Last month, the U.S. Commodity Futures Trading Commission (CFTC) issued final interpretive guidance with respect to the cross-border application of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s (Dodd-Frank Act) requirements for swaps (Final Guidance). This Legal Alert examines the Final Guidance from an end-user’s perspective. It addresses the two key issues for end-users presented by the Final Guidance: (i) the “U.S. Person” definition, and (ii) the application of the Dodd-Frank Act’s requirements for swaps to end-users (and certain issues related thereto).

As demonstrated in Tables 1 and 2 below, U.S. Person end-users are generally subject, either directly or indirectly, to the Dodd-Frank Act’s requirements, regardless of the status of their counterparties, whereas non-U.S. Person end-users (including those affiliated with U.S. Persons) may not be subject to many of the Dodd-Frank Act’s requirements, depending on the status of their counterparties. Table 3 addresses a small subset of non-U.S. Persons whose ties to a U.S. Person(s) (including credit support from U.S. Persons(s) and whether swaps are transacted for U.S. Person affiliates) are such that they are accorded somewhat different treatment.

Please see full alert below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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