September 7, 2018
Basel Committee on Banking Supervision
Committee on Payments and Market Infrastructures
Financial Stability Board
International Organization of Securities Commissions

Re:

Consultative Document on Incentives to Centrally Clear OTC Derivatives

Citadel 1 appreciates the opportunity to provide input on the consultative document analyzing
incentives to centrally clear OTC derivatives (the “Draft Report”). 2 In the following pages, we
provide our feedback on the specific questions in the consultation. Our recommendations are alsopresented in consolidated format in an Annex at the end.
The following observations inform our response to the consultation:•

Clearing Rates. While material progress has been made in achieving the G20 goal of clearing
all standardized OTC derivatives, headline statistics based solely on the US market (which has
implemented the most comprehensive clearing mandate) or on the percentage of outstanding
notional amounts cleared obscure the fact that significant additional implementation work
remains. Analysis based solely on outstanding notional amounts dramatically underestimatesthe ongoing trading activity of clients, as it includes legacy positions and types of OTC
derivatives that are not covered by a clearing mandate at all, and does not take into account theongoing compression occurring at CCPs that significantly reduces outstanding cleared
notional. Instead, clearing rates should be closely tracked based on the percentage of new
trading activity that is being cleared in order to accurately evaluate client incentives to clear.
(See response to question 14 for additional detail)•Risks Associated with Overly Broad Exemptions. Addressing systemic risk in the OTC
derivatives market cannot be accomplished simply by bring the largest firms into central
clearing. To the extent material trading volumes or a significant number of financial firms
remain outside central clearing, bilateral counterparty credit exposures persist. While theuncleared trading activity and exposures of any given smaller financial firm may not present
systemic risk concerns in isolation, the sheer number of these bilateral exposures outside ofcentral clearing perpetuates systemic risk in aggregate, acting as a risk transmission channel inthe event of a significant counterparty default. (See response to question 14 for additional
detail)1

Citadel is a global financial firm built around world-class talent, sound risk management, and innovative marketleading technology. For more than a quarter of a century, Citadel’s hedge funds and capital markets platforms havedelivered meaningful and measurable results to top-tier investors and clients around the world. Citadel operates inall major asset classes and financial markets, with offices in the world’s leading financial centers, including
Chicago, New York, San Francisco, Boston, London, Dublin, Hong Kong, and Shanghai.
2
Incentives to centrally clear over-the-counter (OTC) derivatives: A post-implementation evaluation of the effectsof the G20 financial regulatory reforms (7 Aug 2018), available at: http://www.fsb.org/wpcontent/uploads/P070818.pdf.

1•

Clearing Mandates: Implementation Timing and Scope. Determining whether a particular
type of client is subject to a clearing mandate is critical in evaluating incentives to clear.
However, this determination varies significantly by jurisdiction. For example, the clearing
mandate has been fully implemented in the US, but remains only partially implemented in theEU, with a phase-in yet to occur for “Category 3” financial counterparties, pension schemes,and “Category 4” non-financial counterparties. In addition, except for the US, material
exemptions exist for financial counterparties, with many jurisdictions applying clearing
mandates only to the dealer-to-dealer market, leaving all clients exempt. (See response toquestions 2, 13, and 14 for additional detail)•Uncleared Initial Margin Requirements: Implementation Timing and Scope. Regulatory
initial margin requirements for uncleared derivatives have not yet been implemented in the
dealer-to-client market, with the phase-in expected to occur in September 2019 and September
2020. Given the importance of uncleared initial margin requirements in determining incentives
to clear, this means that incentives for all clients, regardless of the level of trading activity, arelikely to be quite different now compared to post-implementation of these rules. This should
be explicitly acknowledged in any analysis of client incentives to clear. In addition, it is worth
noting that many financial counterparties will fall below the 8 billion threshold and therefore
will not be subject to regulatory uncleared initial margin requirements. (See response toquestions 1, 2, 3, and 14 for additional detail)Responses to Questions for Public Consultation
Questions on Incentives
1. Do you agree or disagree with the finding that, in general, there are strong incentives fordealers and larger (in terms of level of derivatives activity) clients to centrally clear OTC
derivatives? Do you agree or disagree with the finding that some categories of clients haveless strong incentives to use central clearing?
The Draft Report comprehensively analyzes various regulatory and non-regulatory factorsthat influence incentives to centrally clear OTC derivatives. However, we believe that it ispremature to draw definitive conclusions regarding clearing incentives for any category ofclient – large or small – while the implementation of initial margin requirements for uncleared
derivatives is yet to be completed.
Both the qualitative and quantitative data summarized in the Draft Report clearly
demonstrate the importance of initial margin requirements for uncleared derivatives inassessing incentives to centrally clear. Dealers and client clearing service providers identified
the uncleared margin requirements as incentivizing central clearing more than any otherregulatory reform. 3 In turn, the quantitative data shows that where uncleared initial margin
requirements do not apply (but variation margin requirements do), bilateral OTC trading is lesscostly than central clearing, regardless of the activity level of the client. 4
3

Draft Report at Figure D.1 (page 24).

4

Draft Report at pages 34-35 and Table A4.3 (page 96).

2

Importantly, due to the ongoing phase-in, regulatory uncleared initial margin requirements
will not apply to clients (i.e. non-clearing members) until September 2019 at the earliest. 5
Until then, many clients are trading uncleared derivatives under CSAs that either require (a) 2way variation margin but no initial margin or (b) 2-way variation margin and 1-way initial
margin (with the client posting but not the dealer). 6 As discussed above, the quantitative datasuggests that bilateral trading under option (a) is less costly then central clearing. Option (b)was not considered in the Draft Report, which is an unfortunate omission, given that sucharrangements are also likely to skew the economics in favor of bilateral trading, particularly
for dealers.
It is therefore the case that client incentives, regardless of the level of trading activity, arelikely to be quite different now compared to post-implementation of the uncleared initial
margin requirements. For those clients that are not currently required to post initial marginwhen trading uncleared derivatives, the initial margin requirements for cleared trades create an
unlevel playing field that disincentivizes voluntary clearing. This helps to explain why clients
identified cleared initial margin as the biggest disincentive for voluntary clearing 7 and did not
identify uncleared initial margin as a significant incentive in favor of voluntary clearing (giventhat these requirements do not yet apply). 8
We therefore recommend that the final report should:•

Ensure that the current implementation status of the uncleared initial margin
requirements is clearly described, including that dealer-to-client trades will be
generally unaffected until September 2019 at the earliest. In several areas, the Draft
Report could be read to suggest that uncleared initial margin requirements (and thecorresponding incentives) already apply to certain clients. 9•

Clearly state when conclusions regarding clearing incentives are based on theassumption that uncleared initial margin requirements either apply or will apply
pursuant to the current phase-in schedule. 10 As discussed above, client incentives,
regardless of the level of trading activity, are likely to be quite different now comparedto post-implementation of the uncleared initial margin requirements.

