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Contents
- Preliminary Material
- Main Text
- I Introduction to OTC Derivatives Clearing in Europe
- 1 After the Dust Has Settled: Clearing OTC Derivatives in Europe after a Decade of Regulation
- 2 OTC Derivatives Clearing Explained
- 3 Development of the Regulatory Regime for OTC Derivatives Clearing
- Preliminary Material
- 1 Introduction
- 2 Early Efforts to Regulate OTC Derivatives Clearing
- 2.1 US Regulatory Efforts
- 2.2 First Steps toward International Standards: Basel and International Organization of Securities Commissions (IOSCO) 1995
- 2.3 LTCM
- 2.4 Further US Attempts to Regulate: 2000–2005
- 2.5 EU Tentative First Steps: Code of Conduct 2006
- 2.6 Financial Crisis of 2008
- 2.7 G20 Summit, Pittsburgh, September 2009
- 2.8 The Financial Stability Board (FSB)
- 2.9 Dodd–Frank Act 2009
- 2.10 Global Standards: Committee on Payments and Market Infrastructures (CPMI)–IOSCO Principles 2012
- 3 EMIR: The EU Regulation on OTC Derivatives Clearing
- 3.1 Preparing for Regulation in the EU, 2006
- 3.2 Commission’s Proposal for Regulating OTC Derivatives in the EU: EMIR 2010
- 3.3 Final Adoption by Council and EP EMIR 2012
- 3.4 UK–ECB Court Case on the ECB’s ‘Location Requirement’
- 3.5 EU–US ‘Cross-Border’ Discussions
- 3.6 CFTC Conditional Equivalence Decision 2016
- 3.7 EMIR Equivalence for Other Third Countries
- 4 ‘EMIR REFIT’ 2019
- 4.1 Public Consultation
- 4.2 Commission’s Legislative REFIT Proposal 2017
- 4.3 Financial Counterparties
- 4.4 Thresholds for Clearing and Margining
- 4.5 Removal of Frontloading
- 4.6 Streamlined Reporting Requirements
- 4.7 Trade Repository (TR) Data Reconciliation and Access
- 4.8 FRANDT Requirements
- 4.9 Suspension of the Clearing and Trading Obligations
- 4.10 Insolvency Risk
- 4.11 Post-Trade Risk Reduction Services
- 4.12 Treatment of Physically Settled Foreign Exchange (FX) Forwards and Physically Settled FX Swaps
- 4.13 Pension Scheme Arrangements
- 5 ‘EMIR 2.2’ 2017
- 5.1 Perceived Shortcomings of the Existing EMIR Regulation
- 5.2 ESMA’s New Supervisory Powers
- 5.3 Governance
- 5.4 Supervisory Powers: From Prior Consent to Comply or Explain
- 5.5 Role and Powers of the ECB
- 5.6 Third-Country CCPs
- 5.7 Tiering Procedure
- 5.8 Requirements for Tier 2 CCPs
- 5.9 Requirements for Substantially Systemically Important CCPs
- 5.10 Commission 2022 Proposal to Amend EMIR and Strengthen the EU Clearing System
- 6 CCP Recovery and Resolution 2020
- 6.1 Background
- 6.2 EP and Council Support for Work
- 6.3 Scope
- 6.4 Prevention and Preparation: Recovery Plans
- 6.5 CCP Recovery Measures
- 6.6 Second Skin in the Game (SIG)
- 6.7 Early Intervention
- 6.8 Resolution Plans
- 6.9 Triggering Resolution
- 6.10 Resolution Tools
- 6.11 No creditor worse off (NCWO)
- 6.12 Equity in Resolution
- 6.13 Resolution Colleges
- 6.14 ESMA’s Role
- 7 Conclusion
- II Structural Elements of Clearing
- 4 CCP Access Structures
- 5 Clearing Mechanics
- Preliminary Material
- 1 Introduction
- 2 Clearing Mandate
- 3 Legal Aspects of a CCP
- 4 Novation
- 4.1 Counterparty Substitution Stage: Multilateral Netting by Novation and Substitution
