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Other as amended, taking into account amendments up to ASIC Corporations (Amendment) Instrument 2020/827
Administered by: Treasury
Registered 14 Oct 2020
Start Date 01 Oct 2020
Table of contents.

ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844

 

 

About this compilation


Compilation No. 11

 

This is a compilation of ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 as in force on 1 October 2020. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

 


Contents

Part 1—Preliminary                                                                                                     3

1                 Name of legislative instrument.............................................................. 3

3                 Authority............................................................................................... 3

4                 Definitions............................................................................................. 3

Part 2—Exemption                                                                                                       5

5                 Exemption 1 (Exchange-traded derivatives)......................................... 5

6                 Exemption 2 (Entity Information)........................................................ 6

6A             Exemption 2A (Reference Entity Information).................................... 9

6B                                                                                      Exemption 2B (Joint Counterparties)      9

7                 Exemption 3 (Name Information)....................................................... 10

11               Exemption 7 (Trade identifiers).......................................................... 10

13               Exemption 9 (FX Securities Conversion Transactions)....................... 11

14               Exemption 1 to 9 – Other conditions (Record-keeping)..................... 12

Endnotes                                                                                                                       12

Endnote 1—Instrument history......................................................................... 12

Endnote 2—Amendment history....................................................................... 13

 


Part 1—Preliminary

1        Name of legislative instrument

This instrument is the ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844.

3        Authority

This instrument is made under paragraph 907D(2)(a) of the Corporations Act 2001.

4        Definitions

(1)     In this instrument:

Act means the Corporations Act 2001.

Confirmation Platform means an electronic trade confirmation platform.

Entity Information means Derivative Trade Data referred to in the following table:

 

Table in Rules

Items in Table

Table S2.1(1) (Derivative Transaction Information - Common data)

Part (a) of Items 7, 10, 15 and 19

Table S2.1(3) (Equity Derivative and Credit Derivative Data)

Part (a) of Items 1, 3 and 5

Table S2.1(5) (Interest rate derivative data)

Part (a) of Items 6, 8 and 10

Table S2.2(1) (Derivative Position Information – Common data)

Part (a) of Items 6, 8 and  15

Table S2.2(3) (Credit Derivative and Equity Derivative Data)

Part (a) of Items 1, 3 and 5

Table S2.2(5) (Interest rate derivative data)

Part (a) of Items 5, 7 and 9

 

Name Information means Derivative Trade Data referred to in the following table:

 

Table in Rules

Items in Table

Table S2.1(1) (Derivative Transaction Information - Common data)

8, 11, 16, 20

Table S2.1(3) (Equity Derivative and Credit Derivative Data)

2, 4 and 6

Table S2.1(5) (Interest rate derivative data)

7, 9 and 11

Table S2.2(1) (Derivative Position Information – Common data)

7, 9 and 16

Table S2.2(3) (Credit Derivative and Equity Derivative Data)

2, 4 and 6

Table S2.2(5) (Interest rate derivative data)

6, 8 and 10

 

Rules means the ASIC Derivative Transaction Rules (Reporting) 2013.

 

Swap Execution Facility means a ‘swap execution facility’ as defined in section 1a(50) of the Commodity Exchange Act 1936 (US).

 

(2)     In this instrument, unless otherwise specified, capitalised terms have the meaning given by the Rules.


Part 2—Exemption

5        Exemption 1 (Exchange-traded derivatives)

Relief

(1)     From 1 October 2015 to 30 September 2022, a Reporting Entity does not have to comply with Rule 2.2.1 of the Rules in relation to a Derivative (Exchange-Traded Derivative) where the entry into of the arrangement that is the Derivative takes place on a financial market that is not operated in this jurisdiction and the following apply:

(a)     the entry into of the arrangement that is the Derivative is in accordance with the operating rules of the financial market;

(b)     the terms of the Derivative are documented under or prescribed by the operating rules of the financial market;

(c)     the Derivative is made available in one or more series in accordance with the operating rules of the financial market and the terms of the arrangement constituting the Derivative are the same as for every other Derivative in the same series, with the exception of price.

