Canada: Letter In Response To Request For Comments From The Alberta Securities Commission, November 16, 2012

DELIVERED VIA ELECTRONIC MAIL

Alberta Securities Commission

Suite 600, 250 - 5th Street SW

Calgary, Alberta T2P 0R4

Fax: (403) 297-4113

E-mail: shane.altbaum@asc.ca

Attention: Shane Altbaum, Legal Counsel, Market Regulation

Dear Sir:

RE: Comment Letter to Notice Of Republication And Request For Comment Regarding Regulation Of Over-The-Counter Derivatives Transactions

We appreciate the opportunity to comment on the Alberta Securities Commission's (the "Commission") Notice of Republication and Request for Comment regarding proposed amendments to Alberta's regulation of Over-the-Counter Derivatives Transactions¹ issued on October 15, 2012, by the Commission requesting for comment. The Commission is specifically proposing amendments to Alberta legislation under the Securities Act, R.S.A. 2000, and c S-4 (the "Act") required to:

...enable the Commission to comply with the G20 Commitments in the interim while the Commission and the other CSA jurisdictions continue work to modernize the regulatory framework governing derivatives trades in Canada.

As counsel to major Alberta energy market participants that include energy producers, energy trading and marketing organizations who enter into bilateral over-the-counter ("OTC") derivatives that avail themselves of the exemption provided by the Commission in Blanket Order 91-503, global CCPs, other financial market infrastructures and other market participants that include global financial institutions and derivatives market intermediaries, Fraser Milner Casgrain LLP ("FMC Law") has had extensive involvement with the OTC derivatives market, and its regulation, in Alberta. We believe the Commission should endeavor to assist Canada in meeting its international commitments and commitments to Canada as a whole in modernizing the regulatory framework governing derivatives transactions in Canada in a way that would not stifle the growth of Alberta energy derivatives markets that is already facing challenges under the U.S. Dodd Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") because of the continental cross-border nature of energy trading.

In this letter, we comment from a legal, as opposed to a business, standpoint on the proposed amendments in the Notice of Republication and Request for Comment. This letter reflects the general comments of certain members of FMC Law's energy transactions and derivatives practice groups and does not necessarily reflect the overall views of our firm or our clients.

I. BACKGROUND

A. International

In September 2009 the G20 leaders on behalf of their nations, including Canada, met in Pittsburgh to examine the status of the financial market infrastructures that had failed or undergone significant stress in the years prior. Following this meeting, the G20 nations issued a communiqué and committed, in part, to the following:²

Therefore, because of the commitments made by the G20 nations in 2009 (the "G20 Commitments") Canada now has obligations to establish a new regulatory regime related to trading OTC derivatives in Canada. Since December 2009, the Bank of Canada, the Canadian Securities Administrators ("CSA"), the Office of the Superintendent of Financial Institutions and the Canadian Department of Finance have coordinated efforts to align Canada's OTC derivatives markets with the G20 Commitments.

B. Regulation of Derivatives in Alberta

1. Authority to Make Regulations and Rules

By way of background, the Lieutenant Governor in Council in Alberta has the authority to make regulations under the Act pursuant to section 223³ and the Commission has the authority under section 224⁴ of the Act to make rules,⁵ including, the Commission Rules. The Commission uses rules to administer the requirements of Alberta securities laws.⁶ While any amendment to the Act requires a legislative amendment, the Commission has the authority under section 224 to make and amend rules without a legislative amendment.

2. Authority to Issue Blanket Orders

The Commission has the authority under section 213⁷ of the Act to exempt certain persons from Alberta securities laws. The Commission relies on Section 213 of the Act to issue blanket orders. We note that, despite the fact that the Commission articulates in its Notice of Republication and Request for Comment that it proposes to "enact" Blanket Order 91-505, there is no legislative enactment necessary to bring a blanket order of this nature into force. We believe that since the Commission is given this authority under section 213 of the Act, it would therefore be more accurate to say that the Commission proposes to "issue" Blanket Order 91-505.

