Past FAQs: OTC derivatives

These FAQs relate to the past 2022 sand 2013 rules only. These FAQs do not constitute legal advice. You should seek your own professional advice to find out how the ASIC Derivative Transaction Rules (Reporting) 2022, ASIC Derivative Transaction Rules (Clearing) 2015, and ASIC Derivative Trade Repository Rules 2013 and other applicable laws apply to you, because it is your responsibility to determine your obligations.

A range of issues relating to derivative transaction reporting (including FAQs previously published on this page) are now covered in Regulatory Guide 249 Derivative trade repositories and Regulatory Guide 251 Derivative transaction reporting.

Read the superseded FAQs (superseded FAQs are available here for information purposes only).

The derivative transaction rules (reporting) impose obligations on reporting entities to report information about their transactions and positions in OTC derivatives to a licensed or prescribed trade repository (the reporting obligations): Rule 1.2.5 of the derivative transaction rules (reporting) (Rule 1.2.5 (Reporting)) and RG 251.10.

As described at RG 251.12, Rule 1.2.4 (Reporting) defines an OTC derivative as a derivative (within the meaning of section 761D of the Corporations Act 2001 (Corporations Act)) that is prescribed by the Minister under section 901B (the Ministerial determination) that is not traded:

on a financial market that is:
- subject to ASIC supervision under Part 7.2A of the Corporations Act (e.g. ASX 24)
- registered by the US Commodity Futures Trading Commission (CFTC) as a ‘designated contract market’ under s5h of the Commodity Exchange Act 1936 (US), or
- a ‘regulated market’ as defined in Article 4(1)(21) of the Markets in Financial Instruments Directive 2014/65/EU, or
on certain foreign markets (regulated foreign markets) that ASIC has determined under Rule 1.2.4(3) (Reporting) are subject to sufficiently equivalent requirements and supervision, in terms of market transparency and integrity, to those applying to markets supervised under Part 7.2A, ‘designated contract markets’ or ‘regulated markets’ (see the ASIC Regulated Foreign Markets Determination [OTC DET 13/1145]).

Unless an exemption applies, derivatives (within a class determined by the Minister) traded on facilities that do not fall within the definition of a regulated foreign market, such as swap execution facilities and multilateral trading facilities, are OTC derivatives for the purposes of the derivative transaction rules (reporting) and therefore subject to reporting obligations.

An exemption has been provided to reporting entities in the form of time-limited transitional relief until 30 September 2023 so that derivatives with characteristics and a method of dealing that meets a generic definition of an exchange-traded derivative and whose financial market is notified to ASIC: see ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844.

(Updated 20 December 2022)

Information required to be reported under Rule 2.2.1 (Reporting) to identify a non-reporting counterparty and other entities (Relevant Entities) includes the:

standard identifier (refer below) of both the reporting counterparty and the non-reporting counterparty (items 5 and 7 in Table S2.1(1) and items 4 and 6 in Table S2.2(1) in Schedule 2 (Reporting))
name of both the reporting counterparty and the non-reporting counterparty (items 6 and 8 in Table S2.1(1) and items 5 and 7 in Table S2.2(1) in Schedule 2 (Reporting))
standard identifier and name of certain other entities, such as beneficiary, broker, and clearing member.

Under Part S2.1A (Reporting), the reporting counterparty means, in relation to a report of information about a reportable transaction or reportable position:

where a reporting entity makes the report on its own behalf, that reporting entity, or
where another person makes a report on behalf of a reporting entity, the reporting entity on behalf of which the report is made.

The non-reporting counterparty means the counterparty to the OTC derivative that is not the counterparty making the report.

Where the reporting or non-reporting counterparty is an entity (corporation, partnership, managed investment scheme or trust, but not an individual), the following standard identifiers must be reported:

Legal Entity Identifier (LEI) or interim entity identifier (see RG 251.60–251.62)
if no LEI or interim entity identifier is available for the entity, an international business entity identifier issued by Avox Limited (AVID), or
if no AVID is available, a Business Identifier Code (BIC).

