European Documentation Library

About the European Documentation Library

FIA’s European Documentation Library puts valuable legal opinions and client terms of business at your fingertips. This documentation helps you meet regulatory requirements and/or common commercial objectives such as facilitating commercial dealings or addressing areas of capital or risk. By pooling the resources of  FIA Members and other subscribers, FIA is able to reduce your costs.   

For more information see below or click here.

Currently, these subscription-only services in the FIA Documentation Library include:

Terms of Business for derivatives clearing –

Whether your firm provides clearing services for exchange-traded derivatives (ETD) or for cleared OTC derivatives, or executing services for ETD, you need to ensure that your contractual documentation is up-to-date and compliant with the latest regulatory developments and business practices. FIA has maintained a suite of Terms of Business for the provision of client clearing services for over 15 years in partnership with the law firm Clifford Chance LLP. In August 2018, FIA release our newest, fully updated and comprehensive state-of-the-art set of industry standard contractual terms for derivatives clearing – the FIA Terms of Business 2018.

The updated FIA Terms of Business 2018:

•           Reflect the latest regulatory developments in Europe, predominantly but not exclusively MiFID II/R;

•           Amend comprehensively certain legal concepts and terms to reflect industry trends and clearing service evolution;

•           Introduce brand-new indirect clearing terms;

•           Consolidate and streamline various pre-2018 agreements and modules; and

•           Retain and enhance the concept of Core Provisions so firms will be able to rely on FIA netting and collateral opinions.

Indirect Clearing Documentation –

Get access to industry standard terms and related documents that help clearing firms document indirect clearing arrangements under MiFIR and EMIR. Developed by FIA with Clifford Chance and members firms, the FIA Indirect Clearing Terms supplement contractual terms based on either the 2011 Professional Client Agreement or the soon-to-be-launched launched 2018 Terms of Business. You can access different versions of the terms depending on the documentation you use, your clearing arrangements and choice of segregation. Use the terms with simple indirect clearing chains (CCP-CM-DC-IC), or modify them for use with longer chains. You can also access additional indirect.

Learn more about the entire FIA indirect clearing documentation offering and the terms under which firms can access (i) Indirect clearing jurisdictional questionnaires, (ii) Indirect clearing CM risk disclosures, (iii) Indirect clearing DC risk disclosures and (iv) FIA Indirect Clearing Terms. Member firms can also benefit from supplementary analysis and guidance on longer chains, indirect clearing segregation requirements and analysis of top-up opinions for indirect clearing terms.

Legal Opinions –

Get access to 73 netting opinions, 70 collateral opinions, and 18 CCP opinions. Subscribers use these opinions to comply with certain prudential regulatory obligations. The netting opinions address the effectiveness of close-out netting provisions, set-off provisions, title transfer collateral provisions. The collateral opinions address the effectiveness of collateral taken on a security interest basis; take into account, where appropriate, FIA’s standard rehypothecation clause. The CCP opinions cover, at a minimum, cleared exchange traded derivative (and in some cases, OTC derivative) exposures with CCPs. They also address the effectiveness of netting and set-off against the CCP on the CCP’s default as well as whether cash and non-cash collateral posted with a CCP is bankruptcy remote in the case of the insolvency of the CCP. These legal opinions offer the subscribing firms:

• Ability to hold regulatory capital against net, rather than gross, exposures (particularly noting the introduction of capital requirements for CCP exposures); reduced counterparty (credit) risk and market risk in case of a counterparty’s default.
• Ability to recognize other eligible credit risk mitigation techniques for regulatory capital purposes;
• Cost savings of participating in a shared project, with economies of scale providing substantial savings when compared to the costs of direct procurement (annual review and updating costs will be shared across all subscribers, and opinions are available in groups or individually.

Resources

FIA Legal Opinions Primer – Webinar (13 October 2020)

FIA Legal Opinions – Slides (October 2020).pdf 

FIA Legal Opinions – Info Sheet (October 2020).pdf 

STP MiFID II RTS 26 Article 2 (1) Analysis​ –

Under MiFIR Article 29(2) and as further specified in Article 2 of the Commission Delegated Regulation (EU) 2017/582 of 29 June 2016 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council with regard to regulatory technical standards specifying the obligation to clear derivatives traded on regulated markets and timing of acceptance for clearing (the ‘Regulation’) with the working title ‘RTS 26’, there is a requirement on trading venues and clearing members to subject orders for on-venue traded derivatives to pre-trade checks on an order-by-order basis, unless the three conditions set out in Article 2(1) of the Regulation have been met. FIA engaged external counsel, Linklaters LLP, to review the rulebooks of 26 European exchanges and 16 CCPs to confirm whether they meet the exemption criteria to negate the need for clearing firms and exchanges to create pre-trade order-by-order credit checks. This project has been limited to on-venue traded derivatives executed subject to the trading venue rules and does not cover compliance with other requirements of the Regulation, such us the requirements for bilaterally concluded and centrally cleared OTC derivatives.