QA2020-33 - T07.00 ISDA Protocols accepteds

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Feb 01, 2024
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QA2020-33

Question


1. Could you specify which ISDA Jurisdictional Modular Protocol (JMP) can be considered (countries/year)? 2. If the status of the Jurisdictional Modular Protocol is not already published (as Canada and Spain), what we should inform in column "c0071 – Resolution Stay Recognition - Counterparty - mandatory"? 3. Finally, should we consider "ISDA 2016 Bail-in Art 55 BRRD Protocol (Dutch/French/German/Irish/Italian/Luxembourg/Spanish/UK entity-in-resolution version)" as a "ISDA JMP Module", as "Other Agreement" or as "No".


Response


1. The derivatives reported in Tab 07 are governed by the law agreed in the financial contract, which is in many cases the Master Agreement. Resolution stay powers can only be recognised via an ISDA 2016 JMP Module, where such Module exists for the relevant jurisdiction. Where the governing law of the financial contract is that of a third county, e.g. New York law, one way for the counterparty to recognise European stay powers as, for example, transposed in Italy, to comply with the national rule that requires such recognition, would be the Italian Module to the ISDA 2016 JMP. For Spain, for example, no national rule that requires resolution stay recognition has been adopted with a view to Article 71a BRRD2, which will harmonise this requirement by 28 December 2020. Consequently, no Spanish Module to the ISDA 2016 JMP exists at this point. Resolution stays on Spanish banks would therefore have to be recognised by the counterparty a) through the ISDA 2015 Universal Resolution Stay Protocol or b) bilateral amendment to the financial contracts. That said, the SRB does not advise on the functionalities of the ISDA Protocols and ISDA resources should be consulted instead. 2. If a Module has not been published, it cannot be adhered to. Therefore, this option from the drop down menu is not applicable. It only becomes applicable, once the counterparty has adhered to the relevant Module vis-à-vis the reporting institution and has done so in its capacity as counterparty to a regulated entity for the specific or all financial contracts. The other drop down options may still apply to the financial contract in question. 3. The ISDA 2016 Bail-in Art 55 BRRD Protocols should be distinguished from the Resolution Stay Protocols. The latter facilitate recognition of resolution stay powers (i.e., depending on the scope of national rules also, Art 68-71 BRRD), while the first facilitate recognition of bail-in powers (as required under Art 55 BRRD). Therefore, ISDA Bail-in Art 55 BRRD Protocols are not relevant for the answers in c0061 nor c0071.