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[Month Year]

The CFTC's Final Cross-Border Guidance

As of October 9, 2013

Joshua Cohn, PartnerCurtis Doty, CounselMayer Brown LLP

Mary Johannes,Senior Director and Head of U.S. Public Policy, ISDA

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Extraterritoriality of Dodd-Frank Swaps Provisions

The Cross-Border Guidance interprets Commodity Exchange Act § 2(i) Swaps provisions of the CEA enacted by Title VII of Dodd-Frank "shall

not apply to activities outside the United States unless those activities have a direct and significant connection with activities in, or effect on, commerce of the United States or contravene [CFTC anti-evasion rules]."

A taxonomic approach Swap dealer (or MSP) category

Counterparty category

Category of requirement - Entity-Level (1st and 2nd); Transaction-Level (A and B)

Matrices! 78 Fed. Reg. 45292, 45368-70

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Counterparty Status

U.S. person Non-U.S. person that is "guaranteed" by a U.S. personNon-U.S. person that is an "affiliate conduit" of a U.S.

personNon-U.S. person not guaranteed by, or affiliate conduit

of, a U.S. personForeign branch of a U.S. bank that is a SD or MSP

"Foreign Branch Characteristics"

Swaps "with a foreign branch"

U.S. branch of a non-U.S. SD or MSP (footnote 513)

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Establishing Counterparty Status

Reasonable reliance on a counterparty's written representations

For representations included in SD's or MSP's relationship documentation, reliance requires an agreement from counterparty to timely update for material changes

ISDA Cross-Border Swaps Representation LetterISDA Cross-Border Representation Letter for U.S. Banks

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U.S. Person Definition – selected issues

Eight (8) enumerated prongs, preceded by "generally to include, but not be limited to –"

A "legal entity" (e.g., corporation, partnership, limited liability company, fund … or any similar form of enterprise) that (A) is organized or incorporated under US law or (B) has its principal place of business in the United States.

Principal place of business – "nerve center"; where the high level officers direct, control and coordinate the entity's activities

PPB prong was not applicable to funds and other collective investment vehicles before October 9, 2013

For collective investment vehicles -- location of senior personnel responsible for formation/promotion or implementation of investment strategy, depending on facts and circumstances.

"The Commission generally believes that [a non-U.S.] person would not come within the 'U.S. person' interpretation solely because it retains an asset management firm located in the United States …." See 78 FR 45312

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U.S. Person Definition – selected issues (cont.)

Any commodity pool, pooled account, investment fund, or other collective investment vehicle not described in the "legal entity" prong (see previous slide) that is majority-owned by one or more US persons, unless it is publicly offered only to non-U.S. persons and not offered to U.S. persons

Majority ownership test (See 78 FR 45313)

Majority-ownership is determined by counting direct beneficial owners and "looking-through" the beneficial ownership of any entities controlled by or under common control with the collective investment vehicle.

May rely on representations of an unrelated investor entity unless the investee vehicle has reason to believe the investor was formed or is operated principally for the purpose of avoiding looking through to the ultimate beneficial owners

Reasonable due diligence, along the lines of the verifications conducted for other regulatory requirements.

"Publicly offered"

Exception is intended to address comments that ownership verification would be particularly difficult for publicly offered vehicles

"Publicly offered" is not defined, but the publicly-offered vehicle "could be a UCITs". 78 FR 45314, fn 224

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U.S. Person Definition – selected issues (cont.)

Legal entity (other than LLC, LLP or similar entity where all of the owners have limited liability) that is directly or indirectly majority-owned by U.S. persons and in which such person(s) bear(s) unlimited responsibility for the obligations and liabilities of the legal entity

Other prongs: natural persons, estates of decedents, pension plans, trusts, individual or joint accounts

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Non-U.S. Persons Guaranteed by a U.S. Person

"Guarantee" – not only traditional guarantees of payment, but also other formal arrangements that, in view of all facts and circumstances, support the non-U.S. person's ability to pay or perform its swap obligations

Compare to "collateral promise" approach that appeared in final "swap" definition rule

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Affiliate conduit

Majority-owned, directly or indirectly, by a U.S. person Controls, is controlled by, or is under common control with the

U.S. person In the regular course of business, engages in swaps with non-U.S.

third party(ies) for the purpose of hedging or mitigating risks faced by, or to take positions on behalf of, its U.S. affiliate(s), and enters into offsetting swaps or other arrangements with such U.S. affiliate(s) in order to transfer the risks and benefits of such swaps with third-party(ies) to its U.S. affiliates

Financial results of the non-U.S. person are included in the consolidated financial statements of the U.S. person.

Other facts and circumstances also may be relevant.

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Swap Dealer De Minimis Calculation

• A U.S. person or a guaranteed or conduit affiliate must include all dealing swaps

• A non-U.S. person not guaranteed by, or an affiliate conduit of, a U.S. person must include all dealing swaps with:

• U.S. persons (other than foreign branches of SDs)

• Counterparties that are guaranteed affiliates of a U.S. person, unless the counterparty is a SD, a SD affiliate engaged in de minimis dealing, or is guaranteed by a non-financial entity.

• A non-U.S. person not guaranteed by, or an affiliate conduit of, a U.S. person may exclude swaps entered into anonymously on a DCM, SEF or FBOT and cleared.

• A person (U.S. or non-U.S.) must aggregate relevant dealing swaps of all commonly controlled affiliates (U.S. and non-U.S.), except those of any affiliates that are registered SDs.

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Extraterritorial application to CFTC requirements to SDs and MSPs In determining how Title VII will apply extraterritorially under the July 2013

Interpretive Guidance and Policy Statement, the CFTC has divided substantive swaps regulations conceptually into (i) "Entity-Level Requirements" and (ii) "Transaction-Level Requirements."

