Bloomberg Tradebook Canada Company – s. 15.1 of NI 21-101
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Exemption from restriction on permitted securities and threshold notification requirement for ATSs -- Relief needed to accommodate the full range of products offered on the ATS and to reflect limitations in calculating notification thresholds for certain types of securities -- National Instrument 21-101 Marketplace Operation.
Applicable Legislative Provisions
National Instrument 21-101 Marketplace Operation, ss. 6.3, 6.7 and 15.1.
May 1, 2024
IN THE MATTER OF
THE SECURITIES LEGISLATION OF ONTARIO
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
BLOOMBERG TRADEBOOK CANADA COMPANY
(the Applicant)
DECISION
Background
The principal regulator in Ontario has received an application from the Applicant for a decision under the securities legislation of the province of Ontario (the Legislation) for an exemption pursuant to section 15.1 of National Instrument 21-101 Marketplace Operation (NI 21-101) from:
(i) the restriction in section 6.3 of NI 21-101 relating to permitted securities; and
(ii) the requirement in section 6.7 of NI 21-101 relating to notification of certain market share thresholds (together with (i), the Relief Sought).
Under National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application) (NP 11-203):
(a) The Ontario Securities Commission (OSC) is the principal regulator for this application; and
(b) The Applicant has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Alberta, Nova Scotia, Quebec and Saskatchewan (together with Ontario, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions, MI 11-102, NP 11-203, NI 21-101 and the Securities Act (Ontario) have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Applicant:
1. The Applicant is a Nova Scotia unlimited liability company incorporated on February 15, 2001 and is an indirect subsidiary of Bloomberg L.P., a Delaware U.S. limited partnership.
2. The head office of the Applicant is located in Toronto, Ontario.
3. The Applicant operates an alternative trading system (ATS) in the Jurisdictions and is registered as an investment dealer in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Québec, Saskatchewan and Yukon. The Applicant is also a member of the Canadian Investment Regulatory Organization.
4. The Applicant provides Canadian Participants, as defined in the Applicant's Form 21-101F2, with access to (1) execute trades in Canadian Debt Securities and Foreign Debt Securities (as defined below) on the multilateral trading facilities operated by its affiliated entities, Bloomberg Trading Facility Limited (BTFL) and Bloomberg Trading Facility B.V. (BTF BV), and (2) negotiate trades in Canadian Debt Securities and Foreign Debt Securities on the organised market operated by its affiliated entity, Bloomberg Tradebook Singapore Pte Ltd. (Tradebook Singapore and, collectively with BTFL and BTF BV, the Affiliated Systems and each an Affiliated System). Currently, BTFL and BTF BV directly provide Canadian Participants with access to execute trades in IRS, CDS and FX on their respective Affiliated Systems, and Tradebook Singapore directly provides Canadian Participants with access to negotiate trades in Foreign Non-Debt Securities, IRS, CDS and FX (each as defined below) on the BTBS System.
5. Pursuant to Exhibit I of the Applicant's Form 21-101F2 (as amended or supplemented from time to time) the following terms have the following meanings:
"Canadian Debt Securities" are any unlisted debt securities, as that term is defined in NI 21-101, and any debt securities denominated in Canadian dollars;
"Foreign Debt Securities" are defined as any debt securities (as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103)) that are foreign securities (as defined in NI 31-103) or debt securities that are denominated in a currency other than the Canadian dollar, including:
(a) debt securities issued by the U.S. government (including agencies or instrumentalities thereof);
(b) debt securities issued by a foreign government;
(c) debt securities issued by corporate or other non-governmental issuers (U.S. and foreign); and
(d) asset-backed securities (including mortgage backed securities), denominated in either U.S. or foreign currencies;{1}
"IRS" are interest rate swaps, as defined in section 1a(47) of the U.S. Commodity Exchange Act;
"CDS" are credit default swaps, as defined in section 1a47) of the U.S. Commodity Exchange Act, and single-name security (credit default) swaps;
"FX" are:
(a) foreign exchange swaps, as defined in section 1a(47) of the U.S. Commodity Exchange Act (but without regard to any exclusions from the definition{2});
(b) precious metals swaps;
(c) foreign exchange spot;
(d) deposits; and
(e) trade finance{3};
"Foreign Non-Debt Securities" are any foreign securities (as defined in NI 31-103) that are not debt securities (as defined in NI 31-103), including:
(a) securities of foreign exchange-traded funds, which refers to a fund in continuous distribution that is incorporated, formed or created under the laws of a foreign jurisdiction; and
(b) stock loans, which refer to securities lending arrangements in which securities are temporarily transferred from one party (the lender) to another party (the borrower) in return for a fee. Under the lending arrangement, the borrower is obliged to redeliver to the lender the securities or identical securities to those that were transferred or lent, either on demand or at the end of the loan term.
