General Rule Prohibiting Disruptive Trading Practices CME Rule 575
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i CME AND ICE DISRUPTIVE TRADING PRACTICES RULES SUMMARY CME Rule and Guidance ICE Rule and Guidance Guidance Common to CME and ICE CFTC Guidance CWT Comments General Rule Prohibiting Disruptive Trading Practices CME Rule 575. All orders must ICE Rule 4.02(I)(2). In connection The CME and ICE FAQs include a list of factors Section 4c(a)(5) of the Commodity Although the CME and ICE rules do not be entered for the purpose of with the placement of any order or that will be considered in assessing a potential Exchange Act (“CEA”) provides that: “it expressly address the CEA’s prohibition on executing bona fide execution of any transaction, it is a violation of the disruptive trading practices. The shall be unlawful for any person to engage violating bids and offers, the ICE and CME transactions. Additionally, all violation for any person to factors are very similar across both CME and ICE. in any trading practice, or conduct on or trading functionality should prevent this non-actionable messages must knowingly enter any bid or offer for A market participant is not prohibited from subject to the rules of a registered entity type of conduct. The exchanges may find be entered in good faith for the purpose of making a market making a two-sided market with unequal that – (A) violates bids or offers; (B) more generally that violating bids or legitimate purposes. price which does not reflect the quantities as long as both orders are entered to demonstrates intentional or reckless offers is prohibited by the exchanges’ Intent: Rule 575 applies to true state of the market, or execute bona fide transactions.iv disregard for the orderly execution of disruptive trading practices rules. intentional conduct (and in the knowingly entering, or causing to For both CME and ICE, the means to cancel an transactions during the closing period; or Neither CME or ICE rule nor the case of orderly trading (Rule be entered, bids or offers other order (e.g., CME’s or ICE’s Self-Match Prevention (C); is of the character of, or is commonly accompanying guidance defines “bona 575.D), to both intentional and than in good faith for the purpose functionality) does not indicate whether the known to the trade as, ‘spoofing’ (bidding fide transactions,” “good faith” or reckless conduct). of executing bona fide transactions. trade violates the CME or ICE rules.v or offering with the intent to cancel the “legitimate purposes.” The guidance and Scope: Rule 575 applies to all Intent: Rule 4.02 applies to bid or offer before execution).” notes contained in this chart should open outcry and electronic intentional conduct (and in the In May 2013, the CFTC issued interpretive provide market participants with a helpful trading activity, including all case of 4.02(I)(D), to both guidance (“CFTC Guidance”) on its anti- starting place to develop compliance market states (pre-opening, intentional conduct and reckless disruptive practices authority under CEA controls that are reasonably designed to vi closing period, and all trading disregard for adverse impacts). Section 4c(a)(5). prevent violations of CME Rule 575 and sessions).ii Scope: Rule 4.02 applies to any The CFTC will rely on facts and ICE Rule 4.02. activity that influences a market circumstances to determine if there has Like the CFTC, ICE and CME will rely on price, including during the pre- been a violation of the CEA prohibition on facts and circumstances to determine open period.iii disruptive trading practices.vii whether there is a violation of the The CFTC Guidance does not apply to prohibition on disruptive trading, block trades or exchange for related including circumstantial evidence to prove position transactions (“EFRPs”) that are intent. However, even if a trade(s) is bona transacted in accordance with CFTC fide, it may violate the prohibition on regulations. disruptive trading (e.g., numerous trades entered for bona fide and legitimate purposes that are executed during a small window of the closing period). A market participant making a two-sided market should intend to transact on either side. Cadwalader, Wickersham & Taft LLP | 2 CME Rule and Guidance ICE Rule and Guidance Guidance Common to CME and ICE CFTC Guidance CWT Comments Entering Trades with the Intent to Cancel (“Spoofing”) CME Rule 575.A. No person ICE Rule 4.02(I)(A). It is a violation Although ICE and CME did not identify factors CEA section 4c(a)(5)prohibits conduct that A spoofing violation under the CME and shall enter or cause to be to enter an order or market specific to spoofing, the following factors from is of the character of “spoofing” (bidding ICE Rules, and the CFTC Guidance requires entered an order with the message, or cause an