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The aim of the paper is to explain the joint final rules adopted on April 18, 2012 by the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) further defining the major categories of swap and security‐based swap market participants, “swap dealer“, “security‐based swap dealer”, “major swap participant”, “major security‐based swap participant” and “eligible contract participant” and to explain the process of evaluating a party's status under the rules.

The paper provides the statutory definition of a dealer, and explains the CFTC's and the SEC's interpretive guidance, including four tests and a discussion of the CFTC and SEC dealer trader distinctions, swaps not considered in determining dealer status, and a de minimis exception. It provides the statutory definition of a major participant, along with the four major categories of swaps and an explanation of the “substantial position”, “substantial counterparty exposure” and “highly leveraged” criteria, along with the exclusion of positions held for hedging or mitigating commercial risk from the substantial position analysis. A Dodd‐Frank amended definition of an eligible contract participant (ECP) along with the final ECP rules is provided.

All swap market participants will need to know whether they qualify as one of these entities because each type of entity figures prominently in the new swap market requirements imposed by the Dodd‐Frank Act.

The paper provides practical guidance from experienced financial services lawyers.

The purpose of this paper is to explain a final rule adopted by the SEC and the CFTC that clarifies Dodd‐Frank Act definitions for the new terms “swap dealer,” “security‐based swap dealer,” “major swap participant” and “major security‐based swap participant (together “regulated swap entities”), and an amended definition of the term “eligible contract participant,” and the implications of those definitions.

The paper explains the definitions of “swap dealer,” “security‐based swap dealer,” “major swap participant” and “major security‐based swap participant” and how those definitions affect market participants; extraterritorial reach of regulated swap entity regulation; and the amended definition of the term “eligible contract participant.”

The adoption of the Final Rule is important to swap market participants because it provides firm definitional guidance on the criteria that make one a regulated swap entity subject to registration with the CFTC and/or the SEC and the many responsibilities, obligations, and restrictions that come with substantive regulation, including capital and margin requirements, business conduct rules, conflict of interest rules, chief compliance officer requirements, reporting obligations, and recordkeeping requirements.

The paper provides practical guidance from experienced financial services lawyers.

The purpose of this paper is to answer a specific research question: How have EU and US regulators translated the idea of central clearing into law?

A meticulous legal research is carried out. First, the pre‐crisis regulatory regime for credit default swap (CDS) is reviewed, from a securities law angle as well as from a comparative Euro‐American perspective. Next, the regulatory processes leading to the adoption of the central clearing regulations are discussed. Thereafter, a material comparative analysis is made of the provisions related to central clearing in the EU and US regulatory initiatives. Finally, the paper is concluded with an evaluation of both legislations in the light of all previous analyses.

The research first shows that central clearing regulations rely on a series of presumptions, both concerning the gravity of counterparty risk threats and the necessity of central clearing. Additionally, the EU and US clearing regulations are similar with regard to the broad innovations they introduce, i.e. the mandatory central clearing of a variety of over‐the‐counter derivatives and counterparty risk management requirements for central clearing institutions and for non‐cleared swaps. However, the specific content of the provisions often differs. Furthermore, both legislations are limited to enouncing broad principles. This is also the case for the crucial provisions related to counterparty risk management. Therefore, these provisions in se do not guarantee the proper regulation of counterparty risk management practices. Consequently, much is to be expected from the implementing measures adopted by regulatory institutions.

The paper provides an overview of those provisions in the European and US regulations that specifically concern central clearing for CDS. It is one of the first papers which does this in a very well‐structured and clearly written manner. Also it is one of the first to provide a clear comparison between the provisions in the EU and the US regulations.

To analyze the differences between the SEC’s newly adopted final business conduct rules for security-based swap dealers and major security-based swap participants under Section 15F(h) of the Securities Exchange Act of 1934 and the parallel rules promulgated under the Commodity Exchange Act by the CFTC with respect to swap dealers and major swap participants.

This article discusses select rules under each regulatory regime and highlights the major differences and potential effects of each.

This article concludes that while the SEC’s intent was to harmonize its final rules with the parallel CFTC rules, there are substantive differences between the two sets of rules that firms should consider when deciding how to structure their security-based swap dealer activities.

This article contains insightful analysis of the newly adopted SEC Business Conduct Rules and highlights some of the ways firms will likely be affected moving forward.

The purpose of this paper is to explain the rule recently published by the US Commodity Futures Trading Commission that establishes a timetable for the mandatory clearing of interest rate and credit default swaps through a clearinghouse.

The paper discusses the structure of cleared trades in swaps, the classes of interest rate and credit default swaps that are subject to mandatory clearing under the CFTC's new rule and the affirmative and negative specifications for each class, the phased approach adopted by the CFTC for the mandatory clearing compliance schedule, and the end‐user and inter‐affiliate exemptions from the mandatory clearing requirement.

“Centralized clearing,” a process in which bilaterally negotiated trades of derivatives have to be given up to a centralized clearinghouse, is a cornerstone of the new global regulatory system for derivatives. Its proponents argue that centralized clearing will help to mitigate systemic risk by helping counterparties identify and net positions. The paper outlines the clearing rules in the USA for interest rate and credit default swaps.

The paper provides expert guidance from experienced financial services lawyers.

