ASIC Regulated Foreign Markets Determination 2023/346

The instrument directly affects parties that are subject to the ASIC Derivative Transaction Rules (Reporting) 2022 or 2024 where those Rules rely on the concept of a "Regulated Foreign Market" in subrule 1.2.4(3). The instrument itself does not list who those parties are, but it determines which overseas venues will be treated as Regulated Foreign Markets for the purpose of that subrule (s5(1)-(2)). Therefore:

• Market participants whose reporting status, obligations or exemptions under the 2022 or 2024 Rules turn on whether a transaction is on a "Regulated Foreign Market" will be affected because the instrument alters (or fixes) the list of venues that satisfy that statutory label (s5(3)).

• Entities that operate, clear or route trades through the listed venues will be affected indirectly because the designation may change how Australian reporting law treats derivatives executed on or referencing those venues. The instrument names specific operators (for example, B3, Hong Kong Futures Exchange Limited, The Stock Exchange of Hong Kong Limited, Osaka Exchange, Tokyo Stock Exchange) which identifies the foreign operators whose markets are brought within the definition (s5(3)(a), (l), (z), (u), (ff)).

• Firms and compliance teams that maintain mapping between venue identifiers and Australian reporting classifications will be required to update their mappings to reflect the list in s5(3), and to apply the correct Rule-version timing (s2).

• Parties relying on the prior ASIC Regulated Foreign Markets Determination [OTC DET 13/1145] will be affected by its withdrawal and repeal: the instrument withdraws the prior determination one month after registration (s6(1)) and repeals it to the extent not already repealed one month after registration (s7(1)).

• Users of counterparties and trading venues that fall within the catch-all items, specifically "an SEC Regulated Market" and "a UK Regulated Market" (s5(3)(w), (hh)), must determine, using the US and UK statutory references in s4, whether the particular venue is captured. For example, inclusion via a statutory definition requires an assessment against section 6 of the US Securities Exchange Act of 1934 or sections 285 and 313(1) of the UK Financial Services and Markets Act 2000 (s4).

Who decides: the instrument is made by an ASIC delegate named in the instrument (Benjamin Cohn-Urbach) and is made under the delegated authority identified in s3. The instrument’s determinations create legal status for the purposes of the referenced subrule(s) of the 2022 and 2024 Rules; the contents of those Rules determine the duties and compliance obligations that follow from the designation.

Who pays: the instrument itself does not impose fees or fines, but the practical load falls on regulated entities that must adjust reporting and compliance systems if their obligations under the 2022 or 2024 Rules change because a venue is captured or no longer captured by this list (s5, s6, s7). Those costs are borne by market participants, their compliance teams, and potentially their service providers.

The instrument is a listing instrument; it does not itself impose duties, grant rights, or set penalties. It creates legal effect only by specifying which venues are Regulated Foreign Markets for the purposes of subrule 1.2.4(3) of the 2022 and 2024 Rules (s5(1)-(2)). Accordingly, the key duties and rights that flow from this instrument are indirect and depend entirely on the content of the referenced subrule(s) in the ASIC Derivative Transaction Rules (Reporting). Concrete points visible in the instrument about duties and rights are:

• Designation function (s5). The instrument determines legal classification: firms must treat any of the listed venues in s5(3) as Regulated Foreign Markets when applying subrule 1.2.4(3) to transactions that fall under the 2022 Rules (for the period s5(1) is in force) and under the 2024 Rules (for the period s5(2) is in force). The instrument itself does not articulate what following from that classification is; that is left to the connected Rules.