order or the FAQs appear most relevant to the issue: or offering with the intent to cancel the a showing of specific intent, which the intent, at the time of order market message to be entered, • Whether the market participant’s intent was bid or offer before execution). The CFTC CME, ICE, and CFTC will determine by entry, to cancel the order before with the intent to cancel the order to induce others to trade when they intends to apply the spoofing prohibition evaluating the factors included in their execution or to avoid execution. before execution, or modify the otherwise would not; to bid and offer activity in all products guidance. Market participants should order to avoid execution. traded on all registered entities, including ensure that their communications do not • Whether the market participant’s intent was DCMs and SEFs. lead to improper inferences after the fact. to affect a price rather than to change his position; The CFTC Guidance provides the following FIA hosted separate webinars for both examples of spoofing: CME and ICE. During the CME FIA • Whether the market participant’s intent was Webinar, CME emphasized that intent to create misleading market conditions; • overloading the quotation system of a registered entity; must be established at the time of order • The ability of the market participant to entry, which, according to the CME, is • delaying another person’s execution of manage the risk associated with the order(s) more specific than the CFTC’s guidance on trades; if fully executed; the CEA Prohibited Trading Practices. • • The change in the best offer price, best bid creating an appearance of false market Later, the CME clarified, and the CFTC price, last sale price, or other price that depth; and agreed, that the intent standard is results from the entry of the order; and • creating artificial price movements determined at order entry for both the • The queue position or priority of the order in upwards or downwards. CME and the CFTC. ICE takes the same the order book. The CFTC does not apply the spoofing view that intent is measured at the time Modifying or cancelling an order due to a prohibition to market communications of order entry. perceived change in circumstances is not a such as authorized pre-trade The prohibition on spoofing also applies violation.viii communications. to resting orders that are later modified to Fat-finger orders do not constitute disruptive The CFTC may find spoofing even where a avoid execution. trading, but may violate other ICE or CME rules market participant receives a partial fill of pertaining to acts that are detrimental to the its order. best interests of the exchange.ix The CFTC specified that a violation does A market participant may enter orders to obtain not require a pattern of activity and that a “queue positioning” in the order book and single instance can be the basis for a subsequently cancel those orders based on violation. changing market conditions, provided there are Trading, practices or conduct that is no other indicia of disruptive trading.x reckless or negligent do not constitute A partial fill of an order may indicate that the “spoofing” because the CFTC must order was entered in good faith, but it does not establish intent. establish a safe harbor from liability under the It is not a violation of the spoofing prohibition to cancel a bid or offer before Cadwalader, Wickersham & Taft LLP | 3 CME Rule and Guidance ICE Rule and Guidance Guidance Common to CME and ICE CFTC Guidance CWT Comments disruptive trading practices rules.xi execution if the market participant’s CME and ICE do not establish a safe harbor for actions were part of a legitimate, good the amount of time that an order must be faith attempt to consummate a trade. exposed to the market to demonstrate that it was not entered into with the intent to cancel, although time is a factor in the determination of whether an order constituted a disruptive practice.xii Entering Trades with the Intent to Mislead Market Participants CME Rule 575.B. No Person ICE Rule 4.02(I)(C). It is a violation “Misleading” is a more specific statement of the In the CFTC Guidance, one of the In addition to CEA’s prohibition on shall enter or cause to be to enter an order or market general requirement not to act in violation of examples of prohibited spoofing activity spoofing, the CFTC could rely on its fraud- entered an actionable or non- message, or cause an order or just and equitable principles of trade.xv is: “submitting or cancelling multiple bids based manipulation authority to actionable message or messages market message to be entered, This section prohibits a market participant from or offers to create an appearance of false prosecute these types of trading activities. xvii with intent to mislead other with the intent to .