In Deutsche Bank v Busto [2021] EWHC 2706, the English High Court recently considered the validity of certain swap contracts entered into between an Italian public authority (“Busto”) and Deutsche Bank AG, London Branch (“DB”). The capacity of public bodies to enter into derivative contracts has been fertile ground for litigation in recent years.

Continue Reading Capacity Request: validity of swaps entered into by Italian public authorities

With the 2021 United Nations Climate Change Conference (also known as COP26) coming to Glasgow later this month and amid numerous occurrences of extreme weather, there has been an increased global focus on climate change recently which is reflected in the financial markets. By some estimates, the sustainable finance market grew by almost 30% in 2020. Derivatives linked to environmental, social and governance (“ESG”) objectives have been around for several years, but this previously niche marketplace is growing, reinforcing the idea that derivatives have a key role to play in the advancement of ESG objectives in the financial markets and the global transition to a green economy.

Continue Reading ESG Derivatives: A Sustainable Trend

Two years ago, I was standing in front of our Mayer Brown offices in Frankfurt, boiling in 38 degree heat, filming a trailer for Linkedin for our 5th Annual OTC Derivatives Seminar, which we had clients coming from across Germany, to attend.

Last June , with international lock-down well under way, we took our 6th Annual OTC Derivatives Seminar online, and hundreds of clients and friends across the world tuned in.

This year we remained online, throwing open our virtual doors again, with our 7th Annual OTC Derivatives Seminar, which started on Monday 21 June.

We split the Seminar across 4 days , with a 30 minute session each day.

We looked at developments in Initial Margin; the new 2021 ISDA Definitions; regulatory updates in ESG, Brexit, Benchmark Regulation and LIBOR Transition; and the latest documentation, updates and changes to the German Master Agreement.

I was delighted to see hundreds of registrations from the UK, Germany, France, Spain, the United States, South Africa, Hong Kong, Singapore and beyond.  We also got some tremendous reach through our three Linkedin posts promoting the Conference: Linkedin Post #1 ; Linkedin Post #2 ; and Linkedin Post #3

Of course our team greatly missed catching up in person, as we took for granted in pre-Covid times, but being able to reach out to a broader audience is also very satisfying.

Last year, we thought that things would be back to normal by now. We still think the same now for next year, but I expect that “normal” will involve a mixture of live-streaming and live audience, with interaction from both audiences.

For those who were not able to attend, we are delighted to attach below the materials for the relevant sessions as well as links to the recordings, and we hope to see you either through live streaming or live audience next year:

Session 1

IM-Implementation for 2021 and 2022: Briefing and current implementation aspects
Monday, June 21 
Speakers: Arshak Mkrtchyan, Edmund Parker

Session 2

ISDA 2021 Definitions: A look into the major changes in concept and content
Tuesday, June 22
Speakers: Chris Arnold, Edmund Parker, Patrick Scholl

Session 3

Regulatory Updates: ESG, Brexit, Benchmark Regulation, LIBOR transition and other aspects
Wednesday, June 23
Speakers:  Chris Chapman, Marcel Hörauf, Edmund Parker, Patrick Scholl

Session 4

German Master Agreement: Roundup on latest documentation updates and changes
Thursday, June 24
Speakers: Ann-Kathrin Balster, Alexei Döhl, Patrick Scholl

Our annual Mayer Brown OTC Derivatives Seminar continues for a second year in webinar form.

This year, we offer you the opportunity to participate in an interactive seminar, structured as a series of four quick sessions. Each lasts around half an hour, with the opportunity to interact with our team in a live Q&A session.

The sessions will take place across four days, at 4:00 p.m. CET / 3:00 p.m. UK time, on 21, 22, 23 and 24 June 2021: CLICK HERE TO REGISTER .  A Video link to each session will be sent through to those registering, once the session has gone out live.

Please join our global derivatives team as we discuss some of this year’s most important topics. Topics, times and dates are as follows:

Session 1
IM-Implementation for 2021 and 2022: Briefing and current implementation aspects 
Monday, June 21, 2021, 4:00 p.m. CET
Speakers: Chris Arnold, Arshak Mkrtchyan, Ed Parker

Session 2
ISDA 2021 Definitions: A look into the major changes in concept and content
Tuesday, June 22, 2021, 4:00 p.m. CET
Speakers: Chris Arnold, Ed Parker, Patrick Scholl

Session 3
Regulatory Updates: ESG, Brexit, Benchmark Regulation, LIBOR transition and other aspects

Wednesday, June 23, 2021, 4:00 p.m. CET
Speakers: Chris Chapman, Marcel Hörauf, Ed Parker, Patrick Scholl

Session 4
German Master Agreement: Roundup on latest documentation updates and changes
Thursday, June 24, 2021, 4:00 p.m. CET
Speakers: Ann-Kathrin Balster, Alexei Döhl, Patrick Scholl

The International Swaps and Derivatives Association held its 35th annual general meeting over three days last week. Last year, the conference was due to be in Madrid, but it was postponed, and with international travel even less viable this year, the conference moved online.

For those unable to attend the online version, here is a summary of the highlights, from a few of three of the topics covered: IBOR transition, prudential issues such as Basel III implementation and future challenges and opportunities such as digitalisation.

Continue Reading Virtually the same: 35th ISDA AGM

Have you seen “At the Crossroads: CFTC and DOJ Enforcement“, our new video weekly series hosted by Mayer Brown partners Matthew F. Kluchenek and Glen A. Kopp?  It’s a must-see!

