Application by UK-based filer (Filer) and Canadian dealer affiliate (Dealer) (collectively, Applicants) for relief from prospectus requirement in connection with distribution by Filer through Dealer of "contracts for difference" and foreign exchange contracts (collectively CFDs ) to investors resident in Ontario subject to four-year sunset clause and other terms and conditions -- Filer regulated by the Financial Services Authority (the FSA) in the United Kingdom and registered in Ontario as an i nternational dealer -- Dealer is registered in Ontario as investment dealer and a member of the Investment Industry Regulatory Organization of Canada ( IIROC ) -- In Ontario and elsewhere in Canada, other than Québec, Applicants currently offer CFDs to "accredited investors" in reliance on accredited investor exemption in section 2.3 of NI 45-106 Prospectus and Registration Exemptions (NI 45-106) -- In Québec, Applicants currently offer CFDs to accredited investors and non-accredited investors in accordance with requirements of the Derivatives Act (Québec) and related relief -- Applicants comply with IIROC Rules and IIROC acceptable practices applicable to offerings of CFDs -- Applicants seeking relief to permit Applicants to offer CFDs to investors in Ontario on a similar basis as in Québec, including relief permitting Applicants to distribute CFDs on the basis of clear and plain language risk disclosure document rather than a prospectus -- risk disclosure document contains disclosure substantially similar to risk disclosure document required for recognized options in OSC Rule 91-502 Trades in Recognized Options and the regime for OTC derivatives contemplated by former proposed OSC Rule 91-504 OTC Derivatives (which was not adopted) -- Relief granted subject to conditions including conditions that
• Filer remains registered with the FSA and in compliance with FSA Rules;
• all CFDs offered by Filer to clients in Ontario shall be distributed through Dealer;
• Dealer remains registered as an investment dealer and a member of IIROC;
• all distributions of CFDs by Filer to clients in Ontario be conducted in accordance with IIROC Rules and IIROC acceptable practices applicable to offerings of CFDs;
• prior to a client's first CFD trade, the Applicants have provided to the client the risk disclosure document and have delivered, or previously delivered, a copy of the risk disclosure document to the Commission;
• prior to the client's first CFD trade and as part of the account opening process, the Applicants have obtained a written or electronic acknowledgement from the client confirming that the client has received, read and understood the risk disclosure document;
• Filer shall promptly inform the Commission in writing of any material change affecting Filer, being any change in the business, activities, operations or financial results or condition of Filer that may reasonably be perceived by a counterparty to a derivative to be material;
• within 90 days following the end of its financial year, Filer shall submit to the Commission the audited annual financial statements of Filer's parent and a statement presenting the number of contracts concluded with Ontario residents for any CFDs offered to the public during the most recent financial year; and
• the Requested Relief shall immediately expire upon the earliest of
• four years from the date that the Order is issued;
• the issuance of an order or decision by a court, the FSA, the AMF or other similar regulatory body that suspends or terminates the ability of the Filer to offer CFDs to clients in the UK or in Québec; and
• the coming into force in Ontario of legislation or a rule regarding the distribution of OTC derivatives to investors in Ontario.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S. 5, AS AMENDED
IN THE MATTER OF
CMC MARKETS UK PLC
CMC MARKETS CANADA INC.
(Subsection 74(1) of the Act)
UPON the application (the Application) of CMC Markets UK plc (CMC UK) and CMC Markets Canada Inc. (CMC Canada) (together, the Applicants) to the Ontario Securities Commission (the Commission) for an order, pursuant to subsection 74(1) of the Act, that each of the Applicants and their respective officers, directors and representatives be exempt from the prospectus requirement of section 53 of the Act in respect of the distribution of contracts for difference and foreign exchange contracts (collectively, CFDs) to investors resident in Ontario (the Requested Relief) subject to the terms and conditions below;
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Applicants having represented to the Commission that:
1. CMC UK is a company organized under the laws of England and Wales with its principal office in London, United Kingdom. Founded in 1989, CMC UK is an established international on-line trading company which, with its affiliates, offers CFDs to a broad range of clients in many countries.
