Open from December 17, 2020
The ISDA 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol enables parties to to Protocol Covered Agreements to amend the terms of each such Protocol Covered Agreement to reflect certain portfolio reconciliation and dispute resolution obligations imposed by Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR) as it forms part of ‘retained EU law’ as defined in the European Union (Withdrawal) Act 2018 (UK EMIR) and to include certain confidentiality waivers relating to reporting and record keeping obligations under UK EMIR.
Please refer to the “Frequently Asked Questions” for more information.
The ISDA 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol is open to ISDA members and non-members. There is no cut-off date to the Protocol. ISDA does, however, reserve the right to designate a cut-off date by giving 30 days’ notice on this webpage.
ISDA 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol FAQs
Open from 17 December 2020
ISDA has prepared this list of frequently asked questions to assist in your consideration of the ISDA 2020 UK EMIR PORTFOLIO RECONCILIATION, DISPUTE RESOLUTION AND DISCLOSURE 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 OR OTHER DOCUMENTATION MAY BE PUT.
These FAQs address questions under the following general headings:
1.What does the Protocol do?
2.What agreements does the Protocol cover?
3.How to sign up to the Protocol.
4.Specific questions on the amendment language.
The United Kingdom (UK) formally left the European Union (EU) on 31 January 2020. The UK and the EU are currently in a transition period that is due to expire on 31 December 2020 (the Implementation Period, and the end of the Implementation Period, IP Completion Day) pursuant to Article 126 of the Agreement on the Withdrawal of the UK from the EU and European Atomic Energy Community. During the Implementation Period, EU law broadly continues to apply in and to the UK, and the UK continues to be treated as if it were an EU member state under EU law.
The Protocol is based on the ISDA 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol (the EMIR Protocol), which was developed to facilitate parties’ compliance with certain risk mitigation requirements under Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR).
On IP Completion Day, EMIR (and applicable delegated legislation) will be retained in UK domestic law pursuant to the European Union (Withdrawal) Act 2018 (as amended from time to time) (the EUWA), subject to certain amendments made by the UK government and/or regulators to correct ‘deficiencies’ (EMIR as retained in UK domestic law by virtue of the EUWA and as amended by UK domestic law from time to time, UK EMIR).
The approach taken when developing the Protocol has been to only adjust the terms of the EMIR Protocol as necessary to reflect the equivalent provisions of UK EMIR. The publication of the Protocol is not intended to imply any change in the construction of the EMIR Protocol (which will depend, at least in part, on the construction of the amendments made by the EMIR Protocol under the law specified to govern the relevant agreement). Parties should seek independent legal advice for the purposes of satisfying themselves as to the correct interpretation of contractual provisions under the relevant governing law(s).
You can download the full FAQ here.