Pro-Reform Reconsideration

of the 

CFTC Swaps Trading Rules: 

Return to Dodd-Frank

White Paper

J. Christopher Giancarlo

Commissioner

U.S. Commodity Futures Trading Commission

January 29, 2015
The views expressed in this White Paper reflect the views of Commissioner J. 

Christopher Giancarlo and do not necessarily reflect the views of the Commodity 

Futures Trading Commission (CFTC), other CFTC Commissioners or CFTC staff.
i

EXECUTIVE SUMMARY

This White Paper is written by Commodity Futures Trading Commission (CFTC

or Commission) Commissioner J. Christopher Giancarlo, a public supporter of the 

swaps market reforms passed by Congress in Title VII of the Dodd-Frank Act, namely 

clearing swaps through central counterparties, reporting swaps to trade repositories and 

executing swaps transactions on regulated trading platforms. The author supports the 

CFTC’s implementation of the first two reforms, but is critical of the CFTC’s 

implementation of the third, as explained in this White Paper.

This paper (a) analyzes flaws in the CFTC’s implementation of its swaps trading 

regulatory framework under Title VII of the Dodd-Frank Act and (b) proposes a more 

effective alternative.

This paper begins with a broad overview of the complex structure of the global 

swaps market. It then reviews the clear legislative provisions of Title VII of the DoddFrank Act. Next, it reviews in detail the Commission’s flawed implementation of the 

Dodd-Frank Act’s swaps trading provisions. 

This paper asserts that there is a fundamental mismatch between the CFTC’s 

swaps trading regulatory framework and the distinct liquidity and trading dynamics of 

the global swaps market. It explains that the Commission’s framework is highly overengineered, disproportionately modeled on the U.S. futures market and biased against 

both human discretion and technological innovation. As such, the CFTC’s framework 

does not accord with the letter or spirit of the Dodd-Frank Act. 

This paper identifies the following adverse consequences of the flawed swaps 

trading rules:

 Driving global market participants away from transacting with entities subject to 

CFTC swaps regulation. 

 Fragmenting swaps trading into numerous artificial market segments. 

 Increasing market liquidity risk.

 Making it highly expensive and burdensome to operate SEFs.

 Hindering swaps market technological innovation. 

 Opening the U.S. swaps market to algorithmic and high-frequency trading. 

 Wasting taxpayer money when the CFTC is seeking additional resources. 

 Jeopardizing relations with foreign regulators.
ii

 Threatening U.S. job creation and human discretion in swaps execution. 

 Increasing market fragility and the systemic risk that the Dodd-Frank regulatory 

reform was predicating on reducing.

This White Paper proposes an alternative swaps trading framework that is proreform. It offers a comprehensive, cohesive and flexible alternative that better aligns 

with swaps market dynamics and is more true to congressional intent. The framework is 

built upon five clear tenets: 

 Comprehensiveness: Subject the broadest range of U.S. swaps trading activity 

to CFTC oversight.

 Cohesiveness: Remove artificial segmentation of swaps trading and regulate all 

CFTC swaps trading in a holistic fashion. 

 Flexibility: Return to the Dodd-Frank Act’s express prescription for flexibility in 

swaps trading by permitting trade execution through “any means of interstate 

commerce,” allowing organic development of swaps products and market 

structure, accommodating beneficial swaps market practices and respecting the 

general nature of core principles.

 Professionalism: Raise standards of professionalism in the swaps market by 

establishing requirements for product and market knowledge, professionalism 

and ethical behavior for swaps market personnel.

 Transparency: Increase transparency through a balanced focus on promoting 

swaps trading and market liquidity as Congress intended.

This White Paper asserts that its pro-reform agenda would yield a broad range of 

benefits. It would: 

 Align with congressional intent to promote swaps trading under CFTC regulation.

 Promote vibrant swaps markets by regulating swaps trading in a manner well 

matched to underlying market dynamics.

 Reduce global and domestic fragmentation in the swaps market.

 Foster market liquidity. 

 Reduce burdensome legal and compliance costs of registering and operating 

CFTC-registered SEFs.

 Encourage technological innovation to better serve market participants and 

preserve jobs of U.S.-based support personnel.
iii

 Free up CFTC resources and save taxpayer money at a time of large federal 

budget deficits.

 Provide another opportunity for the CFTC to coordinate with other jurisdictions 

that are implementing their own swaps trading rules.

 Reverse the increasing fragility of the U.S. swaps market by allowing organic 

development and growth for greater U.S. economic health and prosperity.

Of Note:

1. Commissioner Giancarlo asserts that the CFTC’s swaps trading rules do not 

accord with Title VII of the Dodd-Frank Act. He calls for greater adherence to the 

express language of Title VII in conformance with congressional intent.

2. Commissioner Giancarlo contends that the CFTC’s swaps trading rules increase 

rather than decrease the systemic risk that the Dodd-Frank Act was premised on 

reducing.

3. Commissioner Giancarlo contends that the CFTC’s restrictive and overengineered swaps trading rules have failed to achieve their ostensible objective 

of meaningful pre-trade price transparency.

4. Commissioner Giancarlo contends that the CFTC’s swaps trading rules add 

unprecedented regulatory complexity without meaningful benefit wasting 

taxpayer money at a time when the CFTC is seeking additional funding.

5. Commissioner Giancarlo contends that the CFTC’s rules open the U.S. swaps 

market to algorithmic and high-frequency trading that is not otherwise present.

6. Commissioner Giancarlo is the first CFTC Commissioner to call for and put forth 

a proposal to raise the standards of professional conduct for swaps market 

personnel.

7. Commissioner Giancarlo proposes a comprehensive, cohesive and transparent 

swaps trading framework that is pro-reform and better aligns with swaps market 

dynamics and the express provisions of Title VII of the Dodd-Frank Act.
iv

TABLE OF CONTENTS

INTRODUCTION: Why a White Paper? 1

I. THE NATURE OF GLOBAL SWAPS TRADING 6

A. Exchange-Traded and Over-the-Counter Derivatives

B. Different Liquidity and Trading Characteristics

C. Different Market Structures

D. Different Methods of Trade Execution

E. Different Process of Product Development

6

8

11

14

16

II. THE DODD-FRANK SWAPS TRADING REGULATORY FRAMEWORK 18

III. THE CFTC’s FLAWED SWAPS TRADING REGULATORY 

FRAMEWORK

21

A. Limits on Methods of Execution

B. Block Transactions: “Occurs Away” from SEF

C. Unsupported Made Available to Trade Process

D. Beyond Impartial Access

E. Unwarranted Void Ab Initio

F. Expansive Scope for Uncleared Swaps Confirmations

G. Embargo Rule and Name Give-Up

H. Prescriptive Rules Disguised as Core Principles

21

27

29

32

33

34

36

39

IV. ADVERSE CONSEQUENCES OF THE CFTC’s SWAPS TRADING 

REGULATORY FRAMEWORK

48

A. Global Market Fragmentation and Systemic Risk

B. Domestic Market Fragmentation

C. Market Liquidity Risk

D. Threaten SEF Survival

E. Hinder Technological Innovation

F. Introduce High-Frequency Trading

G. Waste Taxpayer Dollars

H. Harm Relations with Foreign Regulators

I. Threaten Job Creation and Human Discretion

J. Increase Market Fragility

48

52

52

54

55

56

57

57

59

61

V. ALTERNATIVE SWAPS TRADING REGULATORY FRAMEWORK 63

A. Comprehensiveness

B. Cohesiveness

C. Flexibility

D. Professionalism

63

64

65

70
v

E. Transparency 74

VI. CONCLUSION: Return to Congressional Intent

77
1

INTRODUCTION: Why a White Paper?

What is at stake in our economic decisions today is not some grand 

warfare of rival ideologies which will sweep the country with passion but 

the practical management of a modern economy. What we need is not 

labels and clichés but more basic discussion of the sophisticated and 

technical questions involved in keeping a great economic machinery 

moving ahead.

John F. Kennedy1

In September 2008, Lehman Brothers filed for Chapter 11 bankruptcy protection. 

Its failure was a consequence of the bursting of a double bubble of housing prices and 

consumer credit as lenders became concerned about a fall in property values and the 

repayment of mortgages. Lehman’s demise came amidst a global “run on the bank,” in 

which rapidly falling asset values looked to prevent U.S. and foreign lenders from 

meeting their cash obligations. This event marked the beginning of a full-blown financial 

crisis that was devastating for too many American businesses and families. 

Bilaterally executed over-the-counter (OTC) swaps amplified and spread the 

financial crisis. Some counterparties who entered into such swaps had inadequately 

collateralized exposures that caused swaps users to face huge losses as counterparty 

defaults appeared likely. Because there was little public information about bilateral 

exposures among swaps users, third parties were less willing to provide credit to 

institutions that possibly faced such losses. Fear for the stability of the global banking 

system led the U.S. government to inject emergency capital into the largest U.S. banks 

and insurance companies at great expense to American taxpayers. 

I remember the 2008 financial crisis very well. I served for over thirteen years as

a senior executive of a U.S. wholesale brokerage firm that operates global trading 

platforms for bank-to-bank swaps transactions. I remember the panic in the eyes of 

bank executives and the tremor in the voices of bank regulators. I saw how fear drove 

 

1

John F. Kennedy, XXXV President of the United States: 1961-1963, 234 - Commencement Address at 

Yale University (Jun. 11, 1962), available at http://www.presidency.ucsb.edu/ws/?pid=29661.
2

the crisis: fear of counterparty failure among the major swaps dealing banks and fear 

among regulators of their lack of visibility into counterparty credit exposure.

The experience confirmed my unwavering support for greater transparency into 

counterparty credit risk and trading data and increased central counterparty (CCP) 

clearing of swaps.

2 Although not driven by the crisis,3

I also support sensible regulation 

of swaps trading and execution to raise trading standards and bring swaps markets 

more in line with the standards of conduct in other capital markets, such as equities and 

futures.

Upon passage of the Dodd-Frank Wall Street Reform and Consumer Protection 

Act (Dodd-Frank Act)4in July 2010, I publicly commended the work of the President and 

Congress to enhance the safety and soundness of the OTC derivatives markets.5 Since 

that time, I have been a consistent advocate for practical and effective implementation 

of the following three pillars of Title VII of the Dodd-Frank Act:6reporting swaps data to 

trade repositories, executing swaps on regulated trading platforms and clearing swaps 

 

2

Even before the 2008 financial crisis, I was involved in an independent effort by non-Wall Street banks 

to develop a central clearing house for credit default swaps. See, e.g., GFI Group Inc., GFI Group Inc. 

and ICAP plc To Acquire Ownership Stakes In The Clearing Corporation, PRNewswire, Dec. 21, 2006, 

available at http://www.prnewswire.com/news-releases/gfi-group-inc-and-icap-plc-to-acquire-ownershipstakes-in-the-clearing-corporation-57223742.html. See also Testimony Before the H. Committee on 

Financial Services on Implementation of the Dodd-Frank Wall Street Reform and Consumer Protection 

Act, 112th Cong. 8 (2011) (statement of J. Christopher Giancarlo) (“In 2005, GFI Group and ICAP Plc, a 

wholesale broker and fellow member of the WMBAA, took minority stakes in the Clearing Corp and 

worked together to develop a clearing facility for credit default swaps. That initiative ultimately led to 

greater dealer participation and the sale of the Clearing Corp to the Intercontinental Exchange and the 

creation of ICE Trust, a leading clearer of credit derivative products.”).

3 Markets for credit default swaps and other OTC derivatives remained open and well-functioning 

throughout the 2008 financial crisis. See Peter J. Wallison, Bad History, Worse Policy: How a False 

Narrative about the Financial Crisis Led to the Dodd-Frank Act 535 (AEI Press 2013) (Wallison).

4 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 

(2010).

5 Wholesale Markets Brokers’ Association, Americas Commends Historic US Financial Legislation, GFI 

Group Inc., Jul. 21, 2010, available at http://gfigroup.investorroom.com/index.php?s=43&item=158.

6

J. Christopher Giancarlo, Commissioner, Keynote Address of CFTC Commissioner J. Christopher 

Giancarlo at The Global Forum for Derivatives Markets, 35th Annual Burgenstock Conference, Geneva, 

Switzerland: The Looming Cross-Atlantic Derivatives Trade War: “A Return to Smoot-Hawley” (Sep. 24, 

2014), available at http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlos-1; Testimony 

Before the H. Committee on Financial Services on Implementation of the Dodd-Frank Wall Street Reform 

and Consumer Protection Act, 112th Cong. 7-19 (2011) (statement of J. Christopher Giancarlo).
3

through CCPs.

7 My professional and commercial experience, not academic theory or 

political ideology, drives my support for these reforms. Simply put, well-regulated 

markets are good for American business and job creation. That is why I support swaps 

market reform.

I commend the CFTC for its generally successful implementation of CCP 

clearing. I also support the CFTC’s data reporting mandate, the implementation of which

remains a work in progress. I am, however, critical of the CFTC’s swaps trading rules. I 

believe they are fundamentally flawed for reasons set forth in this White Paper, the 

foremost of which is that the CFTC rules neither enhance trading liquidity nor accord 

with the express requirements of the Dodd-Frank Act.

There is a fundamental mismatch between the CFTC’s swaps trading regulatory 

framework and the distinct liquidity, trading and market structure characteristics of the 

global swaps markets. This misalignment was caused by inappropriately applying to 

global swaps trading a U.S.-centric futures regulatory model that supplants human 

discretion with overly complex and highly prescriptive rules in contravention of 

congressional intent. This mismatch – and the application of this framework worldwide –

has caused numerous harms, foremost of which is driving global market participants 

away from transacting with entities subject to CFTC swaps regulation, resulting in 

fragmented global swaps markets. In addition, the CFTC’s rules carve swaps trading 

into numerous artificial market segments, fragmenting markets domestically. This 

fragmentation has exacerbated the already inherent challenge in swaps trading –

adequate liquidity – and thus is increasing market fragility and the systemic risk that the 

Dodd-Frank reforms were predicated on reducing.

 

7

The author readily acknowledges that CCP clearing is not a panacea for counterparty credit risk. CCP 

clearing does not extinguish risk, but transfers and centralizes it into one or more clearinghouses. See

Wallison at 419-421. Yet, with proper management of CCP margin requirements, credit reserves 

operations to uniform standards of best practices and competent regulatory supervision, the benefit of 

CCP clearing is its potential to attract more counterparties into trading markets, thereby enhancing 

transactional liquidity and reducing counterparty concentration. Nevertheless, the author is sympathetic to 

concerns that clearinghouses themselves – now required to clear trillions of dollars in trades – are too big 

to fail. See Wallison at 537.
4

Vibrant and competitive financial markets must work hand-in-hand with smart 

and well-designed regulations to support a strong U.S. economy. Flawed and ill-suited 

swaps market regulation arbitrarily increases the cost of risk management, repels global 

capital, diminishes trading liquidity and stymies the legitimate use of derivatives causing

the economy as a whole to suffer. I have written this White Paper to address these and 

other concerns.

It is not too late to get these rules right. This paper proposes an alternative 

regulatory framework that is pro-reform. It is comprehensive in scope and more flexible 

in application. This alternative focuses on raising standards of professional conduct for 

swaps market personnel rather than dictating prescriptive and ill-suited trading rules. It 

provides flexibility so that market participants can choose the manner of trade execution

best suited to their swaps trading and liquidity needs. It better aligns regulatory 

oversight with inherent swaps market dynamics. Crucially, the alternative fully aligns 

with Title VII of the Dodd-Frank Act to promote swaps trading under CFTC regulation 

and attract, rather than repel, global capital to U.S. trading markets. The alternative 

seeks to lessen the market fragility and fragmentation that have arisen as a 

consequence of the CFTC’s flawed swaps trading regime.

This paper is organized as follows: Section I examines global swaps trading that 

evolved in the decades before the Dodd-Frank Act. Section II reviews Congress’s

intended swaps trading regulatory framework as set out in Title VII. Section III details

the major aspects of the CFTC’s faulty swaps trading regulatory framework. Section IV

discusses the adverse consequences of this flawed regime. Section V proposes an 

alternative regulatory framework. Section VI concludes with an appeal for a new and 

non-partisan effort to reconsider CFTC swaps trading rules to better align them with the 

inherent nature of swaps trading in global markets and the clear instructions of Title VII 

of the Dodd-Frank Act.

I believe the current Commission, led by Chairman Massad, has a budding spirit 

of cooperation and pragmatism. In my first few months at the Commission, I have been 

impressed with the knowledge, dedication and professionalism of my fellow 
5

Commissioners and the CFTC staff. The Commission and staff carry a long and proud 

history of smart and principled regulation of the U.S. futures market. I believe they are 

committed to implementing and operating a similarly successful regulatory framework 

for the U.S. swaps market. In this regard, criticism herein of the CFTC’s swaps trading 

regulatory framework is not directed at the dedicated CFTC staff, who under the 

direction of Chairman Massad and the Commissioners, continue to work diligently to 

apply the CFTC’s ill-fitting rule set to the unique characteristics of global swaps markets. 

