“CFTC Issues Interpretive Guidance and Exemptive Order Regarding Cross Border Swap Regulations”
On July 12, 2013, the Commodity Futures Trading Commission approved interpretive guidance and a policy statement (together, the “Interpretive Guidance”) and an exemptive order (the “Exemptive Order”) regarding the cross-border application of the swap provisions of Title VII of the Dodd Frank Wall Street Reform and Consumer Protection Act.
As a means of transitional relief, the Exemptive Order provides market participants with temporary conditional relief from certain provisions of the Commodity Exchange Act from July 13, 2013 to December 31, 2013 (or such earlier date as may be specified by the Exemptive Order).
Subject to the transitional relief offered by the Exemptive Order, the Interpretive Guidance addresses a variety of issues related to cross-border derivative transactions, including the definition of a “U.S. person,” the calculation methodology for determining when a non-“U.S. person” is required to register with the CFTC as a Swap Dealer or Major Swap Participant, the circumstances under which a Swap Dealer or Major Swap Participant may comply with non-U.S. regulatory regimes in lieu of CFTC requirements, and the application of “entity-level” requirements and “transaction-level” requirements to non-“U.S. persons.”
This Stroock Special Bulletin, provides a general summary of the major provisions of the Exemptive Order and the Interpretive Guidance.