•

Recommend follow-up research to verify any preliminary conclusions regarding client
clearing incentives after the full phase-in of the uncleared initial margin requirements.

5

We note there has been one reported exception. See “Brevan Howard is the first non-bank caught by margin rules,
sources say,” Risk (17 Aug 2018), available at: https://www.risk.net/derivatives/5867231/brevan-howard-is-firstnon-bank-caught-by-margin-rules-sources-say.
6

It would be useful to publish the aggregate responses to client survey questions 16a and 16b in the final report inorder to detail the types of CSAs currently used by clients.

7

Draft Report at Figure D.2 (page 25).

8

Draft Report at Figure D.3 (page 26).

9

See, e.g., Draft Report at pages 2, 16, 27 (Table D.5), and 28.

10See, e.g., the findings summarized on page 2 of the Draft Report.

3

2. Do you agree or disagree with the finding that relevant post-crisis reforms have, overall,
contributed to the incentives to centrally clear? Is the consultative report’s
characterisation of distinctions in how the reforms have affected incentives for different
types of clients consistent or inconsistent with your experience?
We agree that the post-crisis regulatory reforms create incentives to centrally clear OTC
derivatives. In addition to the clearing mandates implemented by various G20 jurisdictions,the qualitative responses summarized in the Draft Report highlight the importance of uncleared
margin requirements and bank capital requirements in incentivizing central clearing. 11 The
impact of these regulatory reforms can be seen in quoted spreads for dealer-to-dealer trades,with the cost advantage of cleared (versus bilateral) increasing as the various reforms havebeen implemented. 12Given the significance of the post-crisis regulatory reforms, it is therefore true that market
participants subject to the reforms will have very different incentives than those exempted fromthe reforms. For clients, however, this determination of in-scope vs. out-of-scope is currently
in a state of flux as specific regulatory reforms continue to be gradually phased-in. In addition,
this determination may vary across jurisdictions due to local implementation decisions,
resulting in identical types of clients experiencing very different incentives depending on
location. We provide a summary of implementation status and available exemptions for boththe clearing mandate and uncleared initial margin requirements below.
Clearing Mandates•

Implementation Status: The clearing mandate has been fully implemented in the US,
but remains only partially implemented in the EU, with a phase-in yet to occur for“Category 3” financial counterparties, pension schemes, and “Category 4” nonfinancial counterparties. 13 With respect to other jurisdictions, some have implemented
clearing mandates, some have final regulations that would allow for a subsequent
implementation of a clearing mandate, and some are still considering whether toimplement a clearing mandate. 14•

Available Exemptions: For financial counterparties, the US clearing mandate contains
a narrow exemption for credit institutions with less than $10 billion in assets. 15 Broader
exemptions for small financial counterparties are contemplated in the EMIR Refit
legislation in the EU, with outstanding gross notional thresholds set at EUR 3 billion

11

Draft Report at Figure D.1 (page 24).

12

Draft Report at Figure D.17 (page 40).

13

See “OTC Derivatives Market Reforms: Twelfth Progress Report on Implementation,” FSB (29 June 2017) at
Appendix J, available at http://www.fsb.org/wp-content/uploads/P290617-2.pdf.

14

Id. at Appendix C.

15

Other minor exemptions exist, such as for “community development financial institutions.” See Amendments toClearing Exemption for Swaps Entered Into by Certain Bank Holding Companies, Savings and Loan Holding
Companies, and Community Development Financial Institutions, available at:https://www.cftc.gov/sites/default/files/2018-08/federalregister082318.pdf.

4

for interest rate derivatives and EUR 1 billion for credit derivatives. 16 Many otherjurisdictions have provided even broader exemptions that result in only dealer-to-dealer
transactions being subject to the clearing mandate. 17
Uncleared Initial Margin Requirements•

Implementation Status: Requirements will not apply to dealer-to-client trades until
Phase 4 (threshold of 750 billion) and Phase 5 (threshold of 8 billion) implementationin September 2019 and September 2020, respectively.

•

Available Exemptions: Clients below an 8 billion threshold in outstanding uncleared
notional are exempt.

Example Scenario Comparing US and EU Rules
Financial counterparty that regularly trades OTC derivatives, but has less than 8 billion in
outstanding gross notional of uncleared derivatives.

Clearing Mandate

Uncleared Initial Margin

USEU

In scope

Part of “Category 3,” socurrently out-of-scope.
Upon finalization of EMIR
Refit, may be brought inscope depending on theoutstanding gross notional
threshold.

Out-of-scope

Out-of-scope

The summary above illustrates the difficulty in making broad generalizations aboutclearing incentives based on client type or level of trading activity. As indicated in theexample, an identical type of client may have very different incentives depending on whether
they are located in the US or the EU, as the Draft Report highlights that clients subject toclearing mandates are more likely to voluntarily clear other derivatives. 18 In addition, for all
types of clients, regardless of level of trading activity, bilateral trading may still be more costeffective prior to the implementation of uncleared initial margin requirements. 19 However,incentives should be expected to shift significantly for many clients once these requirements
are introduced, with the exception of those clients permanently exempted.

16

See https://ec.europa.eu/info/law/better-regulation/initiatives/com-2017-208_en.

17

See supra note 13.

18

Draft Report at page 33.

19

Draft Report at pages 34-35 and Table A4.3 (page 96).

5

For these reasons, the final report should:•

Acknowledge the limitations of broad generalizations about clearing incentives basedon client type or level of trading activity. Given that many incentives are based onwhether a particular client is in-scope or out-of-scope of a particular regulatory reform,
it may be preferable to focus on (a) the observed and expected impact of various
regulatory reforms on clearing incentives, (b) whether the implementation of eachregulatory reform is complete or ongoing (which may vary by regulatory reform andjurisdiction), and (c) the client segments that are eligible for exemptions (which willvary by regulatory reform and jurisdiction).

