ASIC Corporations (Derivative Trade Repository Rules—DDRS) Instrument 2023/725
Benjamin Cohn-Urbach
ASIC Corporations (Derivative Trade Repository Rules—DDRS) Instrument 2023/725
Benjamin Cohn-Urbach
1 Name of notifiable instrument
6 Exemption 2 (Access and Participation Requirements)
7 Exemption 3 (Security, Efficiency and Effectiveness of Services)
8 Exemption 4 (Acceptance of Derivative Trade Data)
9 Exemption 5 (Retention of Derivative Trade Data)
10 Exemption 6 (Use and Disclosure of Derivative Trade Data)
11 Exemption 7 (Provision of Access to Derivative Trade Data)
12 Exemption 8 (Create and Disclose Statistical Data)
14 Exemption 10 (Handling Conflicts of Interest)
15 Exemption 11 (Monitoring and enforcement of compliance with obligations)
16 Exemption 12 (Risk Management)
18 Exemption 14 (Human Resources)
19 Exemption 15 (Financial Resources)
20 Exemption 16 (Integrity and Security of Computer Systems and Other Systems)
21 Exemption 17 (Operational Reliability)
22 Exemption 18 (Business Continuity Planning)
23 Exemption 19 (Recovery and Resolution)
24 Exemption 20 (Operational Separation of Functions)
25 Exemption 21 (Outsourcing of Functions)
26 Exemption 22 (Disclosure of Rules, Procedures and Other Information)
27 Exemption 23 (Public Disclosures)
28 Exemption 24 (Annual Compliance Report)
29 Exemption 25 (Disclosure of Proceedings)
30 Exemption 26 (Notification of Acquisition of Significant Holding)
32 Exemption 28 (Keeping of Records)
33 Exemption 29 (Provision of Records or Other Information)
1 Name of notifiable instrument
This is the ASIC Corporations (Derivative Trade Repository Rules—DDRS) Instrument 2023/725.
This instrument commences on the later of:
(a) 1 October 2023; and
(b) the day after it is registered on the Federal Register of Legislation.
Note: The register may be accessed at www.legislation.gov.au.
This instrument is made under subsection 907D(2) of the Corporations Act 2001.
(1) In this instrument, unless otherwise defined, capitalised terms have the meaning given by the DTRRs.
(2) In this instrument:
ASIC Data means Derivative Trade Data reported to DDRS under the Reporting Rules and under exemptions from the Reporting Rules.
Australian Licence means the derivative trade repository licence granted to DDRS by ASIC under section 905C of the Corporations Act.
Business Day has the meaning given by section 9 of the Corporations Act.
Corporations Act means the Corporations Act 2001.
DDRS means DTCC Data Repository (Singapore) Pte Ltd (ARBN 601 601 021).
DDRS Operating Procedures means the Operating Procedures of DDRS set out in Appendix B to the DDRS Rulebook.
DDRS Rulebook means the business rules of DDRS as at the date of this instrument maintained in accordance with paragraphs 46I(1)(e) and (f), and Subdivision 2 of Division 2 of Part IIA, of the SFA and regulations 18 and 19 of the SF Regulations and known as the DTCC Data Repository (Singapore) Pte Ltd Rulebook.
DDRS User Agreement means the agreement between DDRS and each Participant in the form set out in Appendix A to the DDRS Rulebook.
DTRRs means the ASIC Derivative Trade Repository Rules 2023.
MAS means the Monetary Authority of Singapore or any successor organisation in Singapore responsible for the supervision of the derivative trade repository operated by DDRS.
Officer means an officer within the meaning of section 9 of the Corporations Act.
Related Body Corporate means a related body corporate within the meaning of section 9 of the Corporations Act.
Reporting Rules means the ASIC Derivative Transaction Rules (Reporting) 2022, and commencing 21 October 2024, the ASIC Derivative Transaction Rules (Reporting) 2024.
SF Regulations means the Securities and Futures (Trade Repositories) Regulations 2013 (Singapore) as in force at the date of this instrument.
SFA means the Securities and Futures Act 2001 (Singapore) as in force at the date of this instrument.
Singapore Licence means the trade repository licence granted by MAS to DDRS under section 46E of the SFA.
Trade Repository means the derivative trade repository that DDRS is authorised to operate under the Australian Licence and the Singapore Licence.
DDRS does not have to comply with Rule 2.2.1 of the DTRRs for so long as it complies with the following conditions:
(a) DDRS must comply with paragraphs 46I(1)(e) and (f) and Subdivision 2 of Division 2 of Part IIA of the SFA;
(b) DDRS must comply with regulations 18 and 19 of the SF Regulations.
