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Regulatory Arbitrage, Extraterritorial Jurisdiction and Dodd-Frank: The Implications of US Global OTC Derivative Regulation


Christian A. Johnson


University of Utah College of Law

April 30, 2014

University of Utah College of Law Research Paper No. 16

Abstract:     
A review of the Dodd-Frank rulemaking projects suggests that the U.S. has entered into a “race to the top” of over-the-counter derivative regulation. Many of the Dodd-Frank statutes and proposed rules go well beyond the relatively modest objectives agreed to by the G20 countries in 2009. These efforts in the U.S. create a legal environment ripe for regulatory arbitrage and the isolation of U.S. OTC derivative markets. Isolation results from participants simply abandoning U.S. markets because of overly aggressive U.S. regulation. Regulatory arbitrage occurs as both U.S. and non-U.S. persons attempt to structure their trading activities to avoid the extraterritorial reach of Dodd-Frank. This paper will discuss the regulatory arbitrage implications triggered by the Dodd-Frank reforms and concerns surrounding the extraterritorial powers given to the CFTC to enforce these mandates.

Number of Pages in PDF File: 78

Keywords: over-the-counter derivative, OTC derivative, regulatory arbitrage, extraterritoriality, extraterritorial jurisdiction, Dodd-Frank, Dodd Frank

JEL Classification: E44, E58, F02, G15, G18, N20

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Date posted: October 31, 2012 ; Last revised: June 5, 2014

Suggested Citation

Johnson, Christian A., Regulatory Arbitrage, Extraterritorial Jurisdiction and Dodd-Frank: The Implications of US Global OTC Derivative Regulation (April 30, 2014). University of Utah College of Law Research Paper No. 16. Available at SSRN: http://ssrn.com/abstract=2169401 or http://dx.doi.org/10.2139/ssrn.2169401

Contact Information

Christian A. Johnson (Contact Author)
University of Utah College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States

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