Incomplete Clearinghouse Mandates
56 American Business Law Journal 507 (2019)
82 Pages Posted: 23 Aug 2019
Date Written: August 22, 2019
In the 2007-2008 financial crisis, over-the-counter (OTC) derivatives triggered the collapse of colossal financial institutions. In response, global policymakers instituted clearinghouse mandates. As a result, all standardized OTC derivatives must now use clearinghouses, and global financial market stability now depends upon these institutions. Yet certain underlying legal and regulatory structures threaten to undermine clearinghouse stability, particularly were a significant clearinghouse to become distressed. This article argues that the clearinghouse mandates are incomplete in falling short of also reforming these problematic arrangements. As with electric utilities, the lights at the financial market infrastructures known as clearinghouses must always be on. Yet the legal frameworks for handling a distressed clearinghouse, the problem of clearinghouse recovery and resolution, remain uncertain. This article advances debate on this issue. It argues that recovery, a private market restructuring process, can be conceptualized as a bargaining game dependent upon time-critical cooperation between a clearinghouse and members. This article uses transaction cost economics to demonstrate, however, that certain underlying legal and regulatory structures could work at cross-purposes to this necessary cooperation, and actually increase its cost. Based upon this analysis, it proposes reforms designed to ensure that parties’ incentives promote efficient recovery. In the absence of efficient recovery frameworks, the path of a distressed, significant clearinghouse is likely to resemble that of the government-backed mortgage lenders whose fate more than ten years after their entry into conservatorship remains uncertain. This article aims to help avoid a repeat of this history.
Keywords: clearinghouse, derivatives, systemic risk, financial market stability, recovery, resolution, Dodd-Frank financial crisis, clearinghouse mandates, G20 crisis reforms, transaction cost economics, ownership structure, interdependent security problems
JEL Classification: K00, K12, K2, K23, K22, F01, F02, F03, F05
Suggested Citation: Suggested Citation