By George Bollenbacher, Capital Markets Advisors
Originally published on TABB Forum
Global regulators have missed a golden opportunity to shed light on the opaque swaps market. The SEC, seeking to rectify this, recently issued two final swaps reporting rules and one proposed rule. But the final requirements remain muddy.
The all-important swaps reporting requirement has been badly mishandled by regulators worldwide, missing a golden opportunity to shed some light on this otherwise opaque market. In the US, one of the nagging problems has been that the SEC hadn’t put out its reporting rules, so there was no required reporting on one of the riskiest areas of the market – single-name CDSs.
Recently, though, the SEC took a major step in rectifying this, by issuing some proposed and final rules. So how well did they do? Let’s take a look.
First Things First
Actually, the SEC issued three rules – two final and one proposed – which means that we will have to patch them together to get as complete a picture as we can. The final reporting rule is: Regulation SBSR-Reporting and Dissemination of Security-Based Swap Information. There is also a proposed rule with an identical name, indicating that it will be combined with the final reporting rule at some point. I will cover both of them in this article. I will cover the SDR rule, Security-Based Swap Data Repository Registration, Duties, and Core Principles, in a later article.
Including their preambles, these three rules comprise more than 1,350 double-spaced pages. My practice has always been to go right to the rule text, since that is what everyone will be bound by, and then read any sections of the preambles that provide necessary clarifications. The rules themselves comprise 92 pages, a significantly more manageable reading assignment. I’ll cover only the unexpected or potentially troublesome aspects, but people should read all 92 pages.
In the SEC rulebook, the reporting rules are §§242.900-242.909. Specifically:
242.901 Reporting obligations.
242.902 Public dissemination of transaction reports.
242.903 Coded information.
242.904 Operating hours of registered security-based swap data repositories.
242.905 Correction of errors in security-based swap information.
242.906 Other duties of participants.
242.907 Policies and procedures of registered security-based swap data repositories.
242.908 Cross-border matters.
242.909 Registration of security-based swap data repository as a securities information processor.
There are a few oddities among the definitions, each perhaps a warning about other oddities later on. One is:
“Trader ID means the [Unique Identification Code] UIC assigned to a natural person who executes one or more security-based swaps on behalf of a direct counterparty.”
So that seems to be leading to a requirement to identify the person who executed the trade. Unless, of course, the trade was executed by a computer. Do we use HAL’s UIC then?
There is also this:
“Trading desk ID means the UIC assigned to the trading desk of a participant,” and, “Trading desk means, with respect to a counterparty, the smallest discrete unit of organization of the participant that purchases or sells security-based swaps for the account of the participant or an affiliate thereof.”
So will we be identifying both the desk and the trader who did every trade? That’s not required anywhere else, and certainly looks like overkill.
Under the reporting obligations, we find another oddity:
(a) Assigning reporting duties. A security-based swap, including a security-based swap that results from the allocation, termination, novation, or assignment of another security-based swap, shall be reported as follows:
It looks like we are missing an important section. Sure enough, we find it in the proposed rule:
(1) Platform-executed security-based swaps that will be submitted to clearing. If a security-based swap is executed on a platform and will be submitted to clearing, the platform on which the transaction was executed shall report to a registered security-based swap data repository the information required.(emphasis added)
And one more item in the proposed rule:
(i) Clearing transactions. For a clearing transaction, the reporting side is the registered clearing agency.
I think that means that the SEF reports the original trade, and the DCO immediately reports the cleared trade.
What about life cycle events for cleared swaps? Here, the final rule says:
(i) Generally. A life cycle event, and any adjustment due to a life cycle event, that results in a change to information previously reported … shall be reported by the reporting side, except that the reporting side shall not report whether or not a security-based swap has been accepted for clearing.
Back to the proposed rule:
(ii) Acceptance for clearing. A registered clearing agency shall report whether or not it has accepted a security-based swap for clearing.
So if the reporting side of the original trade is the SEF, and the DCO reports that it accepted the trade for clearing, does the DCO report the life cycle events of cleared swaps? That should be the case, but the rules are a bit confusing about that.
What Transactions Must Be Reported?
This is obviously a crucial question, and the final rule says:
(1) A security-based swap shall be subject to regulatory reporting and public dissemination if:
(i) There is a direct or indirect counterparty that is a U.S. person on either or both sides of the transaction; or
(ii) The security-based swap is accepted for clearing by a clearing agency having its principal place of business in the United States. (emphasis added)
And an indirect counterparty is defined as:
Indirect counterparty means a guarantor of a direct counterparty’s performance of any obligation under a security-based swap such that the direct counterparty on the other side can exercise rights of recourse against the indirect counterparty in connection with the security-based swap; for these purposes a direct counterparty has rights of recourse against a guarantor on the other side if the direct counterparty has a conditional or unconditional legally enforceable right, in whole or in part, to receive payments from, or otherwise collect from, the guarantor in connection with the security-based swap.
