Procedural Changes
While regulators should have clear expectations for boards, we need to make sure that we are creating expectations that lead to boards spending more time overseeing . . . risk-management and control functions . . . A recent address by Federal Reserve Governor Daniel...
The Economist reports that Mediobanca, an Italian investment bank formed in 1946 assist in the reconstruction of Italian industry, has commenced a planned sell-off of $2.2 billion in equity holdings as part of an effort to refocus the firm on its core mission of providing medium-term financing in the Italian sector. Mediobanca’s sales of these shares as part of its unwinding of webs of cross-shareholdings and pacts among big shareholders, as well as the privatization of Fincantieri and Poste Itliane, have released large volumes of shares on to the markets, allowing institutional and other investors to add them to their portfolios. This sudden flow of Italian equities in to the hands of new investors has, it seems, increased participation in corporate governance.
In the hands of new investors, these equities that were previously locked up in voting trusts or held by the government seem to have fueled a renewed interest in participation in the governance of Italian firms.
The US Financial Stability Oversight Council has published its 2014 Annual Report which highlights, among other things, the activities of the Council, significant financial market and regulatory developments, an assessment of those developments on the stability of the financial system, and potential emerging threats to the financial stability of the United States.
In their latest client memo, the Blank Rome law firm alerts directors and trustees of financial firms about their role in new swaps regulations. In particular, the firm puts public companies on notice that their boards must take action in order to take advantage of the CFTC’s end-user exception. The end-user exception for swaps frees certain swaps transactions from the new requirement that all swaps be centrally cleared.
In a joint letter issued on November 5th, the FDIC, Bank of England, German Federal Financial Supervisory Authority, and Swiss Financial Market Supervisory Authority requested that the International Swaps and Derivatives Association adopt language in derivatives contracts to delay the early termination of those instruments in the event of the resolution of a global systemically important financial institution.
Specifically, the four resolution authorities are concerned with the cascading effects these derivatives contract termination rights and other remedies may have in the event of the insolvency of a major global counterparty.
In his paper published August 28, 2013, Yesha Yadav of Vanderbilt Law School posits that the rise of derivatives like credit default swaps (CDS) has made the concept of insider trading inoperable in markets where these derivatives trade. Yadav’s paper, “Insider Trading in the Derivatives Market (and What it Means for Everyone Else),” asserts that the credit derivatives markets actually may be more efficient by factoring in insider knowledge and transmitting this information more freely.
According to Yadav, the operation of the CDS market changes the assumption that shareholders lose when insiders trade using non-public information.
Prior to Dodd-Frank, the CDS market lived outside the insider trading rules, and the credit derivative market has operated using insider knowledge almost freely. New rules, however, expand the reach of the insider trading prohibition explicitly including the credit derivatives market.
On August 29, 2013, the Financial Stability Board (FSB) issued its finalized policy framework for its securities lending and repo workstream. As part of a larger examination of shadow banking, the FSB focused on five specific areas in which policies are needed to mitigate the potential systemic risks associated with shadow banking, with one of these five areas being securities lending and repo. Following up on their November 2012 consultation paper, the FSB has issued its final Policy Framework for Addressing Shadow Banking Risks in Securities Lending and Repos. This document sets out recommendations for addressing financial stability risks in this area, including enhanced transparency, regulation of securities financing, and improvements to market structure. It also includes consultative proposals on minimum standards for methodologies to calculate haircuts on noncentrally cleared securities financing transactions and a framework of numerical haircut floors.
The European Securities and Markets Authority (ESMA) has approve cooperation agreements with seven global counterparts in five jurisdictions. These agreements with regulators in the Bahamas, Japan, Malaysia, Mexico and the United States formalize details of cooperations in the supervision of alternative investment funds, including hedge funds, private equity and real estate funds.
“Some optimisation techniques are still taking shape due to a lack of clarity around new regulations. However, some elements must naturally precede others before it is possible to reach the next level.”
Post crisis regulatory changes have had dramatic effects on the landscape of collateral management, and amplified greatly its importance from a risk management, funding cost, and operational standpoint. As a result, financial institutions across the globe are overhauling their collateral management processes to deal more effectively with the new market for collateral. Traditionally, the concept of “collateral optimization” was limited to examining what is cheapest to deliver, assigning costs to collateral assets, mapping eligibility criteria, and centralizing collateral across business lines. But as a new white paper from 4sight Financial Software points out, in the new regulatory climate and collateral marketplace, effective optimization now requires a much more dynamic and custom-made approach.
The Bank of England and the US FDIC have issued a joint white paper, “Resolving Globally Active, Systemically Important, Financial Institutions,” focusing on “top-down” resolution strategies that involve a single resolution authority applying its powers to the top of a globally active and systematically important financial group, that is, at the parent company level. The December 10, 2012 paper discusses how such a top-down strategy could be implemented for a U.S. or a U.K. financial group in a cross-border context.