Headnote
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions – Application by bank and wholly owned subsidiary of bank for relief from registration and prospectus requirements that may otherwise be applicable to certain trades in over-the-counter (OTC) derivatives made by either filer to a “permitted counterparty”, or by a permitted counterparty to either filer, subject to certain terms and conditions – permitted counterparties will consist exclusively of persons or companies who are non-individual “permitted clients” as defined in Section 1.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations – Filers will not offer or provide credit or margin to any permitted counterparty – Filers seeking relief in Ontario and in certain other jurisdictions as interim response to current regulatory uncertainty associated with OTC Derivatives in Canada – Filers intend to rely on comparable exemptions contained in blanket orders for trades with “qualified parties” in certain jurisdictions and, in Quebec, exemption under Quebec derivatives legislation for trades with “accredited counterparties” – relief granted subject to certain terms and conditions, including sunset provision of up to four years
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., ss. 25(1), 53(1) and 74(1)
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 1.1 (“permitted client”)
Proposed OSC Rule 91-504 Over-The-Counter Derivatives (not adopted)
October 11, 2011
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF DEUTSCHE BANK AG (the Bank)
AND
DB COMMODITIES CANADA LTD. (DBCC, and, together with the Bank, the Filers)
DECISION
Background
The principal regulator in the Jurisdiction has received an application (the Application) from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the dealer registration requirement and the prospectus requirement in the Legislation that may otherwise be applicable to a trade in or distribution of an OTC Derivative (as defined below) made by either
i) the Bank or DBCC to a “Permitted Counterparty” (as defined below), or
ii) by a Permitted Counterparty to either the Bank or DBCC,
shall not apply to the Bank, DBCC or the Permitted Counterparty, as the case may be (the Requested Relief), subject to certain terms and conditions.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) the Ontario Securities Commission is the principal regulator for the Application; and
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Manitoba, New Brunswick (to the extent Local Rule 91-501 Derivatives does not apply), Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut.
Interpretation
Terms defined in National Instrument 14-101 Definitions or MI 11-102 have the same meanings if used in this decision, unless otherwise defined.
The terms OTC Derivative and Underlying Interest are defined in the Appendix (the Appendix) to this decision.
The term Permitted Counterparty means a person or company that
(a) is a “permitted client”, as that term is defined in section 1.1[Definition of terms used throughout this Instrument] of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103); and
(b) is not an individual.
Representations
This decision is based on the following facts represented by the Filers:
The Filers
The Bank is an authorized full-service foreign bank under Part XII.1 of the Bank Act (Canada). Its Canadian head office is located in Toronto, Ontario.
The Bank conducts a global OTC derivative trading business both directly and indirectly through its affiliated entities. In Canada, this OTC derivative trading business is conducted by both the Bank and DBCC.
DBCC is a corporation incorporated under the Canada Business Corporations Act. It is a wholly owned subsidiary of the Bank. DBCC’s head office is located in Toronto, Ontario.
DBCC is engaged in the business of marketing, trading, transporting or transmitting, and storing, as applicable, the following commodities in Canada’s wholesale commodities markets: energy commodities, principally natural gas; crude oil; electricity; base and precious metals; and agricultural commodities. It engages in such activities with commodity producers and end-users; marketers; financial and other market intermediaries; and transportation or transmission and storage service providers. It does so through: cash-settled and physically settled OTC derivative transactions; exchange traded commodity futures contacts or commodity futures options: and transportation, transmission and storage agreements or tariffs; or some combination of the foregoing.
DBCC currently conducts its business only in the provinces of British Columbia, Alberta, Saskatchewan and Quebec. It is not registered in any capacity under the securities, commodity futures or derivatives legislation of any province or territory of Canada.
Proposed Conduct of OTC Derivative Transactions
The Filers propose to market, and enter into, bilateral OTC Derivatives, to, and with, counterparties located in all provinces and territories of Canada that consist exclusively of persons or companies that are Permitted Counterparties. The Underlying Interest of the OTC Derivatives that are entered into between the Filers and their Permitted Counterparties will consist of: a commodity; an interest rate; a currency; a foreign exchange rate; a security; an economic indicator; an index; a basket; a benchmark; another variable; another OTC Derivative; or some relationship between, or combination of, one or more of the foregoing.
The Filers will not offer or provide credit or margin to any of their Permitted Counterparties.
The Filers seek the Requested Relief as an interim, harmonized solution to the uncertainty and fragmentation that currently characterizes the regulation of OTC Derivatives across Canada, pending the development of a uniform framework for the regulation of OTC derivative transactions in all provinces and territories of Canada.
Regulatory Uncertainty and Fragmentation associated with the Regulation of OTC Derivative Transactions in Canada
There has generally been a considerable amount of uncertainty respecting the regulation of OTC Derivative transactions as “securities” in the provinces and territories of Canada other than Quebec (the Relevant Jurisdictions).
In each of British Columbia, Alberta, Saskatchewan, Prince Edward Island and New Brunswick, and in each of the Yukon, the Northwest Territories and Nunavut (collectively, the Territories), OTC Derivative transactions are regulated as securities on the basis that the definition of the term “security” in the securities legislation of each of these jurisdictions includes an express reference to a “futures contract” or a “derivative”.
