EMIR – from present to future Central clearing, legal obligations, margin requirements Henning Schwabe, Partner, Arendt & Medernach ABBL EMIR Conference 20 November 2014

Table of Contents Introduction General Overview Clearing EU regulatory framework for securities market infrastructure

1. Introduction

Table of Contents 1. Introduction 1.1 A wave of regulatory requirements 1.2 Why EMIR? 1.3 High-level Timeline

1.1 A wave of regulatory requirements Luxembourg UCITS IV UCITS VI EMIR UCITS V Global Reporting / Disclosure Rules Basel II Solvency II FATCA etc. MiFID II & MiFIR U.S. Dodd-Frank AIFMD Global Distribution Rules Asia (Singapore, Hong Kong) Switzerland (FINMA) PRIPs

1.2 Why EMIR? The financial crisis of 2007/08 was in part due to the lack of transparency in the trading and processing of OTC derivatives  It highlighted the need for data standards and management of counterparty risk for OTC instruments The global impact of this crisis required collective action by governments around the world and hence the issue was taken up by the G-20 leaders at the 2009 summit in Pittsburgh “All standardized OTC derivatives contracts should be traded on exchanges or electronic trading platforms […] and cleared through central counterparties (CCP) […] OTC derivative contracts should be reported to trade repositories. Non-centrally cleared contracts should be subject to higher capital requirements.” The aim is to improve transparency in the derivatives markets, mitigate systemic risk and protect against market abuse Notes:

1.3 High-level Timeline 2014 12 February Reporting obligation to TRs 18 March 1st CCP approved 12 May Back loading reporting start date 11 August Collateral reporting and daily mark-to-market valuations 18 September Draft RTS on clearing 2013 10 January ITS entered into force 15 March/ 15 September RTS entered 2012 29 March Adopted by the EU Parliament 27 July Publication 16 August Entered into force 30 September Deadline for draft technical standards 31 December G20 deadline 2015 February Expected entry into force of the RTS for the clearing of Interest Rate Swaps (IRS) 2010 15 September EU Proposal of EMIR 2009 September G20 in Pittsburgh Notes: 2007-2008 Financial crisis

2. General Overview

Table of Contents 2. General overview 2.1 Legal framework 2.2 Some legal texts regarding clearing 2.3 Recap 2.4 Scope

ESMA European Union 2.1 Legal framework (1/2) Member States Penalties Development of ITS and RTS Notes: EMIR Regulation

2.1 Legal framework (2/2) Regulatory Technical Standards EMIR Implementing Technical Standards Regulatory Technical Standards Notes:

2.2 Some legal texts regarding clearing (1/2) Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR) EBA Final Draft Regulatory Technical Standards on Capital Requirements for Central Counterparties under Regulation (EU) No 648/2012 (EBA/Draft/RTS/2012/01) of 26 September 2012 Implementing technical standards (ITS) published on 21 December 2012 in the Official Journal of the European Union and entered into force on 10 January 2013 with regard to the format of the records to be maintained by central counterparties Notes:

2.2 Some legal texts regarding clearing (2/2) Regulatory technical standards (RTS) published on 23 February 2013 in the Official Journal of the European Union and entered into force on 15 March 2013 on capital requirements for central counterparties on requirements for central counterparties on indirect clearing arrangements, the clearing obligation, the public register, access to a trading venue, non-financial counterparties, risk mitigation techniques for OTC derivatives contracts not cleared by a CCP RTS published on 28 May 2013 in the Official Journal of the European Union and entered into force on 17 June 2013 on colleges for central counterparties Joint committee of the European Supervisory Authorities: Consultation Paper -Draft regulatory technical standards on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP under Article 11(15) of Regulation (EU) No 648/2012 of 14 April 2014 ESMA Consultation Paper on the Clearing obligation under EMIR (N°1) for Credit Default Swaps (CDS) OTC Derivatives of 11 July 2014, amended version published on 17 July 2014 ESMA Final Report on Draft technical standards on the Clearing Obligation for Interest Rate Swaps (IRS) OTC Derivatives of 1 October 2014 Notes: Note: ESMA issued on 24 October 2014 an updated Q&A on the implementation of EMIR