- 4.2 Multilateral Netting Stage
- 4.3 Practical Implications
- 4.4 The Two Novations in Multilateral Netting by Novation and Substitution
- 4.5 Purpose of Netting by Novation and Substitution
- 4.6 The Steps Involved in Multilateral Netting by Novation and Substitution
- 4.7 Effect of an Intervening Bankruptcy
- 5 Open Offer
- 6 Legal Distinction between Novation and Open Offer
- 7 Summary and Conclusions
- 6 OTC Derivatives Clearing and Collateral Management
- Preliminary Material
- 1 Introduction
- 2 Moving (Some) OTC Derivatives to CCPs
- 3 Under-collateralization in the OTC Derivatives Market
- 4 Interoperability
- 5 Sizeable Collateral Requirements
- 6 Central Bank Backstop
- 7 Central Bank Backstop with and without Interoperability
- 8 CCPs and Utilities
- 9 Decrease in Collateral Velocity (or Reuse Rate)
- 10 Case Study: Eurozone’s ‘Out-of-the-Money’ Derivatives When Interest Rates Rise
- 11 Case Study: Brexit Swaps Moving to Eurozone—Netting Fragmentation
- 12 The Case of Brazil’s Brasil Bolsa Balcão S.a. or B3 (Formerly BM&FBovespa)
- 13 The Case of US Treasuries ‘Clearing’ CCP Route vs Taxpayer ‘Put’
- 14 Policy Issues
- 7 What Kind of Thing Is a Central Counterparty?: The Role of Clearing Houses as a Source of Policy Controversy
- Preliminary Material
- 1 Introduction
- 2 Potential Roles for Clearing Houses
- 3 The Governance of Different Types of Entity
- 4 CCP Risks and Their Mitigation
- 5 Stakeholder Rights in the Governance of CCPs
- 6 CCP Governance, Disclosure, and Access: Regulatory Requirements and Current Practice
- 7 Conflicts in Central Clearing
- 7.1 Skin in the Game: Shareholders vs Clearing Members
- 7.2 The Treatment of CCP Equity in Resolution: Shareholders vs Clearing Members
- 7.3 Membership Requirements: Shareholders, Clearing Members, Regulators vs Clients, Potential Clearing Members, Regulators
- 7.4 The Pursuit of Profit: Shareholders vs Clearing Members
- 7.5 The Responsibility for Systemic Liquidity Risk: Shareholders and Clearing Members vs Regulators and Clients
- 7.6 The Persistence of Stakeholder Conflicts
- 8 The Roles of Clearing Houses
- 9 Taking the Role Seriously
- 10 Conclusions
- 8 OTC Derivatives Clearing Documentation
- Preliminary Material
- 1 Introduction to OTC Derivatives Clearing Documentation
- 2 Clearing Models: Principal-to-Principal vs Agency
- 3 Role of the CCP: An Overview
- 4 The CM vs CCP Relationship
- 5 The CCP and CM Account Structures and Written Disclosure Requirements
- 6 The Client vs CM Relationship
- 7 Execution Agreement: The CDEA
- 8 Client-Clearing Agreements: An Overview
- 9 The Addendum
- 9.1 Structure and Scope
- 9.2 Key Terms and Negotiating Positions
- 9.3 Key Terms Relating to the Role of the CM as the ‘Riskless Principal’
- 9.4 Pre-default Porting/Transfer of Positions in Absence of Default
- 9.5 Early Termination Following Default
- 9.6 Early Termination in Circumstances Other than Default
- 9.7 Offsetting Transactions
- 9.8 Other Key Terms
- 10 Addendum: Collateral
- 11 Legal Opinions
- 12 Recent Developments and Other Considerations
- 13 Final Remarks
- 9 Capital Requirements for Bank Exposures to CCPs
- Preliminary Material
