Beruflich Dokumente
Kultur Dokumente
on OTC Derivative Instruments
(CESR/09768)
A response by
The British Bankers Association
and Xtrakter®
April 2010
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Introduction
The British Bankers’ Association is the leading association for UK banking and
financial services sector, speaking for over 200 banking members from 50 countries
on a full range of UK and international banking issues. All the major institutions in
the UK are members of our Association as are the large international EU banks, the
US banks operating in the UK, as well as financial entities from around the world.
The integrated nature of banking means that our members engage in activities
ranging widely across the financial spectrum encompassing services and products as
diverse as primary and secondary securities trading, insurance, investment banking
and wealth management as well as conventional forms of banking.
Xtrakter is a leading provider of capital markets data, operational risk management,
trade matching and regulatory reporting services to the global securities market. It
has an established track record in providing innovative, secure and reliable systems
for the financial services sector. Under the Markets in Financial Instruments
directive (MiFID), Xtrakter is an Approved Reporting Mechanism (ARM) to the: FSA
(UK), AMF (France) & AFM (Netherlands). Xtrakter additionally provides Primary
Dealers with an onward reporting facility to the National Bank of Belgium (NBB) in
accordance with the NBB and Securities Regulation Fund requirements. Xtrakter
was established in 1985 and is part of the Euroclear group of companies. It has 300
clients located globally, processes 2m transactions daily and has registered offices in
the United Kingdom.
Our members are the strongest partners of Competent Authorities in tackling
market abuse. Clean markets are a vital basis for the prosperity of both the City of
London and the wider single European market. The UK FSA has collected transaction
reports from OTC Derivatives whose value is derived from instruments admitted to
trading on a regulated market since the inception of MiFID. The BBA/Xtrakter OTC
Derivatives Transaction Reporting Working Group has worked closely alongside the
UK FSA over the past three years in order to assist it in developing and improving
systems that are capable of reporting OTC Derivatives. The majority of Europe’s OTC
Derivative Instrument trading also takes place in London. Our membership
therefore possesses extensive experience and knowledge with regard to reporting
their activity in OTC Derivative Instruments, and welcomes the opportunity to
respond to the CESR consultation on guidance to report transactions on OTC
Derivative Instruments (CESR/09768). This response represents our members’
considered view.
General Remarks
It is our understanding that CESR is currently considering producing a pan‐
European ‘Users Pack’ to assist European firms and Competent Authorities in the
transaction reporting of OTC Derivative Instruments. As CESR are aware, the UK FSA
have allocated a specific section of the FSA Transaction Reporting Users Pack (the
“TRUP”) to offer guidance to firms on the reporting of OTC Derivative Instruments.
We consider that a pan‐European users pack could prove useful to market
participants. However, we would warn against a situation whereby the document is
written at such a high level – in an attempt to accommodate all Member States’ OTC
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Derivative reporting frameworks – that it becomes of no use. Given the extensive
experience the UK FSA possesses with regard to the reporting of OTC Derivative
Instruments, we would encourage CESR to refer to the FSA TRUP in any attempts to
produce a pan‐European equivalent document for the reporting of OTC derivatives
Instruments.
As a note of caution, any pan‐European ‘Users Pack’ designed to help guide firms in
their reporting of OTC Derivative Instruments would need to be accompanied by a
suitably responsive industry working group at European level. This is necessary to
ensure the guidance remains relevant, up‐to‐date, and able to deal with new issues
as and when they emerge in the transaction reporting arena. It would not be
sufficient ‐ in terms of timeliness ‐ to rely on a formal consultation process on each
and every occasion the European Competent Authorities needed to review/adjust
the transaction reporting guidance. Firms will need to be fully included in this
process, enabling supervisors to harness their expertise in this area. This will assist
them in reaching their goals; i.e. the successful collection of OTC Derivative
Instrument transaction reports.
Population of fields per type of derivative
Q1: Do you agree that the Unit Price should be the premium per single underlying of
the contract as it is in market practice and not per contract?
There is no unanimous view amongst our membership on whether the Unit Price
should be the premium per single underlying of the contract, or per contract. Some
firms concur that the Unit Price should be the premium per single underlying of the
contract, as opposed to per contract. For example:
MTF. However, we do not consider that MTFs are used in the capture of an
execution. Rather. they are used post execution to exchange confirmation details.
OTC Derivative transactions are “bilateral” so at the present time we don’t consider
there to be executions on an MTF at all.
Q3: Any other views on the above?
No comment
OTC Options
Q4: Do you agree that in the case of multiple expiration dates, the field should be filled
in with the latest expiration date?