3. Do the margin requirements for uncleared derivatives give a sufficient incentive to clear?
How do these requirements interact with mandatory clearing obligations to incentivise
clearing? Are there particular instruments, and specific types of entities where the
incentive to clear is not adequate? In such cases, are there specific aspects of therequirements that diminish incentives to clear?
Data summarized in the Draft Report suggests that the initial margin requirements foruncleared derivatives, where implemented, do incentivize central clearing, consistent with oneof the explicit objectives of the reform. 20 Following Phase 1 implementation for the largest
dealer banks in September 2016, voluntary central clearing of dealer-to-dealer inflation swaps
and non-deliverable forwards significantly increased. 21 In addition, quoted spreads for dealerto-dealer trades moved in favor of cleared (vs bilateral) trades during the same time period. 22
Similar incentives in favor of central clearing are expected to apply to dealer-to-client
trades once Phase 4 and Phase 5 implementation occurs in September 2019 and September
2020, respectively. The Draft Report underscores the importance of completing this
implementation in order to ensure that central clearing is appropriately incentivized for all
standardized OTC derivatives. At the moment, in contrast to the observed increase involuntary clearing of dealer-to-dealer transactions in standardized OTC derivatives not subject
to a clearing mandate, dealer-to-client voluntary clearing rates remain relatively low.
According to the Draft Report, only 43% of clients indicated that they currently engage involuntary clearing and, of those that do, 80% did so for less than 20% of their trading activity
as measured by gross notional outstanding. 23 Separate analysis of the US market also foundrelatively low levels of voluntary clearing for interest rate derivatives and index CDS. 24

20
Draft Report at page 10. We note that the variation margin requirements for uncleared derivatives largely
formalized existing market practice and, therefore, do not separately serve as a material incentive to clear.
21

Draft Report at Figure C.7 (page 20).

22

Draft Report at Figure D.17 (page 40).

23

Draft Report at page 43.

24

In the US market, approximately 3% of total cleared notional for both interest rate derivatives and index CDS wasvoluntarily cleared in 2017. “Actual Cleared Volumes vs. Mandated Cleared Volumes: Analyzing the US
Derivatives Market,” ISDA (July 2018) at pages 3 and 16, available at: https://www.isda.org/a/6yYEE/ActualCleared-Volumes-vs-Mandated-Cleared-Volumes.pdf.

6Voluntary clearing rates for dealer-to-client trades are directly impacted by the gradualphase-in of the uncleared initial margin requirements. Until the uncleared initial margin
requirements apply to dealer-to-client trades, the disparity between cleared and uncleared
initial margin requirements can create an unlevel playing field that discourages clearing andquoted dealer spreads may not materially favor clearing. 25 Therefore, in the absence of
uncleared initial margin requirements for dealer-to-client trades, voluntary clearing rates formany standardized OTC derivatives not yet subject to a clearing mandate, such as interest rate
derivatives in non-mandated currencies, single-name CDS, CDS referencing non-mandated
indices, and FX non-deliverable forwards may remain at sub-optimal levels even though viable
clearing offerings exist. As a result, we believe the full phase-in of uncleared initial margin
requirements as scheduled is necessary to achieve the G20 goal of clearing all standardized
OTC derivatives.
The Draft Report also highlights that any general relaxation of the uncleared initial margin
requirements prior to this phase-in could reduce or eliminate the incentives in favor of central
clearing. The quantitative data suggests that the difference between required cleared anduncleared initial margins is less than expected. 26 In fact, CFTC research summarized in the
Draft Report found that the uncleared margin required for certain portfolios can even be lower
than the corresponding cleared margins, specifically as low as “54% of the ‘all risks’ cleared
margin for the same portfolio.” 27 This helps to explain why the Draft Report found that somedealers were able to provide lower quotes for bilateral trades than for cleared trades, even when
taking into account uncleared initial margin requirements. 28 While targeted calibrations may
be warranted, any general relaxation of uncleared initial margin requirements would, therefore,risk eliminating any incentive to clear created by this post-crisis reform (and could even createa disincentive to clear if cleared initial margins became consistently higher for similar
portfolios).
Although the uncleared initial margin requirements provide an important incentive in favorof central clearing, they do not replace the need for a clearing mandate for the most liquid andcommonly cleared OTC derivatives. Only a clearing mandate ensures an orderly transition ofliquidity to the cleared version of an OTC derivative, avoiding the risk of liquidity bifurcation.
This mandated transition also encourages client clearing service providers to support theavailable CCP offerings and encourages dealers to provide quotes for the cleared version of an
25

Draft Report at page 39.

26

Draft Report at pages 37 and 95.

27

Draft Report at page 37. We note that this research also found that 32% of dealer firms had higher cleared margin
requirements (vs uncleared) when all initial margin costs were included. Roberson, M., “Cleared and uncleared
margin comparison for Interest Rate Swaps,” CFTC staff paper (April 2018) at page 10, available at:https://www.cftc.gov/sites/default/files/idc/groups/public/%40economicanalysis/documents/file/dcr_cleared_unclear
ed_margin.pdf.
28

Draft Report at page 30. We note that the quantitative data may even include cleared prices that are better thanclients can reasonably expect to receive, given that it appears dealers were asked to assume that they were serving as
both the client’s trading counterparty and clearing broker (Draft Report at page 106). Assuming a “bundled” trading
and clearing offering could result in discounted pricing for those clients, but may not be permitted by relevant
regulation. See CFTC Conflicts of Interest Rules- §23.605(d), 77 Fed. Reg. 20128 at 20211, available at:
http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2012-5317a.pdf.

7

instrument, neither of which may occur for non-mandated OTC derivatives. Finally, by
requiring clients to enter into a clearing relationship and test the associated operational
workflows, a clearing mandate can remove hurdles preventing clients from voluntarily
clearing. In fact, the Draft Report highlights that clients subject to clearing mandates are more
likely to voluntarily clear other derivatives. 29
The importance of the clearing mandate is clearly demonstrated in the qualitative
responses, with dealers, client clearing service providers, CCPs, and clients all ranking theclearing mandate as the most important driver of increased volumes of cleared OTC
derivatives. 30 It is also important to note that a market-wide transition of liquidity to central
clearing has yet to occur for any non-mandated instruments, even where clearing offerings areavailable.
In effect, the clearing mandate and the uncleared initial margin requirements work together
to incentivize the central clearing of standardized OTC derivatives. While the clearing
mandate applies to the most liquid and commonly cleared OTC derivatives, the uncleared
initial margin requirements help to identify the next batch of instruments that should beconsidered for inclusion in the mandate by creating the appropriate incentives for CCPs,
clearing members, dealers, and clients to expand clearing offerings and support voluntary
clearing.
Based on the above, the final report should:•

Recommend additional research to track voluntary clearing rates across non-mandated
products with viable clearing offerings as the uncleared initial margin requirements
continue to be phased-in.

•

Recommend additional research comparing uncleared margin requirements under the
SIMM model with cleared margin requirements for identical portfolios.

4. The consultative report seeks to identify the most important regulatory and nonregulatory factors which affect incentives to centrally clear OTC derivatives for dealers,
other financial intermediaries, large clients and small clients. Please identify any
significant missing factors and comment on the relative strength of regulatory and nonregulatory factors discussed in the consultative report.
We agree with the Draft Report’s analysis of the regulatory factors that affect incentives tocentrally clear OTC derivatives, and the particular emphasis placed on the clearing mandate,uncleared initial margin requirements, and bank capital requirements. 31 These post-crisis
reforms are critical in establishing the appropriate incentive structure to achieve the G20 goalof clearing all standardized OTC derivatives.
29

Draft Report at page 33.

