On November 14, 2013, the Division of Swap Dealer and Intermediary Oversight ("DSIO") of the Commodity Futures Trading Commission ("CFTC") issued CFTC Staff Advisory No. 13-69 in response to certain inquiries as to the applicability of transaction-level requirements with respect to certain swaps of non-US swap dealers ("SD") if such swap is arranged, negotiated or executed by personnel or agents of the non-US SD located in the United States. The DSIO is of the view, however, that a non-US SD (whether an affiliate or not of a US person) regularly using personnel or agents located in the US to arrange, negotiate or execute a swap with a non-US person would generally be required to comply with the transaction-level requirements. For the avoidance of doubt, the DSIO states that the view would also apply to a swap between a non-US SD and a non-US person booked in a non-US branch of the non-US SD if the non-US SD is using personnel or agents located in the US to arrange, negotiate or execute the swap. While the DSIO notes that the CFTC's Cross-Border Guidance provides for substituted compliance for transaction-level requirements with respect to swaps between a non-US SD and a non-US person , DSIO explains that it believes that the CFTC has a strong supervisory interest in swap dealing activities that occur within the United States, regardless of the status of the counterparties.
Transaction-level requirements under the Cross Border Guidance include: (i) required clearing and swap processing, (ii) margining and segregation for uncleared swaps, (iii) trade execution, (iv) swap trading relationship documentation, (v) portfolio reconciliation and compression, (vi) real-time public reporting, (vii) trade confirmation, (viii) daily trading records, and (ix) external business conduct standards.
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 - Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations, 78 FR 45292 (July 26, 2013) ("Cross Border Guidance")
 - Such requirements would not apply at all depending on whether or not such non-US person is a guaranteed affiliate or affiliate conduit of a US person.
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