Streetwise Professor

In September, the CFTC’s new SEF rule threw swap market participants into a panic when they realized that footnote 88 buried within the rule would require instruments that were thought to have been outside the scope of the rule to be traded on the new SEFs:

Further muddying the waters is a footnote that was written into the margins of the final rules that could end up having a major impact. Footnote 88 requires certain entities that offer trade execution of swaps on a multiple-to-multiple basis to register as SEFs, even if they only execute or trade swaps that are not subject to the trade execution mandates.

This could lead to a significantly expanded SEF universe, which is already expected to be crowded. Trading participants would have to code and test to these various SEFs, some of which will have hastily assembled their platforms in order to be compliant. The on-boarding process will be rushed for participants in order to generate needed liquidity at the Oct. 2 starting point.

“For some of our members who have decided that they’re going to connect to each one of the platforms that’s available, they’re going to need this unique coding and connectivity to these new platforms,” Nevins says. “That’s a lot of work in a very short period of time.”Those who don’t want to connect to each venue will have to decide quickly which SEFs they want to work with, and they still need to hurry the coding and connection of pipes to the SEFs.

But two can play the footnote game.  Today Bloomberg reports that the banks have found a footnote in the rule that allows them to shelter some trades from the SEF execution mandate.  Footnote 513.  (The number itself should give an indication of how bloated and complex the rule is.)

Wall Street, trying to preserve profits from swap trading in the face of tougher scrutiny from Washington, has found a new way to keep some of its overseas deals private. It’s called Footnote 513.

Banking lawyers have seized on the wording of the footnote, contained in an 84-page policy statement issued in July by the main U.S. regulator of derivatives. The largest banks told swap brokers in late September that the language means certain swaps still don’t fall under the agency’s new trading rules, according to three people briefed on the discussions.

London-based ICAP Plc (IAP), one of the largest swap brokers, told the banks it didn’t agree with their interpretation, said the people, who spoke on condition of anonymity because the discussions weren’t public. Other brokers accepted the banks’ position and have been trading billions of dollars in contracts outside the new regulatory system, the people said.

The deals in question include swaps for foreign clients that are arranged by U.S.-based traders or brokers and then booked through a U.S. bank’s overseas affiliate. Bank lawyers say that if the trade goes through an affiliate it can stay private and doesn’t need to be handled on one of the public electronic trading platforms approved by the Commodity Futures Trading Commission, two people said.

Other than lawyers, who thinks this Duel of Footnotes is anyway to run a railroad?  (I know, I know: most lawyers think this is stupid too.  It’s just that they’ll be about the only ones that profit from it.)

And remember it’s not just footnotes.  It’s commas too.  As I wrote about a year ago, the decision overturning the CFTC’s position limit rule hinged in part on the placement of commas.

The whole structure is still under construction, and it is already requiring a plethora of ad hoc fixes, in the form of exemptions and no action letters, which Commissioner Scott O’Malia trenchantly criticized.

And it’s not just in the US.  The rules and paperwork are metastasizing in Europe too.  As one commentator puts it, “Regulation descends into a Kafkaesque bureaucracy.”  Yeah.  This will work.  Especially when their Kafkaesque bureaucracy clashes with our Kafkaesque bureaucracy.  Kafka squared. Woot!

And it’s not just derivatives.  It’s hedge funds.  And I could go on.

The hedge fund article also points out something I’ve been hammering on for years now: perversely, since compliance costs have a huge fixed cost element, the regulatory onslaught creates scale economies that favor concentration and consolidation, and which can potentially reduce competition.  You are seeing it in hedge funds.  You are seeing it in banking.  You are seeing it in FCMs.

And I do mean perverse, because among the ostensible purposes of these regulations were mitigating the too big to fail problem, and promoting competition.  The dramatic increase in regulatory overhead that favors the big over the small is completely at odds with these purposes.

Moreover, don’t forget another point that I’ve made.  These rules are systemic in nature, in the sense that they affect myriad financial market participants, and in pretty much the same way.  Meaning that if one of the rules is fatally flawed, it could lead to a serious systemic problem.

Which raises the question: what footnote-or what comma-in what rule will create a future crisis?  Perhaps that’s a little hyperbolic, but not outrageously so.

In some earlier posts discussing the role of banks in commodity markets, I suggested that the decision should not be a binary one: banks in, or banks out.  Instead, the preferable approach would be to levy capital charges on bank commodity operations that reflected the risks of these operations, thereby attempting to ensure that banks internalize the TBTF costs associated with them and scale their commodity businesses accordingly.

The WSJ reports that the Fed is leaning towards this approach:

Federal Reserve officials are considering imposing a new capital surcharge on Wall Street banks that own oil pipelines, metals warehouses and other lucrative physical-commodities assets, according to people familiar with the matter.

Such an approach could encourage banks to pare back their involvement in physical commodities, which has increasingly raised concerns among regulators and lawmakers.

While no decision has been made, imposing a surcharge would allow the Fed to sidestep a legal jam caused by existing laws that set Goldman Sachs Group Inc. and Morgan Stanley apart from peers and give the former investment banks broad leeway to own commodities.

The devil, of course, is in the details.  The question is whether the surcharge will be set in a way that accurately reflects the relevant risks, or whether instead it will be set at punitive levels to achieve via misdirection what the Fed is apparently reluctant to do in a straightforward fashion (due to fears of legal challenge): i.e., precluding banks from participating in physical commodity markets.

In other words, this proposal is fine in principal, but could be a disaster in practice.  If the Fed really wants to drive banks out of commodity markets, I would much prefer it do so forthrightly, rather than by hiding behind capital surcharges that it chooses to achieve that outcome.

My frequent sparring partner, John Kemp of Reuters, reads the IHS study justifying the benefits of bank involvement in commodity markets, and is not convinced. I agree that the report is rather lame, but am not convinced by Kemp’s critique, and the policy implications he draws.