Unfortunately, the CFTC staff and particularly staff of the Division of Market Oversight

are faced with the Sisyphean task of making swaps trading succeed in an unsuitable

futures-style regime.

I wish to thank the members of my professional staff, Marcia Blase, Jason 

Goggins and Amir Zaidi, for their insightful and substantive contributions.8 Nevertheless, 

the views and opinions expressed herein are my own and do not necessarily reflect the 

views of the CFTC, other CFTC Commissioners or the CFTC staff.

 

8

I would also like to thank my legal interns, Chelsea Pizzola and Michael Selig from The George 

Washington University Law School, for their editorial assistance.
6

I. THE NATURE OF GLOBAL SWAPS TRADING

The use of derivatives to manage commercial or market risk dates back 

thousands of years.

9 Derivatives allow users to guard against gains or declines in the 

values of underlying financial assets, such as physical commodities, interest rates, 

stocks, bonds, trading indices or currencies. They serve this purpose without requiring 

the user to buy or sell the underlying assets. In this regard, derivatives are akin to risk 

insurance, but without requiring actual loss or damage as a condition to settlement. 

Derivatives enable users not only to hedge risk, but also to benefit from advantageous 

price movements in the underlying assets. 

Derivatives are widely used throughout the U.S. and global economies. They are 

used by both big and small enterprises, such as farming and ranching operations,

commercial manufacturers, power utilities, retirement funds, banks and investment 

firms. More than 90 percent of Fortune 500 companies use derivatives to control costs 

and other risks in their worldwide business operations.10

A. Exchange-Traded and Over-the-Counter Derivatives

Derivatives generally fall into two broad categories: exchange-traded and OTC. 

Exchange-traded derivatives, such as futures, are relatively fungible products with 

standardized terms and conditions, such as delivery locations and expiration dates, and 

uniform trading and credit procedures. Exchange-traded markets are generally domestic 

or national markets. In the U.S., futures exchanges called designated contract markets 

(DCMs)11 facilitate the execution of futures products mostly through anonymous central 

limit order books (i.e., CLOBs or trading facilities).12 Exchange-traded futures must be

cleared through a CCP, which in the U.S. regulatory framework is generally 

 

9 Robert J. Shiller, Finance and the Good Society 76 (Princeton University Press 2012) (Shiller). Shiller 

cites Aristotle’s Politics description of the successful use of options on olive pressing by the Greek 

philosopher Thales in the mid-620s to mid-540s BCE.

10 Anatoli Kuprianov, 2009 ISDA Derivatives Usage Survey, International Swaps and Derivatives 

Association (ISDA) Research Notes, No. 2, at 1-5 (Spring 2009), available at

http://www.isda.org/researchnotes/pdf/ISDA-Research-Notes2.pdf.

11 17 C.F.R. 1.3(a) and (h).

12 CEA section 1a(51); 7 U.S.C. 1a(51).
7

contractually tied to the DCM that lists the product, and also integrates data reporting, 

trade confirmation and settlement in its range of services. 

In contrast to exchange-traded futures, OTC derivatives, such as swaps,

13 are far 

less fungible. Swaps range from highly customized structures with long maturities to 

somewhat more liquid and standardized instruments with shorter maturities. OTC 

derivatives come in a broad array of unique instruments that are almost infinitely 

variable in their terms. In its 2014 annual survey,

14 Risk Magazine identified over 

seventy OTC derivative categories in a range of asset classes.

15 Swaps trading is a 

global activity that takes place in numerous cross-jurisdiction liquidity pools through 

competing execution and clearing venues in global trading centers, such as New York, 

London, Singapore and Hong Kong. An increasing number of OTC swaps are cleared 

through a CCP. However, many swaps are bilateral, privately negotiated agreements.

A comparison of the respective notional amounts outstanding in the OTC and 

exchange-traded derivatives markets highlights the importance of OTC products. As of 

June 2014, the notional outstanding amount of exchange-traded derivatives was $29 

trillion, whereas the notional outstanding amount of OTC derivatives was 24 times that 

size at $691 trillion.16 Exchange-traded derivatives thus accounted for less than 5 

percent of the total outstanding global derivatives transactions, with the remainder being 

OTC derivatives.17

Futures and swaps are complementary product sets that work symbiotically to

provide accurate and effective risk hedging and mitigation. They are often used 

 

13 A swap is an agreement between two parties to exchange cash flows or other assets or liabilities at 

specified payment dates during the agreed-upon life of the contract. 

14 Tom Osborn, Bank Rankings 2014: a question of scale, Risk.net (Sep. 2, 2014), available at 

http://www.risk.net/risk-magazine/research/2362542/bank-rankings-2014-a-question-of-scale.

15 The survey covered 73 derivatives categories, including (a) interest rate swaps (IRS) in major 

currencies, such as U.S. Dollar, Euro and Japanese Yen, (b) credit swaps, such as credit index default 

swaps (CDS) and (c) foreign exchange (FX) swaps in the major currency pairs. Swaps are also widely 

used for a broad range of commodities, such as oil, coal, electric power, natural gas, industrial and 

precious metals and other commodities, and for the transportation and storage thereof.

16 International Banking and Financial Market Developments, Bank for International Settlements (BIS) 

Quarterly Review, Statistical Annex, Table 23A (Dec. 2014), available at

https://www.bis.org/publ/qtrpdf/r_qa1412.pdf. 

17 Id. at Table 19.
8

together. As noted, futures have standardized terms and durations that make them wellsuited to hedge generalized risks. However, futures products alone cannot address the 

risk-hedging needs of commercial enterprises in a highly sophisticated global 

economy.18 To more effectively hedge less standardized risks over longer durations and 

larger exposures, swaps are used alone or in conjunction with standardized futures 

products. Without the customized hedging that swaps afford, commercial entities would 

have no choice but to accept basis risk.

19 Properly using futures and swaps effectively 

limits commercial basis risk, thus controlling costs and freeing up capital to invest in 

new enterprises or additional employment, among other initiatives, promoting economic 

growth.

B. Different Liquidity and Trading Characteristics

Any assessment of the effectiveness of swaps trading regulations must begin 

with an appreciation of the unique nature of swaps trading liquidity because liquidity

determines most other aspects of the global swaps market structure, including the roles 

of trading participants, support infrastructure, methods of execution and clearing and 

product development.

In essence, liquidity is the degree to which a financial instrument may be easily 

bought or sold with minimal price disturbance. The liquidity of a market for a particular 

financial instrument depends on several factors, including product demand and scarcity, 

the number of market participants and facilitators of liquidity, the number of bids and 

offers, the size of bid-offer spreads and the volume of trading activity. These factors 

derive from the particular characteristics of a financial instrument, including product 

 

18 Using a simple analogy, the marketplace for hedging the complex commercial needs of the $17 trillion 

U.S. economy may be seen as a balloon. One end of the balloon consists of the large OTC swaps 

market, and the other end consists of the smaller exchange-traded futures market. Together, the balloon 

is in balance. Regulatory efforts to squeeze the large swaps end of the balloon may succeed in pushing 

some trading into the smaller futures end. Squeezing a little may be okay. Squeezing too much will strain 

the futures end of the balloon. Squeezing too much will burst it. 

19 Basis risk is defined as “the risk that the value of a hedge will not move exactly inversely to the value of 

the asset or liability being hedged,” a risk which “arises from the imperfect match between the 

characteristics of the hedge vehicle and the item being hedged.” Edward D. Kleinbard, Competitive 

Convergence in the Financial Services Markets, 81 Taxes: The Tax Magazine, at 225, 258 n.166 (Mar. 

2003).
9

parameters such as tenor and duration and the degree of standardization of an 

instrument’s terms. 

Liquidity in the swaps market is fundamentally different than liquidity in the 

futures and equities markets. Generally, liquidity in the swaps market is episodic in 

nature as compared with liquidity in the futures and equities markets, which is

continuous in nature.20 In 2011, the Federal Reserve Bank of New York (New York Fed) 

published an analysis of CDS transactions over a three-month period in 2010.21 The 

New York Fed’s analysis demonstrated that the vast majority of single-name CDS 

contracts traded less than once per day and index CDS contracts traded less than ten 

times per day, but in very large sizes.22 In a similar analysis of IRS transactions, the 

New York Fed estimated that the vast majority of IRS contracts traded only once during 

the three-month period studied.23 Such episodic liquidity can often be volatile, with 

liquidity peaks and troughs that are seasonal (e.g., certain energy products in extremely 

cold winter weather) or tied to external market and economic conditions (e.g., interest 

rate products in response to central bank tightening or loosening of interest rates).

The episodic nature of swaps liquidity results is characteristic of markets that 

feature a limited number of counterparties, almost all of which are relatively large 

 

20 The distinct nature of swaps liquidity has been the subject of several well-researched studies and 

comment letters presented to the CFTC and the Securities and Exchange Commission (SEC). See, e.g.,

Block Trade Reporting for Over-the-Counter Derivatives Markets, ISDA and Securities Industry and 

Financial Markets Association (SIFMA) (Jan. 18, 2011) (ISDA/SIFMA Block Trade Study), available at 

http://www.isda.org/speeches/pdf/Block-Trade-Reporting.pdf; J.P. Morgan Comment Letter to Real-Time 

Public Reporting of Swap Transaction Data Proposed Rule (Jan. 12, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=27106&SearchText=j.p.%20morgan.

21 Kathryn Chen et al., An Analysis of CDS Transactions: Implications for Public Reporting, Federal 

Reserve Bank of New York, Staff Report no. 517 (Sep. 2011), available at

http://www.newyorkfed.org/research/staff_reports/sr517.pdf.

22 Id. at 12-14. The New York Fed’s analysis also revealed that the most active single-name CDS 

contracts only traded a little over twenty times per day, and the most active index CDS contracts only 

traded over 100 times per day. Id. at 12.

23 Michael Fleming et al., An Analysis of OTC Interest Rate Derivatives Transactions: Implications for 

Public Reporting, Federal Reserve Bank of New York, Staff Report No. 557, at 14 (Mar. 2012 rev. Oct. 

2012), available at http://www.newyorkfed.org/research/staff_reports/sr557.pdf (discussing episodic 

liquidity in the IRS market) (“Even the most commonly traded instruments in our data set were not traded 

with a high degree of frequency. In fact, no single instrument in the IRS data set traded more than 150 

times per day, on average, and the most frequently traded instruments in OIS and FRA only traded an 

average of 25 and four times per day, respectively.”). Id. at 3. See also ISDA/SIFMA Block Trade Study at 

13-21.
10

institutions. The swaps market is generally closed to retail investors and under U.S. law 

is only open to eligible contract participants.24 On any given day in these markets, large 

institutional counterparties conduct only a few thousand transactions in very large 

notional amounts for a broad array of unique instruments that are almost infinitely 

variable in their terms.

In contrast, many exchange-traded markets, such as certain equities and futures, 

have relatively continuous liquidity. In these markets, buyers and sellers actively submit 

orders leading to high transaction flow. As a result, tens of thousands of trades take 

place each day in many exchange-traded instruments. For example, certain Eurodollar 

futures contracts trade on the Chicago Mercantile Exchange (CME) over 375,000 times 

per day.

25 Exchange-traded markets, however, offer no guarantee of trading liquidity, as 

evidenced by the high percentage of new exchange-listed products that regularly fail to 

enjoy active trading.

The relatively continuous liquidity results from markets that feature a broad range 

of customers, including retail customers, who trade generally small-sized orders for a 

more limited range of highly fungible instruments based on standard characteristics and 

a few key measures or parameters (e.g., price and size). Exchange-traded markets 

feature substantial price competition, tighter bid-offer spreads and high trading volume

that further fuel their liquidity.

The following chart provides a generalized comparison of the liquidity and trading 

characteristics of the swaps and futures markets:

 

24 CEA section 1a(18); 7 U.S.C. 1a(18). The Commodity Exchange Act (CEA) limits “eligible contract 

participants” to institutional investors, such as investment firms, insurers, commodity pools and large 

employee-benefit plans. Id.

25 E.g., CME Eurodollar futures contract December 2015 expiration, average daily volume, week ending 

Jan. 9, 2015, available at http://www.cmegroup.com/trading/interestrates/stir/eurodollar_quotes_volume_voi.html?optid=1#tradeDate=20150109 (last accessed Jan. 12, 

2015). 
11

Generalized Comparison of OTC Swaps Market to 

Exchange-Traded Futures Market26

Characteristic Listed Futures OTC Swaps

Trade Size Small Very, very large

Tradable Products 1,000s 100,000s27

Daily Trading Volume 100,000s 100s

Trading Counterparties

100,000s

(including retail)

Dozens

(no retail)

The difference between swaps and futures markets has been likened to two 

pyramids – one upside down and one right-side up.28 In each case, the base of the 

pyramid is the number of participants in a market and the ceiling is the average trade 

size and number of instruments traded.29 The swaps market pyramid has a narrow 

base, but a very broad point, while the futures market pyramid has a broad base and a 

narrow point.30

C. Different Market Structures

It is because of the episodic liquidity in many of the swaps markets that they 

have generally evolved over the past several decades into two-tiered marketplaces for 

institutional market participants, that is, “dealer-to-customer” (D2C) marketplaces and 

“dealer-to-dealer” (D2D) marketplaces.

 

26 See ISDA/SIFMA Block Trade Study at 13-15.

27 Inclusive of all tenors, strikes and duration.

28 Joe Rennison, Interdealer Broker Rankings 2014: Sef Questions Piling Up, Risk.net, Sep. 2, 2014, 

available at http://www.risk.net/risk-magazine/research/2362397/interdealer-broker-rankings-2014-sefquestions-piling-up (quoting Chris Ferreri of ICAP PLC) (Rennison).

29 Id.

30 Id.
12

In D2C marketplaces, corporate end-users of swaps and other buy-side traders 

recognize the risk that, at any given time, a particular swaps market will not have 

sufficient liquidity to satisfy their need to acquire or dispose of swaps positions. As a 

result, these liquidity “taking” counterparties turn to sell-side dealers and other market 

makers (i.e., liquidity makers) with large balance sheets that are willing to take on the 

liquidity risk for a fee. These buy-side-to-sell-side transactions are known in the swaps 

industry as dealer-to-customer or D2C transactions.

From a market structure standpoint, liquidity takers benefit from D2C liquidity 

makers acting in a competitive environment. The liquidity makers compete with each 

other, often deriving small profits per trade from a large volume of transactions. By 

relying on their ability to deploy capital to make markets and using their distribution and 

professional knowledge to offer competitive prices to their customer base, sell-side 

dealers and other market makers provide essential liquidity to these customers for 

hedging and other risk-management strategies.

In D2D marketplaces, sell-side dealers have access to marketplaces operated by 

wholesale and interdealer brokers for the secondary trading of their swaps exposure. 

These wholesale marketplaces allow dealers to almost instantly hedge the market risk 

of their large swaps inventory by trading with other primary dealers and sophisticated 

market-making participants. In this way, these wholesale markets are similar to upstairs

block markets in stocks or off-exchange block trading in futures for large-sized trades. 

These transactions are known in the swaps industry as dealer-to-dealer or D2D

transactions. 

Dealers price their customer trades based on the cost of hedging those trades in 

D2D markets. Without access to D2D markets, the risk inherent in holding swaps 

inventory arguably would require dealers to charge their buy-side customers much 

higher prices for taking on their liquidity risk, assuming they remained willing to do so.

In contrast, in futures markets, continuous liquidity and broad market participation 

mean participants generally face much lower liquidity risk. As a result, buy-side 
13

customers and market makers generally operate in the same market, leading to an allto-all market structure, with some exceptions where there are price and liquidity risk 

concerns, such as for large-size block trades.31

Further, as mentioned above, in exchange-traded futures markets the exchange

generally integrates data reporting, trade confirmation and settlement in its range of 

services. Swaps markets, on the other hand, are served by a range of often 

independent, third-party commercial service providers for trade data reporting, 

affirmation and confirmation. This design is a function of the fact that swaps products 

are not the exclusive intellectual property of any particular execution venue, as 

explained in Section I.E. below. Therefore, execution platforms do not know or have 

access to all of a product’s terms and are not designed to handle these post-trade 

processing functions. Third-party service providers have stepped in to fulfill these 

essential functions.

Similarly, swaps markets support third-party vendors that provide compression, 

risk reduction, risk recycling, dynamic hedging and other services that seek to reduce 

counterparties’ outstanding trade count, outstanding notional value or risk exposures.32

These services provide innovative solutions for participants to help them achieve 

operational efficiencies in managing their swaps portfolios and to reduce systemic risk.

These services exist in the swaps market given the non-standardized terms and 

conditions of swaps products, such as unique termination dates, coupon rates and 

notional amounts that make it operationally challenging to offset risk. This situation 

exists to a far lesser extent in the futures market given futures products’ standardized

terms and conditions. 

 

31 In such cases, third-party introducing brokers may arrange block trades off the centralized market and 

then enter the trades into the exchange on a delayed basis for settlement and clearing purposes. This is 

analogous to the swaps market, where there are non-CLOB execution methods given the liquidity risk 

concerns and large-size transactions.

