96-17634. Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving a Proposed Rule Change Relating to Choice of Law Provisions in Connection With Amendments to Articles 8 and 9 of the Uniform Commercial Code  

  • [Federal Register Volume 61, Number 134 (Thursday, July 11, 1996)]
    [Notices]
    [Pages 36599-36601]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-17634]
    
    
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    SECURITIES AND EXCHANGE COMMISSION
    [Release No. 34-37395; File No. SR-OCC-96-01]
    
    
    Self-Regulatory Organizations; The Options Clearing Corporation; 
    Order Approving a Proposed Rule Change Relating to Choice of Law 
    Provisions in Connection With Amendments to Articles 8 and 9 of the 
    Uniform Commercial Code
    
    July 2, 1996.
        On January 16, 1996, The Options Clearing Corporation (``OCC'') 
    filed with the Securities and Exchange Commission (``Commission'') a 
    proposed rule change (File No. SR-OCC-96-01) pursuant to Section 
    19(b)(1) of the Securities Exchange Act of 1934 (``Act'').\1\ Notice of 
    the proposal was published in the Federal Register on March 25, 
    1996.\2\ No comment letters were received. For the reasons discussed 
    below, the Commission is approving the proposed rule change.
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        \1\ 15 U.S.C. 78s(b)(1) (1988).
        \2\ Securities Exchange Act Release No. 36983 (March 18, 1996), 
    61 FR 12124.
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    I. Description of the Proposal
    
        In 1994, The American Law Institute and the National Conference of 
    Commissioners on Uniform State Laws promulgated amendments to Articles 
    8 and 9 of the UCC (``1994 amendments''). To a significant degree, the 
    1994 amendments were adopted in response to the views of the Commission 
    and others that the shortcomings in the provisions of the 1977 version 
    of Articles 8 and 9 of the UCC contributed to the liquidity problems 
    associated with the October 1987 stock market decline. The 1994 
    amendments were intended to reduce legal uncertainty and to facilitate 
    the transfer of ownership of and creation of security interests in 
    securities as well as other financial assets and investment property, 
    including futures and futures options, through a set of rules designed 
    to apply to the modern securities and futures holding systems.
        Illinois recently adopted the 1994 amendments. Accordingly, the 
    rule change amends OCC's by-laws, rules, and interpretations to take 
    advantage of the benefits associated with the application of the 1994 
    amendments to govern most options transactions involving OCC. 
    Previously, OCC's by-laws and rules contained choice of law provisions 
    that selected Delaware as the governing law.\3\ OCC originally adopted 
    the Delaware choice of law provisions to reinforce the provisions of 
    the 1977 version of the UCC under which OCC options were deemed 
    uncertificated securities. Under the conflict of laws rules in the 1977 
    version of the UCC, the law of the jurisdiction of incorporation of the 
    issuer of uncertificated securities governs the perfection of security 
    interests therein.
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        \3\ Although the 1994 amendments have been adopted in Illinois, 
    they have not been adopted in many other jurisdictions, including 
    Delaware, the state of OCC's incorporation.
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        Under the 1994 amendments, OCC will function as a ``securities 
    intermediary'' rather than an issuer of uncertificated securities. 
    Under the new choice of law provisions in the 1994 amendments, the 
    applicable law will be the law of the securities intermediary's 
    jurisdiction, which may be selected by agreement between the securities 
    intermediary and the entitlement holder (i.e., OCC and its clearing 
    members). In absence of a contrary agreement, OCC believes that 
    Illinois law will apply because under the choice of law rules found in 
    the 1994 amendments, Illinois would be deemed the securities 
    intermediary's jurisdiction.
        As discussed above, OCC's present choice of law rules were adopted 
    solely to reinforce the choice of law provisions of the 1977 version of 
    the UCC. However, in light of Illinois' adoption of
    