Condition

(3)     A Reporting Entity that relies on the exemption in subsection (1) must report in accordance with the Rules:

(a)     information about each of its Reportable Transactions in an Exchange-Traded Derivative starting from no later than 1 October 2022; and

(b)     the Derivative Position Information set out in Part S2.2 of Schedule 2 of the Rules, about each of its outstanding positions in an Exchange-Traded Derivative as at 1 October 2022 or such earlier date as the Reporting Entity starts to report its Reportable Transactions in the Exchange-Traded Derivative.

(3A)  Subject to subsection (3B), a Reporting Entity that relies on the exemption in subsection (1) in relation to a Derivative entered into on a financial market must, within 10 business days after entering into the Derivative, give ASIC a written notice (Opt-In Notice) containing the following information:

(a)     the name of the Reporting Entity;

(b)     the name of the financial market;

(c)     the Market Identifier Code (MIC) issued in accordance with ISO 10383:2012 for the financial market;

(d)     the date the Reporting Entity entered into the Derivative.

(3B)  The condition in subsection (3A) does not apply to a Reporting Entity in relation to a financial market if:

(a)     the Reporting Entity has previously given ASIC an Opt-in Notice in relation to the financial market: or

(b)     the financial market is a Regulated Foreign Market for the purposes of the Rules.

(3C)  In this section:

ISO 10383:2012 means ISO 10383:2012 Securities and related financial instruments—Codes for exchanges and market identification (MIC) published by the International Organisation for Standardization as in force on the date of this instrument.

6        Exemption 2 (Entity Information)

Relief

(1A)  From the day after the Exemption End Date, a Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that:

(a)     Rule 2.2.1 requires the Reporting Entity to report Entity Information about an entity (Relevant Entity) in relation to a Reportable Transaction or a Reportable Position to a Trade Repository;

(b)     the Reportable Transaction or Reportable Position relates to an OTC Derivative entered into on or before the Exemption End Date; and

(c)     the Entity Information is not available for the Relevant Entity.

(1B)  From the day after the Exemption End Date, a Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that:

(a)     Rule 2.2.1 requires the Reporting Entity to report Entity Information about an entity (Relevant Entity) in relation to a Reportable Transaction or Reportable Position to a Trade Repository;

(b)     the Relevant Entity is not a Reporting Entity referred to in column 2 of Table S1.1 of the Rules;

(c)     the Reportable Transaction or Reportable Position relates to an OTC Derivative entered into after the Exemption End Date; and

(d)     the Entity Information is not available for the Relevant Entity.

(1C)  In subsections (1A) and (1B), Exemption End Date means:

(a)     30 September 2019 if the Relevant Entity:

(i)      is incorporated or formed in this jurisdiction; or

(ii)     is a counterparty to the OTC Derivative to which the Reportable Transaction or Reportable Position relates as the result of a transaction entered into by a branch of the Relevant Entity that is located in this jurisdiction; and

(b)     otherwise, 31 March 2020.

Where relief applies

(2)     The exemptions in subsections (1A) and (1B) apply where the Reporting Entity reports to the Trade Repository the internal entity identifier for the Relevant Entity used by the Reporting Entity.

Conditions

(3)     Subject to subsection (8), it is a condition of the exemption in subsection (1A) that the Reporting Entity must use its best efforts to obtain the Entity Information as soon as reasonably practicable, including by maintaining and following documented procedures for one or both of the following:

(a)     requesting that Relevant Entities obtain Entity Information and provide it to the Reporting Entity;

(b)     obtaining the Entity Information on behalf of Relevant Entities.