32 See Core Principles and Other Requirements for Swap Execution Facilities, 78 FR 33,476, 33,480-483 

(Jun. 4, 2013) (SEF Rule) (discussing portfolio compression and risk mitigation services).
14

D. Different Methods of Trade Execution

The episodic liquidity of the swaps market has given rise to a broad and diverse 

range of competing venues with multiple methods of trade execution.

In D2C markets, dealers and other market makers traditionally interact directly 

with their institutional investor and end-user clients through telephone, email or text 

message communications. Increasingly, participants conduct transactions through multidealer-to-institutional-investor electronic trading platforms. These platforms contain

request for quote (RFQ) protocols, where a buy-side liquidity taker may request and act 

upon live price quotes for the purchase or sale of specified swap products in specified 

quantities from multiple sell-side dealers and other liquidity makers. Such RFQ 

platforms may be one-to-one or one-to-multiple trade execution facilities.

In D2D markets, intermediaries known as interdealer brokers arrange trades 

between dealer participants. They gain access (almost on a consignment-like basis) to 

sell-side dealers’ inventory of swaps products and solicit interest and negotiate 

transactions in such inventory with other dealers. In such markets, execution methods 

and techniques vary widely according to product trading characteristics along the 

continuum of swaps market liquidity from low-to-high. In almost all cases, interdealer 

broker platforms may be characterized as multiple-to-multiple trade execution facilities.

For less standardized swaps markets, where liquidity is not continuous and 

negotiation is common, wholesale trading platforms often feature voice execution that is 

similar to traditional “open-outcry” trading pits. On these platforms, professional 

brokerage personnel communicate bids and offers to counterparties in real time through 

a combination of electronic display screens and hundreds of always-open phone lines, 

as well as email and text messages.

In other slightly more standardized swaps markets, venues provide, for example,

(a) hybrid modes of broker “work-up,” where brokers broadcast completed trades to the 

market in order to attract other participants to “join the trade” to increase trading 
15

volume33 and (b) time-limited, batch auction-based methods or Dutch Auction methods, 

such as fixing and matching sessions, where multiple participants place bids or offers 

on a specific product in an abbreviated timeframe in order to determine a market price 

or quantity.34

Finally, in a few, more continuously liquid swaps markets, wholesale swaps 

trading venues operate electronic order book platforms. In every case, a trading 

platform’s technology and execution methodology calibrate to the particular liquidity 

characteristics of the instruments traded and disseminate customer bids and offers to 

the widest extent possible to foster the greatest degree of trading liquidity.

The distinct trade execution methods used in D2C markets and D2D markets are

not unprecedented in the world of finance. They have corollaries in the long-established 

U.S. government-bond and corporate fixed-income markets, both of which serve U.S. 

and global capital markets. In these markets, approximately 50 percent of government 

bonds and 80 percent of credit markets and corporate bonds are negotiated and traded 

telephonically.35 This method of execution differs markedly from the generally all-to-all 

market structure of the U.S. futures markets, where the telephone is increasingly rare. 

Returning to the analogy of the two pyramids, futures markets in the form of a 

right-side up pyramid, with many participants trading a small set of standardized 

instruments, more readily support electronic CLOB trading. On the other hand, swaps 

markets, represented by the inverted pyramid, with a relatively small number of 

participants trading a wide variety of non-standardized products, tend to support one-to-

 

33 See, e.g., Wholesale Markets Brokers’ Association Americas (WMBAA) Comment Letter to SEF Rule 

(Aug. 1, 2012), available at 

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=58343&SearchText=. During a broker 

“work-up,” for a period of time after an order is executed, the price of the transaction is reported to the 

market and any market participant may engage in transactions in that asset at a price matching that of the 

original order so long as parties interested in counter-trading remain available. See id.

34 See, e.g., WMBAA Comment Letter to SEF Rule, at 3 (Jul. 18, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=47865&SearchText=wholesale.

35 Hirander Misra, Fixed Income Robot Wars & the Rise of the Machines, TABB FORUM, Nov. 18, 2014, 

available at http://tabbforum.com/opinions/fixed-income-robot-wars-and-the-rise-of-the-machines.
16

multiple voice and electronic RFQ protocols in D2C markets and multiple-to-multiple 

voice- and auction-based protocols in D2D markets.36

It is noteworthy that while algorithmic trading and high-frequency trading (HFT) 

are an increasing presence in U.S. futures markets, they are generally absent from

global swaps markets. This distinction proceeds from the different methods of execution

prevalent in the two markets. The mandatory continuous CLOB model in U.S. futures 

markets and U.S. equity markets accommodates and, arguably,37 rewards algorithmic

trading and HFT strategies and methodologies. On the other hand, traditional swaps 

execution methods, such as electronic RFQ, voice execution and time-limited, batch 

auctions do not readily accommodate algorithmic trading or HFT.

E. Different Process of Product Development

Swaps products generally develop in a different manner than do futures 

products. Sell-side dealers generally create new and novel swaps products as OTC

bilateral contracts with their buy-side customers. Such new derivative instruments often 

have distinctive terms and little or no trading history with which to estimate price. They 

generally begin to trade on platforms only after they have gained sufficient trading 

liquidity so that dealer firms need to access a secondary market to offset their primary 

market exposure to the product. 

The structure and terms of most swaps products may be likened to an “opensource” design permitting their broad usage in global markets. Because swaps products 

are not the exclusive intellectual property of any particular execution venue, they may

and often do transact on numerous platforms. Since no one platform owns a swap 

product or asserts exclusive right to execute it, trading platforms do not know or have 

access to all of the terms and corresponding documentation that the buy-side 

customers and sell-side dealers created. In short, swaps products move to platforms 

 

36 Rennison.

37 Eric Budish et al., The High-Frequency Trading Arms Race: Frequent Batch Auctions as a Market 

Design Response, (Dec. 23, 2013), available at http://faculty.chicagobooth.edu/eric.budish/research/HFTFrequentBatchAuctions.pdf; Eric Budish et al., Presentation to the CFTC’s Technology Advisory 

Committee, (Feb. 10, 2014), available at

http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/tac021014_budish.pdf.
17

generally after they are successful, not before. They never become the exclusive 

intellectual property of any trading venue.

38

Futures products, in contrast, begin and end life directly on the exchange. The 

product is the proprietary intellectual property of the exchange that spent time and 

resources to develop it. It is, in other words, “closed-source.” Many new futures 

products never attract liquidity. Those that do may only trade on the exchange that 

owns the product and controls the product’s terms and conditions. Futures products are

generally launched on the exchange before their success is assured and before they 

have attracted any trading liquidity.

 

38 A hypothetical example will help to illustrate this point. A buy-side client who operates a wind farm 

approaches a dealer to create a swap to hedge its wind exposure. The sell-side dealer creates and 

executes a customized wind swap with its buy-side client. As time progresses, additional buy-side clients 

with wind exposure approach their dealers to create similar swaps. Once a critical mass of dealers are 

serving customers seeking such wind swaps, the dealers need a secondary market to trade in and out of 

this exposure. At this point, a platform or interdealer broker comes along to provide this secondary market 

for wind swaps. The swap product will generally trade on several wholesale platforms and, in time, may 

be featured on one or more dealers’ direct D2C platforms.
18

II. THE DODD-FRANK SWAPS TRADING REGULATORY FRAMEWORK

If firms and individuals cannot insure themselves against bad outcomes, 

they will be necessarily cautious; the economy will grow more slowly than 

it should. A company will not invest in a new factory, if it cannot hedge 

against swings in exchange rates that might render its investment 

unprofitable. An individual will not consume to the full extent of his 

capacity if he cannot insure his house or health. By connecting the ranks 

of insurance seekers with specialists who pool risk and so reduce it, 

finance liberates animal spirits and boosts prosperity.39

While a full assessment of the social utility of swaps, futures and other 

derivatives products is beyond the scope of this White Paper, it is generally well 

accepted that derivatives serve the needs of society to control commercial and other 

risk.40 They are essential to U.S. economic growth and job creation.41 American Nobel 

Laureate and economist Robert J. Shiller explains that in free market economic 

systems, complex markets have evolved, such as those for equities, bonds, futures, 

swaps and insurance that allow business owners to shift a portion of the risk of 

uncertainty.42 The benefit of risk-shifting is that risks are transferred to the party best 

able to bear them through its wealth and ability to pool risks.43 Markets for risk-shifting 

enable productive but higher-risk activities that investors would not otherwise 

undertake.44

Whether one accepts or rejects such arguments for the social utility of 

derivatives, two things are incontrovertible. The first is that faced with the opportunity to 

 

39 Sebastian Mallaby, Sunday Book Review: Finance and the Good Society, by Robert J Shiller, The New 

York Times, Jun. 22, 2012, available at http://www.nytimes.com/2012/06/24/books/review/finance-andthe-good-society-by-robert-j-shiller.html?pagewanted=all&_r=0.

40 Shiller at 75-80.

41 The Milken Institute found the following economic benefits to the U.S. economy from derivatives: 

“Banks’ use of derivatives, by permitting greater extension of credit to the private sector, increased U.S. 

quarterly real GDP by about $2.7 billion each quarter from Q1 2003 to Q3 2012; derivatives use by nonfinancial firms increased U.S. quarterly real GDP by about $1 billion during the same period by improving 

the firms’ ability to undertake capital investments; combined, derivatives expanded U.S. real GDP by 

about $3.7 billion each quarter; the total increase in U.S. economic activity was 1.1 percent ($149.5 

billion) between 2003 and 2012; by the end of 2012, use of derivatives boosted U.S. employment by 

530,400 (0.6 percent) and industrial production 2.1 percent.” Apanard Prabha et al., Deriving the 

Economic Impact of Derivatives, Milken Institute, at 1 (Mar. 2014), available at

http://assets1b.milkeninstitute.org/assets/Publication/ResearchReport/PDF/Derivatives-Report.pdf.

42 Shiller at 75-80.

43 See generally Kenneth J. Arrow, Insurance, Risk and Resource Allocation (1971) in Essays in the 

Theory of Risk-Bearing 134-143 (Markham Pub. Co. 1971).

44 Id.
19

abolish or restrict the use of derivatives as a matter of U.S. law, Congress did not do so 

under the Dodd-Frank Act. Thus, one can assume that Congress was satisfied that an 

acceptable degree of social utility is inherent to derivatives. The second is that whatever 

social and commercial value derivatives provide, exchange-traded futures do not 

provide such value in materially greater measure as compared with OTC swaps. 

Certainly, Congress did not draw such a distinction. Congress could have restricted 

derivatives use to exchange-traded futures or required swaps to trade exclusively on 

DCMs. Congress did not take that step. Congress could also have subjected swaps to a 

futures-like execution model in contravention of the way swaps actually trade in global 

markets. Fortunately, Congress did not do that either. Instead, Congress laid out a fairly 

simple and flexible swaps trading framework suited to the episodic nature of swaps 

liquidity.

In essence, Title VII of the Dodd-Frank Act requires execution of most cleared 

swaps on DCMs or registered swap execution facilities (SEFs) via a straightforward

trade execution requirement.45

Congress expressly permitted SEFs to offer various flexible execution methods 

for swaps transactions using “any means of interstate commerce.” The law defines a 

SEF as a “trading system or platform in which multiple participants have the ability to 

execute or trade swaps by accepting bids and offers made by multiple participants in 

the facility or system, through any means of interstate commerce, including any trading 

facility, that – (A) facilitates the execution of swaps between persons; and (B) is not a 

designated contract market.”46

Additionally, Congress articulated goals, not requirements, for this SEF 

framework in order to maintain its flexibility. Congress set two goals for SEFs in Title VII 

of the Dodd-Frank Act: to promote (1) the trading of swaps on SEFs and (2) pre-trade 

price transparency in the swaps market.47

 

45 CEA section 2(h)(8); 7 U.S.C. 2(h)(8).

46 CEA section 1a(50); 7 U.S.C. 1a(50).

47 CEA section 5h(e); 7 U.S.C. 7b-3(e).
20

Congress did not prescribe that the global swaps market be carved into an 

isolated U.S. domestic market and then further sliced and diced into smaller and smaller 

domestic markets for swaps trading.

48

Congress mandated “impartial” access to swaps markets, not “open” access. It 

did not require SEFs to merge D2C and D2D market segments. Indeed, in providing 

that a SEF must establish rules to provide market participants with impartial access to 

the market, the Dodd-Frank Act requires a SEF to set out any limitation on this 

access.49 This requirement confirms that the Act does not demand that all market 

participants receive access to every market. There is no mandate or impetus for an allto-all swaps market structure in the Dodd-Frank Act.

Congress further laid out a core principles-based framework for SEFs and 

provided them with reasonable discretion to comply with these principles.

50

In crafting Title VII of the Dodd-Frank Act, Congress got much of it right.51

Unfortunately, the CFTC’s implementation of the swaps trading rules widely misses the 

congressional mark. 

 

48 See Sections III.A. and B. and IV.A. and B.

49 CEA section 5h(f)(2); 7 U.S.C. 7b-3(f)(2).

50 CEA section 5h(f)(1)(B); 7 U.S.C. 7b-3(f)(1)(B).

51 The Dodd-Frank Act missed the mark with respect to the SEF core principles. Most of the SEF core 

principles are based on the DCM core principles. Compare 7 U.S.C. 7(d) (enumerating DCM core 

principles, including enforcement of exchange rules, restricting trading to those contracts not readily 

subject to manipulation, monitoring of trading, ensuring accurate recordkeeping and reporting, 

establishing position limits, adopting rules for emergency authority, etc.), with id. 7b-3(f) (setting forth 

extremely similar core principles applicable to SEFs). However, the futures regulatory model is 

inappropriate for swaps trading given the different liquidity and market structure characteristics of swaps. 

See Sections I. and III.H. for further details.
21

III. THE CFTC’S FLAWED SWAPS TRADING REGULATORY FRAMEWORK

Thomas Aquinas observed that the art of sailing must govern the art of 

shipbuilding.52 By that, he meant that the way in which human activities are ordered and 

governed should be based on the ultimate good desired.53 Hence, shipbuilding should 

be conducted to allow for safe and efficient navigation. Sailing should not be 

jeopardized by aesthetically pleasing, but unseaworthy ship designs. 

So too, effective regulation should always have as its goal the betterment of the 

activities being regulated. Using readily available yet unsuitable frameworks in order to 

mollify political expectations does not produce sound regulation. 

In response to political pressure to hurry the implementation of the Dodd-Frank 

Act and likely influenced by the naïve view that centralized order-driven markets are the 

best way to execute all derivatives transactions, the CFTC acted expediently and 

modeled its swaps trading rules on the well-known and readily available, regulatory

template of the U.S. futures market. Unfortunately, that structure – though well-designed 

for futures – is ill-suited to global swaps trading. 

The approach precluded adequate thoroughness and precision in crafting a 

swaps regime informed by the unique characteristics of swaps trading. As a result, the 

CFTC’s swaps trading framework is mismatched to the natural commercial workings of 

the market. It is a square peg being forced into a round hole. In adopting this 

framework, the CFTC failed to properly respond to congressional intent and the DoddFrank Act’s express goal of promoting swaps trading on SEFs.54

A. Limits on Methods of Execution

The SEF rules create two categories of swaps transactions: Required 

Transactions (i.e., any transaction involving a swap that is subject to the trade execution 

 

52 Saint Thomas Aquinas, The Summa Contra Gentiles (The English Dominican Fathers trans., Burns 

Oates & Washbourne Ltd. 1924).

53 Id. at Chapter I.

54 CEA section 5h(e); 7 U.S.C. 7b-3(e).
22

requirement)55 and Permitted Transactions (i.e., any transaction not involving a swap 

that is subject to the trade execution requirement)56 and prescribe execution methods 

for each category.57 Required Transactions must be executed in an order book (Order 

Book)58 or an RFQ system in which a request for a quote is sent to three participants

operating in conjunction with an Order Book (RFQ System).59 Any method of execution 

is allowed for Permitted Transactions,60 but SEFs must also offer an Order Book for 

such transactions.61

There is no firm statutory support for segmenting swaps into two categories or for 

limiting one of those categories to two methods of execution. A footnote to the preamble 

of the final SEF rules justifies this segmentation by stating that Commodity Exchange 

Act (CEA) section 2(h)(8) “sets out specific trading requirements for swaps that are 

subject to the trade execution mandate ... [and] [t]o meet these statutory requirements, 

[the SEF rule] defines these swaps as Required Transactions and provides specific 

methods of execution for such swaps.”62 The only thing that CEA section 2(h)(8)

expressly requires, however, is that swaps subject to the trade execution requirement 

must be executed on a SEF or DCM.63 The statute nowhere references the concept of 

Required Transactions with limited execution methods and Permitted Transactions via

any method of execution. These artificial categories unnecessarily complicate 

Congress’s simple and flexible swaps trading framework.

Rather, the Dodd-Frank Act’s SEF definition contemplates a platform where 

multiple participants have the ability to execute swaps with multiple participants through 

any means of interstate commerce, including a trading facility.64 Congress clearly 

 

55 17 C.F.R. 37.9(a)(1).

56 17 C.F.R. 37.9(c)(1).

