Like Rate-Fixing Scandals? You’ll Love the Credit Default Swap Market
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The rate-manipulation scandal has demonstrated that banks will collude with one another for their own benefit.
Banks didn't report the rate at which they were borrowing from other institutions. They could report a made-up rate that, not surprisingly, turned out to serve their economic interests at the time.
So, it might come as a worry that there is another, multitrillion-dollar market — the credit default swap market — that operates under a similar principle.
Credit default swaps are insurancelike derivatives, or side bets, that protect investors from bad events like a company going bankrupt or a country failing to pay its debts.
Whether a company has defaulted on its debt might seem unambiguous to some naïve souls out there. But that's hardly the case, especially when there are lawyers involved and billions of dollars at stake. Because credit default swap contracts can be worthless when they expire, the timing of insolvencies can be worth a great deal of money.
Decisions about when a swap pays out are made by a trade group called the determinations committee of the International Swaps and Derivatives Association. The mere fact that a determinations committee exists is evidence that "insolvency" is not simple to define.
Sure, credit default swaps are products for grown-ups. Sophisticated investors play in this market. Foster children and the infirm are not putting their life savings into this market directly.
But they matter to corporations and countries. When Europe tried to bail out Greece, an enormous debate sprang up about whether the restructuring of Greece's debt was technically considered a "default." Initially, the committee said it wasn't. Then, after some details shifted, the committee ruled it was.
A proper market would want an organization that was impartial, regulated, transparent and open to appeal.
No such luck.
The determinations committee has 15 members, 10 of which are the major dealers in credit default swaps, the giant banks that are effectively permanent members. One criterion for dealer members is that they trade a certain amount of derivatives. In the wake of the 2008 financial crisis, there are fewer such firms, and they have consolidated their influence and power over our capital markets.
The committee operates as a quasi-Star Chamber or cartel. It makes decisions without having to publish its reasoning and almost never has. There isn't any appeal process. The committee itself says it isn't bound by precedent.
In a terse statement last year about a decision that raised some experts' eyebrows, the committee gave the world some logic seemingly borrowed from the Supreme Court's ruling on Bush v. Gore: "This statement is not, and does not purport to be, binding" the committee wrote, even if it were presented with another situation that "relates to similar facts."
In other words: Ask us again tomorrow and you might get a different answer.
The biggest concern is that there's no prohibition against committee members deciding cases in which they may well have an economic interest. There is no recusal process. Indeed, it is almost impossible for the major dealers to not have a stake in the outcomes, since they are the major dealers.
A spokesman for the association contended that "there are safeguards built into the process which work to support integrity of process." The voting, if not the reasoning behind it, is publicly disclosed. The committee requires a supermajority for decisions, 12 of the 15 votes, so the dealers can't gang up on the other members. And it's entirely possible that banks might be on different sides of a trade, with some banks having sold protection and some having bought it. The hope would be that the conflicts of interest cancel each other out.
To the market's credit, there is no evidence that the process has become corrupted by big banks. Given the evidence of collusion in the rate-manipulation case, however, trusting it to remain that way doesn't seem like a good plan.
Oversight might be helpful here. But the new financial regulation under Dodd-Frank, while pushing most derivatives of the plain-vanilla kind onto clearinghouses, doesn't address this issue.
Sure, regulators can now get access to dealers' positions. And if that eases your concerns, I'm sure Barclays would like to make you a loan tied to the London interbank offered rate, the dubious benchmark at the center of the scandal.
Other remedies seem pretty apparent. Banks could disclose their positions ahead of rulings. The committee could issue its reasoning, which the association says it's planning to do. There could be an appeals process.
That banks haven't taken these steps yet is a display of the industry's casual disregard for any significant checks on their cartel businesses. It's a situation that has become so routine on Wall Street as to almost be unremarkable.
About The Trade
In this column, co-published with New York Times' DealBook, I monitor the financial markets to hold companies, executives and government officials accountable for their actions. Tips? Praise? Contact me at .(JavaScript must be enabled to view this email address)
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21 comments
Gary Kilgore
July 18, 2012, 1:52 p.m.
It has always been my impression that the primary effect of a CDS is to generate massive fees at a publicly traded company, and thereby loot the company’s treasury.
Harold
July 18, 2012, 1:53 p.m.
Someone on a news program recently stated that there are 300 trillion dollars worth of credit default swaps in the system. Could that be true? If so any level scares me.