2. CMC UK is a privately held company, controlled indirectly by its principal founder, Mr. Peter Cruddas. CMC Markets Plc, the ultimate parent company of both CMC UK and CMC Canada, is a privately held company controlled directly by its principal founder, Mr. Peter Cruddas.
3. CMC UK and its affiliates (CMC Markets) has a presence in 13 countries with 15 offices including the United Kingdom, Australia, Austria, Canada, China, Germany, Ireland, Japan, New Zealand, Sweden, Singapore, Spain and Norway. CMC Markets handled over 20.1 million trades during the period from March 31, 2007 to March 31, 2008 with the trades executed having a total value of over US$1.4 trillion.
4. CMC UK is authorized and regulated by the Financial Services Authority (the FSA) in the United Kingdom. CMC UK is currently registered as a BIPRU 730k firm with the FSA and is registered with the Commission as a dealer in the category of international dealer. CMC UK is licensed in the U.K., among other things, to act as principal to its clients in the products it offers and may deal with all categories of clients, including directly with retail clients. Furthermore, CMC UK is regulated on a consolidated basis in the UK by the FSA.
5. CMC UK is a "regulated entity" as defined in the rules and regulations (the IIROC Rules) of the Investment Industry Regulatory Organization of Canada (IIROC).
6. CMC UK has established a Canadian dealer affiliate, CMC Canada, to act as a dealer for CFDs offered by CMC UK to Canadian clients.
7. CMC UK currently offers CFDs to "accredited investors" (as defined in National Instrument 45-106 Prospectus and Registration Exemptions) (NI 45-106) in Canada, other than in the province of Québec, on a private placement basis through CMC Canada as dealer and predominantly through CMC UK's Marketmaker® on-line trading platform. CMC UK's on-line trading platform software can be downloaded from http://www.cmcmarkets.com.
8. CMC UK is not, to the best of its knowledge, in default of any requirements of securities legislation in Ontario, securities or derivatives legislation in Québec, or similar legislation in the United Kingdom.
9. In Québec, the Applicants currently offer CFDs to both accredited and non-accredited investors (referred to herein as retail investors), pursuant to the provisions of the Derivatives Act (Québec)(the QDA) and the conditions contained in the Order dated June 16, 2009 issued by the Autorité des marchés financiers (the AMF) (the AMF Order). The AMF Order exempts CMC UK from the qualifying requirement set forth in section 82 of the QDA relating to the creation or marketing of CFDs offered to the public, subject to certain terms and conditions.
10. CMC UK wishes to offer CFDs to investors, including retail investors, in Ontario on a similar basis as in Québec and on substantially the same terms and conditions as articulated in the QDA and in the AMF Order. For the Interim Period (defined below), both CMC UK and CMC Canada are seeking the Requested Relief in connection with this proposed offering in Ontario.
11. None of CMC UK nor any of its affiliates has any securities listed or quoted on an exchange or marketplace in any jurisdiction inside or outside of Canada.
12. CMC Canada is a corporation amalgamated under the laws of Canada with its principal office in Toronto, Ontario. CMC Canada is an affiliate of CMC UK. CMC Markets plc is the ultimate parent company of both CMC UK and CMC Canada. CMC Canada is registered as a dealer in the category of investment dealer in all provinces and territories except Alberta and is a member of IIROC (formerly the Investment Dealers' Association or IDA).
13. CMC Canada is not, to the best of its knowledge, in default of any requirements of securities legislation in Ontario, including requirements relating to the filing of forms and payment of fees relating to the distribution of securities in reliance on the "accredited client exemption" in NI 45-106.
14. CMC Canada is required by IIROC to maintain a certain level of capital to address the business risks associated with its activities. The capital reporting required by IIROC (as per the calculation in the Joint Financial Regulatory Questionnaire (the JFRQ) and the Monthly Financial Reports to IIROC) is based predominantly on the generation of financial statements and calculations as to ensure capital adequacy. CMC Canada as an IIROC member is required to have a specified minimum capital which includes having any additional capital required with regards to margin requirements and other risks. This risk calculation is summarized as a risk adjusted capital calculation which is submitted in the firm's JFRQ and required to be kept positive at all times.
