U.S. SEC Proposes Rules For Cross-Border Swap Trades. By Sarah N. Lynch
Daily News (White Plains, NY)
May 02, 2013
http://www.garp.org/risk-news-and-resources/risk-headlines/story.aspx?newsid=61783
Excerpts:
The top U.S. securities regulator unveiled a proposal on Wednesday [May 1] that spells out how its rules for swaps will apply to foreign banks, saying it hoped its proposal can resolve a brewing global conflict over how to regulate the $640 trillion market.
[...]
"This is particularly important because the global nature of this market means that participants may be subject to requirements in multiple countries," SEC Chair Mary Jo White said.
The SEC and another regulator, the Commodity Futures Trading Commission, won broad new powers in the 2010 Dodd-Frank Wall Street reform law to police the $640 trillion derivatives market, which was then largely unregulated. But Europeans and the CFTC have butted heads over the issue of how the U.S. rules should apply abroad for the past year, with CFTC Chairman Gary Gensler blamed for his aggressive stance in how he wants to apply the rules abroad.
European regulators have countered that the CFTC's approach, which was first proposed last summer, could create duplicative regimes, and have urged the United States to let them regulate the banks on their own turf.
"This type of overlapping regulatory oversight could lead to conflicting or costly duplicative regulatory requirements. Market participants need to know which rules to follow - and I believe that this proposal will serve as the road map," said Ms. White, who was just sworn in as SEC chair last month.
[...]
The CFTC late last year granted broad exemptions that vastly scaled back the cross-border reach of its proposal, but these expire in the middle of July, and it has given no clues as to whether its final draft will be equally loose. The SEC's proposal on Wednesday reflects a less aggressive approach than what the CFTC had initially proposed, and are more aligned with the CFTC's less stringent, time- limited exemptions that are currently in place.
"The proposed rules approved today by the SEC provide yet another example of the significant difference in approach taken by each of the SEC and the CFTC," said Michael O'Brien, a partner at Winston & Strawn.
Others said that the two sets of rules ultimately might not come out all that differently, and that the SEC's more accommodating stance towards foreign regulators by no means meant it would be easier on the industry.
"The detail of the rules implies that it is by no means going to be a free pass," said Gareth Old, a lawyer at Clifford Chance in New York. "The (SEC) is going to scrutinize both non-U.S. regulations and also conduct by market participants in terms of how they use those regulations probably just as carefully as the CFTC."
[...]
Still, a few SEC commissioners on Wednesday flagged a variety of reservations with the plan. Commissioner Luis Aguilar, a Democrat, said he had concerns that the SEC's plan exempts foreign subsidiaries of U.S. firms from being dubbed "U.S. persons" - a category that subjects firms to certain SEC regulations.
"The proposed rules seem to assume that any failure by these foreign subsidiaries would not financially affect the U.S. parents," he said. "However, even without a legal obligation, a U.S parent company will likely step in to save its financially troubled subsidiaries ... The proposed rules do not appear to address fully these contagion and spillover risks."
Commissioner Troy Paredes, a Republican, raised completely opposite concerns, saying he has fears that trades cutting across international boundaries could still too often be captured by the SEC's rules.
The crisis is Cyprus is still unfolding and the
final resolution might still have some way to go, but the events in
Nicosia and Brussels already offer some first lessons. And these lessons
look certainly familiar to those who have studied previous crises.
Bets are that Cyprus will not be the Troika’s last patient, with one
South European finance minister already dreading the moment where he might be in a situation like his Cypriot colleague.
Even more important, thus to analyze the on-going Cyprus crisis
resolution for insights into where the resolution of the Eurozone crisis
might be headed and what needs to be done.
1. A deposit insurance scheme is only as good as the sovereign backing it
One of the main objectives of deposit insurance is to prevent bank
runs. That was also the idea behind the increase of deposit insurance
limits across the Eurozone to 100,000 Euro after the Global Financial
Crisis. However, deposit insurance is typically designed for
idiosyncratic bank failures, not for systemic crises. In the latter
case, it is important that public back stop funding is available.
Obviously, the credibility of the latter depends on a solvent sovereign.