6 Exemption 2 (Access and Participation Requirements)
DDRS does not have to comply with Rule 2.2.2 of the DTRRs for so long as it complies with the following conditions:
(a) DDRS must comply with paragraphs 46I(1)(d) and (f) of the SFA;
(b) DDRS must comply with regulations 18(a) and (b) of the SF Regulations.
7 Exemption 3 (Security, Efficiency and Effectiveness of Services)
DDRS does not have to comply with Rule 2.2.3 of the DTRRs for so long as it complies with the following conditions:
(a) DDRS must comply with paragraphs 46I(a), (d), (e), (g) and (i) of the SFA;
(b) DDRS must comply with regulation 16 of the SF Regulations;
(c) DDRS must ensure that the Trade Repository's services are provided at all times in an effective manner.
8 Exemption 4 (Acceptance of Derivative Trade Data)
DDRS does not have to comply with Rule 2.3.1 of the DTRRs in relation to ASIC Data for so long as it complies with the following conditions in relation to ASIC Data:
(a) DDRS must comply with paragraph 46J(b) of the SFA;
(b) DDRS must comply with regulation 16 of the SF Regulations;
(c) DDRS must accept from Participants all ASIC Data for all classes of Derivatives specified in the Australian Licence condition;
(d) DDRS must establish, implement, maintain and enforce policies, procedures, systems and controls reasonably designed to maintain a continuous, reliable and secure connection between the Trade Repository and Participants for the purposes of accepting ASIC Data.
9 Exemption 5 (Retention of Derivative Trade Data)
(1) DDRS does not have to comply with Rule 2.3.2 of the DTRRs in relation to ASIC Data for so long as it complies with the following conditions in relation to ASIC Data:
(a) DDRS must comply with paragraph 46J(b) and subsection 46L(1) of the SFA;
(b) DDRS must comply with regulation 5(a) of the SF Regulations;
(c) DDRS must ensure that all records of ASIC Data and records of each alteration or correction to ASIC Data is retained in a secure location and in an electronic format, and is immediately accessible by DDRS;
(d) DDRS must create at least one backup copy of each record referred to in paragraph (c) and must ensure that, for the period of time that the record must be retained under regulation 5(a) of the SF Regulations, the backup copy is retained in a secure location and in an electronic format, separate from the location of the record, and is accessible by DDRS within 3 Business Days.
(2) DDRS must comply with the conditions in subsection (1) subject to any direction given by ASIC under section 904K of the Corporations Act.
Note: Subsection 904K(4) of the Corporations Act requires a person who is given a direction by ASIC under section 904K to comply with the direction.
10 Exemption 6 (Use and Disclosure of Derivative Trade Data)
Disclosures of Derivative Trade Data that is not ASIC Data
(a) DDRS must comply with section 46O of the SFA;
(b) DDRS must comply with regulation 12 of the SF Regulations.
Disclosures permitted under SFA and SF Regulations
(2) DDRS does not have to comply with subsection 904B(1) of the Corporations Act and Rule 2.3.3(1) of the DTRRs in relation to ASIC Data, in circumstances where disclosure is permitted under regulations 12(1) or (5) of the SF Regulations, for so long as DDRS complies with the following conditions in relation to ASIC Data in those circumstances:
(a) DDRS must comply with section 46O of the SFA;
(b) DDRS must comply with regulation 12 of the SF Regulations.
Disclosures pursuant to User Agreement
(3) DDRS does not have to comply with Rule 2.3.3(3) of the DTRRs in relation to ASIC Data, for so long as it complies with the following conditions in relation to ASIC Data:
(a) DDRS must comply with section 46O of the SFA;
(b) DDRS must comply with regulation 12 of the SF Regulations.
11 Exemption 7 (Provision of Access to Derivative Trade Data)
Provision of access to ASIC Data to Participants
(1) DDRS does not have to comply with Rules 2.3.4(1), (2), (3) and (4) of the DTRRs in relation to the provision of access to ASIC Data to Participants for so long as DDRS complies with the condition that DDRS must comply with the provisions of the DDRS Rulebook and DDRS User Agreements in relation to the provision of access to ASIC Data to Participants.
Provision of access to the Australian Regulators
(2) DDRS does not have to comply with subsection 904B(5) of the Corporations Act and Rule 2.3.4(7) of the DTRRs to the extent that subsection and that Rule require DDRS to provide an Australian Regulator with continuous, direct and immediate electronic access to ASIC Data, for so long as DDRS complies with the condition that DDRS must make the ASIC Data available to the relevant Australian Regulator:
(a) via automated means; and
(b) on a daily basis; and
(c) within 48 hours of the ASIC Data being accepted by DDRS; and
(d) in compliance with any written direction given by ASIC that the ASIC Data be made available to the Australian Regulator by:
(i) making the ASIC Data available on a DDRS server for the relevant Australian Regulator to download; or
(ii) sending the ASIC Data to a server specified by the relevant Australian Regulator.