30

Draft Report at page 40.

31

Draft Report at page 2.

8However, once a market participant starts to centrally clear, non-regulatory factors can play
an important role in incentivizing the voluntary clearing of additional products. For clients, as
indicated in the Draft Report, these factors tend to relate to netting and compression
opportunities, counterparty risk management, and trading and transparency enhancements. 32
While the Draft Report discusses the multilateral netting benefits of central clearing, 33 moredetail could be provided regarding these other non-regulatory factors. In particular:•

Portfolio Compression: CCPs and third-party services, such as TriOptima, are
beginning to expand the portfolio compression opportunities available to clients forcleared OTC derivatives. 34•

Counterparty Risk Management: Clients are protected from the default of theirtrading counterparties through the CCP’s risk and default management frameworks andcollateral is held at the CCP rather than on the balance sheet of trading counterparties.

•

Trading and Transparency Enhancements: Clients obtain transparent end-of-day
pricing on cleared positions from the CCP and can unlock various trading-related
benefits. By eliminating bilateral counterparty credit risk (and, therefore, the need forbilateral trading documentation), central clearing enables clients to access a broader
range of trading counterparties. 35 As a result, price competition is enhanced and new
liquidity providers have a reason to enter the market. This should be expected to resultin increased liquidity and more competitive spreads. 36
While the Draft Report acknowledges research has found that spreads do tend to betighter in cleared markets, there is a suggestion that this might also be due to tradingreforms. 37 However, it is important to note that trading reforms cannot occur unlesscentral clearing is first in place, as regulatory trading mandates only apply to OTC
derivatives already subject to a clearing mandate and other market-driven tradingreforms (such as order book trading) require the elimination of complex bilateral
trading documentation. For this reason, trading-related benefits for cleared OTC
derivatives should be considered when analyzing the benefits of central clearing.

32

See Draft Report at Figure D.3 (page 26). Of the top six factors identified by clients as incentivizing clearing in
non-mandated products, only one is clearly regulatory-related.

33

Draft Report at page 55.

34“TriOptima and SwapClear include first client-cleared trades in triReduce swap compression cycle,” NEX (24
October 2016), available at: https://www.trioptima.com/news/trioptima-and-swapclear-include-first-client-clear.

35
Accessing a larger set of counterparties was the fourth highest incentive in favor of voluntary clearing identified
by clients. See Draft Report at Figure D.3 (page 26).
36

Spreads were the second highest incentive in favor of voluntary clearing identified by clients. See Draft Report at
Figure D.3 (page 26).

37

Draft Report at page 42. We would also include the findings of Benos, E., Payne, R., and Vasios, M., Centralized
trading, transparency and interest rate swap market liquidity: evidence from the implementation of the Dodd-Frank
Act, Bank of England Staff Working Paper, May 2018, available at: https://www.bankofengland.co.uk//media/boe/files/working-paper/2018/centralized-trading-transparency-and-interest-rate-swap-market-liquidityupdate.

9

We recommend that the final report provide more detail on the non-regulatory factors
identified by clients as incentivizing voluntary clearing, including netting and compression
opportunities, counterparty risk management, and trading and transparency enhancements.
Questions on Markets
5. Is the consultative report’s characterisation of the shift of activity and trading liquidity
towards centrally cleared products, and the consequent impact on uncleared products,
consistent or inconsistent with your experience?
The post-crisis regulatory reforms for OTC derivatives seek to mitigate systemic risk by,among others, incentivizing central clearing and ensuring that uncleared exposures are subject
to appropriate capital and margin safeguards. As a result, these reforms are expressly intended
to impact trading volumes in uncleared OTC derivatives.
In particular, for those OTC derivatives subject to a clearing mandate that has been fully
phased-in across a broad spectrum of market participants, trading volumes have definitely
shifted to the cleared version of the instrument. For other OTC derivatives, bank capitalrequirements and uncleared initial margin requirements will likely change the economics
associated with transacting bilaterally, though, in principle, in a manner that ensures that
inherent risks are now properly accounted for, increasing the overall safety and soundness ofthe financial system.
Nevertheless, it is important to note that a market-wide transition of liquidity to central
clearing has yet to occur for any non-mandated instruments, even where clearing offerings areavailable. Relatively low voluntary clearing rates for clients 38 and the finding that somedealers were able to provide lower quotes for bilateral trades than for cleared trades 39 bothsuggest that uncleared derivatives continue to be actively traded, notwithstanding thecontinued implementation of the post-crisis reforms.
We, therefore, recommend further research on voluntary clearing rates for OTC derivatives
in order to track trends in liquidity and trading activity for instruments and market participantsthat are not subject to a clearing mandate.
6. There are various industry efforts underway to reduce the cost of clearing, including
portfolio compression and direct clearing membership models. Based on your experience
are these proposals, or other forthcoming changes to clearing infrastructure and models,
likely to affect incentives to provide or use clearing services?
Industry efforts to mitigate the impact of the leverage ratio on client clearing service
providers may positively impact incentives to clear. These efforts include (a) treating variation
margin on cleared OTC derivatives as settlement in order to reduce regulatory capital
38

Draft Report at page 43.

39

Draft Report at page 30.

10requirements 40 and (b) holding client initial margin off balance sheet so that it does notcontribute to the leverage ratio. 41 Given the observed challenges created by the leverage ratio(as discussed in Question 9 below), these efforts have the potential to unlock additional
clearing capacity but are ultimately not a substitute for a recalibration of the leverage ratio.
Questions on Reforms
7. Do you agree or disagree with the report’s characterisation of the effects of the following
reforms on incentives to centrally clear?
a. central clearing mandates (both in terms of product scope and entity scope);b. minimum standards for margin requirements for uncleared derivatives;c. capital requirements for credit valuation adjustment (CVA) risk;d. capital requirements for jump-to-default risk (including where applicable theStandardised approach for counterparty credit risk (SA-CCR) and the Current
exposure method (CEM));
e. G-SIB requirements; andf. The leverage ratio.
Yes, we agree with the Draft Report’s analysis of the regulatory factors that affectincentives to centrally clear OTC derivatives, and the particular emphasis placed on theclearing mandate, uncleared initial margin requirements, and bank capital requirements. 42
8. Do you agree or disagree with the consultative report’s characterisation of the impact ofthese reforms on the incentives to provide client clearing services?
We agree with the Draft Report’s finding that the leverage ratio can negatively impact
incentives to provide client clearing services. Client clearing service providers identified theleverage ratio as disincentivizing clearing far more than any other regulatory reform, 43 giventhat it does not take into account the exposure reducing effect of client initial margin whencalculating potential future exposure. This treatment of client initial margin is inconsistent
with regulatory efforts to incentivize the clearing of OTC derivatives.
On the other hand, we recommend that the final report specifically acknowledge that the
post-crisis reforms incentivizing central clearing, in particular the clearing mandate anduncleared initial margin requirements, can help to alleviate clearing access issues, as CCPs andclient clearing service providers are motivated to invest in expanding their offerings.
Implementing these regulatory requirements pursuant to clear and firm timelines provides
CCPs and client clearing service providers with the necessary certainty regarding when client40

See “U.S. Banking Agencies Clarify Capital Treatment of Cleared Derivatives with Settled-to-Market Variation
Margin,” Davis Polk Client Memorandum (21 Aug 2017), available at: https://www.davispolk.com/files/2017-0821_u.s._banking_agencies_clarify_capital_treatment_of_cleared_derivatives_with_settled-tomarket_variation_margin.pdf.
41

Draft Report at page 65.

