Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from certain specified derivatives and custodial requirements to permit mutual funds to enter into swap transactions that are cleared through a clearing corporation – relief required because of new U.S. requirements to clear over-the-counter derivatives including swaps - decision treats cleared swaps similar to other cleared derivatives – National Instrument 81-102 Mutual Funds
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, ss. 2.7(1) and (4), 6.8(1), 19.1
July 25, 2013
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
CI INVESTMENTS INC.
(the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation), pursuant to section 19.1 of National Instrument 81-102 Mutual Funds (NI 81-102), exempting each Existing CI Fund (as defined below) and all current and future mutual funds managed by the Filer that enter into Swaps (as defined below) in the future (each, a Future CI Fund and, together with the Existing CI Funds, each, a CI Fund and, collectively, the CI Funds):
(i) from the requirement in subsection 2.7(1) of NI 81-102 that a mutual fund must not purchase an option or a debt-like security or enter into a swap or a forward contract unless, at the time of the transaction, the option, debt-like security, swap or contract has a designated rating or the equivalent debt of the counterparty, or of a person or company that has fully and unconditionally guaranteed the obligations of the counterparty in respect of the option, debt-like security, swap or contract, has a designated rating;
(ii) from the limitation in subsection 2.7(4) of NI 81-102 that the mark-to-market value of the exposure of a mutual fund under its specified derivatives positions with any one counterparty other than an acceptable clearing corporation or a clearing corporation that settles transactions made on a futures exchange listed in Appendix A to NI 81-102 shall not exceed, for a period of 30 days or more, 10 percent of the net asset value of the mutual fund; and
(iii) from the requirement in subsection 6.1(1) of NI 81-102 to hold all portfolio assets of a mutual fund under the custodianship of one custodian in order to permit each CI Fund to deposit cash and portfolio assets directly with a Futures Commission Merchant (as defined below) and indirectly with a Clearing Corporation (as defined below) as margin,
in each case, with respect to cleared Swaps (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada (the Other Jurisdictions).
Interpretation
Terms defined in NI 81-102, National Instrument 14-101 Definitions, and MI 11-102 have the same meaning if used in this decision, unless otherwise defined. Capitalized terms used in this decision have the following meanings:
“CFTC” means the U.S. Commodity Futures Trading Commission
“Clearing Corporation” means any of the Chicago Mercantile Exchange Inc., ICE Clear Credit LLC, LCH.Clearnet Limited and any other clearing organization that is permitted to operate in the Jurisdiction or the Other Jurisdiction, as the case may be, where the CI Fund is located
“Dodd-Frank” means the Dodd-Frank Wall Street Reform and Consumer Protection Act
“Existing CI Funds” means any of Signature Diversified Yield Fund, Signature Global Bond Fund, Signature High Yield Bond Fund, Signature Canadian Balanced Fund, Signature High Income Fund, Signature Canadian Bond Fund, Signature Diversified Yield Trust, Signature High Yield Bond Trust, Signature Global Income & Growth Fund, Signature High Yield Bond Corporate Class, Select Income Managed Corporate Class, Signature Global Bond Corporate Class, Signature Canadian Bond Corporate Class, Signature High Income Corporate Class, Signature Corporate Bond Corporate Class, Signature Income & Growth Corporate Class, Signature Global Income & Growth Corporate Class, CI Short-Term Advantage Corporate Class, Signature Diversified Yield Corporate Class, Signature Income & Growth Fund, Signature Short-Term Bond Fund, Signature Corporate Bond Fund, Signature Diversified Yield II Fund, Short-Term Income Corporate Class, Canadian Fixed Income Corporate Class, Global Fixed Income Corporate Class, Enhanced Income Corporate Class, Short-Term Income Pool, Global Fixed Income Pool, Enhanced Income Pool, CI Short-Term Advantage Corporate Class and Canadian Fixed Income Pool
“Futures Commission Merchant” means any futures commission merchant that is registered with the CFTC and is a member of a Clearing Corporation
“OTC” means over-the-counter
“Portfolio Advisor” means each of the Filer, CI Global Investments Inc. and each third party portfolio manager retained from time to time by the Filer to manage the investment portfolio of one or more CI Funds
“Swaps” means the swaps that are, or will become, subject to a clearing determination issued by the CFTC, including fixed-to-floating interest rate swaps, basis swaps, forward rate agreements in U.S. dollars, the Euro, Pounds Sterling or the Japanese Yen, overnight index swaps in U.S. dollars, the Euro and Pounds Sterling and untranched credit default swaps on certain North American indices (CDX.NA.IG and CDX.NA.HY) and European indices (iTraxx Europe, iTraxx Europe Crossover and iTraxx Europe HiVol) at various tenors
“U.S. Person” has the meaning attributed thereto by the CFTC
Representations
This decision is based on the following facts represented by the Filer:
The Filer is, or will be, the investment fund manager of each CI Fund. The Filer is amalgamated under the laws of the Province of Ontario and is registered in all provinces as a portfolio manager, in the Province of Ontario as an exempt market dealer, commodity trading counsel, commodity trading manager and investment fund manager and in the Provinces of Québec and Newfoundland and Labrador as a non-resident investment fund manager. The head office of the Filer is in Toronto, Ontario.
A Portfolio Advisor is, or will be, the portfolio advisor to each CI Fund.
Each CI Fund is, or will be, a mutual fund created under the laws of the Province of Ontario and is, or will be, subject to the provisions of NI 81-102.
Neither the Filer nor the CI Funds are, or will be, in default of securities legislation in any Jurisdiction.