Provision of access to foreign regulators
(3) DDRS does not have to comply with subsection 904B(5) of the Corporations Act to the extent the subsection requires DDRS to comply with a request from a person or body prescribed under regulations made for the purposes of paragraph 904B(2)(b) of the Corporations Act for access to Derivative Trade Data, in circumstances in which DDRS would be prohibited from doing so under section 46O of the SFA.
Disclosure to Related Body Corporates and MAS
(4) DDRS does not have to comply with Rule 2.3.4(13) of the DTRRs in circumstances where DDRS reasonably considers that it is necessary to disclose information specified under that Rule to a Related Body Corporate of DDRS in order to comply with a request by an Australian Regulator or Prescribed Foreign Regulator for particular Derivative Trade Data, for so long as DDRS takes reasonable steps to ensure the Related Body Corporate does not disclose such information other than for the purposes of seeking legal advice or as required by law.
(5) DDRS does not have to comply with Rule 2.3.4(13) of the DTRRs in circumstances where DDRS discloses information specified under that Rule to the MAS.
12 Exemption 8 (Create and Disclose Statistical Data)
DDRS does not have to comply with Rules 2.3.5 and 2.3.6 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must, for each 7 day period commencing on the first Monday on or after the day this instrument commences, create, for each class of Derivative specified in the conditions of the Australian Licence, statistical data from the ASIC Data that includes the following:
(i) the total number of open positions and total gross notional outstanding, as at the end of the 7 day period;
(ii) a breakdown by the currency (e.g. AUD, USD) of the notional amount for the Derivatives in the class;
(iii) a breakdown of whether, in each of the classes, the Derivatives to which the statistical data relates are cleared or uncleared;
(iv) the total number of new transactions reported in each of the classes during the 7 day period;
(v) cumulative total numbers of transactions per asset class for the current financial year, as at the end of the 7 day period;
(b) DDRS must:
(i) make available at no charge and through a publicly accessible website within 5 days from the end of each 7 day period, the statistical data referred to in paragraph (a) for each 7 period; and
(ii) ensure that the statistical data for each 7 day period remains available for at least 14 days from the date it is first made available; and
(c) DDRS must not include data that is capable of identifying a counterparty to a Derivative Transaction in the statistical data referred to in paragraph (a).
DDRS does not have to comply with Rule 2.4.1 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with paragraphs 46I(1)(b), (c) and (i) and 46J(a) of the SFA;
(b) DDRS must reserve a position for, and make reasonable endeavours to appoint, a member of its Board who is:
(i) a representative of a Participant that is an Australian ADI that has its principal place of business in Australia; and
(ii) an Australian citizen;
(c) DDRS must:
(i) adopt a crisis management plan which provides for clearly defined processes in crises and emergencies for decision making and for communicating with Participants and Australian Regulators; and
(ii) provide ASIC with access to the crisis management plan DDRS proposes to adopt under subparagraph (i), at least 1 week before adopting the crisis management plan.
14 Exemption 10 (Handling Conflicts of Interest)
(a) DDRS must comply with subsection 46E(5) of the SFA in relation to any conditions or restrictions imposed on its Singapore Licence relating to conflicts of interest;
(b) DDRS must maintain and enforce its policies and procedures in respect of conflicts of interest in substantially the form of the DTCC Data Repository (Singapore) Pte. Ltd. Compliance Manual and the DTCC Data Repository (Singapore) Pte. Ltd. Conflict of Interest Resolution Policy as at the date of this instrument.
15 Exemption 11 (Monitoring and enforcement of compliance with obligations)
DDRS does not have to comply with Rule 2.4.3 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must establish, implement, maintain and enforce policies, procedures, systems and controls for monitoring and enforcing compliance by its Officers and employees with:
(i) the conditions of the Australian Licence on and from the time the obligations in those conditions commence; and
(ii) the conditions of exemptions granted to DDRS by ASIC under paragraph 907D(2)(a) of the Corporations Act, including the exemptions in this instrument; and
(iii) Part 2.3 of the DTRRs, to the extent DDRS is not exempt from that Part under paragraph 907D(2)(a) of the Corporations Act, and Rule 2.7.3 of the DTRRs; and
(iv) Division 2 of Part 5B.2 and Division 6 of Part 7.5A of the Corporations Act; and
(b) DDRS must ensure that the policies, procedures, systems and controls required by the condition in paragraph (a) are reviewed, audited and tested periodically and after significant changes, to ensure compliance with the condition in paragraph (a).
