There were a number of new developments with respect to the cross-border application of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) requirements for swaps in the latter part of 2013.  This Legal Alert summarizes the developments and should be considered an update of our August 2013 Legal Alert titled An End-User’s Guide to the CFTC’s Final Cross-Border Guidance (the “August Cross-Border Legal Alert”), which focused on the U.S. Commodity Futures Trading Commission’s (“CFTC”) final interpretive guidance concerning the cross-border application of the Dodd-Frank Act (the “Interpretive Guidance”) from an end-user’s perspective.  For the purpose of this Legal Alert, we use the term “end-user” to refer to any entity that is not registered as a swap dealer or major swap participant with the CFTC.

CFTC Staff Attempts to Close a Perceived “Loophole” in the Interpretive Guidance

1. Advisory 13-69

On November 14, 2013, the CFTC’s Division of Swap Dealer and Intermediary Oversight (“DSIO”) released a “CFTC Staff Advisory No. 13-69” (the “Advisory 13-69”) to clarify the scope of the Interpretive Guidance as it applies to non-U.S. Persons, that are registered as swap dealers, when they trade with non-U.S. Persons using personnel in the United States.¹

Advisory 13-69 stipulates that a registered swap dealer that is a non-U.S. Person is required to comply with the Dodd-Frank Act “Transaction-Level Requirements” when entering into a swap with another non-U.S. Person if the swap is “arranged, negotiated, or executed by personnel or agents” of the non-U.S. Person swap dealer in the United States.² This is a significant departure from one of the key aspects of the Interpretive Guidance, which is whether the Dodd-Frank Act requirements apply to a particular person depends on whether the person is or is not a U.S. Person.  According to Advisory 13-69, such departure is merited because the CFTC “has a strong supervisory interest in swap dealing activities that occur within the United States, regardless of the status of the counterparties.”

Although not expressly stated, Advisory 13-69 is an attempt by the CFTC staff to close what it perceives to be a loophole in the Interpretive Guidance, which is that non-U.S. Person registered swap dealers can utilize U.S. personnel to trade with non-U.S. Persons and nevertheless avoid U.S. regulation. 

2. Temporary Relief and Request for Public Comments

Following receipt of significant pushback from market participants in response to Advisory 13-69, on November 26, 2013, the CFTC staff issued a no-action letter that afforded relief from Advisory 13-69 until January 14, 2014.  Specifically, the November 26 letter afforded: (1) limited relief from the Transaction-Level requirements for trades between non-U.S. Person registered swap dealers;³ and (2) complete relief from the Transaction-Level Requirements for swaps between non-U.S. Person registered swap dealers and non-U.S. Person end-users.  The CFTC staff extended the relief afforded in the November 26 letter in a subsequent no-action letter, dated January 3, 2014, until September 15, 2014.  The extension is intended to afford non-U.S. Person registered swap dealers time to adopt systems and processes to comply with the Transaction-Level requirements, if required to do so pursuant to Advisory 13-69.

Concurrent with the issuance of the January 3 no-action letter, the CFTC requested public comments in response to Advisory 13-69.  Among the questions asked by the CFTC is whether substituted compliance should be available for trades that would be subject to the Transaction-Level Requirements as a result of Advisory 13-69.  The request was published in the Federal Register on January 8, 2014, and comments are due by March 10, 2014. 

3. Industry Challenge to Advisory 13-69

On December 4, 2013, the International Swaps and Derivatives Association, Inc. (“ISDA”), the Securities Industry and Financial Markets Association (“SIFMA”) and the Institute of International Bankers (“IIB”) jointly filed a lawsuit in the District of Columbia U.S. District Court requesting that that court vacate the Interpretive Guidance.  The lawsuit alleges, among other things, that the CFTC violated the Administrative Procedure Act by: (1) issuing the Interpretive Guidance as guidance rather than as a rule; and (2) failing to conduct appropriate cost-benefit analysis.

The lawsuit requests that the District Court: (1) vacate the Interpretive Guidance; (2) declare that the Interpretive Guidance was not promulgated in accordance with law and is arbitrary and capricious; and (3) enjoin the CFTC from implementing, applying or taking any action whatsoever to enforce the Interpretive Guidance until such time as the CFTC promulgates a cross-border rule that is consistent with the Administrative Procedure Act. 

It is impossible to predict whether the ISDA/SIFMA/IIB lawsuit will be successful.  However, two bad facts for the CFTC are that: (1) the Securities and Exchange Commission has proposed to issue cross-border guidance in the form of a rule, rather than guidance; and (2) European regulators have publicly stated that the CFTC has violated a path forward agreement put in place earlier this year with respect to how the Dodd-Frank Act requirements will be harmonized with European regulations.