The securities of each CI Fund are, or will be, qualified for distribution pursuant to a prospectus that was, or will be, prepared and filed in accordance with the securities legislation of the Jurisdictions. Accordingly, each CI Fund is, or will be, a reporting issuer or the equivalent in each Jurisdiction.
The investment objective and investment strategies of each CI Fund permit, or will permit, the CI Fund to enter into derivative transactions, including Swaps. Currently, the use of Swaps by the Existing CI Funds is nominal. However, each portfolio advisory team for the Existing CI Funds considers Swaps to be an important investment tool that is available to it to properly manage each Existing CI Fund’s portfolio.
Dodd-Frank requires that certain OTC derivatives be cleared through a Futures Commission Merchant at a Clearing Corporation. Generally, where one party to a Swap is a U.S. Person and the other party to the Swap is a mutual fund, such as a CI Fund, that Swap must be cleared, absent an available exception, beginning on June 10, 2013. With respect to entities such as the CI Funds, the compliance date for the clearing of iTraxx CDS indices is July 25, 2013.
Currently, the Existing CI Funds may enter into Swaps on an OTC basis with a number of Canadian, U.S. and other international counterparties. These OTC Swaps are entered into in compliance with the derivative provisions of NI 81-102.
In order to benefit from both the pricing benefits and reduced trading costs that a Portfolio Advisor may be able to achieve through its trade execution practices for its advised investments funds and from the reduced costs associated with cleared OTC derivatives as compared to other OTC trades, the Filer wishes to have the CI Funds enter into cleared Swaps.
In the absence of the Requested Relief, each Portfolio Advisor will need to structure the Swaps entered into by the CI Funds so as to avoid the clearing requirements of the CFTC. The Filer respectfully submits that this would not be in the best interests of the CI Funds and their investors for a number of reasons, as set out below.
The Filer strongly believes that it is in the best interests of the CI Funds and their investors to be able to execute OTC derivatives with U.S. Persons, including U.S. swap dealers.
In its role as a fiduciary for the CI Funds, the Filer has determined that central clearing represents the best choice for the investors in the CI Funds to mitigate the legal, operational and back office risks faced by investors in the global swap markets.
The Portfolio Advisors of the Existing CI Funds currently use the same trade execution practices for all of their advised funds. An example of these trade execution practices is block trading, where large number of securities are purchased or sold or large derivative trades are entered into on behalf of a number of investment funds advised by one Portfolio Advisor. After June 10, 2013, these practices will include the use of cleared Swaps if such trades are executed with a U.S. swap dealer. If the CI Funds are unable to employ these trade execution practices, then each affected Portfolio Advisor will have to create separate trade execution practices only for the CI Funds and will have to execute trades for the CI Funds on a separate basis. This will increase the operational risk for the CI Funds, as separate execution procedures will need to be established and followed only for the CI Funds. In addition, the CI Funds will no longer be able to enjoy the possible price benefits and reduction in trading costs that a Portfolio Advisor may be able to achieve through a common practice for a larger group of investment funds. In the Filer’s opinion, best execution and maximum certainty can best be achieved through common trade execution practices, which, in the case of OTC derivatives, involve the execution of Swaps on a cleared basis.
As a member of the G20 and a participant in the September 2009 commitment of G20 nations to improve transparency and mitigate risk in derivatives markets, Canada has expressly recognized the systemic benefits that clearing OTC derivatives offers to market participants, such as the CI Funds. The Filer respectfully submits that the CI Funds should be encouraged to comply with the robust clearing requirements established by the CFTC by granting them the Requested Relief.
The Requested Relief is analogous to the treatment currently afforded under NI 81-102 to other types of derivatives that are cleared, such as clearing corporation options, options on futures and standardized futures. This demonstrates that, from a policy perspective, the Requested Relief is consistent with the views of the Canadian securities authorities in respect of cleared derivative trades.
For the reasons provided above, the Filer submits that it would not be prejudicial to the public interest to grant the Requested Relief.
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 under the Legislation is that the Requested Relief is granted provided that, in respect of the deposit of cash and portfolio assets as margin:
(a) in Canada,
(i) the Futures Commission Merchant is a member of a SRO that is a participating member of CIPF; and
(ii) the amount of margin deposited and maintained with the Futures Commission Merchant does not, when aggregated with the amount of margin already held by the Futures Commission Merchant, exceed 10 percent of the net asset value of the CI Fund as at the time of deposit; and
(b) outside of Canada,
(i) the Futures Commission Merchant is a member of a Clearing Corporation and, as a result, is subject to a regulatory audit;
(ii) the Futures Commission Merchant has a net worth, determined from its most recent audited financial statements that have been made public or from other publicly available financial information, in excess of the equivalent of $50 million; and
(iii) the amount of margin deposited and maintained with the Futures Commission Merchant does not, when aggregated with the amount of margin already held by the Futures Commission Merchant, exceed 10 percent of the net asset value of the CI Fund as at the time of deposit.
This decision will terminate on the earlier of (i) the coming into force of any revisions to the provisions of NI 81-102 that address the clearing of OTC derivatives, and (ii) two years from the date of this decision.
“Darren McKall”
Darren McKall
Manager, Investment Funds Branch
Ontario Securities Commission
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from certain specified derivatives and custodial requirements to permit mutual funds to enter into swap transactions that are cleared through a clearing corporation – relief required because of new U.S. requirements to clear over-the-counter derivatives including swaps - decision treats cleared swaps similar to other cleared derivatives – National Instrument 81-102 Mutual Funds
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, ss. 2.7(1) and (4), 6.8(1), 19.1