• Le très attendu projet de règlement sur l’inscription en dérivés, soit le projet de Règlement 93-102 sur l’inscription en dérivés, qui a été publié aux fins de commentaires le 19 avril, instaurera un nouveau cadre réglementaire visant le marché canadien des dérivés de gré à gré où, à l’heure actuelle, les courtiers et les conseillers effectuent des opérations essentiellement sans être astreints à des obligations d’inscription.
  • Même s’il imposera de nouvelles obligations, le règlement permettra d’uniformiser davantage le cadre réglementaire canadien qui mériterait d’être précisé.
  • La période de consultation se terminera le 17 septembre 2018.

Une traduction de ce billet sera disponible prochainement.

  • The long awaited draft derivatives registration rule, proposed National Instrument 93-102 Derivatives: Registration, released for comment April 19, will impose new regulatory requirements on the Canadian OTC derivatives market which currently operates largely free from dealer and advisor registration requirements.
  • While it comes with regulatory burdens, the rule will also bring some uniformity to what is a messy Canadian regulatory landscape.
  • The comment period is open until September 17, 2018.

Background

Currently no Canadian jurisdiction, other than Quebec, has a dealer or advisor registration regime tailored to participants in the OTC derivatives market. Securities legislation does in certain Canadian jurisdictions already require registration of derivatives dealers and advisors, but blanket exemptions are currently in place in most of those jurisdictions allowing them to deal with qualified parties without registration. This Registration Rule will provide for a derivatives specific registration regime and replace the existing exemptions.

(If you are most interested in the application of the rule to non-Canadian dealers, see our alternative piece – Non-Canadian Derivatives Dealers and Advisors Given a Lighter Touch under the Proposed Derivatives Registration Regime)

Triggers for Application

Applies to OTC derivatives (s. 3)

NI 93-102 will apply to those that advise or deal in derivatives. “Derivatives” for this purpose means “OTC derivatives”, as defined under the same Product Determination Rules that apply to trade reporting and other derivatives rules.

Business Triggers (s.6)

A dealer that engages in the business of trading in derivatives in a Canadian jurisdiction is subject to the statutory registration requirement in that jurisdiction. Part 3 of proposed Companion Policy 93-102 (see the end of the proposed rule) itemizes a number of factors that should be considered in determining whether the business trigger is met. At a high level these are:

  • acting as a market maker;
  • directly or indirectly carrying on the activity with repetition, regularity or continuity;
  • facilitating or intermediating transactions;
  • transacting with the intention of being compensated (e.g. spreads, built in fees);
  • directly or indirectly soliciting, by any means, in relation to transactions;
  • engaging in activities similar to a derivatives adviser or dealer; and
  • providing derivatives clearing services.

These factors are elaborated on in CP 93-102. Similar factors are set out for advising.

Under the rule, certain actions with respect to a “non-eligible derivatives party” (a concept we address below) will trigger the registration requirement. Described in CP 93-102 as additional registration triggers, and seemingly not limited to dealers carrying on business in the jurisdiction, these include:

  • transacting with, for or on behalf of such a party; and
  • soliciting or initiating contact with such a party for the purpose of encouraging it to transact in a derivative.

Other persons that act as clearing agents are also subject to the dealer registration requirement, again seemingly regardless of the business trigger.

Categories of Registration

Two categories of dealer registration are provided for, namely

  • derivatives dealer; and
  • restricted derivatives dealer.

Essentially, a restricted derivatives dealer can deal only in the derivatives specified in its registration order, subject to the conditions in that order (for example, “FX only” in the case of a registered FX dealer). There are parallel provisions for advisors.

Dealers will also have to be IIROC dealer members to deal with individuals who are not eligible derivatives parties. This will require many FX dealers to become IIROC members, which may not be feasible for many of those who are currently in the FX market.

There are also registration categories and requirements for individuals who represent registered dealers. The individual registration categories will be:

  • derivatives dealing representative
  • derivatives advising representative
  • derivatives ultimate designated person
  • derivatives chief compliance officer
  • derivatives chief risk officer

Let’s skip to the exemptions before addressing the more detailed requirements imposed on registrants.

Eligible Derivatives Party

Many of the exemptions, including those specific to non-Canadian firms and individual registrants, apply only if the firm or individual’s dealings are restricted to “eligible derivatives parties”.