(3A)  Subject to subsection (8), it is a condition of the exemption in subsection (1B) that the Reporting Entity must use its best efforts to obtain the Entity Information as soon as reasonably practicable, including by maintaining and following documented procedures for one or both of the following:

(a)     requiring the Relevant Entity to:

(i)      apply for the issue of Entity Information within 2 Business Days after the requirement to report the Entity Information arises, unless an application for the issue of Entity Information in relation to the Relevant Entity has already been made; and

(ii)     provide the Entity Information to the Reporting Entity as soon as reasonably practical after it is issued to the Relevant Entity; or

(b)     apply for the issue of Entity Information on behalf of the Relevant Entity within 2 Business Days after the requirement to report the Entity Information arises, unless an application for the issue of Entity Information in relation to the Relevant Entity has already been made.

(4)     As soon as reasonably practicable after Entity Information for a Relevant Entity is available, including on a public website, the Reporting Entity must use all reasonable endeavours to report the Entity Information to the Trade Repository, unless the Derivative to which the Entity Information relates has been terminated or has expired.

(5)     The Reporting Entity must, on written request by ASIC, provide ASIC with a written statement reporting on the Reporting Entity’s compliance with the conditions in subsection (3) or (3A) (as applicable) and subsection (4) during the period specified in the request.

(6)     The Reporting Entity must provide the statement under subsection (5) within the time specified in the written request by ASIC or, if no time is specified, within a reasonable time.

Exclusion

(7)     Subject to subsection (8), the exemption in subsection (1B) ceases to apply in relation to a Reporting Entity and a Relevant Entity if:

(a)          Rule 2.2.1 requires the Reporting Entity to report Entity Information in relation to the Relevant Entity after the Exemption End Date in relation to an OTC Derivative entered into after the Exemption End Date; and

(b)          an application for the issue of Entity Information in relation to the Relevant Entity has not been made within 2 Business Days after the requirement to report the Entity Information arises.

New Zealand registered banks

(8)     The conditions in subsections (3) and (3A) and the exclusion in subsection (7) do not apply to a Reporting Entity if all the following are satisfied:

(a)     the Reporting Entity is a New Zealand registered bank within the meaning of the Banking Act 1959;

(b)     the Relevant Entity is not an Australian entity;

(c)     the Relevant Entity is not a covered counterparty within the meaning of Prudential Standard CPS 226 Margining and risk mitigation for non-centrally cleared derivatives;

Note:    Prudential Standard CPS 226 Margining and risk mitigation for non-centrally cleared derivatives is the Schedule to Banking, Insurance, Life Insurance and Superannuation (prudential standard) determination No. 1 of 2019.

(d)     the Reporting Entity does not have a credit support annex (or other industry standard credit support documents) in place with the Relevant Entity.

6A     Exemption 2A (Reference Entity Information)

Relief

(1)     A Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that Rule 2.2.1 requires the Reporting Entity to report the information in paragraph (a) of item 5 of Table S2.1(3) in the Rules (Reference Entity Information) about an entity (Reference Entity) in relation to a Reportable Transaction or Reportable Position to a Trade Repository.


Where relief applies

(2)     The exemption in subsection (1) applies where:

(a)     the Reportable Transaction or Reportable Position relates to an OTC Derivative that is a credit default swap or a total return swap; and

(b)     the Reporting Entity reports to the Trade Repository the CDS Reference Entity Database code (also known as a “RED code”) issued by IHS Markit for the Reference Entity.

6B     Exemption 2B (Joint Counterparties)

Relief

(1)     A Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that.

(a)     Rule 2.2.1 requires the Reporting Entity to report Entity Information about an entity (Relevant Entity) in relation to a Reportable Transaction or a Reportable Position to a Trade Repository;

(b)     the Relevant Entity is comprised of two or more counterparties that entered into the OTC Derivative the subject of the Reportable Transaction or Reportable Position as joint or joint and several counterparties; and

(c)     Entity Information is not available for the Relevant Entity.