4. Implications of Advisory 13-69 for End-Users

Advisory 13-69 focuses on non-U.S. Person registered swap dealers who trade with non-U.S. Persons through their agents or personnel in the United States.  It is premised on the CFTC having supervisory interest over swap dealing activity occurring in the United States.  Accordingly, Advisory 13-69 is not directly applicable to non-U.S. Persons that are end-users.

However, to the extent that a non-U.S. Person end-user faces a non-U.S. Person registered swap dealer as its counterparty, such non-U.S. Person end-user may be required to comply with certain of the Transaction-Level Requirements (e.g., clearing) or, at a minimum, take steps to facilitate its swap dealer counterparty’s compliance with the Transaction-Level Requirements (e.g., trade documentation) if the trade is “arranged, negotiated, or executed by personnel or agents” of the non-U.S. Person swap dealer in the United States.  Nevertheless, pursuant to the no-action relief described above, this would not be the case until September 15, 2014.

CFTC Issues Substituted Compliance Determinations

On December 20, 2013, the CFTC issued substituted compliance determinations with respect to the application of certain of the Dodd-Frank Act requirements for swaps.  One set of determinations provides that registered swap dealers and major swap participants that are located in Australia, Canada, the European Union, Hong Kong, Japan and Switzerland (collectively, the “Six Jurisdictions”) may, in lieu of complying with certain Dodd-Frank “Entity-Level Requirements,” comply with the corresponding swaps requirements in those jurisdictions (the “Entity-Level SC Determinations”).⁴  In addition, the CFTC issued substituted compliance determinations with respect to the application of certain Transaction-Level Requirements in the European Union and Japan (the “Transaction-Level SC Determinations”).

1. What Is Substituted Compliance and When Is It Available?

The Interpretive Guidance provides that, in certain instances, a person may satisfy certain of the Dodd-Frank Act requirements by complying with the corresponding requirements of its jurisdiction, but only if the CFTC has issued a determination finding that such corresponding requirements are comparable to the relevant Dodd-Frank Act requirements (i.e., a substituted compliance determination).

The tables below reflect where substituted compliance would be available for a particular set of Dodd-Frank Act requirements, contingent on the CFTC’s issuance of a substituted compliance determination.  Such requirements are designated in each of the tables with an “SC” and are highlighted in yellow.  In addition, in each of the tables: (1) “EU” stands for end-user; (2) a checkmark indicates that the relevant Dodd-Frank Act requirements for swaps apply; and (3) “NA” indicates that the relevant Dodd-Frank requirements for swaps do not apply. 

Notwithstanding the above (and as reflected in the tables below) issuance of a substituted compliance determination by the CFTC is not required in all circumstances.  The Interpretive Guidance provides that, with respect to the Transaction-Level Requirements, foreign branches of U.S. Person registered swap dealers may engage in substituted compliance, even in the absence of a substituted compliance comparability determination from the CFTC, if certain criteria are met.⁵

TABLE 1. U.S. PERSON END-USER

TABLE 2. NON-U.S. PERSON END-USER

^{­^}A foreign branch may comply with a foreign jurisdiction’s rules instead of the Dodd-Frank Act’s requirements for swaps, even absent a substituted compliance determination from the CFTC, provided that the U.S. Person swap dealer or major swap participant meets certain criteria.
^*Except for large trader reporting.

TABLE 3. NON-U.S. PERSON END-USER THAT IS GUARANTEED BY, OR AN AFFILIATE CONDUIT FOR, A U.S. PERSON(S)

^{­^}A foreign branch may comply with a foreign jurisdiction’s rules instead of the Dodd-Frank Act’s requirements for swaps, even absent a substituted compliance determination from the CFTC, provided that the U.S. Person swap dealer or major swap participant meets certain criteria.
^† Except for general reporting.
^*Except for large trader reporting.

2. The Entity-Level SC Determinations
    

1) The Category 1 Entity-Level Requirements

As reflected in Appendix B below, the Entity-Level SC Determinations apply only to swap dealers and major swap participants in one of the Six Jurisdictions, and only with respect to certain of the Category 1 Entity-Level Requirements.

The following are omitted from the Entity-Level SC Determinations:

• CFTC regulation 23.600(c)(2), which requires swap dealers and major swap participants to file periodic risk exposure reports with the CFTC;
• CFTC regulation 23.608, which establishes certain restrictions on who swap dealers or major swap participants may have business relationships with; and
• Solely with respect to swap dealers and major swap participants located in Hong Kong and Switzerland, CFTC regulation 23.609, which imposes clearing member risk management requirements. 

