Abstract
The EU and the US are more similar than they are different in their approach to equivalence. The world of derivatives is where the equivalence approach is most developed in the US, although in the US, equivalence is referred to as substituted compliance and is found only after a determination that the foreign regulatory regime is comparable to that in the US. US substituted compliance has been developed through the regulatory process, meaning that it is subject to continued development and could change over time at the whim of the regulators who are then in charge. In the case of credit institutions (EU) or commercial/retail banking (US), both the EU and the US largely follow an extra-territorial or territorial approach applying national law to a branch of a foreign entity doing business in the US (the extra-territorial approach) or requiring that a US subsidiary or intermediate holding company be established that is fully subject to US law (the territorial approach). In the provision of investment services, equivalence may theoretically be used to determine whether a third-country firm may offer investment services without a branch throughout the EU. As a practical matter, the only way to access the EU internal market is through a subsidiary established in a Member State (the territorial approach). A few broker-dealer activities may be conducted by foreign firms in the US without registering with the US Securities and Exchange Commission (SEC), but otherwise foreign firms must register with the SEC and become a member of the Financial Industry Regulatory Authority (FINRA) self-regulatory organization to engage in underwriting, private placement, and mergers and acquisitions advisory services.
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Notes
Citizens of EEA countries enjoy free movement within the EU. European Parliament, Free movement of persons, https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons (accessed 14 October 2023). Although Switzerland is not in the EU or the EEA, its citizens enjoy freedom of movement within the EU.
European Parliament, Understanding equivalence and the single passport in financial services: third-country access to the single market, p 1 (February 2017), https://www.europarl.europa.eu/RegData/etudes/BRIE/2017/599267/EPRS_BRI(2017)599267_EN.pdf (accessed 14 October 2023).
European Parliament, Third-country equivalence in EU banking legislation, pp 2–3 (12 July 2017), https://www.europarl.europa.eu/RegData/etudes/BRIE/2016/587369/IPOL_BRI(2016)587369_EN.pdf (accessed 14 October 2023).
Ibid., p 2.
Ibid.
Busch (forthcoming) (defining an ‘extra-territorial’ approach as one where ‘domestic rules and domestic supervision are applied to third-country entities’).
Ibid. (defining the ‘equivalence’ approach as one where ‘reliance is placed on third-country rules and third-country supervision’ if ‘sufficiently similar to domestic rules and domestic supervision’ and the ‘territorial’ approach as one where the third-country firm must establish a subsidiary on domestic territory subject to domestic rules and supervision to access the domestic market).
European Banking Federation (undated) (touting the benefits of universal banks and citing lowest rates of financial crisis losses to total assets among retail/commercial banks, investment banks, and universal banks).
Office of the Comptroller of the Currency (undated) (‘The OCC charters, regulates, and supervises all national banks and federal savings associations as well as federal branches and agencies of foreign banks. The OCC is an independent bureau of the U.S. Department of the Treasury.’).
Board of Governors of the Federal Reserve System (undated) (in addition to supervising and regulating, at the federal level, state-chartered member banks, the Fed oversees bank holding companies, conducts US monetary policy, promotes the stability of the financial system, provides payment and settlement services, and promotes consumer protection).
Federal Deposit Insurance Corporation (undated), in addition to supervising and regulating, at the federal level, state-chartered non-Fed-member banks, the FDIC also provides deposit insurance to all banking institutions and resolves them in the case of their insolvency).
Broome et al. (2022), pp 127–128.
Ibid., p 128.
12 U.S.C. § 1841(a)(1).
12 U.S.C. § 1843(c)(8).
12 U.S.C. §§ 1841(p), 1843(l)(1). The depository subsidiaries of the bank holding company must also have Community Reinvestment Act (CRA) ratings of satisfactory or above.