If the OTC Derivative Instrument has a single expiration date, the exercise/maturity
date should be used. Our membership is comfortable that for those OTC Derivative
Instruments with multiple expiration dates, the latest expiration date should be
populated.
Q5: Any other views on the above?
No comment.
Contracts for Difference (CfDs)
Q6: Do you agree than an option on a CFD on an equity is not a complex derivative as
the terms of the bet can be accommodated in the transaction reporting fields?
Yes, we agree that an option on a CFD on an equity is not a complex derivative. UK
firms are currently using derivative type ‘Y’ to report these instruments: ‘Contract
for Difference on an Option on an Equity’. CESR has opted not to include this as a
category within its list of derivative / instrument type.
Spread Bets
Q7: Do you agree that the Quantity field should contain the amount of the “bet”?
If by “amount” CESR is referring to notional size, then we agree that the Quantity
field should contain the amount of the ‘bet’.
Q8: Do you agree that the Unit Price field should contain the reference price for the
transaction?
Yes. We would agree that the Unit Price field should contain the reference price for
the transaction.
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Q9: Do you agree that the Unit Price should be in the currency of the underlying
instrument?
Yes, we agree that the Unit Price should be in the currency of the underlying
instrument. We also consider that any quantity should be displayed with applied FX
rate.
Q10: Do you agree that the Price Notation field should reflect the currency of the
underlying instrument even when the spread bet is made in a different currency?
No comment.
Q11(a): Do you agree that the Price Multiplier field should be populated to validate
what movement in the price of the underlying instrument the spread bet is based on
e.g. 100 for 1 point (cent/penny); 1 for 1 Euro/Pound movement?
No comment.
Q11(b): Do you agree that the spread bet will normally be based on a movement of
one point (cent/penny) movement in the price of the underlying instrument and the
Price Multiplier field should only be populated when the spread bet is not based on a
movement of one point?
No comment.
Q12: Do you agree that a transaction report is required for opening and closing a
spread bet and for the expiration of a spread bet?
No comment.
Q13: Do you agree that an option on a spread bet on an equity is not a complex
derivative as the terms of the bet can be accommodated in the transaction reporting
fields?
No comment.
Q14: In relation to spread bets on other MiFID instruments, do you have any views on
how the fields in a transaction report should be populated?
No comment.
Equity Swaps
Q15: Do you agree that the buyer of the Equity Swap (Buy/Sell Indicator field, B)
should be the Fixed Rate Payer?
The direction from the submitter’s point of view should be:
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Buy = Receives performance
Sell = Pay performance.
However, interest leg is not always 'Fixed Rate Payer’; It could instead be 'Floating
Rate Payer'.
Q16: Do you agree that the Quantity field should be the notional value of the Equity
Swap?
No. We believe the Quantity field should contain the number of shares. Use of the
notional will require the agreement of standard calculations.
Q17: Do you agree that the Unit Price field should contain reference price of the
underlying equity on which the equity returns are calculated?
We agree.
Q18: Do you consider that when the initial reference price is not known when the
Equity Swap is traded, this product should be considered a Complex Derivative?
No. We do not consider that when an Equity Swap is traded without the initial
reference price known, that it should be considered a Complex Derivative. It is still
an Equity Swap with a forward setting reference price. The reporting should allow
for this, and provide a date field for when the reference is observed, and allow for an
update to the transaction with the actual reference rate.
Q19: Do you agree that Equity Swaps with two Equity legs should be reported with
two different transaction reports with the same Transaction Reference Number for
both reporting firms?
An Equity Swap usually has two legs: an equity leg ‐ transaction reportable; and an
interest rate leg – non‐reportable (as underlying is an interest rate). Most of these
Equity Swaps would have an index as one leg, and therefore would not be
reportable. For those Equity Swaps with two equity legs, we fundamentally disagree
they should be reported by two different transaction reports with the same
Transaction Reference Number for both reporting firms. The issues associated with
implementing the infrastructure required to make two transaction reports for a
single transaction would be insurmountable. Firstly there would need to be a
process whereby each counterparty agrees the reference number prior to the end of
day T+1 reporting requirement. Secondly systems would have to carry two
reference numbers; one being the reference number agreed and one being the
system generated reference number needed to ensure all references in the system
are unique. Within our members’ systems all trades are allocated a unique system
generated reference number, which firms use for current transaction reporting
purposes. If both counterparties to an Equity Swap with two Equity Legs were
forced to introduce the same transaction reporting reference number, this would
create significant additional IT costs as it would involve creating extra fields within
our members’ systems to carry two reference numbers.
