On November 20, 2020, the working group on euro risk-free rates (the Euro Working Group) published two consultations on fallback rates to EURIBOR. Market participants were invited to provide their views on the potential events that could trigger fallback measures and the fallback rates based on the euro short-term rate (€STR) and spread adjustment methodologies. The results of the consultations show that market participants are not in agreement on all matters relating to transitioning from EURIBOR to €STR.
On February 15, 2021, the UK Treasury published a consultation paper on potential legal ‘safe harbor’ rules for legacy LIBOR-referencing contracts which have been amended by the Financial Conduct Authority (the FCA) under the Financial Services Bill.
The U.S. Office of the Comptroller of the Currency published a three-page self-assessment tool for national banks, federal savings associations, and federal branches and agencies of foreign banking organizations to evaluate their preparedness for the expected cessation of LIBOR. The three-page “tool” poses a series of questions for each bank to answer in a self-assessment. According to the agency, these questions can be used to assess:
- the appropriateness of a bank’s LIBOR transition plan;
- bank management’s execution of the bank’s transition plan; and
- related oversight and reporting.
The agency pointed out that LIBOR cessation preparedness assessments “should be risk based,” and tailored to the size and complexity of each bank’s LIBOR exposures. The OCC clearly expects each bank to conduct the self-assessment in accordance with its LIBOR risks, but not all sections or questions will apply depending on the nature and extent of the bank’s LIBOR exposure. For example, the OCC noted that community banks may not offer products that use LIBOR, but “could have exposure in such positions as Federal Home Loan Banks borrowings, mortgage-backed securities, or bonds in the banks’ investment portfolios.”
In announcing the self-assessment tool, the OCC also pointed back to the LIBOR-transition guidance that it and the other banking agencies provided on November 30, 2020. That guidance encouraged banks to transition away from U.S. Dollar LIBOR “as soon as practicable” and, in any event, to “cease entering into new contracts that use USD LIBOR as a reference rate” by December 31, 2021. In light of that guidance, the OCC statement accompanying the “tool” said that “in 2021, LIBOR exposure and risk assessments and cessation preparedness plans should be at least near completion with appropriate management oversight and reporting in place.” Most banks, the agency added, “should be working toward resolving replacement rate issues while communicating with affected customers and third parties, as applicable.”
On February 13, 2021, the European Union’s (EU) amendments to the Benchmarks Regulation (2016/1011) (the Amended BMR) came into force, which provides a legislative fix for the cessation of LIBOR in legacy contracts. The Amended BMR gives the European Commission (the Commission) the power to replace critical benchmarks and other relevant benchmarks if their termination would significantly disrupt or otherwise affect the functioning of the financial markets in the EU.
On January 28, 2021, the UK Loan Market Association (LMA) published exposure drafts of two multicurrency term and revolving facilities agreements which incorporate, among others, backward-looking compounded risk-free rates (the Exposure Drafts). In addition, the LMA published commentary on the Exposure Drafts, which aims to assist market participants in understanding the terms thereof. The Exposure Drafts are based on the LMA’s exposure draft switch rate agreements discussed in our earlier blog post. The LMA hopes that their publication will facilitate awareness of the issues involved in structuring multicurrency syndicated loans which use backward-looking compounded risk-free rates (RFRs).
ISDA’s IBOR Fallbacks Supplement and Protocol came into effect today. These fallbacks, which are discussed in more detail here, will be incorporated with immediate effect into all new derivatives contracts which incorporate the 2006 ISDA Definitions, and in all legacy non-cleared derivatives where both parties have adhered to ISDA’s IBOR Fallbacks Protocol. To date, over 12,000 parties have adhered to the Protocol, which remains open for adherence for the foreseeable future.
With the end of LIBOR in sight, on January 11, 2021 the Bank of England, FCA and Working Group on Sterling Risk-Free Reference Rates (the Working Group) published a joint statement on the final countdown to the ceasing of publications of all GBP LIBOR settings at the end of 2021 and an updated 2021 Roadmap to assist business in their preparations for the LIBOR transition. Market participant are encouraged to take the Working Group’s updated roadmap into consideration in the transition plans for 2021.
With the end of LIBOR drawing closer, the FCA, Bank of England and the Working Group on Sterling Risk-Free Reference Rates (the Working Group) are encouraging market participants to actively transition from referencing LIBOR rates in their loan agreements to risk-free rates (such as SONIA). In this respect, one important aspect that market participants need to consider is the credit spread adjustment (CAS) that will be required. Market participants use a CAS to mitigate the risk of value transfer when transitioning to risk-free rates due to the difference between LIBOR rates and the risk-free rates, caused by the lack of a credit risk premium in risk-free rates.
Following years of consultations, ISDA published its long-awaited IBOR Fallbacks Supplement to the 2006 ISDA Definitions (the Supplement) and Protocol on October 23, 2020. The Supplement and Protocol provide a standardized and efficient means of transitioning derivatives contracts currently referencing IBORs to risk-free rates (more information on which can be found in our earlier blog post).
Market participants are reminded that the Supplement and Protocol will become effective on January 25, 2021 (the Protocol Effective Date). At present over 5,300 parties have adhered to the Protocol.
The IRS recently released Revenue Procedure 2020-44 (“Rev. Proc. 2020-44”) which provides helpful relief to taxpayers by providing that if a contract referencing an IBOR is modified to incorporate specific ISDA or AARC fallback language for the replacement of IBORs, such modification will not cause certain adverse tax consequences, such as exchange treatment under Section 1001 of the Tax Code, or the legging out or termination of integrated transactions under Treasury Regulation Sections 1.1275-6, 1.988-5(c) or 1.148-4(h).