2.3 Recap All derivative contracts Derivative contracts OTC derivative contracts Reporting obligation retrospective Clearing / risk-mitigation obligation Trade repository Risk mitigation Clearing Clearing member Client Notes: ESMA CCP Systemic risk monitoring Systemic risk reduction Increase of market and price transparency Mitigation of counterparty and operational risk

2.4 Scope EU Entities Non EU Entities FC NFC + NFC - Financial Counterparty FC Banks, Insurances, investment firms, UCITS, pension funds, AIFs Non Financial Counterparty NFC + “Systemically important” Non-Financial Counterparty entering into “non-hedging” activities in derivatives above the clearing threshold NFC - Not “systemically important” Non-Financial Counterparty entering into derivatives positions for “hedging” activities only Non EU counterparties that would be subject to the clearing obligation if they were established in the Union will have to clear relevant OTC transactions via CCPs if the contract has a direct, substantial and foreseeable effect within the Union Notes: Exemptions: - Bank of International Settlements, member of ESCB and other entities involved with the management of public debt - Pension scheme arrangements (until 5/08/15) - Intragroup transactions (on a permanent basis)

3. Clearing

Table of Contents 3. Clearing 3.1 Simple example 3.2 General overview 3.3 Client clearing structure chart 3.4 Simple contractual overview 3.5 OTC derivatives subject to clearing 3.5.1 Who decides which OTC derivatives must be cleared? 3.5.2 OTC derivatives subject to clearing

Table of Contents 3.5.3 Market participants for whom central clearing will become mandatory based on ESMA’s Final Report 3.5.4 Frontloading 3.5.5 Further outlook 3.6 Non-financial counterparties and clearing 3.6.1 When do non-financial counterparties have to comply with the clearing obligation? 3.6.2 Non-financial counterparties: obligation and threshold 3.7 Central counterparties (CCPs) 3.7.1 Central counterparties (CCPs) – Overview 3.7.2 List of CCP’s authorised to offer services and activities in the Union

Table of Contents 3.8 Margin requirements 3.8.1 Margin requirements for non-centrally cleared OTC derivatives 3.8.2 Margin requirements for centrally cleared OTC derivatives

A and B might be a FC and / or a NFC 3.1 Simple example A and B might be a FC and / or a NFC Central counterparty (CCP) means a legal person that interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer Clearing means the process of establishing positions including the calculation of net obligations, and ensuring that financial instruments, cash, or both, are available to secure the exposures arising from those positions Financial counterparty (FC) means investment funds, credit institutions, insurance/reinsurance undertakings, UCITS, AIFs and pension funds Non-financial counterparty (NFC) means an undertaking established in the Union other than FCs Simple bilateral trade: Cleared trade: A CCP B A B Notes:

3.2 General overview Client clearing: Indirect client clearing: CCP Party B (Indirect Client) Party A (Clearing Member) CCP Party B (Client of Clearing Member) Clearing Member Client Party A (Clearing Member) Clearing Member Notes: CCP

3.3 Client clearing structure chart (1/3) Party B (Client of Clearing Member) Party B’s Clearing Member is Party A So in fact there is only 1 Clearing Member i.e. Party A Party A holds its own account separate from the account held for Party B So there is, at Clearing Member level, an internal segregation between Party A’s and Party B’s Account Party A (Clearing Member) Clearing Member CCP

3.3 Client clearing structure chart (2/3) Party A (Client of Clearing Member) Party B (Client of Clearing Member) Party A and Party B are clearing their transcation via the same Clearing Member Of course the Clearing Member needs to apply the segregation rules and therefore needs to keep a separate account on behalf of Party A and one on behalf of Party B Clearing Member Clearing Member CCP

3.3 Client clearing structure chart (3/3) Party A (Client of Clearing Member) Party B (Client of Clearing Member) Party A and Party B are clearing their transaction via different Clearing Members. Clearing Member Clearing Member CCP