So a swap done between, for example, an EU dealer and a guaranteed EU subsidiary of a US corporation is reportable in the US, as well as by both parties in Europe. How fun! And who reports in the US? Back to §242.901.
In addition, the final rule requires reporting of all swaps in existence on the rule’s effective date (called backloading) and, although there is a phase-in for the rule as a whole, there doesn’t appear to be a phase-in period for backloading.
What Data Must Be Reported?
Here, in addition to the usual transaction material, the final rule requires:
(2) As applicable, the branch ID, broker ID, execution agent ID, trader ID, and trading desk ID of the direct counterparty on the reporting side;
Since only one side is reporting under the SEC rule, in dealer-to-dealer trades this appears to mean that the reporting dealer must supply all of this information, but not the non-reporting dealer. What that accomplishes, I’m not sure.
There’s one other data requirement in this section:
(5) To the extent not provided pursuant to paragraph (c) or other provisions of this paragraph (d), any additional data elements included in the agreement between the counterparties that are necessary for a person to determine the market value of the transaction;
Thus it appears that the reporting party must determine what data is necessary for an outside entity to price the transaction, and include that if it’s not already delineated.
This section requires immediate public availability of the usual information (i.e., no identification of the parties) with this exception:
(3) Any information regarding a security-based swap reported pursuant to § 242.901(i);
And 242.901(i), in the proposed rule, says:
(i) Clearing transactions. For a clearing transaction, the reporting side is the registered clearing agency that is a counterparty to the transaction.
Does this mean that cleared trades are reported but aren’t publicly available? If so, what is the logic for that? If not, what does it mean? Beats me.
There is a significant section in the final rule called § 240.901A, covering reports the Commission is expecting from the staff “regarding the establishment of block thresholds and reporting delays.” The Commission will use these reports to determine “(i) … what constitutes a large notional security-based swap transaction (block trade) for particular markets and contracts; and (ii) the appropriate time delay for reporting large notional security-based swap transactions (block trades) to the public.” One of the considerations the rule highlights is “potential relationships between observed reporting delays and the incidence and cost of hedging large trades in the security-based swap market, and whether these relationships differ for interdealer trades and dealer to customer trades.” So block sizes and block reporting delays haven’t been decided yet.
Finally, the final rule defers the compliance dates to the proposed rule, and although the rule itself doesn’t say, the preamble lists two phases:
Compliance Date 1 – Proposed Compliance Date 1 relates to the regulatory reporting of newly executed security-based swaps as well pre-enactment and transitional security-based swaps. On the date six months after the first registered SDR that accepts reports of security-based swaps in a particular asset class commences operations as a registered SDR, persons with a duty to report security-basedswaps under Regulation SBSR would be required to report all newly executed security-based swaps…Registered SDRs would not be required to publicly disseminate any transaction reports until Compliance Date 2.
Compliance Date 2 – Within nine months after the first registered SDR … commences operations … (i.e., three months after Compliance Date 1), each registered SDR in that asset class …would be required to comply with Rules 902 (regarding public dissemination), 904(d) (requiring dissemination of transaction reports held in queue during normal or special closing hours), and 905 (with respect to public dissemination of corrected transaction reports) for all security-based swaps in that asset class—except for “covered cross-border transactions.
So six months from sometime for reporting, and nine months for public disclosure.
Given the long delay between the CFTC’s reporting rules and these, we might expect that there would have been considerable communication between the agencies, and there might have been. It does appear that the CFTC is totally re-examining its reporting rules, and that might be a good thing. Meanwhile, as firms get ready to report SEC-regulated swaps, the situation still looks pretty muddy. It might get better, but I’m not very optimistic about that.
Imagine you had the last five years of derivatives market reform on DVR. If you could fast-forward past the requests for public comment, rule delays and angst, would you have guessed that we’d be where we are today?
Future-casting the outcome of financial markets reform is not for the faint of heart. But it is an art in which Kevin McPartland has had some success over the last several years. As a principal, overseeing market structure and technology for Greenwich Associates, McPartland is responsible for helping the world’s leading financial firms decode nascent trends and interpret emerging intelligence to make strategic decisions.
McPartland also holds the distinction of authoring the most-read blog post in DerivAlert history. His SEF 101: Deconstructing the Swap Execution Facility, written in 2010 when McPartland was a senior analyst at Tabb Group, was a seminal piece on the topic long before most market participants had ever heard of a swap execution facility (SEF). Now that we’ve all become familiar with SEFs, we thought it would be a good time to check back in with McPartland to see what he thinks the next few years of derivatives market reform would have in store for us.
