Application for an order that a Designated Contract Market registered with the United States Commodity Futures Trading Commission is exempt from the requirement to be recognized as an exchange or commodity futures exchange in Ontario and exemption from the registration requirement under section 22 of the Commodity Futures Act with respect to trades in contracts on OneChicago Exchange by hedgers and by banks listed in Schedule I to the Bank Act (Canada) entering orders as principal and only for their own accounts. – requested order granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 21, 147.
Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 15, 22, 38, 80.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S. 5, AS AMENDED
IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, CHAPTER C.20, AS AMENDED
IN THE MATTER OF
(Section 147 of the OSA and sections 38 and 80 of the CFA)
WHEREAS OneChicago, LLC (OneChicago) has filed an application (Application) with the Ontario Securities Commission (Commission) requesting:
a. an order pursuant to section 147 of the OSA exempting OneChicago from the requirement to be recognized as an exchange under subsection 21(1) of the OSA;
b. an order pursuant to section 80 of the CFA exempting OneChicago from the requirement to be registered as a commodity futures exchange under subsection 15(1) of the CFA (together with the requested order above, Exchange Relief);
c. an order pursuant to section 38 of the CFA exempting trades in contracts on OneChicago by a “hedger,” as defined in subsection 1(1) of the CFA (Hedger), from the registration requirement under section 22 of the CFA (Hedger Relief); and
d. an order pursuant to section 38 of the CFA exempting trades in contracts on OneChicago by a bank listed in Schedule I to the Bank Act (Canada) (Bank) entering orders as principal and for its own account only from the registration requirement under Section 22 of the CFA (Bank Relief and, together with the Hedger Relief, Registration Relief).
AND WHEREAS OSC Rule 91-503 Trades in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges Situate Outside of Ontario (Rule 91-503) exempts trades of commodity futures contracts or commodity futures options made on commodity futures exchanges not registered with or recognized by the Commission under the CFA from sections 25 and 53 of the OSA;
AND WHEREAS the deemed rule titled In the Matter of Trading in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges in the United States of America provides that section 33 of the CFA does not apply to trades entered into a commodity futures exchange designated by the United States (U.S.) Commodity Futures Trading Commission (CFTC) under the U.S. Commodity Exchange Act (CEA);
AND WHEREAS OneChicago has represented to the Commission that:
1. OneChicago is a limited liability company organized under the laws of the State of Delaware;
2. OneChicago receives a majority of its revenue from transaction and carry fees, which include electronic trading fees and charges for carrying positions in futures contracts listed on OneChicago (OneChicago Contracts);
3. OneChicago is a designated contract market (DCM) by the CFTC, within the meaning of that term under the CEA. OneChicago is subject to regulatory supervision by the CFTC, a U.S. federal regulatory agency. OneChicago is obligated under the CEA to give the CFTC access to all records unless prohibited by law or such records are subject to solicitor-client privilege. The CFTC reviews, assesses and enforces OneChicago’s adherence to the CEA and regulations thereunder on an ongoing basis, including DCM core principles (DCM Core Principles) relating to the operation and oversight of OneChicago’s markets, including financial resources, systems and controls, maintenance of an orderly market, execution and settlement of transactions, rule-making and investor protection;
4. OneChicago is notice registered with the U.S. Securities and Exchange Commission (SEC) as a national securities exchange for the limited purpose of trading security futures products. As a condition of its notice-registration, OneChicago is required to comply with certain sections of the Securities Exchange Act of 1934 (SEA);
5. The CFTC’s Division of Market Oversight, Compliance Branch conducts regular in-depth reviews of each DCM’s ongoing compliance with CFTC regulations in order to enforce its rules, prevent market manipulation and customer and market abuses, and to ensure the recording and safe storage of trade information. The results of these rule enforcement reviews are in most cases summarized in reports by the CFTC which are made available to the public and posted on the CFTC’s website;
6. OneChicago provides trading services for its market participants (OneChicago Participants) transacting in physically-settled security futures products and may list for trading cash-settled security futures products. OneChicago Contracts overlay publicly-traded equity securities. OneChicago Participants may include commercial and investment banks, money managers, hedge funds, proprietary trading firms, and retail investors. All OneChicago Contracts are cleared through the Options Clearing Corporation (OCC), which is exempted by the Commission from the requirement to be recognized as a clearing agency under Section 21.2 of the OSA, by OCC Clearing Members (OCC Clearing Member);
