Central Clearing of Financial Contracts: Theory and Regulatory Implications

47 Pages Posted: 18 Jan 2018 Last revised: 19 Jul 2019

Date Written: May 3, 2018

Abstract

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with derivatives and commodity exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical importance because the aggregate monetary exposure on non-derivative financial contracts — and thus the potential systemic risk that could be triggered by that exposure — greatly exceeds that on derivatives contracts. The inquiry also raises fundamental legal questions as to why (and the extent to which) regulators should tell financial institutions how to control risk, and whether to require the mutualization of risk.

Keywords: contracts, derivatives, risk

Suggested Citation

Schwarcz, Steven L., Central Clearing of Financial Contracts: Theory and Regulatory Implications (May 3, 2018). University of Pennsylvania Law Review, Vol. 167, 2018-19 (Forthcoming), Duke Law School Public Law & Legal Theory Series No. 2018-14, Available at SSRN: https://ssrn.com/abstract=3104079 or http://dx.doi.org/10.2139/ssrn.3104079

Steven L. Schwarcz (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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