Repeal the Safe Harbors
Stephen J. Lubben
Seton Hall University - School of Law
November 1, 2009
American Bankruptcy Institute Law Review, Vol. 18, 2010
Seton Hall Public Law Research Paper No. 1497040
The "safe harbors" excuse derivatives from much of the normal operation of the Bankruptcy Code. This exception to the normal rules is justified by fears that involvement of derivatives in the bankruptcy process will increase systemic risk. But as I and others have argued, the safe harbors themselves are likely to increase systemic risk by encouraging a "run on the bank." As Congress considers a variety of responses to the financial crisis, I argue that it is time to repeal the safe harbors. I do not advocate pulling out sections of the Bankruptcy Code and leaving the Code otherwise the same. Derivative contracts are somewhat unique. The volatility, interconnectedness and sheer magnitude of the sums of money involved make financial firms unique. As part of the repeal that I suggest, the Code would have to adapt to these realities. But the safe harbors should be repealed.
Number of Pages in PDF File: 20
Keywords: Derivatives, chapter 11, safe harbors, ISDA, bankrupty, Lehman, AIG, systemic risk, close-out netting
JEL Classification: K22, G18, G28, G33, G38
Date posted: October 31, 2009 ; Last revised: April 2, 2010
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