Fourth Update: Dodd-Frank Rules Impact End-Users of Foreign Exchange Derivatives - Key Recent Developments

by Wilson Sonsini Goodrich & Rosati

This March 2014 update is a summary of certain recent developments under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that impact corporate end-users of over-the-counter foreign exchange (FX) derivative transactions and should be read in conjunction with the four prior WSGR Alerts on Dodd-Frank FX issues from October 2011, September 2012, February 2013, and July 2013.

Title VII of Dodd-Frank amended the Commodity Exchange Act (CEA) and other federal securities laws to provide a comprehensive new regulatory framework for the treatment of over-the-counter derivatives, which are generally defined as "swaps" under Section 1a(47) of the CEA. Among other things, Dodd-Frank provides for:

  • the registration and regulation of swap dealers and major swap participants;
  • the implementation of clearing and trade execution requirements for swaps; and
  • the establishment of recordkeeping and reporting requirements for swaps.

The statutory "swap" definition contained in Dodd-Frank is quite broad and includes a wide variety of FX derivatives, such as FX swaps, FX forwards, currency swaps, cross-currency swaps, foreign currency options (including collared options), and non-deliverable FX forward contracts (NDFs), each as described in Annex A to this alert.

1. Overview of FX Swap Regulatory Framework
In November 2012, the U.S. Treasury Secretary issued a final determination that exempts both FX swaps and FX forwards (exempt FX swaps) from the majority of the Dodd-Frank requirements for swaps (Treasury Determination). On its face, the Treasury Determination only applies to exempt FX swaps (described in Annex A) and does not extend to any other type of FX derivative transaction.

In August 2012, the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) jointly issued rules further defining the term "swap" under Dodd-Frank. These rules clearly distinguished FX derivatives that could be subject to the Treasury Determination from FX derivatives that would not be subject to the Treasury Determination. The final rules thus confirmed that the following FX derivatives (described in Annex A) would be treated as swaps (non-exempt FX swaps) under the CEA without regard to the Secretary's determination:

  • Foreign currency options
  • Non-deliverable forward contracts involving foreign exchange
  • Currency swaps
  • Cross-currency swaps

While the Treasury Determination provides that exempt FX swaps will not be subject to Dodd-Frank's clearing and trading requirements, such transactions will continue to be subject to the following Dodd-Frank requirements: (1) the requirement to report swap trade data to swap data repositories (SDRs), (2) the external business conduct standards described in Section 2 of this alert, and (3) the anti-evasion provisions of Dodd-Frank described in Section 7 of this alert (anti-evasion rules).

In contrast, non-exempt FX swaps are subject to the following Dodd-Frank requirements: (1) the clearing and trading requirements of Dodd-Frank that are discussed in Section 3 of this alert (unless another exemption is available), (2) the proposed margin requirements imposed by either the CFTC or those federal regulators deemed the "prudential regulators,"1 (3) all three categories of reporting and recordkeeping requirements described in Section 6 of this alert, (4) the external business conduct standards, (5) the swap documentation requirements described in Section 2 of this alert under the swap documentation rules (defined below), and (6) the anti-evasion rules.

2. Overview of 2013 Documentation Requirements

In 2013, swap data reporting requirements and the swap documentation rules (defined below), which impose various documentation requirements on swap dealers and major swap participants, took effect. Such rules are in addition to the external business conduct rules that took effect in 2012, which also apply to swap dealers and major swap participants.

