Client Alerts

 

SEMINAR AGENDA

DAY ONE:  APRIL 5, 2017

8:00 AM               Registration and Continental Breakfast

8:30 AM               The 1992 ISDA® Master Agreement:

Ø  Section-by-section review and analysis of the 1992 ISDA® Master Agreement

Ø  Review of key differences between the 1992 and 2002 ISDA® Master Agreements          

10:00 AM             Morning Break

10:15 AM             Schedule to the 1992 and 2002 ISDA® Master Agreement

Ø  Review of adequate assurances provisions in the ISDA® Schedule

Ø  Examination of relevant calculation agent issues

Ø  Identifying the relevant bankruptcy code representations in the ISDA® Schedule             

Ø  The pros and cons of cross-product and cross-affiliate netting and setoff

Ø  Damages and close-out methodologies

Ø  Events of Default and Termination Events

Ø  Counterparty default management

Ø  Set-Off provision

Ø  Interest rate provisions

11:45 Noon         Lunch

1:00 PM                ISDA® Protocols and Annexes

Ø  August 2012 and March 2013 ISDA® Dodd-Frank Protocols

Ø  EMIR Protocol requirements for the U.S. companies

Ø  Margin Protocol

Ø  Mandatory reporting requirements obligations for end-users                    

2:30 PM                Afternoon Break

2:45 PM                Using ISDA® Master Agreement for Physical Commodity Transactions

Ø  Oil Annex

Ø  Power Annex

Ø  Gas Annex

Ø  Bridge Agreement

Ø  4: 15 PM               End of Day One Session

  

DAY TWO:  APRIL 6, 2017

8:00 AM               Continental Breakfast

8:30 AM               1994 ISDA® Credit Support Annex

Ø  Section-by-section review and analysis of 1994 ISDA® Credit Support Annex

10:00 AM             Morning Break

10:15 AM             Paragraph 13 to Credit Support Annex

Ø  Relevant issues when negotiating exposure thresholds

Ø  Parent guarantees considerations in derivatives transactions

Ø  Letters of credit as collateral for derivatives transactions

Ø  Margin calculation procedures

Ø  Collateral management for derivatives transactions

11:45                     Lunch

1:00 PM                Review of Supporting Documentation for ISDA® Master Agreement

Ø  Board resolutions and incumbency certificates

Ø  Risk management and trading policies and procedures for derivatives transactions

Ø  Review of recent regulatory development impacting ISDA® agreement

2:30 PM                Afternoon Break                             

2:45 PM                Negotiation Strategies for Over the Counter derivatives

Ø  Managing counterparty and operational risk in derivatives transactions

Ø  Memorializing derivatives transactions with long-form confirmations

Ø  Questions and answers

4:15 PM                Closing Remarks

 

Agenda is subject to change.

 

REGISTRATION FEE - $ 1,599.00

 

We suggest registering at least two weeks in advance to ensure your seat.

Seminar will be held at the Scott Conference Center located at 6450 Pine St., Omaha, NE 68106 (www.scottcenter.com).

 

ISDA® is a registered trademark of the International Swaps and Derivatives Association, Inc. This seminar is neither sponsored by nor affiliated with the International Swaps and Derivatives Association, Inc

 

SEMINAR INSTRUCTOR:  Miki Kolobara, Esq.

 

Mr. Miki Kolobara, Esq. is the managing attorney at Kolobara Law Firm, LLC. He practices primarily in commodities and derivatives trading law with particular emphasis on energy trading, risk management, and compliance. Prior to founding Kolobara Law Firm, Mr. Kolobara spent 15 years working for several large energy companies where he assisted in creating and implementing trading policies and procedures, drafting standard trading and credit documentation, and training front and middle office personnel about legal and contractual aspects of energy trading. He has negotiated hundreds of master agreements and documentation for physical and financial transactions, as well as structured transactions for natural gas, electricity, coal, crude oil, and emissions allowances.

Currently Mr. Kolobara assists clients with drafting, negotiating and managing standard trading and credit agreements for physical and financial energy commodities including natural gas, power, crude oil, NGLs, propane, electricity, LNG, RECs and ethanol, as well as various agreements for transportation, capacity releases, storage, park and loan, asset management and energy management agreements. In addition, he advises market participants on identifying, creating and implementing comprehensive trading, credit risk, and risk management policies and procedures; providing regular training and guidance to ensure employee compliance with relevant regulations and market rules including Dodd-Frank implementation, anti-manipulation training, and various CFTC and FERC rules and regulations. Mr. Kolobara’s practice includes advising senior management, risk oversight committees, and corporate boards on trading compliance implementation and risks, trading-related bankruptcy issues, strategic trading and hedging matters, risk management matters, counterparty performance issues, credit disputes and contract disputes.