• Temporal effect on duties (s2, s6, s7). Duties or rights that arise under the 2022 Rules by reference to a Regulated Foreign Market are impacted by the staggered commencement and withdrawal dates. Subsections 5(1) and (3) commence on 21 December 2022 (s2(2)), meaning the designation applies retroactively to that date for the 2022 Rules. Subsection 5(2) (the 2024 Rules designation) commences on 21 October 2024 (s2(3)), meaning duties or rights under the 2024 Rules that rely on the list only begin on that date. The determination that applies under the 2022 Rules is withdrawn and repealed at the start of 21 October 2024 (s6(2), s7(2)), which means the 2022 Rules’ reliance on this list ends at that time. The determination relevant to the 2024 Rules is withdrawn at the start of 1 April 2033 and the instrument is repealed at the same date (s6(3), s7(3)), terminating the list’s legal effect for that Rule by then.

• Reliance on foreign statutory status (s4). Two list items (s5(3)(w) and s5(3)(hh)) rely on foreign statutory classifications. Rights or duties that hinge on whether a venue is an "SEC Regulated Market" or a "UK Regulated Market" will depend on determinations made under the cited foreign statutes (s4). The instrument places the task of ascertaining whether a venue meets those foreign statutory definitions on users of the list.

• Replacement of prior instrument (s6(1), s7(1)). Parties who had rights or obligations deriving from the prior OTC DET 13/1145 must note that it is withdrawn and repealed shortly after registration (one month after registration for withdrawal and repeal respectively), shifting legal effect to this instrument and its dates.

• No new procedural rights (absence). The instrument contains no express procedural rights such as rights of review, consultation, notice to affected parties, or transitional relief. Any such rights would need to be found in the 2022 or 2024 Rules or other legislation; the instrument itself is silent on these points.

In summary, the instrument changes the catalogue of venues that trigger whatever duties and rights subrule 1.2.4(3) creates in the 2022 and 2024 Rules. The specific content of those duties and rights must be established by consulting the relevant Rules; this instrument fixes which venues those provisions will treat as Regulated Foreign Markets during the specified operative periods (s5, s2, s6, s7).

This instrument contains no penalty provisions and no express enforcement mechanisms. It is a declaratory and listing instrument which, by its terms, supplies a list of Regulated Foreign Markets for a named subrule of the ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 (s5(1)-(2)). Therefore:

• The instrument does not itself create fines, civil penalties, criminal offences, infringement notices, or administrative sanctions. No section of the instrument imposes monetary or disciplinary penalties.

• Enforcement consequences arise only to the extent that the underlying 2022 or 2024 Rules impose duties or restrictions that reference the Regulated Foreign Market status. Any penalty or enforcement power will therefore be found in those Rules or in the primary legislation or instruments that empower ASIC and its delegates, which are not set out in the text of this instrument.

• Implementation and compliance enforcement will be effected by the usual regulatory machinery that enforces the ASIC Rules. The instrument records that it was made by an ASIC delegate under specified subrules of those Rules (s3), indicating that enforcement, if any, is tied to the operation and enforcement of the ASIC Derivative Transaction Rules framework rather than to this instrument per se.

• Withdrawal and repeal scheduling (s6, s7) create legal discontinuities that can change enforcement exposure. For example, the designation under the 2022 Rules (s5(1)) is withdrawn and repealed at specified dates (s6(2), s7(2)). Firms that rely on the 2022 Rules’ treatment of a foreign market should therefore be aware of the dates at which the designation ceases to have effect and how that change could affect enforcement of reporting or other obligations under the Rules.

• For markets captured via the SEC or UK statutory references (s4), any questions about whether a foreign market satisfies those statutory tests will be resolved by reference to the foreign statutory regimes identified in s4. The instrument does not provide a process for dispute or certification of that status; such matters would fall to the legal or factual analysis undertaken by reporting entities or by ASIC in the course of enforcement under the connected Rules.

Practically, affected firms should consult the ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 to identify the specific penalty and enforcement mechanisms that apply when a Regulated Foreign Market status affects reporting or other obligations. The instrument on its face is silent on penalties and enforcement beyond the fact of its designation and timing provisions (s5, s2, s6, s7).