7. OneChicago maintains and operates an electronic trading system known as OCXdelta1, which functions as an electronic central limit order book (Trading System) where entities trade OneChicago Contracts. OneChicago Participants trade OneChicago Contracts on both a proprietary and agency basis. Agency trades are handled by broker dealers (BDs) or futures commission merchants (FCMs);
8. OCXdelta1 also supports the reporting of privately-negotiated, bilateral trades such as block trades (Block Trades) and Exchange of Future for Physical (EFP) trades in accordance with CFTC regulations and the OneChicago Rulebook;
9. Orders entered, and trades reported, into OCXdelta1 are subject to risk limit checks by OneChicago’s proprietary risk management system, OCX.RiskMan (RiskMan). RiskMan performs risk checks such as maximum order contract quantity, maximum order notional value, maximum daily notional value, and restricted list functionality;
10. OneChicago does not have any offices or maintain other physical installations in Ontario or any other Canadian province or territory;
11. OneChicago proposes to offer direct access in Ontario to its Trading System and facilities to prospective participants in Ontario (Ontario Participants). To obtain direct access to the Trading System and facilities of OneChicago, an Ontario Participant must execute (i) an OCXdelta1 User Agreement, (ii) a Responsible Administrator Form, and (iii) an Authorized Trade Reporter Form. Additional agreements may need to be completed depending on whether the Ontario Participant intends to access OneChicago as a Clearing Member, Exchange Member, or Access Person;
12. OneChicago expects that Ontario Participants will be certain Canadian financial institutions (within the meaning of such term in subsection 1.1(3) of National Instrument 14-101 Definitions) and certain other market participants that have a head office or principal place of business in Ontario, such as (i) dealers that are engaged in the business of trading futures contracts in Ontario; and (ii) institutional investors and proprietary trading firms;
13. OneChicago Contracts fall within the definition of “commodity futures contract” as defined in section 1 of the CFA, as interpreted by OSC Rule 14-502. Therefore, OneChicago is prohibited from carrying on business in Ontario unless it is registered or exempt from registration as a commodity futures exchange under subsection 15(1) of the CFA;
14. As OneChicago intends to provide Ontario Participants with access in Ontario to its Trading System and facilities to trade OneChicago Contracts, OneChicago is considered to be “carrying on business as a commodity futures exchange in Ontario”;
15. Additionally, the exemption from registration in subsection 32(a) of the CFA applies for trades “by a hedger through a dealer.” This exemption will not be available for trades in OneChicago Contracts by Ontario resident Hedgers that become OneChicago Participants since they will have direct access to OneChicago but will not be considered to be executing “though a dealer.” For this reason, OneChicago is seeking Commission approval for the Hedger Relief;
16. Section 35.1 of the OSA provides that financial institutions are exempt from the requirement to be registered under the OSA to act as dealers provided that the conditions of the exemption are met. However, there is no corresponding exemption from registration for trades by financial institutions in the CFA. For this reason, OneChicago is seeking Commission approval for the Bank Relief;
17. OneChicago is not registered with or recognized by the Commission as a commodity futures exchange under the CFA and none of the OneChicago Contracts have been accepted by the Director (as defined in the OSA) under the CFA. As a result, OneChicago Contracts are also considered “securities” under paragraph (p) of the definition of “security” in section 1 of the OSA and OneChicago is considered to be an “exchange” under the OSA. Therefore, OneChicago is prohibited from carrying on business in Ontario unless it is recognized or exempt from recognition under subsection 21(1) of the OSA;
18. Further, while OneChicago Contracts are also considered “securities” under paragraph (p) of the definition of “security” in section 1 of the OSA for the reasons outlined in the preceding paragraph, OneChicago Contracts would not be considered “securities” under any other paragraph contained in that definition, nor would any OneChicago Contract be considered a “derivative” as defined in section 1(1) of the OSA;
19. Similar to paragraph 14 above, since OneChicago seeks to provide Ontario Participants with access in Ontario to trade OneChicago Contracts, OneChicago is considered to be “carrying on business as an exchange in Ontario”;
20. OneChicago ensures that all applicants to become OneChicago Participants must satisfy certain criteria, including, among other things: validly organized and in good standing, good reputation, business integrity and adequate financial resources to assume the responsibilities and privileges of being a OneChicago market participant;