Mr. Kolobara serves on the Futures and Derivatives Law Committee of the American Bar Association, as well as the North American Energy Standards Board's contracting committee where he participated in drafting the NAESB standard master agreement for natural gas trading. Additionally, he is active in the International Energy Credit Associations' Contracts and Legal committee and its Dodd-Frank Act working group. As a member of the WSPP contracting committee, Mr. Kolobara participated in drafting of the WSPP standard master agreement for electricity trading.

Mr. Kolobara is a frequent speaker on topics related to energy trading, hedging, risk management, and compliance. He can be contacted via email atmiki@kolobara.com or by visiting his firm’s web site at www.kolobaralaw.com.



FERC PROPOSES A SIGNIFICANT INCREASE IN REPORTING REQUIREMENTS

On July 21, 2016, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Proposed Rulemaking (“NOPR”) titled Data Collection for Analytics and Surveillance and Market-Based Rate Purposes. The NOPR is intended to collect certain market data from market-based rate (“MBR”) electricity sellers, incorporating data about their affiliates, including natural gas and electricity companies (“Connected Entities”). As FERC increases its emphasis on market surveillance, the NOPR appears to be tailored to bring to light any corporate or financial connections that may exist among various market participants involved in buying, selling, transporting, or producing natural gas, electricity, and coal. The NOPR provides, in relevant part, that “the Commission observed that there is a risk that a market participant may take actions to benefit another entity that bears a financial or legal relationship to it, and that entities under common control may collude to manipulate the market. Given the potential for such conduct, the Commission found it needed to understand the relationships and corresponding incentives between entities to help determine whether they might be engaging in acts of market manipulation.” This emphasis on cross-affiliate and cross-commodity activity is consistent with recent regulatory scrutiny by energy regulators. Consequently, the information required to be reported by the NOPR would allow FERC’s staff to monitor a large number of trades, physical and financial, and cross-reference any unauthorized or suspicious activity.

The NOPR includes two different and somewhat overlapping reporting requirements. The first reporting requirement is MBR-related information. In particular, FERC intends to use this type of information to determine whether market participants should be permitted to obtain or maintain a market-based rate. This information would include an evaluation of market participants’ and their affiliates’ horizontal and vertical market power. This type of information gathering is very similar to what FERC already requires from market participants seeking an MBR. The second group of reporting requirements is related to market surveillance and analytics, i.e., the potential for market manipulation (“Connected Entity information”). The NOPR emphasizes that “screening market activity for anomalies must include understanding the circumstances surrounding a given pattern of trading, including the possible motivations for that behavior, which can sometimes be found in the legal or contractual relationships entities bear to one another.” The NOPR’s Connected Entity information requirements apply not only to the MBR holders but, also, to any affiliated entity that trades virtual products or financial transmission rights (“FTR”). The NOPR’s reporting requirement would not apply to municipal and cooperative entities.

Some of the information required to be reported under the NOPR includes the following:

1. The “Connected Entity Ownership” - the identity of an MBR holder’s affiliates that: (a) are ultimate owners; (b) participate in organized wholesale electric markets; or (c) purchase or sell financial natural gas or electric energy derivative products that settle off the price of electric or natural gas energy products, which would, arguably, include any entity in the MBR holder’s enterprise, including the foreign based entities that trade in any financial products on ICE, CME, or NGX.

2. Information about an MBR holder - as an electricity seller, such as category status for each region in which the reporting entity has MBR authority, markets in which it is authorized to sell ancillary services, mitigation, if any, and whether it has any limitations in the regions in which it has MBR authority.

3. MBR “Ownership” information – this information would include affiliate owners that are: (a) ultimate affiliate owners and (b) affiliate owners that have a franchised service area or MBR authority or directly own or control generation, transmission, intrastate natural gas transportation, storage or distribution facilities, physical coal supply sources, or ownership of or control over who may access transportation of coal supplies.

4. “Connected Entity Trader” and “Contracts information” - connected entity trader information would include any employees within an MBR holder’s connected entity, i.e., affiliates, that participate in making day-to-day trading decisions. Contracts information would include any entities that have entered into an agreement with the MBR holder that “confers control over an electric generation asset that is used in, or offered into, wholesale electric markets.” Agreements that confer control are those that grant one of the parties the right to make trading decisions for an electric generation asset of another party or to offer an electric generation asset into the wholesale electric markets.

5. Asset ownership information – identifying the location, capacity, and percentage of ownership of electric generation and transmission assets and any assets that are owned or controlled by any MBR holder’s affiliate that does not have MBR authority. This would include any MBR holder’s affiliated entity that owns, actively or passively, any generation assets, or parts of those assets, including any joint ventures or special purpose entities.

The NOPR does not provide any empirical rationale for such a sweeping data harvest. In other words, it is unclear how often any type of cross-affiliate misconduct does occur in the market place and how frequently this type of misconduct rises to a level of a prohibited or manipulative outcome such as inappropriately influencing a price formation or operational reliability of the market as a whole. The very possibility that some market participants may do something, without any specific data indicating the frequency or severity of actual misconduct, makes it unclear if the associated costs of compliance, imposed on all MBR holders and their affiliates, are adequate and reasonable. To that end, there is a risk that this NOPR may appear to be a solution in search of a problem, rather than a problem in search of a solution.