57 17 C.F.R. 37.9(a)(2) and 37.9(c)(2).

58 17 C.F.R. 37.3(a)(2), 37.3(a)(3), and 37.9(a)(2).

59 17. C.F.R. 37.9(a)(2) and 37.9(a)(3).

60 17 C.F.R. 37.9(c)(2).

61 17 C.F.R. 37.3(a)(2); SEF Rule at 33,504.

62 SEF Rule at 33,493 n. 216 (emphasis added). The Commission further stated, to “distinguish these 

swaps from other swaps that are not subject to the trade execution mandate, [the SEF rule] defines such 

swaps ... as Permitted Transactions and allows these swaps to be voluntarily traded on a SEF by using 

any method of execution.” Id.

63 CEA section 2(h)(8); 7 U.S.C. 2(h)(8).

64 CEA section 1a(50); 7 U.S.C. 1a(50).
23

drafted this broad and flexible definition to allow execution methods beyond an Order 

Book or RFQ System for all swaps, not just some swaps. In this regard, the CFTC

Order Book obligation is not supported by the statutory text that contains a multiple-tomultiple participant trading requirement, not an all-to-all trading requirement.

Dodd-Frank also permits SEFs to offer swaps trading “through any means of 

interstate commerce.” The SEF rules acknowledge this phrase but construe it narrowly 

to allow for voice and other “means” of execution or communication within the limited

Order Book and RFQ System execution methods.

65 Yet, the phrase “interstate 

commerce” has a rich constitutional history, which U.S. federal courts have interpreted 

to cover almost an unlimited range of commercial and technological enterprise.

66 The 

CFTC rule construct is disingenuous and not supported by the plain language of the 

statute. Rather, it expresses a bias for two specific execution methods over all others: 

one drawn from the all-to-all U.S. futures markets and one that is generally one-to-many 

not multiple-to-multiple.

Congress could have required SEFs to offer only certain limited execution 

methods, but chose not to take that path. Congress was well-aware of the trading facility 

execution method that DCMs provide for futures contracts.

67 Additionally, Congress 

could have preserved references to “electronic execution” included in early drafts of the 

Dodd-Frank Act, but decided against that narrow approach in the final statutory text in 

favor of the more flexible SEF definition.68 And, while the SEF definition includes a 

 

65 17 C.F.R. 37.9(a)(2)(ii); SEF Rule at 33,501-502. The Commission states that “in providing either one 

of the execution methods for Required Transactions in § 37.9(a)(2)(i)(A) or (B) of this final rulemaking 

(i.e., Order Book or RFQ System that operates in conjunction with an Order Book), a SEF may for 

purposes of execution and communication use ‘any means of interstate commerce,’ including, but not 

limited to, the mail, internet, email, and telephone, provided that the chosen execution method satisfies 

the requirements provided in § 37.3(a)(3) for Order Books or in § 37.9(a)(3) for Request for Quote 

Systems.” SEF Rule at 33,501.

66 See, e.g., Gonzales v. Raich, 545 U.S. 1, 17 (2005); Katzenbach v. McClung, 379 U.S. 294, 302 

(1964); Wickard v. Filburn, 317 U.S. 111, 125 (1942).

67 CEA section 1a(51); 7 U.S.C. 1a(51).

68

 Compare S. 3217, 111th Cong. § 720 (as reported by S. Comm. on Banking, Housing, and Urban 

Affairs, Apr. 15, 2010) (defining a SEF as “an electronic trading system” and discussing electronic 

execution of trades), with 7 U.S.C. 1a(50) (defining a SEF as “a trading system or platform” without 

reference to electronic execution).
24

trading facility,69 it does not require one, nor does it limit a SEF to an Order Book or to

the Commission’s peculiar RFQ System definition. 

It is also important to note that while execution methods of DCMs are limited by 

DCM Core Principle 9, which requires a competitive, open, and efficient market and 

mechanism that protects the price discovery process of trading in the centralized 

market,

70 there is no similar core principle for SEFs. The lack of such a principle for 

SEFs reflects Congress’s understanding that swaps naturally trade through a variety of 

execution methods in the global marketplace given their episodic liquidity.

The preamble to the final SEF rules concedes that the statutory definition may 

allow for additional execution methods beyond an Order Book and RFQ System for 

Required Transactions.

71 It notes that a SEF may petition the CFTC for a rulemaking to 

include such additional methods.72 Despite these admissions, the SEF final rules reflect

a limited execution approach.73 The SEF rules adopted this approach despite 

commenters’ requests to allow SEFs to offer specific, additional and permissible 

execution methods, such as certain auction, volume match and voice broker models.74

The SEF rules summarily reject or fail to discuss these additional execution methods.75

There is no clear statutory justification for the conclusion that the SEF definition only 

allows an Order Book and RFQ System and no other execution method.76

 

69 CEA section 1a(51); 7 U.S.C. 1a(51). 

70 17 C.F.R. 38.500.

71 SEF Rule at 33,484, 33,501.

72 Id.

73 Id.

74 See, e.g., WMBAA Comment Letter to SEF Rule, at 5-6 (Mar. 8, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=31296&SearchText=Wholesale; J.P. 

Morgan Comment Letter to SEF Rule, at 6 (Mar. 8, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=31198&SearchText=morgan; Nodal 

Exchange Comment Letter to SEF Rule, at 1-3 (Mar. 8, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=31234&SearchText=nodal; WMBAA 

Comment Letter to SEF Rule, at 2-3 (Jul. 18, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=47865&SearchText=wholesale. 

75 See, e.g., WMBAA Comment Letter to SEF Rule, at 3 (Jul. 18, 2011) (The Commission failed to 

discuss BGC’s Volume Match execution method cited in this comment letter); SEF Rule at 33,501 

(rejecting blind auctions as an acceptable method of execution and rejecting all methods of execution that 

failed to meet the Order Book or RFQ System definitions despite the “any means of interstate commerce” 

language).

76 See, e.g., SEF Rule at 33,484, 33,501-502.
25

The preamble to the final SEF rules again and again relies on general references 

to the SEF definition and SEF goals to support its positions.77 However, the general 

reliance on the goals of promoting pre-trade price transparency and the trading of 

swaps on SEFs does not justify the limited execution methods for Required 

Transactions.

78 Tellingly, Congress defined these as “goals,” not requirements, to 

provide additional flexibility to the SEF framework. Assuming, for the sake of argument, 

that both SEF goals must be met for each SEF execution method, there are certainly 

other swap execution methods that would meet the SEF definition and these goals. It is

hard to accept, for example, that only an RFQ system that operates in conjunction with 

an Order Book, where a market participant must obtain quotes from three participants 

who are not affiliates of each other, among other peculiar requirements, is the only RFQ 

system that satisfies Congress’s flexible SEF definition and SEF goals.79 A narrow 

interpretation of SEF execution does not comport with the broad statutory SEF 

definition.

80 By restricting market participants to two limited trading options, it 

discourages rather than promotes trading on SEFs in contravention of the express goal 

of the Dodd-Frank Act.

81

The SEF rules also contain a fifteen-second time delay requirement for crosstrades through the Order Book.

82 They reference the goal of pre-trade price 

transparency as justification.

83 This rule provides an exception to pre-arranged trading 

or pre-execution communications, as long as a participant exposes the order to the 

market for a minimum period of time (e.g., fifteen seconds).84 The Dodd-Frank Act does 

not mandate such a prescriptive rule. Given the flexible SEF definition, the rules should 

have provided SEFs with discretion in implementing exceptions to pre-arranged trading 

or pre-execution communications consistent with the SEF core principles. Such a

flexible approach would be consistent with congressional intent. 

 

77 See, e.g., SEF Rule at 33,484, 33,496-499 and 33,501.

78 CEA section 5h(e); 7 U.S.C. 7b-3(e).

79 17 C.F.R. 37.9(a)(3).

80 CEA section 1a(50); 7 U.S.C. 1a(50).

81 CEA section 5h(e); 7 U.S.C. 7b-3(e).

82 17 C.F.R. 37.9(b).

83 SEF Rule at 33,503.

84 17 C.F.R. 37.9(b).
26

The CFTC’s limited execution method approach also does not comport with the 

way swaps actually trade in global markets. As noted in Section I., trillions of dollars of 

swaps trade globally each day through a variety of execution methods designed to 

better account for their episodic liquidity. As such, in many cases, interdealer brokers 

exercise discretion in executing counterparty trades. A swap product’s particular liquidity 

characteristics determine the execution technology and methodology, which can change 

over time. This liquidity continuum necessitates flexible execution methods as 

authorized by the Dodd-Frank Act. 

CFTC swaps trading rules, however, thwart trade execution flexibility and limit 

needed human discretion.

85 By requiring SEFs to offer Order Books for all swaps, even 

very illiquid or bespoke swaps,

86 the rules embody the unsophisticated and parochial

view that centralized order-driven markets, like those in the U.S. futures markets, are 

the best way to execute swaps transactions. That flawed view is not reflective of global 

swaps market reality. The unique nature of swaps trading liquidity should drive 

execution methods as Aquinas would have it, not the other way around. Attempts to 

force episodically liquid trading into centralized order-driven markets will only drive 

trading away. Certainly, the Dodd-Frank Act did not authorize such attempts.

The rules’ misguided approach to SEF execution is showing its shortcomings.

Package transactions are one example. Swaps market participants are now required to 

execute certain package transactions through the SEF’s limited execution methods for 

Required Transactions.

87 Yet, many of these package transactions are ill-suited to

Order Book or RFQ System execution given their limited liquidity and complex 

characteristics. To avoid harming swaps package trading, CFTC staff has engaged in a 

detailed no-action relief process for different categories of package transactions, 

gradually arriving upon a new “Permitted-Lite” set of execution methods in addition to 

 

85 17 C.F.R. 37.9(a)(2).

86 See SEF Rule at 33,504 (clarifying that a SEF must offer an Order Book for Permitted Transactions).

87 Given the CFTC’s definition of Required Transaction in 37.9(a)(1), a participant must execute a 

package transaction where one leg of the transaction is subject to the trade execution requirement 

through a SEF’s limited execution methods in 37.9(a)(2) or break-up the package transaction and execute 

each leg separately. Breaking-up package transactions defeats the purpose of creating these strategies 

as it will increase costs and risks for participants. 
27

the Required and Permitted methods.

88 This added complexity could have been avoided 

and countless hours of Commission resources could have been saved, if congressional 

direction that allows SEFs the flexibility to follow existing market practice and use 

methods of execution best matched to the existing way in which package transactions

currently trade in global markets had been heeded.

89

B. Block Transactions: “Occurs Away” from SEF

The CFTC block trade definition, specifically, the “occurs away” requirement, is 

another example of artificial segmentation like the contrived distinction between 

Required Transactions and Permitted Transactions. A block trade is defined as “a 

publicly reportable swap transaction that: (1) Involves a swap that is listed on a 

registered [SEF] or [DCM]; (2) ‘Occurs away’ from the registered [SEF’s] or [DCM’s]

trading system or platform and is executed pursuant to the registered [SEF’s] or 

[DCM’s] rules and procedures; (3) Has a notional or principal amount at or above the 

appropriate minimum block size applicable to such swap; and (4) Is reported subject to 

the rules....”

90

It is unclear what is being achieved by requiring block trades to be executed 

away from the SEF’s trading platform. The “occurs away” requirement creates an 

arbitrary and confusing segmentation between non-block trades “on-SEF” and block 

 

88 CFTC Letter No. 14-12, No-Action Relief from the Commodity Exchange Act Sections 2(h)(8) and 

5(d)(9) and from Commission Regulation § 37.9 for Swaps Executed as Part of a Package Transaction

(Feb. 10, 2014), available at http://www.cftc.gov/ucm/groups/public/@newsroom/documents/letter/14-

12.pdf; CFTC Letter No. 14-62, No-Action Relief from the Commodity Exchange Act Sections 2(h)(8) and 

5(d)(9) and from Commission Regulation § 37.9 for Swaps Executed as Part of Certain Package 

Transactions and No-Action Relief for Swap Execution Facilities from Compliance with Certain 

Requirements of Commission Regulations § 37.9(a)(2), § 37.203(a) and § 38.152 for Package 

Transactions (May 1, 2014), available at

http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/14-62.pdf; and CFTC Letter No. 

14-137, Extension of No-Action Relief from the Commodity Exchange Act Sections 2(h)(8) and 5(d)(9) 

and from Commission Regulation § 37.9 and Additional No-Action Relief for Swap Execution Facilities 

from Commission Regulation § 37.3(a)(2) for Swaps Executed as Part of Certain Package Transactions

(Nov. 10, 2014), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/14-

137.pdf.

89 Further complicating matters, market participants have also asked questions regarding package 

transactions and block sizes. For example, does a package transaction qualify for block treatment if the 

leg of the package transaction subject to the trade execution requirement is above the block size, but the 

leg of the package transaction not subject to the trade execution requirement is below the block size? To 

date, neither the Commission nor the CFTC staff has clarified this issue in writing.

90 17 C.F.R. 43.2.
28

trades “off-SEF,” especially given that a SEF may offer any method of execution for 

Permitted Transactions.91 The “off-SEF” requirement also undermines the legislative 

goal of encouraging swaps trading on SEFs. 

The block trade definition is a holdover from the futures model.92 In futures 

markets, block trades occur away from the DCM’s trading facility as an exception to the 

centralized market requirement.93 The Commission has previously explained the 

rationale for this DCM exception in terms of the price risk and liquidity risk for these 

large-sized block trades.94 In other words, given the generally small trade sizes for 

futures contracts in the centralized market and the large sizes for block trades, a 

counterparty executing a block trade in the centralized market would have to pay a 

significant price premium from the prevailing market price to execute such a large-sized 

order.95

In today’s global swaps market, however, there are no “on-platform” and “offplatform” execution distinctions for certain-sized swaps trades. As explained in Section 

I.B., OTC swaps generally trade in very large sizes. These swaps are not constrained to 

CLOBs, but trade through one of a variety of execution methods appropriate to the 

product’s trading liquidity. Thus, the same concern about the adverse market impact of 

large-sized trades is generally not prevalent in the swaps market.

Congress recognized these differences by not imposing on SEFs an open and 

competitive centralized market requirement with corresponding exceptions for certain 

non-competitive trades as contained in DCM Core Principle 9.96 Congress knew that 

 

91 The CFTC’s approach is also creating technological challenges for SEFs and futures commission 

merchants (FCMs) in facilitating pre-execution credit checks of block trades that occur way from the 

SEF’s platform. Currently, SEFs and FCMs are unable to implement these credit checks for block trades 

that occur away from the SEF’s platform. See CFTC Letter No. 14-118, No-Action Relief for Swap 

Execution Facilities from Certain ‘Block Trade’ Requirements in Commission Regulation 43.2 (Sep. 19, 

2014), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/14-118.pdf.

92 See Alternative Executive, or Block Trading, Procedures for the Futures Industry, 64 FR 31195 (Jun. 

10, 1999); Chicago Board of Trade's Proposal To Adopt Block Trading Procedures, 65 FR 58051 (Sep. 

27, 2000).

93 17 C.F.R. 38.500.

94 Execution of Transactions: Regulation 1.38 and Guidance on Core Principle 9, 73 FR 54097, 54099 

(proposed Sep. 18, 2008).

95 Id.

96 17 C.F.R. 38.500.
29

counterparties executed swaps on flexible trading platforms in very large sizes. Rather, 

Congress expressly authorized delayed reporting for block transactions.

97

 Congress got 

it right. The CFTC’s swaps block trade definition is inappropriate and unwarranted.

C. Unsupported Made Available to Trade Process

As noted above, Congress included a trade execution requirement in CEA 

section 2(h)(8) that requires SEF98 execution for swaps subject to the clearing 

mandate.99 In a simple exception to this requirement, Congress stated that this trade 

execution requirement does not apply if no SEF “makes the swap available to trade.”100

CFTC rules for the made available to trade (MAT) process have proved to be 

unworkable and have created an unwarranted regulatory mandate around the phrase 

“makes the swap available to trade.”101 Under this platform-controlled MAT process, a 

SEF submits a MAT determination for swaps products to the Commission pursuant to 

part 40 of the CFTC’s regulations after considering, as appropriate, certain liquidity 

factors for such swaps.

102 The CFTC reviews the SEF’s determination, but may only 

deny the submission if it is inconsistent with the CEA or CFTC regulations.103 Once 

MAT, these swaps are Required Transactions and counterparties must execute them on 

a SEF pursuant to the limited execution methods permitted by CFTC rules.

104

 

97 CEA section 2(a)(13)(E); 7 U.S.C. 2(a)(13)(E). Established marketplaces worldwide have long 

recognized that for less liquid products where a smaller number of primary dealers and market makers 

cross larger size transactions, the disclosure of the intention of a major institution to buy or sell could 

disrupt the market and lead to poor pricing. If a provider of liquidity to the market perceives greater 

danger in supplying liquidity, it will step away from providing tight spreads and leave those reliant on that 

liquidity with poorer hedging opportunities. Hence, large size or “block” trades are generally afforded a 

time delay before their details are reported to the marketplace.