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Credit Default Swaps
Q20: Which instrument should be reported as the ultimate underlying instrument for a
CDS? the market clip, the reference bond if any , or the ISIN of the stock of the issuer ?
(Warning : these are mutually exclusive options, i.e. participants would not have the
choice between different reporting options. Once one of them has been selected, it
would become the only standard for reporting)
Whilst members of the BBA do use Markit’s ‘Clip’ in their transaction reporting
systems, we would urge CESR to carefully consider the use of proprietary
information as a mandatory transaction reporting requirement.
We would suggest that reporting the ISIN of the reference obligation is the best
approach for reporting CDS trades. Despite some of the issues with reporting the
ISIN as the reference obligation (which we will outline below) our members would
still prefer to report the ISIN rather than a Markit ‘Clip’ code. Issues to be resolved
for ISIN reporting include: (a) regulatory requirements or standards for reporting
on the contract reference entity, which could be either the issuer or guarantor of the
reference obligation; and (b) we are mindful of the situation where a CDS can exist
without a reference obligation.
We have outlined that the ISIN of the reference obligation is our preference.
However, if the Markit Clip were to be used the 6 digit Entity Clip would be our
preferred choice over the 9 digit Pair Clip. If CESR were to mandate the use of the
Entity Clip, it should consider carefully the licensing conditions of the information
and the code set‐up time, as Markit do not provide 100% coverage of all names on
which Credit Default Swaps can be traded. Markit should commit to providing the
data for transaction reporting purposes on the basis that it will be free permanently
and in perpetuity. The reporting obligation is T+1 and many firms run overnight
batches to generate transaction reports. The Markit Entity Clip would need to be set‐
up on trade date and Markit would need to commit to providing this level of service
in all cases.
Q21: Do you agree that the price should be an equivalent allrunning payment price
expressed in basis points?
We understand that ‘all running payment price’ in the above question refers to a
price expressed in basis points that incorporates both the coupon and the upfront
payment. We believe that the market practice relating to non standardised trades is
to report the executed spread which is the actual spread with no adjustment for the
upfront fees. However, the market practice to report standardised trades does take
into account the upfront fees. Therefore, in order to record the CDS price according
to market convention for standardised trades, both running spread in basis points
and the upfront fee will need to be captured and reported.
In the UK only single name CDS trades are reportable. There are two different
industry standards for quoting the price. One is an execution spread in basis points
and the other is a points up front value representing a percentage of the notional
being protected. Whilst it is possible to convert from one format to the other, we
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would strongly prefer that different price formats are accommodated, rather than
CESR requiring receipt of the data in a single format.
If a single format is to be required, certain assumptions need to be made in order for
this to be possible, an example being interest rate values. If regulators request this
conversion we would seek clarity on the conversion method to be used and would
suggest the ISDA CDS Standard Model be applied to standardise the expression of
CDS prices for transaction reporting across the industry.
An example might be the best way to illustrate the situation. Consider a 10M USD
Standard European Corporate 5 year CDS with a fixed coupon of 100 bps and an
assumed recovery rate of 40%. This trade could be executed at a conventional
spread of 150 bps for example.
We would suggest that the value to be reported as the price is 150.
The trade leads to an upfront fee of 227,396 USD ‐ shown below.
(http://www.markit.com/cds/cdspage.html)
The upfront fees are dependant on the notional size of the trade so are not easily
comparable when considering the level at which the trades were executed. We
would suggest therefore they do not assist in the monitoring of market abuse and
should not be reported.
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Q22: Do you agree the price notation should be the currency of the debt protected by
the CDS?
No. We consider that the currency of the notional protected should be reported. It is
normal to trade sovereign names in a currency different to the currency of the debt.
For example the notional protected on a Greek sovereign CDS is normally
denominated in USD.
Q23: Do you agree that early terminations should be reported, while assignments and
compression should not be reportable?
Reporting of Early Terminations:
The BBA does not consider that the reporting of early terminations of Credit Default
Swaps (CDS) should be made mandatory. Currently, under UK rules (Sup 17.1.4 R) a
firm which executes a transaction in a reportable financial instrument must submit a
transaction report. This is consistent with original Level 1 MiFID text (Directive
2004/39/EC, Section 3, Article 25, paragraph 3) whereby:
“Member States shall require investment firms which execute transactions in
any financial instruments admitted to trading on a regulated market to report
details of such transactions to the competent authority”.