As Cyprus has shown, if the solvency of the sovereign is itself in
question, this will undermine the confidence of depositors in a deposit
insurance scheme. In the case of Cyprus, this confidence has been
further undermined by the initial idea of imposing a tax on insured
deposits, effectively an insurance co-payment, contradicting maybe not
in legal terms but definitely in spirit the promise of deposit insurance
of up to 100,000 Euros. The confidence that has been destroyed with the
protracted resolution process and the back-and-forth over loss
distribution will be hard to re-establish. A banking system without the
necessary trust, in turn, will be hard pressed to fulfill its basic
functions of facilitating payment services and intermediating savings.
Ultimately, this lack of confidence can only be overcome by a Eurozone
wide deposit insurance scheme with public back-stop funding by ESM and a
regulatory and supervisory framework that depositors can trust.
2. A large financial system is not necessarily growth enhancing
An extensive literature has documented the positive relationship
between financial deepening and economic growth, even though the recent
crisis has shed doubts on this relationship (Levine, 2005, Beck, 2012).
However, both theoretical and empirical literature focus on the
intermediation function of the financial system, not on the size of the
financial system per se. Very different from this financial facilitator view is the financial center view, which
sees the financial sector as an export sector, i.e. one that seeks to
build a nationally centered financial center stronghold based on
relative comparative advantages such as skill base, favorable regulatory
and tax policies, (financial safety net) subsidies, etc. Economic
benefits of such a financial center might also include important
spin-offs coming from professional services (legal, accounting,
consulting, etc.) that tend to cluster around the financial sector.
In recent work with Hans Degryse and Christiane Kneer (2013) and
using pre-2007 data, we have shown that a large financial system might
stimulate growth in the short-term, but comes at the expense of higher
volatility. It is the financial intermediation function of finance that
helps improve growth prospects not a large financial center, a lesson
that Cyprus could have learned from Iceland.
3. Crisis resolution as political distribution fight
Resolution processes are basically distributional fights about who
has to bear losses. The week-long negotiations about loss allocation
in Cyprus are telling in this respect. While it was initially Eurozone
authorities that were blamed for imposing losses on insured depositors,
there is an increasingly clear picture that it was maybe the Cypriot
government itself that pushed for such a solution in order to avoid
imposing losses on large, (and thus most likely) richer and more
connected depositors.
While the Cypriot case might be the most egregious recent example for
the entanglement of politics and crisis resolution, the recent crises
offer ample examples of how politically sensitive the financial system
is. Just two more examples here: First, even during and after the
Global Financial Crisis of 2008 and 2009, there was still open political
pressure across Europe to maintain or build up national champions in
the respective banking systems, even at the risk of creating more
too-big-to-fail banks. Second, the push by the German government to
exempt German small savings and cooperative banks from ECB supervision
and thus the banking union can be explained only on political basis and
not with economic terms, as the "too-many-to-fail" is as serious as the
"too-big-to-fail" problem.
4. Plus ca change, plus c'est la meme chose
European authorities and many observers have pointed to the special
character of each of the patients of the Eurozone crisis and their
special circumstances. Ireland and Spain suffered from housing booms and
subsequent busts, Portugal from high current account deficits stemming
from lack of competitiveness and mis-allocation of capital inflows,
Greece from high government deficit and debt and now Cyprus from an
oversized banking system. So, seemingly different causes, which call for
different solutions!
But there is one common thread across all crisis countries, and that
is the close ties between government and bank solvency. In the case of
Ireland, this tie was established when the ECB pushed the Irish
authorities to assume the liabilities of several failed Irish banks. In
the case of Greece, it was the other way around, with Greek banks having
to be recapitalized once sovereign debt was restructured. In all
crisis countries, this link is deepened as their economies go into
recession, worsening government’s fiscal balance, thus increasing
sovereign risk, which in turn puts balance sheets of banks under
pressure that hold these bonds but also depend on the same government
for possible recapitalization. This tie is exacerbated by the tendency
of banks to invest heavily in their home country’s sovereign bonds, a
tendency even stronger in the Eurozone’s periphery (Acharya, Drechsler and Schnabl, 2012).
Zero capital requirements for government bond holdings under the Basel
regime, based on the illusion that such bonds in OECD countries are safe
from default, have not helped either.