15. As a member of IIROC, CMC Canada is only permitted to distribute CFDs pursuant to IIROC Rules. CMC Canada is not, to the best of its knowledge, in default of any IIROC Rules. In addition, IIROC has communicated to its members certain additional expectations as to acceptable business practices (IIROC acceptable practices) as articulated in the IIROC CFD Paper (as defined below) for any IIROC member proposing to offer CFDs or foreign exchange contracts (forex contracts) to investors. To the best of its knowledge, CMC Canada is in compliance with IIROC acceptable practices for its offerings of CFDs. CMC Canada will continue to offer CFDs in accordance with IIROC acceptable practices as may be established from time to time.
Structure of CFDs
16. A CFD is a derivative product that allows clients to obtain economic exposure to the price movement of an underlying instrument, such as a share, index, market sector, foreign currency, treasury or commodity, without the need for ownership and physical settlement of the underlying instrument.
17. CFDs allow clients to take a long or short position on an underlying instrument, but unlike futures contracts they have no fixed expiry date or standard contract size, or in some cases, an obligation for physical delivery of the underlying instrument. Similarly, unlike certain over-the-counter (OTC) derivatives like forward contracts, CFDs do not require or oblige either CMC UK nor CMC Canada to deliver the underlying instrument.
18. CFDs offered by CMC UK are distributed on an OTC basis and are not transferable.
19. In the case of CFDs offered by CMC UK in respect of which the underlying interest is a security, the CFDs do not confer the right or obligation to acquire or deliver the underlying security, and do not confer any other rights of holders of the underlying security, such as voting rights. Rather, a CFD is a derivative instrument which is represented by an agreement between a counterparty and a client to exchange the difference between the opening price of a CFD position and the price of the CFD at the closing of the position. The value of the CFD is generally reflective of the movement in prices at which the underlying instrument is traded at the time of opening and closing the position in the CFD.
20. In the case of CFDs offered by CMC UK to investors in Ontario in reliance on the Requested Relief, CMC UK will act as the counterparty and such CFDs will be offered through CMC Canada as dealer.
21. CFDs allow clients to obtain exposure to markets and instruments that may not be available directly, or may not be available in a cost-effective manner. CFDs typically have
(a) execution costs ranging from 0.2-0.25% (calculated on size of the position and charged on opening and closing the position and including spreads and, for certain instruments, commissions), and
(b) no physical settlement of the underlying instrument and therefore no clearing, settlement and custody charges, no stock borrowing costs for short contract positions and no stamp duty (applicable in certain foreign jurisdictions, such as the United Kingdom).
To the extent that clients have long or short positions in an underlying instrument, CFDs can also serve as a tool for hedging this direct exposure.
22. The ability to leverage an investment has traditionally been one of the principal features of CFDs. Leverage allows clients to magnify potential investment returns (or losses) by reducing the initial capital outlay required to achieve the same market exposure that would be obtained by investing directly in the underlying instrument.
23. IIROC Rules and IIROC acceptable practices set out detailed requirements and expectations relating to leverage and margin for offerings of CFDs and forex contracts. Consequently, CFDs offered in Canada in accordance with IIROC Rules and IIROC acceptable practices will generally employ the same degree of leverage as traditional margin accounts for long and short positions in securities. However, the degree of leverage may be amended in accordance with IIROC Rules and IIROC acceptable practices as may be established from time to time.
24. CFDs are currently available to retail clients without a prospectus in OTC markets in countries, including, but not limited to, United Kingdom, Germany, Switzerland, Singapore, Australia and New Zealand. With the implementation of the European Markets in Financial Instruments Directive in November 2007, CFDs are now considered "core" investment services and activities that registered investment firms can offer throughout Europe (via a "passport system" of securities regulation).
25. In Québec, the Applicants currently offer CFDs to investors, including retail investors, pursuant to the provisions of the QDA and the conditions contained in the AMF Order.
26. A detailed description of CFDs can be found in the publication titled "Regulatory Analysis of Contracts for Differences (CFDs)" published by IIROC on June 6, 2007 (the IIROC CFD Paper), as amended on September 12, 2007.
CFDs Distributed in Ontario
27. CFDs and similar OTC derivative contracts, when offered to investors in Ontario, may be considered to be "securities" under the Act.