3. Definition of OTC Derivative

The only existing definition of OTC derivative, in Alberta securities laws, is currently contained in Blanket Order 91-503, which provides that an OTC derivative:

In addition to the defined term of OTC derivative in Blanket Order 91-503, the definition of "security"⁸ in the Act includes futures contracts⁹ and options¹⁰ that are not exchange contracts.¹¹ As a result, certain parties and their clients who contract with one another for such futures contracts and options (including certain OTC derivatives) are subject to registration and prospectus requirements, unless exempted.

II. SPECIFIC COMMENTS

The Commission has indicated that "[t]he Proposed Amendments will codify the Commission's legal authority under the Act to comply with the G20 Commitments on regulating [OTC] derivatives." To that end, the Commission is proposing to regulate OTC derivatives transactions under the Act by implementing the following proposed amendments:

We have the below comments related to the Proposed Amendments as they are contained in the Notice of Republication and Request for Comment.

A. Section 8(2) of the Alberta Securities Commission Rules

The Commission, in its Notice of Republication and Request for Comment, indicates that:

There are two portions of this quotation which market participants would find confusing and we believe warrant further analysis and comment: (1) the requirement for "registrants" to comply with the G20 Commitments respecting trading and clearing of OTC derivative trades; and (2) the term "registrant" itself.

1. "Registrants" to Comply with the G20 Commitments

First, the Commission indicates that, through the Proposed Amendments, the Executive Director is given the power to require registrants to comply with the G20 Commitments. There is nothing in the communiqué from the G20 leaders' summit in Pittsburgh in September 2009 that indicates that the G20 commitments were made by market participants. It was the national authorities and international bodies, with the Financial Stability Board as a central locus of coordination, which have further advanced a reform program of OTC derivatives markets. The onus is on Canada to work with other national authorities and international bodies to meet its G20 Commitments. Therefore, we would humbly suggest that the quotation should, instead indicate that the Commission, in assisting Canada in meeting its G20 Commitments, proposes to regulate certain market participants who engage in OTC Derivatives trades.

We would recommend that the Commission clarify, how Alberta market participants' subject to the Commission's regulation in Alberta fit under the Commission's goal in regulating the OTC derivatives market in Alberta to assist Canada in meeting its international obligations, and not to require market participants to meet the G20 Commitments.

2. Definition of "Registrant"

Second, the Act defines the term "registrant" as a person or company registered or required to be registered under the Act or the regulations.¹² We do not see any existing language under current Alberta securities laws which, provides that Alberta OTC Derivatives market participants must register (i.e. become registrants) because they are engaged in trades of OTC derivatives. Should the Commission wish to mandate registration of market participants engaged in OTC derivatives trading, a specific requirement to do so should be clearly articulated and communicated to the relevant market participants as most Alberta energy market participants are already in the process of determining if they are subject to the U.S. Commodities Futures Trading Commission's ("CFTC") regulations as a regulated entity who enter into swaps with so called "US persons" under the CFTC's rules implementing the Dodd-Frank Act.

Section 8(2) of the Commission Rules currently provides the Executive Director with the power to require any class of registrants, as a condition of registration, to report all trades in the OTC market to an agency.

Specifically, the section 8(2) indicates:

The Commission Rules do not indicate that market participants involved in OTC derivatives trades must be registered.

The Commission, in the Notice of Republication and Request for Comment, suggests section 8(2) (as it is currently drafted) "already provides the Executive Director with power to require trade reporting of OTC derivatives transactions." We find it difficult to see how Alberta market participants would interpret this section in the same way it has been interpreted in the Notice of Republication and Request for Comment. Although section 8(2) of the Commission Rules gives the Executive Director the right to impose conditions on registration, upon a strict reading, it does currently mandate registration of market participants engaged in the trading of OTC derivatives.