The instrument is expressly connected to, and operates within the architecture of, other regulatory instruments and foreign statutes. The interactions set out in the instrument include:

• Reliance on the ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 (s3, s5). The instrument is made under subrules 1.2.4(3) and (5) of both the 2022 and the 2024 Rules (s3). Section 5 makes the listed markets Regulated Foreign Markets "for the purposes of subrule 1.2.4(3)" of each set of Rules (s5(1)-(2)). Therefore the legal effect of this instrument is to modify how those Rules operate by defining which foreign venues count as Regulated Foreign Markets for the relevant subrule.

• Replacement of a prior ASIC determination (s6(1), s7(1)). The instrument withdraws and repeals, to the extent not already repealed, the earlier ASIC Regulated Foreign Markets Determination [OTC DET 13/1145]. That prior instrument therefore is displaced from the date provided in s6(1) and s7(1), and any interaction between the prior instrument and the Rules will be replaced by the interaction between this instrument and the Rules from the relevant commencement and withdrawal dates.

• Cross-reference to foreign statutes (s4). Definitions in s4 link the instrument to foreign legal regimes:

  • "SEC Regulated Market" is defined by reference to registration with the United States Securities and Exchange Commission as a national securities exchange under section 6 of the US Securities Exchange Act of 1934 (s4). Consequently, the instrument’s status for any market captured by s5(3)(w) depends on whether the market is registered under that US statute.
  • "UK Regulated Market" is defined with reference to sections 285 and 313(1) of the UK Financial Services and Markets Act 2000 (s4). That definition includes an exclusion , a UK Regulated Market must be a recognised investment exchange under s285 but not an overseas investment exchange within s313(1). This creates a direct dependency on UK statutory classifications for the purposes of s5(3)(hh).

• Temporal interaction between versions of the Rules (s2, s6, s7). The instrument provides that certain parts commence retrospectively and others in future, and that the two separate determinations under the 2022 and 2024 Rules are withdrawn at different times (s2(2)-(3), s6(2)-(3)). That staging means that entities need to consider which Rule version applies to a given transaction date and whether the list is in force for that Rule at that time. For example, the 2022 Rules designation is backdated to 21 December 2022 (s2(2)) but is withdrawn and repealed at 21 October 2024 (s6(2), s7(2)); the 2024 Rules designation starts on 21 October 2024 (s2(3)) and is withdrawn on 1 April 2033 (s6(3), s7(3)). This staggered schedule creates a period in which either the 2022 Rules or the 2024 Rules determine the applicable designation.

• Interaction by omission (silence). Because the instrument does not itself create reporting obligations, penalties, exemptions, or transitional rules, it interacts with other instruments (including the 2022/2024 Rules and potentially primary legislation empowering ASIC) by supplying only the list that those instruments use. Any operational interactions , such as definitional cross-references, compliance processes, or sanctioning powers , must be determined by consulting the separate instruments and statutes that the instrument references in s3 and s4.

• Replacement and sunset (s7). The scheduled repeal of the instrument at 1 April 2033 (s7(3)) interacts with ongoing regulatory frameworks: after that date the list will cease to have effect unless re-enacted. Firms therefore must monitor the legislative schedule if they rely on the ongoing availability of these designations for compliance purposes.

In short, this instrument is a node in a network of regulatory texts. Its primary interaction is with subrule 1.2.4(3) of the ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 (s3, s5). It also reaches outward by reference to US and UK statutory definitions (s4), and replaces a prior ASIC determination (s6(1), s7(1)).

The instrument itself sets out its own dates of commencement, withdrawal of an earlier instrument, and staged repeal; there is no other text in the source providing prior amendments beyond those dates. The amendment and lifecycle events expressly recorded in the instrument are:

• Registration and authorising signature date. The instrument shows the delegate (Benjamin Cohn-Urbach) and a date of 25 August 2023 at the head of the instrument. That is the date shown in the instrument as the delegate’s signature date.