42

Draft Report at page 2.

43

Draft Report at Figure D.1 (page 24).

11

clearing volumes can be expected to materially increase.
In contrast, extended implementation delays, such as those that have been provided under
the phase-in of the EU clearing mandate, can undermine the commercial incentives to provide
client clearing services. While well-intentioned, extended implementation delays of key
regulatory requirements can disincentivize CCPs, clearing members, and related service
providers from further investing in client clearing offerings and innovative solutions to meetthe needs of specific client segments. The commercial viability of current client clearing
offerings may also depend on client clearing volumes growing as anticipated under the original
phase-in schedules. Lastly, final commercial negotiations between clients and their clearing
members that ultimately dictate the cost of clearing typically do not occur until the effective
date of a clearing mandate is imminent.
9. Are there any areas where potential policy adjustments should be considered which
would enhance the incentives for or access to central clearing of OTC derivatives, or the
incentives to provide client clearing services?
As discussed in Question 8 above, client clearing service providers identified the leverage
ratio as disincentivizing clearing far more than any other regulatory reform. 44 In fact, 89% ofclient clearing service providers indicated that the leverage ratio had a negative impact on theirability to offer client clearing. 45 For context, no other capital standard received negative
feedback from even a majority of client clearing service providers. 46 Adjusting the current
calibration of the leverage ratio is, therefore, the most obvious solution to alleviating theclearing access issues identified in the Draft Report.
For example, client feedback summarized in the Draft Report indicates that there arechallenges in obtaining back-up clearing service providers, 47 leading to concerns about
portability and market access in the event of a clearing member default. 48 Recalibrating theleverage ratio should reduce these challenges, as research summarized in the Draft Report findsthat the leverage ratio significantly reduces a clearing member’s willingness to take on newclients. 49 Similarly, capital requirements were identified as the most common reason for offboarding clearing clients. 50
Client feedback also indicates that fixed costs (including minimum clearing fees) are the44

Draft Report at Figure D.1 (page 24).

45

Draft Report at page 63.

46

Draft Report at page 62.

47
Draft Report at Figure A5.9 (page 103). We note that clients may only use one clearing member at a given CCP
in order to maximize netting opportunities, even where they have a back-up clearing member in place (see Figure
C.8 at page 20).
48

Draft Report at page 52.

49

Draft Report at page 64.

50

Draft Report at page 48.

12most significant factor disincentivizing clearing. 51 Recalibrating the leverage ratio should be
expected to reduce these costs, as nearly all client clearing service providers reported
increasing fees specifically due to regulatory capital costs. 52 In light of the above, we
recommend that policymakers and regulators consider adjustments to the leverage ratio toensure it is aligned with the overall regulatory objective of incentivizing OTC derivatives
clearing.
Separately, we recommend that regulators continue to fully phase-in the post-crisis reforms
that are intended to incentivize clearing, including the clearing mandate in the EU and theuncleared initial margin requirements globally. Doing so will enhance the incentives forclearing standardized OTC derivatives as intended by the G20 reforms.
Questions on Access
10. Do you agree or disagree with the report’s characterisation of the difficulties some clients,
especially clients with smaller or more directional derivatives activity, face in:a. accessing clearing arrangements; andb. conducting trading and/or hedging activity given the restrictions imposed by theirclient clearing service providers?
Please see our response to Question 9 above.
11. Do you agree or disagree with the finding that the provision of client clearing services isconcentrated in a relatively small number of banks? Does the current level ofconcentration raise any concerns about incentives to centrally clear, or risks to thecontinuity of provision of critical economic functions, including during periods of stress?
As indicated in the Draft Report, a relatively small number of banks currently provide client
clearing services, with approximately 80% of total volume handled by the top five clearing
members. 53 When attempting to evaluate the level of concentration this represents, it isimportant to consider that (a) concentration levels have remained relatively constant since thestart of client clearing, 54 and (b) the Herfindahl-Hirschman Index, a commonly accepted
measure of market concentration, does not indicate even moderate levels of concentration. 55
Nonetheless, it is worthwhile to consider whether there are policy responses that could be
expected to decrease current levels of concentration. One way to decrease concentration would
be to incentivize the entry of new client clearing service providers. However, the Draft Report
51

Draft Report at page 49.

52

Draft Report at page 49.

53

Draft Report at pages 19-20.

54

Draft Report at page 20.

55

See “Final 2017 FCM Rankings & Concentration,” Clarus Financial Technology (28 Feb 2018), available at:https://www.clarusft.com/final-2017-fcm-rankings-concentration/ and “Herfindahl-Hirschman Index,” available at:https://www.justice.gov/atr/herfindahl-hirschman-index.

13

highlights the many non-regulatory barriers to entry that exist for OTC derivatives client
clearing. These include the sophisticated risk management and operational capabilities
required, as well as the access to experienced traders needed to fulfill default management
responsibilities. 56 In addition, new entrants would have to overcome the substantial economies
of scale benefitting the largest incumbents. As a result, it appears unlikely that adjustments toregulatory policy would quickly lead to a material increase in the number of client clearing
service providers for OTC derivatives.
We, therefore, recommend focusing on policy responses that promote the economic
viability of current client clearing offerings. In this regard, recalibrating the leverage ratio totake into account the exposure reducing effect of client initial margin should be prioritized. As
discussed in Question 9 above, the feedback summarized in the Draft Report clearly indicatesthat the leverage ratio is negatively impacting the provision of client clearing.
Longer term, in order to increase the universe of potential client clearing service providers
for OTC derivatives, it will be necessary to increase the number of liquidity providers in these
instruments. As detailed in the Draft Report, there are significant synergies between the
trading and clearing businesses, including the trading expertise required to fulfill clearingrelated default management responsibilities. Given that, historically, there have been far fewer
liquidity providers in OTC derivatives than in other asset classes, such as exchange-tradedderivatives, it is relatively unsurprising that the number of client clearing service providers issimilarly low. Post-crisis reforms in the OTC derivatives market, including central clearing,organized trading, and post-trade public reporting are intended to increase market transparency
and competition over time.
We also recommend that jurisdictions regularly compile, or require CCPs to compile, dataon (a) the number of clearing members offering client clearing services and (b) the amount ofclient margin held by those clearing members in order to track concentration over time. 57
12. Do you agree or disagree with the report’s characterisation of the incentive effects
created by up-front and ongoing fixed costs of:a. using clearing services?
b. providing client clearing services?
Please see our response to Question 9 above.