98 The trade execution requirement and the Commission’s made available to trade process pertain to 

DCMs as well. Given this paper’s focus on SEFs, the references to DCMs in this section have been 

omitted.

99 CEA section 2(h)(8); 7 U.S.C. 2(h)(8).

100 Id.

101 CEA section 2(h)(8); 7 U.S.C. 2(h)(8); 17 C.F.R. 37.10, 37.12, 38.11 and 38.12; Process for a 

Designated Contract Market or Swap Execution Facility To Make a Swap Available to Trade, Swap 

Transaction Compliance and Implementation Schedule, and Trade Execution Requirement Under the 

Commodity Exchange Act, 78 FR 33,606 (Jun. 4, 2013) (MAT Rule).

102 17 C.F.R. 37.10(a), (b), 38.12(a) and (b).

103 MAT Rule at 33,607 and 33,610. It is doubtful that the Commission could find that a MAT submission 

is inconsistent with the CEA or Commission regulations because neither the CEA nor the regulations 

contain any objective requirements that a swap must meet for a MAT determination to be valid. 

104 17 C.F.R. 37.9(a)(1), 37.9(a)(2), 37.10, 37.12, 38.11 and 38.12.
30

This MAT process in combination with the CFTC’s limited execution method 

approach is problematic for several reasons. It forces swaps to trade through a limited 

number of execution methods even where a product lacks the liquidity needed to 

support such trading. Since the MAT process is platform-controlled, a nascent SEF 

attempting to gain a first-mover advantage in trading liquidity may force certain swaps to 

trade exclusively through the SEF’s restrictive methods of execution (i.e., Order Book or 

RFQ System) before the appropriate liquidity is available to support such trading.

105 As 

former CFTC Commissioner Scott O’Malia stated in his dissent to the final MAT rule, an 

“available-to-trade determination has a far reaching effect. It binds not only the 

requesting SEF ... but the entire market, thus forcing all SEFs ... [that list the particular 

swap] to trade [it] by using more restrictive methods of execution.”106 Consequently, in 

creating a regulatory mandate around nothing more than the phrase “makes the swap 

available to trade,” the MAT rule only adds a layer of bureaucratic process that lacks 

statutory authorization and fails to effectively guard against inadequate trading liquidity.

The Commission’s MAT process is also not legally sound. As former CFTC 

Commissioner Scott O’Malia noted, part 40 of the CFTC’s regulations does not provide 

an appropriate avenue for a MAT determination.107 The Commission’s rule certification 

and approval process under part 40 is “intended to apply to only one particular DCM or 

SEF that requested such rule approval or submitted such rule certification,” not the 

entire market.108

The CFTC’s limited execution method approach and MAT process has created 

an unnecessary tension between the clearing mandate and trading requirement. The 

determination of whether trading liquidity in an instrument is sufficient to calculate initial 

and variation margin to permit central clearing is a wholly different analysis than 

whether trading liquidity is appropriate for mandatory trade execution through an Order 

Book and RFQ System execution methods. 

 

105 Richard Henderson, Numerous SEF challenges predicted in 2014, THE TRADE, Jan. 8, 2014, 

available at

http://www.thetradenews.com/news/Asset_Classes/Derivatives/Numerous_SEF_challenges_predicted_in

_2014.aspx.

106 MAT Rule at 33,632.

107 Id. at 33,631.

108 Id. at 33,631-632.
31

The current non-deliverable forward (NDF) clearing mandate debate highlights 

the tension between clearing and trading and the flawed swaps trading regime. At the

October 9, 2014 CFTC Global Markets Advisory Committee meeting, participants noted 

that once NDFs are subject to the clearing mandate, the trade execution requirement is 

a practical certainty due to the SEF-controlled MAT process.109 The participants voiced

their concern over an NDF clearing mandate because such NDF swaps are not ready to 

trade pursuant to a SEF’s limited execution methods.110 Unfortunately, the ill-conceived 

SEF execution and MAT regime has complicated the ability to make additional clearing 

mandates.

All of these problems could have been avoided if flexible execution methods 

were permitted for all SEF trades as is plainly called for in the statutory SEF definition

and the plain language was followed in CEA section 2(h)(8). If SEFs could offer flexible 

execution methods, then participant resistance to clearing and trading mandates would 

likely be diminished. Moreover, flexible SEF execution methods would eliminate the 

need for the unworkable and legally unsound MAT process because execution methods 

could be tailored to the liquidity characteristics of all swaps products. Flexible methods 

of execution would allow swaps trading markets to evolve rationally and organically 

without the forced, unwarranted and unnecessary MAT construct.

A plain reading of the trade execution requirement demonstrates that Congress 

did not intend to create an entire regulatory mandate around the phrase made available 

to trade. Unlike the clearing mandate in CEA section 2(h)(1), Congress provided no 

process for determining whether swaps must be traded on-SEF in CEA section 

2(h)(8).111 Congress could have instituted a regulatory mandate for the trade execution 

requirement as it did for the clearing mandate, but chose not to.112 Drafters of Title VII 

 

109 See webcast of the October 9, 2014 Global Markets Advisory Committee meeting, available at

http://www.cftc.gov/PressRoom/Events/opaevent_gmac100914.

110 Id. See also Memorandum from Foreign Exchange Markets Subcommittee to Global Markets Advisory 

Committee, CFTC, Response to request for recommendation on an FX NDF mandate, at 7-9 (Dec. 5, 

2014), available at

http://www.cftc.gov/ucm/groups/public/@aboutcftc/documents/file/gmac_fxndfmandate122214.pdf

(detailing issues around mandatory NDF trading).

111 Compare CEA section 2(h)(1), 2(h)(2) and 2(h)(3); 7 U.S.C. 2(h)(1), 2(h)(2) and 2(h)(3), with CEA 

section 2(h)(8); 7 U.S.C. 2(h)(8).

112 Id.
32

were aware that, unlike futures, newly developed swaps products are initially traded 

bilaterally and only move to a platform once trading reaches a critical stage. The trade 

execution requirement expresses this logic in that a clearing-mandated swap must be 

executed on a SEF unless no SEF makes that swap available to trade (i.e., offers the 

swap for trading). However, congressional intent was not followed and an entire 

regulatory mandate was created based on nothing more than the phrase “makes the 

swap available to trade” in CEA section 2(h)(8).

D. Beyond Impartial Access

Congress required SEFs to have rules to provide market participants with 

impartial access to the market and to establish rules regarding any limitation on 

access.113 The Commission, through the preamble to the final SEF rules, and staff 

appear to view these provisions as requiring SEFs to serve every type of market 

participant in an all-to-all market structure.114 Given the Dodd-Frank Act’s reference to 

limitations on access, however, efforts to require SEFs to serve every type of market 

participant or operate all-to-all marketplaces are unsupported by law.

There is no mandate for an all-to-all swaps market structure in the Dodd-Frank 

Act. Congress knew that there were D2C and D2D swaps markets before the DoddFrank Act, just as there are in many other mature financial markets. This structure is 

driven by the unique liquidity characteristics of the underlying swaps products.115 This 

dynamic has not changed post-Dodd-Frank, and the law’s impartial access provisions 

do not require or support the alteration of the present swaps market structure.116 

The Dodd-Frank Act does not prohibit SEFs from serving separate D2D and D2C

markets. Its impartial access requirement must not be confused with open access. 

Impartial access, as the Commission noted in the preamble to the final SEF rules, 

 

113 CEA section 5h(f)(2); 7 U.S.C. 7b-3(f)(2). 

114 SEF Rule at 33,507-508. 

115 See Section I.C.

116 In a McKinsey report, an overwhelming majority of buy-side participants interviewed acknowledged the 

important role that dealers play in providing liquidity and were “not interested in disintermediating 

dealers....” The Brave New World of SEFs: How Broker-Dealers Can Protect Their Franchises, McKinsey 

& Company, Working Papers on Corporate & Investment Banking No. 4, at 5-6 (Jun. 2014) (McKinsey 

Working Paper)
33

means “fair, unbiased, and unprejudiced” access.

117 This means that SEFs should apply 

this standard to their participants; it does not mean that SEFs are forced to serve every 

type of market participant in an all-to-all futures-style marketplace. Only Congress could 

have imposed this mandate; it chose not to do so. Even the CFTC acknowledged in the 

preamble to the final SEF rules that a SEF may operate different markets and may 

establish different access criteria for each of its markets.118 This preamble language and 

the statutory language regarding “any limitation on access” are meaningless if CFTC 

staff act under the supposition that SEFs are required to serve all types of market 

participants.

E. Unwarranted Void Ab Initio

Under pressure to ban breakage agreements119 between parties,120 the staffs of 

the Division of Clearing and Risk and the Division of Market Oversight (the Divisions)

issued guidance that states that “any [swap] trade that is executed on a SEF ... and that 

is not accepted for clearing should be void ab initio” (i.e., invalid from the beginning).121

The guidance also states that this result is consistent with CEA section 22(a)(4)(B), 

which prohibits participants in a swap from voiding a trade, but does not prohibit the 

Commission or a SEF from declaring a trade to be void.122

The statute does not support the Divisions’ justification for this policy. Although 

CEA section 22(a)(4)(B) does not prohibit the Commission or a SEF from voiding a 

trade, it does not require this outcome if a trade is rejected from clearing.123 This section 

also does not prevent a SEF from implementing rules that allow a participant to correct 

 

117 SEF Rule at 33,508.

118 Id.

119 “A breakage agreement is any arrangement, whether contained in an agreement between the parties 

or the rules of a SEF or DCM, that provides for the assessment of liability or payment of damages 

between the parties to a trade intended for clearing in the event that the trade is rejected from clearing.” 

CFTC Letter No. 13-66, Time-Limited No-Action Relief for Swap Execution Facilities from Compliance 

with Certain Requirements of Commission Regulation 37.9(a)(2) and 37.203(a) (Oct. 25, 2013), at 4, 

n.13, available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-66.pdf.

120 Prior to the issuance of this guidance, the Divisions learned that certain market participants would only 

trade with other participants on a SEF with whom they had executed breakage agreements. These 

agreements dictated terms in the event a trade was rejected from clearing.

121 Staff Guidance on Swaps Straight-Through-Processing (Sep. 26, 2013), available at

http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/stpguidance.pdf.

122 Id.

123 CEA section 22(a)(4)(B); 7 U.S.C. 25(a)(4)(B).
34

errors and resubmit a trade for clearing.124 If the Divisions’ main concern is breakage 

agreements, there are less onerous and more direct ways to prevent such agreements.

The CFTC staff’s void ab initio policy creates a competitive disadvantage for the 

U.S. swaps market relative to the U.S. futures market. There are legitimate reasons, 

such as operational or clerical errors, that cause swaps trades to be rejected from 

clearing. Even the Divisions recognized some of these legitimate reasons in their 

expired no-action letter that allowed certain swaps trades to be resubmitted after being 

rejected from clearing.125 In the futures market, DCMs have implemented rules to 

address the situation where an executed futures transaction is rejected from clearing.126

SEFs, like DCMs, would suffer from reputational risk if too many trades were rejected 

from clearing and no transparent, workable resolution process existed. Thus, SEFs, like 

DCMs, have an incentive to get clearing right and implement clear, workable error trade 

policies.

Furthermore, the void ab initio policy introduces additional risk into the system. 

For example, after a participant executes a swap, the participant enters into a series of

other swaps to hedge its risk. If the first swap is declared void ab initio and there is no 

opportunity to resubmit the trade, then the participant will not be correctly hedged, which 

creates additional market and execution risk. The higher level of risk and burden to the 

U.S. swaps market as compared with overseas swaps markets and the U.S. futures 

market should not be borne without an offsetting benefit carefully considered through

public notice and comment.

F. Expansive Scope for Uncleared Swaps Confirmations

The CFTC’s approach to SEF confirmations and related agreements for 

uncleared swaps has been confusing and expansive in scope.

 

124 Id.

125 CFTC Letter No. 13-66, Time-Limited No-Action Relief for Swap Execution Facilities from Compliance 

with Certain Requirements of Commission Regulation 37.9(a)(2) and 37.203(a) (Oct. 25, 2013), available 

at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-66.pdf.

126 See, e.g., CME Rule 527.C. Outtrades Resolution, available at

http://www.cmegroup.com/rulebook/CME/I/5/5.pdf; CME Rule 809.D. Reconciliation of Outtrades, 

available at http://www.cmegroup.com/rulebook/CME/I/8/8.pdf. 
35

Under CFTC SEF rules, a SEF is required to provide “each counterparty to a 

transaction ... with a written record of all of the terms of the transaction which shall 

legally supersede any previous agreement and serve as a confirmation of the 

transaction.”

127 Additionally, responding to comments about a SEF’s confirmation for 

uncleared swaps, footnote 195 to the preamble of the final SEF rules states, in part, that 

“[t]here is no reason why a SEF’s written confirmation terms cannot incorporate by 

reference the privately negotiated terms of a freestanding master agreement ... 

provided that the master agreement is submitted to the SEF ahead of execution ....”128

Shortly after SEFs and market participants discovered this language buried in 

footnote 195, they raised concerns about SEFs receiving master and other agreements,

and the scope and content of the confirmation and reporting requirements applicable to

uncleared swaps transactions.129 Agency staff provided certain relief in August 2014.

130

Yet, much of the problem remains unresolved because of, among other things, a lack of 

clarity over which terms from an agreement must be included in SEF confirmations and 

subsequently reported.131 The CFTC policy is increasing legal uncertainty, contrary to 

the stated goal in the preamble to the final SEF rules.132

The CFTC’s approach to SEF confirmations is taken from the futures model. As 

explained in Section I.E., DCMs own their futures contracts and control the products’

standardized terms. With swaps, however, SEFs do not own the products. The 

products’ terms are akin to an “open-source” design that sell-side dealers created with 

their buy-side customers. Additionally, swaps market participants have long relied on

master agreements, such as the International Swaps and Derivatives Association 

(ISDA) Master Agreement, that govern the overall trading relationship between 

 

127 17 C.F.R. 37.6(b).

128 SEF Rule at 33,491 n. 195.

129 See Request for Relief Relating to Commission Regulation Part 37 for Foreign Exchange Asset Class, 

GFMA (Oct. 28, 2013), available at http://www.gfma.org/correspondence/item.aspx?id=4294967295; 

Request for Time-Limited No-Action Relief Relating to Confirmations for Swaps Not Required or Intended 

to be Cleared, SIFMA (Mar. 10, 2014), available at http://www.sifma.org/comment-letters/2014/sifmasubmits-comments-to-the-cftc-requesting-time-limited-no-action-relief-relating-to-sef-confirmations/.

130 CFTC Letter No. 14-108, Staff No-Action Position Regarding SEF Confirmations and Recordkeeping 

Requirements under Certain Provisions Included in Regulations 37.6(b) and 45.2 (Aug. 18, 2014), 

available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/14-108.pdf.

131 Id.

132 SEF Rule at 33,491.
36

counterparties. These master agreements set out the non-transaction specific credit and 

operational terms that apply to all transactions entered into under them. As a result, 

SEFs do not know or have access to all of these terms and corresponding 

documentation. This paradigm has not changed post-Dodd-Frank for uncleared swaps 

transactions.

Importantly, a master agreement and a confirmation serve different purposes and 

should be thought of as different documents. A master agreement includes provisions 

regarding credit and risk mitigation between counterparties, while a confirmation 

includes provisions regarding the limited economic terms of a particular transaction. The 

CFTC swap documentation rules recognize the importance and distinct purposes of 

these documents.133 The rules define a master agreement as including “all terms 

governing the trading relationship between the [parties]”134 and a swap confirmation as 

documentation that “memorializes the agreement of the counterparties to all of the 

terms of the swap transaction.”135 In other words, confirmations and master agreements

are as alike as apples and oranges.

It is time to reconsider the largely illusory benefits against the almost impossible 

burden of requiring a SEF to confirm and report “all of the terms” of a trading 

relationship to which it is not a party, especially terms from agreements that do not 

affect the fundamental economic terms of the transaction. Without such a rethink, the 

SEF confirmation requirements will continue to be an obstacle for the trading of 

uncleared swaps on SEFs. 

G. Embargo Rule and Name Give-Up

Under the embargo rule, a SEF may not disclose swap transaction and pricing 

data to its market participants until it transmits such data to a swap data repository 

(SDR) for public dissemination.136 To effect such SDR transmission, a SEF must first 

enrich and convert such transaction data as required by the SDR. Alternatively, the SEF 

 

133 Compare 17 C.F.R. 23.501 Swap Confirmation, with 17 C.F.R. 23.504 Swap Trading Relationship 

Documentation.

134 17 C.F.R. 23.504(b)(1).

135 17 C.F.R. 23.500(c) (emphasis added).

136 17 C.F.R. 43.3(b)(3).
37

may choose to use a third-party provider to transmit data to an SDR. Only then can the 

SEF disclose swap transaction data to market participants on its trading platform. 

The delays in transaction and pricing data disclosure caused by the embargo rule 

inhibit the long-established “work-up” process, whereby counterparties buy or sell 

additional quantities of a swap immediately after its execution on the SEF at a price 

matching that of the original trade.