Each episode, they will discuss a topic at the intersection of enforcement by the Commodity Futures Trading Commission (CFTC) and the Department of Justice (DOJ). The goal: to help legal and compliance departments protect their organizations in an increasingly rigorous regulatory environment.

Insider trading in the Commodities/Derivatives Markets  is the focus of Episode 1

Since the CFTC formed its Insider Trading & Information Protection Task Force in 2018, the agency has brought a number of insider trading cases. In parallel, over the past 12 months, the DOJ has begun to prosecute cases of insider trading in the commodities markets. Matt and Glen explore these recent enforcement activities and how market participants can protect themselves.

The Working Group on Sterling Risk-Free Reference Rates (the Sterling Working Group) is an influential body of the Bank of England formed for the purpose of coordinating an orderly market transition from GBP LIBOR to risk free rates such as SONIA, by the end of 2021. During April 2021, it has published papers to assist derivative market participants with this transition. (For further background on the recommended timing for LIBOR transition see our Eye on IBOR Transition blog post here.)

Continue Reading A LIBOR of love: considerations for use of IBOR fall-backs or active transition

Following enactment of Dodd-Frank, and resulting changes to the commodity pool definition, more investment vehicles may be commodity pools.

Join Mayer Brown partners Matt Kluchenek and Anna Pinedo for a discussion of the most recent changes to the commodity pool definition, including relief given in late 2020, and much more in Practising Law Institute (PLI)’s webinar on May 7. Register here:

Synthetic Securitisation relies heavily on underlying credit derivatives and similarly structured guarantees, and has had the benefit of two new EU “Amendment Regulations“, both of which came into force on 9 April 2021.

The Amendment Regulations amend the EU Securitisation Regulation and the Capital Requirements Regulation (the “CRR“) and implement, the eagerly-anticipated,  STS (simple, transparent and standardised) framework for balance sheet synthetic securitisations.

CLICK HERE for our detailed analysis of the Amendment Regulation and new STS framework for synthetic securitisations written by Alice HarrisonRobyn LlewellynMariana Padinha RibieroMerryn Craske and me, Edmund Parker

In the Legal Update in our  LINK we set out in an annex a comparison between the new STS criteria for balance sheet synthetic securitisations and the established STS criteria for non-ABCP “traditional” securitisations on which the new framework is based.

Key differences which we highlight between the new framework and the established STS criteria for non-ABCP “traditional” securitisations include the following points:

  • Simplicity: criteria relating to true sale are not relevant for synthetic securitisations and so have not been included in the new framework. Instead, the underlying exposures need to have been originated as part of the core business activity of the originator and must be held on its balance sheet, the originator must not hedge its exposure beyond the protection obtained through the credit protection agreement, and additional representations and warranties are required from the originator in relation to the exposures and their origination.
  • Standardisation: criteria relating to the disclosure of hedging and currency risks have been expanded, amortisation requirements have been adapted and the originator is required to maintain a reference register with respect to the underlying exposures.
  • New requirements: specific criteria have been added on credit events, credit protection payments, the verification agent’s role and synthetic excess spread.

Helpfully, the new STS criterion for credit events, which is likely to be a particular area of focus for market participants, simply requires compliance with the requirements of Articles 215(1)(a) and 216(1)(a) of the CRR for a guarantee or credit derivative (as applicable) – rather than anything new or unfamiliar to the market.

The new STS criteria also include a list of items which a verification agent, who must be independent from the originator and the investors, needs to verify in relation to underlying exposures for which a credit event notice is given “as a minimum”.

As with the existing STS framework for traditional securitisations, originator institutions can benefit from preferential regulatory capital treatment as a result of structuring a synthetic securitisation so that it falls within the synthetic STS framework. However, this will only apply with respect to the senior position held by the originator institution and not to other positions which are held by investors.

On 9 April 2021, ESMA published the interim STS templates on which synthetic securitisations may be notified to ESMA as being STS-compliant

The Amendment Regulations are EU regulations and so will not be applicable in the UK, which is now subject to a separate, similar but not identical, securitisation regime .

We are not currently aware of any plans by the UK regulators to make corresponding changes to the EU Securitisation Regulation as it now applies in the UK, or the CRR as it forms part of “retained EU law” in the UK, and so the Amendment Regulations (for now) represent a divergence between the UK and EU regimes.

It’s now almost three months since the 2020 ISDA IBOR Fallbacks Protocol (the “Protocol“) went live.  In April, a US “legislative solution” became law for tough LIBOR legacy derivatives contracts governed by New York law, and in Germany the German Banking Association’s “Supplementary Agreement for IBOR Succession”, is gathering momentum.

In our latest, slide packed, video webinar ( CLICK HERE ) Mayer Brown partners Edmund Parker  and Patrick Scholl Patrick Scholl reflect on:

  • How successful has the ISDA Protocol been?
  • What does the FCA Announcement on the future cessation or loss of representativeness of all 35 LIBOR benchmarks mean in the context of the Protocol?
  • What impact will the US “ Legislative solution” which became law this week have on US tough legacy contracts?
  • How do you prepare for non-standard remediation?
  • What do you need to know about the German Banking Association’s “Supplementary Agreement for IBOR succession”

Please take a look: CLICK HERE on You Tube. We look forward to keeping you updated on future IBOR developments for derivatives, as the cessation process heats up.