International Swaps and Derivatives Association, Inc
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NEW YORKLONDONHONG KONGTOKYOWASHINGTONBRUSSELSSINGAPORE
30 April, 2012Edwin Schooling LatterHead of DivisionPayments & Infrastructure DivisionBank of EnglandBy email:edwin.schoolinglatter@bankofengland.co.uk
CCP Resolution
Dear EdwinThank you for your participation in a conference call with the Industry Clearing Committee(“ICC”) Capital and Risk Management working group in March. This letter summarises thisworking group’s views on Central Counterparty (“CCP”) resolution.We appreciate the work undertaken to date on this topic acknowledging the difficulty of achieving optimal CCP resolution settings, the fact that no loss allocation system can avoidallocating potentially significant losses to participants and the genuine importance of thiswork to the safe implementation of mandatory central clearing for standard Over-the-Counter(“OTC”) derivatives.At the outset, we wish to advise that the ICC Capital and Risk Management working group isthe industry forum with which the Committee on Payment and Settlement Systems (“CPSS”)and the Technical Committee of the International Organization of Securities Commissions(“IOSCO”) (collectively “CPSS-IOSCO”) can engage on the cross-industry “big ticket”aspects on this subject. To further our engagement, we would also like to arrange face-to-facemeetings with CPSS-IOSCO on CCP resolution and related topics, and would be grateful if you would propose suitable dates.
Executive summary
The goal of systemic risk reduction and resilience of the financial infrastructure needsto reflect CCP robustness and ensure that the contagion risk due to a suboptimal CCPresolution process – causing additional Clearing Member (“CM”) and client defaults –is avoided. This requires a CCP resolution process that contains mutualisation andlimited liability for CMs and their clients in respect of their CCP exposures. In caseswhere a product is cleared on a number of CCPs, but there are only a limited numberof CMs (FX non-deliverable forwards are a current example) then there is a real risk that a CM could fail on multiple CCPs simultaneously. It is important to make surethat the burden placed on remaining CMs does not lead to increased systemic risk.
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The idea that “nobody” takes the final loss once the CCP has exhausted its financialresources is not possible. Therefore, some loss allocation mechanism must exist. Weconsider it would be desirable for the loss allocation mechanism to be equitable andfair, and fall on the CMs and clients down to the beneficial owner. The rules for thedefault management process and the use of resources in a CCP default waterfall needto be encoded into a CCP’s operating rules. Any particular CCP default managementsystem should satisfy with the specific design criteria advanced in Part 2 of this letter.
Loss allocation must be used only in cases where the default waterfall – includingrecourse to the CCP’s dedicated own resources – has been exhausted and the CCP isfaced with potential insolvency.
An important design criterion of a loss allocation system is that it providesparticipants with a strong incentive to provide hedges to the CCP to enable the CCP tode-risk a defaulter’s portfolio. This is achieved with Variation Margin (“VM”)haircutting where, in the case of a large CM default, other CMs acting rationally try toflatten their exposure to the CCP, which in turn assists the CCP to rebalance. Theprecise mechanics of VM haircutting may vary at each CCP. Initial Margin (“IM”)haircutting may not offer the same incentive as IM could increase if a participantprovides a hedge to the CCP – the possibility of such outcomes could harm the defaultmanagement process. IM haircutting also distorts segregation and “bankruptcyremoteness”, which are embedded in many aspects of the new regulatory regimes. Of course these objections can be overcome with revisions to the IM regime, for exampleIM liabilities incurred during the hedging and auction processes could be excludedfrom any IM haircutting process to maintain the right incentives. Also, to the extentthat haircuts are limited, that portion of the margin could remain non-segregated.
Introduction
This letter contains three parts. First, we put the topic of CCP resolution into perspective toestablish a context for framework design. Please note that our thoughts in this context applyfor a potential CCP default due to a CM default. Further discussion is needed to form a viewon what should happen if a CCP defaults due to failed investments or fraud in the CCP.Second, taking the key considerations to their logical conclusion, we advance specific criteriathat a good CCP resolution regime should satisfy. We consider it important that any specificCCP resolution settings be reviewed and judged by reference to these criteria. Any particularsetting should be should be avoided where it conflicts with the criteria.Third, in light of the objectives and criteria advanced above, we make some specificproposals for CCP resolution. The proposals accept that far down the default waterfall“good” solutions are no longer available and participants face a choice between undesirablealternatives
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In the future some concept “bulk portability” (moving the whole portfolios of clearing members of a defaultedCCP to another, similar as the client portability) maybe a significantly more attractive alternative. As a result, itought to remain on the agenda.
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Part I – Key considerations
A cornerstone of global OTC derivate reform efforts is the mandatory clearing of standardised derivatives through CCPs. The aim is to prevent systemic risk to derivativemarkets as a result of contagion between market participants (as observed during the financialcrisis). These efforts can only be considered successful to the extent that the stability of financial markets is actually enhanced, in particular without the introduction of new andunpredictable systemic risks.Arguably, CCPs will become the most systemically relevant participants in global OTCderivative markets as a result of the reforms which have already been decided. We thereforeacknowledge the necessity to ensure that CCPs are prevented from experiencing a disorderlydefault. This should be considered already when deciding what products will be mandated tobe centrally cleared, so that CCPs are not forced to clear products that are difficult to risk manage and to auction off in case of a CM’s default.However, the aim of preventing market disrupting events does not imply the need to shieldCCPs from insolvency risk altogether. Neither would it be desirable from the standpoint of society: one of the major lessons of the financial crisis has been the widespread acceptance of conflicts associated with the notion of “moral hazard”, caused by private sector institutionsdeemed too big to fail.To the extent that policy-makers accept the “too-big-to-fail” notion in the context of CCPs -and as long as the regulatory intention is to run CCPs as private sector institutions, which webelieve they should - it is critical to consider moral hazard on the part of the owners of CCPsand their agents when making policy choices.The only way to successfully prevent moral hazard by CCP operators is to ensure that theysuffer the consequences of their actions. Given the need to prevent market disruption that canbe expected to occur in the run-up to a disorderly CCP insolvency, the usual bankruptcyproceedings must be substituted by a regime which results in an economic outcome no lessfair than that of a CCP insolvency.We disagree that the continuity of service of a CCP must be ensured under all circumstancesas part of an orderly CCP resolution regime. Unless Governments are willing to step in withtaxpayer money, decisions regarding re-capitalising a CCP after the successful conclusion of a resolution event must be left to the private stakeholders who have an interest in the CCP’scontinuation. In cases where no alternative CCP is available, even accepting that the affectedproducts are cleared bilaterally for a period until another CCP can be established couldreduce systemic risk, as opposed to continuing a CCP that might have demonstrated risk management shortcomings.There is no reason to believe that financial stability can only be preserved if every CCP thatis in operation is never allowed to exit the market. The requirement is, rather, that it must beensured that all market participants can clear their derivatives portfolios independent of theexistence of any particular CCP. In summary, it is the existence of a CCP to which marketparticipants could turn in order to clear their portfolios, which is the prerequisite of a goodresolution regime. It is not the existence of any particular CCP which is required. On thecontrary, for the reasons explained above, we consider resolution regimes that prescribe thecontinued existence of any particular CCP to be economically flawed.
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Final CCP Resolution Letter 30 04 12[1]
Since the CCP avoids insolvency through the loss allocation a potential moral hazard arises in which the CCP under protects the cleared positions with either insufficient margins or default funds or other waterfall protections. This may…
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