137 It is believed that the work-up process increases 

wholesale trading liquidity in certain OTC swaps by as much as 50 percent.138 The 

embargo rule thwarts this liquidity generation. This rule has hindered U.S. markets from 

continuing a well-established and crucial global trading mechanism. The effect of the 

embargo rule appears to prioritize public transparency – in a market that is closed to the 

general public139– at the expense of transparency for actual participants in the 

marketplace. It is difficult to justify this unbalanced restraint on swaps liquidity.

140

Similarly, name give-up is a long-standing market practice in many swaps 

markets. With name give-up, the identities of the counterparties are disclosed to each 

other after they have been anonymously matched by a platform.141 The origins of the 

practice lie in wholesale markets for self-cleared swaps and other products. There, 

counterparties to large transactions use name give-up to confirm the creditworthiness of 

their counterparties. 

In markets with CCP clearing of swaps, however, the rationale for name give-up 

is less clear cut. That is because the CCP and not the trading counterparty bears the 

 

137 See SEF Rule at 33,500 (explaining the work-up process). 

138 Author’s professional observation based on marketplace experience.

139 The swaps market is closed to participants that are not eligible contract participants. CEA section 

1a(18); 7 U.S.C. 1a(18).

140 The preamble to the final real-time reporting rule did not respond to a public comment about the 

embargo rule’s impact on the work-up process. Real-Time Public Reporting of Swap Transaction Data, 77 

FR 1,182, 1,200-1,202 (Jan. 9, 2012).

141 E.g., After counterparties execute a swap through an anonymous order book, the identities of the 

counterparties are disclosed to each other. See Peter Madigan, CFTC to Test Role of Anonymity in Sef 

Order Book Flop, Risk.net, Nov. 21, 2014, available at http://www.risk.net/riskmagazine/feature/2382497/cftc-to-test-role-of-anonymity-in-sef-order-book-flop (discussing the name 

give-up issue) (Madigan, Anonymity); Katy Burne, CFTC to Look Into Disclosure of Identities of Swap 

Counterparties, Wall Street Journal, Nov. 12, 2014, available at http://www.wsj.com/articles/cftc-to-lookinto-disclosure-of-identities-of-swap-counterparties1415834947?KEYWORDS=cftc+to+look+into+disclosure+of+identities.
38

credit obligations. Counterparties to CCP cleared swaps primarily need assurance of 

each other’s relation to the CCP and not the opposing counterparty’s individual credit 

standing. 

As the swaps market increasingly becomes a cleared market, it is reasonable to 

ask whether name give-up continues to serve a valid purpose. There are a variety of 

different views on both sides of this issue depending on one’s position in the market. 

One argument against the practice of name give-up for cleared swaps is that it serves to 

give superior market transparency to the most active market participants at the expense 

of less active market participants.142 To some experienced market observers, name 

give-up has been abused by major sell-side dealers to restrict participation by nondealers and other liquidity takers in the D2D markets.143

A counter-argument is that, while name give-up may be less necessary for 

counterparty credit confirmation for cleared swaps, it remains necessary for sell-side 

dealer capital allocation. In other words, as bank market-making capital becomes further

constrained by regulations,

144 liquidity makers need to more precisely allocate their 

bank capital among their customer base in coordination with their overall bank crossmarketing strategies. Without the information provided by name give-up, liquidity 

makers will provide less liquidity to the market, especially in times of crisis, and charge 

higher prices to customers.145 This outcome arguably would hurt all market participants.

Another argument is that name give-up helps to “stop market abuses.”146 According to 

one observer, “a predatory customer could influence the price dealers would quote via 

RFQ by placing an order in the Clob. If the order book is anonymous, clients might feel 

 

142 Madigan, Anonymity.

143 Id. The argument is that sell-side dealers threaten to shun platforms in the D2D market that attempt to 

execute trades between dealers and non-dealers. 

144 E.g., Due to such post-financial crisis regulatory reforms as the Volcker Rule, Basel III Accords, capital 

charges and other bank capital-based restrictions. See Anthony J. Perrotta, Jr., An E-Trading UST Market 

‘Flash Crash’? Not So Fast, TABB Group, Nov. 24, 2014, available at http://tabbforum.com/opinions/an-etrading-treasury-market-'flash-crash'-not-so-fast (discussing regulatory capital constraints and declining 

market liquidity) (Perrotta).

145 See Madigan, Anonymity; McKinsey Working Paper at 6.

146 See Madigan, Anonymity.
39

they could play these kinds of games with impunity, so name give-up is seen as a way 

to keep customers honest.”147

Some parties have urged the CFTC to ban, flat out, the practice of name give-up. 

Yet, there are important policy considerations on both sides of the issue that must be 

carefully considered before taking any action.

148 What impact would a blanket ban have 

on swaps market liquidity? Would such a ban cause sell-side dealers to remove liquidity 

from the market or charge higher prices? Would new liquidity makers fully and 

consistently act in the market to make up any shortfall in liquidity? Because market 

liquidity is increasingly recognized as a potential systemic risk to the U.S. financial 

system,

149 any regulatory action to curtail the use of name give-up must be thoroughly 

analyzed for its impact on market liquidity and systemic risk.

150

H. Prescriptive Rules Disguised as Core Principles

Congress provided a core-principles based framework for SEFs.151 It based this 

framework on the Commission’s historical principles-based regulatory regime for 

DCMs.152 Unfortunately, the Dodd-Frank Act missed the mark with respect to the SEF 

core principles, most of which are based on the DCM core principles. The successful 

futures regulatory model is an inappropriate template for SEF core principles. 

This problem has been magnified by unwarranted amendments to CFTC rules 

making SEFs self-regulatory organizations (SROs)153 and requiring them to comply with 

very prescriptive rules modeled after futures exchange practices that are unsuitable for 

the way swaps trade. Although the SEF core principles place certain regulatory 

obligations on SEFs, the Dodd-Frank Act does not require the CFTC to make SEFs 

 

147 Id.

148 A question remains whether the CFTC has such authority under the Dodd-Frank Act.

149 2014 Annual Report, Office of Financial Research, U.S. Treasury Department, at 30-33 (Dec. 2, 2014), 

available at http://www.treasury.gov/initiatives/ofr/about/Documents/OFR_AnnualReport2014_FINAL_12-

1-2014.pdf.

150 See Section IV.C. (discussing market liquidity risk).

151 CEA section 5h(f); 7 U.S.C. 7b-3(f).

152 CEA section 5(d); 7 U.S.C. 7(d) (2009); 17 C.F.R. part 38 (2009).

153 17 C.F.R. 1.3(ee). Adaptation of Regulations to Incorporate Swaps, 77 FR 66,288, 66,290 (Nov. 2, 

2012).
40

SROs.

154 Additionally, it does not instruct the Commission to take a prescriptive rulesbased approach to SEFs.155 In fact, the statute provides SEFs with reasonable 

discretion to comply with the core principles.

156

This approach to SEFs departs from congressional intent and the CFTC’s own 

principles-based regulatory history in favor of prescriptive rules. As CME explained in its 

comment letter to the proposed SEF rule, the Commission is choosing to:

[E]vade the principles-based regulatory regime that Congress established 

for SEFs in [the Dodd-Frank Act] by enacting a litany of prescriptive rules 

that would dictate every detail of a SEF’s day-to-day operations. Had 

Congress wanted the Commission to abandon principles-based 

regulation, it certainly would not have reinforced that regime for DCMs by 

adding an additional five core principles and established the regulatory 

framework for SEFs and [SDRs] through core principles.157

As CME further explained, principles-based regulation has allowed U.S. 

DCMs to maintain a competitive position in the global market. DCMs can keep 

pace with rapidly changing technology and market needs, and can operate more 

efficiently and economically.158 This approach is especially important for SEFs 

given that swaps trading volume is relatively modest as compared with futures 

trading volume.159 If SEF regulatory costs are too high, only a few SEFs will be 

successful, and there will be a lack of competition and innovation. As explained 

in the next section, there is already some evidence of these negative results.

160

Congress did not intend these results when it created competitive SEFs and set 

a goal to promote swaps trading on these SEFs.161

 

This section explains in greater detail some of the problematic futures-based 

core principles and prescriptive rules.

 

154 Id.

155 CEA section 5h(f)(1)(B); 7 U.S.C. 7b-3(f)(1)(B).

156 Id.

157 CME Comment Letter to SEF Rule, at 2 (Mar. 8, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=31276&SearchText=CME. 

158 Id. at 2-3.

159 See Section I.B.

160 See Sections IV.D and E.

161 CEA section 5h; 7 U.S.C. 7b-3.
41

1. Compliance with rules 

SEF Core Principle 2 requires SEFs to establish and enforce compliance with 

rules of the SEF.162 This core principle is based on a similar DCM core principle.163 The 

departure from principles-based regulation is readily evident by reviewing the litany of 

prescriptive rules promulgated under the auspices of Core Principle 2. The SEF rules 

pursued this approach despite numerous commenters’ express concerns that a 

prescriptive approach would harm competition and impede growth in the swaps 

market.164 A few of these prescriptive rules are discussed below.

Audit trail. SEFs, like DCMs, are required to establish audit trails, which include 

an electronic transaction history database and electronic analysis capability with respect 

to all audit trail data in the database.

165 The CFTC copied verbatim most of the SEF 

audit trail requirements from the DCM rules.166 In certain areas, however, the CFTC 

created additional burdens for SEFs as compared with DCMs. Under a SEF’s electronic 

transaction history database requirements, a SEF must include “all indications of 

interest, requests for quotes, orders, and trades....”167 This rule does not distinguish 

between or make allowances for electronic and non-electronic communications and 

execution methods commonly used in the marketplace. Under a DCM’s electronic 

transaction history database requirements, however, for orders, a DCM only must 

include “orders entered into an electronic trading system.”168 In the preamble to the final 

DCM rules, in response to a comment, the CFTC recognized this distinction between 

electronic trading and open-outcry trading for a DCM’s audit trail rules.169 The rationale 

for such a disparity between the SEF and DCM rules is not clear as the rules lack an 

explanation. It is clear, however, that the SEF rules add unnecessarily burdensome and

 

162 CEA section 5h(f)(2); 7 U.S.C. 7b-3(f)(2).

163 CEA section 5(d)(2); 7 U.S.C. 7(d)(2).

164 SEF Rule at 33,505.

165 17 C.F.R. 37.205, 38.551, 38.552 and 38.553.

166 Compare 17 C.F.R. 37.205 with 17 C.F.R. 38.551, 38.552 and 38.553.

167 17 C.F.R. 37.205(b)(2). As discussed earlier, the Commission permits the use of “any means of 

interstate commerce” in connection with the execution of Required Transactions, but only if the method of 

execution satisfies the Order Book or RFQ System requirements. SEF Rule at 33,484, 33,501.

168 17 C.F.R. 38.552(b) (emphasis added). DCMs may provide for execution through non-electronic openoutcry trading pits. CEA section 1a(51); 7 U.S.C. 1a(51).

169 Core Principles and Other Requirements for Designated Contract Markets, 77 FR 36,612, 36,644 (Jun. 

19, 2012).
42

costly requirements on SEFs that go beyond practices in futures and other financial 

markets. 

The burdensome voice order database requirement for SEFs creates additional 

complications for SEFs in their electronic analysis capability requirements. SEFs must 

have the ability to electronically analyze all indications of interest, requests for quotes 

and orders, including through voice execution methods.170 The preamble to the final 

SEF rules acknowledges that a SEF that utilizes the telephone may comply with the 

electronic analysis capability for oral communications by ensuring that its digital 

database of recordings is capable of being searched and analyzed.171 While the SEF 

rules acknowledge voice execution in its audit trail discussion, SEFs that utilize voice 

and electronic messaging (e.g., telephone and instant messaging) for execution and 

communication face significant challenges in complying with the electronic analysis 

requirements given the emergent state of voice recognition and analysis technology.172

Given current challenges, it appears that CFTC staff is asking SEFs to develop a 

surveillance program to monitor voice and electronic messages. This one-size-fits-all 

approach would require a SEF to review a statistically significant sample of randomly 

selected voice recordings and electronic messages per market participant and per SEF 

execution specialist to ensure compliance with electronic analysis requirements. This 

manually intensive process could require a SEF to review thousands and thousands of 

voice messages per year. The SEF rules do not contemplate such a manually intensive 

process.173 Before further steps are taken to adopt such an approach, its costs must be 

weighed against its actual benefits.

While compliance with audit trail requirements is important, such requirements 

should not discourage voice execution methods for swaps given that the Dodd-Frank 

Act allows execution by any means of interstate commerce. For futures, the CFTC 

recognized differences between electronic and non-electronic execution methods for a 

 

170 17 C.F.R. 37.205(b)(3).

171 SEF Rule at 33,519.

172 The author is aware of promising technology that may ease in time the cost and technological burdens 

associated with the ability to electronically analyze voice recordings.

173 The CFTC did not consider the costs and benefits of such an approach in the SEF final rules. Id. at 

33,575-577.
43

DCM’s audit trail requirements. The same flexibility should be afforded to SEFs. In the 

meantime, the Commission staff should work with the SEFs to develop a better tailored

approach for electronic analysis of voice transactions. For example, a SEF could target 

its reviews based on potentially problematic behavior discovered by the SEF or its 

regulatory service provider. A SEF could also target its reviews based on a number of 

factors, such as a SEF’s business model, product listing, type of participant or volume.

Warning letters. The CFTC’s approach to warning letters is also very prescriptive. 

Three separate CFTC rules state that no more than one warning letter may be issued 

by a SEF to the same person or entity found to have committed the same rule violation 

within a rolling twelve month period.174 This prescriptive approach does not allow a SEF 

to exercise reasonable discretion to determine the appropriate action based on the 

totality of the circumstances. It also takes no account of the fact that many entities have 

supervisory oversight over hundreds of employees. The rule makes no allowances for 

entities and their employees to adjust to the extraordinary amount of unprecedented 

regulations recently and rapidly promulgated by the CFTC. Such inflexibility is 

unnecessarily burdensome and heavy-handed.

Supervision of regulatory service provider. The rule requiring SEFs to supervise 

their regulatory service providers also takes a prescriptive approach.175 It is not 

necessary for the CFTC to dictate prescriptive requirements, such as holding “regular 

meetings” to discuss specific enumerated topics and conducting “periodic reviews” 

given that a SEF is always responsible for the services provided by its regulatory 

services provider and for compliance with its obligations under the CEA and 

Commission regulations.176 The SEF and its regulatory service provider should have the 

flexibility to determine how to handle supervisory arrangements. 

2. Monitoring of trading and trade processing

SEF Core Principle 4 requires SEFs to monitor trading in swaps to prevent 

manipulation, price distortion and disruptions of the delivery or cash settlement process, 

 

174 17 C.F.R. 37.203(f)(5), 37.205(c)(2) and 37.206(f).

175 17 C.F.R. 37.204(b).

176 17 C.F.R. 37.204(a).
44

among other things.

177 Certain rules promulgated under Core Principle 4 require a SEF 

to look beyond its own market to gain the information necessary to perform these 

functions. For example, CFTC Regulation 37.404(a) requires a SEF to “demonstrate 

that it has access to sufficient information to assess whether trading in swaps listed on 

its market, in the index or instrument used as a reference price, or in the underlying 

commodity for its listed swaps is being used to affect prices on its market.”

178 In other

words, a SEF that executes a credit default swap on a Ford Motor Company bond must 

also monitor trading in the underlying Ford Motor Company bonds to prevent 

manipulation, price distortion and disruption in its market. While a SEF has the ability to 

monitor trades it executes, asking it to monitor manipulation in another marketplace in 

which it may provide no execution services is an undue, unfair and unwarranted burden. 

The CFTC acknowledges this challenge. Its website regarding market 

surveillance states that only the CFTC itself can “consolidate data from multiple 

exchanges and foreign regulators to create a seamless, fully-surveilled marketplace” 

due to its unique space in the regulatory arena.179 The surveillance “requires access to 

multiple streams of proprietary information from competing exchanges, and as such, 

can only be performed by the Commission or other national regulators.”180 The CFTC 

correctly states that the surveillance “cannot be filled by foreign and domestic 

exchanges offering related competing products,”

181 and there is no reason to believe 

that a SEF is better situated. And yet, despite this broad disclaimer, each SEF that fails 

to fulfill this sort of surveillance function will be in violation of SEF Core Principle 4 and 

CFTC rules. 

Congress should clarify SEF Core Principle 4 to make clear that a SEF is not 

required to monitor markets beyond its own.182 The Commission should also revise its 

 

177 CEA section 5h(f)(4); 7 U.S.C. 7b-3(f)(4).

178 17 C.F.R. 37.404(a).

179 CFTC Market Surveillance Program, available at

http://www.cftc.gov/IndustryOversight/MarketSurveillance/CFTCMarketSurveillanceProgram/tradepractice

surveillance. 

180 Id.

181 Id.

182 CEA section 5h(f)(4); 7 U.S.C. 7b-3(f)(4).
45

rules to this effect. As the CFTC admits on its website, only the Commission can 

perform cross-market surveillance.