While the term “execute” is not defined in the rules, “transaction” is defined as “only
the purchase and sale of a financial instrument”. OTC Derivative products can have a
number of life cycle events as a result of the terms of the original contact. Many of
these events do not fall within the traditional definition of a transaction and
therefore we do not consider them to be transaction reportable under MiFID. Our
membership considers that early terminations of CDS contracts (full or partial)
represent a reduction in the notional amount of the contract, and therefore, that they
are not reportable under MiFID.
The reporting of early terminations in the CDS space is an extension to current
requirements. If the reporting of early terminations were to become mandatory it
would require significant systems changes to be made at individual firm, ARM and
supervisor level. There would be an abundance of static data issues to consider and,
given a number of the exceptions within the rules, our members believe that the cost
to the industry would far outweigh the benefits in terms of detecting market abuse.
The cost is exacerbated given that OTC systems are built ‘in house’ and are disparate
across different asset classes. If the reporting of early terminations were to be made
mandatory it would come at a great cost to all parties; a cost we do not believe will
be justified through a significant advance in the detection of market abuse.
We also understand that CESR is considering the definition of ‘execution’ in a
separate, but nonetheless related, work stream. We believe any decision regarding
the reporting of business events should be postponed until this work stream has
reached fruition, given its bearing on the debate.
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Method of Reporting:
We have outlined above that we do not concur with CESR’s view that early
terminations of CDS are reportable. Notwithstanding this, if the reporting of early
terminations were to be made mandatory, we do not agree with the approach
outlined within the consultation document, i.e. early terminations should be
reported, and this should usually take the form of a reverse transaction of the initial
one. This approach would prove a significant challenge for some firms to implement
as the reverse transaction may not, per se, exist in the systems used to confirm /
clear OTC Derivative Instruments and from where many firms originate their
transaction reports.
Assignments and Compressions:
If CESR concludes that early terminations are reportable, we are unsure on what
grounds it would be reasonable to exclude the reporting of assignments (full or
partial). It is the view of CESR that early terminations should be included because
the party who has instigated the early termination may have done so in order to take
advantage of a piece of inside information in their possession. In a similar vein, CDS
assignments (full or partial) occur when the buyer of protection forces the seller of
protection to transfer the contract to another seller. It is possible that the buyer
requests the transfer because they are in receipt of inside information which they
are attempting to profit from. It is therefore difficult to see how CESR can
distinguish, in terms of market abuse detection, between an early termination and
an assignment. An assignment poses no lesser risk of market abuse than what an
early termination does. We maintain our position that the reporting of early
terminations should not be made mandatory; However if they are to be reported ‐
for the sake of consistency and clarity ‐ assignments should be collected also. Both
events involve very similar interactions with the client.
We concur with CESR that the reporting of compressions in the CDS space should
not be made mandatory. A compression amounts to a change to the notional amount
of the outstanding CDS contract. We therefore do not consider them reportable
under MiFID. Compressions represent ‘white noise’ and will provide no benefits in
terms of market abuse detection. We would seek clarity on the whether
“compression” covers both the terminations and the new trades that result from the
compression activity, or just the terminations.
It is not clear as to why CESR have only discussed the potential reporting of business
events only in the context of Credit Default Swaps. Business events are not confined
to CDS, and equally occur in the Contracts for Difference, Equity Swap and OTC
Options markets. For the purposes of clarity and consistency, it is important we
examine, and ultimately treat business events equally across the board, for all OTC
Derivative Instruments; not just those in the CDS sphere.
Scope:
The debate around whether business events are reportable is a long running, and
contentious one. Any solution must be pan‐European in scope. Our members are
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keen to avoid a situation whereby they are forced to make systems changes due to
the requirements of their national supervisor ‐ only for CESR to mandate further
changes a short time thereafter. This will represent a duplication of efforts, and an
unnecessary cost burden, at a time when the regulatory landscape is already
changing shape at such a great pace. A European consensus around business events
is necessary to avoid this, and we would ask CESR to encourage its members to delay
making any national changes in this area until a conclusion is reached at the
European level. This is the optimal solution.
Timeline:
As we have outlined above, mandatory reporting of early terminations in the CDS
space is an extension to the current requirements, and would require firms to make
significant systems changes. There would be a raft of different issues to consider,
and further difficulties down to the fact firms OTC Derivative systems are largely
built in house and are disparate across different asset classes. However CESR
proceed, a big systems build will undoubtedly be required. We understand,
informally, that CESR are hoping to begin the exchange of OTC Derivative
transaction reports by quarter four 2010. Our membership have indicated that this
is not nearly sufficient enough time for them to have the correct systems in place to
begin reporting early terminations. The industry would require a minimum lead
time of 6 months for systems developments upon publication of the final
specification from their home competent authority.