Ray
July 18, 2012, 2:03 p.m.
And what are “artificial” SWAPS
susan miller
July 18, 2012, 3:03 p.m.
Brilliant article. Such esoteric stuff written for amateurs like me without dumbing it up for us. Thx, Jesse. Somebody give this kid a payraise.
Charley James
July 18, 2012, 4:27 p.m.
The Commodity Futures Trading Commission has proposed rules about an open market for credit default swaps, including a central “market” where prices would be posted and available to anyone. When it became obvious to Wall St. that the rule was going to come into force (because bankers were the only ones objecting), lobbyists scurried up to the Hill where they found Republicans on the House Agriculture Committee to insert a clause in a funding bill that prohibits the CFTC from forcing the creation of a transparent market. The bill is now moving to the floor.
The crookery continues.
And to Harold (at 2.53): The dollar figure is roughly correct.
Gary Kilgore
July 18, 2012, 4:50 p.m.
Well there you go, Jesse. Charley just gave you a lead on a great follow up article: expose on the congressmen who inserted a clause to prohibit transparency.
Richard
July 18, 2012, 5 p.m.
CDS are a very useful product as long as the net outstanding notional amount is kept in balance with the underlying debt of the reference entity. If CDS were to be settled (in case a credit event has triggered a relevant event) with deliverey of the underlying bond or equivalent with no cash-settlement allowed, an equilibrium between outstanding CDS and actual debt would be established: While the value of a long CDS increases bond prices will fall correspondingly - as bankruptcy nears, those who actually bought “protection” will have created a synthetic short position in the bond which neeeds to be covered - if they exercise their CDS, they have to deliver a bond of the reference entity. If the CDS market is overbought that would create a short squeeze in the underlying debt - these mechanics would exercise control. Once major market particpiants agreed on cash settlment it opened the floodgates, that was the crucial point when regulators should have stepped in. The CDS market does not need new regulation, it needs to correspond with the amount of underlying debt dynamically and excessive speculation would be curbed automatically, let market forces and not regulators do the work!
Harold
July 18, 2012, 6:19 p.m.
If regulators failed to step in during the 2008 disaster why would we trust them now?
james preston allen
July 18, 2012, 7:13 p.m.
And what do you know about the cousin of the credit default swap– the bond debt swap? This is where governments trade variable rates on their bonds for a fixed but higher rate with a brokerage. This financial “tool” seems to be driving the deficits of many cities along with some tricky things to do with their pension fund investments.
do you suppose that at the heart of the Greek debt crisis is this credit default swap and that the banks are going to make more profit on the country defaulting than they would if they didn’t?
j
July 18, 2012, 8:58 p.m.
@Harold, @Charlie James
https://www.cia.gov/library/publications/the-world-factbook/geos/xx.html lists Gross World Product at $79 trillion (approximately). That makes $300 trillion in credit default swaps 3.5 times GWP. In other words, if they all crashed, the world literally could not pay off the bets.
To me, that’s scary. And demands transparency & regulation before someone really tanks the economy.
John
July 19, 2012, 9:01 a.m.
Harold, in 2008, the number I remember consistently reported was in the neighborhood of sixty quadrillion. So, your number doesn’t sound out of the question today.
Now, given that we’re finding that banks are largely in the business of manipulating economies for their own benefit while barely acknowledging their customers, and playing with far more money (as j points out) than exists on the planet, here’s an uncomfortable question: What purpose do banks actually serve?
Seems to me that, if we can’t answer that question clearly and without invoking resemblance to another entity, the obvious solution is to exterminate the parasites, rather than regulate them.
To give an example of side-benefits, decades ago, when people had lost faith in the banks, the Post Office stepped up to handle deposits, check-cashing, and so forth. Given their precarious financial situation in a world where people don’t buy stamps, such a move could save them.
(Some early American colonies also eliminated taxes in favor of interest on government-provided loans. Ben Franklin doesn’t exactly strike me as a Commie, so I don’t imagine such a program should be a huge problem for us…)
tedbohne
July 19, 2012, 9:18 a.m.
i can’t believe derivatives market is still open for business? do they have a license to operate a casino?
Charley James
July 19, 2012, 9:20 a.m.
@ Richard (Yesterday at 6.00)
When I read your comment, I immediately wondered if you are a writer for The Daily Show or maybe Colbert and were trying out a bit for tonight’s show. If you’re not, then I have to winder what color the sky is on the planet where you live.
