ISDA has prepared this list of frequently asked questions to assist in your consideration of the ISDA 2013 REPORTING PROTOCOL (the “Protocol”).
THESE FREQUENTLY ASKED QUESTIONS DO NOT PURPORT TO BE AND SHOULD NOT BE CONSIDERED A GUIDE TO OR AN EXPLANATION OF ALL RELEVANT ISSUES OR CONSIDERATIONS IN CONNECTION WITH THE PROTOCOL. PARTIES SHOULD CONSULT WITH THEIR LEGAL ADVISERS AND ANY OTHER ADVISER THEY DEEM APPROPRIATE PRIOR TO USING OR ADHERING TO THE PROTOCOL. ISDA ASSUMES NO RESPONSIBILITY FOR ANY USE TO WHICH ANY OF ITS DOCUMENTATION MAY BE PUT.
What does the Protocol do?
In line with the G20 OTC derivatives commitments, many G20 and non-G20 countries (in addition to the US and EU) have implemented or will be implementing mandatory trade reporting requirements. While, on the one hand, firms subject to the jurisdiction(s) of the relevant country(ies) will have to comply with the relevant reporting requirements, on the other hand, they may also be subject to contractual, statutory, regulatory or other legal limitations (under non-disclosure, confidentiality, bank secrecy or other laws) under other laws applicable to them which could prohibit the disclosure of the relevant information. To facilitate compliance with their reporting obligations while addressing these disclosure limitations, the Protocol contains a counterparty’s consent to the disclosure of information in the terms therein described. However, the consent language in the Protocol may not be sufficient to fully address any applicable disclosure limitations or otherwise. Satisfaction of additional disclosure requirements, if any, will have to be met on a bilateral basis. Parties should thus obtain legal advice as to whether the provisions of the Protocol address their particular situation.
ISDA does not represent or warrant that the consents and acknowledgements set out in the Protocol are sufficient to overcome any prohibition or impediment to disclosure under the laws of any jurisdiction. Parties should thus consult with their legal advisers and any other adviser they deem appropriate prior to adhering to the Protocol.
What agreements does the Protocol cover?
The Protocol is not limited to ISDA Master Agreements and is designed to supplement existing written agreements governing the terms and conditions of one or more transactions in “Derivatives” (as defined in the Protocol). Agreements that may be supplemented through the Protocol are called “Protocol Covered Agreements”.
However, where agreements are secured or guaranteed by a Third Party and consent or other action by such Third Party is expressly required for amendments to be made to such agreements, such agreements are not Protocol Covered Agreements unless such consent or other action has been procured. An Adhering Party whose obligations under such agreements are so secured or guaranteed undertakes to each other Adhering Party with which it has entered into such agreements that it has procured such consent or other action by the Third Party and will provide proof thereof upon demand by such other Adhering Party.
How to sign up to the Protocol
Is there a closing date for adherence to the Protocol?
There is currently no cut-off date for adherence, but ISDA reserves the right to designate a closing date for the Protocol by giving 30 days’ notice on this site.
How do I submit my Adherence Letter?
Each entity executing an Adherence Letter will access the Protocol Management section of the ISDA website at www.isda.org to enter information online that is required to generate its form of Adherence Letter. Either by directly downloading the populated Adherence Letter from the Protocol Management system or upon receipt via e-mail of the populated Adherence Letter, the entity must print, sign and upload the signed Adherence Letter as a PDF (portable document format) attachment into the Protocol Management system. Once the signed Adherence Letter has been approved and accepted by ISDA, the Adhering Party will receive an e-mail confirmation of the Adhering Party’s adherence to the Protocol.
The Adherence Letter(s) should be on your institution’s letterhead, which you are able to upload into the Protocol Management system during the online submission of information to generate the Adherence Letter. Nothing in the form of Adherence Letter available on ISDA’s website may be changed with the exception of completing the details of your institutional name and completing the contact details, date and signature block.
ISDA keeps the executed copy of the Adherence Letter for its files and does not share the executed copy with anyone else. Please do not send your original Adherence Letter(s) by mail to ISDA.
Can entities that are not ISDA members sign up to the Protocol?
Yes. The Protocol is open to any entity. ISDA members and non-ISDA members alike adhere to the Protocol in the same way.
What is a conformed copy?
A conformed copy of the Adherence Letter means that the name of the authorized signatory (for example, Patricia Smith) is typed rather than having Patricia Smith’s actual signature on the letter. ISDA only posts on its website the conformed copy of all Adherence Letters. A conformed copy of each Adherence Letter containing, in place of each signature, the printed or typewritten name of each signatory will be published by ISDA so that it may be viewed by all Adhering Parties.
Who is an authorized signatory?
An authorized signatory to the Adherence Letter is an individual who has the legal authority to bind the adhering institution.
SPECIAL CONSIDERATIONS FOR INVESTMENT/ASSET MANAGERS
What if I am an investment or asset manager, and not all of my discretionary management agreements permit me to amend my client’s agreements?