56

Draft Report at page 50.

57
For example, the US CFTC regularly publishes financial data for FCMs. See
https://www.cftc.gov/MarketReports/financialfcmdata/index.htm.

1413. In light of the finding in this report that economic factors generally incentivize central
clearing for certain market participants but perhaps not for others, please describe yourviews regarding the costs and benefits of the scope of the clearing mandates, both in termsof the products and entities covered.
While the Draft Report finds that several post-crisis reforms, including the clearing
mandate, uncleared initial margin requirements, and bank capital requirements, operate jointly
to incentivize central clearing, 58 the qualitative responses from dealers, client clearing service
providers, CCPs, and clients all identify the clearing mandate as the most important driver intransitioning trading activity in standardized OTC derivatives into central clearing. 59 Thisconsistent feedback from all market segments suggests that the clearing mandate is uniquely
effective in changing market structure to achieve the G20 goal of clearing all standardized
OTC derivatives. In particular, a clearing mandate has several important advantages comparedto voluntary incentives, including:•

Efficient Transition of Liquidity. A clearing mandate provides for an orderlytransition of liquidity to the cleared version of an OTC derivative pursuant to a defined
timeline. This eliminates first-mover disadvantages and liquidity bifurcation risks thatare present for voluntarily cleared instruments. In addition, clients are provided with
the necessary confidence that there will be sufficient cleared liquidity to properly risk
manage their positions.

•

Availability of Client Clearing Offerings. A clearing mandate encourages client
clearing service providers to support the available CCP offerings in the relevant OTC
derivatives. Due to associated costs, client clearing service providers may not prioritize
offering client clearing solutions for non-mandated instruments despite client interestin voluntary clearing. The Draft Report highlights the difference between the numberof available clearing offerings for mandated versus non-mandated products, with only
33% of client clearing service providers offering client clearing for FX derivatives. 60•

Availability of Trading Liquidity. A clearing mandate encourages dealers to provide
quotes for the cleared version of the relevant OTC derivatives, as this becomes themarket standard version of the contract. In contrast, a decision to voluntarily clear atransaction requires the agreement of not only the client, but also its dealer
counterparty. Dealers may not be incentivized to support a voluntary transition ofdealer-to-client liquidity to the cleared version of an OTC derivative due to theincreased transparency and competition that can be expected to result, 61 and therefore
may not quote a competitive price to enter into a non-mandated cleared dealer-to-clienttransaction.

58

Draft Report at page 2.

59

Draft Report at page 40.

60

Draft Report at page 22.

61

See generally Hau, H., Hoffmann, P., Langfield, S., and Timmer, Y., “Discriminatory pricing of over-the-counter
derivatives,” ESRB Working Paper No. 61 (Dec. 2017), available at:https://www.esrb.europa.eu/pub/pdf/wp/esrb.wp61.en.pdf?3a730a4155a853c30d2523f6a387159f.

15

•

Resolving Legal and Operational Hurdles. A clearing mandate establishes a firm
deadline for clients to enter into a clearing relationship and test the associatedoperational workflows. Overcoming these initial hurdles and fixed costs can then pave
the way for voluntary clearing to subsequently occur, as observed in the Draft Report. 62

Given the above, it is important that clearing mandates are regularly re-assessed in orderto ensure that the most liquid and commonly cleared OTC derivatives are covered. Feedback
summarized in the Draft Report suggests that a significant number of market participants
believe that the current clearing mandates are too narrow in terms of product scope. 63 While
the US has led with the broadest clearing mandate, other instruments such as interest rate
derivatives in non-mandated currencies, CDS referencing non-mandated indices, single-name
CDS, and FX non-deliverable forwards may merit consideration for inclusion as clearing
offerings continue to mature. Other jurisdictions have yet to match the US clearing mandate
with respect to either the interest rate currencies or CDS indices covered. 64 Thus far, a marketwide transition of liquidity to central clearing has yet to occur for any non-mandated
instruments, even where clearing offerings are available.
Similarly, a clearing mandate must cover the vast majority of market participants in order
to be effective in transitioning liquidity to the cleared version of an OTC derivative. Otherwise,
there is a risk that liquidity becomes bifurcated, negatively impacting clearing incentives for
all market participants and undermining the benefits of the mandate detailed above. Therefore,
to the extent regulators consider allowing entity-based exemptions from a clearing mandate, it
is important that they be carefully calibrated based on data showing both (a) the percentage of
new transactions and (b) the number of financial counterparties that would be eligible for the
proposed exemption. Interestingly, the Draft Report indicates that most market participants
believe the entity scope of the current clearing mandates is generally appropriate. 65
Going forward, we recommend that global regulators regularly re-assess the scope ofclearing mandates to ensure that the most liquid and commonly cleared OTC derivatives arecovered and that any entity-based exemptions are appropriately calibrated based on current
market data.

62

Draft Report at page 33.

63

Draft Report at Figure D.21 (page 44).

64

See Draft Report at Table A2.2 (page 81).

65

Draft Report at Figure D.21 (page 44).

16

14. Should regulation seek to create incentives to centrally clear OTC derivatives for all
financial firms, including the smallest and least active? If so, what would that imply forthe costs of uncleared trades? If not, for which types of firm and product is it mostimportant to have incentives for central clearing? Conversely for which types of firm andproduct would it be acceptable not to have incentives for central clearing? Pleaseelaborate.
The financial crisis exposed the OTC derivatives markets as opaque, interconnected, andunder-collateralized, resulting in the G20 reforms which seek to improve market transparency,
mitigate systemic risk, and protect against market abuse. 66 A central pillar of these reforms istransitioning all standardized OTC derivatives into central clearing. 67 Central clearing
provides unique and superior risk mitigation benefits compared to bilateral trading, including
the elimination of interconnected bilateral counterparty credit exposures, a centralized default
management process, multilateral netting and compression opportunities, and transparent endof-day pricing.
At the same time, similar to other post-crisis regulatory reforms, central clearing can
impose new costs on market participants. These costs are largely an intended consequence ofregulatory efforts to increase overall market resiliency, and are outweighed by the systemic
benefits detailed above and the more specific market structure benefits of central clearing
detailed in client feedback summarized in the Draft Report. 68 Nonetheless, it is worthwhile toassess whether the regulatory reforms that most directly impact incentives to centrally clear,in particular the clearing mandate and the uncleared initial margin requirements, are being
implemented in an appropriate manner, with exemptions permitted where warranted. In doingso, it is important to ensure that the overall objectives of these post-crisis reforms are notundermined by overly broad exemptions for financial firms.
The first step in analyzing the implementation of the clearing mandate and the uncleared
initial margin requirements is to assess the exemptions currently available to financial firms,
as summarized below.
Clearing Mandates: Key Exemptions for Financial Firms•

US: Permits only a narrow exemption for credit institutions with less than $10 billion
in assets. 69•

EU: Pension funds and financial firms with less than EUR 8 billion in outstanding66

See “G20 Leaders Statement: The Pittsburgh Summit,” Sept. 25, 2009, available at:
http://www.g20.utoronto.ca/2009/2009communique0925.html.

