King & Wood Mallesons

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It’s EMIR vs Dodd-Frank — and for Australians it’s déjà vu all over again

On 15 March 2013, the first set of regulatory technical standards relating to the European Union’s implementation of the G20 commitments on over-the-counter derivatives will come into force under the European Market Infrastructure Regulation (EMIR). With this come many obligations, some of which can have a reach beyond Europe. For Australians, it sounds like Dodd-Frank all over again.

It is difficult to know how much Australians should be concerned about this stage of EMIR’s development. This is because, in an all too familiar story for global derivatives regulatory reform, much of the cross-border impact of EMIR seems yet to be determined. For example, it is possible that some obligations under EMIR may extend to non-EU entities that would not otherwise be subject to them. How those obligations ultimately reach beyond Europe’s borders depends on how the European Securities and Market Authority interprets what having a contract with “direct, substantial and foreseeable effect within the EU” actually means…

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