One of Kemp’s points is that banks are not essential to the purchase, sale, transportation, storage, or processing of commodities.  Other entities, most notably commodity trading firms like Vitol or Glencore or Trafigura, can provide the same services as the banks.

This is true, but beside the point.  There are few types of firms that are utterly essential, with no substitutes.  Even banks are not irreplaceable in the functions that Kemp, and others, agree is appropriate for them.  Their core function of providing credit can be performed by the capital markets.  Or loan sharks.

The fact that banks can profit as a result of their activities in physical commodities should create a rebuttable presumption that they are providing economic value.  In a reasonably competitive market, where costs and benefits are internalized, firms that survive do so because they can provide a good or service of equal or better quality at equal or lower cost to other potential suppliers.  Indeed, in these circumstances, all active sellers have marginal costs that are approximately equal: cost functions determine the relative outputs of the active suppliers.   Driving out suppliers who can profitably service part of the market will drive up prices, reduce output, and reduce welfare: some of the output supplied by the eliminated firms will go unproduced, and the rest produced at higher cost.

Competition is not the issue. The market for commodity intermediation is highly competitive: even the big banks account for a relatively small share of activity, and the biggest players account for no more than 5-6 percent of trading activity in any major commodity market.  And even if banks accounted for a big share, that could be due to a cost advantage.

Which brings me to Kemp’s second objection, which potentially has more merit.  The above says “where costs and benefits are internalized.”  Kemp brings up, quite properly, the possibility that banks get a subsidy as a result of too big to fail, and hence the true costs of their activities are not internalized.

The immediate implication of this is that banks are too big, and that there market share in physical commodity activities is too big.  But “too big” does not mean that the right share is zero.  Banning bank participation in physical commodity markets, or excluding them from certain activities, is likely to be an overreaction, not a Goldilocks (“just right”) strategy.  They might be too big now, but zero is almost certainly too small.

Note too that eliminating banks from physical commodity markets, or restricting their participation, does not eliminate the TBTF subsidy.  Yes, they might not be able to exploit the subsidy by getting too big in commodities, but they are not going to let the subsidy money burn a hole in their collective pockets.  Won’t let them exploit the subsidy in commodities?  They’ll find someplace else to do it.  Restricting activity in one market segment will not appreciably reduce the TBTF subsidy that banks reap.

The right way to address this problem is to find ways to get banks to internalize the true costs.  This is best done by capital requirements that reflect the risks of the activities banks engage in, and the costs associated with bail outs.  Restrictions on permissible activities are a meat cleaver approach that will not mitigate the TBTF subsidy.

Kemp also goes on about the metals warehouse games.  As I’ve said repeatedly, both here and in media interviews, banks are not uniquely positioned to engage in such sorts of shenanigans.  If the conditions are right, whoever owns the warehouses will play the games. The best way to deal with this problem is ex post deterrence, either through private action (e.g., the numerous class action lawsuits against Goldman for its alleged warehouse manipulations) or government enforcement actions.

The role of banks in physical commodity markets will remain under scrutiny-and attack-for the foreseeable future. Many of these attacks are predicated on ignorance, not to say stupidity.  Kemp isn’t guilty of those things, but his analysis is nonetheless misguided.  Even when he identifies a real potential problem-the TBTF subsidy-eliminating banks from the physical commodity market is not the appropriate way to address it.

This illustrates a general point I’ve mentioned in many forums.  Attempting to address TBTF problems, and systemic risk problems, through structural interventions such as clearing mandates, SEF mandates, Glass-Steagall, or preventing banks from participating in commodity markets, is inefficient and likely ineffectual.  It is better to operate at the level of fundamental incentives, by getting banks and other financial intermediaries to internalize the costs and benefits of their activities. This is an easy principle to state in the abstract, though hard to implement in practice: just what is the right capital charge overall, and how should different bank activities contribute to this charge?  Not an easy question to answer.  Although imperfect, that’s still a better way of addressing these problems than mandating market structures.

If you want an illustration of the primitiveness of the Russian economic and political system, and that of the systems in the Former Soviet Union generally, look no further than this story.

In terms of economic primitiveness, the fact that a dispute over potash (potash! FFS)  is elevated to a matter of state requiring the direct involvement of heads of state illustrates perfectly the dependence of FSU countries on the production and export of basic materials.  For all the yammering about economic transition, all the FSU economies, including notably Russia’s, remain dominated by the production of basic materials.  As witnessed by evidence accumulating day-by-day that the FSU countries are becoming economic satrapies of China, as demonstrated by the Chinese acquisition of a large stake in Uralkali, the mooted Chinese acquisition of huge tracts of land in Ukraine, and the plethora of Chinese energy deals in Kazakhstan and Turkmenistan.

But the episode is more interesting for its demonstration of the institutional primitiveness of Russia, and the other FSU countries.  In advanced countries, commercial disputes are adjudicated or arbitrated through institutional processes:  indeed, they would have never have progressed to the point at which Belarus and Russia now find themselves.  But the institutional underdevelopment in Russia and Belarus and other FSU states means that rule is personalized, and commercial disputes between large businesses must be resolved-or not-through the personal intervention of heads of state.

Could anything illustrate more tellingly the personalized, de-institutionalized nature of rule in Russia than Putin’s personal involvement in such a matter?  Could you hallucinate, even after a bender that would put the Hangover I, II, or III to shame, Obama or Bush or Clinton doing any such thing?  And this is not a one-off.  Putin is repeatedly involved in grubby commercial negotiations (usually over natural resources) within Russia, and between Russia and other FSU countries.

This is a perfect illustration of why I have long believed that Russia is doomed for perpetuity to exist in an economic limbo as a natural resource state falling further and further behind not just more advanced, institutionally developed nations like the US, but even other institutionally challenged countries like China.