67

Id.

68

See Draft Report at Figure D.3 (page 26).

69

Other minor exemptions exist, such as for “community development financial institutions.” See Amendments toClearing Exemption for Swaps Entered Into by Certain Bank Holding Companies, Savings and Loan Holding
Companies, and Community Development Financial Institutions, available at:https://www.cftc.gov/sites/default/files/2018-08/federalregister082318.pdf.

17uncleared notional (i.e. “Category 3” entities) are currently exempt from the EU
clearing mandate. 70 The EMIR Refit legislation in the EU contemplates establishing
new permanent exemptions for financial firms as part of eventually applying theclearing mandate to “Category 3” entities, with outstanding gross notional thresholds
proposed to be set at EUR 3 billion for interest rate derivatives and EUR 1 billion for
credit derivatives. 71•

Other jurisdictions: Several G20 jurisdictions employ notional-based thresholds todefine exemptions or have applied the clearing mandate only to dealer-to-dealer
trading. 72

Uncleared Initial Margin Requirements: Key Exemptions for Financial Firms•

Given the globally harmonized BCBS-IOSCO standards, there is greater consistency
with respect to exemptions. In general, once the Phase 4 and Phase 5 phase-in occurs
for clients, financial firms below an 8 billion threshold in outstanding uncleared
notional will be exempt from the uncleared initial margin requirements.

The summary above demonstrates that the determination of whether a particular client is
in-scope or out-of-scope can vary greatly across jurisdictions, in particular with respect to theclearing mandate. While a “low activity” client (defined in the Draft Report to mean a client
trading one IRS contract per month) 73 would likely be out-of-scope of most clearing mandates,
many of the notional-based thresholds can also exempt much more active financial firms.
Given the Draft Report’s finding that market participants subject to the post-crisis reforms will
have very different incentives than those exempted from the reforms, it is important tounderstand how much new trading activity in OTC derivatives subject to a clearing mandate
is not being cleared due to an available exemption.
New research in the EU provides insight into this question and demonstrates just how broad
the existing exemptions can be. Under the current scope of the EU clearing mandate, withpension funds and financial firms below a EUR 8 billion outstanding uncleared notional
threshold (i.e. “Category 3” entities) exempt, the clearing rate for new interest rate derivatives
remains under 50%, both in terms of trade count and traded notional. 74 This contrasts sharply
with the US clearing rate of 88% of traded notional of new interest rate derivatives, 75
70

See “OTC Derivatives Market Reforms: Twelfth Progress Report on Implementation,” FSB (29 June 2017) at
Appendix J, available at http://www.fsb.org/wp-content/uploads/P290617-2.pdf.

71

See https://ec.europa.eu/info/law/better-regulation/initiatives/com-2017-208_en.

72

See supra note 70.

73

Draft Report at page 31.

74
Fiedor, P., “Clearinghouse-Five: determinants of voluntary clearing in European derivatives markets,” ESRB
Working Paper No. 72 (March 2018) at Figures 1 and 2 (pages 11-12), available at:https://www.esrb.europa.eu/pub/pdf/wp/esrb.wp72.en.pdf?87d519a1fd278d359b6d5a33499d0e26.
75“Actual Cleared Volumes vs. Mandated Cleared Volumes: Analyzing the US Derivatives Market,” ISDA (July
2018) at page 3, available at: https://www.isda.org/a/6yYEE/Actual-Cleared-Volumes-vs-Mandated-ClearedVolumes.pdf.

18

particularly when noting that the product scope of both the US and EU clearing mandates isvery similar for these instruments. As a result, this research suggests that the current
exemptions granted to financial firms under the EU clearing mandate may account for up to
40% of new trading activity in the OTC derivatives subject to the mandate. Assessments ofnotional-based exemptions from the clearing mandate granted in other jurisdictions appear toreach similar conclusions. 76
This recent research regarding EU clearing rates also demonstrates why it is important tofocus specifically on new trading activity in the OTC derivatives actually subject to a clearing
mandate when assessing the scope of available exemptions. Analysis based solely on
outstanding notional amounts on a given date dramatically underestimates the ongoing trading
activity of clients, as these figures include legacy positions and types of OTC derivatives thatare not covered by a clearing mandate at all, and do not take into account the ongoingcompression occurring at CCPs that significantly reduces outstanding cleared notional. 77 As
an example, estimates based on outstanding notional amounts suggested that “Category 3”
entities in the EU should account for no more than 2.2% of the trading activity in interest rate
derivatives. 78 Based on the recent ESRB Working Paper detailed above, this estimate appears
to be incorrect by several orders of magnitude.
We recommend that regulators regularly assess the percentage of new trading activity in
OTC derivatives subject to a clearing mandate that is not being cleared due to an available
exemption. Otherwise, there is a risk that exemptions are miscalibrated, undermining theobjectives of the post-crisis reforms.
For the clearing mandate, overly broad exemptions can undermine the objectives of
mitigating systemic risk and increasing market transparency. To the extent material trading
volumes or a significant number of financial firms are exempted from the clearing mandate,bilateral counterparty credit exposures therefore persist. While the uncleared trading activity
and exposures of any given smaller financial firm may not present systemic risk concerns in
isolation, the sheer number of these bilateral exposures outside of central clearing perpetuatessystemic risk in aggregate, acting as a risk transmission channel in the event of a significant
counterparty default. This is true even if the uncleared initial margin requirements are fully
phased-in, as these bilateral exposures may not be subject to those requirements (due to either
the involvement of an out-of-scope client or the portfolio being below the $50 million initial
margin transfer threshold) and do not benefit from the risk mitigation benefits of clearing, suchas a centralized default management process, multilateral netting and compression
opportunities, and transparent end-of-day pricing.
76
See, e.g., “Overview of the Hong Kong Trade Repository”, Clarus Financial Technology (March 6, 2018),
available at: https://www.clarusft.com/overview-of-the-hong-kong-trade-repository.
77

See, e.g., Consultation Paper on the Clearing Obligation for Financial Counterparties with a Limited Volume of
Activity (13 July 2016), available at: https://www.esma.europa.eu/sites/default/files/library/20161125_cp_on_clearing_obligation_for_financial_counterparties.pdf and FCA Research Note “EMIR data andderivatives market policies” (August 2018), available at: https://www.fca.org.uk/publication/research/research-noteemir-data-derivatives-market-policies.pdf.
78Consultation Paper on the Clearing Obligation for Financial Counterparties with a Limited Volume of Activity(13 July 2016) at page 19.