Swap Documentation Rules and the ISDA March 2013 Protocol (Protocol 2.0)

CFTC rules pertaining to trade confirmation, portfolio reconciliation, portfolio compression, and swap trading relationship documentation, which apply to swap dealers and major swap participants (Swap Documentation Rules), became effective in 2013.2 The Swap Documentation Rules apply to non-exempt FX swaps but do not apply to exempt FX swaps. These rules require swap dealers to, among other things, (1) limit the time between the execution of a non-exempt FX swap and the time that the swap dealer distributes and executes legally binding documentation with respect to such transaction with a corporate end-user of non-exempt FX swaps, (2) agree in writing with each of their counterparties as to the terms by which the swap dealer and counterparty will engage in portfolio reconciliation, and (3) establish and follow written policies and procedures for periodically terminating fully offsetting swaps and for engaging in portfolio compression exercises relating to swaps with counterparties that are not swap dealers to the extent requested by any such counterparty. In addition, the Swap Documentation Rules require swap dealers to establish and follow written policies and procedures reasonably designed to ensure that the swap dealer executes swap trading relationship documentation with corporate end-users of non-exempt FX swaps "prior to or contemporaneously with" entering into a non-exempt FX swap with the corporate end-user (Trading Documentation). In order to comply with these rules, the Trading Documentation must be in writing and include all terms governing the trading relationship between the swap dealer and the corporate end-user, including terms such as payment obligations, events of default, netting, termination events, and calculation of obligations upon termination.

Most of our corporate end-user clients satisfied the Trading Documentation requirements applicable to swap dealers by adhering to the March 2013 Protocol (Protocol 2.0) published by the International Swaps and Derivatives Association (ISDA). Protocol 2.0 is a mechanism designed to allow market participants to supplement the terms of their existing swap trading relationships in order to comply with the various requirements of Dodd-Frank. Among other things, Protocol 2.0 enables corporate end-users to enter into a deemed ISDA 2002 Master Agreement (Deemed ISDA) to govern their uncleared swaps to the extent they had not already met the documentation requirements set forth in the Trading Documentation rules. The Deemed ISDA includes certain basic terms required to satisfy the Trading Documentation rules. While entry into a Deemed ISDA is sufficient to comply with the Trading Documentation rules, most of our end-users have instead entered into negotiated ISDA Master Agreements in order to customize their derivative documentation to meet their specific requirements. In addition, Protocol 2.0 addresses the dispute resolution and portfolio reconciliation requirements of the Swap Documentation Rules.

It is important to note that swap dealers will typically require each legal entity in the corporate group that is party to a swap to enter into Protocol 2.0 in order for the swap dealer to meet their Dodd-Frank requirements. For example, if both a parent company and a subsidiary of the parent company trade FX derivatives, each entity must enter into the Protocol 2.0 separately.

External Business Conduct Standards and the ISDA August 2012 Protocol (Protocol 1.0)

The external business conduct standards applicable to swap dealers prohibit certain abusive practices and require swap dealers to (1) disclose certain material information to counterparties and (2) conduct due diligence relating to their dealings with counterparties (the "know your customer" requirements). Accordingly, end-users were required to amend their existing trade documentation to facilitate swap dealers' and major swap participants' compliance with the external business conduct rules no later than May 1, 2013. Most corporate end-users of FX derivatives met the documentation requirements required by swap dealers under the external business conduct standards by using the online ISDA August Protocol (Protocol 1.0). Protocol 1.0 provides parties the ability to amend their existing documentation by agreeing to certain supplements published by ISDA. Similar to Protocol 2.0, swap dealers will typically require each legal entity in the corporate group that is party to a swap to enter into Protocol 1.0. Please see our February 2013 WSGR Alert for a more detailed description of the Protocol 1.0 compliance procedures.

