We support the proposed treatment of non-financial counterparties domiciled outside the EU and specifically the basis and thresholds for distinguishing between non-EU NFC+ and NFC- entities. We note, however, the absence of any distinction within the FC category between FC+ and FC- entities, whether based within or outside the EU. In our view, this is at odds with the equivalent US regulations promulgated by the CFTC, which provide that all US and non-US entities whose swap dealing activities do not exceed USD 3 billion (in the case of non-US entities, this concerns trades with US entities only), will not be deemed swap dealers" or "major swap participants" for purposes of complying with certain swap compliance obligations under Title VII of the Dodd Frank Act, notably the margining rules therein. If our interpretation is correct, we strongly advise the creation within EMIR of an FC- category for both EU and non-EU based entities, to level the playing field with the US. In any case, we strongly advise not to make the EU market excessively burdensome for all the smaller participants in the derivatives markets, whether based within or outside the EU (especially if the latter have a limited number of trades with EU-based entities). In this respect, we are especially concerned for the emerging and frontier market entities that participate in the derivative markets for non-speculative risks management purposes, who struggle hard enough already to cope with the hard currency collateral requirements of their foreign counterparties.
Related to our last point above, we completely fail to understand why unconditional irrevocable on-demand guarantees (and/or stand-by liquidity facilities) from the same issuers of debt securities that qualify as eligible collateral under section 5 of the draft RTS, could not qualify as eligible collateral under the same section. We consider that especially for the NFC- and FC- entities based in the emerging and frontier markets that have limited resources and depend on the active financial support of multilateral organizations, development finance institutions, and G20 governments supporting the Development Assistance Countries, this exclusion will prove itself over time to be unnecessarily debilitating to the development of the financial markets in these countries. In our eyes, this is as much a systemic risk as the common past practice of trading OTC derivatives without any form of collateral.
We mention these points on behalf of all the investors in The Currency Exchange Fund, including several micro-finance institutions and funds, the Dutch and German governments, the IFC, the EBRD, the African Development Bank, the Inter-American Development Bank, and the development banks of Germany, the Netherlands, Belgium, France, Spain, Japan, and South Africa. (An investment by the EIB is pending). For additional information on TCX, please see the attached Annual Report or visit www.tcxfund.com"