• Commencement schedule (s2). The instrument makes a three-part commencement arrangement:

  • s2(1): "This instrument (other than section 5) commences on the day after it is registered on the Federal Register of Legislation." This means that everything except s5 took effect immediately after registration, one day later.
  • s2(2): "Subsections 5(1) and (3) commence on 21 December 2022." Those subsections are therefore given retroactive commencement to 21 December 2022.
  • s2(3): "Subsection 5(2) commences on 21 October 2024." That subsection comes into effect on that future date.

• Withdrawal of prior determination (s6(1)). The instrument withdraws ASIC Regulated Foreign Markets Determination [OTC DET 13/1145] "to the extent it is still in force," and the withdrawal occurs at the start of the day one month after registration on the Federal Register of Legislation (s6(1)). Given the signature date of 25 August 2023, the instrument ties the withdrawal to the one-month post-registration timing.

• Withdrawal of new determinations (s6(2)-(3)). The instrument schedules the withdrawal of its own determinations:

  • s6(2): "The determination in subsection 5(1) is withdrawn at the start of 21 October 2024." That ends the 2022 Rules designation on that date.
  • s6(3): "The determination in subsection 5(2) is withdrawn at the start of 1 April 2033." That ends the 2024 Rules designation on that date.

• Repeal dates (s7). Section 7 provides corresponding repeal steps:

  • s7(1): The prior determination [OTC DET 13/1145] is repealed to the extent it has not already been repealed, at the start of the day one month after registration.
  • s7(2): Subsection 5(1) is repealed at the start of 21 October 2024 (same date that subsection is withdrawn under s6(2)).
  • s7(3): The whole instrument is repealed at the start of 1 April 2033 (same date that subsection 5(2) is withdrawn under s6(3)).

• No further amendments recorded. The instrument contains no amendment schedule, no variations to the list over time, and no delegated power to add or remove markets beyond the express dates and withdrawals set out. Any future amendment would require a new legislative instrument.

Notably, the instrument gives subsection 5(1) and 5(3) a retroactive commencement to 21 December 2022 (s2(2)) although the instrument itself is dated and registered in August 2023. The instrument provides explicit withdrawal and repeal dates which create fixed windows of legal effect for the two designations tied to the 2022 and 2024 Rules respectively (s2, s6, s7). The instrument therefore contains its own limited lifecycle and replacement mechanism insofar as it displaces the prior determination and schedules its own demise.

The text of the instrument contains no reference to judicial decisions, litigation, disputes, challenges, or case law. There is no litigation history recorded in the instrument. It does not name any court proceedings, determinations by tribunals, or precedent cases.

Because the instrument is a procedural/designation instrument with a narrow legal function (listing Regulated Foreign Markets for the purposes of subrule 1.2.4(3) of specified ASIC Rules), the text does not report legal challenges or adjudications. Any litigation or dispute that might arise from how the designation is applied in practice , for example, disagreements about whether a particular venue qualifies as an SEC Regulated Market or a UK Regulated Market as defined in s4, or disputes about retrospective effect , is not recorded in the instrument itself. To identify any litigation that touches on these topics, one would need to search court or tribunal records or consider legal proceedings that invoke the 2022 or 2024 Rules; those matters are outside the instrument’s text.

Within the instrument there is also no statutory appeal or review path described. Any remedies, challenges, or judicial review would have to be pursued under the general administrative law and judicial review frameworks applicable to ASIC instruments and decisions, none of which are set out or amended by the text of this instrument.

The instrument contains several drafting and timing features that create compliance traps or at least require careful attention from counsel and compliance teams. These are concrete, text-based "gotchas" drawn from the instrument:

• Retroactive commencement of parts of s5. Subsections 5(1) and 5(3) commence on 21 December 2022 (s2(2)), while the instrument is dated 25 August 2023. This means the 2022 Rules designation is written as having legal effect from 21 December 2022 even though the instrument was registered in August 2023. Entities must therefore consider whether their conduct between 21 December 2022 and registration was affected by a list that was only formalised later (s2(2), s5). The instrument does not include transitional statements or explanations in the text.