16 Exemption 12 (Risk Management)
DDRS does not have to comply with Rule 2.4.4 of the DTRRs for so long as DDRS complies with the condition that DDRS must comply with paragraph 46I(1)(b) and section 46J of the SFA.
DDRS does not have to comply with Rule 2.4.5 of the DTRRs for so long as DDRS complies with the condition that DDRS must comply with paragraph 46I(1)(g) and section 46J of the SFA.
18 Exemption 14 (Human Resources)
DDRS does not have to comply with Rule 2.4.6 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with paragraph 46I(1)(g) and (j) and sections 46V and 46Z of the SFA;
(b) DDRS must comply with regulation 21 of the SF Regulations.
19 Exemption 15 (Financial Resources)
DDRS does not have to comply with Rule 2.4.7 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with paragraph 46I(1)(g) of the SFA;
(b) DDRS must comply with regulation 7 of the SF Regulations;
(c) DDRS must comply with subsection 46E(5) of the SFA in relation to any conditions or restrictions imposed on its Singapore Licence relating to financial resources.
20 Exemption 16 (Integrity and Security of Computer Systems and Other Systems)
DDRS does not have to comply with Rule 2.4.8 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with subparagraph 46I(1)(g) and section 46O of the SFA;
(b) DDRS must comply with regulation 16 of the SF Regulations.
21 Exemption 17 (Operational Reliability)
DDRS does not have to comply with Rule 2.4.9 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with paragraphs 46I(1)(a), (b), (e), (g) and (i) of the SFA;
(b) DDRS must comply with regulation 16(1) of the SF Regulations;
(c) DDRS must provide ASIC with a copy of any notification or report provided to MAS under regulation 9(1)(d) of the SF Regulations, and under regulation 9(2) of the SF Regulations as it relates to a circumstance under regulation 9(1)(d), as soon as practicable after providing the notification or report to MAS.
22 Exemption 18 (Business Continuity Planning)
DDRS does not have to comply with Rule 2.4.10 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with subparagraph 46I(1)(g) of the SFA; and
(b) DDRS must comply with regulations 13(1) and (2) of the SF Regulations.
23 Exemption 19 (Recovery and Resolution)
DDRS does not have to comply with Rule 2.4.11 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with regulation 14 of the SF Regulations;
(b) DDRS must, on request by an Australian Regulator, provide the Australian Regulator with information reasonably required by the Australian Regulator for the purposes of resolution planning in respect of DDRS or its Users in relation to ASIC Data;
(c) DDRS must establish, implement, maintain and enforce policies, procedures and plans to comply with:
(i) the conditions in paragraphs (a) and (b); and
(ii) any obligations that may arise under section 904K of the Corporations Act in the event that DDRS ceases to be licensed under section 905C of the Corporations Act.
24 Exemption 20 (Operational Separation of Functions)
DDRS does not have to comply with Rule 2.4.12 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with paragraph 46K(1)(b) of the SFA;
(b) where DDRS provides Non-Trade Reporting Services, DDRS must disclose to ASIC a written description of all of the Non-Trade Reporting Services, and update the disclosure in writing as soon as practicable after any changes are made to the Non-Trade Reporting Services;
(c) where DDRS or any of its Related Body Corporates provide Non-Trade Reporting Services, DDRS must establish, implement, maintain and enforce policies, procedures, systems and controls designed to ensure operational separation between the Non-Trade Reporting Services and the Trade Reporting Services.
25 Exemption 21 (Outsourcing of Functions)
26 Exemption 22 (Disclosure of Rules, Procedures and Other Information)
DDRS does not have to comply with Rule 2.5.1 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with regulations 15 and 17 of the SF Regulations;
(b) DDRS must disclose to its Participants the DDRS User Agreement, DDRS Rulebook and DDRS Operating Procedures for accepting, retaining, using, disclosing and providing access to ASIC Data;
(c) DDRS must notify ASIC and its Participants of any material changes proposed to the documents referred to in the condition in paragraph (b) at least 10 Business Days before the changes are made.
27 Exemption 23 (Public Disclosures)
DDRS does not have to comply with Rule 2.5.2 of the DTRRs for so long as DDRS complies with regulation 15 of the SF Regulations.