- 1 Introduction
- 2 Overview of the Treatment of Exposures towards CCPs
- 3 On the Treatment of Exposures to Qualifying CCPs
- 4 On the Treatment of Exposures to Non-qualifying CCPs
- 5 On the Treatment of Bilaterally Cleared Transactions
- 6 Other Areas of the Basel Framework Influenced by Central Clearing
- 7 Last Considerations
- III Default Management
- 10 Segregation and Portability of Cleared OTC Derivatives in Europe
- Preliminary Material
- 1 Introduction
- 2 Policy Objective
- 3 Client Assets under EMIR
- 4 Segregation Models
- 4.1 Segregation at Custodial Level
- 4.2 House Accounts
- 4.3 Client Accounts
- 4.3.1 Individual client segregation
- 4.3.2 Excess margin
- 4.3.3 Exceptions to Art. 39(6)
- 4.3.4 Premium protections
- 4.3.5 Omnibus client segregation
- 4.3.6 Fellow customer risk
- 4.3.7 Omnibus models in practice
- 4.3.8 Individually segregated positions with value segregation
- 4.3.9 Omnibus net model
- 4.3.10 Omnibus gross model
- 4.3.11 Example
- 4.4 Indirect Client Accounts
- 5 Portability
- 6 Conclusion
- 11 Default Management
- 12 Recovery and Resolution of CCPs
- Preliminary Material
- 1 Introduction
- 2 A Few Initial General Comments
- 2.1 Inspiration from the BRRD: Uncertainties about Practical Workability
- 2.2 Differing Circumstances in Which a CCP May Fail as Compared to Those in Which a Bank May Fail
- 2.2 The Impact of Recovery and Resolution on Clients of CMs
- 2.4 Is a Correct Loss-Allocation Balance Reached?
- 2.5 Resolution Colleges
- 2.6 Resolution of CCPs Part of a Group
- 2.7 Government Stabilization Measures
- 2.8 Government Stabilization Measures Prior to Resolution
- 2.9 Government Stabilization Measures for CCPs in Resolution Mode
- 2.10 Brexit Consequences
- 3 Recovery Planning
- 4 Resolution Planning
- 5 Resolvability
- 6 Early Intervention
- 7 Resolution
- 8 Resolution Tools
- 9 Powers of the Resolution Authority
- 10 Non-applicability of the BRRD
- 11 Remedies
- 12 Conclusion
- 10 Segregation and Portability of Cleared OTC Derivatives in Europe
- IV The Transaction Chain
- 13 Clearing and Trading and Settlement
- 14 Open Access for OTC Derivatives: Concept and Implications
- V Cross-Border Issues
- 15 Cross-Border Clearing
- Preliminary Material
- 1 Introduction and General Comments
- 2 Legal and Regulatory Frameworks
- 3 Capital Requirements in the Cross-Border Context
- 4 Interoperability
- 5 Bases between CCPs
- 6 Choice of CCPs
- 7 Access to the CCP
- 8 Operational and Commercial Considerations Linked to Cross-Border Clearing
- 9 Cross-Border Risk Management Considerations
- 10 Cross-Border Crisis Management
- 11 Clearing in Small or Closed Jurisdictions
- 16 Brexit: Equivalence; Location Policy
- 15 Cross-Border Clearing
- VI The Future of OTC Derivatives Clearing in Europe
- 17 Potential Impact of the Distributed Ledger Technology on OTC Derivatives Markets
- 18 The Future of Centrally Cleared OTC Derivatives Markets
- Preliminary Material
- 1 Introduction
- 2 Emerging Risks
- 3 Cross-Border Regulatory and Supervisory Approach towards CCPs
- 4 CCP Governance
- 5 Conclusions
- I Introduction to OTC Derivatives Clearing in Europe
- Further Material