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Four Disruptive Elements Drive Regulatory Activity

In her keynote address at the 2017 Brodsky Family Northwestern JD-MBA Lecture Series, CFTC Commissioner Sharon Y. Bowen described her thinking on the key trends driving regulatory activity. Commissioner Bowen identified “four disruptive elements” she believes are substantially responsible for changes that have been seen recently in financial markets. In turn, these disruptive elements are prompting questions about what they mean for markets and society, and what actions we should ask from regulators.

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BIS Postpones Final Act of Basel III

In a sparsely worded press release on January 3, 2017, the Bank for International Settlements announced that the January 8 meeting of the group of central bank governors and heads of supervision (GHOS) has been postponed. At this meeting, the GHOS were to finalize long awaited rules that will determine how much capital lenders have to set aside against loans and other assets. Citing unfinished work necessary to calibrate banks’ risk-weighted capital ratios, BIS chose to move finalization off for the present.

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Treasury Dept. Issues Regulatory Core Principles

In response to Executive Order 13772, on June 14, 2017 Treasury Secretary Steven Mnuchin published a report identifying recommendations for changes to the regulation of the U.S. financial system in a manner consistent with the Executive Order’s “core principles.” Some of the “core principles” laid out in the executive order are addressed in bills currently being debated in Congress. The report takes up some of these same issues, but with slightly different approaches than those proposed by legislators.

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Is Final Basel III Just Around the Corner?

In speeches on April 5 and May 25, 2017, William Coen, Secretary General of the Basel Committee, hinted that final Basel III standards are “just around the corner.” Despite a setback in January 2017 in which the Committee members could not reach accord on the calibration of the aggregate output floor, Coen signaled optimism for the upcoming meeting the Committee in June.

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FDIC’s Hoenig Offers Market-Based Cure for Regulatory Ills

In a keynote address before the Systemic Risk and Organization of the Financial System Conference in California on May 12, 2017 FDIC Vice Chairman Tom Hoenig announced his novel market-based proposal to strengthen the financial system and provide regulatory relief and foster long-term economic growth. According to Hoenig, even after the financial crisis, “the U.S. financial system remains heavily subsidized, increasingly concentrated, and, despite a host of new efforts to safeguard the system, it continues to be vulnerable to inevitable financial shocks.”

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CFTC Chair Highlights Effect of Regulation on Liquidity

In a May 10, 2017 address, acting Chairman of the Commodity Futures Trading Commission (CFTC) J. Christopher Giancarlo highlighted some unintended consequences regulation is having on the swaps markets. In his speech before the International Swaps and Derivatives Association 32nd Annual Meeting in Lisbon, Portugal Giancarlo talked about the changes to swaps trading liquidity, market fragmentation and regulatory comity in the post-reform global swaps markets. After providing an overview of how some aspects of the misapplication and miscalibration of regulatory reforms were harming global liquidity, he provided some astute observations on how to alleviate some of the harm being done to swaps markets in particular.

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Clock Runs Out on CALPERS’ Lehman Claims

On June 26, 2017, the Supreme Court handed down a 5-4 decision which ended California Public Employees’ Retirement System’s (“CaLPERS”) efforts to spin off its own Lehman-related claims from a larger class action because the claims were filed late. The Court held that the three-year time limit in Section 13 of the Securities Act of 1933 is a statute of repose.

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Fed General Counsel Addresses the New Compliance Landscape

In a May 9th Address, Michael Held, Executive Vice President and General Counsel of the Federal Reserve Bank of New York, gave his thoughts on the new compliance landscape. Held told his audience at SIFMA’s Compliance and Legal Society Monthly Luncheon that in recent years the role of compliance within supervised financial institutions has grown dramatically in size, scope, and relevance. He also said that since the financial crisis, risk and compliance functions have grown in respect and stature across the financial services industry. Despite this new stature, however, those charged with monitoring compliance at financial institutions face an environment that has become perhaps “too rules-based.” Held offered his thoughts on firms and compliance personnel can meet these new challenges.

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CFTC Seeks Input on Simplifying Regulations

In a speech before the US Chamber of Commerce’s 11th Annual Capital Market Summit, the CFTC’s acting Chairman J. Christopher Giancarlo announced a new project to simplify the agency’s regulations. Remarking that, “America’s derivatives markets are struggling, in some cases, under the weight of flawed and excessive regulation,” Chairman Giancarlo introduced the CFTC’s new focus on reinterpreting its regulatory mission consistent with the goals of the Trump Administration’s Executive Order on regulation:

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No Regulatory Relief for Securities Finance

The latest legislative offering in the U.S., the Financial CHOICE Act, does nothing for securities finance. Nothing in the bill provides an exemption to the funding markets from the crushing weight of regulatory reform. At present, both political parties in the US seem willing to accept an outcome where the global funding markets are road kill from the reform steamroller. Many experts believe this legislative failure is due to analytic omissions on the regulators’ part. In that scenario, regulatory analysts simply don’t understand the global funding mechanism.

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