In the letter to the SEC, the concerns stem from the fact that in the proposed rulemakings on SDRs ESMA has not identified any reference to equivalency of regulatory regimes or cooperation with the authorities of the country of establishment of the non-resident SDRs. According to ESMA’s reading, non-resident SDRs are actually subject to a stricter regime than the resident ones, as they need to provide a legal opinion certifying that they can provide the SEC with prompt access to their books and records and that they can be subject to onsite inspections and examinations by the SEC.

In the letter to the CFTC, ESMA strongly encourages CFTC to consider a different regime than the one described in the proposed rulemakings. Accordingly, ESMA advises to contemplate a regime where foreign SDRs can register with the CFTC if the laws and regulations in a foreign jurisdiction are equivalent to the US ones and if a Memorandum of Understanding (MoU) between the CFTC and the relevant foreign authorities has been signed. That MoU would ensure access to all the information you would need for exercising the duties and would define the supervisory activities conducted on the foreign SDRs, e.g. with common on-site inspections. This regime would have the following advantages: 
i) facilitating cooperation among authorities from different jurisdictions; 
ii) ensuring the mutual recognition of swap data repositories; and
iii) establishing convergent regulatory and supervisory regimes which is necessary in a global market such as the OTC derivatives one.

Letter to the SEC

Letter to the CFTC