Section 1 in The Bilateral Netting of Qualified Financial Contracts Act, 2020
Title: Short title and commencement.
(1) This Act may be called the Bilateral Netting of Qualified Financial Contracts Act, 2020.
(2) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act.
1. 1st October, 2020, vide notification No. S.O. 3463(E), dated 1st October, 2020 see Gazette of India, Extraordinary, Part II, sec. 3 (ii).
(1) In this Act, unless the context otherwise requires,--
(a) "administration" means proceedings of the nature of placing under administration and includes imposition of moratorium, reorganisation, winding up, liquidation (including any compulsory winding up procedure or proceeding), insolvency, bankruptcy, composition with creditors, receivership, conservatorship or any proceedings of nature similar to or resulting in any of the foregoing, initiated or commenced under any law for the time being in force, against a qualified financial market participant;
(b) "administration practitioner" means the liquidator, receiver, trustee, conservator, resolution professional or any other person or entity, by whatever name called, which administers the affairs of a party subject to administration under any law for the time being in force;
(c) "authority" means the Central Government or any of the regulatory authorities as specified in the First Schedule;
(d) "banking institution" means,--
(i) scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934); and
(ii) any other bank as the Reserve Bank of India may specify;
(e) "close-out netting" means a process involving termination of obligations under a qualified financial contract with a party in default and subsequent combining of positive and negative replacement values into a single net payable or receivable as set out in section 6;
(f) "collateral" means,--
(i) money, in the form of cash, credited to an account in any currency, or a similar claim for repayment of money, such as a money market deposit;
(ii) securities of any kind, including debt and equity securities;
(iii) guarantees, letters of credit and obligations to reimburse; and
(iv) any asset commonly used as collateral under any law for the time being in force;
(g) "collateral arrangement" means any margin, collateral or security arrangement or other credit enhancement related to or forming part of a netting agreement or one or more qualified financial contracts to which a netting agreement applies, and includes,--
(i) a pledge or any other form of security interest in collateral, whether possessory or non-possessory;
(ii) a title transfer collateral arrangement; and
(iii) any guarantee, letter of credit or reimbursement obligation by or to a party to one or more qualified financial contracts, in respect of those qualified financial contracts; or a netting agreement;
(h) "insolvent party" means the party to a qualified financial contract in relation to which insolvency, winding up, liquidation, resolution, administration or similar proceedings have been instituted under any law for the time being in force in India or under the laws of any other country, including of its incorporation;
(i) "margin" means the amount, form and type of collateral required as a performance bond for the purchase, sale or carrying of a qualified financial contract and includes—
(A) initial margin which protects the transacting parties from potential future exposure likely to arise from future changes in the mark-to-market value of the qualified financial contract during the close-out and replace the position in the event of counterparty default; and
(B) variation margin which protects the transacting parties from the current exposure that has already been incurred by one of the parties from changes in the mark-to-market value of the qualified financial contract after the transaction has been executed;
(j) "netting" means determination of net claim or obligations after setting off or adjusting all the claims or obligations based or arising from mutual dealings between the parties to qualified financial contracts and includes close-out netting;
(k) "netting agreement" means an agreement that provides for netting, and includes,--
(i) an agreement that provides for the netting of amounts due under two or more netting agreements; and
(ii) a collateral arrangement relating to or forming part of a netting agreement;
(l) "non-insolvent party" means the party to a qualified financial contract that is not the insolvent party;
(m) "notification" means a notification published in the Official Gazette and the term "notify" shall be construed accordingly;
(n) "qualified financial contract" means a qualified financial contract notified by the authority under clause (a) of section 4;
(o) "qualified financial market participant" includes,--
(i) a banking institution, or a non-banking financial company, or such other financial institution which is subject to regulation or prudential supervision by the Reserve Bank of India;
(ii) an individual, partnership firm, company, or any other person or body corporate whether incorporated under any law for the time being in force in India or under the laws of any other country and includes any international or regional development bank or other international or regional organisation;
(iii) an insurance or reinsurance company which is subject to regulation or prudential supervision by the Insurance Regulatory and Development Authority of India established under the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999);
(iv) a pension fund regulated by the Pension Fund Regulatory and Development Authority established under the Pension Fund Regulatory and Development Authority Act, 2013 (23 of 2013)
(v) a financial institution regulated by the International Financial Services Centres Authority established under the International Financial Services Centres Authority Act, 2019 (50 of 2019); and
(vi) any other entity notified by the relevant authority under clause (b) of section 4;
(p) "Schedule" means the First Schedule or the Second Schedule to this Act;
(q) “title transfer collateral arrangement” means a margin, collateral or security arrangement related to a netting agreement based on the transfer of title to collateral, whether by outright sale or by way of security, including a sale and repurchase agreement, securities lending agreement, securities, buy or sell-back agreement or an irregular pledge.