28. Pursuant to Section 13.12 Restriction on lending to clients of National Instrument 31-103 Registration Requirements which came into force as of September 28, 2009, only those firms that are registered as investment dealers (a condition of which is to be a member of IIROC) may lend money, extend credit or provide margin to a client.
29. CFDs offered by CMC UK are currently distributed through CMC Canada to accredited investors in Ontario on a private placement basis in reliance on the "accredited investor" exemption in section 2.3 of NI 45-106 and are therefore not qualified by a prospectus.
30. Investors wishing to purchase CFDs must open an account with CMC Canada and complete a principal contract with CMC UK.
31. Prior to a client's first CFD trade and as part of the account opening process, CMC Canada and CMC UK will provide the client with a separate risk disclosure document that clearly explains, in plain language, the product and the risks associated with an investment in the product (the risk disclosure document) and other documents as required by the FSA Rules and Guidance including a risk warning notice and execution policy summary. The risk disclosure document includes the required risk disclosure set forth in Schedule A to the Regulations to the QDA and leverage risk disclosure required under IIROC Rules. The risk disclosure document contains disclosure that is substantially similar to the risk disclosure statement required for recognized options in OSC Rule 91-502 Trades in Recognized Options (which provides both registration and prospectus exemptions) and the regime for OTC derivatives contemplated by proposed OSC Rule 91-504 OTC Derivatives (which was not adopted) (Proposed Rule 91-504). The Applicants will ensure that, prior to a client's first CFD trade, a complete copy of the risk disclosure document provided to that client has been delivered, or has previously been delivered, to the Commission.
32. Prior to the client's first CFD trade and as part of the account opening process, the Applicants will obtain a written or electronic acknowledgement from the client confirming that the client has received, read and understood the risk disclosure document. Such acknowledgment will be separate and prominent from other acknowledgements provided by the client as part of the account opening process.
33. Investors purchase CFDs through CMC Markets' on-line trading platform, Marketmaker®. CMC UK's on-line platform is similar to those developed for on-line brokerages and day-trading in that the investor trades without other communication with, or advice from, the dealer. The Marketmaker® is not a "marketplace" as defined in National Instrument 21-101 Marketplace Operation since a marketplace is any facility that brings together multiple buyers and sellers by matching orders in fungible contracts in a non-discretionary manner. The Marketmaker® does not bring together multiple buyers and sellers; rather it is a market maker that quotes the buy and sell price of a CFD offered by CMC UK to the investor on a principal basis.
34. The role of CMC Canada is limited to acting as an execution-only dealer, as it currently does in connection with private placements of CFDs. In connection with its role as execution-only dealer, CMC Canada is, among other things, responsible for marketing, trade execution, administration of account opening and investor approval (including know-your-client diligence and suitability confirmations) for all Canadian clients.
35. IIROC Rules exempt member firms that provide execution-only services such as discount brokerage from the obligation to determine whether each trade is suitable for the client. However, IIROC has exercised its discretion to impose additional requirements on members proposing to issue CFDs and requires that:
(a) Applicable risk disclosure documents and client suitability waivers provided must be in a form acceptable to IIROC.
(b) The firm's policies and procedures, amongst other things, must assess the depth of investment knowledge and trading experience of the client to assess whether the CFD product itself is appropriate for the client before an account is approved to be opened. IIROC has also imposed its proficiency requirements for futures trading on CMC Canada's registered salespeople, who conduct the know your client and initial product suitability analysis, as well as their supervisory trading officer.
(c) The relationship and responsibilities, including conflicts of interest between the issuer and dealer, must be fully disclosed to the client and acknowledged in writing.
(d) Cumulative loss limits for each client's account must be established (this is a measure normally applied by IIROC in connection with futures trading accounts).
36. The CFDs are offered in compliance with the leverage (margin) rates approved by IIROC and other IIROC acceptable practices. IIROC has prescribed margin limits for CFDs based on IIROC methodologies and principles as applied to existing products offered in Canada (particularly Montreal Bourse single stock futures).
