Four associations have published a briefing paper with recommendations to reform the European Union Benchmarks Regulation (BMR), aimed at maintaining the intended protections of the regulation but reducing the potential for uncertainty and disruption and preventing EU investors from being put at a competitive disadvantage versus non-EU entities.
The four associations, the International Swaps and Derivatives Association, (ISDA), the Asia Securities Industry and Financial Markets Association (ASIFMA), the Futures Industry Association (FIA) and the Global Foreign Exchange Division (GFXD) of the Global Financial Markets Association (GFMA), say that key component of the recommendations is to narrow the scope of the BMR. They observe that an estimated 2.96 million benchmarks are in use globally, the majority of which pose no systemic risk. “However, a general prohibition on use within the BMR means none of these benchmarks can be used by EU investors unless they comply with the regulation.”
While many EU critical benchmarks have now complied with the BMR, what the associations term a complex, costly and burdensome third-country benchmark regime means there are concerns that many overseas benchmarks are unlikely to qualify, barring them from use in the EU after the end of the transition period on December 31, 2021.
The prohibition of potentially large numbers of benchmarks would result in EU investors being unable to manage risks that arise as a result of their business activities, and could even pose a threat to financial stability, the associations say. Given no other jurisdictions have implemented similarly expansive benchmark regimes, the current regulations also disadvantage EU retail and institutional investors, making it challenging for them to realise the value of existing positions, convert overseas revenue or repatriate funds.
To prevent this, the associations recommend reversing the general prohibition on use to enable benchmarks to be used in the EU unless specifically prohibited. In addition, only those benchmarks deemed to pose a systemic threat to the EU should be subject to the full scope of the regulation, with smaller, non-significant EU and third-country benchmarks, regulated data benchmarks and public utility benchmarks (for example, FX rates used in non-deliverable forwards) exempt from mandatory compliance. As part of the proposals, a voluntary scheme would be introduced to allow out-of-scope benchmarks to be labelled as BMR compliant, acting as an incentive for administrators to meet EU standards on governance and transparency.
To reduce the risk posed by a benchmark ceasing to qualify under the BMR, the associations also recommend replacing the current form of prohibition of use in new and legacy transactions with a ‘no new flow’ proposal. This would prohibit acquisition of net new exposure to the benchmark but permit its use to continue managing existing exposures or to reduce them. End users would therefore be able to transfer their exposure to another entity outside the EU or reduce it by entering into an equal and offsetting trade.
“We believe the changes we have proposed are proportionate and achievable. Our recommendations would ensure the most rigorous safeguards apply to benchmarks that pose systemic risk to the EU, without preventing end users from accessing all of the non-systemic benchmarks they need to manage their risks and compete in a global market,” says Scott O’Malia, ISDA’s chief executive.
“The considerable extraterritorial reach of the regulation has resulted in a disproportionate compliance burden for administrators of third-country benchmarks,” adds Mark Austen, ASIFMA CEO. “The indications are that only large global administrators will qualify their benchmarks, while the majority of third-country administrators will not be incentivized to incur the significant cost and administrative burdens. There are concerns that this will not only negatively impact the ability of EU firms to service their clients’ needs, but also cause disruption and fragmentation in third-country financial markets. The current review process offers the opportunity to ensure the legislation is fit for purpose and meets its original objectives.”
Meanwhile, Walk Lukken, president and CEO of FIA says, “The proposed changes in scope and approach, in particular to third-country benchmarks, represent a needed adjustment to today’s BMR regime, allowing global competitiveness of EU markets and, at the same time, continuing to protect EU investors by adopting a proportionate, balanced and practical regulatory regime for use of benchmarks in Europe.”
James Kemp, managing director of GFXD, meanwhile, observes, “Although these may seem like issues for third-country administrators, the inability for EU entities to enter into transactions that reference the spot FX rate of third-country restricted currencies means they are unable to hedge their currency exposure arising from investments in domestic capital markets or local infrastructure. This means it is EU investors and manufacturers that bear brunt of this. At a time when we need global trade, the impact of this on future investment strategies puts EU entities at a competitive disadvantage – with potential to also disrupt global markets. The European Commission’s review of the legislation offers an opportunity to rectify unintended consequences and enable viable solutions to be found to avoid significant market disruption.”