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Dodd Frank Act Title VII: What You Need to Know

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Dodd Frank Act Title VII: What You Need to Know What You Need to Know about Dodd Frank Act – Title VII and the Swap Dealer status of Intesa Sanpaolo July 2020 CONTENTS 1. INTRODUCTION ....................................................................................................................................... 3 2. WHY THIS REGULATION? ........................................................................................................................ 4 3. COMPARE BETWEEN EMIR AND DFA ................................................................................................... 5 4. WHAT IS THE TERRITORIAL SCOPE OF DODD-FRANK ACT? .............................................................. 6 5. WHICH ENTITIES AND ORGANIZATIONS ARE IN THE SCOPE OF DFA? ............................................ 7 6. WHICH ARE THE PRODUCTS COVERED BY DFA? ............................................................................... 8 7. WHICH ARE THE OTC DERIVATIVES REQUIREMENTS? ........................................................................ 9 7.1 All market participant...................................................................................................................... 9 7.2 Major Swaps Participant (MSP)...................................................................................................... 9 7.3 Swap Dealer (SD) ............................................................................................................................. 9 8. WHICH ARE DFA PILLARS? ................................................................................................................... 11 8.1 Electronic trading via swap execution facilities (SEFs)............................................................ 11 8.2 Central clearing through central counterparties .................................................................... 12 8.3 Business conduct standards ......................................................................................................... 14 8.4 Reporting to swap data repositories (SDRs) and recordkeeping requirements reporting ................................................................................................................................................................. 17 9. BEHAVIOUR GUIDE FOR TRADING WITH US COUNTERPARTIES ...................................................... 22 10. GLOSSARY ........................................................................................................................................... 23 Copyright © 2014 by the International Swaps and Derivatives Association, Inc. and the Futures and Options Association. Neither the International Swaps and Derivatives Association, Inc. nor the Futures and Options Association, has reviewed or endorsed any modifications that may have been made to this document. Dodd Frank Act Title VII: What you need to know 1. INTRODUCTION “All standardized OTC derivative contracts should be traded on exchanges or electronic trading platforms, where appropriate, and cleared through central counterparties by end-2012 at the latest. OTC derivative contracts should be reported to trade repositories. Non-centrally cleared contracts should be subject to higher capital requirements.” Communiqué of the G20 Summit in Pittsburgh The information in this brochure is intended to give a general overview of the Title VII of the Dodd- Frank Wall Street Reform and Consumer Protection Act (commonly referred to as Dodd-Frank Act, DFA) that came into force in 2010 to regulate the U.S. financial sector1. This act is designed to solve the need of a comprehensive financial reform after the financial crisis of 2008-09. In particular, Title VII is concentrated on the OTC derivatives market that has been essentially unregulated for several years, allowing large institutions to take significant trading risks. This paper focuses on compliance challenges across OTC derivatives market participants: users, dealers and infrastructure providers. 1 For further details regarding detailed non-mentioned requirement in the present document, please refer to CFTC rulebook or to the email address provided at the end of the document. 3 Dodd Frank Act Title VII: What you need to know 2. WHY THIS REGULATION? The US government has responded to the financial crisis in 2008 with the Dodd-Frank Wall Street Reform and Consumer Protection Act. This consists in an over 8,000 pages long document focused on four key objectives: • Increase transparency of the Over the Counter (OTC) derivatives market; • Enhance consumer protection; • Minimize risk to the financial system and mitigate systemic risk; • Establish capital standards and regulation of big banks as financial safeguards to enhance private funds. Regarding to OTC, Dodd-Frank Act Title VII introduces some requirements which aim to: • Regulation of derivatives by the CFTC and/or SEC; • Move derivatives trading onto exchanges; • Margin requirements for cleared and uncleared swaps; • Registration required for Swap Dealers and Major Swap; • Increase transparency through more reporting to central repositories. 