D: +1 (212) 225-2809 [email protected] August 10, 2021 Vanessa Countryman Secretary U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 Re: Substituted Compliance Application for Swiss Bank Security-Based Swap Dealers from Certain Requirements under Exchange Act Section 15F and Regulations Thereunder Dear Ms. Countryman: We are submitting this application on behalf of UBS AG and Credit Suisse AG to request that the Securities and Exchange Commission (“Commission” or “SEC”) make a determination with respect to the risk control, recordkeeping and reporting, and internal supervision and compliance requirements under Swiss law specified herein that compliance with these Swiss law requirements by systemically important banks organized in Switzerland and subject to the oversight of the Swiss Financial Market Supervisory Authority (“FINMA”) satisfies the analogous requirements applicable to a security-based swap dealer (“SBSD”) that has a Prudential Regulator under Sections 15F of the Securities Exchange Act of 1934 (“Exchange Act”) and regulations thereunder. While the substance of the enclosed application would be relevant for all Swiss firms meeting the above criteria, it is tailored to the activities of UBS AG and Credit Suisse AG. We would note in this regard that we are not requesting substituted compliance for certain SBSD obligations owing to the fact that both UBS AG and Credit Suisse AG have a Prudential Regulator as defined by the Exchange Act. The enclosed application proceeds in four sections, with each section responsive to one or more of the elements of a substituted compliance application described in the Commission staff’s guidance, Elements of an Application for Substituted Compliance for Foreign Security-Based Swap Dealers and Major Security-Based Swap Participants:1 Section I responds to element one of the staff’s guidance by describing the scope of this substituted compliance request. Section II addresses elements two and three of the staff’s guidance together by describing the Exchange Act requirements and relevant Swiss law requirements, as well as analyzing the comparability between the two. Section III addresses element four of the staff’s guidance by including information compiled by UBS AG and Credit Suisse AG as well as further information from FINMA, in each case relating to FINMA’s supervisory compliance program and enforcement authority. Section IV addresses element five of the staff’s guidance, containing the certifications by UBS AG and Credit Suisse AG and opinion of Swiss counsel described in Exchange Act Rule 3a71-6(c)(2)(ii). UBS AG and Credit Suisse AG recognize that these certifications and the opinion of counsel are limited in scope to matters relevant to this substituted compliance application, whereas the certifications and opinions that UBS AG and Credit Suisse AG will be required to provide pursuant to Exchange Act Rule 15Fb2-4(c) as part of their applications for registration will not be so limited. UBS AG and Credit Suisse AG each represent that, on and after November 1, 2021 for so long as each is registered as a security-based swap dealer, the assumptions set forth in the opinion of counsel set forth in Section IV (other than assumptions 5.6, 5.8, 5.9, and 5.14, which pertain to matters regarding the SEC and FINMA) will be true and accurate in all material respects. With regards to the remaining elements of the staff’s guidance, it is our understanding that Commission staff and FINMA have been separately engaged in discussions to address supervisory and enforcement arrangements between the Commission and FINMA addressing matters arising under the requested substituted compliance determination (element six of the staff’s guidance). 1 The enclosed application also includes an Annex setting forth certain defined terms and citations. We welcome the opportunity to discuss the application and its contents with Commission staff in further detail. Please do not hesitate to reach out with any questions or concerns. Sincerely, Colin D. Lloyd I. Element One: Scope of this Substituted Compliance Request We are submitting this substituted compliance application with regards to UBS AG and Credit Suisse AG, which for the purpose of this application includes any foreign branches of both entities (collectively, “Swiss banks”). Under Swiss law, the Swiss National Bank (“SNB”) is empowered to define whether a bank is systemically important, and such banks are subject to enhanced requirements regarding capital, liquidity, risk, and organization.1 In 2012, SNB issued decrees designating UBS and Credit Suisse as financial groups of systemic importance.2 Swiss banks are subject to comprehensive supervision and examination by their home country regulator, FINMA. The BA