Where relief applies

(2)     The exemption in subsection (1) applies where the Reporting Entity reports to the Trade Repository the internal entity identifier for the Relevant Entity used by the Reporting Entity.

Conditions

(3)     The Reporting Entity must maintain records of the counterparties that comprise the joint or joint and several counterparties to the OTC Derivative, and must be able to link those counterparties to the internal entity identifier reported by the Reporting Entity to the Trade Repository.

(4)     The Reporting Entity must, on written request by ASIC, provide ASIC with a written statement reporting on the Reporting Entity’s compliance with the condition in subsection (3) during the period specified in the request.

(5)     The Reporting Entity must, on written request by ASIC, provide ASIC with a written statement identifying the counterparties that comprise the joint or joint and several counterparties that are linked to an internal entity identifier that has been reported by the Reporting Entity to the Trade Repository.

(6)     The Reporting Entity must provide a written statement under subsection (4) or (5) within the time specified in the written request by ASIC or, if no time is specified, within a reasonable time.

7        Exemption 3 (Name Information)

Relief

(1)     From 1 October 2015 to 30 September 2022, a Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that Rule requires the Reporting Entity to report Name Information about an entity (Relevant Entity) in relation to a Reportable Transaction or Reportable Position to a Trade Repository.

Where relief applies

(2)     The exemption in subsection (1) applies where the Reporting Entity reports to the Trade Repository an identifier for the Relevant Entity that is a Legal Entity Identifier (LEI), interim entity identifier, Designated Business Identifier or Business Identifier Code (BIC Code).

11      Exemption 7 (Trade identifiers)

Relief

(1)     From 1 October 2015 to 30 September 2022, a Reporting Entity does not have to comply with paragraphs 2.2.1(1)(a) and (c) of the Rules to the extent those paragraphs require the Reporting Entity to report, for a Reportable Transaction, Derivative Transaction Information referred to in Item 1 of Table S2.1(1) of the Rules that is a ‘universal transaction identifier’ or a ‘single transaction identifier’.

Condition

(2)     The Reporting Entity must report, for the Reportable Transaction:

(a)     the trade identifier (if any) for the Reportable Transaction that the Reporting Entity is of the reasonable view would be required to be reported as a unique transaction identifier:

(i)      under requirements (CFTC rules) issued by the Commodity Futures Trading Commission of the United States of America; and

(ii)     on the assumption that neither the Rules nor this instrument require the Reporting Entity to report the Reportable Transaction; or

Note:    The effect of subparagraph (ii) is that the Reporting Entity must form its reasonable view as to the requirements of the CFTC rules on the basis that the requirements of the CFTC rules are not affected by any Australian reporting requirements.

(b)     if paragraph (a) is not applicable—the trade identifier created by the Swap Execution Facility on which the Reportable Transaction was executed (if applicable); or

(c)     if paragraphs (a) and (b) are not applicable—the trade identifier created by the provider of any of the Confirmation Platforms on which the Reportable Transaction was confirmed (if applicable); or

(d)     if paragraphs (a) to (c) are not applicable—the internal trade identifier used by the Reporting Counterparty;

(each, a Trade Identifier) and must report the Trade Identifier otherwise in accordance with the Rules as if the Trade Identifier were information reported under paragraph 2.2.1(1)(a) or (c) of the Rules (as applicable).

13      Exemption 9 (FX Securities Conversion Transactions) 

Relief

From 1 October 2015 to 30 September 2022, a Reporting Entity does not have to comply with Rule 2.2.1 of the Rules to the extent that Rule requires the Reporting Entity to report a Reportable Transaction or Reportable Position in a foreign exchange contract:

(a)     that is entered into by the Reporting Entity solely to facilitate the settlement of a transaction for the purchase or sale of a foreign currency denominated security; and

(b)     under which consideration is provided to settle the transaction not more than 7 business days after the day on which the transaction is entered into.

