And we thought the CVA risk capital charge exemption was safe…..

If anyone ever cares in the future to write the history of the extension of financial regulation to the real economy – so clearly best selling material – it will I hope be remembered how much of a volte-face the EU policy makers performed. At the outset, in the summer of 2009, the official position was adamantly that there would be no special treatment for non-financial users of derivatives. We fought and won, always remembering that our victory in battle could be overcome by the loss of the war.

That war was of course Basel III and its European incarnation, CRD IV / CRR. Funnily enough we won the war as well, especially once we secured support in the European Parliament for the extension of the EMIR exception principle to the CVA risk capital charge in CRR.

So there we are; or at least we think we are there. There are troubling signs of a major pushback in the United States against the CVA risk capital charge exemption. The stage it would be unfair to focus on individual banks; that may come later. What we do know is that the investment banks’ US trade association, SIFMA, has written to the Secretary of the US Treasury. The letter is diplomatically worded but its intent is fairly clear. SIFMA states:

“While we share the concern that the CVA is incorrectly calibrated and in need of major revision, this action is a significant deviation from Basel III and the G-20 principles of uniform application. Not only is this exemption inconsistent with implementation of the Basel III standard, it has the knock-on effect of placing non-EU banks on an unlevel playing field with EU supervised banks…..

We would respectfully request that you raise with the EU that this difference in regulatory treatment runs counter to the Financial Stability Board’s and G20’s stated objectives of promoting internationally coordinated and consistent implementation of its regulatory action plan.”

I believe that the US banks want to kill the CVA risk capital charge exemption as soon as possible. They may be right about the failings in Basel III; but this argument looks like a Trojan Horse masking the real issue, which is about the ability of US banks to compete with other international banks.

Why has the CVA risk capital charge exemption so royally irritated the US banking community? And why is that community so belatedly trying to appear on the side of the good, when it neglected Basel compliance for so long?

Some elements that I have pieced together all revolve around our maligned ‘friend’, the CDS market. My personal, lay understanding is as follows:
- banks can manage their CVA exposure by taking CDS positions
- the CDS market for corporate names is substantially more developed in the US than anywhere else – and the limitations of the market other than in the US severely restrict the ability of banks to hedge the CVA exposures
- compounding the advantages for US banks, they have been, over the last decade, at the forefront of the development of risk management of CVA, e.g. by using CDS

How should we respond to this? Whilst this is still work in progress, my view is that we need to bring the debate fully out into the open (see Financial Times “JPMorgan Under Pressure in Basel Spat”) and make sure that there is real transparency about the issues and the objectives of the major players. We have started that process but there is more to be done before we can have any confidence that the CVA risk capital charge exemption is indeed safe.

Financial Transaction Tax: will the politicians ever get it?

I’ve been spending too much time recently thinking about the financial transaction tax (FTT), the proposal for which is rumbling through the Brussels process under the enhanced cooperation rule. What the latter means is that at least nine member states must be behind a proposal for it to be implemented. At present there are 11 and one of the interesting points to muse on is whether there could actually be at least three member state defections. Metaphors about rats and sinking ships might spring to mind but they would be inappropriate.

I am suffering quite strong pangs of déjà vu, having looked back at the testimony I gave to ECON in the European Parliament in February 2012. The arguments I tried to make then are now being much more widely heard. I suggested that this was a taxation proposal that falls wide of the mark, in that the economic burden will in fact be borne by consumers and the real economy rather than the banks. I was at pains to stress that the core political objective, which then as now is to recover for the taxpayer some of the cost of bailing out the financial system, is one that I and almost everybody must consider reasonable and right. The only problem of course is that the tax fails to make the banks pay. This is all very reminiscent of the much more recent realisation that bail-in has to be a necessary part of saving banks.

Tomorrow evening I’ll be participating in a seminar in Brussels to discuss FTT. Unlike my appearance at the European Parliament, when I was surrounded by so much political hostility that I seemed to be in a minority of one, the audience tomorrow should be much more friendly: it is largely made up of representatives of member states that are not FTT enthusiasts. The even better news is that Germany (an FTT supporter) is to be well represented, which is encouraging as that member state must surely be one where common-sense could still prevail (if the little local difficulty of impending elections can be overcome).

Pondering the FTT issues, one nuance rather amuses me and I thought it worth recording.