5. If you kick the can down the road, you will run out of road eventually
The multiple rounds of support packages for Greece by Troika, built
on assumptions and data, often outdated by the time agreements were
signed, has clearly shown that you can delay the day of reckoning only
so long. By kicking the can down the road, however, you risk
deteriorating the situation even further. In the case of Greece that led
eventually to restructuring of sovereign debt. Delaying crisis
resolution of Cyprus for months if not years has most likely also
increased losses in the banking system. A lesson familiar from many
emerging market crises (World Bank. 2001)!
On a first look, the Troika seemed eager to avoid this mistake in the
case of Cyprus, forcing recognition and allocation of losses in the
banking system early on without overburdening the sovereign debt
position. However, the recession if not depression that is sure to
follow in the next few years in Cyprus will certainly increase the
already high debt-to-GDP ratio and might ultimately lead to the need for
sovereign debt restructuring.
6. The Eurozone crisis — a tragedy of commons
The protracted resolution process of Cyprus has shown yet again, that
in addition to a banking, sovereign, macroeconomic and currency crisis,
the Eurozone faces a governance crisis. Decisions are taken jointly by
national authorities who each represent the interest of their respective
country (and taxpayers), without taking into account the externalities
of national decisions arising on the Eurozone level. It is in the
interest of every member government with fragile banks to "share the
burden" with the other members, be it through the ECB’s liquidity
support or the Target 2 payment system. Rather than coming up with
crisis resolution on the political level, the ECB and the Eurosystem are
being used to apply short-term (liquidity) palliatives that deepen
distributional problems and make the crisis resolution more difficult.
What is ultimately missing is a democratically legitimized authority
that represents Eurozone interests.
7. Learning from the Vikings
In 2008, Iceland took a very different approach from the Eurozone
when faced with the failure of their oversized banking system. It
allowed its banks to fail, transferred domestic deposits into good banks
and left foreign deposits and other claims and bad assets in the
original banks, to be resolved over time. While the banking crisis and
its resolution has been a traumatic experience for the Icelandic economy
and society, with repercussions even for diplomatic relations between
Iceland and several European countries, it avoided a loss and thus
insolvency transfer from the banking sector to the sovereign. Iceland's
government has kept its investment rating throughout the crisis. And
while mistakes might have been made in the resolution process (Danielsson, 2011),
Iceland’s banking sector does not drag down Iceland’s growth any longer
and might eventually even make a positive contribution.
The resolution approach in Cyprus seems to follow the Icelandic
approach. While the Cypriot case might be a special one (as part of the
losses fall outside the Eurozone and Cypriot banks are less connected
with the rest of the Eurozone than previous crisis cases), there are
suggestions that future resolution cases might impose losses not just on
junior and maybe senior creditors of banks, but even on depositors to
thus reduce pressure on government’s balance sheets. A move towards
market discipline, for certain; whether this is due to learning from
experience, tighter government budgets across Europe or for political
reasons remains to be seen.
8. Banking union with just supervision does not work
The move towards a Single Supervisory Mechanism has been hailed as
major progress towards a banking union and stronger currency union. As
the case of Cyprus shows, this is certainly not enough. The holes in
the balance sheets of Cypriot banks became obvious in 2011 when Greek
sovereign debt was restructured, but given political circumstances, the
absence of a bank resolution framework in Cyprus and — most importantly —
the absence of resources to undertake such a restructuring, the
problems have not been addressed until now. Even once the ECB has
supervisory power over the Eurozone banking system, without a
Eurozone-wide resolution authority with the necessary powers and
resources, it will find itself forced to inject more and more liquidity
and keep the zombies alive, if national authorities are unwilling to
resolve a failing bank.
9. A banking union is needed for the Eurozone, but won't help for the current crisis!
While the Eurozone will not be sustainable as currency union without a
banking union, a banking union cannot help solve the current crisis.
