Central counterparties (CCPs) are a fundamental part of global financial markets, facilitating most over-the-counter (OTC) derivatives transaction flow and risk positions. If a CCP shuts down, it may not be able to continue its important services without the help of resolution authorities or public money. To address this threat,  the International Swaps and Derivatives Association, Inc. (ISDA) published a position paper CCP Default Management, Recovery and Continuity: A Proposed Recovery Framework (Proposed Framework) on January 26, 2015. The Proposed Framework, a copy of which can be found here, provides a comprehensive recovery plan in the event that a CCP faces a threat to its viability.

ISDA stresses that the recovery of a CCP is preferable to its closure (i.e. clearing service termination). This is particularly important in times of market distress and instability. The continuity of critical CCP clearing services would be less disruptive and costly to a turbulent financial market and to market participants that use cleared OTC derivatives to manage and hedge risk exposure. In that vein, CCPs must adopt effective default management processes and have measures in place to prepare for the default of one or more clearing members.

Recovery  Measures

An effective default management process involves the ability of a CCP to re-establish a matched book. According to the Proposed Framework, CCPs can re-establish a matched book by:

  • holding a voluntary portfolio auction and transferring defaulted clearing members’ positions to solvent clearing members;
  • making limited cash calls to solvent clearing members to increase default resources;
  • implementing loss-allocation mechanisms in the form of a pro-rata reduction in unpaid payment obligations of the CCP; and
  • considering partial contract tear-up, subject to applicable legal, regulatory capital and accounting treatment.

CCPs should fully compensate affected clearing participants if recovery measures involve loss allocation or partial contract tear-up. Affected clearing participants should receive a pro-rata share in the CCP’s claims against the estate(s) of the defaulting clearing member(s) and future CCP revenues or profits as a form of compensation.

Entry Into Resolution

If a default management process fails to re- establish a matched book, the CCP may have to consider closing down the affected clearing service (i.e. full tear-up). It is at this time that the relevant resolution authority may have to step in and evaluate whether resolution (as opposed to clearing service termination) could restore the affected clearing service.

Segregated Clearing Services

The Proposed Framework encourages the segregation of clearing services if a CCP offers multiple clearing services. A segregated clearing service structure would mitigate the risk of contagion across other clearing services and allow a CCP to continue despite the termination of a single clearing service.

Importance of Transparency And Predictability

The Proposed Framework reiterates the importance of clearly defined recovery measures  in CCPs’ clearing service rule book. ISDA suggests, at the very least, a clear definition of the maximum time frame for the default management process before recovery measures are considered to have failed, and the applicable legal construct, source and utilization of resources. A maximum time frame should contain certain milestones, such as having a voluntary portfolio auction take place  over a five-day period.

A well-defined clearing service rule book is also helpful in determining the viability of a clearing service. CCPs can compare the actions planned in its clearing service rule book with expected outcomes during the default management process by using actual events as a reference. If expected outcomes are achieved, the default management process can be deemed effective.

Scope of The Proposed Framework

The Proposed Framework is consistent with Recovery of financial market infrastructures, the report published by the Committee on Payments and Market Infrastructures and the International Organization of Securities Commissions in October 2014. However, ISDA focuses on addressing the default of clearing members and providing tools to re-establish a matched book. The Proposed Framework does not address other types of losses, such as those related to liquidity shortfalls or  those not caused by a clearing member default.

Contact Us

If you would like further information or would like to discuss how to align your practices with the Proposed Framework, please contact the authors of this alert or any other member of the BLG Derivatives Group.

BLG is ranked as the Number One Law firm in Canada for Derivatives by Derivatives Weekly and was named Canada Law Firm of the Year at Global Capital’s 2014 Americas Derivatives Awards. BLG’s Derivatives Group is a multi- disciplinary team of lawyers that cuts across several of our practice groups. The lawyers in BLG’s Derivatives Group are experienced in negotiating derivatives documentation with sell-side and buy-side market participants around the world. Our clients include financial institutions, investment dealers, futures commission merchants, market intermediaries, securitization conduits and a wide variety of derivative end- users, such as mutual funds, hedge funds, pension funds, other investment vehicles, commodity producers, real estate firms, insurance companies, risk management firms and other corporate end-users. Our advice covers derivative structuring and document negotiation, regulatory compliance, tri-party collateral control practices and close-out issues. We also advise on compliance and registration requirements relating to derivatives in Canada and the United States.


Carol E. Derk 

Sienne Lau 
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