This paper summarizes the requirements of rule amendments promulgated by the Commodity Futures Trading Commission (CFTC) in 2018 regarding the duties of Chief Compliance Officers (CCOs) of swap dealers, major swap participants, and futures commission merchants (collectively, Registrants) and the requirements for preparing, certifying and furnishing to the CFTC the CCO’s annual report.

This paper provides a close analysis of the CFTC’s final rule amendments that make clarifications regarding the CCO’s duties and seek to harmonize with similar rules of the Securities and Exchange Commission (SEC) applicable to security-based swap dealers.It also analyzes rule amendments for the CCO’s report that provide clarifications and simplify certain requirements.In each case, it discusses comments from the public and the CFTC’s responses to those comments.

This paper finds that the rule amendments provide a number of helpful clarifications and simplify certain existing requirements for Registrants and their CCOs subject to the rules.While the rules overall achieve greater harmonization with similar rules of the SEC governing CCOs of security-based swap dealers, this paper notes that care will need to be taken by CFTC Registrants who also become registered with the SEC to be cognizant of remaining differences between the CFTC’s and SEC’s rules in order to ensure compliance with the rules of each agency.

This paper provides valuable information regarding the duties of CCOs of Registrants and CCO annual report requirements from an experienced lawyer focused on commodities, futures, derivatives, energy, corporate, and securities regulatory matters.

To discuss the US Commodity Futures Trading Commission’s (CFTC’s) final rule regarding margin for uncleared swaps (the CFTC margin rule) and an interim final rule exempting non-financial and certain other end-users who are eligible for the end-user clearing exception from the scope of the CFTC margin rule, both adopted in December 2015.

Compares the CFTC margin rule to the similar “Bank margin rule”; explains what trades and types of entities are covered, the treatment of inter-affiliate swaps, the initial margin and the variation margin requirements, the types of collateral that can be posted, the required documentation, how netting is applied, the custodian requirements and the compliance dates.

The margin rules apply to uncleared swaps including cross-currency swaps, non-deliverable foreign exchange forwards and currency options. Exempt foreign exchange swaps and deliverable foreign exchange forwards are not required to be margined. Non-financial end-users who rely on the end-user exception are exempt from margin requirements.

Practical guidance from experienced financial services lawyers.

The purpose of this paper is to examine the probable structure of bilateral derivatives contracts following international regulatory reforms.

The theoretical context of the paper is private and meta‐regulation, which the author applies to a case study and current industry analysis.

While regulations are still being written, it is likely that elements of oversight for the bilateral derivatives market will involve enforced self‐regulation. When combined with more specific outcome‐oriented regulatory requirements, the industry is well‐suited to this type of coordinated regulatory regime.

In light of the uncertainty of derivatives regulation and the future size of the bilateral, over‐the‐counter (OTC) derivatives market, practitioners should consider a likely broader range of regulation structures.

The paper fills a gap in the literature about non‐traditional governance structures for the derivatives markets following the financial crisis. Rather than considering regulation on a light/heavy axis, the paper examines whether this segment of the market can sustain a process‐oriented regulatory arrangement.

The purpose of this paper is to describe the separate but related relief issued by the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) that permits the commingling and portfolio margining of centrally cleared credit default swap (CDS) positions held in customer accounts.

The paper provides a brief overview of the bifurcated approach taken to the regulation of CDS; explains the benefits of portfolio margining and the need for portfolio margining relief; and provides an overview of the relief provided by the SEC and CFTC.

The relief provided by the SEC and CFTC may contribute to the efficient use and allocation of capital by market participants; however, the SEC's and CFTC's orders are limited in scope only to CDS products, and the viability of the relief for CDS products will depend upon SEC approval of the margin methodology used by brokers to set margin levels for their customers.

The paper provides practical insights into first of its kind regulatory relief permitting commingling and portfolio margining of centrally cleared derivatives for customer accounts and the requirements incumbent on a market intermediary when implementing a program to commingle and portfolio margin centrally cleared CDS positions.

This paper aims to address amendments to the Commodity Futures Trading Commission (CFTC) recordkeeping rules that will require certain market participants to maintain records of all oral communications leading to the execution of a “commodity interest” transaction that are communicated by telephone, voicemail or mobile device. The paper also seeks to address the CFTC's revised rules expanding the current recordkeeping requirements to include written communications related to swap transactions.

The paper reviews the revised rules, adopting release and industry commentary and explains how the requirements of CFTC Regulations 1.31 and 1.35 will be applied to futures commission merchants (FCMs), certain introducing brokers (IBs), certain members of a designated contract market (DCM) or swap execution facility (SEF), and retail forex dealers (RFEDs).

FCMs, certain IBs, certain members of a DCM or SEF, and RFEDs must comply with the oral communications recordkeeping requirements no later than December 21, 2013. FCMs, IBs, all members of a DCM or SEF, and RFEDs must comply with the CFTC's revised recordkeeping rules for written communications no later than February 19, 2013.

All FCMs, IBs, members of a DCM or SEF, and RFEDs impacted by the rule should prepare to maintain records of all covered written and oral communications. If it is technologically or economically impractical for a market participant to comply with the requirement to record all oral communications that lead to a commodity interest transaction by the compliance date, the participant should request an alternative compliance schedule.

This paper provides practical guidance from experienced financial services lawyers.