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The Future Regulation of Derivatives Markets: Is the EU on the Right Track?

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The Future Regulation of Derivatives Markets: Is the EU on the Right Track? HOUSE OF LORDS European Union Committee 10th Report of Session 2009–10 The future regulation of derivatives markets: is the EU on the right track? Report with Evidence Ordered to be printed 23 March 2010 and published 31 March 2010 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 93 The European Union Committee The European Union Committee of the House of Lords considers EU documents and other matters relating to the EU in advance of decisions being taken on them in Brussels. It does this in order to influence the Government’s position in negotiations, and to hold them to account for their actions at EU level. The Government are required to deposit EU documents in Parliament, and to produce within two weeks an Explanatory Memorandum setting out the implications for the UK. The Committee examines these documents, and ‘holds under scrutiny’ any about which it has concerns, entering into correspondence with the relevant Minister until satisfied. Letters must be answered within two weeks. Under the ‘scrutiny reserve resolution’, the Government may not agree in the EU Council of Ministers to any proposal still held under scrutiny; reasons must be given for any breach. The Committee also conducts inquiries and makes reports. The Government are required to respond in writing to a report’s recommendations within two months of publication. If the report is for debate, then there is a debate in the House of Lords, which a Minister attends and responds to. The Committee has seven Sub-Committees which are: Economic and Financial Affairs and International Trade (Sub-Committee A) Internal Market (Sub-Committee B) Foreign Affairs, Defence and Development Policy (Sub-Committee C) Environment and Agriculture (Sub-Committee D) Law and Institutions (Sub-Committee E) Home Affairs (Sub-Committee F) Social Policy and Consumer Affairs (Sub-Committee G) Our Membership The Members of the European Union Committee are: Lord Bowness Lord Paul Lord Carter of Coles Lord Plumb Baroness Cohen of Pimlico Lord Powell of Bayswater Lord Dear Lord Richard Lord Dykes Lord Roper (Chairman) Lord Freeman Lord Sewel Lord Hannay of Chiswick Baroness Sharp of Guilford Baroness Howarth of Breckland Baroness Symons of Vernham Dean Lord Jopling Lord Teverson Lord Kerr of Kinlochard Lord Trimble The Members of the Sub-Committee which conducted this inquiry are listed in Appendix 1. Information about the Committee The reports and evidence of the Committee are published by and available from The Stationery Office. For information freely available on the web, our homepage is http://www.parliament.uk/hleu There you will find many of our publications, along with press notices, details of membership and forthcoming meetings, and other information about the ongoing work of the Committee and its Sub-Committees, each of which has its own homepage. General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm Contacts for the European Union Committee Contact details for individual Sub-Committees are given on the website. General correspondence should be addressed to the Clerk of the European Union Committee, Committee Office, House of Lords, London, SW1A 0PW The telephone number for general enquiries is 020 7219 5791. The Committee’s email address is [email protected] CONTENTS Paragraph Page Summary 6 Chapter 1: Introduction 1 7 What are derivatives? 8 8 Types of derivatives 16 10 Box 1: The size of the OTC derivatives market in June 2009 12 The Commission Communications 19 13 Box 2: European Securities and Markets Authority 14 Box 3: The US and Asian approach to the regulation of derivatives markets 15 Chapter 2: Derivatives: benefits and risks 24 17 Economic and commercial advantages of derivatives 25 17 Risks posed by derivatives 28 18 Box 4: Credit default swaps 19 The role of derivatives in the financial crisis of 2008 33 19 Box 5: Netting agreements 20 Chapter 3: Trade Repositories 41 22 The location, regulation and supervision of trade repositories 51 23 Chapter 4: Standardisation and central counterparty clearing of OTC derivatives contracts 58 25 Standardisation 58 25 Box 6: Standardisation of derivatives 25 What does a CCP do and how does it operate? 63 26 Box 7: Core Functions in Clearing, Settlement and Custody 27 Figure 1: Bilateral Vs CCP Clearing 28 Will increasing the proportion of contracts cleared centrally increase stability? 67 29 Standardisation and central clearing 75 30 Central clearing: should it be made mandatory, incentivised through capital charges or both? 85 32 Capital treatment 91 33 The effect on non-financial businesses 98 34 Box 8: Non-financial institutions use of derivatives 34 Chapter 5: The EU regulation of CCP clearing houses 107 36 What does the Commission propose? 