The Bilateral Netting of Qualified Financial Contracts Bill, 2020 |The LexSphere Library

SECTION Section 1

Untitled Section

•1

•THE BILATERAL NETTING OF QUALIFIED FINANCIAL

•CONTRACTS BILL, 2020

•A

•BILL

•to ensure financial stability and promote competitiveness in Indian financial markets by

•providing enforceability of bilateral netting of qualified financial contracts and for

•matters connected therewith or incidental thereto.

•B

•E it enacted by Parliament in the Seventy-first Y ear of the Republic of India as

•follows:—

SECTION Section 10

Untitled Section

•CHAPTER III

•I

•NVOCATION OF CLOSE-OUT NETTING

SECTION Section 11

Untitled Section

6.(1) Close-out netting may be commenced by a notice given by one party to the other

•party of a qualified financial contract upon the occurrence of an event of default with respect

•to the other party or a termination event that may, in certain circumstances, occur automatically

•as specified in the netting agreement:

•Provided that where any one of the parties to a netting agreement is subject to

•administration, then no prior notice to or consent of the party in insolvency, winding up,

•liquidation, administration or resolution proceeding, or to the administration practitioner of

•such proceeding, shall be required.

Explanation.—For the purposes of this sub-section,—

(i)"event of default" means failure to pay or deliver or honour the obligations of

•a qualified financial contract, or bankruptcy, or any other event as may be agreed upon

•by the parties in the agreement; and

•(ii) "termination event" means the occurrence of any event mentioned in the

•netting agreement which gives one or both parties the right to terminate relevant

•transactions under that agreement.

(2)The parties to a qualified financial contract shall ensure that all obligations owed

•by one party to another party under a qualified financial contract are reduced to or replaced

•with single net amount which has the following effect, namely:—

(a)the termination, liquidation or acceleration of any present or future payment

•or delivery rights or obligations arising under or in connection with any one or more

•qualified financial contracts to which a netting agreement applies;

(b)the calculation or estimation of a close-out value, market value, liquidation

•value or replacement value in respect of each right and obligation or group of rights

•and obligations terminated, liquidated or accelerated under clause ( a) and the

•conversion of each such value into a single currency; and

(c)the determination of the net balance of the values calculated under clause (b),

•whether by operation of set-off or otherwise, giving rise to the obligation of one party

•to pay an amount equal to the net balance to the other party.

(3)Without prejudice to the provisions of any law for the time being in force requiring

•the realisation, appropriation or liquidation of collateral, and unless otherwise agreed by the

•parties, the realisation, appropriation or liquidation of collateral under a collateral arrangement

•shall take effect without any requirement of prior notice to, or consent from, any party,

•person or entity.

(4)Close-out netting shall be applicable to all qualified financial market participants

•who are parties to a qualified financial contract notwithstanding anything to the contrary

•contained in any law specified in the Second Schedule or any other law pursuant to

•which any qualified financial market participant has been incorporated, constituted or is

regulated.

•Invocation of

•close-out

netting.

•5

•10

•15

•25

•20

•30

•35

•40

•45

•6

SECTION Section 12

Untitled Section

7.(1) Where parties to the qualified financial contract enter into a netting agreement,

•the net amount payable under the close-out netting shall be determined in accordance with

•the terms of the netting agreement entered into by the parties.

(2)In the absence of the netting agreement, where the parties to a qualified financial

•contract fail to agree on the sum with regard to the net amount payable under the close-out

•netting, such sum shall be determined through arbitration.

SECTION Section 13

Untitled Section

•CHAPTER IV

•L

•IMITATIONS ON POWERS OF ADMINISTRATION PRACTITIONER

SECTION Section 14

Untitled Section

8.The administration practitioner shall not render or seek to render ineffective,—

(a)any transfer, substitution or exchange of cash, collateral or any other interests

•under or in connection with a netting agreement between the insolvent party and the

•non-insolvent party to a qualified financial contract; or

(b)any payment or delivery obligation incurred by the insolvent party and

•owing to the non-insolvent party under or in connection with a netting agreement on

•the grounds of it constituting a preference including a fraudulent preference or a

•transfer for undervalue, including during a suspect period by the insolvent party to

•the non-insolvent party.

Explanation.—For the purposes of this clause, "suspect period" means the

•relevant period referred to in sub-section ( 4) of section 43 of the Insolvency and

•Bankruptcy Code, 2016 in respect of "preferential transaction" and in sub-section (1)

•of section 46 of the said Code in respect of "undervalued transaction".

