Blue Chip Segment Directive 11 Default Procedures. Date of entry into force: 4 May 2009

Transcription

1 Blue Chip Segment Directive 11 Default Procedures Date of entry into force: 4 May 2009

2 SIX Swiss Exchange Page ii Table of Contents 1. Treatment of principal and agency contracts Limitation on action by SIX Swiss Exchange Treatment of unsettled contracts Discharge of market contracts Settlement amount Accounts Disputes Access to records General... 5

3 SIX Swiss Exchange Page 1 1. Treatment of principal and agency contracts Immediately after a member has been declared a defaulter or at any time afterwards without unreasonable delay, and subject to other provisions in this Directive, SIX Swiss Exchange will: a) take one or more of the steps referred to in paragraph 3 below (Treatment of unsettled contracts) in respect of unsettled market contracts to which the defaulter is party as principal in order that: (i) all rights and liabilities under every such unsettled market contract are discharged and a settlement amount is determined in respect of each such transaction in accordance with these Procedures and (ii) SIX Swiss Exchange can certify one or more net sums due to or from the defaulter as determined in accordance with these Procedures or that no net sum is payable and b) take steps to identify the principals to every unsettled market contract concluded by the defaulter as agent and to notify each principal of the identity of the other and to direct that such transaction shall be performed by such principals directly with each other. 2. Limitation on action by SIX Swiss Exchange 2.1 Direction by FINMA, impracticality or unlawfullness SIX Swiss Exchange will not take action under these Default Procedures if: it receives a direction from the FINMA requiring it to take no action or not to take certain steps under these Procedures or it would be impracticable or not permitted according to applicable law in the circumstances to do so, in which case SIX Swiss Exchange shall not be obliged to take all or any of the steps referred to in paragraphs 1 and 3 of this Directive. 2.2 Inapplicability SIX Swiss Exchange is not obliged to discharge rights and liabilities: a) in respect of margin or b) which arise out of a failure to perform a market contract in accordance with the standard terms on which it was made. 2.3 Where SIX Swiss Exchange does not take action If SIX Swiss Exchange does not take steps to discharge any or all of the rights and liabilities of the parties to a market contract under these Default Procedures, the parties shall remain obliged to discharge those of their rights and liabilities which are not discharged under these Procedures.

4 SIX Swiss Exchange Page 2 3. Treatment of unsettled contracts 3.1 Steps open to SIX Swiss Exchange SIX Swiss Exchange may direct that any unsettled market contract(s) with a counterparty to which the defaulter is party: a) as buyer be settled by off-set against unsettled market contracts with the same counterparty which are on the same terms (except as to price) to which the defaulter is party as seller b) be closed out and settled by payment of cash differences to be calculated by reference to a price determined by SIX Swiss Exchange with regard to market conditions and/or taking into account any compensation that SIX Swiss Exchange considers should be paid by or to the defaulter c) be performed by the defaulter (or by his agent or a third party appointed by or on behalf of the defaulter) in accordance with its terms. SIX Swiss Exchange may direct this with or without the agreement of the defaulter or (if applicable) a relevant office-holder appointed in respect of the defaulter. 3.2 Transfer of unsettled market contracts In order to facilitate the transfer of an unsettled market contract at the request of a counterparty, SIX Swiss Exchange may direct that: a) such market contract be closed-out and b) a market contract in the same terms as the closed out market contract be entered into (otherwise than through the SWXess trading platform) between a member ("the transferee member") and the counterparty, with the agreement of such transferee member, at a price determined by SIX Swiss Exchange. If the transferee member is not a clearing member, the transferee member and his clearing member shall enter into a market contract in the same terms (including the price) as the transferred market contract, save that the buyer under the transferred market contract shall be a seller under the market contract with the clearing member and vice versa. c) such action are taken as SIX Swiss Exchange considers appropriate in the circumstances to effect transfer. SIX Swiss Exchange will not take steps operationally to effect a transfer of open positions of a non-clearing member whose clearing member is in default. 4. Discharge of market contracts The defaulter or (as the case may be) the counterparty shall be liable to pay the settlement amount (if any) determined under these Procedures to be payable by one party to the other in respect of such discharged market contract.