12 U.S.C. § 1843(k)(1).
12 U.S.C. § 1843(k)(4)(E).
12 U.S.C. § 1843(k)(4)(B).
12 U.S.C. § 1844(c)(4), (c)(5).
The Glass-Steagall Act was four provisions included in the Banking Act of 1933. These provisions are described well in Securities Industry Ass’n v. Board of Governors of the Federal Reserve System, 839 F.2d 47 (2d Cir.), cert. denied, 486 U.S. 1059 (1988).
Federal Financial Institutions Examination Council, NIC National Information Center (2023).
SEC (undated).
Rosen et al. (2016), p 1189.
International Monetary Fund, Applying the clearing mandate: different options for different markets, p 3 (January 2022), https://www.imf.org/en/Publications/WP/Issues/2022/01/28/Applying-the-Central-Clearing-Mandate-Different-Options-for-Different-Markets-512017.
Ibid.
CFTC (2020).
Supra n. 25, p 5.
Ibid.
EBA (2022), Table 13 (as of June 2021).
European Parliament (undated).
European Commission (2016), announcing that the US CFTC has equivalent requirements to the CCP in regulating CCPs.
ESMA (2023).
European Commission (2021a), announcing that the US SEC has equivalent requirements for SEC-regulated ‘covered clearing agencies’.
European Commission (2022), announcing that a number of exchanges supervised by the US SEC are equivalent to EU regulated markets.
European Parliament (undated).
Busch (forthcoming).
At present, the only Tier 2 CCPs identified by ESMA are based in the UK. One of those CCPs has announced relocation of its CDS clearing services to the US (Chicago). This may perhaps lead to ESMA designating this US CCP as a Tier 2 CCP subject to EMIR regulation and ESMA supervision. Zebregs and de Serière (forthcoming).
Busch (forthcoming).
Ibid., p 1.
Ibid., p 9.
DFA § 752(a), 15 U.S.C. § 8325.
DFA § 752(a), 15 U.S.C. § 8325.
Rosen et al. (2016), p 1194.
Ibid., p 1202.
DFA § 722, 7 U.S.C. § 2(i).
Art. 4(1)(a)(iv)-(v), Regulation EU No 648/2012 (27 July 2012) (EMIR), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012R0648 (accessed 14 October 2023).
CFTC (2020), p 56925.
Ibid., p 56925 [citing 77 Fed. Reg. 30596 (May 23, 2012) (codified at 17 CFR chapter 1)].
Ibid. [citing 78 Fed. Reg. 45292 (July 26, 2013)].
Ibid.
Ibid. [citing CFTC Staff Advisory No. 13-69, Applicability of Transaction-Level Requirements to Activity in the United States (Nov. 14, 2013)].
Ibid., p 57015 (App. 6, Dissenting Statement of Commissioner Dan M. Berkovitz).
Ibid., (App. 6, Dissenting Statement of Commissioner Dan M. Berkovitz).
Ibid., p 56925 [citing CFTC Staff Letter No. 13-71, No-Action Relief: Certain Transaction-Level Requirements for Non-U.S. Swap Dealers (Nov. 26, 2013)].
Ibid., p 56925 [citing Final Rule, Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants – Cross-Border Application of the Margin Requirements, 81 Fed. Reg. 34818 (May 31, 2016) (codified at 17 C.F.R. Part 23)].
Ibid.
Ibid., p 56925.
Ibid., p 56926.
Ibid., pp 57001–57016.
17 C.F.R. § 23.23(f).
17 C.F.R. § 23.23(g).
Ibid.
CFTC (2020).
Ibid., p 56991.
Rosen et al. (2016), p 1207, n. 63.
CFTC Cross-Border Guidance, 78 Fed. Reg. 45344.
Rosen et al. (2016), p 1207.
CFTC (2020), p 56926.
Ibid., p 56976.
Ibid., p 57005 (dissenting statement of CFTC Commissioner Rostin Behnam, referring to DFA § 722, 7 U.S.C. § 2(i)).