You wrote “let market forces and not regulators do the work.” Have you not picked up a newspaper recently?
- Right now, the entire basis of how banks set interest rates - LIBOR being an unregulated market - has been shown to be utterly corrupt. The scandal broke in Britain but is about to consume Bank of America, Citi and, quite likely, JPMorganChase.
- Recall hearing anything about “securitized mortgages”? That was another unregulated market that damn near sent the world into Great Depression II instead of merely The Lesser Depression. It so screwed up the credit markets that banks trying to foreclose on hapless homeowners can’t demonstrate, let alone prove to a court, who actually holds the mortgage to a house and thus has an interest in seizing it.
I could keep going but the list is too long. The financial industry has shown it has absolutely no ability to “self-regulate” (which is as much of an oxymoron as ‘jumbo shrimp,’ ‘military intelligence’ and ‘Justice Scalia’).
Gary Kilgore
July 19, 2012, 9:21 a.m.
I imagine you will all recall a quote from an interview in the WSJ some 20 years ago, the reporter asked a senior officer in one of the big brokerages the cause of criminal behavior in the financial markets. His response was, “money attracts scum”. Scum metastasizes in dark, opaque corners and endangers its’ host. There are two obvious choices: demand transparency and rigorously enforce discipline; or allow disease to flourish and destroy its’ host.
John
July 19, 2012, 9:39 a.m.
I would bet that those arguing that we should let the market operate may well be an investment bank lobbyist, banker or someone else who directly benefits from this corrupt practice. Transparentcy and some aggressive investigation and prosecution would help. But we also need politicians not willing to sell their souls. The loss of protective laws and enforcement practices are the primary reasons for this recession. A good public caning of a corrupt banker each morning would help.
Frank Keegan
July 19, 2012, 10:12 a.m.
Are taxpayers going to pick up the tab when these bets go bad on government deals? So far, it looks as if the answer is yes. The SEC is trying to figure out how much is hanging out there, but we know in a few instances local boards got sucker punched on these deals, and taxpayers suffered. How can we NOT regulate a process that puts our money at risk in the dark?
http://www.statebudgetsolutions.org/blog/detail/high-finance-bookies-betting-both-sides-of-municipal-bonds
Gary Kilgore
July 19, 2012, 10:42 a.m.
Oh, but we are mere Muppets. Too ignorant and foolish to understand ethereal finance. Too unsophisticated to trade in synthetic collateralized debt obligations and write credit default swaps with counter parties with no reserves. Too stupid to rate worthless mortgages as AAA. Too stupid to loan money to overextended socialist governments.
Gary Kilgore
July 19, 2012, 11:12 a.m.
Oh, but we are mere Muppets. Too ignorant to appreciate the rewards of ethereal finance. Too unsophisticated to trade in synthetic collateralized debt obligations backed by vaporous assets and write credit default swaps with counter parties with no reserves. Too stupid to rate worthless mortgages with AAA. Too simpleminded to loan money to hopelessly overextended socialist governments.
Gary Kilgore
July 19, 2012, 11:13 a.m.
Oops, sorry about that. I thought the first version failed to load.
james
July 19, 2012, 11:53 a.m.
I think that this is an old problem, one that was solved back during the Great Depression with the separation of investment banks from commercial or consumer banks. Anyone remember why the Savings and Loans crashed? They stopped doing the thing that they were created to do, local real estate lending!
The banks need to be forced back into traditional banking, not allowed to play with public investments in venture or vulture capitalism, OR the government should set up it’s own bank like North Dakota has done. We might conceive of banking like we do a public utility with a regulated profit margin.
Richard
July 19, 2012, 3:31 p.m.
@ Charley James today 10:20 et al
You must read my whole comment – I do not reject regulation, in the instance of CDS I try to explain that regulation again is coming late, while a little adjustment in the mechanics would create the desired effect.
And as you may have guessed, I am a banker, a liberal one though, and support meaningful regulation built on common sense and industry know how; with the current regulation orgy we get a lot of regulation, often counterproductive or just impossible to implement, just not the regulation we need. Financial markets are complex if we make them so, the underlying movers are pretty simple and once regulators would care to recognize that, we actually would get better regulation. But do not forget, regulators now have created a lucrative industry for themselves depending on ever more and complex regulation!