SECTION Section 15

Untitled Section

•CHAPTER V

•M

•ISCELLANEOUS

SECTION Section 16

Untitled Section

9.(1) If the Central Government is satisfied that it is necessary or expedient so to do,

•it may, by notification, add to or otherwise amend the First Schedule or the Second Schedule

•and thereupon, the First Schedule or the Second Schedule, as the case may be, shall be

•deemed to have been amended accordingly.

(2)Every notification issued under sub-section ( 1) shall be laid, as soon as may be

•after it is issued, before each House of Parliament while it is in session, for a total period of

•thirty days which may be comprised in one session or in two or more successive sessions,

•and if, before the expiry of the session immediately following the session or the successive

•sessions aforesaid, both Houses agree in making any modification in the notification or both

•Houses agree that the notification should not be issued, the notification shall thereafter

•have effect only in such modified form or be of no effect, as the case may be; so, however,

•that any such modification or annulment shall be without prejudice to the validity of anything

•previously done under that notification.

SECTION Section 17

Untitled Section

10.The provisions of this Act shall have effect, notwithstanding anything inconsistent

•therewith contained in any other law for the time being in force or any instrument having

•effect by virtue of any such law.

SECTION Section 18

Untitled Section

11.(1) If any difficulty arises in giving effect to the provisions of this Act, the Central

•Government may, by order, published in the Official Gazette, make such provisions not

•inconsistent with the provisions of this Act as may appear to it to be necessary or expedient

•for removing the difficulty:

•Provided that no order shall be made after the expiry of a period of three years from the

•date of commencement of this Act.

(2)Every order made under this section shall be laid, as soon as may be after it is made,

•before each House of Parliament.

•Net amount.

•Limitations

•on powers of

•administration

practitioner.

•Power to

•amend

Schedules.

•Provisions of

•this Act to

•override other

laws.

•31 of 2016.

•Power to

•remove

difficulties.

•5

•10

•15

•25

•20

•30

•35

•40

•45

•THE FIRST SCHEDULE

•[See sections 2(1) (c), (p) and 9(1)]

Sl.No. Name of the authority Act No.

(1)(2) (3)

SECTION Section 19

Untitled Section

1.The Reserve Bank of India, established under section 3 of the

•Reserve Bank of India Act, 1934.

SECTION Section 2

Untitled Section

•CHAPTER I

•PRELIMINARY

SECTION Section 20

Untitled Section

2.The Securities and Exchange Board of India, established under

SECTION Section 21

Untitled Section

•section 3 of the Securities and Exchange Board of India

•Act,1992.

SECTION Section 22

Untitled Section

3.The Insurance Regulatory and Development Authority of

•India, established under section 3 of the Insurance Regulatory

•and Development Authority Act, 1999.

SECTION Section 23

Untitled Section

4.The Pension Fund Regulatory and Development Authority,

•established under section 3 of the Pension Fund Regulatory

•and Development Authority Act, 2013.

SECTION Section 24

Untitled Section

5.The International Financial Services Centres Authority

•established under section 4 of the International Financial

•Services Centres Authority Act, 2019.

•2 of 1934.

•15 of 1992.

•41 of 1999.

•23 of 2013.

•50 of 2019.

•7

•THE SECOND SCHEDULE

•[See sections 6(4) and 9(1)]

Sl.No. Name of the enactment Act No.

(1)(2) (3)

SECTION Section 25

Untitled Section

1.The Reserve Bank of India Act, 1934. 2 of 1934.

SECTION Section 26

Untitled Section

2.The Insurance Act, 1938. 4 of 1938.

SECTION Section 27

Untitled Section

3.The Banking Regulation Act,1949. 10 of 1949.

SECTION Section 28

Untitled Section

4.The State Bank of India Act, 1955. 23 of 1955.

SECTION Section 29

Untitled Section

5.The Securities Contracts (Regulation) Act, 1956. 42 of 1956.

SECTION Section 3

Untitled Section

1.(1) This Act may be called the Bilateral Netting of Qualified Financial Contracts

•Act, 2020.

(2)It shall come into force on such date as the Central Government may, by notification

•in the Official Gazette, appoint, and different dates may be appointed for different provisions

•of this Act.

•Short title and

commencement.

•Bill No. 98 of 2020

•AS INTRODUCED IN LOK SABHA

•5

•2

SECTION Section 30

Untitled Section

6.The Banking Companies (Acquisition and Transfer of Undertakings)

•Act, 1970. 5 of 1970.