In other words, the Former Soviet Union is Totally F’d Up.  And will remain so.

I am working on a project about the economics of commodity trading firms.  One of the interesting questions is what physical assets commodity trading firms own.  In my research on this question, in an attempt to get some historical context, I turned to the excellent Federal Trade Commission Report on the Grain Trade, a five volume study released in the early-20s.  (There is reputedly a sixth volume on manipulation which I and others-Jerry Markham, for one-have feverishly searched for without luck.)   This is truly an excellent piece of work.  Many of the analyses are off, but as a detailed portrait of the grain trade in the 1900-1920 period, it cannot be beat.  Unfortunately, there is nothing comparable for other time periods.

In perusing Volume I, on country grain marketing, I came across this choice quote from the president of the CBOT in 1887:

The alliance between railroads and elevators has resulted in reaching out after millions of bushels not naturally tributary [to Chicago] and when gathered here preventing it by such tricks of the trade as you are familiar with from ever getting away again as long as storage can be collected on it.

. . . .

The grain bought elsewhere by warehouse proprietors is promptly sold to you here on future delivery, which, however, you can only get on payment of such premiums as the urgency of demand may enable them to exact.

. . . .

While the elevator proprietors are willing to pay 1 cent per bushel more for grain to “go into store” in their own warehouses than the market price of the same grain in store . . . is conclusive that the first storage charge is not legitimate, and also that the subsequent terms of storage are unduly profitable.

Replace “grain” with “aluminum”, and you could run this as a news story in 2013.  Goldman’s operations at Metro are almost identical to the operations of the warehousemen in Chicago that President Wright fulminated about 126 years ago.

The FTC study also notes that shuttling grain between warehouses was a part of the game more than a century ago.  It quotes Taylor’s magesterial history of the CBOT, describing an event from 1896:

The Armour Elevator Co. was charged with having transferred 1,200,000 bushels of wheat from one part of the north side system to another, without inspection, on such dates that the receipts resulting therefrom were just regular on the delivery day, May 1.

And not a bankster in sight.  (It is an interesting coincidence that 1896 was the year Goldman-Sachs was invited to join the NYSE.)

The morals of the story.  First, the ability to play warehouse games is inherent to the business of public warehousing of commodities. Second, banks are not uniquely susceptible to playing those games: when conditions are right, whoever owns the warehouses can play the games.  Third, systems of self-regulation are often incapable of addressing these problems.

On the last point, it is important to remember that the seminal case in the history of regulation in the United States, Munn v. Illinois, grew out of the warehousing battles in Chicago during the Civil War and its immediate aftermath.  The Supreme Court decided that the State of Illinois had the power to regulate grain warehouses, and this decision provided the basis for subsequent exercise of regulatory powers by states and the Federal government.

In other words, what is old is new again.  Journalists and regulators and legislators act as if the kinds of games played today are somehow new and unique.  They aren’t.  The commodities business hasn’t changed that much in a century and a half.  The things that were good, bad, and ugly in 1869 are around today, and will be around in 2069 and 2169.

Going through my news clips this morning made me feel like I was in a video game fighting off hordes of zombies. Commodity market critic zombies.

Zombie #1: Gretchen Morgenson, with an article on RINs. It is a farrago of innuendo and idiocy.  Really, it is 9 pages long, and I could write 20 listing all the fundamental flaws.  I don’t have the energy for that (no pun intended), so I’ll limit myself to the greatest hits.  In a nutshell (emphasis on the nut), it is a typical Morgenson piece: if banks are involved it’s bad;  if people are speculating it’s bad; if there are unintended consequences of government policies, it’s not the fault of the stupid government, it’s the fault of those who have to deal with the stupidity, and who figure out ways to make money out of artificial bottlenecks created by the stupidity.

The article is an assemblage of assertions and allegations totally lacking in evidence.  Morgenson alleges JP Morgan has speculated in RINs.  Which it denies.  She insinuates that the market might be manipulated, but provides no evidence.  She mentions a “corner”, but obviously doesn’t understand how a corner works: that would require the accumulation of a long futures/forward position, but she provides no evidence that anyone has accumulated such a position. (CME shows a grand total of a whopping 558 RIN contracts outstanding.)

Morgenson is obviously very suspicious of speculation-kind of funny, since her entire article is completely speculative-and suggests that speculation distorts-i.e., manipulates-prices.

Assume arguendo that Morgan or some other evil bank did figure out that the blend wall would hit and that RINs would become more valuable as a result, and hence accumulated them.  If it is right, it will profit when prices rise.  That doesn’t mean it caused the prices to go up. Prescience isn’t the same as manipulation.

Morgenson should be forced to write on the blackboard, Bart Simpson-like:

Speculation≠Manipulation

Speculation≠Manipulation

Speculation≠Manipulation

Speculation≠Manipulation

Speculation≠Manipulation

. . . .

The real problem here is something that makes only a cameo appearance in Morgenson’s story: the artificial RIN bottleneck created by an idiotic government policy that was adopted based on a forecast of future gasoline consumption (‘cuz yeah, we’re so good about making energy forecasts) and an ignorance of the technological realities of ethanol.  It is inevitable that someone would figure that out, and make money off it.  Inevitable.

Quite honestly, you’ll learn more about the reality of RINs from one of those ubiquitous Hitler videos than the New York Times (h/t @izakaminska):

Speaking of tow-headed troublemakers named Bart . . . that brings us to Zombie #2. Taking a break from edifying us all about the evils of HFT, polymath Bart Chilton went off on the evils of banks in commodities:

Mr. Chilton, in prepared remarks viewed by The Wall Street Journal, said it’s “nearly impossible to figure out exactly what banks own.” He said the CFTC can see what banks are trading in derivatives markets tied to commodities, but doesn’t know what physical assets like oil tankers and aluminum they hold.

