The Commodity Futures Trading Commission's Swaps Cross-Border Guidance Proposal

February 2020

The CFTC’s latest proposal, published for comment in December 2019, withdraws the 2016 cross-border proposal and proposes to codify new definitions; the CFTC’s policy on a non-US swap dealer’s use of agents or personnel located in the United States to arrange, negotiate, or execute swaps with Non-US Persons (Arranged, Negotiated, or Executed (ANE) transactions); and the CFTC’s approaches to counting swaps toward the de minimis threshold, substituted compliance, and comparability determinations in the context of cross-border transactions. In the absence of cross-border guidance, non-US swap dealers subject to CFTC registration would be required to comply with CFTC regulations (including transaction-level and entity-level requirements such as clearing, relationship documentation, risk management, external business conduct standards, and chief compliance officer, among others) that are redundant with the regulations of their home country regulatory regimes.

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