3.4 Simple contractual overview (1/3) General Agreement Appendix for centrally cleared OTC derivatives Appendix for non-centrally cleared OTC derivatives Terms and conditions for business of the individual CM and CCP Individual Appendices re. specific CM & Client

3.4 Simple contractual overview: ISDA (2/3) ISDA Master Agreement ISDA/FOA Client Cleared OTC Derivatives Addendum ISDA EMIR Protocols Terms and conditions for business of the individual CM and CCP Individual Appendices re. specific CM & Client

3.4 Simple contractual overview: BdB DRV* (3/3) German Master Agreement for financial Derivative Transactions (DRV) Annex to the DRV for transactions to be cleared by a central counterparty EMIR Appendix to the above-referenced DRV Terms and conditions for business of the individual CM and CCP Individual Appendices re. specific CM & Client *Bankenverband deutscher Banken (Deutscher) Rahmenvertrag / German Bank Association Master Agreement

3.5.1 Who decides which OTC derivatives must be cleared? 3.5 OTC derivatives subject to clearing 3.5.1 Who decides which OTC derivatives must be cleared? Approach Top down ESMA ESMA’s role: Identification of classes of OTC derivatives which should be subject to the clearing obligation but for which no CCP has yet received authorisation. Classes of OTC derivatives to be cleared CCPs authorised to clear or recognised for the purpose of clearing Date by which clearing obligation takes effect and phase in implementation Classes of OTC for which CCPs have been authorised to clear Minimum Remaining maturity CCPs notified to ESMA by NCAs Info provider ESMA Public Register CCP? Bottom up EU Commission Assessment of the suitability of the notified classes to the clearing obligation Endorsement of ESMA RTS for those classes of OTC derivatives that should be subject to the clearing obligation Notes: ESMA Notification that a CCP was authorised to clear a certain class of OTC derivatives NCA CCP

3.5.2 OTC derivatives subject to clearing ESMA published on 1st October 2014 its final report of the draft RTS on the clearing obligation for Interest Rate OTC Derivatives that will be submitted to the European Commission for endorsement. The third section of the Draft RTS covers the determination of the following interest rate derivatives classes which should be subject to mandatory clearing: Basis swaps denominated in EUR, GBP, JPY, USD; Fixed-to-float swaps denominated in EUR, GBP, JPY, USD; Forward rate agreements denominated in EUR, GBP, USD; and Overnight index swaps denominated in EUR, GBP, USD.

3.5.3 Market participants for whom central clearing will become mandatory based on ESMA’s Final Report* (1/2) Category 1: Clearing Members of a recognised or authorised CCP listed on the Public Register – 6 months after the RTS enter into force. Category 2: FC and AIFs that are non-financial counterparties above the clearing threshold (NFCs+), which are not included in Category 1 and which belong to a group for which the aggregate month-end average notional amount of non-centrally cleared derivatives over a certain 3 month period (i.e. the 3 months preceding the entry into force of the RTS, excluding the month of entry into force) is above €8 billions – 12 months after RTS enter into force. Category 3: FCs and other NFC+ AIFs that have a low level of activity in uncleared derivatives and which are not included in Category 1 or 2 – 18 months after the RTS enter into force. Category 4: NFCs that are not included in Category 1, 2 or 3 – 36 months after the RTS enter into force. *Source: ESMA Final Report: Draft technical standards on the Clearing Obligation – Interest Rate OTC Derivatives (01/10/2014)

3.5.3 Market participants for whom central clearing will become mandatory based on ESMA’s Final Report* (2/2) N.B.: Where a contract is entered into between two counterparties included in different categories of counterparties, the date from which the clearing obligation takes effect for that contract shall be the later of the two. *Source: ESMA Final Report: Draft technical standards on the Clearing Obligation – Interest Rate OTC Derivatives (01/10/2014)

