A comprehensive and consistent regulatory framework for the US derivatives market is an important objective from public policy, risk mitigation and market liquidity perspectives. However, due to differences in the timing and substance of the rules implemented and/or proposed by the two primary US markets regulators – the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) – this objective is not being achieved.
Policy-makers and market participants have been discussing potential solutions for years, but haven’t settled on a fix that would reduce regulatory and compliance burdens while preserving the authority of the respective agencies. For example, some have suggested that the CFTC and SEC undertake a rule-by-rule gap analysis and harmonization effort. However, such an effort would be costly and likely take years to complete. Others have proposed shifting statutory authority from one agency to the other, but this solution ignores the historic oversight and unique role of each agency (and their Congressional authorizing committees).
This paper suggests a potential solution: a regulatory safe harbor mechanism that would allow firms to rely on their compliance with one commission’s rules to satisfy comparable requirements set by the other commission. This would ensure regulatory oversight over the entire market, while also enabling market participants to reduce the complexity and cost of complying with two similar but not identical regulatory regimes. The commissions could implement such a solution by adopting exemptive orders in line with their respective statutory authorities. This safe harbor mechanism could complement current efforts to achieve harmonization between the commissions’ rule sets and should provide immediate relief to market participants, increasing the number of liquidity providers and, potentially, improving overall market liquidity.
Click on the attached PDF to read a full version of this paper.
Documents (1) for A Regulatory Safe Harbor for Derivatives
Latest
Episode 56: Countdown to Treasury Clearing
With less than nine months to go until the first US Treasury clearing mandates come into force, BlackRock’s Tyler Wellensiek and BNY’s Nate Wuerffel discuss industry progress. Please view this page via Chrome to access the recording.
Response to Eurosystem Consultation on Appia
On April 22, ISDA responded to the Eurosystem consultation on the Appia roadmap. ISDA broadly supports the roadmap and its high level principles, while recommending that the principle on market access and integration should be expanded to explicitly address interoperability...
ISDA Responds to ESMA on PTRR Clearing Exemption
On April 20, ISDA submitted a response to the European Securities and Markets Authority (ESMA) consultation paper on a draft regulatory technical standard (RTS) for the post-trade risk reduction (PTRR) exemption from the derivatives clearing obligation under Article 4b of the...
Response on Competitiveness of EU Banking Sector
On April 17, ISDA responded to the European Commission’s (EC) targeted consultation on the competitiveness of the EU banking sector. The EU is aiming to bolster the ability of its financial markets and banking sector to grow, remain competitive and...