28 Exemption 24 (Annual Compliance Report)
(a) DDRS must comply with section 46M of the SFA;
(b) DDRS must comply with regulation 11 of the SF Regulations;
(c) DDRS must provide ASIC with a copy of the report (SF Regulations Report) prepared in compliance with regulation 11(1)(c) of the SF Regulations within 10 Business Days of providing the report to MAS;
(d) DDRS must, at the same time as providing the SF Regulations Report, also provide ASIC with a report covering the same period that covers compliance with:
(i) the conditions of the Australian Licence, on and from the time those obligations commence; and
(ii) the conditions of any exemptions granted to DDRS under paragraph 907D(2)(a) of the Corporations Act, including the exemptions in this instrument; and
(iii) Part 2.3 of the DTRRs to the extent DDRS is not exempt from that Part under paragraph 907D(2)(a) of the Corporations Act, and Rule 2.7.3 of the DTRRs; and
(iv) Division 2 of Part 5B.2 and Division 6 of Part 7.5A of the Corporations Act.
29 Exemption 25 (Disclosure of Proceedings)
DDRS does not have to comply with Rule 2.6.2 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with regulations 9(1)(a) and (b) of the SF Regulations, and regulation 9(2) of the SF Regulations as it relates to a circumstance under regulation 9(1)(a) or (b);
(b) to the extent it is not prohibited from doing so under applicable law, DDRS must give ASIC a copy of any notification or report under the condition in paragraph (a), as soon as practicable after providing the notification or report to MAS;
(c) to the extent it is not prohibited from doing so under applicable law, DDRS must notify ASIC as soon as practicable after DDRS becomes aware that:
(i) disciplinary action has been taken against DDRS by MAS; or
(ii) a legal proceeding has been instituted, or disciplinary action has been taken, against an Officer of DDRS.
30 Exemption 26 (Notification of Acquisition of Significant Holding)
DDRS does not have to comply with Rule 2.6.3 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must ensure compliance with section 46U of the SFA and regulation 20 of the SF Regulations in relation to an acquisition of a significant holding in DDRS;
(b) DDRS must provide ASIC with a copy of:
(i) an approval granted under paragraph 46U(2)(a) or (b) of the SFA, as soon as practicable after the approval is granted; and
(ii) a direction issued under subsection 46U(6) of the SFA, as soon as practicable after the direction is issued.
DDRS does not have to comply with Rule 2.6.4 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with regulation 9(1)(d) of the SF Regulations, and regulation 9(2) of the SF Regulations as it relates to a circumstance under regulation 9(1)(d);
(b) DDRS must provide ASIC with a copy of any notification or report provided to MAS under the condition in paragraph (a), as soon as practicable after providing the notification or report to MAS.
32 Exemption 28 (Keeping of Records)
DDRS does not have to comply with Rule 2.7.1 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with section 46L of the SFA;
(b) DDRS must comply with regulations 5 and 11 of the SF Regulations.
33 Exemption 29 (Provision of Records or Other Information)
DDRS does not have to comply with Rule 2.7.2 of the DTRRs for so long as DDRS complies with the following conditions:
(a) DDRS must comply with regulation 11 of the SF Regulations;
(b) DDRS must provide, on request by ASIC, records or other information relating to compliance with, or determining whether there has been compliance with:
(i) the conditions of the Australian Licence, on and from the time the obligations in those conditions commence; and
(ii) the conditions of exemptions granted to DDRS by ASIC under paragraph 907D(2)(a) of the Corporations Act, including the exemptions in this instrument; and
(iii) Part 2.3 of the DTRRS, to the extent DDRS is not exempt from that Part under paragraph 907D(2)(a) of the Corporations Act, and Rule 2.7.3 of the DTRRs; and
(iv) Division 2 of Part 5B.2 and Division 6 of Part 7.5A of the Corporations Act.
34 Condition (Requirement to notify ASIC)
It is a condition of each exemption in this instrument that DDRS must notify ASIC as soon as it becomes aware that:
(a) changes have been made to any provision of the SFA, SF Regulations or Singapore Licence referred to in a condition of an exemption under this instrument; or
(b) changes have been made to the DTCC Data Repository (Singapore) Pte. Ltd. Compliance Manual or the DTCC Data Repository (Singapore) Pte. Ltd. Conflicts Resolution Policy referred to in the condition in subsection 14, or any of these documents have been replaced or supplemented by another document; or
(c) changes have been made to the Guidelines on Outsourcing issued by the MAS referred to in the condition in section 25, or this document has been replaced or supplemented by another document.
Note: ASIC Instrument [14/0913] was available on ASIC’s website as at the date of this instrument. Prior to its repeal, it provided DDRS with similar relief to this instrument in relation to the ASIC Derivative Trade Repository Rules 2013.