19With respect to OTC derivatives market transparency and liquidity, overly broad clearing
exemptions can impede the transition of liquidity onto regulated, transparent, and competitive
multilateral platforms since regulatory trading mandates only apply to transactions subject toa clearing mandate. 79 In addition, an incomplete transition to clearing can cause liquidity to
become bifurcated between the cleared and uncleared version of an instrument. While theDraft Report highlights that the intended shift to clearing may reduce trading volumes in theuncleared version of certain instruments, 80 it should be noted that any implementation resulting
in liquidity bifurcation between cleared and uncleared markets would be expected to have far
more negative consequences for all market participants.
In turn, overly broad exemptions from the uncleared initial margin requirements canundermine the objectives of mitigating systemic risk and promoting central clearing. With
respect to the latter objective, the quantitative data summarized in the Draft Report shows thatbilateral trading is less costly than central clearing where there is an exemption from theuncleared initial margin requirements (as long as variation margin requirements apply). 81
Therefore, broad exemptions can be expected to negatively impact incentives to clear.
However, the Draft Report omits discussing the systemic risk implications of providing broad
exemptions from the uncleared initial margin requirements. These requirements are designed
to prevent a repeat of the financial crisis, where under-collateralized bilateral positions served
as a source of contagion and transmitted risk throughout the financial system. In doing so, theuncleared initial margin requirements are intended to be calibrated to reflect the “generally
higher risk” associated with uncleared OTC derivatives. 82 As detailed in the Draft Report, ingeneral these requirements do not appear to be overly punitive, and can often be lower thancorresponding cleared margins for identical portfolios. 83
While the uncleared trading activity and exposures of any given smaller financial firm may
not present systemic risk concerns in isolation, the number of bilateral exposures exemptedfrom uncleared initial margin requirements can create systemic risk in aggregate. As a result,
we recommend that regulators regularly assess the number of market participants and bilateralexposures that are exempt from these requirements. The research detailed above finding that
“Category 3” entities in the EU (which are below the same EUR 8 billion threshold that applies
to the uncleared initial margin rules) are responsible for significant trading activity should
prompt follow-up research on the scope of the existing exemptions. This research should also

79
See, for example, initial analysis of the MiFID II derivatives trading obligation, which may not be capturing as
much as 60% of dealer-to-client trading activity in the relevant OTC derivatives. “Tradeweb and Bloomberg MTF
Market Share” (6 Feb 2018), Clarus Financial Technology, available at: https://www.clarusft.com/tradeweb-andbloomberg-mtf-market-share/.
80

Draft Report at page 60.

81

Draft Report at pages 34-35 and Table A4.3 (page 96).

82

BCBS-IOSCO, Margin requirements for non-centrally cleared derivatives (March 2015) at page 3, available at:www.bis.org/bcbs/publ/d317.htm.
83

Draft Report at page 37.

20

caution against entertaining requests to further broaden exemptions from uncleared initial
margin requirements, as is being suggested by some. 84
Instead of broadening available exemptions from the post-crisis reforms, regulators should
adjust the current calibration of the leverage ratio in order to address any identified clearing
access issues. As detailed in Question 9 above, 89% of client clearing service providers
indicated that the leverage ratio had a negative impact on their ability to offer client clearing.85
Recalibrating the leverage ratio should be expected to address identified client concerns
regarding back-up clearing service providers, portability, and fixed costs, while at the sametime safeguarding the core objectives of the post-crisis reforms to improve market
transparency, mitigate systemic risk, and protect against market abuse.

84

See “Industry seeks smaller ‘big bang’ for margin,” Risk (26 July 2018), available at:https://www.risk.net/derivatives/5805861/industry-seeks-smaller-big-bang-for-margin.

85

Draft Report at page 63.

21

Annex: Summary of Recommendations
A. Suggested Enhancements to the Draft Report
1. Ensure the current implementation status of the uncleared initial margin requirements is clearly
described, including that dealer-to-client trades will be generally unaffected until September 2019.
2. State when conclusions regarding clearing incentives are based on the assumption that uncleared
initial margin requirements either apply or will apply pursuant to the current phase-in schedule.
3. Acknowledge the limitations of broad generalizations about clearing incentives based on client typeor level of trading activity. Focus on (a) the observed and expected impact of each regulatory reform,(b) whether the implementation of such regulatory reform is complete or ongoing, and (c) the clients
eligible for exemptions, noting differences across regulatory reforms and jurisdictions.
4. Provide more detail on the non-regulatory factors identified by clients as incentivizing voluntary
clearing, including netting and compression opportunities, counterparty risk management, andtrading and transparency enhancements.
5. Highlight how the post-crisis reforms incentivizing central clearing can help to alleviate clearing
access issues, as CCPs and client clearing service providers are provided with the certainty needed
to invest in expanding their offerings.
B. Academic Research to Include in the Literature Review
1. Fiedor, P., “Clearinghouse-Five: determinants of voluntary clearing in European derivatives
markets,” ESRB Working Paper No. 72 (March 2018).
2. Hau, H., Hoffmann, P., Langfield, S., and Timmer, Y., “Discriminatory pricing of over-the-counter
derivatives,” ESRB Working Paper No. 61 (Dec. 2017).
C. Follow-up Market Research to Recommend
1. Verify any preliminary conclusions regarding client clearing incentives after the full phase-in of theuncleared initial margin requirements.
2. Track clearing rates based on new trading activity, and assess the scope of exemptions from theclearing mandates and the uncleared initial margin requirements (following full phase-in).
3. Track voluntary clearing rates across non-mandated products with viable clearing offerings as theuncleared initial margin requirements continue to be phased-in.
4. Compare uncleared margin requirements under the SIMM model with cleared margin requirements.
D. Related Policy Recommendations
1. Continue to phase-in the reforms that incentivize clearing, including the clearing mandate and theuncleared initial margin requirements, without expanding existing, or creating new, exemptions.
2. Consider adjustments to the leverage ratio to ensure it is aligned with the overall regulatory objectiveof incentivizing OTC derivatives clearing.
3. Regularly re-assess the scope of clearing mandates to ensure that (a) the most liquid and commonly
cleared OTC derivatives are covered and (b) any entity-based exemptions are appropriately
calibrated based on current market data regarding new trading activity and clearing rates.
4. Regularly compile data on (a) the number of clearing members offering client clearing services and(b) the amount of client margin held by those clearing members.

22