News: ISDA 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol | ISDA01 July 2013 | Maria Leontiou
On 25th June 2013, ISDA has sent its members the pre-publication draft of the ISDA 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol, asking them to provide their comments by Tuesday, 9 July. The Protocol enables parties to amend the terms of their ISDA Master Agreements and certain covered other agreements to reflect certain portfolio reconciliation and dispute resolution obligations imposed by Regulation (EU) No 648/2012 and to include certain confidentiality waivers relating to reporting and record keeping obligations under EMIR. It provides for agreement between the parties on the arrangements for the reconciliation of portfolios as required by EMIR and sets out different methodologies for performing the reconciliation. Parties can elect which methodology they will use by virtue of their status election as either a Portfolio Data Sending Entity or Portfolio Data Receiving Entity. One way delivery method: There is one party who is a Portfolio Data Sending Entity and one who is a Portfolio Data Receiving Entity; Portfolio Data is provided by the Portfolio Data Sending Entity to the Portfolio Data Receiving Entity who reconciles the data with their own records and notifies of any discrepancies. If the Portfolio Data Receiving Entity does not raise a discrepancy within a time period they will be deemed to agree with the Portfolio Data sent to them. Exchange of data method: Where both parties are a Portfolio Data Sending Entity; Portfolio Data will be provided by each Portfolio Data Sending Entity to the other and each party will reconcile the data and notify the other of any discrepancies. There is no assumption of agreement with the terms within a time period in this method. Parties can change their status from Portfolio Data Sending Entity or Portfolio Data Receiving Entity bilaterally and use third party service providers or agents in the reconciliations, as per a certain provision. Moreover, the Protocol sets out a Dispute Resolution mechanic which allows parties to identify disputes via a Dispute Notice to one another and begin a processes of consultation to resolve such disputes and it also allows parties to escalate disputes which remain unresolved for more than 5 Business Days, as required in the technical standards in respect of EMIR. In addition it contains a counterparty’s consent to the disclosure of information in the terms described therein to facilitate compliance with reporting obligations under EMIR while addressing disclosure limitations. Watching the Industry strive to follow the regulations and standards that are still evolving and set the right priorities, it sometimes feels as if we’re shooting at a moving target. Loads of things to be done at the same time and deciding whether to adhere to protocols or not is just one of them...... Maria L.