The Rule will define a “derivatives party”, which is essentially the dealer firm’s counterparty or its client if it is acting as agent or advisor (e.g. as clearing agent). The Rule will define the categories of eligible derivatives party (or “EDP” … let’s just get used to the acronym right away because you know that when a defined term has three words you’re pretty much forced to adopt an acronym that no one outside the industry will understand. Couldn’t this just be “eligible party”? Please.) An EDP is similar to the permitted client category that applies with respect to the international dealer exemption (IDE) that many market participants rely on with respect to their securities dealings in Canada and also similar to the “accredited counterparty” definition that applied under a number of the blanket registration exemption orders in various provinces. Mercifully, it is one definition applicable in all Canadian jurisdictions. The usual suspects are EDPs, including:

  • Canadian financial institutions and their wholly owned subsidiaries;
  • registered securities and derivatives dealers and advisors;
  • pension funds and their subsidiaries;
  • Canadian governments and their crown corporations, wholly owned entities and agencies;
  • foreign entities analogous to the above;
  • foreign governments and their agents;
  • municipalities and their boards and agencies;
  • trust companies acting for managed accounts;
  • others acting for managed accounts if they are registered or authorized to carry on business as an advisor or derivatives advisor or equivalent in a non-Canadian jurisdiction;
  • investment funds with authorized advisors;
  • parties guaranteed by other EDPs (subject to some exceptions); and
  • qualified clearing agencies.

Of particular interest are those categories unique to the OTC derivatives market. These categories of EDP depend on the derivatives party making certain specific representations (and not just a general representation that they are an EDP). If the firm reasonably believes the representation, it can be relied on without independent verification of the factual basis of the representation. The Companion Policy sets out an expectation that firms will maintain copies of the representations and have policies and procedures to ensure that they remain current. Whether it’s reasonable to rely on a written representation will depend on the particular facts and circumstances of the derivatives party and its relationship to the firm. The firm can consider such factors as:

  • the frequency and regularity of the party’s derivatives transactions;
  • the experience of its staff in derivatives and risk management;
  • whether it has independent advice; or
  • publicly available financial information.

Experienced derivatives users

The first of these is what we’ll call experienced derivatives users. These are entities (not individuals) that have represented to the firm (in writing) that:

  • they know what they are doing, which means they have the requisite knowledge and experience to evaluate the information provided to them by the firm, the suitability of the product and its characteristics; and
  • they have net assets of at least $25,000,000, as shown on their most recently prepared financial statements.

Commercial hedgers

The second is commercial hedgers. These are entities (again, not individuals) that represent to the firm in writing that:

  • they know what they are doing;
  • they have net assets of at least $10,000,000, as shown on the most recently prepared financial statements; and
  • they are “commercial hedgers” in relation to the transactions with the firm.

The definition of “commercial hedger” is not restricted in terms of the types of underlying risks that are being hedged. A commercial hedger is an entity that carries on a business and that transacts a derivative that is intended to hedge risks relating to that business. Those risks must arise from potential changes in value of one or more of:

  • An asset that the entity owns, produces, manufactures, processes or merchandises (or anticipates owning, etc.);
  • A liability that it incurs or anticipates incurring; and
  • A service that it provides, purchases or anticipates providing or purchasing.

The wording of this definition seems a bit strange in some ways. I would not describe hedging price risk on manufacturing inputs as hedging the value of an asset that the manufacturer anticipates owning. It’s the change in price or cost before the input is purchased that is being hedged, not its value once it is owned.

Under the blanket exemption orders that apply in many Canadian jurisdictions, commercial hedgers are qualified parties notwithstanding their net asset values, so there is a narrowing of the existing categories in this sense. How much is a strawberry farm worth? Um.

Experienced individuals

These are individuals that have represented to the firm (in writing) that:

  • they know what they are doing
  • they beneficially own “financial assets”, as defined in section 1.1 of National Instrument 45-106 Prospectus Exemptions, that have an aggregate realizable value before tax, but net of related liabilities, of at least $5,000,000. Financial assets include cash, securities or a deposit.

Exemptions

Derivatives End User – s.49

A firm will be exempt from the dealer registration requirement of a Canadian jurisdiction if all of the following apply:

  • its derivative dealing activities are restricted to EDPs;
  • it does not advise non-EDPs (other than general advice – See Advisor exemption below);
  • it does not regularly make or offer to make a market in a derivative with a derivatives party;
  • it does not regularly facilitate or otherwise intermediate transactions for another; and
  • it does not facilitate clearing of a derivative through the facilities of a qualifying clearing agency for another (other than an affiliate).