SECTION Section 31

Untitled Section

7.The Regional Rural Bank Act, 1976. 21 of 1976.

SECTION Section 32

Untitled Section

8.The Banking Companies (Acquisition and Transfer of Undertakings)

•Act, 1980. 40 of 1980.

SECTION Section 33

Untitled Section

9.The Securities and Exchange Board of India Act,1992. 15 of 1992.

SECTION Section 34

Untitled Section

10.The Foreign Exchange Management Act,1999. 42 of 1999.

SECTION Section 35

Untitled Section

11.The Insurance Regulatory and Development Authority Act, 1999. 41 of 1999.

SECTION Section 36

Untitled Section

12.The Payment and Settlement Systems Act, 2007. 51 of 2007.

SECTION Section 37

Untitled Section

13.The Companies Act, 2013. 18 of 2013.

SECTION Section 38

Untitled Section

14.The Pension Fund Regulatory and Development Authority 23 of 2013.

•Act, 2013.

SECTION Section 39

Untitled Section

15.The Insolvency and Bankruptcy Code, 2016. 31 of 2016.

•8

•STA TEMENT OF OBJECTS AND REASONS

•Netting enables two counterparties in a bilateral financial contract to offset claims

•against each other to determine a single net payment obligation due from one counterparty

•to other in the event of default. In the absence of a legal framework for bilateral netting, banks

•are forced to measure credit exposure to a counterparty for over the counter (OTC) derivative

•contracts based on gross basis and not net basis. This situation significantly increases

•credit risk exposure and systemic risk in financial market in the event of default of a

•counterparty, besides trapping significant amount of capital unproductively by banks. An

•unambiguous legal framework for enforceability of close-out netting would reduce credit

•exposure of banks and other financial institutions from gross to net exposure, resulting in

•substantial capital saving on such exposure and reducing the overall systemic risks, thus

•contributing to the financial stability.

SECTION Section 4

Untitled Section

2.(1) In this Act, unless the context otherwise requires,—

(a)"administration" means proceedings of the nature of placing under

•administration and includes imposition of moratorium, reorganisation, winding up,

•liquidation (including any compulsory winding up procedure or proceeding), insolvency,

•bankruptcy, composition with creditors, receivership, conservatorship or any

•proceedings of nature similar to or resulting in any of the foregoing, initiated or

•commenced under any law for the time being in force, against a qualified financial

•market participant;

(b)"administration practitioner" means the liquidator, receiver, trustee,

•conservator, resolution professional or any other person or entity, by whatever name

•called, which administers the affairs of a party subject to administration under any law

•for the time being in force;

(c)"authority" means the Central Government or any of the regulatory authorities

•as specified in the First Schedule;

(d)"banking institution" means,—

(i)scheduled bank as defined in clause ( e) of section 2 of the Reserve

•Bank of India Act, 1934; and

•(ii) any other bank as the Reserve Bank of India may specify;

(e)"close-out netting" means a process involving termination of obligations

•under a qualified financial contract with a party in default and subsequent combining

•of positive and negative replacement values into a single net payable or receivable as

•set out in section 6;

(f)"collateral" means,—

(i)money, in the form of cash, credited to an account in any currency, or a

•similar claim for repayment of money, such as a money market deposit;

•(ii) securities of any kind, including debt and equity securities;

•(iii) guarantees, letters of credit and obligations to reimburse; and

•(iv) any asset commonly used as collateral under any law for the time

•being in force;

(g)"collateral arrangement" means any margin, collateral or security arrangement

•or other credit enhancement related to or forming part of a netting agreement or one or

•more qualified financial contracts to which a netting agreement applies, and includes,—

(i)a pledge or any other form of security interest in collateral, whether

•possessory or non-possessory;

•(ii) a title transfer collateral arrangement; and

•(iii) any guarantee, letter of credit or reimbursement obligation by or to a

•party to one or more qualified financial contracts, in respect of those qualified

•financial contracts; or a netting agreement;

(h)"insolvent party" means the party to a qualified financial contract in relation

•to which insolvency, winding up, liquidation, resolution, administration or similar

•proceedings have been instituted under any law for the time being in force in India or

•under the laws of any other country, including of its incorporation;

(i)"margin" means the amount, form and type of collateral required as a

•performance bond for the purchase, sale or carrying of a qualified financial contract

•and includes—

(A)initial margin which protects the transacting parties from potential

•future exposure likely to arise from future changes in the mark-to-market

•value of the qualified financial contract during the close-out and replace

•the position in the event of counterparty default; and

Definitions.