DerivAlert: Given all of the events of the last five years -- derivatives reform, increased electronification of swap trading, Basel capital requirements, QE -- How do you see the trading in derivatives evolving over the next five years?
Kevin McPartland: It’s great that we’ve got a lot of the major rules in place. It’s good that we’re finally here, but it’s still very much early days. For clients that do not want to trade on SEFs, there are still plenty of ways to do that. Market participants need to feel incentivized to increase trading volume on SEFs, and the product sets that are required to trade electronically need to become larger in order to make the shift to SEFs real.
In terms of looking at who the winners and losers are in SEFs, the separation is starting to take shape, but it is still very early. It’s also important to look at the client make-up of different SEFs, which are very different. That has a big influence on volumes.
DA: What do you see coming down the pike for fixed income?
KM: The Treasury market is looking more and more like it is ripe for continued electronification. It is standardized and highly liquid. Nearly every financial firm is involved in Treasurys in some way shape or form. This is in contrast to the corporate bond market.
Our North American Fixed Income Study last year showed that 78% of clients we talked to were using electronic platforms to trade bonds. That means a big chunk of the market are already using electronic platforms in some way. But only 50% of notional volume is traded electronically, which outlines a huge opportunity for growth.
In credit, the story hasn’t really changed much. The structure of the market is such that there are so many issues that it’s hard for deep liquidity to grow in any one particular spot. For example, you have one IBM stock, but you could have upwards of 50 IBM bonds to choose from. That makes it tough to build deep liquidity in corporate bonds.
The real opportunity for electronic trading in credit is in bond selection. The major platforms are all innovating in this space and we expect that to be a growth area over the next several months. There’s still a long way to go, but a shift is starting to occur whereby investors are moving away from bond-specific thinking and toward a risk-based approach. Instead of saying ‘I want this IBM bond,’ they are saying ‘I’m looking for this type of credit exposure, what are my options?’
DA: What are your expectations for European derivatives reform?
KM: U.S. reforms have been complicated because the CFTC and SEC are jointly writing rules on Dodd-Frank. Europe has a dozen jurisdictions that need to write rules and get them accepted for all of their markets. The first thing we’ve seen is trade reporting, and by all accounts it’s been really messy.
As it stands now, the reporting requirement for both sides of a transaction largely defeats the purpose of the rule. In terms of the first clearing mandates, we’re expecting to see something maybe by the end of 2014/2015.
European reform is not a cut and paste of the U.S. The legal framework about how clearing works is very different in Europe, and the clearing rules are very different.
DA: What impact do you see the May 1st guidance on packaged trades having on SEFs?
KM: We’re still waiting for lots of liquidity providers to come into the market. It’s going to be a slow, organic process as some of the new products come online.
The CFTC’s guidance laid out a phased in approach for packaged transactions, starting with packages containing two or more MAT instruments and quickly expanding to include MAT swaps over US Treasuries. While the marketplace is certainly ready to handle the electronic execution of these packages, the operational infrastructure needed to risk-check and process these trades will struggle to be prepared by the deadline.
By Steven Wunsch, Progress Wunsch Auction Associates, LLC
Originally published on Tabb Forum
The disintegration of our stock market into chaotic fragmentation is paradigmatic of the disintegration of Western society generally. And the cacophony of market structure voices – as evidenced in the debates on TabbFORUM, the SEC's comment period debates, and similar debates around the world – is not likely to produce solutions any more than Stalin's five-year plans solved the Soviet Union’s problems. But we've got to start somewhere.
Now comes the news that the SEC wants more money and authority. After all the money spent creating the current chaos, the Commission says it needs much more, presumably to do much more of the same.
High-frequency trading, and the plethora of new rules, technology and staff the SEC proposes to deal with it – the Large Trader Rule; the Consolidated Audit Trail; the Market Access Rule; the Midas computer system; Limit-Up/Limit-Down; the Systems, Compliance and Integrity Rule, etc. – may be mysteries to the world at large, but not to readers of TabbFORUM. HFT is a feature of the SEC's National Market System that didn't exist before, and it is growing more complex and confusing as the SEC creates new rules and policies to control it. The more the SEC intervenes, the worse the problem seems to get.