The exemption will not be available to derivatives, securities or futures dealers, registered in any Canadian jurisdiction or in a foreign home jurisdiction.

Dealers with Limited Notional Amounts – s.50

The limited notional amount exemption will be available if all of the following apply:

  • its derivative dealing activities are restricted to EDPs;
  • it does not advise non-EDPs (other than general advice – addressed later); and
  • its aggregate month-end gross notional amount under outstanding derivatives has not exceeded $250,000,000 in the prior 24 calendar months. The transaction of affiliates is included, but not transaction between affiliated entities. For entities with a Canadian home jurisdiction all transactions are included, but for those with a home jurisdiction outside of Canada only the transaction with Canadian derivatives parties are included.

The CSA is considering a few different approaches to defining “notional amount” and is seeking input on that subject.

The exemption will not be available to derivatives, securities or futures dealers, registered in any Canadian jurisdiction or in certain foreign home jurisdictions (that will eventually be specified in the rule).

Dealers with Limited Notional Amounts under Commodity Derivatives – s.51

Basically this exemption is the same as the limited notional amount exemption, but restricted to commodity derivatives and it has a higher threshold of $1 billion. Commodity derivatives are defined as derivatives that have a commodity as their only underlying asset. “Commodity” is widely defined, but it does not include currency, cryptocurrency or a security. Recall also that certain physically settled commodity derivatives are not considered to be derivatives by virtue of the Product Determination Rules. This exemption is also subject to the same registered dealer exception that applies to the general Limited Notional Amount Exemption.

This exemption will be available if all of the following apply:

  • its derivative dealing activities are restricted to EDPs;
  • it does not advise non-EDPs (other than untargeted advice);
  • it (and each of its affiliates) is only a derivatives dealer in respect of commodity derivatives; and
  • its aggregate month-end gross notional amount under outstanding derivatives has not exceeded $1,000,000,000 in the prior 24 calendar months. The transactions of affiliates are included, but not transaction between affiliates. For firms outside of Canada only the transactions with Canadian counterparties are included in the calculation.

The requirement that the firm and its affiliates only conduct commodity derivatives business could exclude those commodity derivatives firms that are bank affiliates. The exemption will not be available to derivatives, securities or futures dealers, registered in any Canadian jurisdiction or in certain foreign home jurisdictions (that will eventually be specified in the rule).

Affiliated Entities – s.53, s.60

If the dealer’s or advisor’s only Canadian derivatives party is an affiliate, the registration requirement will not apply unless the affiliate is an investment firm. However, this exemption does not apply to a firm that is:

  • a registered derivatives, securities or futures dealer in any Canadian jurisdiction; or
  • registered under securities, commodity futures or derivatives legislation of a foreign jurisdiction which is the home jurisdiction as a derivatives dealer or advisor.

Canadian Financial Institutions

Subject to one exception, Canadian financial institutions would not be exempt from registration. The exception is that in Ontario, federal and provincial financial institutions are exempt under the Securities Act from the requirement to be registered as a dealer or advisor. They will, therefore, be exempt from the Derivatives Registration Rule in Ontario, but not the other Canadian jurisdictions in which they engage in business.

Foreign firm general exemption (s. 52)

The general registration exemption for foreign firms will apply only to firms whose head office or principal place of business is in one of a list of specified foreign jurisdictions. These will be set out in the final version of the rule. All of the following conditions respecting the firm’s business in the particular Canadian jurisdictions in which it carries on business must be met for the exemption to apply:

  • All of its derivatives parties (including those it solicits) must be EDPs;
  • It must be registered or otherwise authorized under securities, commodities or derivatives legislation in the home jurisdiction to conduct the derivatives activities in that home jurisdiction that it will be conducting with the Canadian derivatives parties;
  • It must be subject to and comply with the requirements of the home jurisdiction that the Derivatives Registration Rule will specify (these will eventually be listed in an appendix to the rule); and
  • It must notify the regulator of any non-compliance with these home jurisdiction requirements.

CP 93-102 explains that a dealer that is under home jurisdiction laws not subject to or exempt from registration or complying with the specified requirements cannot rely on this exemption. Also, a dealer that is a registered swap dealer under CFTC rules but not subject to registration in its home jurisdiction may not qualify for the exemption since it is home jurisdiction rules that are relevant to the exemption.