3. End-User Exception and FX Clearing and Trading Requirements

Corporate end-users that propose to enter into certain types of interest rate swaps are now required to comply with clearing and trade execution requirements for such interest rate swaps, unless such end-users implement the exemption from Dodd-Frank's clearing and trade execution requirements provided to corporate entities that meet specified requirements set forth by the CFTC (End-User Exception). However, as of the date of this alert, the CFTC has not issued any proposals to require the clearing and electronic trading of any over-the-counter FX derivative. We do not expect the CFTC to issue any such proposal in the near term, and, should a clearing mandate be proposed and issued this year, it is unlikely that corporate end-users would be required to clear such transactions prior to the end of 2014, based on the expectation that any such clearing requirement would not be applicable to a corporate end-user until 270 days after the effective date of a final mandatory clearing determination. As a result, for corporate end-users that solely trade FX derivatives, we expect that there will be no need to implement the End-User Exception for any corporate end-user of FX derivatives prior to the end of 2014. In addition, we believe that it would make sense for corporate end-users that solely trade FX derivatives to wait until the final margin requirements for uncleared swaps are adopted by the CFTC and prudential regulators before electing the End-User Exception, as the margin requirements for uncleared swaps may, depending on the final requirements, make it more economical to clear a particular FX transaction instead of relying on the End-User Exception to avoid the clearing requirements. Our September 2012 WSGR Alert provides a detailed description of the process for electing the End-User Exception.

4. Margin Requirements for Uncleared Swaps

In September 2013, the Basel Committee on Banking Supervision and the International Organization of Securities Commissions issued their final framework for uncleared swaps (the Framework). While the Framework is not a legally binding regulation, we expect that it will influence the final rules on margin requirements for swaps to be issued by the CFTC and prudential regulators. A key principle of the Framework is that margin requirements for uncleared swaps should promote central clearing by reflecting the higher risk associated with uncleared swaps—that is, margin requirements for uncleared swaps should be higher than for cleared swaps. In the event that either the CFTC or prudential regulators implements higher margin requirements for uncleared swaps versus cleared swaps, corporate end-users of FX derivatives, to the extent that a particular FX derivative is in the future subject to mandatory clearing under regulations promulgated by the CFTC or prudential regulators, may elect to clear such FX derivative instead of relying on the End-User Exception, depending on the economics of a particular FX derivative transaction.

5. Cross-Border Application of Dodd-Frank Requirements

On July 26, 2013, the CFTC published final interpretive guidance concerning the cross-border application of swap regulations under Dodd-Frank that, among other things, impacts non-financial end-users of over-the-counter FX derivatives (Cross-Border Guidance). The Cross-Border Guidance is not a formal rule promulgated and adopted by the CFTC but is instead "interpretative guidance" regarding the CFTC's view as to when the swap regulations of Dodd-Frank apply to cross-border swap transactions, including FX derivative transactions. Under the Cross-Border Guidance, the Dodd-Frank regulations applicable to any given swap transaction (and, in particular, FX derivative transactions) will vary depending on whether the parties to that swap transaction are "U.S. persons" or fall within certain other enumerated categories discussed below, such as a guaranteed affiliate or affiliate conduit. See Annex B to this alert for the non-exclusive definition of a "U.S. person."

For most of our corporate end-user clients, the Delaware corporate parent, since it is a U.S. person under the Cross-Border Guidance, will have a class of securities registered under the Securities Exchange Act of 1934, as amended (Parent Corporate End-User), and will be subject to substantially all of the applicable Dodd-Frank regulations with respect to their FX derivative transactions, irrespective of whether or not the counterparty to the FX transaction is a U.S. person. These Parent Corporate End-Users will often enter into an ISDA 2002 Master Agreement with a financial entity that is a U.S. person, and then use that same form for their non-U.S. subsidiaries, including typically providing a parent guarantee with respect to these non-U.S. subsidiaries (foreign subsidiaries).