The European Commission has recently published a series of discussion papers to all
Member State’s Finance Ministries on the ensuing European Markets and
Infrastructures Legislation (EMIL). As part of this work stream the Commission will
be defining ‘standardised’ derivatives contracts, and the conditions around centrally
clearing these standardised contracts through a CCP. Whilst this debate is ongoing, it
is clear it will have implications for the OTC Derivative market. If a race to
standardise OTC Derivative contracts develops, European supervisors can expect an
enormous amount of business events to be reported in its wake. Therefore, the most
sensible approach would be to delay the reporting of business events/early
terminations until after the ‘race’ to standardise has been completed.
Complex Derivatives
Q24: Do you have any other relevant examples that should be added into CESR
guidelines? Please give detailed explanations of the example.
Q25: Do you agree that the Instrument Description field should be required to be
populated at local level, in order to explain the derivative being reported?
The BBA’s view is consistent with that of CESR’s in so far as, where possible, firms
should use the first seven specific derivative types to classify the OTC Derivative
Instrument being reported. However, as CESR note, there are certain OTC Derivative
Instruments that are particularly complex in structure. The current set of reporting
fields within the Transaction Reporting Exchange Mechanism (TREM) are
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Further examples that we consider can be classed as complex include:
1) Options with forward start dates These are options that start at some
specified future date with an expiration further in the future. The strike price is not
know a priori. It can be set in the future as a percentage of the spot price of the
underlying at the option start date.
2) Cliquet Option This is an option in which the strike price periodically resets
before the final expiry is reached. When the resetting date is reached, the option will
expire worthless if the current price of the security is below the strike price, and the
strike price will reset to this lower security price. If the resetting date is reached and
the security is trading higher than the strike price, the investor will earn the
difference and the strike price will reset to the higher security price. It is unsuitable
for classification as an OTC option if this is associated with a mandatory strike price
field
This list should also not be seen as exhaustive. The nature and dynamics of the
Derivatives markets mean new instruments are being created and developed at to
greater a pace to expect CESR to be able to keep a list of ‘complex’ OTC Derivatives
au courant. Providing the reporting firm is able to justify their reasons for using the
‘complex’ category (i.e. using the other ‘vanilla’ derivative categories could
potentially create a misleading picture for the competent authority) the firm should
be able to utilise the category. Notwithstanding this, we wholeheartedly agree that
the ‘complex’ derivatives category should not be abused. We agree with CESR that it
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is sensible for firms to inform their competent authority of what types of OTC
Derivative Instruments they are using the ‘complex’ category to report; either before
or within a reasonable timeframe after they begin reporting.
Instrument Description Field:
CESR has proposed not to exchange a text description of the OTC Derivative
Instrument over the Transaction Reporting Exchange Mechanism (TREM) because of
the associated language difficulties. Instead, CESR inquire as to whether a free text
field (for instrument description purposes) may be useful if populated at a local
level. It is the view of the BBA that a free text instrument description field is
definitely of use, and should certainly be populated at a local level. However, we also
consider that the instrument description should be included as part of the OTC
Derivative report exchanged by competent authorities over TREM.
The instrument text description field is of utmost importance when considering
‘complex’ derivatives. This is because a significant amount of validation is potentially
lost when these instruments are initially exchanged over TREM (given the
population of certain fields is not mandatory). Without an instrument description to
accompany the initial transaction report we will see a situation arising whereby
many very discrete ‘complex’ derivatives are grouped together under a single code,
preventing the competent authority from being able to distinguish between them.
Accordingly, the competent authority would be forced to send an ‘ad‐hoc’ request to
the competent authority from which the report originated, should they wish to
receive any further information. We fear this will be a far too frequent occurrence if
the instrument description is omitted, making the process both inefficient and
resource intensive. To omit the instrument description on the basis of potential
language barriers would appear a little ‘short‐sighted’, as text can be translated,
quite easily, on a needs‐be basis. Further, CESR should also consider proposing a
standardised format as to how the field should be populated. We ask CESR to
reconsider its decision not too exchange the instrument description over TREM.
We hope that you will find these comments useful, and remain at your disposal
should you wish to discuss this response. In such instances, please contact either
Christopher Ford (020 7216 8895; christopher.ford@bba.org.uk) or Ross Barrett
(020 7216 8841; ross.barrett@bba.org.uk) of the British Bankers Association, or
Adrian Gill (020 7510 2646; adrian.Gill@xtrakter.com) of Xtrakter.