21. All OCC Clearing Members holding customer accounts to guarantee the trades of OneChicago Participants under paragraph 11 will be registered or notice-registered as FCMs with the CFTC. Such OCC Clearing Members are subject to the compliance requirements of the CEA, the CFTC, and the National Futures Association as they relate to customer accounts, including various know-your-client, suitability, risk disclosure, anti-money laundering and anti-fraud requirements. These requirements, in conjunction with the margin requirements for OneChicago Contracts applicable to OneChicago Participants, ensure that Ontario Participants seeking to become OneChicago Participants are subjected to appropriate due diligence procedures and fitness criteria. Notice-registered FCMs are subject to the compliance requirements of the SEA, the SEC, and the Financial Industry Regulatory Authority;
22. Based on the facts set out in the Application, OneChicago satisfies the criteria for exemption set out in Appendix 1 of Schedule A to this order;
AND WHEREAS the Commission will monitor developments in international and domestic capital markets and OneChicago’s activities on an ongoing basis to determine whether it is appropriate for the Commission to continue to grant the Exchange Relief or Registration Relief and, if so, whether it is appropriate for the Exchange Relief and Registration to continue to be granted subject to the terms and conditions set out in Schedule A to this order;
AND WHEREAS OneChicago has acknowledged to the Commission that the scope of the Exchange Relief or Registration Relief and the terms and conditions imposed by the Commission set out in Schedule A to this order may change as a result of its monitoring of developments in international and domestic capital markets or OneChicago’s activities, or as a result of any changes to the laws in Ontario affecting trading in derivatives, commodity futures contracts, commodity futures options or securities;
AND WHEREAS based on the Application, together with the representations made by and acknowledgements of OneChicago to the Commission, the Commission has determined that:
a. OneChicago satisfies the criteria for exemption set out in Appendix 1 of Schedule A;
b. The granting of the Exchange Relief would not be prejudicial to the public interest; and
c. The granting of the Registration Relief would not be prejudicial to the public interest;
IT IS HEREBY ORDERED by the Commission that:
a. Pursuant to section 147 of the OSA, OneChicago is exempt from recognition as an exchange under subsection 21(1) of the OSA;
b. Pursuant to section 80 of the CFA, OneChicago is exempt from registration as a commodity futures exchange under subsection 15(1) of the CFA;
c. Pursuant to section 38 of the CFA, trades in OneChicago Contracts by Hedgers who are Ontario Participants are exempt from the registration requirement under section 22 of the CFA; and
d. Pursuant to section 38 of the CFA, trades in OneChicago Contracts by Banks who are Ontario Participants entering orders as principal and only for their own accounts are exempt from the registration requirement under section 22 of the CFA;
a. OneChicago complies with the terms and conditions attached hereto as Schedule A; and
b. The Bank Relief shall expire on the earliest of:
(i) the expiry of any transition period as may be provided by law, after the effective date of the repeal of the CFA;
(ii) six months, or such other transition period as may be provided by law, after the coming into force of any amendment to Ontario commodity futures law (as defined in the CFA) or Ontario securities law (as defined in the OSA) that affects the dealer registration requirements in the CFA; and
(iii) five years after the date of this order.
DATED October 14, 2016.
“Edward P. Kerwin”
TERMS AND CONDITIONS
Meeting Criteria for Exemption
1. OneChicago will continue to meet the criteria for exemption included in Appendix 1 to this schedule.
Regulation and Oversight of OneChicago
2. OneChicago will maintain its registration as a DCM with the CFTC and will continue to be subject to the regulatory oversight of the CFTC.
3. OneChicago will continue to comply with the ongoing requirements applicable to it as a DCM registered with the CFTC.
4. OneChicago must do everything within its control, which would include cooperating with the Commission as needed, to carry out its activities as an exchange exempted from recognition under subsection 21(1) of the OSA, as a commodity futures exchange exempted from registration under subsection 15(1) of the CFA, and in compliance with Ontario securities law and Ontario commodity futures law.
5. OneChicago will maintain and operate a Trading System where OneChicago Participants trade on a proprietary or agency basis through an intermediary such as a broker dealer or FCM.
6. OneChicago will not provide direct access to an Ontario Participant unless the Ontario Participant is appropriately registered to trade in OneChicago Contracts is a Hedger, or a Bank; in making this determination, OneChicago may reasonably rely on a written representation from the Ontario Participant that specifies that it is appropriately registered to trade in OneChicago Contracts or that it is a Hedger, or a Bank, and OneChicago will notify such Ontario Participant that this representation is deemed to be repeated each time it enters an order for a OneChicago Contract.