5 SIX Swiss Exchange Page 3 5. Settlement amount 5.1 General determination Where SIX Swiss Exchange takes steps to discharge rights and liabilities, the settlement amount (if any) which is payable in respect of an unsettled market contract shall be determined by or on behalf of SIX Swiss Exchange and may take into account: a) any dividend payments or other amounts due and payable but unpaid under such unsettled market contract and/or b) any corporate event affecting a security which is the subject of such market contract and/or c) any arbitration award or judgment made arising from any proceeding commenced in respect of any dispute, claim or matter arising out of or in connection with such market contract. 5.2 In case of off-set or close-out Without prejudice to the generality of the above, the settlement amount (if any) shall be determined: a) in respect of market contracts settled by off-set, by reference to the difference (if any) between the transaction prices of the market contracts off-set against each other. b) in respect of a market contract closed-out, by reference to the difference (if any) between the transaction price of such market contract and the price determined by SIX Swiss Exchange under paragraph 3.1b) above. c) in respect of a transaction which, pursuant to a direction, has been performed in whole or in part, having regard to its terms. If, by the terms of the market contract or any agreement between its parties, the rights and obligations become an obligation to pay and a right to receive a single liquidated sum, SIX Swiss Exchange may determine such sum to be the settlement amount in respect of one or more market contracts. d) If steps have not been taken to discharge the rights and liabilities under an unsettled market contract which arise out of a failure to perform such market contract in accordance with its terms, SIX Swiss Exchange will not be obliged to determine a settlement amount in respect of such market contract. 5.3 Binding and conclusive determination The settlement amount determined by SIX Swiss Exchange for each market contract in respect of which one or more steps have been taken under these Procedures shall be final, conclusive and binding upon the defaulter and the counterparty to each such market contract.

6 SIX Swiss Exchange Page 4 6. Accounts 6.1 SIX Swiss Exchange to draw up account Subject to the following paragraphs in this section, SIX Swiss Exchange shall draw up an account between the defaulter and each counterparty to one or more market contracts discharged in accordance with these Procedures. 6.2 Segregated and trustee accounts Where the defaulter (or, as the case may be, the counterparty) is a segregated client with respect to some or all market contracts, separate accounts shall be drawn up between the defaulter and the counterparty relating to the market contracts in respect of which either party is a segregated client and relating to those in respect of which neither party is a segregated client. Each such account shall include the settlement amounts calculated in respect of each unsettled market contract; these amounts shall be credited or debited, as appropriate, to the relevant account. On each account, all credits and debits shall be aggregated and the aggregated amount of such credits and debits shall be set-off against each other, so as to produce a net sum payable by or to the defaulter on each account as certified under paragraph 1a)(ii). Where the defaulter or the counterparty has entered into any market contracts as trustee, a separate account shall be drawn up relating to such unsettled market contracts. 6.3 Limitations SIX Swiss Exchange is not obliged to include in any account any market contract of which it does not have actual notice within three months after the date on which the member was declared a defaulter, or to draw up an account with respect to a counterparty of which it does not have actual notice within three months of such date. 6.4 Currency conversions SIX Swiss Exchange shall be entitled, in its discretion and without notice to the defaulter or a counterparty, to make any currency conversions which it considers necessary or desirable for the purposes of these Default Procedures at such rate(s) as SIX Swiss Exchange may reasonably determine. Any automatic currency conversion applied to a transaction using the Flexible Settlement Currency functionality shall not form part of the unsettled market contract and shall not be dealt with under these Default Procedures. 7. Disputes If a dispute arises as to whether a market contract had been made or as to the terms of a market contract, SIX Swiss Exchange may direct that such market contract shall be deemed to have been validly made on such terms as SIX Swiss Exchange thinks fit and to such market contract or the parties refer the dispute to arbitration or appeal against an award made in relation thereto or commence court proceedings or otherwise apply to the court in respect thereof, within such time limit as SIX Swiss Exchange may specify for the purpose.

7 SIX Swiss Exchange Page 5 8. Access to records For the purposes of implementing these Default Procedures,, SIX Swiss Exchange shall have the right at all times, and without giving prior notice, through its employees or agents, to: a) enter into any premises belonging to or in the occupation of the defaulter b) examine and remove or take copies of or extracts from the trading, accounting, computer and other records of the defaulter and c) operate any accounting or computing systems of the defaulter and to reproduce data to which SIX Swiss Exchange has access. To the extent permitted by law, SIX Swiss Exchange shall have such rights for the purpose of obtaining the names and addresses of all clients, details of all unsettled market contracts entered into by the defaulter, details of money and other property held for the account of segregated clients and any other information which SIX Swiss Exchange deems necessary or desirable for the purpose of implementing these Default Procedures. 9. General In taking any step under these Default Procedures, SIX Swiss Exchange shall take no account of any right or interest which any person other than the defaulter or the counterparty may have in any unsettled market contract entered into between them.