From the day after ‘the Exemption End Date’ (refer below) the ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 provides relief for reporting of one of the standard identifiers for non-reporting counterparties and other entities on the condition that an internal client code is reported by the reporting counterparty. This relief is conditional on the reporting counterparty taking best efforts to obtain one of the standard identifiers as soon as reasonably practicable, including by maintaining and following documented procedures for one or both of the following:

(a) requesting that non-reporting counterparties (and other entities as necessary) obtain one of the standard identifiers and provide it to the Reporting Entity;

(b) obtaining one of the standard identifiers on behalf of non-reporting counterparties (and other entities as necessary).

The ‘Exemption End Date’ is:

- 30 September 2019 for non-reporting counterparties that are:

(i) incorporated or formed in this jurisdiction; or

(ii) a non-reporting counterparty to the OTC Derivative to which the Reportable Transaction or Reportable Position relates as the result of a transaction entered into by a branch of the non-reporting counterparty that is located in this jurisdiction;

- otherwise, 31 March 2020.

LEIs can be obtained either from a domestic or an overseas entity that is accredited or endorsed to issue LEIs, or the local registration agent of such a firm. More information is available on the Global LEI Foundation’s website.

Where the non-reporting counterparty or other entity is an individual, the identifier is a client code assigned by the reporting counterparty: Table S2.1(1) and Table S2.2(1) (Reporting).

Some reporting counterparties have raised concerns with ASIC that one licensed trade repository is unable to populate name information from a standard identifier unless the relevant entity has 'on-boarded' with the licensed trade repository. Accordingly, from 1 October 2015 to 30 September 2023 (inclusive) ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 provides relief from the need to report name information where one of the three standard identifiers above is reported.

(Updated 20 December 2022)

Certain items of derivative transaction information and derivative position information in the tables in Parts S2.1 and S2.2 of the derivative transaction rules (reporting) require reporting of the names of counterparties, beneficiaries and certain other persons to the reportable transaction or reportable position. The relevant table references and item numbers are as follows:

Table S2.1(1), items 8, 11, 16 and 20
Table S2.1(3), items 2, 4 and 6
Table S2.1(5), items 7, 9 and 11
Table S2.2(1), items 7, 9, 11 and 16
Table S2.2(3), items 2, 4 and 6, and
Table S2.2(5), items 6, 8 and 10.

There are also associated requirements to report identifiers for these persons. The relevant table references and item numbers for the identifier information are as follows:

Table S2.1(1), items 7, 10, 15 and 19
Table S2.1(3), items 1, 3 and 5
Table S2.1(5), items 6, 8 and 10
Table S2.2(1), items 6, 8, 10 and 15
Table S2.2(3), items 1, 3 and 5, and
Table S2.2(5), items 5, 7 and 9.

From 1 October 2015 to 30 September 2023 (inclusive) ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 provides reporting entities with relief from the requirement to report the entity identifiers listed above if these entity identifiers are not available for the relevant entity. A reporting entity that relies on the relief must instead report the internal entity identifier used by the reporting entity: see FAQ 6. Where a single field is used for reporting of an identifier and a name, the names of the counterparty, beneficiary or other person should be concatenated together with the identifier, using the following format:

[identifier][delimiter character][name of counterparty or beneficiary]

A reporting entity may utilise one of five special characters ( , ) ( ; ) ( : ) ( - ) ( | ) as a delimiter. ASIC's preference is that reporting entities use a dash (-) as the delimiter character. No spaces should be added on either side of the delimiter.

For example, where a reporting entity has a reportable transaction or reportable position with a counterparty AB Company Pty Ltd (with an internal reference number for the counterparty of 123456 that is able to be utilised by the reporting entity for reporting purposes) the string to be reported by the reporting entity is: 123456-AB Company Pty Ltd.

(Published 1 July 2015, updated 20 December 2022)

Read the derivatives transaction rules (reporting)

Superseded FAQs

The FAQs below have been superseded and are provided here for information purposes only.