7. Each Ontario Participant that intends to rely on the Hedger Relief will be required to, as part of its application documentation or continued access to trading in OneChicago Contracts:
(a) represent that it is a Hedger;
(b) acknowledge that OneChicago deems the Hedger representation to be repeated by the Ontario Participant each time it enters an order for a OneChicago Contract and that the Ontario Participant must be a Hedger for the purposes of each trade resulting from such an order;
(c) agree to notify OneChicago if it ceases to be a Hedger;
(d) represent that it will only enter orders for its own account;
(e) acknowledge that it is a market participant under the CFA and is subject to applicable requirements; and
(f) acknowledge that its ability to continue to rely on the Hedger Relief in accessing trading on OneChicago will be dependent on the Commission continuing to grant the relief and may be affected by changes to the terms and conditions imposed in connection with the Hedger Relief or by changes to Ontario securities laws or Ontario commodity futures laws pertaining to derivatives, commodity futures contracts, commodity futures options or securities.
8. Each Ontario Participant that intends to rely on the Bank Relief will be required to, as part of its application documentation or continued access to trading in OneChicago Contracts:
(a) represent that it will only enter orders as principal and for its own account only;
(b) represent that it is a Bank;
(c) acknowledge that the Bank Relief may be affected by changes to the terms and conditions imposed in connection with the Bank Relief or by changes to Ontario securities laws or Ontario commodity futures laws pertaining to derivatives, commodity futures contracts, commodity futures options or securities; and
(d) represent that it is not engaging in activities prohibited by its governing legislation.
9. OneChicago will require Ontario Participants to notify OneChicago if their applicable registration has been revoked, suspended or amended by the Commission or if they have ceased to be eligible for the Registration Relief and, following notice from the Ontario Participant or the Commission and subject to applicable laws, OneChicago will promptly restrict the Ontario Participant’s access to OneChicago if the Ontario Participant is no longer appropriately registered with the Commission, or is no longer eligible for the Registration Relief.
10. OneChicago must make available to Ontario Participants appropriate training for each person who has access to trade in OneChicago Contracts.
Trading by Ontario Participants
11. OneChicago will not provide access to an Ontario Participant to trading in exchange-traded products of an exchange other than those of OneChicago, unless such other exchange has sought and received appropriate regulatory standing in Ontario.
12. OneChicago will not provide access to an Ontario Participant to trading in OneChicago Contracts other than those that meet the definition of “commodity futures contract” or “commodity futures option” as defined in subsection 1(1) of the CFA, and which also fall under paragraph (p) of the definition of “security” in subsection 1(1) of the OSA, without prior Commission approval.
Submission to Jurisdiction and Agent for Service
13. With respect to a proceeding brought by the Commission arising out of, related to, concerning or in any other manner connected with the Commission’s regulation and oversight of the activities of OneChicago in Ontario, OneChicago will submit to the non-exclusive jurisdiction of (i) the courts and administrative tribunals of Ontario and (ii) an administrative proceeding in Ontario.
14. OneChicago will file with the Commission a valid and binding appointment of an agent for service in Ontario upon whom the Commission may serve a notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding arising out of or relating to or concerning the Commission’s regulation and oversight of OneChicago’s activities in Ontario.
15. OneChicago will provide to its Ontario Participants disclosure that states that:
(a) rights and remedies against OneChicago may only be governed by the laws of the U.S., rather than the laws of Ontario, and may be required to be pursued in the U.S. rather than in Ontario; and
(b) the rules applicable to trading on OneChicago may be governed by the laws of the U.S., rather than the laws of Ontario.
Filings with the CFTC
16. OneChicago will promptly provide staff of the Commission copies of all material rules of OneChicago, and material amendments to those rules, that it files with the CFTC under the regulations pertaining to self-certification and/or approval.
17. OneChicago will promptly provide staff of the Commission copies of all material contract specifications and material amended contract specifications that it files with the CFTC and SEC under the regulations pertaining to self-certification and/or approval.
18. OneChicago will promptly provide staff of the Commission the following information to the extent it is required to file such information with the CFTC:
(a) the annual Board of Directors’ report regarding the activities of the Board and its committees;
(b) the annual financial statements of OneChicago;
(c) details of any material legal proceeding instituted against OneChicago;
(d) notification that OneChicago has instituted a petition for a judgment of bankruptcy or insolvency or similar relief, or to wind up or liquidate OneChicago or has a proceeding for any such petition instituted against it; and
(e) the appointment of a receiver or the making of any voluntary arrangement with creditors.