14      Exemption 1 to 9 – Other conditions (Record-keeping)

It is a condition of each exemption in this instrument that the Reporting Entity must:

(a)     keep records that enable the Reporting Entity to demonstrate it has complied with the conditions in subsections 5(3), 6B(3) and 11(2) (as applicable) of this instrument; and

(b)     keep the records referred to in paragraph (a) for a period of at least five years from the date the record is made or amended; and

(c)     on written request by ASIC, provide ASIC with records or other information relating to compliance with or determining whether there has been compliance with the conditions referred to in paragraph (a), within the time specified in the request or if no time is specified, within a reasonable time.

Endnotes

Endnote 1—Instrument history

Instrument number

Date of FRLI registration

Date of commencement

Application, saving or transitional provisions

2015/844

30/9/2015 (see F2015L01530)

1/10/2015

 

2016/0043

29/1/2016 (see F2016L00072)

29/1/2016

-

2016/913

27/9/2016 (see F2016L01496)

28/9/2016

-

2017/0036

25/1/2017 (see F2017L00065)

26/1/2017

-

2017/0723

12/9/2017 (see F2017L01160)

13/9/2017

-

2017/861

28/9/2017 (see F2017L01294)

29/9/2017

-

2018/172

23/3/2018 (see F2018L00360)

24/3/2018

-

2018/810

24/9/2018 (see F2018L01334)

25/9/2018

-

2019/169

13/3/2019 (see F2019L00284)

14/3/2019

-

2019/958

1/10/2019 (see F2019L01301)

1/10/2019

-

2020/242

27/3/2020 (see F2020L00332)

1/4/2020

-

2020/827

30/9/2020 (see F2020L01264)

1/10/2020

-

Endnote 2—Amendment history

ad. = added or inserted   am. = amended    LA = Legislation Act 2003   rep. = repealed   rs. = repealed and substituted

Provision affected 

How affected

Section 2

rep. s48D LA

Subsection 4(1)

am. 2019/169 and 2020/827

Subsection 5(1)

am. 2018/810; 2019/169 and 2020/827

Subsection 5 (2)

rep. 2020/827

Paragraph 5(3)(a)

am. 2018/810 and 2020/827

Paragraph 5(3)(b)

am. 2018/810 and 2020/827

Subsection 5(3A)–(3C)

ad. 2019/169

Paragraphs 5(3A)

am. 2020/827

Paragraph 5(3B)(b)

am. 2020/827

Subsection 5(4)

am. 2017/0723

rep. 2020/827

Subsection 5(5)

rep. 2020/827

Subsection 6(1)

am. 2018/810 and 2019/169

rep. 2020/242

Subsection 6(1A)

ad. 2019/169, am. 2019/958

Subsection 6(1B)

ad. 2019/958

Subsection 6(1C)

ad. 2019/958

am. 2020/242

Subsection 6(2)

am. 2019/958 and 2020/242

Subsection 6(3)

am. 2019/958 and 2020/242

Subsection 6(3A)

ad. 2019/958

am. 2020/242

Subsection 6(4)

ad. 2019/169

Subsection 6(5)

ad. 2019/169, am. 2019/958

Subsection 6(6)

ad. 2019/169

Subsection 6(7)

ad. 2019/958

am. 2020/242

Subsection 6(8)

ad. 2020/202

Section 6A

ad. 2019/958

Section 6B

ad. 2019/958

Subsection 7(1)

am. 2016/913; 2018/810 and 2020/827

Subsection 8(1)

am. 2018/810 and 2019/169

Section 8

rep. 2020/827

Subsection 9(1)

am. 2016/913; 2018/810 and 2019/169

Section 9

rep. 2020/827

Section 10

rep. 2020/827

Subsection 11(1)

am. 2016/0043; 2017/0036; 2017/861; 2018/172 and 2020/242

Subsection 11(2)

am. 2020/242

Section 12

rep. 2020/827

Section 13

am. 2016/913; 2018/810 and 2020/827

Paragraph 14(a)

am. 2020/827