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.