There are other examples where government-imposed fairness and redistribution are producing chaos, areas that on the surface may seem more amenable to understanding by the public and therefore more amenable to being addressed by policy changes. The gender fluidity that began with feminism, for example, now finds some parents chemically blocking their children's puberty until they can make decisions on a rapidly proliferating array of gender selection options, which are no longer just male or female, or even straight or gay; rather, if a child is gay, whether to undergo surgical gender modification or not, and which orientation to adopt or present to the world, in public or private. [The New Yorker, “About a Boy: Transgender surgery at sixteen,” Margaret Talbot, March 18, 2013]
That simple women's equality would transform into gender chaos was not expected. But such results are always unexpected, because they are bound to spin out of the control of their initially well-intentioned founders as conflicting claims erupt over civil rights or redistributions of the economic pie. Because of the heated emotions in such battles, these are unlikely places in which to begin to reel government back in.
High-frequency trading and the National Market System, on the other hand, are good places to begin. While the HFT issue may be visible in detail only to market structure types like those who read TabbFORUM, readers and non-readers alike can recognize the unseemly grasp for more power and money by the SEC. As a result, reining in the SEC may be more possible than we imagine, if for no other reason than that there are no generally recognizable civil rights or redistribution issues involved.
Regardless of one's market sophistication, it is easy enough to see that the SEC's National Market System created HFT and all the ancillary problems associated with it – the Flash Crash, the Facebook IPO, the Knightmare on Wall Street. It is also clear that before NMS, the US stock market provided average investors unparalleled opportunities to participate in the growth of American businesses, and that it provided those businesses and the technologies they introduced unparalleled opportunities to get funded and to get started. It no longer provides these benefits with anything remotely resembling its previous power.
In an age of deficits as far as the eye can see, it would be very unwise to give more money to the SEC. But beyond the money, granting government the power to reorder naturally evolved structures that have endured for decades, centuries or millennia, as stock markets have, is unwise beyond belief.
By David Dixon, Misys plc
Originally published on Tabb Forum
Earlier this month, the Securities and Exchange Commission and the Commodity Futures Trading Commission released the long-anticipated definition of a swap. As expected by the majority of industry participants, the SEC and CFTC sided with the wording in the Dodd-Frank Act.
Although there were no big surprises in the content of the announcement, banks and financial institutions still have a huge amount to contend with on the regulatory front – including registering themselves, complying with compensation rule changes, establishing living wills and of course determining changes to their business strategy – in addition to the newly outlined definition. It may seem that the software changes necessary for this one piece of Dodd-Frank are a small part of the overall picture. However, having the right technology in place plays a big role in being compliant and running an efficient business.
The compliance clock started ticking on July 11, when the definition was announced to the public, but the onset of the regulations was realized long ago. From our experience, and speaking with our clients, the most difficult element of complying with the new definition is the short timeframe – just 60 days to implement in some cases – setting the deadlines as early as September.
Much of what banks and financial institutions need in terms of software solutions is available today. But to implement and test these systems takes more time than is currently at hand. In addition, there are elements of Dodd-Frank to come that will affect areas of the solution previously implemented, e.g., trade reporting will come into effect in September but the requirement to use legal entity identifiers (LEIs) will come at the end of the year. This adds additional pressure on firms and further complicates the software update process.
Over the next few months, there will be a huge scramble in the industry as many new regulations go into effect at different times before the end of the year. The process is akin to buying the latest computer and almost immediately a newer, faster version is available.
Similarly, deciding at what time to implement new compliance software when you know there are future regulations, bringing additional changes, adds a level of complexity to any decision. Firms have to draw the line somewhere and the ultimate decision will be made based on different implications at each organization.
In addition, as the deadline is fast approaching, short-term fixes have to be more tactical while strategic solutions will be implemented down the line. It’s not possible to get everything done at once and firms have their plates full.
Although the SEC and CFTC’s announcement concerns only Dodd-Frank and the U.S. market, the implications are global. As there is a general drive for regulatory harmonization across the world to avoid potential regulatory arbitrage, it would be safe to assume that the rules will look similar across the globe. Therefore, banks and financial institutions need to be prepared to handle similar regulations in other regions.
U.S. banks are well advanced in their planning and European organizations are close behind, however, in Asia, with its many different jurisdictions, regulations and deadlines are less certain. We still continue to see little interest regarding the SEC/CFTC definition from firms in Asia. This raises the issue of whether businesses will move to Asia as a consequence of less regulation in that area. A second concern is whether Asian firms are prepared for the U.S. regulations when they take effect.
These are big issues that banks will need to contend with over the next few months. But there is a third consideration.
Even before Dodd-Frank there was pressure to globally consolidate software systems; with Dodd-Frank this continues to get the benefits of consolidated reporting, increased globalization and to allow greater risk controls. If firms update to comply with this definition in a hurry, they risk ending up with ad-hoc systems to meet the requirements of various regions versus deploying a unified and efficient infrastructure.