The regulation of derivatives
Be wary when you hear talk of "derivatives" without further qualification. They fall into three quite distinct categories: exchange-traded, over the counter (OTC), and swaps. Here is the best overall paper I know on that division. Wikipedia is useful as well.
I’ll cover swaps in a separate post soon, so for now let’s set those aside.
Exchange-traded derivatives include the instruments traded at the Chicago Mercantile Exchange and The New York Stock Exchange. Their regulation has overall gone well and no one serious has alleged that they are responsible for our current financial problems. That said, a single regulator is preferable to our current dual SEC-CFTC structure.
Most but not all OTC derivatives are interest rate derivatives. Equity derivatives fit this category as well and so do credit default swaps (even though they are called "swaps" they do not here fit into the swaps category).
These instruments are OTC because no clearinghouse in the middle guarantees the deal. That means more credit risk and that no single middleman is tracking net positions on a more or less real time basis. Ideally we would like to make OTC derivatives more like exchange-traded derivatives and we should consider regulation toward that end. (Do note that private swaps regulators have already done quite a bit to
clear up the issue of hanging and unconfirmed transactions.) At the margin the social benefits of such homogenization are higher than what the private swaps regulators will bring on their own accord. In essence homogenization and trading through a clearinghouse limits the leverage issue to a single, easily-regulated institution and therefore it limits the problem of counterparty risk.
The cost of such additional regulation will be higher transactions costs for the trades themselves and also greater contract homogeneity, which is a requirement for exchange trading, netting, and clearing. We need to make this move wisely and carefully, otherwise OTC derivatives could move to even wilder and less well regulated markets. Simply trying to shut down the OTC markets, even if that were the economically ideal vision (unlikely), would in terms of risk prove counterproductive. But the strong market positions of New York and London do make some effective regulatory action possible for OTC derivatives, especially if done in concert.
The lack of sufficient offset and netting and the inefficient spread of counterparty risk across a large number of institutions is an important issue behind current crises and it does not receive enough attention in most blogosphere discussions.
How about Europe? The 2006 Markets in Financial Instruments Directive extends traditional European financial regulation to OTC derivatives. Here is one source: "MiFID expands the definitions of financial instruments to include other frequently-traded instruments, including contracts for difference (CFDs) and other types of derivatives such as credit, commodity, weather and freight derivatives." Here is one overview of MiFID.
Implementation and enforcement is on a country-by-country basis and of course the UK is the big player. Read pp.27-29 in the very first link above and you’ll see that overall the UK has a looser regulatory approach than does the United States, though not on every single matter. For instance the UK is stricter on regulating hedge funds in OTC derivatives markets.
The more important point is that no country uses regulation of the derivatives market as its major line of defense against financial crises. Rather countries regulate their financial institutions, their risk, their leverage, and their accounting directly, of course with more or less success. Regulating the derivatives market, as opposed to regulating the institutions, and their possible participation in those markets, simply isn’t a very effective instrument.
To sum up: a) we should regulate OTC derivatives more, b) those regulations should aim toward establishing netting and well-capitalized clearinghouses, not micro-management of those markets, which would prove both impossible and counterproductive, and c) regulating OTC derivatives is only a weak substitute for regulating the institutions which trade in them.
The U.S. passed the Commodity Futures Modernization Act of 2000, which, among other things, limited the ability of the federal government to regulate OTC derivatives. I’ll cover that Act in a separate post and yes I do think it should be amended. But I’ll start by saying that most blogosphere critics of the act simply do not know or understand much of the above.