ESMA Advice on Third-Country Equivalence Under EMIR, II

On 3 September, ESMA published its technical advice to the European Commission on the equivalence of the US and Japanese derivatives frameworks to the EU rules. On 2 October, ESMA supplemented its technical advice with complete equivalence findings on Australia, Switzerland, Hong Kong, Singapore, Canada, South Korea and India. The advice is not the final EU statement on the equivalence of these regimes because the European Commission is charged with adopting legislative acts on equivalence. Once it has considered ESMA’s advice, the Commission has a discretion (not apparently limited to concerns about financial services) to declare equivalence. Broadly speaking, these countries’ rules on derivatives have been considered equivalent but this is subject to market participants agreeing to apply European standards, where higher.

Equivalence -

Under the European Market Infrastructure Regulation (“EMIR”) the European Commission may adopt implementing acts declaring that the legal, supervisory and enforcement arrangements of a non-EU country are equivalent to the requirements in EMIR. For a central counterparty (“CCP”) or trade repository (“TR”) established in a non-EU country to provide their services in the EU, an equivalence decision is one of the requirements that must be fulfilled before the European Securities and Markets Authority (“ESMA”) will grant access of the CCP or TR to EU investors. Equivalence decisions on other obligations under EMIR have the effect that if one party to a derivative trade is established in a non-EU country and the contract is subject to EMIR, the counterparties may choose to follow the non-EU country’s equivalent regime instead of EMIR.

Please see full memo 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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