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CFTC Interprets and Issues No-action Relief from Certain Clearing and Trade Execution Requirements & Provides Further Brexit-Related Relief to Provide Market Certainty

CFTC Staff Provides Further Brexit-Related Relief to Provide Market Certainty

On December 4, the Commodity Futures Trading Commission’s (CFTC) Market Participants Division (MPD) and Division of Clearing and Risk (DCR) jointly issued no-action relief, effective immediately, to provide greater certainty to the global marketplace in connection with the withdrawal of the United Kingdom from the European Union. The relief permits market participants to transfer certain swaps to an affiliate without such swaps becoming subject to the CFTC’s swap clearing requirement or uncleared swap margin requirement. The relief applies to transfers that occur up to one year following the conclusion of the transition period.

The press release is available here.

CFTC Staff Letter 20-42 is available here.


CFTC Interprets and Issues No-action Relief from Certain Clearing and Trade Execution Requirements

On December 3, the Commodity Futures Trading Commission’s (CFTC) Division of Clearing and Risk (DCR) and Division of Market Oversight (DMO, and collectively, the Divisions) issued CFTC Letter No. 20-43, an interpretation regarding Sections 2(h)(1) and 2(h)(8) of the Commodity Exchange Act (CEA) and the CFTC regulations thereunder.

Section 2(h)(1)(A) of the CEA prohibits a person from engaging in a swap that is required to be cleared unless that person submits such swap for clearing to a derivatives clearing organization (DCO) that is either registered or exempt from registration under the CEA. CFTC Regulation 50.4 enumerates classes of swaps that are required to be cleared.

Section 2(h)(8) of the CEA requires that swap transactions that are subject to the clearing requirement must be executed on a designated contract market or a swap execution facility that is either registered or exempt from registration under the CEA, unless no such entities make the swap available for trade or the relevant swap transaction is subject to the clearing exception under CEA Section 2(h)(7).

At the request of the Chicago Mercantile Exchange, the Divisions confirmed that Sections (2)(h)(1) and 2(h)(8) of the CEA do not subject to the clearing and trade execution requirements certain swaps transactions entered into by a DCO to reduce and manage the risk associated with a clearing member default.

On the same day, the Divisions issued CFTC Letter No. 20-44, responding to a request from LCH Limited (LCH) on behalf of its futures commission merchant (FCM) clearing members, for relief from compliance with certain trade execution requirements under Section 2(h)(8) of the CEA. Specifically, LCH requested the Divisions to confirm that, in the event of a customer default, an FCM clearing member may effect swap transactions subject to the trade execution requirement under Section 2(h)(8) of the CEA without executing such transactions on (1) a swap execution facility (SEF); (2) a SEF that is exempt from SEF registration; or (3) a designated contract market.

CFTC Staff Letter 20-43 is available here.

CFTC Staff Letter 20-44 is available here.

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©2021 Katten Muchin Rosenman LLPNational Law Review, Volume X, Number 346
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About this Author

Kevin M. Foley, Finance Lawyer, Katten Llaw Firm
Partner

Kevin M. Foley has extensive experience in commodities law and advises a wide range of clients, both in the United States and abroad, on compliance with the Commodity Exchange Act and the rules of the Commodity Futures Trading Commission (CFTC) affecting traditional exchange-traded products, as well as the over-the-counter markets involving swaps and other derivative instruments. His clients include futures commission merchants, derivatives clearing organizations, designated contract markets, foreign boards of trade and an industry trade association.

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312-902-5372
Jun Qiu, Katten Law Firm, Finance Law Attorney, Chicago
Staff Attorney

Jun Qiu is a staff attorney in the Financial Services practice.

312-902-5378
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