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Regulatory Watch

CFTC Aims to Simplify “Unduly Complex” Rules

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September 06, 2018

Chairman is looking to rein in overreach and make cross-border swap rules less onerous, easier to follow

Fri Reg and Accting - Law Books(1)The Commodity Futures Trading Commission has created too many problems and too much complexity with its cross-border swap rules. So says CFTC Chairman J. Christopher Giancarlo in a recent speech to an audience at the City Guildhall in London.

Mr. Giancarlo said that among other issues, the CFTC’s approach was “over-expansive, unduly complex, and operationally impractical.” It is also overreaching in that it “shows insufficient deference to non-US regulators that have adopted comparable swaps reforms for their jurisdictions, which is inconsistent with the CFTC’s traditional approach of comity to competent overseas regulation.”

His speech is a continuation of his campaign for a redo of CFTC rule-making that was part of the 2010 Dodd-Frank legislation. Mr. Giancarlo was a critic of how the rules were created and implemented, particularly how they were rushed and lacked any impact assessments. In May of this year he said he would put the agency on a more thoughtful path for writing and implementing new swap rules. “I'm committed to a deliberative process and getting back to regular order at the agency,” he told former CFTC commissioner and current International Swaps and Derivatives Chairman Scott O'Malia in a conference interview. “We're not in the wake of a crisis right now—we need to take the time to get this right.”

In particular, Mr. Giancarlo has been taking aim at cross-border swap rules implemented in the wake of Dodd-Frank. On Tuesday in London he reiterated his view that a new approach is needed for cross-border swap rules. He wants to make a distinction between reforms “that are designed to mitigate cross border systemic risk and those reforms that address particular market and trading practices that are suitable for tailoring to local trading conditions.” This he called “Cross-Border Swaps Regulatory Version 2.0.”

Much of what Mr. Giancarlo laid out in his speech will be part of white paper that will assess the CFTC’s application of swaps rules to cross-border activities and recommend ways to improve them. He added that the white paper will “recognize deficiencies in the CFTC’s current approach to regulating cross-border activities and seek to recalibrate the CFTC’s cross-border approach based on a set of guiding principles.”

“The goal is to develop the next version of cross-border rules,” he said, “which would be better calibrated to address systemic risk while fostering innovation, competition, and international cooperation. An improved framework should be engineered to better enhance market durability, increase trading liquidity, and stimulate broad-based economic growth and revival.”

Mr. Giancarlo stressed that the CFTC’s rules would respect other jurisdictions when it came to swap rules, and he expected that those jurisdictions would respect US rules. In his speech he stipulated that the CFTC “shall be a rule maker, not a rule taker, in overseeing US markets – one marketplace, one set of trading rules.”

To date, however, this hasn’t been the case, Mr. Giancarlo said. Rather than doing line-item comparisons of US and global rules, which the CFTC does now, it should be solely focused on whether a non-US regulator’s regime provides a comprehensive level of regulation to justify a comparability assessment.” With an agreed upon commitment to cross-border regulatory deference, market participants “can rely on one set of rules – in their totality – without fear that another jurisdiction will seek to selectively impose an additional layer of regulatory burden.”

In the end, the Mr. Giancarlo said he hoped the coming white paper “begins a dialogue with my fellow Commissioners at the agency and interested parties outside of it” and leads to a more thoughtful writing of cross-border swaps rules; ones based on mitigating systemic risk while also deferring to comparable overseas regulation.

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