Regulatory Arbitrage, Extraterritorial Jurisdiction and Dodd-Frank: The Implications of US Global OTC Derivative Regulation
Christian A. Johnson
Widener University - Commonwealth Law School
April 30, 2014
University of Utah College of Law Research Paper No. 16
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
Date posted: October 31, 2012 ; Last revised: June 5, 2014
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