As the Commission is aware, the proposed amendments to section 8(2)(a) of the Rules are shown below in bold/underlined text, as follows:

The Notice of Republication and Request for Comment suggests that these amendments "will provide the Executive Director with power to require registrants to comply with the G20 Commitments respecting trading and clearing of OTC derivatives trades." We fail to see how these amendments mandate registration of market participants who engage in OTC derivative trades. Again, based on a strict interpretation of section 8(2), as amended by the Proposed Amendments, we would suggest that it could be concluded that the Commission has the power to place conditions on registration only; not require registration.

We would suggest that if the Commission requires registration of market participants who are engaged in the trade of OTC derivatives, it does so explicitly by enacting a legislated registration requirement.

We would also suggest that the Commission use caution when referring to the OTC derivatives market participants that it proposes to register as "registrants" under any new legislation or rules. The term "registrant" is used in other pieces of securities legislation, for example, National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing Registrant Obligations ("NI 31-103"). NI 31-103 uses the term "registrant" liberally throughout and NI 31- 103 deals only with securities regulation; an area discretely different from the regulation of OTC derivatives.

Finally, should the Commission require registration of OTC derivatives market participants, we would suggest that it would be prudent to communicate this requirement clearly to such market participants. Forms of communication could include press releases, direct communication by email or letter and posting the requirement on the ASC website under its Regulatory Reform of Over-the-Counter (OTC) Derivatives Markets webpage. We note that no such notice or publication of the Notice of Republication and Request for Comments was given to, or made easily available, to OTC derivatives market participants.

B. Additional Powers contained in the amendments to Section 8(2) of the Commission Rules

It appears that the Commission's intent in proposing these amendments is to give the Commission additional powers which it sees as necessary in order to assist Canada in meeting its various G20 Commitments. Again, the section only contemplates the imposition of conditions related to registration, but does not mandate registration itself. The Proposed Amendments seem to suggest the Executive Director will have the authority to impose additional conditions on registration if mandated, as follows:

• the authority to require that market participants report all trades in OTC derivatives to trade repositories¹⁴ which must be recognized by the Commission;
• the authority to require market participants to trade their OTC derivatives onexchange unless they are specifically exempted from such requirement;
• the authority to recognize clearing agencies; and
• the authority to prescribe margin thresholds for those OTC derivatives that are not cleared by a recognized clearing agency.

The above list is only our assumption based on the Proposed Amendments. We would recommend that the Commission make its intentions clear to OTC derivatives market participants as to its objectives with respect to the amendments to Section 8(2) of the Commission Rules. For example, is it indeed the case that the Commission will (in the future) be recognizing trade repositories? Will the Commission recognize clearing agencies? If yes, what sort of requirements will trade repositories and clearing agencies need to meet to be registered? When will these types of regulations be implemented? How will OTC derivatives market participants access a recognized listing of trade repositories and clearing agencies to ensure they are not off-side their obligations under Section 8(2) of the Commission Rules or any other legislation that the Commission may enact? (We note that certain sections of the Securities Act that would give the Commission the authority to mandate the recognition of clearing agencies though amended, is yet to be proclaimed.)

C. Proposed revocation of Blanket Order 91-503 Over-the-Counter Derivatives and Commodities Contracts and issuance of Blanket Order 91-505 Over-the-Counter Derivatives Transactions

1. Background the Regulatory Regime

The Commission's regulatory model respecting derivatives, prior to 1999, was patterned after the typical regulation of securities in most Canadian jurisdictions. Securities regulators oversee exchange markets that have self-regulatory responsibilities in some cases. Exchanges are required to set out and enforce rules to protect customers, prevent fraud and manipulation, maintain orderly and fair markets, and so on. The regulators have the power to modify the exchanges' rules and issue rules and regulations of their own. Common to securities laws as found in the Act, is a presumption that certain forms of trading, including where public investors are involved, should take place on a regulated exchange.

It is assumed that this presumption led to the inclusion of OTC derivatives transactions within the scope of the Commission's regulation on June 1, 1999. This was done by amending the Act as follows: (i) the amendment of the definition of a futures contract; and (ii) the expansion of the definition of "trade" ¹⁵ to include entering into a futures contract or an option that is an exchange contract.