107 36 Proposals for legislation on CCP minimum standards 108 36 Supervision of CCPs 114 37 Separation of collateral 118 38 Box 9: Lehman Brothers’ involvement in OTC derivatives and financial crisis 38 CCP competition 121 39 Systemic risk 125 39 Chapter 6: Summary of Conclusions 129 41 Appendix 1: EU Sub-Committee A (Economic and Financial Affairs, and International Trade) 44 Appendix 2: List of Witnesses 46 Appendix 3: Call for Evidence 47 Appendix 4: Glossary 49 Oral Evidence Lord Myners CBE, Financial Services Secretary, and Mr Gary Roberts, Head of Financial Services Strategy, HM Treasury Written evidence from HM Treasury and the Financial Services Authority (FSA) 1 Oral evidence, 2 February 2010 3 Supplementary written evidence 15 Mr Eraj Shirvani, Chairman, and Mr Richard Metcalfe, Head of Global Policy, International Swaps and Derivatives Association (ISDA) Written evidence from Association for Financial Markets in Europe (AFME), British Bankers Association (BBA) and International Swaps and Derivatives Association (ISDA) 18 Oral evidence, 9 February 2010 26 Supplementary written evidence 34 Mr Roger Liddell, Chief Executive, and Mr Rory Cunningham, Director of Public Affairs, LCH.Clearnet Written evidence 39 Oral evidence, 9 February 2010 42 Supplementary written evidence 49 Written evidence Argus Media 50 Ashurst LLP 52 Association of Corporate Treasurers 57 British Airways 68 Mr John Chapman 71 Chatham Financial 76 City of London Corporation 78 Deutsche Bank 80 Eurelectric 84 European Commission 86 Supplementary evidence from the European Commission 86 Futures and Options Association 88 ICAP 96 Investment Management Association (IMA) 103 J.P. Morgan 105 Managed Funds Association 110 MarketAxess Holdings Inc. 114 Dr Chiara Oldani, University of Viterbo, Italy 115 Mr Antonio Sáinz Vicuña 116 Wholesale Markets Brokers’ Association and the London Energy Brokers’ Association 117 NOTE: (Q) refers to a question in oral evidence (p) refers to a page of written evidence SUMMARY This report examines the European Commission’s Communications on Ensuring efficient, safe and sound derivatives markets. The regulation of derivatives markets is a complex subject. We had only a short time to complete this inquiry, and we do not attempt to come to definitive conclusions on any of the issues found in this report but rather to highlight key points in the forthcoming discussions on regulation of this complex area. Derivatives are used by businesses to hedge against risks outside of their control, for example fluctuations in commodity prices. However, they are also used as tools for financial speculation. The lack of transparency in the derivatives market and the failure to identify a build-up in risk can cause market instability. We found that the Commission proposals for increasing transparency in the so- called Over-the-Counter (OTC) derivatives market (see paragraph 8), through reporting OTC derivatives contracts which are not centrally cleared to a trade repository, will go some way to addressing concerns that the OTC derivatives market is opaque and ineffectively supervised. We also found support amongst witnesses for increased use of standardised contracts (see Box 6) and of central clearing (see paragraph 63). However, there are questions as to what types of contracts will be covered by the Commission’s definition of derivatives. A consequence of a wide definition could be to extend application of the regulation to derivatives used by non-financial businesses that have little effect on financial stability. The Commission suggestion that central clearing for all standardised products should be mandatory did raise some issues. This proposal if adopted could increase risk by forcing clearing houses to clear products for which they cannot manage the associated risk effectively. Moreover, not all derivatives contracts are suitable for standardisation. Applying capital charges to encourage standardisation, rather than on a basis proportionate to risk, could have adverse effects on stability and increase the costs of using derivatives to manage risk. We found that the EU would be an appropriate level for regulation for minimum standards for central counterparties, provided that the standards mirror those developed at a global level. However, the suggestion of the Commission that the European Securities and Markets Authority (ESMA) would be an appropriate body to conduct authorisation and supervision of central counterparties met with some opposition from witnesses. We found that, in the absence of any cross- border fiscal burden-sharing arrangements for failing financial institutions, central counterparties cannot be supervised at an EU level because the EU itself does not have the financial resource within the budget to bail out a large central counterparty. Overall we welcome the apparent direction of the Commission’s proposals. We will scrutinise these in detail when they emerge in the form of a draft proposal. The future regulation of derivatives markets: is the EU on the right track? CHAPTER 1: INTRODUCTION 1. The derivatives market, along with many other sectors of the finance industry, has come under close scrutiny in the wake of the financial crisis of 2008.
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