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    the 1994 amendments, the rule change will replace those provisions with 
    Illinois choice of law provisions and makes certain other changes 
    intended to link the terminology of OCC's by-laws and rules with the 
    terminology of the 1994 amendments.
        Notwithstanding the adoption of the Illinois choice of law 
    provisions, situations can arise in which the 1977 version of the UCC 
    will be applicable. This could occur if UCC issues develop in a 
    jurisdiction that has not yet adopted the 1994 amendments and if a 
    tribunal in that jurisdiction applies its own choice of law rules. The 
    choice of law provisions in the 1977 version of the UCC are mandatory 
    and cannot be altered by agreement. Therefore, OCC's new choice of law 
    rules would likely be unenforceable and therefore Delaware law would be 
    controlling. Because this possibility exists, OCC will retain the 
    provisions in its by-laws and rules that were deemed necessary or 
    desirable to manage instances when Delaware law is applied to options 
    transactions.\4\
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        \4\ OCC's by-laws and rules previously contained interpretations 
    to alert clearing members and others that Delaware law will not 
    always govern notwithstanding the choice of law provisions. These 
    interpretations have been adapted to reflect the choice of law 
    change from Delaware law to Illinois law in OCC's by-laws. The 
    effect of this change will be to alert clearing members and others 
    that now Illinois law, instead of Delaware law, may not always 
    govern despite the choice of law provisions contained in OCC's by-
    laws.
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        To accommodate Illinois' adoption of the 1994 amendments, OCC has 
    made the following specific changes in its by-laws and rules. The terms 
    ``lien'' and ``pledge'' are now defined in Article I, Section 1 of 
    OCC's by-laws to make it clear that these terms refer to a security 
    interest within the meaning of the 1994 amendments.\5\ Section 1-
    201(37) of the UCC defines ``security interest'' broadly but without 
    reference to such common law concepts as lien and pledge, which are 
    subsumed within the amended definition of security interest.
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        \5\ Even though the likelihood of misinterpretation on this 
    point may be remote, the addition of these definitions is prudent 
    because the terms lien and pledge no longer appear in the provisions 
    of UCC Articles 8 and 9 under the 1994 amendments that are 
    applicable to OCC.
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        The definition of ``rules'' set forth in Article 1, Section 1 now 
    makes it clear that for purposes of Articles 8 and 9 the term ``rules 
    of a clearing agency'' as applied to OCC will mean anything deemed to 
    be a rule of a clearing agency under the Act. This is because Section 
    8-111 of the 1994 amendments in effect provides that a rule adopted by 
    a clearing corporation supersedes contrary provisions of the UCC.
        The basic choice of law provision applicable to option holders and 
    writers with respect to cleared securities set forth in Article VI, 
    Section 9(c)(1) of OCC's by-laws now contains statements indicating how 
    revised Articles 8 and 9 will apply to OCC and its clearing members 
    with regard to ownership of and security interests in cleared 
    securities. These statements are not intended to alter the substantive 
    operation of Articles 8 and 9 but are intended merely to provide a 
    guide to proper interpretation of Articles 8 and 9. However, because 
    UCC Section 8-111 permits OCC to supersede provisions of the UCC with 
    its own rules, Section 9(c)(1) now deems all cleared securities to be 
    financial assets without regard to whether a particular cleared 
    security constitutes a similar obligation to an option. Determination 
    of whether a cleared security is a similar obligation to an option is 
    required under the definition of financial asset set forth in Section 
    8-102 of the 1994 amendments. Subparagraph 2 of Section 9(c), which 
    essentially is the prior OCC choice of law provision, will remain in 
    place to cover situations where the 1977 version of the UCC is 
    applicable.
        OCC Rule 610(g), which involves the use of depository receipts and 
    electronic confirmations in connection with specific or bulk deposits 
    made to OCC in lieu margin payments, no longer requires that in certain 
    circumstances a depository must acknowledge that securities transfers 
    or pledges were effected through book-entry.\6\ This requirement arose 
    because in order to effect a securities pledge and the corresponding 
    perfection of a security interest therein or to deposit securities in 
    favor of OCC, the 1977 version of Article 8 required that the pledgor 
    or depositor ``transfer'' the security to the pledgee (i.e., OCC). In 
    order to effect this transfer, Section 8-313 of the 1977 version of the 
    UCC required an acknowledgement by the securities depository if the 
    securities were delivered by book-entry. Under the 1994 amendments, a 
    transfer pursuant to Section 8-313 is no longer required to effect a 
    securities deposit or pledge.\7\ Under Sections 8-106 and 9-115 of the 
    1994 amendments, a securities deposit or pledge with the corresponding 
    perfection of a security interest therein is effected once the 
    transferee or pledgee (i.e., OCC) obtains control over the securities. 
    Therefore, depository acknowledgement no longer is required in 
    connection with securities deposits or pledges in favor of OCC 
    involving book-entry delivery of securities.
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        \6\ OCC originally proposed to amend Rule 610(g) in a prior 
    proposed rule filing (File No. SR-OCC-95-17). Subsequently, OCC 
    proposed that Rule 610(g) be amended in the proposed rule change 
    associated with this order. Because approval of SR-OCC-95-17 is 
    still pending with the Commission, the amendments to Rule 610(g) are 
    approved pursuant to this order, and OCC will amend SR-OCC-95-17 to 
    reflect that the changes made to this rule have been approved by 
    this order.
        \7\ In fact, the entire concept of a transfer requirement in 
    connection with a securities pledge or deposit previously embodied 
    in Section 8-313 of the 1977 version of the UCC has been removed 
    from the 1994 amendments.
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        Finally, OCC Rule 614(m) concerning OCC's obligations to pledgees 
    under OCC's pledge program is revised to make clear that certain 
    provisions of this rule which relate to the 1977 version of Articles 8 
    and 9 will apply only if the 1977 version of the UCC is otherwise 
    applicable.
    