•2 of 1934.

•5

•10

•15

•25

•20

•30

•35

•40

•45

•3

(B)variation margin which protects the transacting parties from the

•current exposure that has already been incurred by one of the parties from

•changes in the mark-to-market value of the qualified financial contract

•after the transaction has been executed;

(j)"netting" means determination of net claim or obligations after setting off or

•adjusting all the claims or obligations based or arising from mutual dealings between

•the parties to qualified financial contracts and includes close-out netting;

(k)"netting agreement" means an agreement that provides for netting, and

•includes,—

(i)an agreement that provides for the netting of amounts due under two or

•more netting agreements; and

•(ii) a collateral arrangement relating to or forming part of a netting

•agreement;

(l)"non-insolvent party" means the party to a qualified financial contract that is

•not the insolvent party;

(m)"notification" means a notification published in the Official Gazette and the

•term "notify" shall be construed accordingly;

(n)"qualified financial contract" means a qualified financial contract notified by

•the authority under clause (a) of section 4;

(o)"qualified financial market participant" includes,—

(i)a banking institution, or a non-banking financial company, or such

•other financial institution which is subject to regulation or prudential supervision

•by the Reserve Bank of India;

•(ii) an individual, partnership firm, company, or any other person or body

•corporate whether incorporated under any law for the time being in force in India

•or under the laws of any other country and includes any international or regional

•development bank or other international or regional organisation;

•(iii) an insurance or reinsurance company which is subject to regulation

•or prudential supervision by the Insurance Regulatory and Development

•Authority of India established under the Insurance Regulatory and Development

•Authority Act, 1999;

•(iv) a pension fund regulated by the Pension Fund Regulatory and

•Development Authority established under the Pension Fund Regulatory and

•Development Authority Act, 2013;

(v)a financial institution regulated by the International Financial Services

•Centres Authority established under the International Financial Services Centres

•Authority Act, 2019; and

•(vi) any other entity notified by the relevant authority under clause (b) of

SECTION Section 40

Untitled Section

2.Further, due to the emerging global consensus of imposition of margins for non-

•centrally cleared OTC derivatives, it has become necessary for India to implement exchange

•of margin system for OTC derivatives to improve stability and resilience of our financial

system.Such margin on gross basis would make the OTC derivative market very costly and

•may seriously disrupt the OTC derivatives market, as such derivatives account for a significant

•part of the total derivatives market. The law on bilateral netting would be a significant enabler

•for efficient margining. The capital saving would enable banks to provide price efficiency in

•offering hedging instruments to businesses in India, and catalyse the corporate bond market

•through developing the credit default swap market. It is expected that a law on bilateral

•netting of financial transactions would further develop the financial market in India.

SECTION Section 41

Untitled Section

3.The Bilateral Netting of Qualified Financial Contracts Bill, 2020, inter alia, seeks to

•provide for—

(a)designation of any bilateral agreement or contract or transaction, or type of

•contract, as qualified financial contract by the Central Government or any of the

•regulatory authorities as specified in the First Schedule;

(b)enforceability of netting of a qualified financial contract;

(c)invocation of close-out netting which may be commenced by a notice given

•by one party to the other party of a qualified financial contract upon the occurrence of

•an event of default with respect to the other party or a termination event that may, in

•certain circumstances, occur automatically as specified in the netting agreement;

(d)determination of the net amount payable under the close-out netting in

•accordance with the terms of the netting agreement entered into by the parties and in

•the absence of the netting agreement, where the parties to a qualified financial contract

•fail to agree on the sum with regard to the net amount payable under the close-out

•netting, determination of such sum through arbitration;

(e)imposing of certain limitations on powers of administration practitioner.

SECTION Section 42

Untitled Section

4.The Bill seeks to achieve the above objectives.

•N

•EW DELHI; NIRMALA SITHARAMAN.

•The 20th March, 2020.

•9

•LOK SABHA

•————

•A

•BILL

•to ensure financial stability and promote competitiveness in Indian financial markets by

•providing enforceability of bilateral netting of qualified financial contracts

•and for matters connected therewith or incidental thereto.

•————

•(Smt. Nirmala Sitharaman, Minister of Finance and Corporate Affairs)

•MGIPMRND—6197LS—20-03-2020.