“Unless we can see that, we can’t reasonably and responsibly protect against market manipulations,” Mr. Chilton, a Democrat, plans to say in speech to a business association in Michigan Saturday.

The CFTC has been investigating firms that store and deliver aluminum, including Goldman Sachs and J.P. Morgan, after complaints from companies that use the metal. Beer and soda companies, can makers and other end users said firms that warehouse aluminum inflate prices by holding onto it for longer than necessary.

Banks that trade commodities have come under fire from government officials, companies and consumer groups who say they exert too much influence over markets for some raw materials.

Mr. Chilton plans to raise that concern in the speech, saying banks that own commodities and trade in derivatives based on the prices of those commodities have a potential conflict of interest.

“The prices of commodities are supposed to be based upon supply and demand,” Mr. Chilton plans to say. “However, what if you control, or have significant influence upon, the supply or the demand?”

Mr. Chilton also is expected to say the public should be able to “easily locate and click on a link to find out” what physical commodities banks own. He will also call on lawmakers to rein in banks’ role in the buying and selling of physical commodities and not leave the decision to the Federal Reserve.

Click on a link to find out physical positions.  Right, Bart.  Uhm, you can’t even do that for futures positions.  And care to share any evidence demonstrating that any banks exert a “significant influence” on supply and demand in any energy commodity?  Their market shares in physical tend to be very small.  Check out the stat on Morgan Stanley in the Morgenson article-Montaigne markets 2.5 percent of gasoline in the US. Big freaking whoop. JP Morgan serves one piddling refinery on the East Coast.  Sheesh.

Conflict of interest: the classic problem raised by people who don’t have a real argument. Speaking of real arguments, how’s this for a doozy:

“Maybe it’s just me, but I don’t think the American public wants banks owning grain elevators, electric companies, large warehouses or shipping and distribution interests,” Chilton said in the speech.

Wow.  Let no one ever question Bart’s ability to make a substantive economic argument, backed with empirical evidence.

Zombie #3: Lina Khan, in The New Republic. Again, far too much idiocy to deconstruct in detail.  One illustrative example: the insinuations about “inside trading.”  Trading on private information is quite different than inside trading.  The later involves the violation of fiduciary duty or the theft of corporate information that belongs to shareholders.  Trading on private information is the lifeblood of virtually all markets.  It’s called “price discovery.”

The huffing and puffing about Cargill and Trafigura operating hedge funds is another faux controversy.  These funds are regulated just like funds operated by other entities.  Moreover, there are Chinese walls restricting the flow of information between the company-managed funds, and other trading operations.

Furthermore, Khan makes broad allegations of manipulation.  I assure you that yes, manipulation does occur in commodities markets, and that trading firms sometimes execute these manipulations.  But manipulation is subject to regulation (contrary to the statements that these markets are unregulated).  Moreover, the allegations of manipulation in the article are amazingly vague, and unsupported by any evidence.  The article is a classic illustration of the Clayton Definition of Manipulation: Any Practice That Doesn’t Suit the Person Speaking at the Moment.

For instance:

Experts warn that this degree of involvement across the entire production cycle gives a handful of sizable firms even greater unchecked power over our most basic goods. “Clearly if you control the physical stock and stand to gain from managing the release of that stock, it would be foolish to expect companies not to take advantage of that,” said Sophia Murphy, senior adviser at the Institute for Agriculture and Trade Policy and author of “Cereal Secrets,” a report on the major grain traders.

Part of the trouble is that no public body oversees global physical stocks. Andres Missbach, co-author of Commodities: Switzerland’s Most Dangerous Business, said the vast storage capacity these companies have amassed equips them to create artificial shortages in the short-term if they wish. “We have no idea if they are manipulating,” he said. “We can only say they have the capacity to, and that there is no regulator ensuring that they are not.”’

Unchecked power? Seriously?  What fraction of global physical stocks does any firm own?  The article says that Glencore “controls” 50 percent of the trade in some commodities.  If you read Glencore’s statements, they refer to “freely traded” supplies, which are a fraction-and often a small fraction-of total supplies.  For commodities like oil, the biggest trading firms account for 5 percent or less of total supply.

“We have no idea if they are manipulating.”  LOL.  Remember what Judge Easterbrook wrote: “The undetected manipulation is the unsuccessful manipulation.”

I am quoted in the article, but my quotes are rather innocuous. Khan tried to get me to support her trading-firms-are-evil line, which I obviously declined to do: in fact, I disagreed strongly. Those quotes didn’t make the story, naturally. Yeah. No agenda there.

One last thing. All three are rather strange zombies, because they are apparently afraid of the dark.  Each mutters ominously about dark markets, trading in the dark, blah blah blah.

News flash: the “lit” transparent futures markets are the exception that proves the rule.  Virtually all commodity markets are bilateral search markets with little pre- or post-trade transparency.  This makes good economic sense given the heterogeneity of commodities, the idiosyncrasies of and variability in supply and demand for specific varieties, the desire to customize terms, and the low rate of transaction flow in any particular variety or at any particular location.  Commodity trading firms essentially customize commodities by transporting, refining, blending, storing them, etc.  The one size fits all standardization that is necessary to support continuous, centralized markets (like futures markets) is completely maladapted to the trade of actual physical commodities.  Physical markets and futures markets serve vastly different functions, and accordingly operate on vastly different lines.

Zombies that are afraid of the dark.  Too funny. Get a frickin’ night light, Gretchen, Bart, and Lina.

It never ceases to amaze me how commodities bring out the loons, and cause people to lose all ability to reason.  Like zombies.  Like Gretchen, Bart, and Lina.

Back in Houston after time in Geneva, and a quick day trip to Paris for a conference.  The conference was sponsored by the ECB, Banque de France, and the Bank of England.  It was an examination of the progress in OTC derivatives regulation since the G20 declaration in Pittsburgh in September, 2009.