3. Position limits

SEF Core Principle 6 places the burden for position limits and position 

accountability levels on SEFs that are trading facilities.183 The Dodd-Frank Act got this 

core principle wrong.

The setting of position limits or position accountability levels by SEFs is very 

problematic. As explained in Section I.E., SEFs do not own swaps products, which trade 

on multiple competing SEFs and bilaterally off-SEFs. SEFs lack the knowledge of a 

market participant’s activity on and off other venues. SEFs only have information about 

swaps transactions that occur on their platforms, and, thus, do not know whether a 

particular transaction on their platform adds to, or offsets all or part of, a participant’s 

existing position. Therefore, SEFs are not able to calculate the total position of a market 

participant or monitor it against any position limit. As explained in the Core Principle 4 

discussion above, only a markets regulator, such as the CFTC, that has a full picture of 

the market can perform cross-market monitoring and surveillance functions. Position 

limit monitoring and surveillance is another such area. 

Congress should revise Core Principle 6 to reflect that the CFTC, or possibly a 

designee, should set and monitor swaps position limits or accountability levels. Until 

Congress revises this futures-based core principle, the Commission staff should 

continue to work with SEFs to derive a solution that ameliorates this burden on SEFs. 

Any regulatory demand that SEFs set or monitor limits or levels is an impossible

exercise that adds extraordinary costs. 

4. Emergency authority

SEF Core Principle 8 requires a SEF to “adopt rules to provide for the exercise of 

emergency authority ... including the authority to liquidate or transfer open positions in 

 

183 CEA section 5h(f)(6); 7 U.S.C. 7b-3(f)(6).
46

any swap ....”184 In its current form, this futures-based core principle places an 

impossible burden on SEFs. Congress should revise it to better suit the realities of the 

swaps market.

A SEF does not have the ability to liquidate or transfer open swaps positions

because SEFs do not hold positions on behalf of their participants. As several 

commenters to the final SEF rules have explained, a SEF is not the appropriate entity to 

order the liquidation or transfer of these positions in an emergency because it does not 

have the ability or legal right to do so.

185 The Commission or a derivatives clearing 

organization (DCO), for cleared swaps, for example, are more appropriate entities to 

exercise this authority. Until Congress revises this futures-based core principle, the 

Commission and its staff should work to revise its guidance under SEF Core Principle 8 

at most to require a SEF to adopt rules for coordination with a DCO or the CFTC to 

facilitate the liquidation or transfer of open positions in an emergency.186

5. Financial resources

SEF Core Principle 13 requires a SEF to have “financial resources [in an amount 

that] exceeds the total amount that would enable the [SEF] to cover the operating costs 

of the [SEF] for a 1-year period, as calculated on a rolling basis.”187

The market impact of a SEF failure is not nearly comparable to a DCM failure so 

it does not make sense for a SEF to hold one year of financial resources. A SEF failure 

will not likely create a liquidity crisis because most swaps trade on multiple SEFs and 

thus there are multiple liquidity pools available in which to trade. Participants can easily 

trade on another SEF in the event of a failure. This is in contrast with the futures market 

where the impact on market liquidity is of greater concern in the event of a DCM failure 

because a DCM owns its products and those products only trade on the specific DCM. 

Thus, there is one liquidity pool. The failure of one DCM will likely harm this liquidity 

absent regulatory action to transfer those products and corresponding open interest to 

 

184 CEA section 5h(f)(8); 7 U.S.C. 7b-3(f)(8).

185 SEF Rule at 33,536.

186 Id.

187 CEA section 5h(f)(13); 7 U.S.C. 7b-3(f)(13).
47

another DCM or participants moving to another product on another DCM. Given these 

differences, SEFs should not be held to the same one-year financial resources 

requirement as DCMs.

The financial resources requirement is overly burdensome and 

disproportionately impacts SEFs that offer voice-based execution methods. These SEFs 

must significantly increase their financial resources to cover the compensation of 

employee brokers who facilitate execution through these voice-based methods.188 This 

requirement ties up additional capital for these SEFs, which puts them at a competitive 

disadvantage. 

Congress should reexamine this core principle and only require a SEF to hold 

enough capital to conduct an orderly wind-down of its operations. It would not take a 

SEF one year to terminate employees and contracts and conduct an orderly wind-down 

of its operations. It would not be unreasonable to expect a SEF to conduct such a winddown in three months.189 This approach would release significant capital back to the 

SEF for innovation, lower barriers to entry, reduce costs and increase competition. 

In the meantime, the Commission and staff should reexamine CFTC rules and 

work with SEFs to reduce their financial burden. The Commission and staff could, for 

example (a) flexibly interpret a SEF’s financial resources to include additional resources 

such as projected revenues or projected capital contributions, (b) flexibly interpret 

operating costs to mean wind-down costs or to exclude certain costs not directly tied to 

core principle compliance or (c) flexibly interpret operating costs to exclude 

compensation that is not payable unless and until collected by the SEF. 

 

 

188 It is a common practice in traditional voice brokerage firms for the bulk of compensation of client-facing 

personnel to be calculated as a percentage of transaction commissions generated and collected by the 

employer. Such aggregate compensation is often one of the largest components of operating costs at 

such firms. 

189 See, e.g., CME Comment Letter to SEF Rule, Appendix A, at 37 (Mar. 8, 2011), available at

http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=31276&SearchText=CME (stating that 

three months is an appropriate time frame for winding-down operations).
48

IV. ADVERSE CONSEQUENCES OF THE CFTC’s SWAPS TRADING 

REGULATORY FRAMEWORK

Given the mismatch between the CFTC’s flawed swaps trading regulatory 

framework and the manner in which swaps trade in global markets, the CFTC’s swaps 

trading rules are causing numerous adverse consequences for U.S. market participants.

 

A. Global Market Fragmentation and Systemic Risk

Foremost among the adverse consequences is the reluctance of global market 

participants to transact with entities subject to CFTC swaps regulation. Traditionally, 

users of swaps products chose to do business with global financial institutions based on 

factors such as quality of service, product expertise, financial resources and 

professional relationship. Now, those criteria are secondary to the question of the 

institution’s regulatory profile. Non-U.S. persons are avoiding financial firms bearing the 

scarlet letters of “U.S. person” in certain swaps products to steer clear of the CFTC’s 

problematic regulations.190 And it is not just American banks that are losing business, 

but also U.S. trading firms, intermediaries and asset managers, as well as the jobs of 

U.S.-based employees and vendors who support them.191

 

190 See Audrey Costabile Blater, Revisiting Cross-Border Fragmentation of Global OTC Derivatives: Midyear 2014 Update, ISDA Research Note, at 1-5 (Jul. 24, 2014), (ISDA Update), available at

http://www2.isda.org/functional-areas/research/research-notes/ (“Following the October 2, 2013 SEF rule 

coming into force . . . relationships appear to have shifted as European dealers became reluctant to trade 

with US counterparties.”); Philip Stafford, CFTC Calls for International Help on Derivatives Oversight, 

Financial Times, Nov. 14, 2014, available at http://www.ft.com/intl/cms/s/0/3aeabbb0-6b63-11e4-9337-

00144feabdc0.html#axzz3OX6k3roi (indicating that because of recent CFTC regulations, “Sefs have 

become US-centric venues[, which] has led to concern that the market is fragmenting, damaging both 

economic growth and contributing to potential systemic market risk”); Philip Stafford, US Swaps Trading 

Rules Have “Split Market,” Financial Times, Jan. 21, 2014, available at 

http://www.ft.com/intl/cms/s/0/58251f84-82b8-11e3-8119-00144feab7de.html#axzz3CHQbMKxU (noting 

that “European dealers [have become] unwilling to trade with US counterparts” due to CFTC regulations) 

(Stafford, Market Split); Katy Burne, Big U.S. Banks Make Swaps a Foreign Affair, Wall Street Journal, 

Apr. 27, 2014, available at

http://www.wsj.com/articles/SB10001424052702304788404579520302570888332?autologin=y (noting 

that some banks are “changing the terms of some swap agreements made by their offshore units so they 

don’t get caught by U.S. regulations”). 

191 The CFTC’s swaps rules have even stymied overseas development of global electronic trading 

platforms in favor of traditional phone transactions that allow participants to readily identify a 

counterparty’s now essential U.S./non-U.S. regulatory profile.
49

This avoidance by non-U.S. person market participants of the CFTC’s illdesigned U.S. swaps trading rules is fragmenting global swaps markets between U.S. 

persons and non-U.S. persons and driving away global capital. Global swaps markets 

have divided into separate liquidity pools: those in which U.S. persons are able to 

participate and those in which U.S. persons are shunned. Liquidity has been fractured 

between an on-SEF, U.S. person market on one side, and an off-SEF, non-U.S. person 

market on the other. 

According to a survey conducted by ISDA, the market for euro IRS has 

effectively split over the past 12 months.192 Volumes between European and U.S. 

dealers have declined 77 percent since the introduction of the U.S. SEF regime.193 The 

average cross-border volume of euro IRS transacted between European and U.S. 

dealers as a percentage of total euro IRS volume was 25 percent before the CFTC put 

its SEF regime in place, and has fallen to just 9 percent since.194 According to an 

unnamed senior SEF executive, “The exit of the US banks has shifted trading in euro, 

yen and sterling interest rate swaps to Europe. Given that interest rate swaps are 80% 

of the overall [swaps] market, that’s effectively half the swap market gone at a 

stroke.”195

 

192 See ISDA Update. See also Stafford, Market Split. Beginning on October 2, 2013 after the SEF rules 

compliance date, European dealers began to trade exclusively with other European counterparties in the 

market for euro interest rate swaps (IRS) and had dramatically moved away from trading with U.S. 

counterparties. ISDA Update at 4. In October 2013, 91 percent of euro IRS trades were between two 

European counterparties while only 9 percent were between a U.S. and a European dealer. Id. at 4-5. By 

May 2014, 93 percent of euro IRS trades were between two European counterparties while only 6 percent 

of euro IRS trades were between a U.S. and European dealer. Id. Compare these figures to those from a 

month before the SEF rules compliance date, when 71 percent of euro IRS trades were between two 

European counterparties while 29 percent of euro IRS trades were between a U.S. and European dealer. 

Id. European dealers have clearly shifted their trading behavior. This observation is also supported by an 

ISDA survey where 68 percent of non-U.S. market participant respondents indicated they have reduced 

or ceased trading with U.S. persons. Audrey Costabile Blater, Footnote 88 and Market Fragmentation: An 

ISDA Survey, ISDA Research Note, at 3-4 (Dec. 18, 2013), available at http://www2.isda.org/functionalareas/research/research-notes/.

193 ISDA Update at 6.

194 Id at 2. See also Amir Khwaja, A Review of 2014 US Swap Volumes and SEF Market Share, TABB 

Forum (Jan. 16, 2015), available at http://tabbforum.com/opinions/a-review-of-2014-us-swap-volumesand-sef-market-share (noting that the majority of trading in EUR, JPY and GBP IRS is taking place offSEF in Europe, Japan and London).

195 Kim Hunter, Growing Pains, Markit Magazine, at 32 (Winter 2014), available at

http://content.markitcdn.com/corporate/Company/Files/MagazineEntireIssue?CMSID=1277525de02549a

dbf7b422b9b34f641 (Hunter).
50

The fragmentation of the global swaps market has fractured trading liquidity, 

exacerbating the inherent challenge of swaps trading – adequate liquidity.196

Fragmentation has led to smaller, disconnected liquidity pools and less efficient and 

more volatile pricing. Divided markets are more brittle, with shallower liquidity, posing a 

risk of failure in times of economic stress or crisis. Fragmentation also increases firms’ 

operational risks as they structure themselves to avoid U.S. rules and now must 

manage multiple liquidity pools in different jurisdictions (e.g., through different affiliates). 

This activity increases a firm’s operational and structural complexity and reduces its 

efficiency in the markets. In short, market fragmentation caused by the CFTC’s illdesigned trading rules – and the application of those rules abroad – is harming liquidity, 

increasing the systemic risk that the Dodd-Frank Act was predicated on reducing, and 

driving capital overseas as non-U.S. persons seek to avoid the CFTC’s swaps trading 

rules.

There are at least two underreported impacts of global market fragmentation. 

First, the emergence of separate U.S. person and non-U.S. person swaps liquidity pools 

increases the likelihood of different pricing in the divergent swaps markets.197

Meanwhile, global regulators are keen to reform global indices such as the London 

Interbank Offered Rate (LIBOR) to use transaction-based data rather than indicative 

market data. However, the development of disparate pricing in two distinct trading 

markets will make attempts to unify benchmark calculations extraordinarily challenging.

Second, as trading in non-U.S. person markets continues to grow at the expense of 

U.S. person markets, bank prudential regulators in London and Singapore are requiring 

supervised entities, including subsidiaries of U.S. banking institutions, to increase 

capital reserves to meet Basel III capital and liquidity requirements. For U.S. bank 

subsidiaries, these requirements may well be met through the exporting of capital from 

 

196 Referring to the manifest liquidity split between London and New York, Dexter Senft, Morgan Stanley’s 

co-head of fixed income electronic markets, said, “I liken [SEF liquidity] to a canary in a coal mine. It’s not 

dead yet, but it’s lying on its side.” Id. at 31. See also Katy Burne, Companies Warn of Swaps Rules’ 

Impact on Hedging, Wall Street Journal, Apr. 8, 2014, available at

http://www.wsj.com/articles/SB10001424052702304819004579489493056041978?autologin=y (noting 

fragmentation and liquidity concerns).

197 Such a divergence in U.S. bank and non-U.S. bank lending rates took place during the height of the 

Eurodollar market.
51

the U.S. Simply put, the more swaps that are traded away from CFTC-regulated swaps 

markets, the more capital and liquidity that may flow away from the U.S. economy.

There are some who may argue that the fragmentation problem is simply one of 

regulatory arbitrage. They contend that trading will naturally flow away for some time 

from the U.S. to Europe and other jurisdictions that have yet to adopt swaps 

transaction-level rules. They argue that the Europeans and others are just taking too 

long to adopt transaction-level rules and that, once they do, the fragmentation of global 

swaps markets will reverse itself. To them the problem is just temporary.

This argument is far too forgiving of the CFTC’s flawed rule set and ignores the

resultant long-term harm to U.S. financial markets. The argument is built on the

assumption that, if the Europeans and others could just be hurried along in their rule 

writing, they will adopt the same flawed rule set as the CFTC. Unfortunately, the 

Europeans are not looking to make the same mistakes.198 It has been clear for a long 

time that European swaps trading rules will not narrowly limit methods of swaps 

execution nor impose many of the other peculiar CFTC trading restrictions described in 

this White Paper. The Europeans also do not appear willing to be hurried. They have 

been clear from the outset that the transaction-level swaps rules are tertiary in 

importance to trade reporting and clearing and will be addressed with that level of 

priority. The defense of current CFTC swaps trading rules further assumes that, once 

swaps markets leave the U.S., they can easily be brought back. Sadly, the history of 

trading markets, such as the Eurodollar market,199 demonstrates that, even when 

 

198 Inevitably, European market regulators may make some unique mistakes of their own.

199 Milton Friedman, The Euro-Dollar Market, Some First Principles, University of Chicago, Selected 

Papers No. 34, available at

http://www.chicagobooth.edu/~/media/44CEE6C8A25B4FF2A48925163DAA2F85.pdf. Friedman makes 

the case that the development of the multi-trillion dollar Euro-dollar market was primarily the result of the 

Federal Reserve’s Regulation Q in the 1970s, which fixed maximum interest rates that Fed member 

banks could pay on time deposits. As a result European (mostly London) banks paying higher interest 

rates became more attractive than U.S. deposits, and the Euro-dollar and later Asian-dollar markets 

expanded outside the U.S. Friedman also blames direct and indirect U.S. exchange controls imposed for 

“balance-of-payments” purposes. Despite the later withdrawal of Regulation Q and various exchange 

controls, the Euro and Asian Dollar markets remain firmly offshore where they continue to grow.
52

regulators address fundamental flaws, it is hard to bring departed markets back to U.S. 

shores along with the American jobs they once supported.200

B. Domestic Market Fragmentation

In addition to global swaps market fragmentation, the CFTC’s unwarranted

slicing and dicing of swaps trading into a series of novel regulatory categories, such as 

Required Transactions and Permitted Transactions and block transactions “off-SEF” 

and non-blocks “on-SEF,” each with their corresponding execution methods, has 

fragmented the U.S. swaps market into artificial market segments. This fragmentation 

comes on top of the already inevitable segmentation caused by distinct SEC swaps 

transaction rules for securities-based swaps.201 This fragmentation has exacerbated the 

inherent challenge of adequate trading liquidity. Like global fragmentation, domestic 

fragmentation has led to an artificial series of smaller and smaller pools of trading 

liquidity and an increase in market inefficiencies. So long as such disparate segments 

remain, U.S. swaps markets face a self-imposed liquidity challenge as compared with

non-U.S. markets.