With respect to any foreign subsidiary, the first step in complying with the Cross-Border Guidance is to determine whether or not the foreign subsidiary would fall within the CFTC's definition of a U.S. person. Clause (iii) of the definition of "U.S. person" includes "any corporation . . . having its principal place of business in the United States." For most of our corporate end-user clients, we do not believe that their foreign subsidiaries would have their principal places of business in the United States since these foreign subsidiaries typically have their own executive offices, boards of directors, and stand-alone and separate corporate operations, and were not formed specifically to trade FX derivative products or other financial products. Assuming that the foreign subsidiary is not a U.S. person, the next issue is the status of the counterparty to the FX derivative transaction. If these foreign subsidiaries trade FX derivatives with a financial entity that is a U.S. swap dealer or major swap participant (and thus a U.S. person), the foreign subsidiaries will be required to comply with all of the Dodd-Frank swap regulations applicable to their U.S. swap dealer with respect to their FX derivative transactions. Where the Cross-Border Guidance gets very complicated, however, is with respect to transactions in which the foreign subsidiary enters into an FX derivative with a non-U.S. person, including a swap dealer, major swap participant, financial institution, or corporate end-user that is not a U.S. person. The application of the Dodd-Frank swap regulations to an FX derivative transaction involving a foreign subsidiary with a non-U.S. person will depend on a number of factors, including the status of the foreign subsidiary, whether a U.S. parent guarantee is provided to the foreign subsidiary, and whether the foreign subsidiary is an affiliate conduit, along with the status of the foreign subsidiary's counterparty to the FX derivative transaction. In light of the extreme complexity of the Cross-Border Guidance, we would recommend contacting us directly to discuss how the Cross-Border Guidance would apply to your applicable transaction involving one of your foreign subsidiaries.

In order to help swap counterparties understand which rules apply to their swap transactions, ISDA has published a Cross-Border Swaps Representation Letter (Representation Letter) that a number of financial counterparties have requested our corporate end-users complete in order to comply with the Cross-Border Guidance.3

ISDA Representation Letter

The Representation Letter requires market participants to complete a three-step questionnaire, which consists of the following questions (defined terms used below are set forth in the Representation Letter):

  1. Whether the market participant reasonably believes it is a "U.S. person," as interpreted by the CFTC in the Cross-Border Guidance. If the answer to this question is "yes," then no further representations are required under the Representation Letter.
  2. If a market participant reasonably believes that it is not a "U.S. person," then the market participant must answer the following additional questions:

a. Whether the market participant reasonably believes that it is an "affiliate conduit," as defined in the Cross-Border Guidance

b. Whether the market participant reasonably believes that its swap obligations are supported by a "guarantee," as defined in the Cross-Border Guidance. If the answers to questions (a) and (b) are "no," then no further representations are required. (It should be noted that the term "guarantee" is very broadly defined in the Cross-Border Guidance and, in addition to formal guarantees, could include keepwells and other funding arrangements.)

  1. If a market participant reasonably believes that its swap obligations are supported by a "guarantee," as defined in the Cross-Border Guidance, then the market participant must answer the following additional questions:

a. Whether the market participant reasonably believes that such "guarantee" is provided by an entity that is both (i) a "U.S. person," as interpreted by the CFTC in the Cross-Border Guidance, and (ii) a "Financial Entity," as defined in the CEA

b. Whether the market participant is affiliated with a Swap Dealer, as defined in the CEA and the applicable regulation

In making these representations, corporate end-users should consult with the definitions and lists of relevant factors included as Appendix I to the Representation Letter.

6. Reporting and Recordkeeping Requirements
The reporting and recordkeeping requirements for swaps under Dodd-Frank (including FX derivatives) are quite complex.


There are three general categories of reporting requirements:

  • Real-Time Reporting: Provides for real-time reporting and public dissemination of certain swap data, including pricing data for certain newly executed swaps and amendments to existing swaps.
  • Regulatory Reporting: Provides for reporting to SDRs of primary economic terms and confirmation data of swaps, life-cycle data, and valuation data, but the information will not become publicly available.
  • Historical Reporting: Provides for similar reporting requirements as regulatory reporting to SDRs of historical swap information.

Dodd-Frank requires all transactions in swaps to be reported to a swap data repository, or if no SDR is available, to the CFTC or SEC, as applicable. These reporting requirements are applicable to a corporate end-user of over-the-counter FX derivatives only in the event that its counterparty is neither (1) a clearinghouse in the case of a cleared swap or (2) a swap dealer or major swap participant in the case of an uncleared swap. As a result, you will be subject to the reporting requirements only if your counterparty is another end-user, which will be extremely unlikely for most corporate end-users of over-the-counter FX derivatives. The regulatory reporting requirement became effective in 2013 and will apply to both exempt and non-exempt FX swaps. The real-time and historical reporting requirements will only apply to non-exempt FX swaps.