For the most part, the audience was central bankers, and the theme was “Yay! Look what we’ve accomplished!”  And of course, I had to rain on that parade.  My paper was titled “Bill of Goods: CCPs and Systemic Risk”, and the themes were (a) most of the arguments about how clearing would reduce systemic risk (e.g., the effects of netting) are wrong, and (b) clearing and collateral mandates created new sources of systemic risk.  Meaning that the G20 sold us a bill of goods in Pittsburgh.

So call me Mr. Popular.

A good part of the rest of the program on Wednesday was the Craig show.  The next panel was chaired by someone from the ECB, who gave a rather injured defense of the Pittsburgh agenda: I wasn’t mentioned by name, but it was pretty clear that she was attempting-ineffectually, IMO-to rebut me.  Several of the panelists said “as someone said in the previous panel”-and then referred to something that I had said.

Then a representative from the BIS presented, to much fanfare, the results of the Macroeconomic Assessment that I criticized heavily before I left for Europe.  After presenting the results, he discussed criticisms and caveats, and spent most of the time attempting-even more ineffectually, IMO-to rebut the arguments I raised in my post.

Very flattering.  Thanks.

The next panel was another group of academics.  The authors of two of the three papers, Bruno Biais and Hector Perez-Saiz (from the Bank of Canada), stated that their papers were motivated/inspired by my earlier research (which Biais called “seminal”).

Even more flattering.

My panel generated some interesting discussion and questions.  Many related to Dale Rosenthal’s paper about the potential inefficiencies that can occur when defaulted positions are replaced (or hedged).

As I’ve written for 3-plus years, the one main benefit of CCPs is that a centralized mechanism (e.g., an auction) for replacing/hedging defaulted positions is likely to be more efficient than an uncoordinated scramble in a bilateral OTC market.  The question is whether this function can be unbundled from the other functions performed by CCPs, which may not reduce systemic risk, and may in fact increase it.

Indeed, since there will be massive quantities of non-cleared derivatives, many of them of the more complex variety, the clearing mandates will not eliminate the replacement/hedging problem.  Even if the cleared derivatives are handled in an orderly auction process, these massive quantities of non-cleared derivatives will not.  These positions will have to be dealt with, and there is a serious risk that the process of replacing them will be very chaotic and destabilizing.

I confess to amazement that in all of the post-Pittsburgh regulatory efforts, this issue has escaped attention.  The focus on clearing, margins, SEFs, etc., has apparently taken up all the oxygen.  This is truly unfortunate, because a centralized auction mechanism to replace or hedge defaulted positions is likely to be far more effective and efficient than a non-centralized mechanism.  Put the other way, the decentralized mechanism is likely to be chaotic and destabilizing and excessively volatile.

Again, the clearing mandate does not solve this problem because many derivatives, especially the most exotic and illiquid (and hence problematic) ones will be outside CCPs, and CCP auction processes.

Which got me thinking (during a conversation with Dale Rosenthal during a break) of how this issue could be addressed.  What popped into my head? The swap dealer designation.

For the most part this designation is all pain, no gain.  How could we make lemonade out of this lemon?  Well, the thought that comes to mind is that designated swap dealers could be required to participate in the auction/hedging of a positions defaulted on by another swap dealer (or dealers).

I am somewhat reluctant to advance this proposal, because I am usually skeptical about mandating anything.  But there is arguably a public good (in the technical sense of the term) element to the process of  replacing/hedging defaulted positions: as the Rosenthal paper suggests, there are potentially many coordination and strategic behavior problems when this process is decentralized.  Consequently, it is worth some further thought.  (The clearing and collateral and capital obligations of swap dealer designation do not have as compelling a public good justification.)

The details will be challenging. In particular, since not all swap dealers will trade all of the types of instruments in a defaulted portfolio, it is not immediately obvious how to determine, in advance, each designated dealer’s auction obligations: that is, it’s not obvious how to specify which auctions each dealer must participate in.  For instance, it makes little sense to require BP or Cargill to participate in auctions for interest rate swaptions.  So who has to participate in what auctions?  Given the plethora of categories (interest rates, credit, equity, FX, commodities) and currencies, there is likely to be a plethora of auctions, and thus it will be difficult to say who is obligated to participate in what auctions.

However it is specified, this obligation will arguably make the swap dealer designation more onerous, and firms will attempt to structure their businesses to avoid falling afoul of it.  But the biggest dealers will not be able to avoid it.  What’s more, if I am correct that a centralized mechanism for handling defaulted positions is a public good, the creation of such a mechanism will actually redound to the benefit of all market participants, including the swap dealers.  After all, they are likely to have the biggest positions to hedge and replace in the event of a major default, and would benefit from a reduction in the risk of this process, and an improvement in the efficiency of the pricing mechanism in the aftermath of a major default.

This is something that at least deserves some consideration.  And, of course, regulators appear to have ignored it altogether in their focus on clearing and margins.  Which is another reason why I am not a G20 cheerleader, 4 years after Pittsburgh.

I’m supposed to be in Geneva right now, but United Airlines decided that what I really wanted to do was to sit around Dulles for 5 hours waiting for them to figure out they couldn’t fix a mechanical problem, and then to sit around a hotel for a day waiting for today’s flight.  Luckily I was able to get the last seat on that plane, so I don’t have to do something like Dulles-Newark-Frankfort-Geneva like some of the other folks on the canceled flight.

So that gives me some time to catch up on reading (and blogging).  And it takes some time to read this loooonnnnggggg Bloomberg encomium to Gary Gensler, which describes his valiant St. George-like battles against the big, bad banking dragons.

The basic theme is that anything the banks don’t like must be good, and anything the banks do like must be bad. The profile confirms that’s Gensler’s view of the world, and Silla Brush and Robert Schmidt pretty much adopt that template.

