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Regulating the Invisible: The Case of Over-the-Counter Derivatives

88 Pages Posted: 15 Jan 2011  

Colleen Baker

University of Oklahoma, Michael F. Price College of Business

Date Written: November 30, 2010

Abstract

In this Article, I focus on the regulation of the over-the-counter (OTC) derivative markets. I argue that current reform proposals and draft legislation fall short of constructing the linked domestic and international frameworks needed to successfully regulate the OTC derivative markets. The purpose of my Article is to propose and defend such a framework. Because of the inseparability of the domestic and international aspects of this issue, I argue that in addition to increased prudential supervision and regulation, the regulation of OTC derivative markets requires interwoven domestic and international systems for regulatory cooperation. This recommendation has two parts. First, Congress should create a framework of regulatory cooperation between the SEC and the CFTC through a regulatory joint venture. Second, I argue for an international framework of regulatory cooperation using a system of public-private partnerships to coordinate regulation of OTC derivatives in the global marketplace.

Keywords: derivative markets, OTC, international regulatory cooperation, SEC, CFTC, regulatory joint venture, over-the counter, ISDA, financial regulation

Suggested Citation

Baker, Colleen, Regulating the Invisible: The Case of Over-the-Counter Derivatives (November 30, 2010). Notre Dame Law Review, Vol. 85, p. 1287, 2010; Notre Dame Legal Studies Paper No. 03-11. Available at SSRN: https://ssrn.com/abstract=1739882

Colleen M. Baker (Contact Author)

University of Oklahoma, Michael F. Price College of Business ( email )

307 West Brooks
Norman, OK 73019-4004
United States

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