Ibid., p 56978.
Ibid., pp 57013, 57016 (dissenting statement of CFTC Commissioner Dan M. Berkovitz, referring to DFA § 722, 7 U.S.C. § 2(i)).
Ibid.
CFTC, Comparability Determinations for Substituted Compliance Purposes, https://www.cftc.gov/LawRegulation/DoddFrankAct/CDSCP/index.htm (accessed 14 October 2023).
CFTC (2020), p 56979.
CFTC (2013b).
Ibid.
CFTC (2017).
CFTC, Comparability Determinations for Substituted Compliance Purposes, https://www.cftc.gov/LawRegulation/DoddFrankAct/CDSCP/index.htm (accessed 14 October 2023).
Statement of Commissioner Christy Goldsmith Romero on a Proposed Comparability Determination for Capital (Nov. 10, 2022), https://www.cftc.gov/PressRoom/SpeechesTestimony/romerostatment111022b (accessed 14 October 2023). CFTC (2013a).
Remarks of Commissioner Summer K. Mersinger Before the WFECLEAR (28 March 2023), https://www.cftc.gov/PressRoom/SpeechesTestimony/opamersinger5 (accessed 14 October 2023).
Rosen et al. (2016), p 1211, n. 77.
17 C.F.R. § 240.0-13.
SEC (2021a).
17 C.F.R. § 240.3a71-6 pursuant to the Securities Exchange Act section 15F. Originally adopted 81 Fed. Reg. 29959 (May 13, 2016), amended 81 Fed. Reg. 39808 (June 17, 2016); 85 Fed. Reg. 6359 (Feb. 4, 2020).
SEC (2021a).
17 C.F.R. § 240.3a71-6(a)(2).
SEC (2016a), p 29963.
Ibid., p 30070 (comment from Better Markets).
Ibid., p 30074.
Ibid., p 30072.
Ibid., p 30080.
SEC (2016b), p 39827.
SEC (2020).
SEC (2015).
15 U.S.C. §§ 78m(m) and 78m-1.
17 C.F.R. § 242.908, initially adopted 80 Fed. Reg. 14728 (Mar. 19, 2015) and amended 81 Fed. Reg. 53655 (Aug. 12, 2016).
17 C.F.R. § 242.908(c).
Ibid.
Ibid.
17 C.F.R. § 242.908(c)(2)(iv).
SEC (2015), p 14650.
Ibid., p 14657.
SEC (2021b).
SEC (2021c).
SEC, AMF & ACPR (2021).
SEC & BaFin (2020).
SEC (2021d).
SEC (2023).
EBA (2022), Table 3 (as of June 2021) (the United Kingdom was the only foreign country to exceed the US market share with a 5.7% market share).
Ibid., Table 9 (as of June 2021).
Ibid., Table 10 (as of June 2021) (UK banks account for 35 branches, while Chinese banks have 18 branches within the EU).
Three institutions own 82% of foreign US branches (Citibank with 249 branches, JPMorgan Chase with 33, and Bank of America with 30). Federal Reserve Statistical Release, Large Commercial Banks (as of 30 Sept. 2016).
EBA (2022), Table 10.
Norton Rose Fulbright, Supervision of international bank branches/Germany, https://www.nortonrosefulbright.com/en/knowledge/resources-and-tools/banking-reform/supervision/germany (accessed 14 October 2023); Busch (forthcoming).
Ibid.
Busch (forthcoming).
Ibid., p 10.
Ibid.
Ibid.
BPI members include Bank of America, Citibank and JPMorgan Chase, the US banks with the most significant presence outside the US.
BPI (2021) (signed also by the American Chamber of Commerce to the European Union, the Japanese Bankers Association, and the Swiss Finance Council).
Ibid.
Ibid.
BPI (2022).
Ibid.
Ibid.
Ibid.