In each of Manitoba, Ontario and Nova Scotia, it is not certain whether, or in what circumstances, OTC Derivative transactions are “securities” because the definition of the term “security” in the securities legislation of each of these jurisdictions makes no express reference to a “futures contract” or a “derivative”.
In October 2009, OSC staff published OSC Staff Notice 91-702 Offerings of Contracts for Difference and Foreign Exchange Contracts to Investors in Ontario (OSC Notice 91-702). OSC Notice 91-702 states that OSC staff take the view that contracts for differences (CFDs), foreign exchange contracts and similar OTC Derivative products, when offered to investors in Ontario, engage the purposes of the Act and constitute “investment contracts” and “securities” for the purposes of Ontario securities law. However, OSC Notice 91-702 also states that it is not intended to address direct or intermediated trading between institutions. OSC Notice 91-702 does not provide any additional guidance to the Filers on the extent to which OTC Derivative transactions between the Filers and Permitted Counterparties may be subject to Ontario securities law.
In Quebec, OTC Derivative transactions are subject to the Derivatives Act (Quebec) (the QDA), which sets out a comprehensive scheme for the regulation of derivative transactions that is distinct from Quebec’s securities regulatory requirements.
In each of British Columbia, Alberta, Saskatchewan and New Brunswick (the Blanket Order Jurisdictions) and Quebec (collectively, the OTC Exemption Jurisdictions), OTC derivative transactions are generally not subject to securities or derivative regulatory requirements, pursuant to applicable exemptions (the OTC Derivative Exemptions), when they are negotiated, bi-lateral contracts that are entered into between sophisticated non-retail parties, referred to as “Qualified Parties” in the Blanket Order Jurisdictions and “accredited counterparties” in Quebec.
The corresponding OTC Derivative Exemptions are as follows:
Province OTC Derivative Exemption
British Columbia Blanket Order 91-501 Over-the-Counter Derivatives
Alberta ASC Blanket Order 91-503 Over-the-Counter Derivatives Transactions and Commodity Contracts
Saskatchewan General Order 91-907 Over-the-Counter Derivatives
Quebec Section 7 of the Quebec Derivatives Act
New Brunswick Local Rule 91-501 Derivatives
In Ontario, the Bank may trade OTC Derivatives in reliance upon the exemption from the dealer registration requirement contained in section 35.1 of the Securities Act (Ontario) (the Ontario Act). This exemption is, however, not available to DBCC, or to other Permitted Counterparties that are not financial institutions referred to in that section.
Before March 17, 2010, section 3.3[Accredited investor] of National Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106) provided an exemption from the dealer registration requirement for certain trades made to “accredited investors”, which may have been relied upon by persons or companies entering into OTC Derivative transactions considered to be securities. However, in Ontario and Newfoundland and Labrador this exemption was not available to most “market intermediaries” due to section 3.0[Removal of exemptions --- market intermediaries].
The Evolving Regulation of OTC Derivative Transactions as Derivatives
Each of the OTC Exemption Jurisdictions has sought to address the regulatory uncertainty associated with the regulation of OTC derivative transactions as securities by regulating them as derivatives rather than securities, whether directly through the adoption of a distinct regulatory framework for derivatives in Quebec, or indirectly through amendments to the definition of the term “security” in the securities legislation of the other OTC Exemption Jurisdictions and the granting of the OTC Derivative Exemptions.
Between 1994 and 2000, the Ontario Securities Commission (OSC) sought to achieve a similar objective by introducing proposed OSC Rule 91-504 Over-the-Counter Derivatives (the Proposed OSC Rule) for the purpose of establishing a uniform, clearly defined regulatory framework for the conduct of OTC derivative transactions in Ontario, but the Proposed OSC Rule was returned to the OSC for further consideration by Ontario’s Minister of Finance in November, 2000.
The Final Report of the Ontario Commodity Futures Act Advisory Committee published in January, 2007 (the CFA Report) concluded that OTC derivative contracts are not suited to being regulated in accordance with traditional securities regulatory requirements and should therefore be excluded from the scope of securities legislation, because they are used for commercial-risk management purposes and not for investment or capital-raising purposes.
Ontario has now established a framework for regulating the trading of derivatives in Ontario (the Ontario Derivatives Framework) through amendments to the Ontario Act that were made by the Helping Ontario Families and Managing Responsibility Act, 2010 (Ontario).
The amendments to the Ontario Act establishing the Ontario Derivatives Framework will not become effective until the date on which they are proclaimed in force. These amendments are not expected to be proclaimed in force until an ongoing public consultation on the regulation of OTC derivatives has been completed.
Unlevel Playing Field
While the Proposed OSC Rule was under consideration by the OSC between 1994 and 2005, a number of OTC derivatives market participants obtained discretionary exemptions from the dealer registration and prospectus requirements of the Ontario Act that were based upon the Proposed OSC Rule (the OSC OTC Trading Exemptions), and also similar to the Requested Relief.
