OTC Derivatives Regulators Group: Report to the G20 Heads of State summit of 5/6 September 2013

05 September 2013

The ODRG published its report on agreed understandings to resolving cross-border conflicts, inconsistencies, gaps and duplicative requirements.

OTC derivatives reform

The Principals recognise that absent appropriate coordination, their respective cross-border rules and implementation schedules could cause market disruption and fragmentation, reduced liquidity in certain markets, and the concentration of risks within certain jurisdictions.

Considerable achievements have been made

The Principals acknowledge that despite the differing timelines for regulatory reform amongst their jurisdictions, much has been accomplished already. As likely will be set forth in the FSB Sixth Progress Report on Implementation of OTC Derivatives Market Reforms, which is due to be published in September 2013, legislative reform is complete or underway, and rulemaking should be complete in all their jurisdictions in 2014 or early 2015. Accordingly, OTC derivatives reform is well underway in their jurisdictions.

Understandings of the Principals

Differences in regulation can result when laws and regulations are developed within distinct legal structures. The following understandings have been reached within the context of complex regulatory differences. The Principals have reached a number of substantive understandings to improve the cross-border implementation of OTC derivatives reforms, and these are set out below [abridged].

• Consultation and communication when equivalence or substituted compliance assessments are being undertaken is essential.
• A flexible, outcomes-based approach should form the basis of final assessments regarding equivalence or substituted compliance.
• A stricter-rule approach would apply to address gaps in mandatory trading or clearing obligations.
• There is a framework for consultation among authorities on mandatory clearing determinations.
• Jurisdictions should remove barriers (1) to reporting to trade repositories by market participants with particular attention to removing barriers to reporting counterparty data and (2) to access to trade repository data by authorities.
• There should be appropriate transitional measures and a reasonable but limited transition period for foreign entities

Additional topics for further discussion by Principals

The Principals agree that further work is required to address certain additional topics. These topics seek to address identified issues, including those set out below, to provide greater legal certainty to market participants while respecting the jurisdiction of each authority and to meet the G20’s underlying objectives of improving transparency in the derivatives markets, mitigating systemic risk, and protecting against market abuse.

• Authorities’ access to registrant information: Direct access to registrant information, including books and records, is a requirement in some jurisdictions. Blocking statutes and data protection laws however, may limit or prevent cross-border direct access in some jurisdictions.
• Foreign Bank Branches and Guaranteed Subsidiaries: When bank branches and guaranteed subsidiaries transact in foreign jurisdictions risk can flow back to the jurisdiction of the parent entity. Inconsistent treatment of bank branches and guaranteed subsidiaries across jurisdictions could result in opportunities for regulatory arbitrage.

Next Steps

The Principals agree to deal pragmatically through the ODRG, other multilateral groups, and/or on bilateral bases, as needed, with a view to ensuring that the G20 goals are met while also aiming to minimise disruption and legal uncertainty.

Recognising that challenges continue to arise in the implementation of OTC derivatives reforms, the resolution of the unresolved issues is important. While the Principals recognise that implementation of OTC derivatives reform raises many legal and operational challenges for their jurisdictions, open communication is vital to ensure there is common understanding of each jurisdiction’s processes and timelines, and flexibility in application of cross-border regulation will also be needed to make progress toward cross-border consistency.

Full report

See also ODRG's public statement on 20 September meeting - published 3.10.13

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