(2) Words and expressions used but not defined in this Act and defined in the Reserve Bank of India Act, 1934 (2 of 1934), the Insurance Act, 1938 (4 of 1938), the Banking Regulation Act,1949 (10 of 1949), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), the Securities and Exchange Board of India Act,1992 (15 of 1992), the Foreign Exchange Management Act,1999 (42 of 1992), the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999), the Payment and Settlement Systems Act, 2007 (51 of 2007), the Companies Act, 2013 (18 of 2013) the Pension Fund Regulatory and Development Authority Act, 2013 (23 of 2013) and the Insolvency and Bankruptcy Code, 2016 (31 of 2016), shall have the meanings respectively assigned to them in those enactments.
Title: Applicability of Act.
The provisions of this Act shall apply to a qualified financial contract entered into on a bilateral basis between qualified financial market participants, either under a netting agreement or otherwise, where at least one of such participants shall be an entity regulated by an authority specified in the First Schedule.
Title: Powers of authority.
The relevant authority may, by notification,--
(a) designate any bilateral agreement or contract or transaction, or type of contract regulated by it, as qualified financial contract:
Provided that the contract, so designated under this clause, shall not include any contract,--
(i) entered into between such parties and on such terms as the Central Government may, by notification, specify; or
(ii) entered into on multilateral basis in accordance with the provisions of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and the Payment and Settlement Systems Act, 2007 (51 of 2007);
(b) specify any entity regulated by it, as a qualified financial market participant to deal in qualified financial contracts.
Title: Enforceability of netting.
(1) Netting of the qualified financial contract shall be enforceable—
(a) where such contract is entered into with a netting agreement, in accordance with the terms of the netting agreement:
Provided that the inclusion of any non-qualified financial contract in a netting agreement shall not invalidate the enforceability of netting of qualified financial contract under such agreement; or
(b) where such contract is entered into without a netting agreement, in accordance with the provisions of section 6.
(2) A qualified financial contract shall not be void and shall be deemed never to have been void or unenforceable by reason of any law for the time being in force.
(3) Close-out netting of a qualified financial contract shall be enforceable against an insolvent party, and, wherever applicable, against a guarantor or other person providing collateral or security for a party and shall not be affected or stopped or otherwise limited by:--
(i) the appointment of, or any application for the appointment of, an administration practitioner, or
(ii) applicability of any provision of law relating to administration, or
(iii) any other provision of law that may be applicable to an insolvent party
(4) Where a qualified financial market participant is subject to administration, then notwithstanding,--
(i) any stay, injunction, avoidance, moratorium or similar proceedings or any other order of a court, tribunal or authority, or
(ii) any order of adjudication or dissolution or winding up or resolution or insolvency, or
(iii) any rule, regulation, scheme, direction, guideline, circular or order,
made or issued under any law for the time being in force, close-out netting shall be applicable and nothing contained therein shall affect the validity of close-out netting under this Act.
(5) The amount payable or other claims to be made in accordance with the close-out netting under this Act shall be final, irrevocable and binding upon the parties to a qualified financial contract and upon the administration practitioner, of the party in administration.