Prompt Notice or Filing
19. OneChicago will promptly notify staff of the Commission of any of the following:
(a) any material change to its business or operations or the information provided in the Application, including, but not limited to:
(i) changes to the regulatory oversight by the CFTC;
(ii) the corporate governance structure of OneChicago;
(iii) the access model, including eligibility criteria, for Ontario Participants;
(iv) systems and technology; and
(v) the clearing and settlement arrangements for OneChicago;
(b) any change in OneChicago’s regulations or the laws, rules and regulations in the U.S. relevant to futures and options where such change may materially affect its ability to meet the criteria set out in Appendix 1 to this schedule;
(c) any condition or change in circumstances whereby OneChicago is unable or anticipates it will not be able to continue to meet the DCM Core Principles or any applicable requirements of the CEA or CFTC regulations;
(d) any revocation or suspension of, or amendment to, OneChicago’s registration as a DCM by the CFTC or if the basis on which OneChicago’s registration as a DCM was granted has significantly changed;
(e) any known investigations of, or disciplinary action against, OneChicago by the CFTC or any other regulatory authority to which it is subject;
(f) any matter known to OneChicago that may affect its financial or operational viability, including, but not limited to, any significant system failure or interruption; and
(g) any default, insolvency, or bankruptcy of any OneChicago market participant known to OneChicago or its representatives that may have a material, adverse impact upon OneChicago or any Ontario Participant.
20. OneChicago will promptly file with staff of the Commission copies of any Rule Enforcement Review report regarding OneChicago.
21. OneChicago will maintain the following updated information and submit such information in a manner and form acceptable to the Commission on a quarterly basis (within 30 days of the end of each calendar quarter), and at any time promptly upon the request of staff of the Commission:
(a) a current list of all Ontario Participants, and, to the extent known by OneChicago, a list of other persons or companies located in Ontario trading as customers of participants (Other Ontario Users), specifically identifying for each Ontario Participant or Other Ontario User:
(i) its status as a Clearing Member, Exchange Member, or Access Person of OneChicago, and
(ii) the basis upon which it represented to OneChicago that it could be provided with direct access (i.e., that it is appropriately registered to trade in OneChicago Contracts, or is a Hedger, or is a Bank);
(b) a list of all Ontario Participants against whom disciplinary action has been taken in the last quarter by OneChicago or, to the best of OneChicago’s knowledge, by the CFTC with respect to such Ontario Participants’ activities on OneChicago;
(c) a list of all referrals to the OneChicago Chief Regulatory Officer by the OneChicago Compliance Department concerning Ontario Participants;
(d) a list of all Ontario applicants for status as an Ontario Participant who were denied such status or access to OneChicago during the quarter;
(e) a list of all new by-laws, rules, and contract specifications, and changes to by laws, rules and contract specifications, not already reported under sections 15 and 16 of this schedule;
(f) a list of all OneChicago Contracts available for trading during the quarter, identifying any additions, deletions or changes since the prior quarter;
(g) for each OneChicago Contract:
(i) the total trading volume and value originating from Ontario Participants, presented on a per Ontario Participant basis, and, to the extent known by the OneChicago, the total trading volume and value originating from Other Ontario Users presented on a per Other Ontario User basis; and
(ii) the proportion of worldwide trading volume and value on OneChicago conducted by Ontario Participants, and, to the extent known by OneChicago, by Other Ontario Users, presented in the aggregate for such Ontario Participants and Other Ontario Users;
(h) a list outlining each incident of a significant system outage that occurred at any time during the quarter for any system impacting Ontario Participants’ trading activity, including trading, routing or data, specifically identifying the date, duration and reason for the outage, and noting any corrective action taken.
22. OneChicago will arrange to have the annual audited financial statements of OneChicago filed with the Commission promptly after their issuance.
23. If an IT Service Auditor’s Report (Report) is prepared for OneChicago, OneChicago will promptly file with the Commission the Report after the Report is issued as final by its independent auditor.
24. OneChicago will provide information (including additional periodic reporting) as may be requested from time to time by, and otherwise cooperate with, the Commission or its staff, subject to any applicable privacy or other laws (including solicitor-client privilege) governing the sharing of information and the protection of personal information.
