The Derivatives Market's Payment Priorities as Financial Crisis Accelerator

52 Pages Posted: 9 Mar 2010 Last revised: 8 Apr 2024

Date Written: March 6, 2011


Chapter 11 bars bankrupt debtors from immediately repaying their creditors, so that the bankrupt firm can reorganize without creditors shredding the bankrupt’s business. Not so for the bankrupt’s derivatives counterparties, who unlike most creditors, even most other secured creditors, can seize and immediately liquidate collateral, net out gains and losses, terminate their contracts with the bankrupt, and keep both preferential eve-of-bankruptcy payments and fraudulent conveyances they obtained from the debtor in ways that favor them over other creditors. Their right to jump to the head of the bankruptcy re-payment line, in ways that even ordinary secured creditors cannot, weakens their incentives for market discipline in managing their credits to the debtor; it reduces their concern for the risk of counterparty failure and bankruptcy, since they do well in any resulting bankruptcy. If they were made to account better for counterparty risk, they would be more likely to insist that there be stronger counterparties than otherwise on the other side of their derivatives bets, thereby insisting for their own good on strengthening the financial system. True, because they bear less risk, nonprioritized creditors bear more and thus have more incentive to monitor the debtor or to assure themselves that the debtor is a safe bet. But the repo and derivatives market’s other creditors - such as the United States of America - are poorly positioned contractually either to consistently monitor the derivatives debtors’ well or to fully replicate the needed market discipline. Bankruptcy policy should harness private incentives for counterparty market discipline by cutting back the extensive de facto priorities for these investment channels now embedded in chapter 11 and related laws. More generally, when we subsidize derivatives and repos activity via bankruptcy benefits not open to other creditors, we get more of the activity than we otherwise would. Repeal would induce the derivatives market to better recognize the risks of counterparty financial failure, which in turn should dampen the possibility of another AIG/Bear/Lehman financial meltdown, thereby helping to maintain financial stability. Repeal would lift the de facto bankruptcy subsidy. Yet the major financial reform package Congress just enacted lacked the needed cutbacks.

Keywords: safe harbors, bankruptcy, financial crisis, contagion, bank run, qualified financial contracts, derivatives, repos, Dodd-Frank, orderly liquidation authority

JEL Classification: G20, G28, G32, G33, G38, K22

Suggested Citation

Roe, Mark J., The Derivatives Market's Payment Priorities as Financial Crisis Accelerator (March 6, 2011). Stanford Law Review, Vol. 63, Issue3, p. 539, 2011, ECGI - Law Working Paper No. 153/2010, Harvard Public Law Working Paper No. 10-17, Available at SSRN: or

Mark J. Roe (Contact Author)

Harvard Law School ( email )

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