Rule 1.2.4 (Reporting) defines an ‘OTC derivative’ as a derivative in the prescribed class that is not traded on a financial market subject to ASIC supervision under Part 7.2A of the Corporations Act or on certain foreign markets that are subject to sufficiently equivalent requirements, in terms of market transparency and integrity, as markets supervised under Pt 7.2A. We are in the process of making a determination of the foreign markets that we consider meet this criterion and will publish the determination on our website.

(Published 6 September 2013. Superseded 19 June 2014)

As described at RG 251.12, Rule 1.2.4 (Reporting) defines an OTC derivative as a derivative (within the meaning of section 761D of the Corporations Act) that is prescribed by the Ministerial determination that is not traded:

on a financial market subject to ASIC supervision under Part 7.2A of the Corporations Act (e.g. ASX 24), or
on certain foreign markets (regulated foreign markets) that ASIC has determined under Rule 1.2.4(3) (Reporting) are subject to sufficiently equivalent requirements and supervision, in terms of market transparency and integrity, to those applying to markets supervised under Part 7.2A of the Corporations Act.

An exemption has been provided to Phase 1 and Phase 2 reporting entities in the form of time-limited transitional relief so that derivatives traded on certain additional relevant financial markets (as defined in the relevant exemptions) are also excluded from the definition of ‘OTC derivative’ for the purposes of the derivative transaction rules (reporting) up to (and including) 2 March 2015: ASIC Special Gazette A45/13 and ASIC Instrument [14/0234]. These time-limited exemptions will apply while ASIC considers whether the financial markets specified in the exemptions are suitable to be regulated foreign markets.

(Updated 19 June 2014. Superseded 13 February 2015)

If you are a reporting entity that is an Australian entity, or a responsible entity (RE) or trustee acting in its capacity as RE or trustee of an Australian entity, you will need to comply with the Australian reporting requirements under the derivative transaction rules (reporting). Where:

a reporting entity is incorporated or formed in another jurisdiction
there is a prescribed repository in that jurisdiction, and
either:
the reporting entity or another entity reports information about a reportable transaction or reportable position to the prescribed repository in accordance with a substantially equivalent
reporting obligation in that jurisdiction, or
the reporting entity is exempt in that jurisdiction from the reporting obligation in relation to a reportable transaction or reportable position, or there is no reporting obligation in that jurisdiction in relation to a reportable transaction or reportable position,

the reporting entity is not required to comply with the reporting requirements set out in the derivative transaction rules (reporting) in relation to that reportable transaction or reportable position: see Rule 2.2.1(3).

(Published 6 September 2013. Superseded 19 June 2014)

If you are a reporting entity that is an Australian entity, or a RE or trustee acting in its capacity as RE or trustee of an Australian entity, you will need to comply with the Australian reporting requirements under the derivative transaction rules (reporting). Where:

a reporting entity is incorporated or formed in another jurisdiction
there is a prescribed repository in that jurisdiction, and
either the reporting entity:
- or another entity reports information about a reportable transaction or reportable position to the prescribed repository in accordance with a substantially equivalent reporting obligation in that jurisdiction, or
- is exempt in that jurisdiction from the reporting obligation in relation to a reportable transaction or reportable position, or there is no reporting obligation in that jurisdiction in relation to a reportable transaction or reportable position,

The jurisdictions that we consider have implemented reporting requirements that are substantially equivalent to the reporting requirements that would otherwise apply to a reporting entity in relation to a reportable transaction or a reportable position under the derivative transaction rules (reporting) are the European Union (in respect of European Market Infrastructure Regulation (EMIR) reporting rules), the United States (in respect of the CFTC reporting rules) and Japan.

Other jurisdictions that ASIC expects will implement reporting requirements that are substantially equivalent to the reporting requirements under the derivative transaction rules (reporting) are Hong Kong, Singapore and Canada.

