Derivatives, Legislative and Regulatory Weekly Update (October 16, 2026)
Client Alert | October 16, 2026
From the Derivatives Practice Group: This week, the CFTC published a Notice of Proposed Rulemaking that proposes providing additional market clarity by expressly further defining the term “swap” to include event contracts.
New Developments
CFTC Seeks Public Comment on Notice of Proposed Rulemaking Concerning the Inclusion of Certain Event Contracts in the Definition of Swap. On October 9, the CFTC published a Notice of Proposed Rulemaking that proposes providing additional market clarity by expressly further defining the term “swap” to include event contracts, including those based on sports, politics, cultural, and weather-related events. The proposal notes these contracts are financial instruments that are commonly known to the trade as swaps and proposes to resolve any ambiguity regarding these contracts. [NEW]
CFTC Issues Interim Final Rule Excluding Certain Activity from the Definition of Swap. On October 9, the CFTC published an Interim Final Rule (IFR) that codifies the CFTC’s longstanding position that casino-style gambling products, including wagers placed on sportsbooks and casino games, are excluded from the “swap” definition. The IFR will be effective immediately upon publication in the Federal Register and written comments must be received via Regulations.gov within 30 days of the IFR’s publication in the Federal Register. [NEW]
CFTC Issues No-Action Letter for DCMs Regarding Converting Existing Perpetual-Style Broad-Based Security Index Futures into True Perpetual Futures. On October 5, the CFTC’s Division of Market Oversight announced it has issued no-action relief to designated contract markets seeking to convert their existing perpetual style broad-based security index futures contracts into true broad-based security index perpetual futures.
CFTC Seeks Public Comment on Advanced Notice of Proposed Rulemaking Relating to Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets. On October 5, the CFTC published an Advanced Notice of Proposed Rulemaking (ANPRM) to provide notice of, and seek public comment regarding, its intent to establish a comprehensive regulatory framework comprised of fit-for-purpose rules concerning section 2(c)(2)(D) of the Commodity Exchange Act and retail commodity transactions described thereunder involving crypto assets (such transactions, CTXs). Among other topics, the ANPRM solicits comment on the manners in which the Commission can: (i) prevent abusive practices in crypto asset markets and CTXs under a uniform national regime; (ii) provide market participants with crypto asset-specific contextual information concerning certain requirements and practices that are commonly accepted in the industry and have been found, based on the Commission’s experience in overseeing aspects of crypto asset markets since 2014, to represent industry best practices for compliance with the regulatory requirements that attach to CTXs; and (iii) codify through rulemaking a subcategory of designated contract market registration, known as a crypto asset market, that is purpose-built specifically for CTXs.
CFTC Staff Extends Brexit-Related No-Action Positions. On October 2, the CFTC’s Market Participants Division and Division of Market Oversight announced they are extending temporary no-action positions in connection with the withdrawal of the United Kingdom from the European Union, known as Brexit. Letter No. 26-28 extends positions previously announced in CFTC Staff Letter No. 24-11, as amended by CFTC Staff Letter No. 26-10. It seeks to maintain the regulatory certainty established when the CFTC originally acted to issue EU comparability determinations and exemptive orders for certain EU entities.
New Developments Outside the U.S.
ESMA Finalizes the Review of Guidelines on the Delay in Disclosure of Inside Information. On October 16, ESMA updated and streamlined its Market Abuse Regulation guidelines on the delay in the disclosure of inside information, completing the revised regulatory framework. According to ESMA, these guidelines help issuers in their decision to delay disclosure by providing a non-exhaustive list of legitimate interests that could justify such delay. [NEW]
ESMA Updates Manual on Transparency with New Guidance. On October 15, ESMA updated its manual on transparency to provide further guidance on the identification of over-the-counter (OTC) derivatives subject to transparency requirements and to enhance supervisory convergence on the application of the tick-size regime. The update also clarifies how the identifying reference data for OTC derivatives should be provided for transparency purposes, supporting greater consistency in the data reported to and published through the consolidated tape. [NEW]
ESMA’s Third Sanctions Report Highlights the Need for Greater Convergence in Enforcement. On October 15, ESMA published its consolidated report on sanctions and measures imposed across the European Economic Area (EEA) in 2025. According to ESMA, the report highlights significant differences in enforcement, including in the number and type of sanctions imposed, the level of fines and the use of settlement procedures. ESMA states that the findings point to a need for stronger convergence in enforcement, particularly where limited enforcement activity cannot be explained by market size. [NEW]
ESMA Analysis Shows Continued Growth in Cross-border Investment Services. On October 14, ESMA completed its annual analysis of the cross-border provision of investment services, together with national competent authorities. The exercise collected data from investment firms across 30 jurisdictions in the EU/EEA and found that cross-border investment activity continued to grow significantly in 2025. [NEW]
ESMA Sets Out 2026 ECEP. On October 13, ESMA outlined the European Common Enforcement Priorities (ECEP) for the 2026 annual financial reports of listed issuers. The priorities identify the following areas of focus for issuers when preparing their annual financial reports: IFRS financial statements, sustainability statements under the European Sustainability Reporting Standards (ESRS), and European Single Electronic Format digital reporting. [NEW]
ESMA Promotes Clarity in Claims on Impact and Transition. On October 12, ESMA published two additional thematic notes on sustainability-related claims. The first note examines positive impact claims made through funds and bonds. Focusing on climate transition claims, the second note draws on observed market practices across funds, bonds and benchmarks. [NEW]
ESMA Appoints Carlos San Basilio as the New Member of its Management Board. On October 9, ESMA announced that it has appointed Carlos San Basilio of Comisión Nacional del Mercado de Valores as the new member of its Management Board. Mr San Basilio will be replacing Carlo Comporti of Commissione Nazionale per le Società e la Borsa, who will be stepping down from his position as a member of the Board to assume his new role as Chair of ESMA, effective November 1, 2026.
