district of columbia dismissed, with certain exceptions, the lawsuit filed by the securities industry and financial markets association and others challenging the cftcs final crossborder guidance the guidance issued in july 20 and the extraterritorial application of the various cftc rulemakings under title vii of the doddfrank wall street reform. Cftc issues final guidance on the crossborder application of. The cftc also released a proposed exemptive order that would provide non u. Cftc adopts final cross border margin rules for non cleared.
Cftc crossborder application of dodd frank title vii. Cftc proposes revised us person definition and clarification on important crossborder swaps rulesby practical law finance related content published on 20 oct 2016 usa nationalfederalthe cftc approved a proposed rule that would redefine certain key crossborder swap terms, including us person, and provide clarification on other important doddfrank crossborder swaps rules, such as. The fact sheets do not contain the full definition of us person. Applies title vii to foreign branches, subsidiaries and affiliates of us persons. Guidance regarding crossborder application of the swaps provisions of title vii of the dodd. Person the guidance sets forth the following nonexclusive list of definitions for u. Commodity futures trading commission, three lafayette centre, 1155 21st street nw. Dec 23, 20 contemporaneously with issuing the press release, the cftc published two noaction letters here and here providing temporary relief for non u. Final crossborder guidance the cftc states that the final guidance is not a definitive statement of the. The commodity futures trading commission cftc or commission has issued its much anticipated final guidance on the crossborder application of the swaps provisions of the commodity exchange act cea, as added by title vii of the doddfrank act final guidance. The commodity futures trading commission has taken another step in refining its framework for cross. Frank act swap provisions would generally apply on a crossborder basis the cftc crossborder guidance. The doddfrank wall street reform and consumer protection act b.
Commodity futures trading commission cftc issued final interpretive guidance with respect to the crossborder application of the doddfrank wall street reform and consumer. On july 12, 20, the cftc adopted final guidance concerning the regulation of crossborder swap transactions mandated by the doddfrank act. Registration thresholds for nonus swap dealers and msps. Aug 16, 20 while the guidance states that the cftc consulted with the us securities and exchange commission the sec and considered the secs recently proposed rules and interpretive guidance that address the crossborder regulation of securitybased swaps, the cftc continues to chart a different course from that of the sec and nonus regulators. Nov 03, 2016 the proposed rules modify the approach in the cftcs 20 crossborder guidance the 20 guidance2 by adopting various aspects of the cftcs crossborder margin rules for noncleared swaps the crossborder margin rules3 for the purpose of the crossborder application of the sd and msp registration thresholds and external.
Cftc adopts final rules regarding the cross border. Swaps between foreign branches of us swap dealers and nonus persons also qualify for substitute compliance. Key differences between the cftc and sec final business. Zubrod said, adding that another important element was creating the definition for a us person, which for crossborder margin is somewhat different than the cftcs us person definition for other rules. Cftc finalizes crossborder swaps guidance and establishes compliance schedule july 30, 20. A major factor determining the ultimate reach of such swap regulation is the definition of u. To which of these circumstances does us law apply, mr. This new definition would replace the cftcs current interpretation of the term in its 20 crossborder guidance, although the proposed rule largely mirrors the crossborder guidance. The cftc also recently addressed the reach of the new doddfrank requirements to swaps transactions involving non u. Sec issues final rules on dealing activity conducted within. Cftc issues final extraterritoriality guidance respecting. On june 29, the cftc released proposed interpretive guidance regarding the crossborder impact of the swaprelated provisions of title vii of the doddfrank act. Comparability determinations the cftc issued separate comparability determinations for entitylevel level requirements australia, canada, the for eu, hong kong, japan and 1 the cftcs actions also extend to non u. On may 24, 2016, the commodity futures trading commission cftc in a much anticipated action approved the issuance of final rules final rules regarding the crossborder application of its uncleared swaps margin requirements that it adopted on december 16, 2015.
Frank act swap provisions would generally apply on a cross border basis the cftc cross border guidance. Contemporaneously with issuing the press release, the cftc published two noaction letters here and here providing temporary relief for non u. The crossborder application of title vii of the doddfrank act has been a vexing question for regulators. Cftc emphasized that this prong of the definition is not meant to capture as a u. Cftc proposes crossborder swap rule, revisits 20 cross. A the definition in the cftc final rules does not include collective investment vehicles that are not organized under u. The guidance took the form of substituted compliance determinations and noaction relief for swap dealers and major swap participants located in. Proposed cftc guidance regarding the crossborder application.