provides that a bank requires a banking license from FINMA in order to conduct banking activities and to register as a bank in the Swiss Commercial Register. As pre-requisites for obtaining and maintaining a banking license, a Swiss bank has to comply with comprehensive capital, liquidity, risk, risk management and risk control, organizational as well as governance requirements. As laid out in detail in the substantive sections below, this application seeks comparability determinations by the Commission between requirements under Swiss law applicable to a Swiss bank on an entity-wide basis and certain parallel provisions of the Exchange Act and Commission regulations thereunder eligible for substituted compliance under Exchange Act Rule 3a71-6(d). We note in this regard that we are not requesting substituted compliance for certain SBSD obligations, including (1) margin, capital and other SEC rules not applicable to SBSDs with a Prudential Regulator,3 and (2) SBSD external business conduct requirements.4 We note in this regard that both Credit Suisse AG and UBS AG only conduct SBS transactions facing U.S. customers through branches located outside of Switzerland (and UBS AG only conducts such transactions through its London branch, in particular). Accordingly, Swiss law provisions parallel to the SBSD external business conduct requirements are not applicable to such transactions and are therefore outside the scope of this application. 1 See BA Articles 8(3) and 9. 2 See SNB Press Release, Decrees issued by the Swiss National Bank concerning systemic importance (Dec. 20, 2012), available at https://www.snb.ch/en/mmr/reference/pre_20121220/source/pre_20121220.en.pdf. See also FINMA Resolution Report 2020 at 6 (Feb. 25, 2020), available at https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/finma-publikationen/resolution- bericht/20200225-resolution-bericht-2020.pdf?la=en (identifying UBS and Credit Suisse as the only two globally systemically important Swiss banks). Note also that pursuant to Article 2 and Appendix 3 of the BO, FINMA assigns its supervised banks and securities firms to one of five categories, with Category 1 including large institutions that could potentially destabilize the Swiss financial system. UBS AG and Credit Suisse AG have been designated as a Category 1 institution. 3 Specifically, the following rules are eligible for substituted compliance but do not apply to prudentially regulated SBSDs: (1) capital requirements: Exchange Act Rules 18a-1; (2) margin requirements: Exchange Act Rule 18a-3; (3) certain recordkeeping requirements: Exchange Act Rules 18a-5(a)(2), (8), (9) and (12), 18a-6(b)(1)(ii), (iii), (v), (viii) (except for requirements regarding preserving the segregation-related possession or control information), (ix), and (x); and (4) certain recording requirements: Exchange Act Rules 18a-7(b)(1) and (2) and (c), 18a-8(a)(1) and (e), and 18a-9. 4 Specifically, Exchange Act Rules 15Fh-3(b) through (g) are eligible for substituted compliance but generally apply only to a non-U.S. SBSD’s activities involving U.S. counterparties (unless the transaction is arranged, negotiated or executed in the United States). 1 II. Elements Two and Three: U.S. Requirements for Which UBS AG and Credit Suisse AG Request Substituted Compliance, Swiss Requirements that are Comparable to Such U.S. Requirements, and How They are Comparable This section describes relevant Exchange Act requirements applicable to SBSDs, and for which we request substituted compliance, as well as analogous Swiss law obligations, and further explains how those requirements are comparable. We note that Swiss law and regulation are in general issued in principle-based form. Therefore, certain requirements and obligations are not explicitly worded in the legal text, but are implemented in practice. FINMA has the authority to issue circulars through which statutory provisions are further detailed and implemented in practice. Although in a strictly legal sense these circulars merely represent FINMA’s standard interpretation of how the law should be understood and implemented in the banking practice, such circulars are binding for the supervised entities as well as FINMA itself. FINMA also uses “newsletters” to communicate important information to supervised institutions, providing them with guidance on regulatory matters (supervisory guidance). Such newsletters are binding for FINMA in their supervision activity and FINMA may only deviate from statements in such newsletters in exceptional circumstances. Courts in practice honor FINMA circulars as expressions of FINMA’s discretion as specialized expert authority and would not deviate from a rule expressed in such a circular. Courts also rely on “explanatory reports”