Accordingly, all non-U.S. Person swap dealers and major swap participants will still be required to comply with these requirements.  The CFTC staff has afforded no-action relief to swap dealers and major swap participants located in Australia, Canada, the European Union, Japan and Switzerland with respect to these requirements.  The relief will remain in effect until March 3, 2014.⁶

To the extent that a swap dealer or major swap participant is not eligible for substituted compliance (e.g., because it is not located in one of the Six Jurisdictions), or the time-limited relief referenced in the preceding paragraph, compliance with the Category 1 Entity-Level Requirements is required in accordance with the Interpretive Guidance.

2) The Category 2 Entity-Level Requirements

The Entity-Level SC Determinations do not apply with respect to the Category 2 Entity-Level Requirements.  However, CFTC staff has afforded no-action relief, with respect to the reporting requirements under Parts 45 (general reporting) and 46 (historical reporting) of the CFTC’s regulations, to non-U.S. Person swap dealers and major swap participants located in Australia, Canada, the European Union, Japan or Switzerland.  The relief will remain in effect until the earlier of: (1) December 1, 2014; and (2) thirty days following the issuance of a substituted compliance determination with respect to those requirements, but only if the non-U.S. Person swap dealer’s or major swap participant’s counterparty is not a guaranteed affiliate of, or affiliate conduit for, a U.S. Person(s).  Where a non-U.S. Person swap dealer’s or major swap participant’s counterparty is a guaranteed affiliate or affiliate conduit, the no-action relief will remain in effect until March 3, 2014, with respect to the Part 45 requirements and April 2, 2014, with respect to the Part 46 requirements.

To the extent that a swap dealer or major swap participant is not eligible for substituted compliance (e.g., because it is ineligible for the aforementioned relief afforded by the CFTC), compliance with the reporting requirements under Parts 45 and 46 of the CFTC’s regulations is required in accordance with the Interpretive Guidance.

3) Implications of the Entity-Level SC Determinations for End-Users

The Entity-Level SC Determinations do not directly apply to, or affect, end-users.  However, end-users may be indirectly affected, depending on the status and location of their counterparties.

c. The Transaction-Level SC Determinations

Concurrently with the issuance of the Entity-Level SC Determinations, the CFTC issued substituted compliance determinations with respect to certain of the Category A Transaction-Level Requirements.  These determinations are limited to the European Union and Japan.  Compliance with the Transaction-Level Requirements that are not addressed in the Transaction-Level SC Determinations continues to be required of swap dealers and major swap participants in the European Union and Japan, in accordance with the Interpretive Guidance.  Moreover, non-U.S. Person swap dealers and major swap participants located in jurisdictions other than the European Union and Japan must comply with the Transaction-Level Requirements, also in accordance with the Interpretive Guidance, to the extent compliance is currently required.⁷

1) The European Union

The CFTC determined that swap dealers and major swap participants located in the European Union may comply with European Union law and regulations in lieu of complying with the following CFTC regulations:

• CFTC regulation 23.202, which imposes daily trading records requirements on swap dealers and major swap participants, except for CFTC regulations 23.202(a)(1) and 23.202(b)(1);
• CFTC regulation 23.501, which imposes trade confirmation requirements on swap dealers and major swap participants;
• CFTC regulation 23.502, which imposes portfolio reconciliation requirements on swap dealers and major swap participants;
• CFTC regulation 23.503, which imposes portfolio compression requirements on swap dealers and major swap participants; and
• CFTC regulations 23.504(b)(2) and 23.504(b)(4), which relate to confirmations and valuations, respectively.

2) Japan

The CFTC determined that swap dealers and major swap participants located in Japan may comply with Japanese law and regulations in lieu of complying with the following CFTC regulations:

• CFTC regulation 23.202, which imposes daily trading records requirements on swap dealers and major swap participants; and
• CFTC regulation 23.504, which imposes swap trading relationship documentation requirements on swap dealers and major swap participants, except for regulations 23.504(b)(5) and 23.504(b)(6), which require disclosures pertaining to orderly liquidation and clearing, respectively.

3) Implications for End-Users

The requirements that are the subject of the Transaction-Level SC Determinations do not apply directly to end-users.  However, they indirectly affect end-users in that swap dealers and major swap participants require end-users to make representations and enter into certain agreements to facilitate compliance with the requirements.  However, as a result of the Transaction-Level SC Determinations, such representations and agreements may no longer be necessary to the extent that an end-user’s swap dealer or major swap participant counterparty is eligible for substituted compliance. 

APPENDIX A

APPENDIX B

The Entity-Level SC Determinations apply as follows:⁹

¹ Please see the August Cross-Border Legal Alert for the definition of “U.S. Person.”