Notice of Commission Order – Application for Exemptive Relief – GLMX Technologies, LLC

 
On October 6, 2021, the Commission issued an order under s. 15.1 of National Instrument 21-101 Marketplace Operation (NI 21-101), s. 12.1 of National Instrument 23-101 Trading Rules (NI 23-101), and s. 10 of National Instrument 23-103 Electronic Trading and Direct Access to Marketplaces (NI 23-103 and, together with NI 21-101 and NI 23-101, the Marketplace Rules) exempting GLMX from the application of all provisions of the Marketplace Rules in British Columbia, Alberta, Nova Scotia, Ontario and Quebec, subject to terms and conditions as set out in the order (the Order).

The Order is consistent with CSA Staff Notice 21-328 Regulatory Approach to Foreign Marketplaces Trading Fixed Income Securities (CSA SN 21-328){1} that outlines an exemption approach that is based on a substituted compliance model of ATS oversight.

A copy of the Order is published in Chapter 2 of this Bulletin.

The Commission published GLMX's application and draft Order for comment on August 12, 2021 on the OSC website. A comment letter was received from TMX Group Limited which is also available on the OSC website. We summarize below the main comments and Staff's responses.

Comment

The commenter raised concerns about the equivalence of regulatory regimes in the home jurisdiction of a foreign marketplace as well as an absence of reciprocity between Canadian and foreign regulators. The commenter believes this creates an "unlevel playing field" among foreign and domestic marketplaces serving Canadian marketplace participants, as well as a competitive disadvantage for Canadian marketplaces, including TMX Group. The commenter submitted that it is the regulatory authorities who are best placed to assess such equivalence between their own regimes and those of foreign jurisdictions rather than requiring each applicant to establish, on a case-by-case basis, such equivalence. The commenter disagrees with current approaches taken with respect to non-Canadian marketplaces doing business in Ontario as compared to the approach applied to domestic non-Ontario based marketplaces, and that the Commission should apply a mutual reliance model to other Canadian provincial regulators as a result.

Response

As noted in CSA Staff Notice 21-328, Regulatory Approach to Foreign Marketplaces Trading Fixed Income Securities (21-328), we are prepared to exempt a foreign ATS if it is subject to an appropriate regulatory and oversight regime in another jurisdiction by its home regulator, subject to any terms and conditions necessary to protect Canadian investors, and subject to terms and conditions allowing the Commission to have access to information on the operations of the foreign-based ATS and the trading activity of Canadian participants. While the foreign ATS is responsible for describing the regulatory requirements in its home jurisdiction and how it complies, the CSA reviews the foreign ATS's application and determines if it meets the criteria set out in 21-328. This is similar to the approach taken for foreign exchanges seeking exemption from recognition in Ontario and foreign ATSs seeking exemptions from regulatory requirements in Canadian jurisdictions, based on them being subject to a comparable regulatory regime in its home jurisdiction. The concept of reciprocity is not a factor in deciding whether to recognize or exempt a foreign exchange or exempt a foreign ATS from applicable regulatory requirements.

{1} Published on March 5, 2020 and available at https://www.osc.gov.on.ca/en/SecuritiesLaw_csa_20200305_21-328_foreign-marketplaces-trading-fixed-income-securities.htm.