In addition, a corporate end-user is required to obtain a legal identifier (LEI) for each legal entity in the corporate structure trading FX derivatives. Currently, market participants may satisfy this requirement by registering for a CFTC Interim Compliant Identifier (commonly referred to as a "CICI"), which is an interim legal identifier to be used until a global LEI system is implemented and operational.

Recordkeeping for FX Swaps Entered into On or After April 10, 2013

Under the general recordkeeping requirements for new FX swaps, corporate end-users will be required to keep full, complete, and systematic records, together with all pertinent data and memoranda, with respect to each swap to which it is a counterparty, including without limitation, all records demonstrating that it is entitled with respect to any swap to elect the End-User Exception to the clearing requirement. Representations as to the election of and compliance with the End-User Exception by a corporate end-user are included in Protocol 2.0. Records may be maintained in paper or electronic form and be made available for CFTC inspection. FX swap records must be maintained from the date of creation of the FX swap through at least five years after termination of a swap. Swap records must be retrievable within five business days. In addition, corporate end-users must keep records of all required identifiers, including the unique swap identifier, the parties' LEIs, and any product identifier. These recordkeeping obligations will require corporate end-users to establish swap recordkeeping policies and procedures. We expect that complying with these new rules may require investment in new recordkeeping systems, depending on the nature and extent of trading activity.

Recordkeeping for Historical FX Swaps

For each historical swap that terminated or expired prior to April 25, 2011, end-users must retain the records of the primary economic terms of the swap that were in their possession as of October 1, 2010 (in the case of swaps entered into before the enactment of Dodd-Frank on July 21, 2010) or as of December 17, 2010 (in the case of swaps entered into on or after July 21, 2010, and prior to April 10, 2013). In each case the end-user must retain the records for five years after the termination or expiration date of such swap. Additionally, end-users must retain copies of (i) any confirmation executed by the parties, (ii) any master agreement governing the swap and any amendment or modification thereof, and (iii) any credit support agreement relating to the swap and any amendment or modification thereof. Records of historical swaps may be kept in paper or electronic form and must be retrievable within five business days.

7. Anti-Evasion Rules

Dodd-Frank's anti-evasion rules apply to both exempt FX swaps and non-exempt FX swaps and provide that any transaction that is "willfully structured" as a foreign exchange forward or foreign exchange swap to evade any provision of the CEA shall be deemed a swap for purposes of the CEA. The implications of violating these anti-evasion rules can be quite serious and constitute a felony. Accordingly, end-users should be sensitive to any actions or communications that could be construed as evidence of a willful intent to evade swap treatment under the CEA.

What You Should Do Now

Corporate end-users of FX derivatives should take the following steps, among others, in order to comply with the regulations described above:

  • Confirm your continued compliance with recordkeeping requirements for swaps
  • Look out for any potential non-compliance with the anti-evasion rules
  • Monitor CFTC future pending releases with respect to the clearing and trading of FX swaps
  • Monitor future ISDA protocols that may be forthcoming

If you have any questions about this WSGR Alert, please contact Michael Occhiolini at (650) 320-4688 or, Joe Bailey at (650) 849-3362 or, or your regular Wilson Sonsini Goodrich & Rosati contact.


Foreign Exchange Swap (Exempted by Treasury Exemption)
A transaction that solely involves (A) an exchange of two different currencies on a specific date at a fixed rate that is agreed upon on the inception of the contract covering the exchange; and (B) a reverse exchange of the two currencies involved in (A) at a later date and at a fixed rate that is agreed upon on the inception of the contract covering the exchange.