37. IIROC limits the underlying instruments in respect of which a member firm may issue CFDs since only certain securities are eligible for reduced margin rates. For example, underlying equity securities must be listed or quoted on certain "recognized exchanges" (as that term is defined in IIROC rules) such as TSX or the NYSE. The purpose of these limits is to ensure that CFDs offered in Canada will only be available in respect of underlying instruments that are traded in well-regulated markets, in significant enough volumes and with adequate publicly available information, so that investors can form a sufficient understanding of the exposure represented by a given CFD.
38. Unlike recognized clearing organizations that act as a central counterparty and guarantee the performance and payment obligations of contract positions to all its participants, CMC Canada has no obligations in the event of credit default by CMC UK or the investor, except to manage the flow of money between the two parties to the CFD.
FSA regulatory regime applicable to CMC UK
39. CMC UK is authorized and regulated by the Financial Services Authority (the FSA) in the United Kingdom. CMC UK is currently registered as a BIPRU 730k firm with the FSA. CMC UK is licensed, among other things, to act as principal to its clients in the products offered and may deal with all categories of clients, including directly with retail investors.
40. In order for a firm to be authorized and regulated by the FSA, the FSA must be satisfied that the firm meets certain threshold conditions prescribed by the Financial Services and Markets Act 2000 and under the FSA's Handbook of Rules and Guidance. In similar fashion to reviews conducted by IIROC and the Commission, the FSA reviews, among other things, the firm's legal status, location of offices, adequacy of resources and suitability. In order to remain authorized, a registered firm must demonstrate its continuing compliance with these conditions.
41. As an FSA-regulated firm, CMC UK is required to comply with certain rules of the FSA (the FSA Rules). The FSA Rules seek to ensure, among other things, that regulated firms satisfy certain minimum standards. These minimum standards include the requirement that CMC UK maintain adequate financial resources at all times, so that CMC UK is able to meet its liabilities as they fall due. The FSA requires CMC UK to maintain capital resources equal to or in excess of its base capital requirement plus a firm specific variable capital requirement to address market, capital and operational risks. CMC UK monitors its regulatory capital on a daily basis (or more frequently depending on market conditions).
42. The FSA also requires CMC UK to
(a) file financial reports on a monthly basis with the FSA;
(b) immediately notify the FSA of any breach of the capital adequacy requirement; and
(c) submit its audited financial statements within three months of the financial year end together with an annual return and reconciliation of the annual return to the audited financial statements.
Rationale for the Requested Relief
43. The Requested Relief, if granted, would substantially harmonize the Commission's position on the offering of CFDs to investors in Ontario with how those products are offered to investors in Quebec under the QDA. The QDA provides a legislative framework to govern derivatives activities within the province. Among other things, the QDA requires such products to be offered to investors through an IIROC member and the distribution of a standardized risk disclosure document rather than a prospectus in order to distribute CFDs to investors resident in Quebec.
44. The Commission has previously recognized that the prospectus requirement may not be well suited for the distribution of certain derivative products to investors in Ontario, and that alternative requirements, including requirements based on clear and plain language risk disclosure, may be better suited for certain derivatives. Both OSC Rule 91-502 Trades in Recognized Options (OSC Rule 91-502) and OSC Rule 91-503 Trades in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges Situate Outside of Ontario (OSC Rule 91-503) provide for a prospectus exemption for the trading of derivative products to clients. The Requested Relief is consistent with the principles and requirements of OSC Rule 91-502, OSC Rule 91-503 and Proposed Rule 91-504.
45. The Applicants also submit that the Requested Relief, if granted, would harmonize the Commission's position on the offering of CFDs with certain other foreign jurisdictions. CMC UK distributes CFDs to retail clients in numerous other jurisdictions around the world. None of these jurisdictions requires a prospectus for a distribution of CFDs. Securities regulators in these jurisdictions appear to have concluded that a clear, plain language risk disclosure document is appropriate for retail CFD clients.
46. CMC UK is of the view that requiring compliance with the prospectus requirements for the distribution of CFDs to retail clients in Ontario would not be appropriate for the following reasons:
a. the disclosure of a great deal of the information required under the prospectus and under the reporting issuer regime is not material to a CFD client. The information to be given to a CFD client should principally focus on enhancing the client's appreciation of product risk including counterparty risk;
b. CFDs are in continuous distribution;
c. most CFDs are of short duration (positions are generally opened and closed on the same day and are in any event marked to market and cash settled daily); and
d. there are frequent changes to the array of available underlying financial instruments.