The political grandstanding around FTT makes the argument about payback from the banks to recompense taxpayer costs. A laudable objective and as implied above, one that I essentially support. All except the banks will pay for FTT and in practice this means all of us, including our pension funds. Do I exaggerate? Maybe just a little, but surely neither the banks’ shareholders nor their employees (through salary and bonus) will carry the cost of the tax.

Amidst all the fire and brimstone associated with political debate about FTT, what the politicians have chosen to overlook is what is arguably a much more serious aspect of the banking system. That is that much of the economic behaviour of banks looks distinctly oligopolistic. I’m sure that most individuals would agree that they are subject to a less than truly competitive market in their dealings with banks. And companies too most often feel that their broader business relationships with banks – whilst often valued and supportive – are perhaps characterised by a lack of true competition. Less self-evident perhaps during those glory days when markets such as London were absurdly over-banked.

A further nuance in this situation is that if the FTT proposal is implemented, it will surely do considerable damage to the business models of FTT zone banks, as well as potentially to all banks within the European Union. So far from implementing a strongly based taxation model that will generate the recompense sought by the politicians, the outcome could be a tax carried by the banks’ customers, enfeebled EU banks and a stimulus to the rest of the world watching with considerable glee as a purely political agenda is pursued here in Europe.

So ECON went and did it: what should the real economy be thinking?

The vote in ECON, in effect rejecting ESMA’s rule drafting for EMIR, is still puzzling many of us. We began with a scratching of heads – from where had come this rather belated push by ECON to protect the interests of the real economy in derivatives regulation?

One cynical answer that has been volunteered to me is that it was primarily a result of aggressive lobbying by ISDA and AFME – the usual suspects, some would add, and not the sort of company that the real economy naturally welcomes or feels comfortable with. And in the next breath the energy companies are mentioned.

That the energy companies have been lobbying hard should not surprise us. These are the companies most affected by the single most egregious piece of drafting by ESMA, which removes the exemption from clearing once a single asset class threshold has been breached. The politicians and lawyers can be left to decide whether in doing so ESMA exceeded its mandate in the Level I legislation. But the asset class breach rule is the one area with which we should be really concerned and grateful to ECON for their resolution.

The next puzzle is over where we go next. There are two stages here. Firstly, we need to see whether Parliament votes through the resolution; we will have the answer on this by tomorrow afternoon. The second stage – assuming that there is sufficient support for the resolution – is described to me by old Brussels hands as ‘uncharted territory’. So no easy signposts there.

The stance of the EACT is becoming clearer:
- we think that ECON has raised real concerns, especially so with the asset class breach rule
- but we have no interest in seeing the whole fabric of ESMA’s rules being put back into the melting pot
- implementation delay, whilst bad for global regulatory progress, may be seen as less bad given the lack of proper preparation for implementation

If we can help Brussels unscramble its somewhat unfortunate mess we would be happy to do so! But first of all let’s see what happens in Parliament tomorrow.

The EMIR confrontation between the European Parliament, Commission and ESMA

I blogged previously on the challenge from ECON in the European Parliament to the detailed rules drafted by ESMA for the implementation of EMIR. Since then a huge number of emails and draft documents have flown around; it’s a real struggle to keep track of who is trying to achieve what – quite apart from speculating as to what might be the outcome.

Maybe it’s time for some home truths. As an amateur observer of the Brussels scene but one with a commitment to fight the corner for the ‘real economy’ in highlighting short-sighted financial regulatory proposals, I note the following:

1 – There is a significant element of ‘politics’ in this, even if the motivation is I believe largely non-partisan. I’m told that members of ECON are determined to flex their muscles vis-à-vis ESMA and therefore the Commission.

2 – However the MEPs have done their homework and should be credited with this. They argue through the amendments that ESMA has gone beyond its authority from the Level 1 content of EMIR. The chair of ESMA, Steven Maijoor, vigorously denies this in a letter he wrote on 28 January to the chair of ECON, Sharon Bowles – insisting that the drafting for which he is responsible is ‘in line with the Level 1 text’.

3 – Maijoor’s letter (equally vigorously) insists that there is a coherence and balance within the ESMA rules as they impact non-financial counterparties; so his challenge back to the MEPs seems to be that if you reject one rule (such as the use of gross rather than net positions) you are putting back into play all the other rules – the equilibrium will have been upset.

From the standpoint of non-financial counterparties does this spat between European institutions – if that is what it really is – matter greatly?

