What do you need to know for CFTC cross-border swap compliance in 2014?

This may be the year that swap market counterparties face the full effect of dual US and foreign regulatory requirements for cross-border swap activities. While many of the regulations under the Dodd-Frank Act became effective in 2013, the requirements contained in the equivalent legislation in the European Union (EU Regulation No 648/2012 on OTC derivatives, central counterparties, and trade repositories and the relevant supplementing regulations, more commonly known as the European Markets Infrastructure Regulation or EMIR) started to come into effect in 2013 and will continue to become effective during the course of 2014.

At this point, the full scope of whether a counterparty may have to comply with more than one set of jurisdictional rules is still not completely defined.

Moreover, in early December 2013, several trade organisations, including SIFMA and ISDA, filed a legal challenge to the cross-border guidance issued by the Commodity Futures Trading Commission (CFTC), arguing that the CFTC violated the Commodity Exchange Act by characterising its regulations as guidance and not applying the process required under the Administrative Procedure Act…

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