The Regulation on over-the-counter derivatives, central counterparties and trade repositories (commonly referred to as the European Market Infrastructure Regulation or “EMIR”) was published in its final form on 27 July 2012 and entered into force, subject to transitional provisions, on 16 August 2012. On 27 September, the European Securities and Markets Authority (“ESMA”) submitted its final advice on technical standards (the “Final Report”) to the European Commission. Many of the provisions in EMIR will not be effective until the technical standards have been adopted by the European Commission.

EMIR requires certain counterparties to clear all over-the-counter (“OTC”) derivative contracts that meet certain eligibility criteria through an authorised central counterparty (“CCP”). EMIR sets out a complex dual process to be followed by ESMA for determining the classes of OTC derivative contracts subject to mandatory clearing. The classes of OTC derivative contracts, and hence the scope of the clearing obligation, depends on the outcome of this process and therefore remains uncertain.

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