As a result, the Act regulated trading and advising in both securities and exchange contracts. The definition of a security under the Act specifically excludes an exchange contract. A futures contract or option that is not traded on an exchange under standardized terms is not an exchange contract and is therefore included in the definition of "security". As a result of this amendment to the Act, OTC derivatives (which are customized and do not includes standardized terms) became, and are still subject to, all of the provisions in the Act applicable to securities but are not subject to the provisions that only apply to exchange contracts.

Following these amendments, it is our understanding that many market participants questioned their ability to carry out OTC derivatives transactions in the derivatives market. In response to these concerns, the Commission conducted consultations with participants and their advisers for a week, and thereafter issued Blanket Order 91-502 Over-the-Counter Derivatives Transactions & Commodity Contracts ("Blanket Order 91-502"). Blanket Order 91-502, retroactive to June 1, 1999, essentially exempted all OTC derivatives and commodity transactions between entities considered to be a "qualified party"¹⁶ ("Qualified Party").

Blanket Order 91-502 has since been revoked and replaced with Blanket Order 91-503. The revocation and replacement occurred as a result of complaints by market participants that Blanket Order 91-502 was obsolete, as it did not permit transactions which involved clearing agencies acting as central counterparties. The involvement of clearing agencies was becoming increasingly common in such transactions, and resulted from attempts to mitigate the risks undertaken by the counterparties to an OTC transaction by transferring the risks to a central counterparty (i.e. the clearing agency). Blanket Order 91-503, which is currently in effect and which the Commission is proposing to revoke, recognized this development respecting the clearing of OTC derivatives transactions.

Blanket Order 91-503 provides that OTC derivatives transaction and commodity contracts are not to be deemed to be futures contracts pursuant to Section 10 of the Act. Blanket Order 91- 503 reads, in part, as follows:

The end result of Blanket Order 91-503 was that a Qualified Party that traded in OTC derivatives received a blanket exemption from the registration and prospectus requirements that would otherwise be applicable to such transactions. In light of the current Canadian initiative to reform the regulation of OTC derivatives markets, Blanket Order 91-503 may be seen as being too broad. In addition, Blanket Order 91-503 does not address the fundamental question of a permanent regulatory solution for the regulation of the diverse spectrum of derivatives traded in Alberta both on-exchange and off-exchange (i.e. OTC).

As a result, the Commission had published a proposed Alberta Securities Commission Rule 91- 505 Over the Counter Derivatives ("Proposed Rule 91-505") together with the proposed revocation of Blanket Order 91-503 for public comment in February 2011. The Commission stated that it received six (6) comment letters on the Proposed Rule 91-505. The Commission indicates in analyzing these comments, together with participating in the ongoing work being done by the CSA to modernize the regulatory framework governing OTC derivatives trades in Canada that it has decided to re-publish Proposed Rule 91-505 in a new form, along with the above noted Proposed Amendments in order to better facilitate compliance with the G20 Commitments. The Commission now proposes to re-issue Blanket Order 91-505 - Over the Counter Derivatives Transactions ("Blanket Order 91-505") as a replacement to Blanket Order 91-503.

2. Blanket Order 91-505

Blanket Order 91-505 relies on the authority given to the Commission in section 213 of the Act, which allows the Commission to exempt any person from all or any of the provisions of Alberta securities laws. Generally, the Commission is proposing that it would not be prejudicial to the public interest to exempt a Qualified Party from the prospectus requirement related to the distribution of futures contracts. Further, Blanket Order 91-505 proposes to waive the "dealer registration requirement" related to OTC derivatives trades in futures contracts where each party to the trade is a Qualified Party and to OTC derivatives trades in physical commodity contracts.

Specifically, Blanket Order 91-505 reads as follows:

(a) Definition of OTC Derivatives

Should the Commission revoke Blanket Order 91-503, thus revoking the definition of OTC derivative,¹⁷ there will no longer be a definition of OTC derivative in force in Alberta.