If only the world were that simple.  Yes, regulatory capture by major financial institutions is a major danger, and happens.  Freddie and Fannie illustrate that in spades, for sure.  So one should always approach the lobbying efforts of large incumbent players, especially large financial institutions, with incredible skepticism.

But at the same time, one has to remember that regulators do stupid things, and adopt regulations that are grossly counterproductive and impose costs far in excess of any conceivable benefits.  Banks potentially subject to such regulations reasonably fight against those, which means that bank opposition to a regulation is not a sufficient statistic to determine whether it is a good or bad policy.

The two regulations that Gensler fought for that are covered extensively in the Bloomberg piece are definitely examples of bad regulations.  The article devotes the largest share of pixels to the battle over the request for quote battle.  You may recall that I named Gensler’s RFQ proposal as the Worst of the Worst of Frankendodd.  The SEF mandate itself is seriously misguided, and mandating how many quotes those wanting to buy or sell a swap must obtain is totally cracked: it is predicated on the paternalistic belief that those who are doing the trading don’t have the ability to make the appropriate trade-offs between information leakage and greater competition to get their business.

The article also details the battle over the de minimis level of trading activity that would determine who has to register as a swap dealer, and thereby incur the additional compliance, collateral, and capital burdens.  Gensler wanted the level set at a piddling $100 million, which would catch pretty much everyone of even modest size in the CFTC’s swap dealer web.

If the purpose of the swap dealer designation is to reduce systemic risk, the level of trading activity is a very poor means of determining which entities should be subject to the higher level of regulation and scrutiny.  And seriously, many firms that must register as swap dealers under the $3 billion level eventually settled upon-against Gensler’s furious opposition-are not systemically risky, either.

Relatedly, the article identifies futurization as an end run around regulation.  As I’ve written before, futurization is a predictable response to regulations that treat economically identical instruments differently.  Swaps are treated more punitively, due to more onerous collateral standards, and because swap trades count towards the de minimis swap dealer trading level but identical futures don’t.  So, duh, people will choose futures over swaps that are otherwise economically equivalent.  If this also allows firms that aren’t systemically important to escape the burdens of swap dealer registration, that’s all for the better.

Moreover, it should be noted that futurization has been over-hyped.  Its main effect has been in energy.  There is no way that the real swap dealers who are systemically important-the JP Morgans, Citis, etc.-are going to be able to avoid being designated as swap dealers by switching their business to futures.  (Don’t interpret that to mean that I believe that swap dealer designation will materially reduce systemic risk.)  A lot of their business is in instruments for which futures are not a viable substitute.  In contrast, in energy (and commodities generally) for the bulk of the business futures and swaps are close substitutes.

Indeed, there is an irony here.  Large quantities of energy swaps were “NYMEX lookalikes” virtually equivalent to futures traded on NYMEX (and then the CME after it acquired NYMEX): firms traded the swaps because under the CFMA, they were subject to a lighter regulatory touch than futures.  So the energy swaps business was largely a product of regulation, and when the regulation changed, the business changed.  The business went to where the regulatory burden was lowest.  Go figure.  Given that part of the premise of Frankendodd is that the futures regulatory structure was the right model that made an appropriate trade off between costs and benefits, the migration to futures should be considered an improvement even by Frankendodd supporters.  It brought the business back to where it should have been all along, according to the advocates of Frankendodd.

The article also writes a lot about extraterritoriality, a subject that makes my eyes glaze over.  The most revealing aspect of this battle is Gensler’s regulatory imperialism, and his stubborn resistance to near universal opposition.  In Gensler’s view-and in the article-everybody was out of step but Gary.

One interesting omission (as if you think anything could be omitted in a 20 page article) is anything related to position limits, another Gensler hobby horse.  Perhaps this is because he eventually prevailed in the Commission, and got it to pass a rule to his liking, so it doesn’t fall into the category of where Gensler’s views lost out to intense political opposition.  But it does fall into the category of a regulation that was opposed vigorously by the banks, who prevailed-at least for now-in getting the regulation stopped.  The difference is that they fought and won that battle in court (though appeals are ongoing).

The article does devote some coverage to the systemic risk of clearinghouses.  Ironically, it indicates that Gensler is aware that CCPs concentrate counterparty risk, which can be problematic.  This is quite contrary to many of his public statements on the issue, including in an FT oped mentioned in the Bloomberg piece, in which Gensler suggests that CCPs are a magic box that makes risk disappear.  So was he misinformed before, and has he come to a better understanding of the way things really work?  Or was he deceptive in his earlier advocacy?

It’s good to know that there is some recognition of this issue, but sadly, the diagnosis of how CCPs contribute to systemic risk is cramped and simplistic.  Yes, the failure of a CCP is a major worry, but as I point out in the paper I will present in Paris next week (assuming UA cooperates!) measures to keep CCPs immune from failure can create systemic risks too.  There is too little systematic thinking about systemic risk.

In politics and journalism, good versus evil narratives are easy and comforting.  The problem with that is that when you are talking about something as complicated as derivatives regulation, the world isn’t that simple.  Rent seeking and capture happen, resulting in industry-friendly regulations that may create or perpetuate systemic risks, or fail to mitigate real problems.  But regulatory stupidity happens too.  This is especially likely when you have a regulatory crusader who believes that he is on the side of good fighting evil, and who approaches complicated markets with a very narrow set of simple beliefs, rigidly held: Transparency good! More transparency better! (Ironic, given that SEFs reduce transparency about the identity of counterparties, even if they increase pre- and post-trade price transparency).  Clearing good!  Banks bad and anti-competitive!