Further conditions to relying on the exemption are:

  • The firm engages in business as a derivatives dealer in the home jurisdiction;
  • One of the following applies in relation to each derivatives party of the firm:
    • It is a registered derivatives dealer or adviser in any Canadian jurisdiction or is exempt from registration under one of:
      • the limited notional amount exemption (see below); or
      • commodity derivatives dealer limited notional amount exemption (see below); or
    • The firm has delivered a written statement disclosing certain information to the derivatives party, namely:
      • the identity of its home jurisdiction;
      • the fact that all or substantially all of its assets may be outside of the Canadian jurisdiction;
      • the fact that there may be difficulty enforcing legal rights against the firm because of the above; and
      • the contact details of the firm’s agent for service in the Canadian jurisdiction;
    • Filing Form 93-102 F2, which is a submission to jurisdiction and appointment of a service agent in the jurisdiction; and
    • An undertaking to the relevant Canadian securities regulatory authority to provide it with prompt access to its records on request.

While the Registration Rule will create a principal regulator concept for registered dealers and advisors, this will not apply to reliance on exemptions by foreign firms. Therefore, in the case of a foreign firm, each regulator must receive the required notices and undertakings.

Non-targeted Advising (s.57)

No advisor registration is required if the advice provided does not purport to be tailored to the needs of the recipient of the advice.

However, if the advisor recommends a derivative where the advisor or certain related parties have a financial or other interest in the class of derivatives or for the underlying interest, then disclosure of that interest is required. The specified related parties are partners, directors, officers, their spouses and children, and insiders. The disclosure must be provided concurrently with the advice and include a description of the nature of the interest. A financial or other interest includes ownership of underlying interests, ownership of or an interest in a derivative that has the same underlying interest as the derivative, a commission or other compensation related to the transactions, a financial arrangement in relation to the derivative or underlying interests (that sounds vague!) and “any other interest that relates to the transaction” (even more vague!). I’m not sure anyone could design the compliance system to track this!

Foreign advisor general exemption (s. 59)

The general registration exemption for foreign advisors will similarly apply only to firms with a home jurisdiction in certain specified foreign jurisdictions, which will be set out in the final version of the rule. A number of conditions relating to the advisor’s business in the particular Canadian jurisdictions in which it carries on business must be met for the exemption to apply. They are similar to those relating to the foreign dealer exemption.

Also, there is an obligation to inform regulators annually of reliance on the exemption in the prior 12 months.

Substitute Compliance

Although not exempt from registration, certain entities will benefit from substituted compliance provisions.

OSFI regulated Canadian financial institutions may comply with equivalent OSFI or other regulatory guidelines, IIROC dealer members with IIROC rules and foreign registrants with equivalent regulation in their home jurisdictions. The equivalents are specified so far for OSFI and the AMF and will be specified for other regulators in future before the rule is finalized.

Principal Regulator (s.2)

There is a principal regulator concept built into the Derivatives Rule, but don’t get too excited about it. It’s not a passport system for registration. It applies only to reports and notices or the submission of documents. These can be reported to or delivered to the principal regulator of the entity.

It does not apply to foreign dealers relying on the foreign dealer or advisor registration exemption.

The CSA Notice does state, however, that they intend to consider amendments to National Policy 11-204 Process for Registration in Multiple Jurisdictions and National Instrument 33-109 Registration Information.

Implications of Registration

Requirements Imposed on Registered Dealers (Part 6)

Registered dealers must designate certain positions within the firm which are:

  • derivatives ultimate designated person
  • derivatives chief compliance officer
  • derivatives chief risk officer

Detailed roles and requirements are set out for each position. These are in addition to the requirements imposed on senior derivatives managers in the Business Conduct Rule.

Financial Requirements (Part 7)

Capital requirements will be set out in further detail in the next version of the rule. The regulatory may require the firm to conduct an audit. The Rule directs the inclusion of certain information in financial statement reporting and requires delivery of statements to the relevant regulators.

Compliance and Risk Management (Part 8)

There are general requirements to have risk management and compliance policies in place and business continuity and disaster recovery plans. There are also specific requirements with respect to the transactions, namely:

  • a requirement for confirmations of material terms of transactions as soon as feasible after transacting;
  • written agreements with the counterparty establishing a process for valuing the derivative; and
  • an agreed dispute resolution process.

Record Keeping (Part 9)

A firm must keep complete records of its derivatives activities and an enumeration of those records is set out in the rule. IN addition, records must be kept in an accessible form for 7 years.

Last Remarks

As we have all learned in spades through the regulation-making process, the devil is in the details. We recommend that industry participants carefully review the proposed rule and consider how it will apply to their activities in each individual Canadian jurisdiction. The comment period is open until September 17, 2018.