SECTION Section 5

Untitled Section

•section 4;

(p)"Schedule" means the First Schedule or the Second Schedule to this Act;

(q)"title transfer collateral arrangement" means a margin, collateral or security

•arrangement related to a netting agreement based on the transfer of title to collateral,

•whether by outright sale or by way of security, including a sale and repurchase agreement,

•securities lending agreement, securities, buy or sell-back agreement or an irregular

pledge.

(2)Words and expressions used but not defined in this Act and defined in

•the Reserve Bank of India Act, 1934, the Insurance Act, 1938, the Banking Regulation

•Act,1949, the Securities Contracts (Regulation) Act, 1956, the Banking Companies (Acquisition

•41 of 1999.

•2 of 1934.

•4 of 1938.

•10 of 1949.

•42 of 1956.

•23 of 2013.

•50 of 2019.

•5

•10

•15

•25

•20

•30

•35

•40

•45

•4

•and Transfer of Undertakings) Act, 1970, the Banking Companies (Acquisition and Transfer

•of Undertakings) Act, 1980, the Securities and Exchange Board of India Act,1992, the Foreign

•Exchange Management Act,1999, the Insurance Regulatory and Development Authority

•Act, 1999, the Payment and Settlement Systems Act, 2007, the Companies Act, 2013, the

•Pension Fund Regulatory and Development Authority Act, 2013 and the Insolvency and

•Bankruptcy Code, 2016, shall have the meanings respectively assigned to them in those

enactments.

SECTION Section 6

Untitled Section

•CHAPTER II

•A

•PPLICATION OF ACT

SECTION Section 7

Untitled Section

3.The provisions of this Act shall apply to a qualified financial contract entered into

•on a bilateral basis between qualified financial market participants, either under a netting

•agreement or otherwise, where at least one of such participants shall be an entity regulated

•by an authority specified in the First Schedule.

SECTION Section 8

Untitled Section

4.The relevant authority may, by notification,—

(a)designate any bilateral agreement or contract or transaction, or type of contract

•regulated by it, as qualified financial contract:

•Provided that the contract, so designated under this clause, shall not include

•any contract,—

(i)entered into between such parties and on such terms as the Central

•Government may, by notification, specify; or

•(ii) entered into on multilateral basis in accordance with the provisions of

•the Securities Contracts (Regulation) Act, 1956 and the Payment and Settlement

•Systems Act, 2007;

(b)specify any entity regulated by it, as a qualified financial market participant

•to deal in qualified financial contracts.

SECTION Section 9

Untitled Section

5.(1) Netting of the qualified financial contract shall be enforceable—

(a)where such contract is entered into with a netting agreement, in accordance

•with the terms of the netting agreement:

•Provided that the inclusion of any non-qualified financial contract in a netting

•agreement shall not invalidate the enforceability of netting of qualified financial contract

•under such agreement; or

(b)where such contract is entered into without a netting agreement, in accordance

•with the provisions of section 6.

(2)A qualified financial contract shall not be void and shall be deemed never to have

•been void or unenforceable by reason of any law for the time being in force.

(3)Close-out netting of a qualified financial contract shall be enforceable against an

•insolvent party, and, wherever applicable, against a guarantor or other person providing

•collateral or security for a party and shall not be affected or stopped or otherwise limited

•by:—

(i)the appointment of, or any application for the appointment of, an administration

•practitioner, or

•(ii) applicability of any provision of law relating to administration, or

•(iii) any other provision of law that may be applicable to an insolvent party.

(4)Where a qualified financial market participant is subject to administration, then

•notwithstanding,—

(i)any stay, injunction, avoidance, moratorium or similar proceedings or any

•other order of a court, tribunal or authority, or

•Applicability

•of Act.

•Powers of

authority.

•Enforceability

•of netting.

•5 of 1970.

•40 of 1980.

•15 of 1992.

•42 of 1999.

•41 of 1999.

•51 of 2007.

•18 of 2013.

•23 of 2013.

•31 of 2016.

•42 of 1956.

•51 of 2007.

•2 of 1934.

•5

•10

•15

•25

•20

•30

•35

•40

•45

•5

•(ii) any order of adjudication or dissolution or winding up or resolution or

•insolvency, or

•(iii) any rule, regulation, scheme, direction, guideline, circular or order,

•made or issued under any law for the time being in force, close-out netting shall be applicable

•and nothing contained therein shall affect the validity of close-out netting under this Act.

(5)The amount payable or other claims to be made in accordance with the close-out

•netting under this Act shall be final, irrevocable and binding upon the parties to a qualified

•financial contract and upon the administration practitioner, of the party in administration.