(Updated 19 June 2014. Superseded February 2015 by incorporation into RG 251)

Information that is required to be reported under Rule 2.2.1 (Reporting) includes the identifier of both the reporting counterparty and the non-reporting counterparty: items 5 and 7 in Table S2.1(1) and items 4 and 6 in Table S2.2(1) (Reporting).

Under Part S2.1A (Reporting), the reporting counterparty is, in relation to a report of information about a reportable transaction or reportable position:

where a reporting entity makes the report on its own behalf, that reporting entity, or
where another person makes a report on behalf of a reporting entity, the reporting entity on behalf of which the report is made.

The non-reporting counterparty is the counterparty to the OTC derivative that is not the counterparty making the report.

Where the reporting and non-reporting counterparty is an entity (which includes a corporation, partnership, managed investment scheme or trust, but not an individual), the identifier is:

an LEI or interim entity identifier (see RG 251.60–251.62)
if no LEI or interim entity identifier is available for the entity, an ABN, or
if no ABN is available, a BIC.

Where the reporting or non-reporting counterparty is an individual, the identifier is a client code assigned by the reporting counterparty: Table S2.1(1) and Table S2.2(1) (Reporting).

(Published 19 June 2014. Superseded 14 November 2014)

Information that is required to be reported under Rule 2.2.1 (Reporting) includes:

the identifier of both the reporting counterparty and the non-reporting counterparty (items 5 and 7 in Table S2.1(1) and items 4 and 6 in Table S2.2(1) in Schedule 2 (Reporting))
the name of both the reporting counterparty and the non-reporting counterparty (items 6 and 8 in Table S2.1(1) and items 5 and 7 in Table S2.2(1) (Reporting)), and
the identifier and name of certain other entities, such as beneficiary, broker, and clearing member.

Under Part S2.1A (Reporting), the reporting counterparty is, in relation to a report of information about a reportable transaction or reportable position:

where a reporting entity makes the report on its own behalf, that reporting entity, or
where another person makes a report on behalf of a reporting entity, the reporting entity on behalf of which the report is made.

The non-reporting counterparty is the counterparty to the OTC derivative that is not the counterparty making the report.

Where the reporting or non-reporting counterparty is an entity (which includes a corporation, partnership, managed investment scheme or trust, but not an individual), the rules require the following entity identifiers to be reported:

an LEI or interim entity identifier (see RG 251.60–251.62)
if no LEI or interim entity identifier is available for the entity, an ABN, or
if no ABN is available, a BIC.

Where the reporting or non-reporting counterparty is an individual, the identifier is a client code assigned by the reporting counterparty: Table S2.1(1) and Table S2.2(1) (Reporting).

Some reporting entities have raised concerns with ASIC that the licensed trade repository is unable to accept an ABN as an entity identifier, and that there are currently limitations on the licensed trade repository's ability to accept or generate ‘name’ information.

Accordingly, from 1 October 2014 to 30 September 2015 (inclusive) ASIC Instrument [14/0952] provides reporting entities with relief from the requirement to report the entity identifiers listed above. A reporting entity that relies on the relief must instead report using the following hierarchy of identifiers, consistent with the entity identifier waterfall developed by ISDA:

an LEI, CFTC Interim Compliant Identifier (CICI) or interim entity identifier
if none of the identifiers listed in (1) are available, the entity identifier issued by the trade repository to which the derivative transaction or derivative position has been reported, an AVID or BIC, or
if none of the identifiers listed in (1) or (2) are available for the entity, the internal entity identifier used by the reporting entity.

Further, from 1 October 2014 to 30 September 2015 (inclusive), ASIC Instrument [14/0952] also provides relief to reporting entities from the requirement to report the name of the reporting entity and reporting counterparty in the case where the trade repository to which the reportable transaction or reportable position is to be reported, is:

unable to accept name information, or
unable to populate the name information using the identifier reported by the reporting entity.

However, from 1 July 2015, the relief ceases to apply in the case where the trade repository to which the reportable transaction or reportable position is to be reported is able to accept name information.