Person definition and certain related crossborder interpretations to be effective october 9, 20. Sifma amg submits comments to the cftc on crossborder. Person definition that has created substantial controversy is the sixth. On december 20, 20, the cftc issued further guidance addressing the crossborder application of its swaps rules under doddfrank. Jul 30, 2012 on june 29, the cftc released proposed interpretive guidance regarding the crossborder impact of the swaprelated provisions of title vii of the doddfrank act. Cftc proposes crossborder guidance and exemptive order. If the approach to cross border swap transactions that was taken in the cftc cross. Cftc delays key crossborder swap advisory for 5th time. In proposed guidance and a proposed exemptive order, the cftc clarified that the requirements apply to the swap activities of any person that is a u. An endusers guide to the cftcs final crossborder guidance january 21, 2014 there were a number of new developments with respect to the crossborder application of the doddfrank wall street reform and consumer protection act doddfrank act requirements for swaps in the latter part of 20. Nov 09, 2016 more than 150 years after the founding of our firm, sidley today comprises a diverse group of legal professionals from many cultures who are dedicated to teamwork, collaboration and superior client service. Person definitions under the final exemptive order. The proposed definition of us person is also generally consistent with the interpretation set out in the crossborder guidance, except that, unlike the crossborder guidance definition but similar to the definition in the crossborder margin rules, the proposed definition of us person does not include the us majority owned funds prong see practice note, the doddfrank act. The proposed guidance and further proposed guidance ii.
On july 12, 2012, the cftc published its proposed guidance proposed guidance to interpret cea. Unlike the cftcs final crossborder guidance, which was released on july 15, 20 the crossborder guidance,4 the final rule does not include in the definition of u. The crossborder swaps representations on isda amend. While the guidance states that the cftc consulted with the us securities and exchange commission the sec and considered the secs recently proposed rules and interpretive guidance that address the crossborder regulation of securitybased swaps, the cftc continues to chart a different course from that of the sec and nonus regulators. September 20, 20 cftc guidance on crossborder practice. Cftc crossborder guidance frequently asked questions. More than 150 years after the founding of our firm, sidley today comprises a diverse group of legal professionals from many cultures who are dedicated to teamwork, collaboration and superior client service. Dec 05, 20 cftc crossborder reach cftc final guidance on extraterritoriality. On july 12, 2012, the cftc published its proposed guidance proposed guidance to. Cftc guidance, crossborder application, us swap regulations on friday, june 29, 2012, the us commodity futures trading commission the cftc released its proposed interpretive guidance and policy statement the proposed guidance regarding the crossborder application of the swaps provisions of title vii of the doddfrank wall street reform and. Chairman giancarlo intends to direct the cftc to develop and publish new rules. Cftc proposes crossborder application of margin requirements.
The definition of us person is a key component of the cftc s crossborder guidance as it directly impacts the registration analysis under the cea as well as the application of the various swap provisions of the cea in crossborder transactions. Instead of adopting rules, the cftc has issued interpretative guidance on how it will apply its sd rules in a crossborder context, 12 and has also requested comment on and provided timelimited. Cftc guidance on crossborder application of united states swap regulations 2 definition of u. Cftc addresses compliance dates for cpocta registration. On july 12, 20, the commodity futures trading commission cftc approved its highly anticipated final interpretive guidance and policy statement the guidance 1. It is based on the cftcs authority under section 5bh of the commodity exchange act, which permits. Aug 21, 2015 almost two years ago, in november 20, cftc staff issued a cryptic 2page advisory stating that swaps between a nonus swap dealer and a nonus person, even if they are booked outside the united states, are subject to certain transactionlevel requirements adopted by the cftc in implementing the doddfrank derivatives reforms, if the nonus swap dealer arranged, negotiated, or executed. Cftc finalizes crossborder swaps guidance and establishes. Commodity futures trading commission cftc issued final interpretive guidance with respect to the crossborder application of the. If the approach to crossborder swap transactions that was taken in the cftc cross.
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