Regulatory Arbitrage, Extraterritorial Jurisdiction and Dodd-Frank: The Implications of US Global OTC Derivative Regulation
78 Pages Posted: 31 Oct 2012 Last revised: 5 Jun 2014
Date Written: April 30, 2014
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.
Keywords: over-the-counter derivative, OTC derivative, regulatory arbitrage, extraterritoriality, extraterritorial jurisdiction, Dodd-Frank, Dodd Frank
JEL Classification: E44, E58, F02, G15, G18, N20
Suggested Citation: Suggested Citation