4 Dodd Frank Act Title VII: What you need to know 3. COMPARE BETWEEN EMIR AND DFA Both the European Union (EU) and the United States (US) have adopted the primary legislation which aims to fulfill the G20 commitments that all standardized over-the-counter (OTC) derivatives should be cleared through central counterparties (CCPs) by end of 2012 and that OTC derivatives contracts should be reported to trade repositories (and the related commitments to a common approach to margin rules for uncleared derivatives transactions). European Securities and Markets Authority (ESMA) in Europe and the Securities Exchange Commission (SEC) as well as the Commodities Futures Trading Commission (CFTC) in the US decide which derivatives are eligible and when the clearing obligation applies. Furthermore, they are also responsible for supervising these regulations. The US Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in July 2010 and the text of the EU Regulation on OTC Derivatives, CCPs and Trade Repositories (EMIR) was published in the Official Journal in July 2012. 5 Dodd Frank Act Title VII: What you need to know 4. WHAT IS THE TERRITORIAL SCOPE OF DODD-FRANK ACT? Dodd-Frank establishes the territorial scope of the CFTC’s and SEC’s jurisdiction over the Derivate market, with a focus on swap and security-based swaps market. Nevertheless, there are some exemptions: • the CFTC’s jurisdiction will not extend to activities outside of the U.S. unless they have a direct and a significant connection with activities in, or effect on, commerce of the U.S.; • the SEC’s regulations do not apply to any person who transacts a business in security- based swaps without the U.S. jurisdiction. Title VII of Dodd-Frank Act doesn’t provide a geographic scope by defining entity-related terms (i.e. U.S. person), but seemingly it has been designed to reach more broadly by focusing on whether the activities of a person or entity have a significant connection to the U.S. jurisdiction. Consequently, it doesn’t consider the mere geographic location of organization or entity itself, but the principles contained in Dodd-Frank apply wherever the current business of an entity is linked to the US, whether through US entities, US based resource, US assets or US counterparties. According to guidance from CFTC and SEC on the territorial scope provisions, the territorial scope of Dodd-Frank is not limited to the U.S. territory. In fact, where a US counterparty is transacting with a third country entity, the non-US counterparty would have to meet Dodd- Frank’s requirements. The third entity would be subject to Dodd-Frank regulation for central clearing, exchange/platform trading, reporting to trade repositories, margin, and standardization. 6 Dodd Frank Act Title VII: What you need to know 5. WHICH ENTITIES AND ORGANIZATIONS ARE IN THE SCOPE OF DFA? DFA provisions apply to users, dealers and infrastructure providers of the OTC derivatives market, as the followings: • Swap Data Repositories (SDRs); • Derivatives Clearing Organizations (DCOs); • Designated Contract Markets (DCMs); • Swap Execution Facilities (SEFs); • Swap Dealers (SDs); • Major Swap Participants (MSPs); • Swap counterparties who are neither swap dealers nor major swap participants, (“NONs”) – including Eligible Contract Participants (ECPs) and “without limitation” counterparties entitled to elect the clearing requirement exception. 7 Dodd Frank Act Title VII: What you need to know 6. WHICH ARE THE PRODUCTS COVERED BY DFA? Derivative instruments generally covered by DFA are the followings: all security-based products, listed Single Name Equity Futures and Options, Credit Default Swaps (Single Names and Narrow-Based Index), Equity Swaps (Single Names and Narrow-Based Index), Futures, Futures Options, Interest-Rate Swaps/Derivatives, Credit Default Swaps/Derivatives (Broad Based Indexes), Commodity Swaps/Derivatives, Equity Swaps/Derivative (Broad Based Indexes), Foreign Exchange Swaps/Derivatives (some exceptions). However, according to Swap Dealer Status of Intesa Sanpaolo, which is subject only to CFTC jurisdiction, derivatives asset classes under the DFA perimeter are: - Rates, - Currencies, - Non-deliverable forwards - Commodities, - Broad-based securities indices derivatives, and - Most indexed credit derivatives. Forex spot are out of the DFA scope. 8 Dodd Frank Act Title VII: What you need to know 7. WHICH ARE THE OTC DERIVATIVES REQUIREMENTS? 7.1 All market participant Any transaction
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