Harmony or Dissonance: The CFTC’s and SEC’s Cross-Border Rules


Recently, the SEC issued final rules addressing, among other things, the applicability of the security-based swap dealer (“SBSD”) and major security-based swap participant (“MSBSP”) definitions to cross-border security-based swap activities. The CFTC last year adopted final guidance and an exemptive order regarding the applicability of the definitions of swap dealer (“SD”) and major swap participant (“MSP”) to cross-border activities. The SEC’s rules have a number of differences from the CFTC’s, including with respect to the definition of U.S. person and with respect to which transactions count toward determining registration status. The following tables provide a comparison of the SEC’s cross-border rules and the CFTC’s cross-border guidance, including the definitions of U.S. persons, transactions that count toward the SD and SBSD de minimis thresholds, and positions that count toward the MSP and MSBSP thresholds. The tables are summary in nature and should not be viewed as definitive legal advice.

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