As you know, I believe that the intellectual assumptions underlying Frankendodd are fundamentally flawed.  The adverse consequences of those fundamental bugs are only exacerbated when the individual with the primary responsibility for implementing the law believes the bugs are actually features, and approaches his task with a Jesuitical zeal that treats any opposition as the result of malign and self-interested motivations.  Gensler’s rigidity and self-righteousness, and apparent unwillingness to contemplate the possibility that people were opposing him because, he was, you know, actually wrong, have made the process costlier and more contentious, and made the resulting regulations more costly and less beneficial.  Consequently, Gensler’s defeats on these issues-which are minor in the scheme of things, really-are to be welcomed, not lamented.

The BIS has released a report titled “Macroeconomic impact assessment of OTC derivatives regulatory reforms.” It concludes that the benefits of these reforms-including Frankendodd-will greatly exceed the costs, because (a) financial costs of a financial crisis are immense, and (b) the reforms will greatly reduce the probability of a financial crisis.  Specifically:

In its report, the MAGD focuses on the effects of (i) mandatory central clearing of standardised OTC derivatives, (ii) margin requirements for non-centrally-cleared OTC derivatives and (iii) bank capital requirements for derivatives-related exposures. In its preferred scenario, the group found economic benefits worth 0.16% of GDP per year from avoiding financial crises. It also found economic costs of 0.04% of GDP per year from institutions passing on the expense of holding more capital and collateral to the broader economy. This results in net benefits of 0.12% of GDP per year. These are estimates of the long-run consequences of the reforms, which are expected to apply once they have been fully implemented and had their full economic effects.

Don’t believe it for a minute.  The methodology of the analysis is irretrievably flawed.  The net benefits are the free-est of lunches, because the report does not take into account the redistributive aspects of the collateralization and netting that results from clearing, capital, and uncleared derivatives collateral mandates.  That is, it fails to recognize that the reduction in counterparty credit losses on derivatives that result from the “reforms” are accompanied by an increase in losses suffered by somebody else.  It accounts for a transfer as a social gain.

In broad strokes, the BIS analysis goes as follows.  Financial institutions are connected to one another by OTC derivatives trades.  One way of measuring this interconnection is the CVA-the credit value adjustment on derivatives trades.  The CVA is (roughly speaking) loss given default per dollar of exposure times credit exposure times the probability of default.  If a given bank, B say, takes a hit of X to its balance sheet, due to a bad investment, or a rogue trader loss, or whatever, its probability of default goes up.  This raises the CVA.  This is immediately recognized as a mark-to-market loss, dollar for dollar, by its counterparties.  These counterparties tend to be systemically important banks, and the loss makes them more leveraged.  The greater leverage makes them riskier, and more subject to default.  This raises their probability of default, which imposes CVA losses on their counterparties, and on and on.  In this way, a shock to one bank propagates throughout the system, and feedback effects intensify the original effect.  The end result is that major financial institutions become more leveraged, and the more leveraged the system, the more prone it is to a very costly crisis.

But Frankendodd lurches to the rescue!  By collateralizing and increasing netting*, Frankendodd reforms reduce credit exposure in derivatives.  Therefore, the CVA hit from a given rise in the probability of default is smaller.  The leverage in the system doesn’t rise nearly as much when bank B takes the hit of X to its balance sheet.  So a given shock has a substantially smaller impact on systemic leverage, and hence systemic risk.  Yay!

Not so fast, people.  Notice the flaw in the logic?  Remember what started the cascading effect in the pre-Frankendodd world: an increase in the probability of default at B due to some adverse shock to its balance sheet.  Collateral and clearing mandates reduce the exposure of derivatives counterparties to this shock.  But a default doesn’t just affect derivatives counterparties: it hurts all of B’s creditors.  Roughly speaking, the total cost incurred by B’s creditors as a result of an increase in the probability of default due to the loss of X is loss given default times total liabilities times the change in the probability of default.  Given total liabilities, this does not change when derivatives are collateralized or netted more extensively.  This, in turn, means that the decline in derivatives CVA that results from more derivatives collateral and netting is matched by an increase in losses suffered by other creditors.  The “reforms” shift around the losses: they do not reduce them in aggregate.

That is, the “reforms” don’t reduce the losses that result from the balance sheet shock that raises B’s probability of default: they redistribute them.  Note, moreover, that many of the same big financial institutions that benefit from the decline in derivatives CVA are hurt by the loss on B’s other liabilities, because these institutions are exposed to one another through a variety of claims, not just derivatives.  Moreover, some of the others (non-bank creditors) that suffer from the redistribution may be systemically important too: money market funds that invest in the short term debt of financial institutions (including B) are one example.  Repo is another example.  Thus, the overall effect of Frankendodd and EMIR on systemic risk is quite equivocal.  It shifts around losses, and there is no guarantee that the shift in losses improves the stability of the financial system.

But the BIS study does not treat the redistributive effects of the derivatives reforms.   It treats them has a net gain.  This is fundamentally, basically, and irredeemably wrong.  Wrong, wrong, wrong.  When evaluating systemic risk, it ignores the systemic redistribution of losses.  As a result, it overestimates the gains of the regulatory changes.

To a first approximation, given the redistributive nature of their effects, the benefits of the reforms is zero.  The BIS recognizes that they involve costs.  Meaning that to a first approximation, Frankendodd and EMIR reduce wealth, rather than increase it.

But that’s just a first approximation.  To understand fully the effects, you’d have to know how losses are redistributed, and the systemic importance of those who suffer bigger losses and of those who realize smaller ones.  You’d also have to understand how financial contracts will change in response to the new set of creditor priorities inherent in the Frankendodd and EMIR rules.   Financial contracts-capital structures, if you will-will change in response to the new rules.  Claims will be repriced.  There is going to be a new, different equilibrium structure of financial contracts.  Maybe this new structure is less fragile.  Maybe it is more so.  I don’t know: the system is so complex that it will respond to this big shock in surprising ways.  All I do know is that this where you need to look to figure out the effects of the so-called reforms on systemic risk, and this ain’t where the BIS looks.  It counts benefits conferred on some subset of claimants, while ignoring the costs imposed on others (that are approximately equal in magnitude).