Citigroup Inc., 2022 Form 10-K, https://www.citigroup.com/rcs/citigpa/storage/public/10k20221231.pdf, p 43 (accessed 14 October 2023).
Ibid.
JPMorgan Chase & Co. (2022), p 11.
Bank of America Corporation (2022).
Ibid., p 17.
Allen and Overy (2022).
Ibid., Table 2. EU-based institutions with over $100 billion in U.S. assets that have formed a holding company in the US are Deutsche Bank USA and Santander Holdings USA. In addition, BNP Paribas and Société Générale have combined US operations with US assets exceeding $250 billion or $100 billion, respectively. Ibid., Table A.1.
12 C.F.R. § 211.21(n).
12 C.F.R. § 211.21(o).
12 U.SC. § 3101(15).
12 U.S.C. § 3101(1).
12 U.S.C. § 3101(3).
Federal branches were permitted in the International Banking Act of 1978. 12 U.S.C. § 3102 (regarding the establishment of a federal branch or agency of a foreign bank).
12 U.S.C. § 1842(c)(3)(B).
Dugan et al. (2016), p 29.
Ibid., pp 43–44.
Board of Governors of the Federal Reserve System (2017).
U.S. Dept. of Treasury (2017).
Ibid., p 69.
Ibid., p 70.
This Act is sometimes referred to as S. 2155 and sometimes as the Crapo Bill. 12 U.S.C. § 5365. See FRS (2019).
See FRS (2019). (12 C.F.R. § 225.147 applies to US IHCs with assets of less than $100 billion and US non-branch assets greater than $50 billion, while 12 C.F.R. § 225.153 applies to US IHCs with assets of $100 billion or greater and US non-branch assets of $50 billion or greater).
Fellowes-Granda (2022).
These banks included Deutsche Bank from the EU and Credit Suisse, UBS and Barclays.
Fellowes-Granda (2022) (arguing that the Fed Vice Chair for Supervision Michael Barr should exercise his power to place these four institutions back into the LISCC category to help ensure stability of the financial system).
Ibid.
The Institute of International Bankers is a member association of internationally headquartered financial institutions that have operations within the United States. This organization is to monitor legislative and regulatory developments within the US to ‘seek results that are consistent with the U.S. policy of national treatment and . . . ensure that the global operations of its member banks are not subject to unwarranted extraterritorial applications of U.S. laws.’ Institute of International Bankers, https://www.iib.org/page/Membership (accessed 14 October 2023).
S&P Global Market Intelligence (2021) (quoting a letter to the Fed from these organizations in December 2020).
Busch (forthcoming).
European Commission (2021b), n. 36.
Busch (forthcoming).
Ibid., p 9.
The Gramm-Leach-Bliley Act of 1999 removed the exemption that banks previously enjoyed from having to register as a broker or dealer with the SEC. Certain ‘traditional bank activities’ may still be conducted within the bank without requiring SEC registration, but the intent and effect of GLBA was to ‘push out’ brokerage activities to separate bank or BHC subsidiaries that would register with the SEC. Federal Reserve Board, Regulation R, 12 C.F.R. pt. 218.
15 U.S.C. § 78c(a)(5).
Securities and Exchange Commission, Rule 15a-6.
Ibid.
Mendelson and Cohn (2016), p 1167.
Ibid., pp 1167–68. Prior to the 1999 enactment of the Gramm-Leach-Bliley Act, subsidiaries of BHCs could engage in securities brokerage and underwriting so long as they were not ‘substantially engaged’ in such activities. Following the enactment of GLBA, a BHC that qualifies as an FHC may establish a subsidiary to engage in brokering, dealing, and underwriting securities.
Ibid., p 1168.
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Broome, L.L. A US Perspective on Equivalence. Eur Bus Org Law Rev 25, 49–73 (2024). https://doi.org/10.1007/s40804-023-00305-2
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DOI: https://doi.org/10.1007/s40804-023-00305-2