In 2005, OSC staff indicated to market participants that staff were no longer inclined to recommend relief by analogy to the Proposed OSC Rule (that had not been adopted), because the introduction of an “accredited investor” exemption, through amendments to OSC Rule 45-501 Ontario Prospectus and Registration Exemptions, permitted persons or companies to conduct OTC derivative transactions in accordance with dealer registration and prospectus exemptions there were made available for certain trades with accredited investors.
The OSC OTC Trading Exemptions granted prior to 2005 have provided the recipients of OSC OTC Trading Exemptions (the Exempt Counterparties) with a competitive advantage over the Filers and other prospective Ontario OTC derivative market participants and will continue to do so in the absence of similar relief being made available to the Filers and other market participants.
Rationale for Requested Relief
- The Requested Relief would substantially address, for the Filers and their Permitted Counterparties, the regulatory uncertainty and fragmentation that is currently associated with the regulation of OTC Derivative transactions in Canada, by permitting these parties to enter into OTC Derivative transactions in reliance upon exemptions from the dealer registration and prospectus requirements of the securities legislation of each Relevant Jurisdiction that are comparable to the OTC Derivative Exemptions
Books and Records
The Bank is a “market participant”, and DBCC will become a “market participant” as a consequence of this decision. For the purposes of the Ontario Act, and as a market participant, each of the Filers is required by subsection 19(1) of the Ontario Act to: (i) keep such books, records and other documents as are necessary for the proper recording of its business transactions and financial affairs, and the transactions that it executes on behalf of others; and (ii) keep such books, records and documents as may otherwise be required under Ontario securities law.
For the purposes of their compliance with subsection 19(1) of the Act, the books and records that each of the Filers will keep will include books and records that:
(a) demonstrate the extent of the Filer's compliance with applicable requirements of securities legislation;
(b) demonstrate compliance with the policies and procedures of the Filer for establishing a system of controls and supervision sufficient to provide reasonable assurance that the Filer, and each individual acting on its behalf, complies with securities legislation;
(c) identify all derivatives transactions conducted on behalf of the Filer and each of its clients, including the name and address of all parties to the transaction and its terms; and
(d) set out for each derivatives transaction entered into by the Filer, information corresponding to that which would be required to be included in an exempt distribution report for the transaction, if the transaction were entered into by the Filer in reliance upon the “accredited investor” prospectus exemption in section 2.3[Accredited investor] of NI 45-106.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator is that the Requested Relief is granted, provided that:
(a) the counterparty to any OTC Derivative transaction that is entered into by a Filer is a Permitted Counterparty;
(b) in the case of any trade made by the Filer to a Permitted Counterparty, the Filer does not offer or provide any credit or margin to the Permitted Counterparty; and
(c) the Requested Relief shall terminate on the date that is the earlier of:
(i) the date that is four years after the date of this decision; and
(ii) the coming into force in the Jurisdiction of legislation or a rule which specifically governs the conduct of OTC derivative transactions.
“Vern Krishna” “Kevin J. Kelly”
Appendix
Definitions
“Clearing Corporation” means an association or organization through which Options or futures contracts are cleared and settled.
“Contract for Differences” means an agreement, other than an Option, a Forward Contract, a spot currency contract or a conventional floating rate debt security, that provides for
(a) an exchange of principal amounts; or
(b) the obligation or right to make or receive a cash payment based upon the value, level or price, or on relative changes or movements of the value, level or price of, an Underlying Interest.
“Forward Contract” means an agreement, not entered into or traded on or through an organized market, stock exchange or futures exchange and cleared by a Clearing Corporation, to do one or more of the following on terms or at a price established by or determinable by reference to the agreement and at or by a time established by or determinable by reference to the agreement:
(a) make or take delivery of the Underlying Interest of the agreement; or
(b) settle in cash instead of delivery.
“Option” means an agreement that provides the holder with the right, but not the obligation, to do one or more of the following on terms or at a price determinable by reference to the agreement at or by a time established by the agreement:
(a) receive an amount of cash determinable by reference to a specified quantity of the Underlying Interest of the Option.
(b) purchase a specified quantity of the Underlying Interest of the Option.
(c) sell a specified quantity of the Underlying Interest of the Option.
“OTC Derivative” means one or more of, or any combination of, an Option, a Forward Contract, a Contract for Differences or any instrument of a type commonly considered to be a derivative, in which:
(a) the agreement relating to, and the material economic terms of, the Option, Forward Contract, Contract for Differences or other instrument have been customized to the purposes of the parties to the agreement and the agreement is not part of a fungible class of agreements that are standardized as to their material economic terms;
(b) the creditworthiness of a party having an obligation under the agreement would be a material consideration in entering into or determining the terms of the agreement; and
(c) the agreement is not entered into or traded on or through an organized market, stock exchange or futures exchange.
“Underlying Interest” means, for a derivative, the commodity, interest rate, currency, foreign exchange rate, security, economic indicator, index, basket, benchmark or other variable, or another derivative, and, if applicable, any relationship between, or combination of, any of the foregoing, from or on which the market price, value or payment obligations of the derivative are derived or based.
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