    II. Discussion
    
        Section 17A(b)(3)(F) of the Act \8\ requires that the rules of a 
    clearing agency be designed to assure the safeguarding of securities 
    and funds which are in the custody or control of the clearing agency or 
    for which it is responsible. The Commission believes the proposed rule 
    change is consistent with OCC's obligations under the Act because it 
    should help to reduce the legal uncertainty associated with the 
    creation of ownership and security interests in options and other 
    securities under Articles 8 and 9 of the UCC. Furthermore, the rule 
    change should help to ensure that OCC's by-laws, rules, and 
    interpretations reflect the concepts embodied in the 1994 amendments.
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        \8\ 15 U.S.C. 78q-1(b)(3)(F) (1988).
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        The evolution of modern securities and futures processing and 
    holding systems have in some respects made obsolete previous versions 
    of the UCC.\9\ In certain instances, application of prior versions of 
    the UCC in the options context has led to some industry confusion and 
    in at least one instance required OCC to file a proposed rule change to 
    assure the proper legal interpretation of certain conflicts of laws 
    issues arising in options transactions.\10\ The provisions of the
    
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    1994 amendments provide a solution to many of these problems.
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        \9\ U.C.C. Article 8 (1994 Revision) prefatory note (1995).
        \10\ Under the pre-1997 UCC, OCC believed that options could be 
    deemed general intangibles which would require the law of the 
    jurisdiction of the debtor's location to govern the creation and 
    perfection of security interests. Under the 1977 amendments to the 
    UCC, options were deemed uncertificated securities in which case the 
    law of the jurisdiction of the issuer's organization would govern. 
    In an attempt to correct the renvoi issue caused by the omission of 
    transitional provisions in the 1977 amendments to the UCC, OCC 
    revised its rules and bylaws to designate Delaware law (OCC's state 
    of incorporation), including its conflict of laws rules, to apply to 
    the creation and perfection of security interests in connection with 
    options transactions to the full extent possible. Securities 
    Exchange Act Release No. 20521 (December 30, 1983), 49 FR 968 [File 
    No. SR-OCC-83-20] (ordering approving proposed rule change).
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        Specifically, the rule change should expedite the eligibility 
    process for OCC clearing members seeking to participate in cross-
    margining by expediting the creation and perfection of security 
    interests associated with such cross-margining.\11\ Although the 
    Commission notes that the 1994 amendments may not apply to options 
    transactions in all circumstances because certain states have yet to 
    adopt these provisions, in situations where the 1994 amendments do 
    apply, the 1994 amendments should provide a safer and more appropriate 
    framework, given the special characteristics of options, for the 
    transferring, pledging, and holding of such securities and for such 
    securities deposited at OCC for margin and clearing fund purposes.
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        \11\ Currently, there is a two to three week delay before OCC 
    members that also are members of the Chicago Mercantile Exchange 
    (``CME'') or the Kansas City Board of Trade (``KCBOT'') (``joint 
    members'') are eligible to participate in the cross-margining 
    arrangements OCC has with CME and KCBOT. Prior to participation in 
    these cross-margining arrangements, OCC requires that security 
    interests be created and perfected in securities held by the joint 
    member prior to such member's eligibility as a cross-margining 
    participant. Under the 1977 version of the UCC, one way to perfect a 
    security interest in securities requires the filing of the 
    appropriate financing statements. Filing of the appropriate 
    financing statements and confirmation thereof typically can take 
    from two to three weeks. However, under the 1994 amendments, OCC 
    believes that financing statements no longer will be necessary for 
    perfection purposes. As a result, joint members can become cross-
    margining participants in a matter of days instead of weeks. 
    Telephone conversation between Michael G. Vitek, Staff Counsel, OCC, 
    and Mark Steffensen, Attorney, Division of Market Regulation, 
    Commission (February 12, 1996).
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    III. Conclusion
    
        On the basis of the foregoing, the Commission finds that the 
    proposal is consistent with the requirements of the Act and in 
    particular with the requirements of section 17A of the Act and the 
    rules and regulations thereunder.
        It is therefore ordered, pursuant to section 19(b)(2) of the Act, 
    that the proposed rule change (File No. SR-OCC-96-01) be, and hereby 
    is, approved.
    
        For the Commission by the Division of Market Regulation, 
    pursuant to delegated authority.\12\
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        \12\ 17 CFR 200.30-3(a)(12) (1995).
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    Jonathan G. Katz,
    Secretary.
    [FR Doc. 96-17634 Filed 7-10-96; 8:45 am]
    BILLING CODE 8010-01-M
    
    
    

Document Information

Published:
07/11/1996
Department:
Securities and Exchange Commission
Entry Type:
Notice
Document Number:
96-17634
Pages:
36599-36601 (3 pages)
Docket Numbers:
Release No. 34-37395, File No. SR-OCC-96-01
PDF File:
96-17634.pdf