The long arm of Dodd-Frank

The U.S. Securities and Exchange Commission plans to vote today on a plan that will define how far its regulations reach into a segment of the $710 trillion global swaps market.

Transactions executed by foreign divisions of banks including JPMorgan Chase & Co. and Goldman Sachs Group Inc. will be subject to U.S. rules if the affiliate’s trades are legally guaranteed by the parent company, the SEC said in a statement. The new rule comes as Wall Street takes steps to restructure trades overseas to avoid Dodd-Frank Act regulations intended to increase competition and price transparency.

U.S. regulators have faced a backlash from European and Asian authorities for overreaching in their desire to apply Dodd-Frank rules overseas. Meanwhile, Wall Street lobbying organizations have sued the Commodity Futures Trading Commission, which is the primary U.S. regulator of derivatives, to limit the international scope of the agency’s power.

“The SEC has no excuse not to strongly regulate Wall Street’s overseas derivatives gambling,” Dennis M. Kelleher, president of Better Markets, a Washington-based nonprofit that advocates stricter bank regulation, said in an e-mail.

Cross-border application of U.S. derivatives rules is one of the most contentious features of Dodd-Frank, the regulatory expansion enacted after the 2008 credit crisis. The law gave the SEC authority over trading in equity and some credit-default swaps, about 5 percent of U.S. swaps, while the CFTC oversees the rest: swaps on interest rates, currencies, and credit indexes.

Split market

David Felsenthal, a New York-based partner at the Clifford Chance law firm, said the split oversight could cause problems for credit-default swaps.

“It will be very difficult if there is any inconsistency to try to mesh the two markets together,” Felsenthal said in a phone interview.

The SEC last year proposed to exempt U.S. banks’ overseas affiliates from registration when they deal predominantly with foreign clients. The agency changed that approach in the final rule, saying overseas trades guaranteed by the U.S. parent will be regulated when the guarantee is “a legally enforceable right.”

Critics of the SEC’s approach faulted the agency last year for taking a different approach than the CFTC, which oversees about 95 percent of the U.S. swaps market. Others said the SEC’s strategy would allow banks to escape regulation by moving more swaps deals offshore, which would raise the risk that an affiliate’s collapse could harm the U.S. parent company.

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