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On 20 March 2014, ESMA published a further update to its EMIR Q&A document.  Additions from the previous version are as set out below:

  • OTC Questions
    • Intragroup transactions: clarifying the information that counterparties should communicate to their regulator when applying for an intragroup exemption;
    • Notional amounts: providing additional detail on the use of notional amounts in calculating the clearing threshold;
    • Risk Mitigation techniques for OTC derivative contracts not cleared by a CCP: confirming that an EU counterparty executing OTC derivatives cleared by a third-country CCP not recognised under EMIR is not required to apply EMIR risk mitigation techniques;
  • CCP Questions
    • Segregation and portability:  confirming that a CCP is allowed to have a provision in its rules under it which it can, on request, transfer positions/assets belonging to a defaulting client of a clearing member from a segregated account to the house account of the clearing member, provided that contractual arrangements allow for this, appropriate disclosure is made, and the clearing member is not itself in default;
  • TR Questions
    • Reporting of outstanding positions following the entry into force of EMIR (backloading): clarifying the obligation to report trades in the event that a counterparty becomes insolvent;
    • Reporting to TRs: Buy/Sell indicator for swaps: confirming that the counterparty which is exchanging the currency which is first to appear alphabetically is to be regarded as the “seller” with respect to an FX forward where the counterparties are exchanging currencies;
    • Reporting to TRs: Underlying field: providing clarity on how to populate Table 2 Field 4 (Underlying) with respect to certain commodity derivatives and FX derivatives
    • Reporting to TRs: Field 15 for NFC: confirming that NFCs are required to complete Field 15 in Table 1 (purpose of the trade) when reporting an ETD;
    • Reporting to TRs: MIC codes: clarifying that the type of MIC code to be used should be identified by reference to the MiFID Database; and
    • Reporting to TRs: Exchange rate:  confirming that exchange rate fields should be populated with the rate applicable on the date of conclusion of the contract.
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