If you are an investment or asset manager and act on behalf of multiple clients, you have the following options:
• If you have authority to adhere on behalf of all of your clients, you may do so by selecting “Investment/Asset Manager/or other agent on behalf of a fund/multiple funds/or other principal” from the dropdown under “Adherence Type” and naming the Investment/Asset Manager/Agent. Standard language “acting on behalf of the funds, accounts or other principals listed in the relevant Agreement (or other agreement which deems an Agreement to have been created) between it (as agent) and another Adhering Party” will be provided for you.
If you wish to adhere in this way, you must ensure that you have the authority to do so from all clients on whose behalf you enter into transactions covered by the Protocol.
• If you do not have authority from all of your clients, you can adhere on behalf of those clients whose permission you have by selecting “Investment/Asset Manager/or other agent on behalf of some but not all funds/or other principal it represents” and naming the Investment/Asset Manager/Agent. Standard language “acting on behalf of the funds, accounts or other principals listed in the appendix to this Adherence Letter in relation to the relevant Agreement (or other agreement which deems an Agreement to have been created) between it (as agent) on behalf of such fund, account or other principal and another Adhering Party” will be provided for you. You must then list the fund name(s) by either naming each in the field provided (“Name of Fund”) or selecting “Add more than 10 funds” and downloading a PDF list of these funds.
The appendix to your Adherence Letter can either name the clients, or identify them with a unique identifier which will be known and recognized by all other Adhering Parties with which the relevant clients have entered into Protocol Covered Agreements. The appendix to your letter will be posted on the ISDA website with your Adherence Letter by either listing the clients or if you have more than ten clients, we will add a link to a PDF document listing these clients. Any ISDA Master Agreements or Other Agreements which you enter into on behalf of clients that are not listed in your Adherence Letter(s) will not be covered by the Protocol. If you wish to implement the changes contained in the Protocol in those ISDA Master Agreements or Other Agreements, then you and the relevant counterparty would need to enter into a bilateral agreement listing the clients whose ISDA Master Agreements or Other Agreements with that counterparty will be amended by incorporating the amendments made by the Protocol.
• If you do not have authority from any of your clients and/or you are not able to disclose your clients whether by name or a unique identifier, you cannot adhere to the Protocol on behalf of any such clients. In this case, you will need to enter into a bilateral amendment agreement with each relevant counterparty listing the clients whose ISDA Master Agreements or Other Agreements with that counterparty will be amended by incorporating the amendments made by the Protocol.
• If you add a fund to an umbrella master agreement after the date you adhere to the Protocol on behalf of your clients (whether that fund was an existing client on or a client acquired after the Implementation Date) that fund will be added to that umbrella master agreement as amended by the Protocol.
Can I change the text of the Adherence Letter?
No. The Adherence Letter must be in the same format as the form of letter published in the Protocol and generated by the Protocol Management webpage.
Are there any costs to adhere to the Protocol?
Yes. Each party adhering to the Protocol must submit a one-time fee of U.S. $500 to ISDA at or before the submission of its Adherence Letter. Adhering Parties should review the documents to be amended (i.e., the ISDA Master Agreements or Other Agreements) to identify the entity that signed the documents, and the capacity in which such entity signed the documents, to determine which entity submits the Adherence Letter. Eg. if a parent company/agent has signed the agreement on behalf of all entities within the group, then only the parent company/agent needs to adhere. However, if each group entity has its own agreement in place which it has itself executed as principal, then each such entity would need to adhere.
Each individual legal entity is considered a separate Adhering Party for this purpose and would need to pay the adherence fee, except that an Investment/Asset Manager/Agent that adheres on behalf of one or more underlying funds or principals for whom it has entered into an ISDA Master Agreement or Other Agreement, using a single Adherence Letter, would only pay a single adherence fee for that Adherence Letter.
Can I revoke my participation in the Protocol?
No. Once an Adherence Letter has been accepted by ISDA, an Adhering Party is bound by all amendments with other parties that have already adhered to the Protocol or, subject to the discussion below, that adhere before a designation of the Annual Revocation Date.
An Adhering Party may, at any time during the period from October 1 to October 31 of a calendar year, deliver to ISDA a notice specifying the Annual Revocation Date as its cut-off date in respect of amendments with future Adhering Parties. The effect of such a letter will be to withdraw adherence for future Adhering Parties as of December 31 in that calendar year (or if such day is not a day on which ISDA’s London office is open, on the next day that ISDA’s London office is open). Although amendments already made will not be revoked, any subsequent adherence by new Adhering Parties after the designated Annual Revocation Date will not bind the party that has submitted a Revocation Notice.
You can, however, bilaterally agree to amend your Protocol Covered Agreements with your counterparty (the other Adhering Party) and any such subsequent amendments will supersede those made by the Protocol to the extent that they are inconsistent.