I would argue that the answer may be largely no – it matters not greatly.

There is one exception to this and that is with the rule on asset class breaches. We and others argued from the outset that it would unhelpful to have the clearing obligation triggered across all asset classes in the event of a single class breach. ESMA disregarded this and wrote the rules in such a way that one breach puts all the entity’s transactions into clearing. The ECON amendments include the challenge that this is in breach of Level 1. Maijoor’s letter to Bowles rejects the challenge, insisting that the approach is consistent with Article 10(3) of EMIR.

The less than veiled threat within Maijoor’s letter is that non-financial counterparties will be worse off (through more restrictive rules) if the coherence and balance of what ESMA has drafted is upset through Parliament’s rejection of the detail.

This should be of concern. But it has to be said that for the great majority of non-financial counterparties such a change would be largely irrelevant. The good news is that ESMA’s drafting – and the content of EMIR – allows for sensible recognition of legitimate hedging (risk mitigation) by corporates and excludes such transactions from the clearing obligation. So long as that fundamental approach remains intact, which it surely must do, non-financial counterparties should be relatively relaxed.

The exception to this relatively relaxed view of the current shenanigans between ECON and ESMA is of course the group of corporates with a combination of conventional treasury risk mitigation and of trading activities (the energy companies, most obviously). For them the asset class breach rules become much more relevant and for that reason if for no other I continue to believe that this is the single ‘hot’ issue in the current debate.

Is the European Parliament really challenging EMIR?

A Reuters story today by Huw Jones is fascinating as much for what it does not say as for what it does. In essence what is being reported is that the European Parliament may be preparing to reject some of the EMIR rule-making by ESMA. The story revolves around the interests of the real economy and the effectiveness of the exemption under EMIR from central clearing. There are references to fuel hedging by airlines, to there being a view within the Parliament that the clearing thresholds have been set too low and to the single asset class breach triggering clearing for all asset classes.

Some of us started to argue over three years ago that there should be an exemption for the real economy from the proposed regulatory approach on derivatives; at the beginning of the campaign we were opposed by every institution from the CFTC in Washington to the Commission and Parliament in Brussels. Whilst I will always be the first to recognise that the latter two were – to their credit – eventually prepared to listen and to change their positions, a huge amount of time and energy was spent to get us where we are today.

With the key exception of the asset class breach rules I consider the outcome in EMIR and the rule-making by ESMA to be essentially sensible and reasonable. I have no idea who is leading this initiative in Parliament – and the Reuters sources are of course anonymous. It would be mealy-mouthed to respond with a sigh, suggesting nonetheless that better late than never can still apply; but it would have been so much better if the EU institutions as a whole had been as sensitive to the interests of the real economy when they started to develop the original EMIR proposals.

We are where we are and I for one would rather that we could now move on to focus our energies on the various other financial regulatory initiatives that have implications for the real economy. Were it not for the continuing concern over the asset class breach rules I would consider debate over the arithmetic level of the clearing thresholds to be of academic interest only. Legitimate risk mitigation through derivatives was never intended to be caught and counted against any clearing threshold. But the issues around asset class breaches do complicate things and it would have been so much better if ESMA had been able to take on board the concerns expressed to them.

We’ll have to watch Parliament carefully, not least because the real economy seems to have some unexpected friends there. So what Reuters reports is probably good news even if its substance will surely mean that the whole implementation process of EMIR is even more protracted.

Relaxation of Basel III: how excited should we be?

The Twelfth Night Basel announcement of a relaxation of the original proposals for the Liquidity Coverage Ratio (LCR) is interesting for the non-financial sector on at least two counts. But on two counts also it is challenging to write about the topic.

At one level raising doubts about the smartness as well as the detail of Basel’s proposals is a little akin to challenging motherhood or respect for the flag; we surely all want a more robust banking system, less capable of such egregious failures of prudence and basic competence than we have persistently seen over the last decades and most dramatically so in 2007/08.

The very complexity of Basel III and to lesser extents its predecessors creates the other challenge. No need for references to rocket scientists; all must know that mastering the detail of bank capital regulation is not for the faint-hearted nor for those whose daily lives are not directly touched by the subject.

So why does the LCR announcement look interesting to this layman?

