Art. 106

(Art. 94 para. 2 and 107 FinMIA)

1. The duty to exchange collateral in the case of cross-border transactions shall also apply, subject to the exemption envisaged in paragraphs 2, 2^bisand 2^ter, if the foreign counterparty of the Swiss counterparty which has the duty to exchange collateral would also be subject to this duty if it had its registered office in Switzerland.¹
2. No collateral has to be exchanged if the foreign counterparty:
   1. has its registered office in a country whose legislation is recognised by FINMA as being equivalent; and
   2. does not have to exchange collateral under the legislation of that country.
   a. the netting or guarantee agreements vis-à-vis the foreign counterparty are not definitely legally enforceable at all times; or b. agreements on the separation of collateral are not in line with internationally recognised standards.² a. an independent legal review showed that the acceptance of initial or variation margin payments from the foreign counterparty in accordance with the provisions of the FinMIA or this Ordinance would not be possible; and b. the unsecured transactions concluded and outstanding after the entry into force of the duty to call for the payment of initial margins and variation margins account for less than 2.5% of all OTC derivatives transactions, whereby intra-group transactions are not to be included in the calculation.³
3. The Swiss counterparty may dispense with the payment of initial margins and variation margins to the foreign counterparty if an independent legal review showed that:
4. It can dispense with requiring the foreign counterparty to pay initial margins and variation margins if the conditions under paragraph 2^bisletter a or b are met and:
5. The other risk mitigation duties that would require the involvement of the counterparty may be fulfilled unilaterally insofar as this corresponds to recognised international standards.