3.5.4 Frontloading* The minimum remaining maturity for Categories 1 and 2 counterparties are the same for contracts entered into or novated before the date of publication of the RTS in the Official Journal, 49.5 years for basis swaps and fixed-to-float IRS contracts and 2.5 years for foward rate agreements and overnight index swaps. Contracts entered into or novated on or after the publication of the RTS are subject to a 6 month minimum remaining maturity. For Category 3 the minimum remaining maturity is 50 years for basis swaps and fixed-to-float IRS classes and 3 years for forward rate agreements and overnight index swaps. Counterparties falling within Category 4 are not subject to frontloading, e.g. frontloading is not applicable where at least one of the counterparties is a non-financial counterparty (NFC+ or NFC-). *Source: ESMA Final Report: Draft technical standards on the Clearing Obligation – Interest Rate OTC Derivatives (01/10/2014)

3.5.5 Further outlook ESMA also published on 1 October a consultation paper on draft RTS it has developed under EMIR for the clearing of foreign-exchange non-deliverable forwards (“ESMA/2014/1185”). This paper provides explanations on the draft regulatory technical standards establishing a clearing obligation on a class of foreign-exchange non-deliverable forward (FX NDF) OTC derivatives. ESMA is currently also developing regulatory technical standards (RTS) for credit default swaps (CDS) following the same logic as for the interest rate swaps (IRS). These new RTS which will probably be submitted to the European Commission for endorsement in the near future.

3.6 Non-financial counterparties and clearing 3.6.1 When do non-financial counterparties have to comply with the clearing obligation? Clearing thresholds values for the purpose of the clearing obligation: Breach of threshold in one product class entails breach in all classes derivative contracts threshold credit derivative EUR 1 billion in gross notional value OTC equity derivative OTC interest rate derivative EUR 3 billion in gross notional value OTC foreign exchange derivative OTC commodity derivative and all other OTC derivatives Notes:

3.6.2 Non-financial counterparties: obligation and threshold Qualified as Financial Counterparty (Investment firm; credit institution; insurance undertaking; assurance undertaking; reinsurance undertaking; UCITS; AIF)? Yes No Has the OTC derivative class been defined by ESMA to be subject to the clearing obligation? Do the positions in OTC derivative contracts exceed the thresholds? No Yes No Yes Has the OTC derivative class been defined by ESMA to be subject to the clearing obligation? Notes: Yes No Clearing by a CCP Risk Mitigation

3.7.1 Central counterparties (CCPs) - Overview Conduct of Business Participation requirements Transparency Segregation and portability Prudential requirements Exposure management Margin requirements Default fund Liquidity risk controls Default waterfall Collateral requirements Investment policy Default procedures Review models, stress testing and back testing Settlement

3.7.2 List of CCP’s authorised to offer services and activities in the Union (1/2)   No Name of the CCP Identification Code of CCP (LEI) Established in the Union or in a Third Country Country of establishment Competent authority (if established in the Union) Date of authorisation 1 Nasdaq OMX Clearing AB 54930002A8LR1AA UCU78 In the Union Sweden Finansinspektionen 18 March 2014 2 European Central Counterparty N.V. 724500937F740MH CX307 Netherlands De Nederlandsche Bank (DNB) 1 April 2014 3 KDPW_CCP 2594000K576D5CQ XI987 Poland Komisja Nadzoru Finansowego (KNF) 8 April 2014 4 Eurex Clearing AG 529900LN3S50JPU 47S06 Germany Bundesanstalt für Finanzdienstleistungs aufsicht (Bafin) 10 April 2014 5 Cassa di Compensazione e Garanzia S.p.A. (CCG) 8156006407E264D Italy Banca d’Italia 20 May 2014 6 LCH.Clearnet SA R1IO4YJ0O79SMW VCHB58 France Autorité de Contrôle Prudentiel et de Résolution (ACPR) 22 May 2014 7 European Commodity Clearing 529900M6JY6PUZ9 11 June 2014 8 LCH.Clearnet Ltd F226TOH6YD6XJB 17KS62 United Kingdom Bank of England 12 June 2014 Source: ESMA List of Central Counterparties authorised to offer services and activities in the Union (03/11/2014)