Foreign Exchange Forward (Exempted by Treasury Exemption)
A transaction that solely involves the exchange of two different currencies on a specific future date at a fixed rate agreed upon on the inception of the contract covering the exchange.

Currency Swap and Cross-Currency Swap (Each a Swap Under the CEA)
Each generally can be described as a swap in which the fixed legs or floating legs based on various interest rates are exchanged in different currencies.

  • A currency swap exchanges a fixed rate in one currency against a fixed rate in another currency.
  • A cross-currency swap is the swap of an interest rate in one currency for an interest rate payment in another currency (i.e., an interest rate swap with a currency component).
    • A cross-currency swap may be categorized as a cross-currency coupon swap, to the extent that it has a fixed leg based on one rate and a floating rate based on another rate (where the two rates are denominated in different currencies), or a cross-currency basis swap, where it has a floating leg based on one rate and another floating rate based on a different rate.
    • Cross-currency swaps also include annuity swaps and amortizing swaps. In cross-currency annuity swaps, level cash flows in different currencies are exchanged with no exchange of principal; annuity swaps are priced such that the level payment cash flows in each currency have the same net present value at the inception of the transaction. An amortizing cross-currency swap is structured with a declining principal schedule, usually designed to match that of an amortizing asset or liability.

Foreign Currency Option (a Swap Under the CEA)
Any agreement, contract, or transaction that is a put, call, cap, floor, collar, or similar option of any kind that is for the purchase or sale, or based on the value, of one or more currencies. (Foreign exchange options traded on a national securities exchange, however, are securities under federal securities laws and are not swaps or security-based swaps.)

Non-Deliverable Forward (NDF) (a Swap Under the CEA)
An NDF is similar to a foreign exchange forward in that it is an obligation to buy or sell a specific currency on a future settlement date at a fixed price set on the trade date, except that at maturity, an NDF does not require physical delivery of currencies. Rather, the contract typically is settled in a reserve currency, such as U.S. dollars. This is because one of the currencies involved in the transaction, usually an emerging market currency, may be subject to capital controls or similar restrictions, and is therefore "non-deliverable."


"U.S. person" is:

  1. any natural person who is a resident of the United States;
  2. an estate of a decedent who was a resident of the United States at the time of death;
  3. any corporation, partnership, limited liability company, business or other trust association, joint-stock company, fund, or any form of enterprise similar to any of the foregoing (other than an entity described in prongs (iv) or (v), below) (a "legal entity"), in each case that is organized or incorporated under the laws of a state or other jurisdiction in the United States or having its principal place of business in the United States;
  4. a pension plan for the employees, officers, or principals of such a legal entity, unless the plan is primarily for the benefit of foreign employees of such entity;
  5. any trust governed by the laws of a state or other jurisdiction in the United States, if a court within the United States is able to exercise primary jurisdiction over the administration of the trust;
  6. any commodity pool, pooled account, investment fund, or other collective investment vehicle that is not described in prong (iii) and that is majority-owned by one or more persons described in prongs (i) – (v), except any commodity pool, pooled account, investment fund, or other collective investment vehicle that is publicly offered only to non-U.S. persons and not offered to U.S. persons;
  7. any legal entity (other than a limited liability company, limited liability partnership, or similar entity where all of the owners of the entity have limited liability) that is directly or indirectly majority-owned by one or more U.S. persons described in prongs (i) – (v) and in which such person(s) bears unlimited responsibility for the obligations and liabilities of the legal entity; and
  8. any individual account or joint account (discretionary or not) where the beneficial owner (or one of the owners in the case of a joint account) is a U.S. person described in prongs (i) – (vii).

1 Dodd-Frank defines the term "prudential regulator" to include the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Farm Credit Administration, and the Federal Housing Finance Agency.

2 Confirmation, Portfolio Reconciliation, Portfolio Compression, and Swap Trading Relationship Documentation Requirements for Swap Dealers and Major Swap Participants, 77 Fed. Reg. 55904 (Sept. 11, 2012).

3 Available at:

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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