On November 14, the Division of Swap Dealer and Intermediary Oversight (DSIO) of the Commodity Futures Trading Commission issued Advisory No. 13-69 to answer inquiries on whether a registered non-US swap dealer (SD) must comply with the Transaction-Level Requirements when entering into a swap with a non-US person if the swap is arranged, negotiated or executed by personnel or agents of the non-US SD located in the United States. DSIO advised that, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFTC has a supervisory interest in dealing activities that occur in the United States, regardless of the status of the counterparties. Such swaps are therefore subject to Transaction-Level Requirements if the non-US SD (whether or not an affiliate of a US person) “regularly” uses personnel or agents that are located in the United States. DSIO further indicated, “for the avoidance of doubt,” that these requirements would also apply to a swap between a non-US SD and a non-US person that is booked in a non-US branch of the non-US SD if the non-US SD is using personnel or agents located in the United States to arrange, negotiate or execute the swap.
The Advisory is available here.