Although Blanket Order 91-505 includes a definition of "over-the-counter trade," this definition only captures trades which are traded pursuant to the by-laws, rules or regulations of an exchange, and is fully defined in Blanket Order 91-505 as follows:

A trade of derivatives made pursuant to the by-laws, rules or regulations of an exchange is a trade made "on-exchange," otherwise known as exchange trading. Derivatives can be bought and sold "on-exchange" and "off-exchange" (i.e. OTC). On-exchange refers to the futures markets (i.e. central exchange where market participants can trade standardized futures contracts). In the trade of energy derivatives, examples of two large exchanges are the New York Mercantile Exchange (part of the CME Group) and the Intercontinental Exchange, Inc. The OTC market is specific to customized swaps and OTC options. These customized trades are traded bilaterally between two counterparties.

It is unclear from the definition of "over-the-counter trade" contained in Blanket Order 91-505 whether the Commission is referring to OTC derivatives trades, on-exchange trading, or is potentially referring to OTC derivatives trades which are subsequently cleared by a clearing agency. We would suggest that the Commission make this distinction clear to OTC derivatives market participants as regulation in this area will significantly impact their business practices related to hedging and risk mitigation.

(b) The "Dealer Registration Requirement"

It is not clear why the Commission refers to the "dealer registration requirement" in Section (b) of Blanket Order 91-505. The background to the prospectus and registration exemption, contained in Blanket Order 91-503, in our interpretation contemplated a broader application to "...certain parties and their clients who contract directly with one another for such OTC derivatives and commodity contracts are subject to registration and prospectus requirements, unless exempted."

As mentioned above, there is currently no requirement for OTC derivatives market participants to register (and thus become a "registrant"). Further, unlike trade in securities, there are typically no "dealers" of OTC derivatives. Again, for many OTC derivatives market participants, the trade in OTC derivatives occurs "off-exchange" as the OTC market is specific to customized swaps. These customized trades are traded bilaterally between two counterparties. It would be unusual for a "dealer" to be involved in these bilateral transactions. Therefore, it is counterintuitive to suggest that "dealers" of derivatives register with the Commission if no such person(s) commonly exist in the OTC derivatives market.

We would suggest that the Commission clarify which type of entity they are seeking to recognize when referring to the "dealer registration requirement" in Section (b) of Blanket Order 91-505. Currently, there is no registration requirement for OTC derivative market participants, nor are their typically "dealers" of OTC derivatives. Many OTC derivatives market participants will be unable to determine if they are off-side registration requirements if the Commission is not clear on which type of entities they require to be registered.

(c) Additional Obligations

Pursuant to Blanket Order 91-505, any Qualified Party relying on the "dealer registration exemption" may be subject to prescribed requirements which may be imposed by the Executive Director of the Commission and may include the requirement to:

• report the trade to a recognized agency;
• effect the trade on or through recognized exchange facilities, or those facilities that are exempt from the recognition requirement);
• clear the trade on or through a recognized clearing agency; or
• maintain a prescribed minimum working capital for those trades not cleared on or through a recognized clearing agency.

The term Qualified Party refers to a listing of those entities which the Commission considers to be a Qualified Party and is attached as an Appendix to Blanket Order 91-505. Again, we would suggest that the Commission clarify which entities are entitled to rely on the "dealer registration exemption" in the first instance as it is currently unclear what registration requirement OTC derivatives market participants must comply with (or be exempt from).

III. CONCLUSION

We thank you for the opportunity to comment on the Notice of Republication and Request for Comment.

Footnotes

1 A copy of which is available here.

2 See The G-20 Toronto Summit Declaration, sections 25 and 19, June 27, 2010, available here.

3 Due to its length, section 223 is not reproduced herein. However, this particular section of the Act may be viewed here.