ESMA Seeks Evidence on the use of Tokenized Collateral in Central Clearing. On October 9, ESMA launched a Call for Evidence on the potential use of tokenized collateral by central counterparties. ESMA is inviting all interested stakeholders to submit their contributions by January 15, 2027. The Call for Evidence focuses on how tokenization may affect the transfer, management, protection and use of collateral throughout its lifecycle.
New Industry-Led Developments
Global Standard-setting Bodies Publish Final Report on Guidance for FMIs on General Business Risk and General Business Losses. On October 14, the Bank of International Settlements, Committee on Payments and Market Infrastructures, and IOSCO published a final report on financial market infrastructures’ management of general business risks and general business losses. [NEW]
ISDA Publishes Research on Assessing Tokenized Money Market Funds as Eligible Collateral Under the ISDA CSA. On October 6, ISDA published research to further facilitate the potential use of tokenized money market funds (TMMFs) in collateral arrangements by: (i) raising awareness of the particular issues that may need to be considered when taking or posting shares in TMMFs as collateral (depending on the structure of those TMMFs); (ii) highlighting which of those issues could potentially be dealt with through standardization, including potential amendments to, or supplements of, standard-form ISDA documentation; and (iii) otherwise outlining practical approaches that market participants may use to address party-specific considerations arising from the particular operational or legal features of tokenized assets.
IOSCO Launches 10th Edition of World Investor Week. On October 5, IOSCO announced that World Investor Week officially began across participating jurisdictions around the world, marking the 10th edition of IOSCO’s global campaign dedicated to investor education, investor protection, and financial literacy.
ISDA Responds to EC JRC Survey on Carbon Accounting. On October 5, ISDA responded to the Joint Research Centre (JRC) of the European Commission (EC) survey, drawing on input from five member firms across the banking, exchange and market-data sectors. The response highlighted broad support for internationally recognized carbon accounting frameworks, particularly the Greenhouse Gas Protocol and International Organization for Standardization standards. Respondents reported ongoing efforts to simplify reporting through harmonized internal processes, digital tools and ‘one-to-many’ reporting models that enable a single dataset to support multiple reporting obligations.
The following Gibson Dunn attorneys assisted in preparing this update: Jeffrey Steiner, Adam Lapidus, Hayden McGovern, Karin Thrasher Barry, and Alice Wang.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Derivatives practice group, or the following practice leaders and authors:
Jeffrey L. Steiner, Washington, D.C. (202.887.3632, jsteiner@gibsondunn.com)
Michael D. Bopp, Washington, D.C. (202.955.8256, mbopp@gibsondunn.com)
Michelle M. Kirschner, London (+44 (0)20 7071.4212, mkirschner@gibsondunn.com)
Darius Mehraban, New York (212.351.2428, dmehraban@gibsondunn.com)
Jason J. Cabral, New York (212.351.6267, jcabral@gibsondunn.com)
Adam Lapidus, New York (212.351.3869, alapidus@gibsondunn.com )
Stephanie L. Brooker, Washington, D.C. (202.887.3502, sbrooker@gibsondunn.com)
William R. Hallatt, Hong Kong (+852 2214 3836, whallatt@gibsondunn.com )
David P. Burns, Washington, D.C. (202.887.3786, dburns@gibsondunn.com)
Marc Aaron Takagaki, New York (212.351.4028, mtakagaki@gibsondunn.com)
Hayden K. McGovern, Dallas (202.887.3569, hmcgovern@gibsondunn.com)
Karin Thrasher Barry, Washington, D.C. (202.887.3712, kthrasher@gibsondunn.com)
Alice Yiqian Wang, Washington, D.C. (202.777.9587, awang@gibsondunn.com)
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