3.7.2 List of CCP’s authorised to offer services and activities in the Union (2/2)   9 Keler CCP 529900MHIW6Z8O TOAH28 In the Union Hungary Central Bank of Hungary (MNB) 4 July 2014 10 CME Clearing Europe Ltd 6SI7IOVECKBHVY BTB459 United Kingdom Bank of England 4 August 2014 11 CCP Austria Abwicklungsstelle für Börsengeschäfte GmbH (CCP.A) 529900QF6QY66Q Austria Austrian Financial Market Authority (FMA) 14 August 2014 12 LME Clear Ltd 213800L8AQD59D3 JRW81 3 September 2014 13 BME Clearing 5299009QA8BBE2 OOB349 Spain Comisión Nacional del Mercado de Valores (CNMV) 16 September 2014 14 OMIClear - C.C., S.A. 5299001PSXO7X2J X4W10 Portugal Comissão do Mercado de Valores Mobiliários (CMVM) 31 October 2014 Source: ESMA List of Central Counterparties authorised to offer services and activities in the Union (03/11/2014)

3.8 Margin requirements 3.8.1 Margin requirements for non-centrally cleared OTC derivatives* (1/3) This concerns FCs and NFCs+, hereafter referred to as ‘Counterparties’. Counterparties requirement to exchange variation margin (VM) on a daily basis and in full should apply from 1 December 2015 (in line with international standards, i.e. BCSBS-IOSCO framework). Counterparties may agree that where the total initial margin (IM) calculated to be exchanged for all non-centrally cleared OTC derivatives between counterparties at group level is equal to or lower than € 50 million, they may agree that no initial margin will be exchanged and that they will hold capital against their exposure to their counterparties. Counterparties may agree not to post IM or VM where the total collateral to be exchanged between them is less than or equal to € 500.000. IM will be posted gross on a counterparty potfolio (in contrast to net for cleared trades). *Source: Joint committee of the European Supervisory Authorities: Consultation Paper -Draft regulatory technical standards on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP under Article 11(15) of Regulation (EU) No 648/2012 (14/04/2014)

3. 8. 1 Margin requirements for non-centrally cleared OTC derivatives IM requirements don’t apply to transactions where at least one of the counterparties aggregate month-end average notional amounts of non-centrally cleared derivatives for June, July and August in a given year is below € 8 billion. Physically settled FX fowards and swaps including those associated with the exchange of principal in currency swaps are to be exempt from IM requirements. VM is still applicable to such contracts. Covered bonds issues and covered pools don’t need to post IM or VM in case certain conditions are satisfied. The IM requirements apply to all new contracts entered into from 1 December 2015. No mandatory retrospective application. Re-hypothecation of IM should not be permitted. Eligible collaterall which meets the IM and VM requirements includes cash, high quality government and corporate bonds, shares in major stock indices and gold. *Source: Joint committee of the European Supervisory Authorities: Consultation Paper -Draft regulatory technical standards on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP under Article 11(15) of Regulation (EU) No 648/2012 (14/04/2014)

3. 8. 1 Margin requirements for non-centrally cleared OTC derivatives IM requirements to be phased in as follows: From 01/12/15 to 30/11/16: any counterparty belonging to a group whose aggregate month-end average notional amount of non-centrally cleared derivatives for June, July and August 2015 exceeds € 3 trillion. From 01/12/16 to 30/11/17: any (…) August 2016 exceeds € 2.25 trillion. From 01/12/17 to 30/11/18: any (…) August 2017 exceeds € 1.5 trillion. From 01/12/18 to 30/11/19: any (…) August 2017 exceeds € 0.75 trillion. From 01/12/19 on: any (…) August 2017 exceeds € 8 billion. *Source: Joint committee of the European Supervisory Authorities: Consultation Paper -Draft regulatory technical standards on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP under Article 11(15) of Regulation (EU) No 648/2012 (14/04/2014)