4 Section 224 prescribes that the Commission may, subject to this section and the regulations referred to in section 223(ii), make rules concerning of any of the matters in respect of which the Lieutenant Governor in Council may make regulations under section 223. (2) Notwithstanding subsection (1), the Commission shall not do the following: (a) make rules in respect of matters referred to in section 223(ee); (b) make rules in respect of matters referred to in section 223(hh.1) (i) except with the approval of the Minister, or (ii) unless no change is being made to the minimum requirements under existing rules made in respect of section 223(hh.1); (c) make rules in respect of matters referred to in section 223(ii). (3) Notwithstanding that the Commission may make rules, (a) where the provisions of a regulation made under section 223 and a rule made under this section conflict, the regulation prevails, and (b) the Lieutenant Governor in Council may amend or repeal any rule made by the Commission under this section. (4) A rule made by the Commission under this section has the same force and effect as a regulation made by the Lieutenant Governor in Council under section 223. (5) The Regulations Act does not apply to a rule made by the Commission under subsection (1).

5 "Rules" means the rules made by the Commission under section 224 or under section 211.6(2).

6 "Alberta securities laws" means the Act, the regulations and any decisions made by the Commission or the Executive Director and any extra-provincial securities laws adopted or incorporated by reference under section 211.4.

7 Section 213 of the Act provides that the Commission may by order exempt (a) any person, company, trade or distribution, or (b) any class or classes of persons, companies, trades or distributions from all or any provision of Alberta securities laws.

8 Due to its length, the complete definition of "security" is not reproduced herein. This definition may be viewed within the Act itself, a copy of which is available here.

9 "Futures contract" means any obligation to make or take future delivery of (i) a commodity, (ii) a security, or (iii) cash if the amount of cash is derived from, or by reference to, a variable, including (A) a price or quote for a commodity or security, (B) an interest rate, (C) a currency exchange rate, or (D) an index or benchmark, but does not include an obligation or a class of obligations that is designated not to be a futures contract pursuant to an order made under section 10."

10 Note: the Act does not contain a specific definition of "option". The term option is, however, captured in the following definitions: "exchange contract" and "security".

11 "Exchange contract" means a futures contract or an option where (i) its performance is guaranteed by a clearing agency, and (ii) it is traded on an exchange pursuant to standardized terms and conditions set out in the bylaws, rules or regulations of that exchange at a price agreed on when the futures contract or option is entered into on the exchange, and includes any instrument or class of instruments that (iii) meets the requirements referred to in subclauses (i) and (ii), and (iv) is designated as an exchange contract by an order of the Commission.

12"Regulations" means the regulations made under the Act and, unless the context otherwise indicates, includes the rules.

13 "Agency" is not a defined term in the Act or regulations.

14 It is assumed the term "agency" as it is used in section 8(2) refers to trade repositories.

15 The definition of "trade" following the amendments includes: (i) any sale or disposition of a security for valuable consideration, whether the terms of payment are on margin, instalment or otherwise, but does not include (A) a purchase of a security, or (B) except as provided in subclause (v), a transfer, pledge or encumbrance of securities for the purpose of giving collateral for a bona fide debt; (ii) any entering into a futures contract or an option that is an exchange contract; (iii) any participation as a trader in any transaction in a security or an exchange contract through the facilities of an exchange or a quotation and trade reporting system; (iv) any receipt by a registrant of an order to buy or sell a security or an exchange contract; (v) any transfer, pledge or encumbrance of securities of an issuer from the holdings of a control person for the purpose of giving collateral for a bona fide debt; and (vi) any act, advertisement, solicitation, conduct or negotiation made directly or indirectly in furtherance of anything referred to in subclauses (i) to (v).

16 "Qualified Party" is defined in Blanket Order 91-503 and means any of the entities listed in the Appendix to this Order, where each is acting as principal, or alternatively as an agent or trustee for accounts that are fully managed by it. For the purposes of this order, a party is a Qualified Party for the purpose of any OTC derivative transaction or commodity contract if that party is a Qualified Party at the time the party enters into the transaction or contract.

17 See the discussion above regarding definition of OTC derivative on page 3.

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