Ordinance on Financial Market Infrastructures and Market Conduct in Securities and Derivatives Trading

(Art. 94 para. 2 and Art. 107 FMIA)

¹The duty to ex­change col­lat­er­al in the case of cross-bor­der trans­ac­tions shall also ap­ply, sub­ject to the ex­emp­tion en­vis­aged in para­graphs 2, 2^bis and 2^ter, if the for­eign coun­ter­party of the Swiss coun­ter­party which has the duty to ex­change col­lat­er­al would also be sub­ject to this duty if it had its re­gistered of­fice in Switzer­land.¹

²No col­lat­er­al has to be ex­changed if the for­eign coun­ter­party:

a.

has its re­gistered of­fice in a coun­try whose le­gis­la­tion is re­cog­nised by FINMA as be­ing equi­val­ent; and

b.

does not have to ex­change col­lat­er­al un­der the le­gis­la­tion of that coun­try.

^2bisThe Swiss coun­ter­party may dis­pense with the pay­ment of ini­tial mar­gins and vari­ation mar­gins to the for­eign coun­ter­party if an in­de­pend­ent leg­al re­view showed that:

a.

The net­ting or guar­an­tee agree­ments vis-à-vis the for­eign coun­ter­party are not def­in­itely leg­ally en­force­able at all times; or

b.

Agree­ments on the sep­ar­a­tion of col­lat­er­al are not in line with in­ter­na­tion­ally re­cog­nised stand­ards.²

^2terIt can dis­pense with re­quir­ing the for­eign coun­ter­party to pay ini­tial mar­gins and vari­ation mar­gins if the con­di­tions un­der para­graph 2^bis let­ter a or b are met and:

a.

An in­de­pend­ent leg­al re­view showed that the ac­cept­ance of ini­tial or vari­ation mar­gin pay­ments from the for­eign coun­ter­party in ac­cord­ance with the pro­vi­sions of the Fin­MIA or this Or­din­ance would not be pos­sible; and

b.

The un­se­cured trans­ac­tions con­cluded and out­stand­ing after the entry in­to force of the duty to call for the pay­ment of ini­tial mar­gins and vari­ation mar­gins ac­count for less than 2.5% of all OTC de­riv­at­ives trans­ac­tions, whereby in­tra-group trans­ac­tions are not to be in­cluded in the cal­cu­la­tion.³

³The oth­er risk mit­ig­a­tion du­ties that would re­quire the in­volve­ment of the coun­ter­party may be ful­filled uni­lat­er­ally in­so­far as this cor­res­ponds to re­cog­nised in­ter­na­tion­al stand­ards.