An End User’s Practical Guide to the QFC Stay Rules

 

The Board of Governors of the Federal Reserve System (Board), the Office of the Comptroller of the Currency (OCC), and the Federal Deposit Insurance Corporation (FDIC) adopted rules (together, the QFC Stay Rules) in 2017 requiring amendments to certain qualified financial contracts (QFCs). The compliance dates for these rules depend on the type of QFC counterparty facing a “covered entity” (as defined below), and are being phased in beginning on January 1, 2019 and ending on January 1, 2020.[1] Notwithstanding this compliance phase-in, dealers subject to the QFC Stay Rules have been requesting that all of their counterparties, including end users, take action to facilitate compliance as though the initial compliance date, January 1, 2019, applied to all types of QFC counterparties. This article is intended to help buy-side participants navigate the compliance process, with emphasis on describing (i) the various types of contracts that constitute “covered” QFCs subject to the rules and (ii) the various alternative methods for compliance.

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Smart Contracts That Violate the Commodity Exchange Act: What Parties Are Liable?

 

In recent years, the U.S. Commodity Futures Trading Commission (CFTC) has devoted significant resources to addressing how the requirements of the Commodity Exchange Act (CEA) and the regulations thereunder apply to transactions involving Bitcoin and other virtual currencies.[1] The CFTC has not adopted any rules specific to virtual currencies, but rather has made clear that derivatives contracts based on a virtual currency are subject generally to the same CFTC regulations that apply to other types of derivatives contracts that have traditionally been within the CFTC’s jurisdiction.[2] Additionally, the CFTC has noted that derivatives contracts are susceptible to automation through smart contracts and distributed ledger technology (DLT) and “[e]xisting law and regulation apply equally regardless what form a contract takes . . . [even to] contracts [or parts of contracts] that are written in code[.]”[3]

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Getting Smarter: CFTC Publishes Smart Contracts Primer

 

An Orrick lawyer authored an article titled “Getting Smarter: CFTC Publishes Smart Contracts Primer,” addressing LabCFTC’s recently released “Primer on Smart Contracts.” The Primer provides (i) a high-level overview of smart contract technology and applications, (ii) a discussion of the potential role of the CFTC in smart contract regulation and (iii) a discussion of the unique risks and governance challenges posed by smart contracts. The article is available here.

The Evolution of Proxy Generation PPAs

 

An Orrick lawyer co-authored a white paper titled “Proxy Generation PPAs: The Next Evolution of PPA for the Corporate & Industrial Buyer,” discussing new contractual architecture for power purchase agreements that better enables corporate and industrial purchasers of renewable energy to hedge weather and commodity pricing risk inherent in their current transactions. The article is available here.

ISDA Publishes IBOR Consultation Paper

 

On July 12, the International Swaps and Derivatives Association, Inc. (“ISDA”) initiated a market-wide consultation (the “Consultation”)[1] on technical issues related to new benchmark fallbacks for derivatives referencing certain interbank offered rates, or IBORs, in response to the expected discontinuance of the publication of those IBORs at the end of 2021.[2] The purpose of the Consultation is to ease the transition of the derivatives market from referencing existing IBOR rates to alternative risk-free-rates (“RFRs”) that have been identified as part of the global benchmark reforms. These RFRs are intended to be based on robust and highly liquid underlying markets that, unlike the relevant IBORs, do not require and are not based on submissions from panel banks or others.

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CFTC Chairman Giancarlo Testifies on Virtual Currency and FinTech

 

On July 25, Commodity Futures Trading Commission (“CFTC”) Chairman Giancarlo testified before the House Committee on Agriculture to address the priorities and recent work of the agency.[1] The testimony touched on a number of areas, but focused in significant part on the CFTC’s oversight of virtual currencies and financial technology (“FinTech”). Those portions of the testimony are summarized below.

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Proposed Regulations Favorably Affect Foreign Currency Hedging Transactions

 

Background

United States shareholders of controlled foreign corporations (“CFCs”) are required to include certain forms of passive income in their taxable income. This is referred to as “subpart F income” by reference to its position in the Internal Revenue Code. Subpart F income is includable as ordinary income. Until the enactment of recent tax reform legislation, if income of a CFC was not subpart F income, the U.S. shareholders did not have to include it when calculating their income for the current year and the tax was effectively deferred. This has changed with the adoption of the Global Intangible Low-Taxed Income (“GILTI”) regime, as part of the Tax Cuts and Jobs Act, which will require non-subpart F income to be taxed currently but at a lower rate than regular income. We will turn to that at the end of this note. Prior to the enactment of the Tax Cuts and Jobs Act, on December 19, 2017, the Treasury and the Internal Revenue Service proposed regulations under sections 446, 988 and 954 (the “Proposed Regulations”) that favorably impact the treatment of foreign currency hedges of the activities of a CFC, some of which we will describe below. READ MORE

CFTC Releases White Paper Assessing Its Dodd-Frank Implementation

 

On April 26, Commodity Futures Trading Commission (“CFTC”) Chairman Giancarlo and the CFTC Chief Economist published a white paper titled “Swaps Regulation Version 2.0: An Assessment of the Current Implementation of Reform and Proposals for Next Steps” (the “White Paper”). At the International Swaps and Derivatives Association, Inc. (“ISDA”) annual meeting where the White Paper was initially presented, Chairman Giancarlo described the White Paper as “economy-focused” and stated that regulatory role of the CFTC is focused on “what’s in the best interest of markets.”

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Orrick Hosts Panel Discussion on Use of Financial Instruments in Renewable Energy Transactions

Independent power producers (IPPs) and incumbent electric utilities have traditionally entered into long-term arrangements for the physical sale and delivery of electric power. As alternatives to these arrangements, the renewable energy market is increasingly making use of financial trading instruments. On February 22, 2018, energy professionals from Microsoft, Citi Commodities and Lockton Companies met in Houston’s Orrick offices to discuss various products in the financial markets available to hedge renewable energy pricing and volumetric risk. This presentation is part of a series of events hosted by the Houston chapter of Women of Renewable Industries and Sustainable Energy (WRISE).