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What have been the key regulatory changes for derivatives lawyers in 2014? Simon Puleston-Jones, chief executive office of the Futures and Options Association (FIA) Europe highlights the key changes of 2014 and what to look out for in 2015.
The overarching challenge of 2014 (which will continue in 2015 and beyond) has been the need for a huge number of over-the-counter (OTC) transactional lawyers to become cleared derivative and regulatory experts due to the changes in the European Market Infrastructure Regulation (EU) 648/2012 (EMIR) and the Markets in Financial Instruments Regulation (EU) 648/2012 (MiFIR). The world in which they have worked up to now has irrevocably changed.
Delegated reporting agreements and reporting queries more generally
Responding to the European Securities and Markets Authority (ESMA) discussion paper and consultation paper over a ten-week period in the summer (845 pages, 860 questions) and the 1600 pages just published by ESMA on 19 December 2014. For lawyers working at commodity trading and energy companies that are not regulated under MiFID I, understanding and explaining the impact on their firm if it becomes subject to regulation under MiFID II.
Liaising with internal and external stakeholders to help the business better understand the impact of the regulatory capital requirements and leverage ratio constraints set out in CRD IV 2013/36/EU, and to understand and express its impact on firms providing clearing broking services.
Engaging with the Agency for the Cooperation of Energy Regulators regarding their reporting requirements for the wholesale physically settled energy markets under REMIT (EU) 1227/2011.
Staying on top of the latest UK and European proposals, as expressed (in the UK) in the Fair and Effective Markets Review and (in Europe) in the European benchmark proposals that have been led by the Italian presidency.
The market has done as well as can be expected in the absence of clear answers to very granular questions. It took some time to register for legal entity identifiers (LEI)—many still need to obtain an LEI. Different ways of generating unique transaction identifiers (UTIs) has led to problems, as have the lack of successful reconciliation between trade repositories—only 3% of ETD trades are reported to have been matched and, for some months, one of the major repositories refused to even attempt to match trades with other repositories. ESMA is still not satisfied that the details submitted with respect to unique product identifiers are sufficiently granular.
ETD reporting has been less successful than OTC (as ESMA made clear it would be to the European Commission when asking for a delay to the start of ETD reporting) in absolute terms for the reasons stated above. However there have also been some ETD-specific issues relating to reporting of ETD valuations that have led to further issues.
In no particular order:
Interviewed by Emma Millington.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
First published on LexisPSL Banking & Finance. Click here for a free trial.
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Emma is head of the Banking and Finance team and the Finance Group at LexisNexis®UK.
Emma has wide-ranging experience in derivatives and capital markets with a particular emphasis on credit derivatives and structured products. Emma qualified as a solicitor with Allen & Overy LLP, working in the derivatives and structured finance teams in both their London and Paris offices before gaining experience with Deutsche Bank AG (advising the foreign exchange prime brokerage desk) and Crédit Agricole CIB (advising the fixed income and derivatives desk) before joining LexisNexis®.
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