• Staggered Rule-version coverage with overlapping dates. The instrument creates distinct legal windows for the 2022 Rules designation (s5(1)) and the 2024 Rules designation (s5(2)):

  • The 2022 Rules designation operates from 21 December 2022 until it is withdrawn and repealed at the start of 21 October 2024 (s2(2), s6(2), s7(2)).
  • The 2024 Rules designation begins on 21 October 2024 (s2(3)) and is withdrawn/repealed at 1 April 2033 (s6(3), s7(3)). This timing means that the status applicable to a transaction depends on both the Rule-version and the date, which can complicate historical reporting, remediation, or audits that cross the 21 October 2024 boundary.

• Reliance on foreign statutory classifications without processes in instrument. Two list entries are defined by reference to foreign statutory treatment (s4). For an entity to determine whether a venue is an "SEC Regulated Market" or a "UK Regulated Market," it must apply foreign statutes (US Securities Exchange Act s6; UK FSMA ss285, 313(1)). The instrument contains no process for certification or dispute resolution about that status. Firms therefore face legal and factual work to verify capture and no defined mechanism in the instrument to obtain an authoritative determination from ASIC about such status.

• Replacement and withdrawal of prior instrument timed to registration, not other dates. The prior determination [OTC DET 13/1145] is withdrawn and repealed one month after registration (s6(1), s7(1)). The exact date depends on the registration date (the instrument records a signature date of 25 August 2023). Parties who relied on the prior determination must check the precise registration date and the one-month window to determine when the old instrument ceased to operate.

• Truncated definition text. The definition of "2022 Rules" includes the phrase "and from." as printed in the instrument (s4). This appears to be an incomplete phrase. Practitioners should note that the instrument as provided contains that text and treat it as a drafting anomaly; however, the operative meaning is that "2022 Rules means the ASIC Derivative Transaction Rules (Reporting) 2022." Any ambiguity arising from the trailing "and from." is present in the instrument text.

• No internal criteria for adding/removing venues. The instrument sets a closed list in s5(3) and contains no delegated power or mechanism for later administrative alteration of the list within the instrument itself. Any future change will require a fresh instrument or amendment. Firms should not assume the list will be changed by administrative notice and must monitor the Federal Register of Legislation for any new instruments.

• Overlap of venue descriptions. The list contains both operator-based descriptions (for example, "the financial market operated by Hong Kong Futures Exchange Limited" (s5(3)(l))) and named-market descriptions (for example, "Tokyo Commodity Exchange" (s5(3)(dd))). Where an exchange group operates multiple markets or has undergone name changes, firms must map the text of s5(3) carefully to their venue identifiers to avoid misclassification.

• Sunset of the instrument. The instrument is entirely repealed at 1 April 2033 (s7(3)). Any reliance on these designations beyond that date will require checking whether the instrument was re-enacted or replaced before repeal.

• No express guidance or rationale in the instrument. The instrument does not include an explanatory memorandum, policy statement, or guidance text. The only content is the list and timing mechanics. That absence means affected entities cannot rely on the instrument to explain policy choices or transitional intentions; they must cross-reference the ASIC Rules and any external guidance issued by ASIC.

These textually evident features mean that affected parties must pay close attention to dates, to how venue names map to legal descriptions, to the foreign-statutory definitions, and to the absence of transitional or dispute-resolution procedures in the instrument.

Compliance with the effect of this instrument is operationally straightforward in concept but requires attention to detail on dates, venue identity and Rule-version applicability. The instrument operates by designating certain overseas markets as Regulated Foreign Markets for subrule 1.2.4(3) of the ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 (s5(1)-(2)). Steps to comply, derived strictly from the instrument text, are:

1. Identify whether you are subject to the 2022 or 2024 Rules and whether subrule 1.2.4(3) of either Rule applies to your reporting or compliance obligations. The instrument ties its designation to subrule 1.2.4(3) of those Rules and does not itself state who must comply beyond that connection (s3, s5).