Canadian Debt Securities, Foreign Debt Securities, IRS, CDS, FX and Foreign Non-Debt Securities are collectively referred to herein as the "Instruments".
6. The Applicant does not conduct any principal trading in the Instruments. The Applicant operates pursuant to a "conduit" model and provides access to its Affiliated Systems to Canadian Participants. Each of the Affiliated Systems is subject to robust regulation in its respective home jurisdiction.
7. Canadian Participants have full transparency regarding which Affiliated System they are negotiating or executing trades on by reference to the Affiliated System's venue designation on trade negotiation acceptance messages or trade confirmations.
8. Each of the Affiliated Systems have been granted an order by the securities regulatory authority or regulator in the applicable Jurisdictions, exempting the Affiliated Systems from: (i) the requirement to be recognized as an exchange; and (ii) the requirements in NI 21-101, the requirements of National Instrument 23-101 Trading Rules and the requirements of National Instrument 23-103 Electronic Trading and Direct Electronic Access to Marketplaces, permitting them to offer Canadian Participants access to trade or negotiation, as applicable, of the Instruments on their respective platforms.
9. Canadian Participants on the Applicant's and Affiliated Systems' platforms include a wide range of sophisticated customers that are permitted to access the Affiliated Systems under the terms and conditions of the applicable exemption order in each Jurisdiction.
10. Canadian Participants and their counterparties who trade in the Instruments as listed in Exhibit I of the Applicant's Form 21-101F2 are expected to be institutional customers that are "permitted clients" (as that term is defined in NI 31-103) and that are also (i) registered under the securities laws of the applicable Jurisdiction, (ii) exempt from registration under the securities laws of the applicable Jurisdiction, or (iii) not subject to registration requirements under the securities laws of the applicable Jurisdiction, in accordance with the exemption orders of each of the Affiliated Systems.
11. No Canadian Participants are individual investors. The Applicant does not offer access to retail customers.
12. At no time does the Applicant provide its own quotations, act as a counterparty to or take title to any securities or other assets with respect to the Affiliated Systems, nor does the Applicant perform any clearing or settlement functions in connection with the Affiliated Systems.
13. All transactions negotiated or executed using the Affiliated Systems are cleared and settled by dealer participants and customer participants using their customary procedures separate from the Applicant's and the Affiliated Systems.
14. Pursuant to the terms and conditions of the Applicant's registration in the category of investment dealer, it reports trades executed by the Affiliated Systems in the applicable asset classes listed in Exhibit I of its Form 21-101F2, as applicable.
15. When Canadian Participants access the Affiliated Systems through the Applicant's ATS, OSC staff considers the Applicant to be the marketplace that is executing or negotiating the relevant trades of Canadian Participants, regardless of which Affiliated System the orders are accessed at.
16. Under section 6.3 of NI 21-101, the Applicant is not permitted to execute trades in securities other than: (a) exchange-traded securities; (b) corporate debt securities; (c) government debt securities; or (d) foreign exchange-traded securities, each as defined in NI 21-101. The Applicant has requested an exemption from section 6.3 of NI 21-101 to be able to continue to provide Canadian Participants in the Jurisdictions access to trades or negotiations in all Instruments on its Affiliated Systems.
17. Pursuant to section 6.7 of NI 21-101, the Applicant is required to notify the securities regulatory authorities in the Jurisdictions in writing, within 30 days, if one of the notification thresholds under section 6.7(1) of NI 21-101 is met or exceeded (the Notification Thresholds). The Applicant has requested an exemption from section 6.7 of NI 21-101 because the Notification Thresholds require calculating the number of trades, dollar value and volume of any type of security traded on the ATS as a percentage of total trading in that type of security on all marketplaces in Canada, and in the Applicant's case it is not possible to obtain data required to determine if the Notification Thresholds are met.
18. The Applicant is not in default of the Legislation.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Relief Sought is granted, provided that:
1. the Applicant provides access only to the Instruments, each as defined in Exhibit I of the Applicant's Form 21-101F2 (as may be amended from time to time), and only to Canadian Participants as described above and as may be amended by the Applicant's Form 21-101F2 from time to time.
{1} For greater certainty, "Foreign Debt Securities" for Tradebook Singapore includes convertible debt securities and the following money market instruments (U.S. and foreign): commercial paper, agency discount notes, government treasury bills, certificates of deposit, bankers' acceptances, promissory notes and bearer deposit notes.
{2} These include, for greater certainty, precious metals spot, commodity spot and physically settled commodity forwards contracts.
{3} Trade finance is a specialized branch of finance focused on providing payment, financing and risk mitigation solutions in support of transactions between importers and exporters, or those involving international supply chains. Trade finance is financing provided in support of the conduct of international trade. Generally, the term trade finance refers to transactions considered to be short-term in nature, up to 18 to 24 months in duration, but most commonly up to 90 or 180 days in duration.