Firstly, on the purely practical level the changes ease some of the pressures that Basel III imposes on the corporate world, quite apart from everything else happening in the economy beyond the financial sector. No need to repeat here the mantras about sustainable employment and growth being driven by the real economy, with productive capital investment delivering multiplier direct and indirect benefits.

Stay with me and I will simply note that in calculating the LCR banks need no longer make the theoretical and academic assumption that committed facilities will be 100% drawn within a 30 day period; the ratio is reduced to 30%. Common sense, you might be saying, but for evident reasons Basel is unmoved by mundane common sense.

The change in the basis for the LCR, taken together with the move to a phased introduction of the requirement (from 2015 to 2019), will be significant for the ability of banks to lend to the non-financial sector. As such we should welcome the proposals.

The second reason to be interested in the Basel announcement is I believe what it tells us about financial regulators and especially Basel and its community of central bankers. I first became involved with the implications of Basel III when we realised that it threatened to cut across the value of the corporate exemption from the G20 proposals (which would have shifted all OTC derivative transactions onto exchanges and into central clearing). I was told that the tablets of Basel were indeed immutably in stone; and I was told that Basel was an eco-system populated by central bankers with a resolute determination to talk to their own and certainly not to the non-financial sector.

I won’t rehash the story other than to say that – to the European Union’s credit – our arguments on the deleterious impact of CVA were heard and we believe we are now moving to an outcome on the EU’s implementation of Basel III (through CRD IV and CRR) that is sensible and valuable for the real economy.

The reaction to the news on LCR suggests that Basel actually listened – if not to our voice then at least to that of the banking sector. Rather too late perhaps……but Basel listened and recognised the argument.

Finally, some open questions that are I assume exercising minds in Brussels. Did the Commission have any inkling of the plans to soften the impact of the LCR requirement? Are the Commission, Parliament and Council now thinking through where this leaves the detail – in CRR – of the EU proposals? What now might be the timetable for implementation of CRR?

ESMA and implementation of EMIR

On the train to Paris to visit ESMA on Monday I drafted my own short list of the areas within EMIR (regulation of derivatives) where it is self-evident that the real economy needs help in understanding with what companies should be compliant in their use of derivatives. But what I have just written ought to read ‘….should have been compliant since 16 August 2012’ (see previous blog, ‘Derivatives regulation: is the real economy ready for implementation?’).

My list included:
- monitoring and complying with the principles of the exemption and clearing threshold;
- collateral exchange requirements;
- confirmation procedures;
- portfolio reconciliation procedures; and
- trade reporting requirements.

….and all of the above to be assimilated in the context of various deadlines for the implementation process.

I found the attitude at ESMA constructive and realistic. The pressures on the team are self-evident but I wasn’t filled with despair at the prospect of implementation being derailed by the sheer volume and complexity of the task.

So we talked about practicalities – and I know that such conversations are being repeated with many other representative bodies. ESMA sensibly looks to national regulators to carry on national dialogues, as we know, but is keen to have good links with organisations such as the EACT that can take a European wide view.

There is a real opportunity and need for the EACT to help the treasurers in its member associations by ensuring that there is clear advice on how to comply with EMIR. We won’t attempt to duplicate the output of ESMA, concentrating instead on providing input to the drafting by ESMA when appropriate and communicating through our own channels to draw attention to the guidance that is available.

Now for some good and some less good news. First the good. Not the least because the trade repositories are not yet in place to handle reporting under EMIR, there is no immediate requirement to comply with what EMIR demands in terms of trade reporting. I encourage everyone to look at Annex VII, Article 5 of ESMA’s RTS (draft technical standards) – you can access the document here. There are various dates specified by which trade reporting will get underway, with 1 July 2015 defined as the starting point for ESMA to receive the reports in the absence of a trade repository (presumably ESMA will be doing its best to ensure that the repositories are indeed all in place before that date looms).

And the bad news? In the meeting with ESMA we asked the question as to how derivative contracts outstanding at the commencement of EMIR – i.e. 16 August 2012 – but not outstanding at the point trade reporting kicks in should be treated. The somewhat bizarre answer is that all such contracts should still be reported within the timeframes specified!

I’m in no doubt that regulators will defend such a requirement but – if you start from my deeply sceptical position over the underlying relevance of any of this to reducing global financial systemic risk – you have to wonder what on earth will happen to all such historic data.

Finally – and following up on a reference in my previous blog – the format for reporting trade information is specified in Annex VI.I, Article 1, of the RTS. Happy reading.