3.8.2 Margin requirements for centrally cleared OTC derivatives* Eligible collaterall which meets the IM and VM requirements includes cash, high quality government and corporate bonds, shares in major stock indices and gold. The amount which has to be transferred as IM is being determined by the concerned CCP. It should however be enough to collateralise the underlying transaction. The amount which has to be transferred as VM is being determined by the concerned CCP. It should however be enough to collateralise the underlying transaction. *Source: Joint committee of the European Supervisory Authorities: Consultation Paper -Draft regulatory technical standards on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP under Article 11(15) of Regulation (EU) No 648/2012 (14/04/2014)

4. EU regulatory framework for securities market infrastructure

Table of Contents 4. EU regulatory framework for securities market infrastructure 4.1 EU regulatory framework for securities market infrastructure 4.2 EMIR & MiFID II – the overlap

4.1 EU regulatory framework for securities market infrastructure (1/2) EMIR together with MiFID II (& CSDR) are anticipated to enhance the safety and soundness of the financial system. They will form the framework in which systematically important securities infrastructures are subject to common rules on a European level.

4.1 EU regulatory framework for securities market infrastructure (2/2) Step 1: MiFID II & MiFIR regulate trading venues, i.e. MTFs*, OTFs**, where trading takes place; Step 2: EMIR regulates central counterparties; and Step 3: CSDR regulates central securities depositories, who are responsible for settlement of securities transactions. *Multilateral trading facilities ** Organised trading facilities

4.2 EMIR & MiFID II – the overlap G20 agreed that trading in standardised OTC derivatives: (i) should move to exchanges or electronic trading platforms, where appropriate (MiFID II) and (ii) should be cleared through central counterparties (EMIR). The provisions in MiFID II require trading in suitably developed derivatives to occur only on eligible platforms, that is, RMs*, MTFs, or OTFs**. This requirement is consistent with the requirement to central clearing OTC derivatives under EMIR. Article 29 (1) MiFIR requires the operator of a regulated market to ensure that all transactions in derivatives that are concluded on that regulated market to be cleared by a CCP. * Regulated markets ** Article 28 MiFID II

APPENDIX

Definitions (1/3) ‘CCP’ means a legal person that interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer. ‘clearing’ means the process of establishing positions, including the calculation of net obligations, and ensuring that financial instruments, cash, or both, are available to secure the exposures arising from those positions. ‘OTC derivative’ or ‘OTC derivative contract’ means a derivative contract the execution of which does not take place on a regulated market as within the meaning of Article 4(1)(14) of Directive 2004/39/EC or on a third- country market considered as equivalent to a regulated market in accordance with Article 19(6) of Directive 2004/39/EC.

Definitions (2/3) ‘financial counterparty’ means an investment firm authorised in accordance with Directive 2004/39/EC, a credit institution authorised in accordance with Directive 2006/48/EC, an insurance undertaking authorised in accordance with Directive 73/239/EEC, an assurance undertaking authorised in accordance with Directive 2002/83/EC, a reinsurance undertaking authorised in accordance with Directive 2005/68/EC, a UCITS and, where relevant, its management company, authorised in accordance with Directive 2009/65/EC, an institution for occupational retirement provision within the meaning of Article 6(a) of Directive 2003/41/EC and an alternative investment fund managed by AIFMs authorised or registered in accordance with Directive 2011/61/EU. ‘non-financial counterparty’ means an undertaking established in the Union other than ‘CCP’ and ‘FC’.

Definitions (3/3) ‘clearing member’ means an undertaking which participates in a CCP and which is responsible for discharging the financial obligations arising from that participation. ‘MiFID II’ means Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast). ‘MiFIR’ means Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012. ‘CSDR’ means Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012

Thank you for your attention! The information provided in this presentation shall give you an overview of the legal and regulatory requirements in Luxembourg and the European Union without being claimed to be exhaustive or being considered as legal advice. Arendt & Medernach has made every effort to use reliable, up-to-date and comprehensive information and analysis, but all information is provided without warranty of any kind, express or implied. No part of this presentation may be published, reproduced, transmitted or otherwise distributed in any form or by any means, e.g. electronic or mechanical, without the written permission of the author.

Contact us Henning Schwabe Partner Investment Management Tel : (+352) 4078 78 525 Email : henning.schwabe@arendt.com