25. If OneChicago trades any security futures with the underlying that is listed on an exchange recognized in Canada, OneChicago will coordinate with the Investment Industry Regulatory Organization of Canada on any issues that involve securities of issuers listed on an exchange recognized in Canada, including trading halts and investigations of trading activity involving these.
CRITERIA FOR EXEMPTION
PART 1 REGULATION OF THE EXCHANGE
1.1 Regulation of the Exchange
The exchange is regulated in an appropriate manner in another jurisdiction by a foreign regulator (Foreign Regulator).
1.2 Authority of the Foreign Regulator
The Foreign Regulator has the appropriate authority and procedures for oversight of the exchange. This includes regular, periodic oversight reviews of the exchange by the Foreign Regulator.
PART 2 GOVERNANCE
The governance structure and governance arrangements of the exchange ensure:
(a) effective oversight of the exchange,
(b) that business and regulatory decisions are in keeping with its public interest mandate,
(c) fair, meaningful and diverse representation on the board of directors (Board) and any committees of the Board, including:
(i) appropriate representation of independent directors, and
(ii) a proper balance among the interests of the different persons or companies using the services and facilities of the exchange,
(d) the exchange has policies and procedures to appropriately identify and manage conflicts of interest, and
(e) there are appropriate qualifications, remuneration, limitation of liability and indemnity provisions for directors, officers and employees of the exchange.
The exchange has policies and procedures under which it will take reasonable steps, and has taken such reasonable steps, to ensure that each director and officer is a fit and proper person.
PART 3 REGULATION OF PRODUCTS
3.1 Review and Approval of Products
The products traded on the exchange and any changes thereto are reviewed by the Foreign Regulator, and are either approved by the Foreign Regulator or are subject to requirements established by the Foreign Regulator that must be met before implementation of a product or changes to a product.
3.2 Product Specifications
The terms and conditions of trading the products are in conformity with the usual commercial customs and practices for the trading of such products.
3.3 Risks Associated with Trading Products
The exchange maintains adequate provisions to measure, manage and mitigate the risks associated with trading products on the exchange including, but not limited to, margin requirements, intra-day margin calls, daily trading limits, price limits, position limits, and internal controls.
PART 4 ACCESS
4.1 Fair Access
(a) The exchange has established appropriate written standards for access to its services including requirements to ensure
(i) participants are appropriately registered as applicable under Ontario securities laws or Ontario commodity futures laws, or exempted from these requirements,
(ii) the competence, integrity and authority of systems users, and
(iii) systems users are adequately supervised.
(b) The access standards and the process for obtaining, limiting and denying access are fair, transparent and applied reasonably.
(c) The exchange shall not unreasonably prohibit, condition or limit access by a person or company to services offered by it.
(d) The exchange does not
(i) permit unreasonable discrimination among participants, or
(ii) impose any burden on competition that is not reasonably necessary and appropriate.
PART 5 REGULATION OF PARTICIPANTS ON THE EXCHANGE
The exchange has the authority, resources, capabilities, systems and processes to allow it to perform its regulation functions, whether directly or indirectly through a regulation services provider, including setting requirements governing the conduct of its participants, monitoring their conduct, and appropriately disciplining them for violations of exchange requirements.
PART 6 RULEMAKING
6.1 Purpose of Rules
(a) The exchange has rules, policies and other similar instruments (Rules) that are designed to appropriately govern the operations and activities of participants.
(b) The Rules are not contrary to the public interest and are designed to
(i) ensure compliance with applicable legislation,
(ii) prevent fraudulent and manipulative acts and practices,
(iii) promote just and equitable principles of trade,
(iv) foster co-operation and co-ordination with persons or companies engaged in regulation, clearing, settling, processing information with respect to, and facilitating transactions in the products traded on the exchange,
(v) provide a framework for disciplinary and enforcement actions, and
(vi) ensure a fair and orderly market.
PART 7 DUE PROCESS
7.1 Due Process
For any decision made by the exchange that affects a participant, or an applicant to be a participant, including a decision in relation to access, exemptions, or discipline, the exchange ensures that:
(a) parties are given an opportunity to be heard or make representations, and
(b) it keeps a record of, gives reasons for, and provides for appeals or reviews of its decisions.
PART 8 CLEARING AND SETTLEMENT
8.1 Clearing Arrangements
The exchange has appropriate arrangements for the clearing and settlement of transactions through a clearing house.