Entity-Level Requirements

First Category: capital adequacy; chief compliance officer; risk management; swap data recordkeeping (other than complaints and marketing/sales materials)

Second Category: SDR reporting; recordkeeping for complaints and marketing/sales materials; "large trader" reporting of physical commodity swaps

Transaction-Level Requirements

Category A: clearing and swap processing; margining and segregation for uncleared swaps; trade execution; swap trading relationship documentation; portfolio reconciliation and compression; real-time public reporting; trade confirmation; daily trading records

Category B: external business conduct standards

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Appendix D – Application of the Category A Transaction-Level Requirements to Swap Dealers and MSPs*

(Category A includes (1) Clearing and swap processing; (2) Margining and segregation for uncleared swaps; (3) Trade Execution; (4) Swap trading relationship documentation; (5) Portfolio reconciliation and compression; (6) Real-time public reporting; (7) Trade confirmation; and (8) Daily trading records).

U.S. Person (other than Foreign Branch of U.S. Bank that is a Swap Dealer or MSP)

Foreign Branch of U.S. Bank that is a Swap Dealer or MSP

Non-U.S. Person Guaranteed by, or Affiliate Conduit1 of, a U.S. Person

Non-U.S. Person Not Guaranteed by, and Not an Affiliate Conduit1 of, a U.S. Person

U.S. Swap Dealer or MSP (including an affiliate of a non-U.S. person)

Apply Apply Apply Apply

Foreign Branch of U.S. Bank that is a Swap Dealer or MSP

Apply Substituted Compliance

Substituted Compliance2 3

Substituted Compliance2

Non-U.S. Swap Dealer or MSP (including an affiliate of a U.S. person)

Apply Substituted Compliance

Substituted Compliance 3

Do Not Apply

*The Appendices to the Guidance should be read in conjunction with the rest of the Guidance.

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Appendix F – Application of Certain Entity-Level and Transaction-Level Requirements to Non-Swap Dealer/ Non-MSP Market Participants*

(The relevant Dodd-Frank requirements are those relating to: clearing, trade execution, real-time public reporting, Large Trader Reporting, SDR Reporting and swap data recordkeeping).

U.S. Person

(including an affiliate of non-U.S. person)

Non-U.S. Person Guaranteed by, or Affiliate Conduit1 of, a U.S. Person

Non-U.S. Person Not Guaranteed by, or Affiliate Conduit1 of, by U.S. Person

U.S. Person (including an affiliate of non-U.S. person)

Apply Apply Apply

Non-U.S. Person Guaranteed by, or Affiliate Conduit1 of, a U.S. person

Apply Substituted Compliance2 3 4

Do Not Apply4

Non-U.S. Person Not Guaranteed by, or Affiliate Conduit1 of, U.S. Person

Apply Do Not Apply4 Do Not Apply4

*The Appendices to the Guidance should be read in conjunction with the rest of the Guidance.

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Substituted Compliance

Per Guidance: in the case of certain parties and certain rules compliance with another country's rules may satisfy CFTC in lieu of its ownParties – CFTC classifications

Rules – Entity-Level (1st and 2nd)

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Substituted Compliance (cont.)

"May" – matrices at 78 FR 45368-70Comparability analysis standard: comparable and

comprehensive

Broad MOU required

Generic determinations

5% Exception – Transaction-level requirements

Noted areas of concern:Data repository direct access

Privacy laws

Clearing and trading venue recognition

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Substituted Compliance (cont.)

"Essentially identical" – another standard or "one-off" concession?6 jurisdictions have submitted to CFTC: EU, Australia, Canada,

Hong Kong, Japan, Switzerland ("Six Jurisdictions") special timing applies to these jurisdictions

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Exemptive Order

CFTC solicited comments75 days → Oct. 9: prior definition of U.S. person holds

overOther 75-day changes?Relief?

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Exemptive Order (cont.)

Six JurisdictionsEarlier of Dec. 21 or 30 days after substituted compliance

determinationNon-U.S. SDs/MSPs – entity-level requirements for which

substituted compliance is possiblespecial reporting obligations

Non-U.S. SDs/MSPs and Foreign Branches of U.S. – transaction-level requirements for which substituted compliance is possibleBut not clearing, trade execution or some Part 43 obligations

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Common Path Forward

European Commission and CFTC – July 11, 2013Acknowledged risks of conflicts of law and legal

uncertainty in international markets

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Common Path Forward (cont.)

"[J]urisdictions and regulators should be able to defer to each other when it is justified by the quality of their respective regulation and enforcement regimes."

PracticalitiesCFTC deems EU and US rules for risk mitigation of

bilateral uncleared swaps essentially identical and will issue no-action relief. The EU concept of "equivalence" is to be applicable.

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Common Path Forward (cont.)

CFTC will extend "foreign board of trade" no-action relief to swap contracts to facilitate the trade-execution requirement and may offer no-action relief to certain EU-regulated multilateral trading facilities.

EC, ESMA and CFTC to work together on STP, margin for uncleared swaps mandatory clearing, and reporting to trade repositories.

Common goal of assuring that overseas guaranteed subsidiaries and branches are covered.

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Common Path Forward (cont.)

With respect to CCPs, initial margin is viewed as the only key material difference.

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Common Path Forward (cont.)

CFTC No-Action Letters:13-45 – "Identicality" relief for certain EMIR risk mitigation rules

13-44 – Eurex clearing temporary registration relief

13-43 – LCH parallel

13-46 – Amends foreign board of trade direct access no-action letters

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Status?

Europe – 2015?Substituted compliance – but are substitutes available?Next?