If adopted as a final rule, the NOPR would impact many energy companies, especially those that engage in a diversified type of energy activities such as producing, transporting, processing, and marketing of electricity, natural gas, and coal. Given the traditional silo approach to many energy companies’ operational and financial functionality, it would be imperative to ensure an enterprise-wide approach to ensure compliance with the NOPR. This would include a strong risk management policy to ensure that any trading strategy approved by the senior management includes a cross-affiliate and/or cross-commodity vetting process to ensure that all trades stand on their own economics and, also, to prevent any prohibited trading conduct. The costs of the NOPR’s implementation are difficult to anticipate because they may include a significant cross-affiliate effort to create, train, and implement a variety of compliance steps including reconciling risk systems, trade-capture procedures, scheduling or dispatch activities, trading policies and procedures, and cross-affiliate system integration. The NOPR provides a 45-day comment period after it is published in the Federal Register.


Kolobara Law Firm Has Moved

The office of Kolobara Law Firm has moved to a new location at 12020 Shamrock Plaza, Suite 105, Omaha, Nebraska, 68154. This new location allows us to assist our clients in a more efficient manner.

Our new telephone and fax numbers are (402) 881-3987 and (402) 778-5135, respectively. We look forward to assisting our clients from our new location.


CFTC Eliminates Trade Option Reporting For Commercial Market Participants

On March 16, 2016, the Commodity Futures Trading Commission (the “CFTC”) adopted a final rule that eliminates reporting and recordkeeping requirements by “end-user” counterparties to trade option transactions. The final rule will become effective upon publication in the Federal Register. The immediate impact of the final rule is that end-users will not have to file Form TO by April 1, 2016, as would have been required by an earlier no-action letter issued by the CFTC. The final rule appears to be mainly good news for commercial energy firms. End-users don’t have to file Form TO and they are relieved from certain recordkeeping requirements for trade options. Further, end-users’ swap reporting counterparties (formed by entering into bilateral swaps with other end-users) are no longer required to report trade options. Also, the CFTC indicated that it will not require trade options to be subject to position limits in the much-anticipated final rule on position limits. Finally, the CFTC removed a requirement to file a notice with its Division of Market Oversight when any market participant’s aggregate notional value of trade options, in a calendar year, reaches $1 billion.

Unfortunately, it took the CFTC over three years to arrive to this point, despite repeated filings by various market participants and organizations that all along argued the very same conclusions the CFTC has reached in this final rule. In the meantime, commercial market participants spent countless hours and resources vetting various physically settled transactions such as tolling agreements, take-or-pay contracts, baseload plus swing load transactions, natural gas peaking transactions, commercial and industrial full requirement agreements, seasonal exchange agreements, asset management agreements, and other similar agreements and transactions, in order to determine whether they had to be designated as trade options. Also, many buyers and sellers who disagreed with their counterparties regarding the appropriate designation of certain transactions, experienced additional burdens on their commercial, risk, compliance, and legal resources. After experiencing unnecessary burdens to comply with trade option evaluation and reporting, market participants will certainly have to spend additional resources to update their relevant policies, procedures, training, and contracts documentation in order to implement the final rule. Hopefully, the regulatory evolution of trade options will be a good teaching moment for both the CFTC and market participants, and each side will listen to the other a little more and talk past each other a little less.

The CFTC pointed out in the final rule that the definition of a trade option is not open to discussion. In other words, trade options are here to stay and the CFTC is using its exemptive authority to remove some of the reporting and recordkeeping requirements for some market participants (end-users) at this time. Swap dealers and major swap participants are still required to report trade options just as they report swaps. In her concurring statement to the final rule, CFTC Commissioner Bowen pointed out that “[t]rade options have been caught in a difficult legal bind. Congress sought to ensure that people could not evade our swaps regulations. It did so by both having a very broad definition of a swap, while also limiting this Commission's authority to exempt swaps by regulation. Fortunately, however, Congress preserved the Commission's authority to exempt trade options, which is the authority we are once again using today. Importantly, this exemption provides additional legal certainty that our interpretations cannot. But we cannot overrule the Commodity Exchange Act with regulations and interpretations; we will always be bound by that statute. Therefore, I want to caution anyone tempted to rely on an interpretation to avoid CFTC jurisdiction when it comes to options. I fully recognize the difficulty in distinguishing between different types of physical contracts. If a particular contract or an element of a contract serves an economic purpose similar to an option, I believe the best course of action is to exercise caution and not assume your contract is outside of our jurisdiction based on an interpretation. While it may seem fine for a person using these contracts to hope that the interpretation is not called into question, I believe it would be wise, as a backstop, to make sure it also falls within the trade option exemption.” At the end of the day, legislative action may be needed to either clarify or eliminate the very definition of trade option. While the final rule is an important chapter in the trade option saga, there is no doubt that we are still far from the final chapter.