First, building up the necessary structures for a Eurozone or European
regulatory and bank resolution framework cannot be done overnight, while
the crisis needs immediate attention. Second, the current discussion on
banking union is overshadowed by distributional discussions, as the
bank fragility is heavily concentrated in the peripheral countries, and
using a Eurozone-wide deposit insurance and supervision mechanism to
solve legacy problems is like introducing insurance after the insurance
case has occurred. The current crisis has to be solved before banking
union is in place. Ideally, this would be done through the establishment
of an asset management company or European Recapitalization Agency,
which would sort out fragile bank across Europe, and also be able to
take an equity stake in restructured banks to thus benefit from possible
upsides (Beck, Gros and Schoenmaker, 2012).
This would help disentangle government and bank ties, discussed above,
and might make for a more expedient and less politicized resolution
process than if done on the national level.
10. A currency union with capital controls?
The protracted resolution process of the Cypriot banking crisis has
increased the likelihood of a systemic bank run in Cyprus once the banks
open, though even if the current solution would have been arrived at in
the first attempt, little confidence in Cypriot banks might have been
left. As in other crises (Argentina and Iceland) that perspective has
led authorities to impose capital controls, an unprecedented step within
the Eurozone. Effectively, however, this implies that a Cypriot Euro is
not the same as a German or Dutch Euro, as they cannot be freely
exchanged via the banking system, thus a contradiction to the idea of a
common currency (Wolff, 2013).
However, these controls only formalize and legalize what has been
developing over the past few years: a rapidly disintegrating Eurozone
capital market. National supervisors increasingly focus on safeguarding
their home financial system, trying to keep capital and liquidity
within their home country (Gros, 2012). Anecdotal evidence suggests
that this does not only affect the inter-bank market but even
intra-group transaction between, let’s say, Italian parent banks and
their Austrian and German subsidiaries. Another example of the tragedy
of commons, discussed above.
11. Finally, there is no free lunch
This might sound like a broken disk, but the Global Financial Crisis
and subsequent Eurozone crisis has offered multiple incidences to remind
us that you cannot have the cake and eat it. This applies as much to
Dutch savers attracted by high interests in Icesave and then
disappointed by the failure of Iceland to assume the obligations of its
banks as to Cypriot banks piling up on Greek government bonds promising
high returns even in 2010 when it had become all but obvious that Greece
would require sovereign debt restructuring. On a broader level, the
idea that a joint currency only brings advantages for everyone involved,
but no additional responsibilities in term of reduced sovereignty and
burden-sharing and insurance arrangements also resembles the free lunch
idea.
On a positive note, the Cyprus bail-out has shown that Eurozone
authorities have learnt from previous failures by forcing an early
recognition of losses in Cyprus and by moving towards a banking union,
even if very slowly. As discussed above, however, there are still
considerable political constraints and barriers to overcome, so that it
is ultimately left to each observer to decide whether the glass is half
full or half empty.
References:
Acharya, Viral, Itamar Drechsler and Philipp Schnabl. 2012. A tale of two overhangs: the nexus of financial sector and sovereign credit risks. Vox 15 April 2012
Beck, Thorsten. 2012. Finance and growth: lessons from the literature and the recent crisis. Paper prepared for the LSE growth commission.
Beck, Thorsten, Hans Degryse and Christiane Kneer. 2012. Is more finance better?
Disentangling intermediation and size effects of financial systems. Journal of Financial Stability, forthcoming.
Beck, Thorsten, Daniel Gros, Dirk Schoenmaker (2012): Banking union instead of Eurobonds — disentangling sovereign and banking crises, Vox 24 June 2012.
Danielsson, Jon. 2011. How not to resolve a banking crisis: Learning from Iceland’s mistakes Vox, 26 November 2011
Gros. Daniel. 2012. The Single European Market in Banking in decline — ECB to the rescue? Vox , 16 Ocotber 2012
Levine, Ross. 2005. Finance and growth: theory and evidence. In Handbook of Economic
Growth, ed. Philippe Aghion and Steven N. Durlauf, 865–934. Amsterdam: Elsevier.
Wolff, Guntram. 2013. Capital controls are a grave risk to the eurozone. Financial Times 26 March 2013.
World Bank. 2001. Finance For Growth: Policy Choices in a Volatile World. Policy Research Report
Full article:
http://blogs.worldbank.org/allaboutfinance/cyprus-some-early-lessons
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