2. Map venue identifiers in your systems to the list in subsection 5(3). The instrument supplies an explicit list of markets (s5(3)(a)-(hh)). For each venue you trade on, clear, or route through, map your internal market/exchange identifiers to the instrument’s entries. Be careful where the instrument names market operators as "the financial market operated by" an entity (s5(3)(l), (z)) , ensure your mapping recognises market-level distinctions if an operator runs multiple markets.

3. Verify capture under the two foreign-statutory categories:

   • For any venue you contend is covered as an "SEC Regulated Market" under s5(3)(w), confirm whether it is registered with the US SEC as a national securities exchange under section 6 of the US Securities Exchange Act of 1934 (s4).
   • For any venue you contend is covered as a "UK Regulated Market" under s5(3)(hh), confirm whether it is a recognised investment exchange under section 285 of the UK Financial Services and Markets Act 2000 and not an overseas investment exchange under s313(1) of that Act (s4). The instrument gives no internal certification mechanism; factual and legal due diligence is required.

4. Apply the correct temporal regime. Because the instrument staggers commencement and withdrawal:

   • For transactions relevant to the 2022 Rules, apply the designation as operative from 21 December 2022 until 21 October 2024 (s2(2), s6(2), s7(2)).
   • For the 2024 Rules, the designation applies from 21 October 2024 until 1 April 2033 (s2(3), s6(3), s7(3)). Make sure that historical reports and audits crossing these dates are assessed according to the designation that was operative for the date of the transaction.

5. Update reporting and trade classification logic. Where reporting, exemptions, or other compliance processes depend on whether a venue is a Regulated Foreign Market, update software and operational controls to classify trades against the s5(3) list, including the date-based applicability set out above.

6. Address prior-determination changes. If your compliance approach previously relied on ASIC Regulated Foreign Markets Determination [OTC DET 13/1145], note that it is withdrawn and repealed one month after registration (s6(1), s7(1)). Confirm the effective dates of the prior instrument’s withdrawal and repeal to determine whether any legacy reporting requirements have changed.

7. Monitor the Federal Register of Legislation and ASIC guidance. The instrument commences relative to its registration date (s2(1)) and references the Federal Register of Legislation for access (s2(1) note). Watch for registration and publication dates, and for any new legislative instruments that amend or replace this instrument prior to its scheduled repeal.

8. Keep contemporaneous evidence of your analysis. Because the instrument offers no dispute resolution or certification process for ambiguous venue classifications, maintain contemporaneous records showing:

   • how you mapped venue identifiers to the list in s5(3);
   • legal analysis of whether a venue qualifies as an SEC Regulated Market or UK Regulated Market under s4;
   • the dates you applied the classification and the version of the Rules relied upon.

9. Prepare for sunset and transition. The instrument is repealed at 1 April 2033 (s7(3)). Plan for the possibility that the list may be replaced, amended, or not renewed. Ensure change-management processes can respond to any fresh instruments.

10. Seek targeted legal advice where classification is uncertain. If a venue’s status is ambiguous under the instrument’s descriptive language (for example, name variants, multiple markets run by one operator, or foreign statutory edge-cases), obtain a legal opinion and document reasoning. The instrument contains no internal clarification process.

Following these steps will align systems and processes with the listing and timing mechanics set out in the instrument (s5, s2, s6, s7). Because the instrument does not itself state the substantive obligations or penalties that follow from the designation, compliance teams must work in parallel with the relevant ASIC Derivative Transaction Rules (Reporting) 2022 and 2024 to ensure that any duties triggered by the Regulated Foreign Market status are properly met.