Vega Capital, a CMS licence holder, enters into an OTC swap with a corporate customer on Tuesday, dealing as principal. On Wednesday it sends the customer a confirmation stating Vega's name, the customer's name, the date the transaction was entered into, and the type and notional value of the contract. The confirmation says nothing about the capacity in which Vega dealt. What must Vega do?
Regulation 42 of the SFR(LCB) dispenses with a contract note for an OTC derivatives transaction only where the holder gives a confirmation stating the holder's name, the counterparty's name, a statement that it is acting as principal where that is so, the trade date, and the type and notional value of the contract. Leaving out the principal capacity statement takes the transaction outside the carve-out.
The OTC carve-out is all or nothing; an incomplete confirmation does not replace a contract note.
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