8.2 Regulation of the Clearing House
The clearing house is subject to acceptable regulation.
8.3 Authority of Regulator
A foreign regulator has the appropriate authority and procedures for oversight of the clearing house. This includes regular, periodic regulatory examinations of the clearing house by the foreign regulator.
8.4 Access to the Clearing House
(a) The clearing house has established appropriate written standards for access to its services.
(b) The access standards for clearing members and the process for obtaining, limiting and denying access are fair, transparent and applied reasonably.
8.5 Sophistication of Technology of Clearing House
The exchange has assured itself that the information technology used by the clearing house has been adequately reviewed and tested and provides at least the same level of safeguards as required of the exchange.
8.6 Risk Management of Clearing House
The exchange has assured itself that the clearing house has established appropriate risk management policies and procedures, contingency plans, default procedures and internal controls.
PART 9 SYSTEMS AND TECHNOLOGY
9.1 Systems and Technology
Each of the exchange’s critical systems has appropriate internal controls to ensure completeness, accuracy, integrity and security of information, and, in addition, has sufficient capacity and business continuity plans to enable the exchange to properly carry on its business. Critical systems are those that support the following functions:
(a) order entry,
(b) order routing,
(d) trade reporting,
(e) trade comparison,
(f) data feeds,
(g) market surveillance,
(h) trade clearing, and
(i) financial reporting.
9.2 System Capability/Scalability
Without limiting the generality of section 9.1, for each of its systems supporting order entry, order routing, execution, data fees, trade reporting and trade comparison, the exchange:
(a) makes reasonable current and future capacity estimates;
(b) conducts capacity stress tests to determine the ability of those systems to process transactions in an accurate, timely and efficient manner;
(c) reviews the vulnerability of those systems and data centre computer operations to internal and external threats, including physical hazards and natural disasters;
(d) ensures that safeguards that protect a system against unauthorized access, internal failures, human errors, attacks and natural catastrophes that might cause improper disclosures, modification, destruction or denial of service are subject to an independent and ongoing audit which should include the physical environment, system capacity, operating system testing, documentation, internal controls and contingency plans;
(e) ensures that the configuration of the system has been reviewed to identify potential points of failure, lack of back-up and redundant capabilities;
(f) maintains reasonable procedures to review and keep current the development and testing methodology of those systems; and
(g) maintains reasonable back-up, contingency and business continuity plans, disaster recovery plans and internal controls.
PART 10 FINANCIAL VIABILITY AND REPORTING
10.1 Financial Viability
The exchange has sufficient financial resources for the proper performance of its functions and to meet its responsibilities.
PART 11 TRANSPARENCY
The exchange has adequate arrangements to record and publish accurate and timely trade and order information. This information is provided to all participants on an equitable basis.
PART 12 RECORD KEEPING
12.1 Record Keeping
The exchange has and maintains adequate systems in place for the keeping of books and records, including, but not limited to, those concerning the operations of the exchange, audit trail information on all trades, and compliance with, and/or violations of exchange requirements.
PART 13 OUTSOURCING
Where the exchange has outsourced any of its key services or systems to a service provider, it has appropriate and formal arrangements and processes in place that permit it to meet its obligations and that are in accordance with industry best practices.
PART 14 FEES
(a) All fees imposed by the exchange are reasonable and equitably allocated and do not have the effect of creating an unreasonable condition or limit on access by participants to the services offered by the exchange.
(b) The process for setting fees is fair and appropriate, and the fee model is transparent.
PART 15 INFORMATION SHARING AND OVERSIGHT ARRANGEMENTS
15.1 Information Sharing and Regulatory Cooperation
The exchange has mechanisms in place to enable it to share information and otherwise co-operate with the Commission, self-regulatory organizations, other exchanges, clearing agencies, investor protection funds, and other appropriate regulatory bodies.
15.2 Oversight Arrangements
Satisfactory information sharing and oversight agreements exist between the Ontario Securities Commission and the Foreign Regulator.
PART 16 IOSCO PRINCIPLES
16.1 IOSCO Principles
To the extent it is consistent with the laws of the foreign jurisdiction, the exchange adheres to the standards of the International Organisation of Securities Commissions (IOSCO) including those set out in the “Principles for the Regulation and Supervision of Commodity Derivative Markets” (2011).
 For the purposes of these criteria, “clearing house” also means “clearing agency.”