In this regard, the inclusion of the regulation by the Italian system has not had a significant impact on the Italian over-the-counter market of bilateral master agreements (compensation agreements) with one of the non-financial and even foreign agreements, such as the European bank, particularly where such an over-the-counter market is governed by the master isDA or gmRA agreement. In particular, the EMIR regulation sets obligations for standardized OVER-the-counter contracts and non-highly atypical contracts, such as the aforementioned framework contracts. In addition, these commitments come into effect when the threshold of 0.2% of the issuer`s share capital or a certain equivalent amount of government bonds is reached, whereas they never apply to primary traders of government bonds, state CDS and market holders (provided that this exemption is previously notified to the competent supervisory authority). The same circular provides for the GMRA and ISDA mentioned above as special conditions of effectiveness in Italy, as master-agreements: Subject to the checks and investigations above, in the absence of a clear and explicit choice of law and jurisdiction in the contract (ISDA and GMRA), the right of the place where the investor (if Italian) is active (Italian law). In addition, the Italian court will have jurisdiction under Italian private international law and the Brussels conventional jurisdiction regime (i.e. the Brussels I regulation, which applies to both ISDA and gmRA conventions). In any event, the parties could choose another law and jurisdiction, subject to the provisions of the 1980 Rome Convention (now absorbed by EU Regulation N. 593/2008 of 17 June 2008). 1.2 Compliance with Italian law of a foreign bank taking into account the ISDA and GMRA agreements In all cases where the choice of another law takes place, ISDA and AMPMRA should meet the requirements of circular 263 of the Bank of Italy of 27 December 2006 („New rules on banking supervision”), which contains certain mandatory provisions. The circular reduces credit risk (CRM), as permitted by the contractual mechanism of ISDA and GMRA and, in general, clearing agreements.
This is due to the inclusion, on 1 January 2008, of the European Directives N. 48/48 and 2006/49 (Capital Requirements Directive – CRD), which constitutes the new prudential rules for banks and banking groups „Basel 2” and is based on three „pillars”. An Italian company is certainly not a bank, but its bodies must respect these rules, because the conclusion of bilateral clearing agreements often concerns a European Bank. A use agreement where the parties can enter into transactions in which a party (a „seller”) agrees to transfer securities or other assets against the transfer of funds by the buyer to the other (a „buyer”), with the buyer`s agreement to transfer those securities to the seller on a date or on demand against the transfer of funds by the seller.