(Updated 14 November 2014. Superseded 13 February 2015)

On 27 June 2014, ASIC made Class Order [14/0633] Transitional exemptive relief for Phase 3 Reporting Entities from elements of the ASIC Derivative Transaction Rules (Reporting) 2013. This instrument commenced on 1 October 2014 and granted transitional exemptive relief for Phase 3 reporting entities by providing for a staggered and delayed start to Phase 3 of the OTC derivative transaction reporting obligations under the derivative transaction rules (reporting).

ASIC subsequently made ASIC Corporations (Derivative Transaction Reporting) Amendment Instrument 2015/0925 which amended [14/0633], with effect from 9 October 2015, by delaying the commencement of Phase 3B of the derivative transaction rules (reporting).

The effect of these instruments was to delay the commencement dates of certain reporting requirements for Phase 3 entities, as set out in the table below.

Reporting requirement	Asset classes	Phase 3A reporting entities	Phase 3B reporting entities
Reportable Transaction	Interest rate and credit	13 April 2015	4 December 2015
Reportable Transaction	Forex, equity and commodities	12 October 2015	4 December 2015
Reportable position	Interest rate and credit	19 October 2015	6 June 2016
Reportable position	Forex, equity and commodities	18 April 2016	6 June 2016
Reporting of valuation, barrier and collateral information*(field names)	Interest rate and credit	2 November 2015	4 July 2016
Reporting of valuation, barrier and collateral information*(field names)	Forex, equity and commodities	2 May 2016	4 July 2016

*Derivative transaction information in Table S2.1(1) of the derivative transaction rules (reporting) about a reportable transaction or outstanding position in an exempt derivative:

Items 30–32 (mark-to-market, mark-to-model, or other valuation)
Items 40–44 (collateral), and
Items 51–52 (barrier type and value).

Note: The relief provided does not prevent entities that are ready to report from commencing reporting at an earlier date. Entities may be required to commence reporting at an earlier date if they have provided ASIC with an opt-in notice.

(Published 1 April 2016. Superseded 24 May 2018.)

Past FAQs: OTC derivatives

1. What is an 'over-the-counter (OTC) derivative' under the derivative transaction rules (reporting)?

2. Can a licensed trade repository use or publish derivative trade information?

3. When do I need to report information about a reportable transaction or a reportable position?

4. What information do I need to report to identify a non-reporting counterparty and other entities?

5. Can an Australian regulator access the derivative trade information held by a licensed trade repository?

6. Who do I report to in order to satisfy the reporting requirements of the derivative transaction rules (reporting)?

7. Do end users have to comply with the derivative transaction rules (reporting)?

8. How should names of counterparties, beneficiaries and other persons be reported under the derivative transaction rules (reporting) where a single field is used for the reporting of a name and an identifier?

9. How do I report collateralisation?

10. How should I report a forward starting cross currency basis swap?

Superseded FAQs

SUPERSEDED FAQ 1. Do transactions on foreign markets need to be reported?

SUPERSEDED FAQ 2. I already report my derivative transactions in another jurisdiction. Do I still need to report in Australia?

SUPERSEDED FAQ 3. Will trade repositories be able to make any of my transaction reporting data public?

SUPERSEDED FAQ 4. What does 'entered into by the reporting entity in this jurisdiction' mean in the derivative transaction rules (reporting)?

SUPERSEDED FAQ 5. How do I identify a counterparty when I report counterparty information?

SUPERSEDED FAQ 6. Can I report more information than is required by the derivative transaction rules (reporting)?

SUPERSEDED FAQ 7. Who do I report to in order to satisfy the reporting requirements of the derivative transaction rules (reporting)?

SUPERSEDED FAQ 8. Who is the reporting entity in a fund management situation?

SUPERSEDED FAQ 9. What are the commencement dates for reporting certain information under the derivative transaction rules (reporting)?

SUPERSEDED FAQ 10. Upon commencement of the derivative transaction rules (clearing), how are they intended to apply to existing uncleared transactions?