47. CMC UK is regulated by the FSA which has a robust compliance regime including specific requirements to address market, capital and operational risks.
48. CMC Canada is regulated by IIROC which has a robust compliance regime including specific requirements to address market, capital and operational risks.
49. The Applicants submit that the regulatory regimes developed by the FSA, the AMF and IIROC for the offering of CFDs adequately addresses issues relating to the potential risk to the client of CMC UK acting as counterparty. In view of these regulatory regimes, investors would receive little or no additional benefit from requiring CMC UK to also comply with the prospectus requirement for the distribution of CFDs to investors in Ontario.
50. The Requested Relief is conditional on CMC Canada being registered as an investment dealer with the Commission and maintaining its membership with IIROC and that all CFD trades distributed by CMC Canada be conducted pursuant to IIROC Rules imposed on members seeking to distribute CFDs and in accordance with IIROC acceptable practices.
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to subsection 74(1) of the Act, that for the duration of the Interim Period (as defined below) the Requested Relief is granted, provided that:
(a) CMC UK remains registered with the FSA and in compliance with FSA Rules;
(b) all CFDs offered by CMC UK to clients resident in Ontario shall be distributed through CMC Canada;
(c) CMC Canada remains registered as a dealer in the category of investment dealer with the Commission and a member of IIROC;
(d) all distributions of CFDs by CMC Canada to clients resident in Ontario be conducted pursuant to IIROC Rules imposed on members seeking to distribute CFDs and in accordance with IIROC acceptable practices, as amended from time to time;
(e) all distributions of CFDs by CMC Canada to clients resident in Ontario be conducted pursuant to the rules and regulations of the QDA and the AMF, as amended from time to time, unless and to the extent there is a conflict between i) the rules and regulations of the QDA and the AMF, and ii) the requirements of Ontario securities law, the IIROC Rules and IIROC acceptable practices, in which case the latter shall prevail;
(f) prior to a client's first CFD trade, the Applicants have provided to the client the risk disclosure document described in paragraph 31 and have delivered, or have previously delivered, a copy of the risk disclosure document provided to that client to the Commission;
(g) prior to the client's first CFD trade and as part of the account opening process, the Applicants have obtained a written or electronic acknowledgement from the client, as described in paragraph 32, confirming that the client has received, read and understood the risk disclosure document;
(h) CMC UK has furnished to the Commission the name and principal occupation of its officers or directors, together with either the personal information form and authorization of indirect collection, use and disclosure of personal information provided for in National Instrument 41-101 General Prospectus Requirements or the registration information form for an individual provided for in Form 33-109F4 of National Instrument 33-109 Registration Information Requirements completed by any officer or director;
(i) CMC UK shall promptly inform the Commission in writing of any material change affecting CMC UK, being any change in the business, activities, operations or financial results or condition of CMC UK that may reasonably be perceived by a counterparty to a derivative to be material;
(j) CMC UK and/or CMC Canada shall promptly inform the Commission in writing if a self-regulatory organization or any other regulatory authority or organization initiates proceedings or renders a judgment related to disciplinary matters against CMC UK or CMC Canada concerning the conduct of activities with respect to CFDs;
(k) within 90 days following the end of its financial year, CMC UK shall submit to the Commission the audited annual financial statements of CMC Markets Plc and a statement presenting the number of contracts concluded with Ontario residents for any CFDs offered to the public during the most recent financial year;
(l) the Requested Relief shall immediately expire upon the earliest of
(i) four years from the date that this Order is issued;
(ii) the issuance of an order or decision by a court, the FSA, the AMF or other similar regulatory body that suspends or terminates the ability of CMC UK to offer CFDs to clients in the UK or the ability of the Applicants to offer CFDs to clients in Quebec; and
(iii) the coming into force in Ontario of legislation or a rule regarding the distribution of OTC derivatives to investors in Ontario (the Interim Period).
October 8, 2009