CFTC Unlikely To Close Derivatives Loopholes Used by Wall Street

CFTC Unlikely To Close Derivatives Loopholes Used by Wall Street

The U.S. Commodity Futures Trading Commission (CFTC) is unlikely to close foreign loopholes used by Wall Street to help its offshore clients evade new rules governing swaps and the $640 trillion OTC derivatives market.

CFTC Issues New Swaps Rules

On Nov. 29, the CFTC finalized new rules that bring interest rate and credit default swaps (CDSs) into clearing by derivatives clearing organizations (DCOs).  A week prior, the CFTC issued a common date by which all entities must register as swap dealers. As it stands, an entity must register as a swap dealer within two months of exceeding a notional threshold of $8 billion; now, after a no-action order, all firms that exceed the threshold must be registered by April 10, 2013.

Wall Street Finds Temporary Loophole for CFTC Rules

In response to these recent regulations, and regulation looming on the horizon, Wall Street Banks have begun advising their clients to skirt U.S. rules by redirecting trades through their foreign subsidiaries, according to Reuters.

Specifically, the rules these foreign clients are looking to avoid include higher capital requirements, margin costs, an immediate turn to electronic platforms, and swap reporting.

Yet if routing trades through a foreign subsidiary, for example Goldman Sachs International, based in London, allows for entities to avoid counting swaps toward the $8 billion dollar threshold, it may not be a sustainable solution. Although the CFTC has made it clear that dealing with a foreign affiliate will not count against the threshold, it’s only a matter of time before financial regulation in the U.K. and broader Europe catches up to recent U.S. standards.

It may be unlikely that the CFTC will close the exemption for foreign affiliates. It doesn’t want to step on foreign toes in matters of extraterritoriality; instead, it will likely wait for foreign regulators to catch up.

“Swaps executed offshore by U.S. financial institutions can send risk straight back to our shores,” said CFTC chairman Gary Gensler this summer. “It was true with the London and Cayman Islands affiliates of AIG, Lehman Brothers, Citigroup and Bear Stearns.”

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About The Author


Elan Mendel

Elan Mendel

Elan Mendel is an associate with Shipkevich PLLC, and has done registration, compliance, and enforcement defense work for commodities, futures and forex firms registered with the CFTC and NFA as FCMs, RFEDs, and others. Elan also specializes in domestic and cross-border insolvency issues.

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