In other words, the BIS is hawking a free lunch, and as Friedman said, there ain’t no such thing.

The BIS study also has a particular model of systemic risk: the counterparty credit contagion model.  B takes a hit, that spreads to C, D, and E, which then spreads to F, G, and H, and on and on, until most everyone drops dead like Aztecs fell to the smallpox.  This is a common way of formalizing systemic risk, but reminds me of the story of the drunk looking for his keys under the lamppost because the light is better there, not because he lost them there.  If you look at the history of financial crises, they almost never look like the systemic crises in these contagion models.  An idiosyncratic shock at one institution doesn’t bring a house of cards crashing down.  The collapses of individual institutions (Bear, Lehman) are symptoms of a deeper-and systemic-rot.

In sum, the BIS analysis is fundamentally flawed, and hence gives a wildly misleading estimate of the social benefits of the clearing and collateral mandates embedded in Frankendodd and EMIR and regulations adopted by other G20 nations.  It is a sad, sad example of a reputable institution falling prey to free lunch fallacies.

It is particularly sad because it’s not as if this hasn’t been pointed out before.  I raised the problem five years ago.  So you may say-well, who are you anyways?  Well, Harvard’s Mark Roe, one of the most accomplished bankruptcy scholars in the legal academy, has made the same point (and graciously cited my work).  And, truth be told, it is a staple of the bankruptcy literature.  And it’s also sad because I hear such “logic” over and over from regulators (e.g., scholars and policymakers at the Fed).  They presume to identify systemic benefits based on analyses that look at only a portion of the system.

And speaking of sad.  Could the BIS please spring for a typesetting program like LaTeX that prints readable equations?  Please?

* It is by no means clear that moving more trades to clearing will reduce credit exposures in derivatives via netting, especially given the fragmentation of CCPs by product and jurisdiction.  CCPs permit multilateral netting, but (a) bilateral trades can be compressed multilaterally, and (b) cross-product netting of exposures within dealer books can be larger than multilateral netting in single-category CCPs.  But that’s really a secondary issue.  The most important thing to remember is that the primary effect of netting is to redistribute default losses from derivatives counterparties to non-derivatives creditors.

The CME has seen increased volumes in its cash settled Brent contract in the aftermath of its launch of a program that pays rewards to those who trade the contract.  This is a standard way to attract volume to a contract competing against an incumbent/dominant contract.  Indeed, it’s probably the only way to do it.

Eurex tipped the Bund market away from LIFFE in 1998 after implementing a fee holiday, which LIFFE smugly refused to match, so confident was it of its liquidity advantage.  But Eurex had enough organic order flow that it was fairly liquid already, and the fee cut made it cheaper to trade Eurex Bunds, as I document in my paper “Bund for Glory: Or, It’s a Long Way to Tip a Market” (which will be a chapter in a book I’m currently writing).  The market tipped within a period of mere months.

Other exchanges didn’t repeat LIFFE’s near fatal mistake, and responded to fee cutting entrants by cutting their own fees to match.  This is how CBOT saw off Eurex’s attempt to enter the US Treasury futures market in 2003, and how CME torpedoed EuronextLIFFE’s attempt to enter into the Eurodollar futures market a few years later.

Here’s the deal: incumbents have a huge liquidity advantage that entrants must overcome.  How can this be done?  The only way, really, is to cut fees, or actively reward volume to attract enough liquidity to compete with the incumbent.  And the odds are still long, especially if the incumbent follows the CBOT script, and matches the reduced fees.

But if you want to encourage inter-exchange competition, you have to look favorably on entrants using strategies that reward volume as a way of building liquidity to make themselves into viable competitors.

This basic fact makes this FT article very disappointing.   It criticizes the CME initiative, and only quotes those who are critical or dismissive of the endeavor.  Yeah, it’s probably true that the only reason why those who participate in the incentive program trade is to collect the rewards.  But their order flow can attract order flow from others: other traders see that there is two-way activity, and can be more confident that if they establish a position, it won’t be a Hotel California that they can check into, but can’t leave.  Meaning that it’s BS to say, as one anonymous source to the story says, “there is no economic benefit to the trades whatsoever.”  The economic benefit is that it can make the entrant a more viable competitor to the incumbent.

And quoting Bart Chilton.  Please.

The quote that claims that spread trades-which dominate the activity in the CME Brent contract-“make no loss because they buy and sell at the same price” is just a crock.  Yes, spread trades are lower risk, but calendar spreads do move.

The CME is engaging in a penetration pricing strategy.  The only real strategy that permits competition against an incumbent.  If you like competition, you should like a strategy that harnesses the greed of trading firms to generate liquidity and volume.  Because, quite frankly, that’s the only way to compete.

But if you like monopoly, go ahead and denigrate what the CME is doing.

It would also be interesting to see how ICE built market share in its WTI cash settled contract that competes with the CME’s flagship oil contract.  It is my recollection that ICE rebated fees for firms that brought volume to the ICE contract.  (The structure of the ICE inducement, and Eurex’s in Bunds, were interesting.  They basically made it a tournament, with rebates/bonus payment being limited to the top three-if memory serves- order flow providers.  That provides a very high powered incentive while controlling the cost of the program.)  If my recollection is correct, doesn’t that mean that sauce for the goose is sauce for the gander?

Competition in futures markets, where order flow is not socialized, is highly imperfect.  Incumbents have huge advantages.  Aggressive price competition-pentration pricing, specifically-is about the only way that an entrant can hope to dent the incumbent monopolist’s huge liquidity advantage, and even that is a highly dicey proposition.  The FT story would have been much better had it recognized this reality rather than taking an all too critical view, and containing only quotes that were no doubt music to Jeff Sprecher’s ears.