C. Market Liquidity Risk

A 2013 staff report from the New York Fed asks whether the reduced liquidityprovision capacity of dealers, as a result of the Volcker Rule and other new capital 

constraints, will encourage greater market making by non-dealer institutional investors 

to fill the void and result in a more stable financial system.202 The report analyzes the 

liquidity-making activities of major sell-side dealers in corporate bond and CDS markets 

during the 2008 financial crisis.203 It concludes that during the height of the crisis, sellside dealers generally performed their customary role as liquidity makers when their 

clients demanded liquidity.204 But the authors explain that, despite this dealer-provided 

 

200 Id.

201 As of this White Paper’s publication date, the SEC has not promulgated final security-based SEF rules.

202 Jaewon Choi and Or Shachar, Did Liquidity Providers Become Liquidity Seekers?, Federal Reserve 

Bank of New York, Staff Report No. 650 (Oct. 2013), available at

http://www.newyorkfed.org/research/staff_reports/sr650.pdf (Choi and Shachar).

203 Id.

204 Id. at 17.
53

liquidity, there was still a shortfall in corporate bond liquidity driving a large negative 

CDS-bond basis.205 The authors hypothesize that the bulk of liquidity taking during this 

period was driven by highly-levered traders and hedge funds.206 The report expresses

doubt on the desirability of offsetting sell-side dealers’ traditional market-making 

capacity with liquidity from non-dealer institutional investors, including arbitrageurs.207

A more recent report by the Office of Financial Research of the U.S. Treasury 

Department makes clear that changes in financial market structures caused by new 

regulations will reduce the willingness of some major market participants to smooth out 

volatility in global financial markets.

208 According to this study, these changes will cause 

the U.S. financial system to become more vulnerable to debilitating financial market 

shocks.209

Market analyst Anthony Perrotta has explained how the October 15, 2014 crash 

in the U.S. Treasury market was fundamentally driven by structural imbalance in the 

ratio of liquidity provided to markets and liquidity demanded from markets.210 He 

explains:

Under the current, principal-based risk model, liquidity providers –

traditionally large banks with significant amounts of capital –

provide liquidity on-demand (a.k.a. “immediacy”) to investors. As 

the amount of capital these banks have at their disposal and 

committed to market-making declines due to regulations imposed 

by the Dodd-Frank Act and Basel III Accords – including the 

Volcker Rule and the liquidity coverage ratio (LCR) – the 

likelihood of volatility increasing is greater ... and the amount of 

on-demand liquidity requested can sometimes overwhelm the 

liquidity providing universe.”211

 

205 Id. at 18-22.

206 Id. at 19.

207 Id. at 22-23.

208 2014 Annual Report, Office of Financial Research, U.S. Treasury Department, at 30-33 (Dec. 2, 2014), 

available at http://www.treasury.gov/initiatives/ofr/about/Documents/OFR_AnnualReport2014_FINAL_12-

1-2014.pdf.

209 Id.

210 Perrotta.

211 Id.
54

In light of these government studies and industry observations about liquidity 

shortfall in corporate and U.S. government debt markets, there is good reason for 

concern that CFTC regulations and staff actions may be hazarding a similar structural 

imbalance between liquidity provided and liquidity demanded in the U.S. swaps 

markets. The CFTC’s restrictions on methods of execution and its slicing and dicing of 

regulatory categories are a challenge to broad liquidity formation both cross-border and 

domestically. The CFTC’s embargo rule is inhibiting the established role of “work-up” in

fostering greater trading liquidity. Its void ab initio policy increases risk of failed 

execution, inhibiting transaction volume. Misinterpretation of the impartial access 

requirement to hasten the emergence of all-to-all swaps markets may hamper sell-side 

dealers’ access to D2D marketplaces to hedge swaps inventory. Without ready access 

to D2D markets, sell-side dealers may withdraw from the market or charge their buyside customers much higher prices. This could leave buy-side customers with volatile 

pricing and without sufficient liquidity, especially during periods of volatility, when they 

need it most.

D. Threaten SEF Survival

The CFTC’s swaps trading regime threatens the survival of many SEFs and has 

erected enormous barriers to entry for future registrants. The CFTC’s prescriptive and 

burdensome rules have ensured that operating a SEF is an expensive, legally intensive 

activity.212 The CFTC staff has unnecessarily added to this burden by issuing an 

unprecedented number of no-action letters, guidance, advisories, and other written 

communications.

213 On the revenue side, the mismatch between the CFTC’s swaps 

trading framework and the natural commercial workings of the swaps market has 

caused participants to avoid the CFTC’s SEF regime, sharply depressing revenues.214

According to one SEF executive, “Some of those [SEFs] with volume are not making a 

 

212 Catherine Contiguglia, Sef Boss Spends His Days ‘Worrying About Costs,’ Risk.net, Sep. 24, 2014, 

available at http://www.risk.net/risk-magazine/news/2371788/sef-boss-spends-his-days-worrying-aboutcosts (Contiguglia).

213 See Hester Peirce, Regulating through the Back Door at the Commodity Futures Trading Commission, 

Mercatus Working Paper (Nov. 2014), available at http://mercatus.org/sites/default/files/Peirce-BackDoor-CFTC.pdf (detailing how the CFTC used non-rulemaking methods to impose binding obligations on 

regulated persons).

214 Contiguglia.
55

profit; the rest must be wondering how they can keep the lights on.”215 As a result, the 

CFTC has guaranteed that large, well-resourced corporations that operate SEFs have 

an advantage over smaller platforms. As the head of Ice Swap Trade recently stated, “it 

has become clear [that operating a SEF] ... is never going to be a standalone 

business.”216 Without change, the CFTC’s current swaps trading regime is ensuring that 

big platforms get bigger, small platforms get squeezed out and operating a SEF is 

unprofitable. The Dodd-Frank Act did not authorize a regulatory drive for SEF 

consolidation.

E. Hinder Technological Innovation 

In 1899, U.S. Patent Commissioner Charles H. Duell is said to have pronounced 

that “everything that can be invented has been invented.”217 Not to be outdone, the 

CFTC’s swaps trading rules pre-suppose that order book and RFQ methodologies are 

today and will always remain the only suitable technological means for U.S. swaps 

execution. These restrictive SEF rules would close U.S. swaps markets to promising 

technological advances while the rest of the world proceeds ahead in financial market 

innovation.218

A particular example is Dutch Auction-based electronic trading systems, which

are actively deployed in swaps markets around the world. These systems generally 

deploy algorithms based on time priority that match participants’ orders at predetermined prices, while protecting participant trading intentions as to side of market 

and size.219 They have the ability to electronically concentrate otherwise elusive liquidity 

in episodically traded markets by bringing participants together and enabling them to 

execute orders based on a single pre-determined market clearing price without the 

 

215 Hunter at 32.

216 Id.

217 Charles Holland Duell, Wikipedia, available at http://en.wikipedia.org/wiki/Charles_Holland_Duell. The 

statement has been debunked as apocryphal.

218 See Section III.A. (discussing a SEF’s limited execution methods).

219 Definition of Dutch Auction, Investopedia, available at

http://www.investopedia.com/terms/d/dutchauction.asp. See also BGC Derivatives Markets, L.P. SEF 

Rules, Rule 602(c) and (d), Volume Match Trading Facility and Volume Match Plus Trading Facility, 

available at http://www.bgcsef.com/BGC_SEF_Rulebook_11_01_13_Clean.pdf.
56

adverse price effects resulting from large-sized orders. Thus, Dutch Auction trading 

protocols promote liquidity and price transparency in these markets with episodic 

liquidity in a way CLOBs cannot. Participants may also obtain a better price through a 

Dutch Auction as compared with a CLOB given that there may be few bids and offers in 

the CLOB in illiquid markets or after periods of illiquidity.

Unfortunately, the CFTC’s limited methods of SEF execution and CFTC staff’s

interpretation of those methods may prohibit these valuable auction-based electronic 

trading platforms, notwithstanding Congress’s clear permission for “any means of 

interstate commerce.”220 This prohibition would be especially unjustifiable given that 

Dutch Auctions use a method similar to DCMs’ currently permitted process for the daily 

opening of electronically traded futures markets.

221 For example, CME Rule 573 

establishes procedures for the Globex opening with a single equilibrium opening 

price.222 Globex determines this equilibrium price based on sell pressure and buy 

pressure where the largest volume of trading can occur.223 There has been no 

suggestion that this process does not comport with the statutory definition of a trading 

facility, which DCMs are required to offer.224 Therefore, any effort to prohibit Dutch 

Auctions appears contrary to CFTC regulations and precedent, let alone the expressed 

flexibility of Title VII of the Dodd-Frank Act.

F. Introduce High-Frequency Trading

In an odd twist, the CFTC’s insistence upon RFQ systems and centralized, orderdriven markets to execute swaps transactions has the potential to open U.S. swaps 

markets to algorithmic trading and HFT. While the HFT debate is beyond the scope of 

this paper, the CFTC’s unwarranted bias for certain execution methods raises important 

public policy concerns regarding algorithmic trading and HFT. It is unclear how those 

who support the CFTC’s impetus for electronic CLOB execution of swaps, yet decry 

 

220 CEA section 1a(50); 7 U.S.C. 1a(50).

221 See, e.g., CME Rule 573, Globex Opening, available at

http://www.cmegroup.com/rulebook/CME/I/5/5.pdf.

222 Id.

223 Id.

224 CEA section 1a(51); 7 U.S.C. 1a(51).
57

HFT in today’s equities and futures markets, will reconcile these views when the 

enormous but humanly-managed swaps markets are launched into unmanned

hyperspace by HFT algorithmic trading technologies. 

G. Waste Taxpayer Dollars

Managing the CFTC’s flawed swaps trading regulatory framework is expensive 

and time consuming. Fitting the square peg of the CFTC’s swaps trading rules into the 

round hole of the established global swaps markets requires the Commission and staff 

to devote enormous resources to continuously explain, clarify, adjust, exempt and 

manipulate rules sufficient for rough swaps market operability. The Commission and 

staff must constantly add to the plethora of no-action letters, guidance, staff advisories 

and other written communications that go out to the market and participants. During the 

course of implementing the Dodd-Frank Act, the Commission staff has issued 334 such 

communications.225 The package transactions example discussed earlier is a clear

instance of the large amounts of staff resources expended. This mismatch is also 

requiring the CFTC and its staff to expend considerable resources on issues that would 

not be issues if the rules followed congressional intent and aligned with swaps market 

dynamics. The NDF clearing mandate debate discussed earlier is another example. The 

CFTC’s current swaps trading regulatory framework requires enormous bureaucratic 

“make work” to assure industry compliance. Yet, it is mostly unnecessary and 

unsupported by Title VII of the Dodd-Frank Act. It wastes taxpayer dollars at a time 

when the Commission is seeking additional resources from Congress.

H. Harm Relations with Foreign Regulators

At the 2009 Pittsburgh G-20 Summit, one year after the financial crisis, global 

leaders agreed to work together to support economic recovery through a “Framework 

for Strong, Sustainable and Balanced Growth.”226 The Pittsburgh participants pledged to 

 

225 As of Jan. 13, 2015, the Commission staff has issued 250 no-action letters, 42 exemptive letters and 

42 staff interpretive letters, guidance, advisories and other written communications.

226 G-20 Leaders’ Statement, The Pittsburgh Summit, at 2 (Sep. 24-25, 2009), available at

https://www.g20.org/sites/default/files/g20_resources/library/Pittsburgh_Declaration.pdf.
58

work together to “implement global standards” in financial markets, while rejecting 

“protectionism.”227

Instead of working with its counterparts abroad, the CFTC forged ahead with 

overreaching swaps rules, which are partially responsible for harming relations with 

foreign regulators. The CFTC exported its swaps rules overseas through its July 2013 

“Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap 

Regulations” (Interpretive Guidance).228 In essence, the Interpretive Guidance asserted 

that every single swap a U.S. person enters into, no matter where it is transacted, has a 

direct and significant connection with activities in, and effect on, commerce of the United 

States that requires imposing CFTC transaction rules.229

Several months later, the CFTC staff issued a “Staff Advisory” that declared that, 

even if no U.S. person is a party to the trade, CFTC transaction rules apply if it is 

“arranged, negotiated, or executed” by personnel or agents of a non-U.S. swap dealer 

located in the U.S.230 If that was not enough, staff issued guidance the next day stating 

that it “expects that a multilateral swaps trading platform located outside the United 

States that provides U.S. persons or persons located in the U.S. (including personnel 

and agents of non-U.S. persons located in the United States) ... with the ability to trade 

or execute swaps on or pursuant to the rules of the platform, either directly or indirectly 

through an intermediary, will register as a SEF or DCM.”231 

Taken together, the combined effect of the CFTC’s Interpretive Guidance, Staff 

Advisory and staff guidance – none of which is a formally adopted CFTC rule – is to 

dictate that non-U.S. market operators and participants must abide by flawed swaps 

transaction-level rules for trades involving U.S. persons or supported by U.S.-based 

 

227 Id. at 7.

228 Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations, 

78 FR 45,292 (Jul. 26, 2013).

229 Id.

230 CFTC Staff Advisory No. 13-69, Applicability of Transaction-Level Requirements to Activity in the 

United States (Nov. 14, 2013), available at

http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-69.pdf.

231 Division of Market Oversight Guidance on Application of Certain Commission Regulations to Swap 

Execution Facilities, at 2 (Nov. 15, 2013), available at 

http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/dmosefguidance111513.pdf.
59

personnel. This approach flew in the face of harmonization efforts, such as the CFTCEuropean Union Path Forward understanding.

232 The CFTC’s relationship with foreign

regulators and global swaps market participants has been strained as a result of the 

CFTC’s global overreach.

233

I. Threaten Job Creation and Human Discretion

The application of certain CFTC rules threatens jobs in the U.S. financial services 

industry. As explained in Section IV.H., the CFTC’s Staff Advisory imposed swaps 

transaction rules on trades between non-U.S. persons whenever anyone on U.S. soil 

“arranged, negotiated, or executed” the trade.234 While the Staff Advisory was recently 

delayed for the fourth time, it is causing many overseas trading firms to consider cutting 

off all activity with U.S.-based trade support personnel to avoid subjecting themselves to 

the CFTC’s flawed swaps trading rules.

235 The Staff Advisory jeopardizes the role of 

bank sales personnel in U.S. financial centers like Boston, Charlotte, Chicago, New 

Jersey and New York. It will likely have a ripple effect on technology staff supporting 

U.S. electronic trading systems, along with the thousands of jobs tied to the vendors 

who provide food services, office support, custodial services and transportation needs 

to the U.S. financial services industry. With tens of millions of Americans falling back on 

part-time work, the CFTC should not cause good-paying full-time jobs to be 

eliminated.

236

 

232 Cross-Border Regulation of Swaps/Derivatives Discussions between the Commodity Futures Trading 

Commission and the European Union – A Path Forward, Jul. 11, 2013, available at

http://www.cftc.gov/PressRoom/PressReleases/pr6640-13.

233 See, e.g., Andrew Ackerman et al., U.S., Europe Hit Impasse Over Rules on Derivatives, Wall Street 

Journal, Sep. 25, 2014, available at http://online.wsj.com/articles/u-s-europe-hit-impasse-over-rules-onderivatives-1411672215; Gina Chon and Michael MacKenzie, CFTC Leadership Change Eases Strains, 

Financial Times, Feb. 13, 2014, available at http://www.ft.com/intl/cms/s/0/3149635c-9401-11e3-bf0c00144feab7de.html#axzz3LuyOpxFA. See also J. Christopher Giancarlo, Commissioner, Keynote 

Address of CFTC Commissioner J. Christopher Giancarlo at The Global Forum for Derivatives Markets, 

35th Annual Burgenstock Conference, Geneva, Switzerland: The Looming Cross-Atlantic Derivatives 

Trade War: “A Return to Smoot-Hawley” (Sep. 24, 2014), available at

http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlos-1. 

234 CFTC Staff Advisory No. 13-69.

235 CFTC Letter No. 14-140, Extension of No-Action Relief: Transaction-Level Requirements for Non-U.S. 

Swap Dealers (Nov. 14, 2014), available at

http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/14-140.pdf.

236 News Release, The Employment Situation – September 2014, Bureau of Labor Statistics, at Summary 

Table A, Oct. 3, 2014, available at http://www.bls.gov/news.release/archives/empsit_10032014.pdf. Steve 
60

It is apparent to observers that underlying many CFTC rules and regulations is 

an unstated bias against human discretion in swaps execution.237 The bias is seen in a 

range of CFTC positions, including allowing only two specific types of execution 

methods for Required Transactions,238 requiring an RFQ System to operate in 

conjunction with an Order Book,239 requiring an RFQ to be sent to three market 

participants,240 placing various conditions around basis risk mitigation services241 and 

the CFTC staff’s aversion to Dutch Auctions that utilize professional discretion in setting 

opening auction prices.242 Yet, there is no legal support in Title VII of Dodd-Frank for 

restricting human discretion in swaps execution.

Indeed, the CFTC’s bias against human discretion is contrary to what is 

transpiring in the U.S.’s most successful financial marketplace. The two major markets

for initial public offerings (IPOs), Nasdaq and the New York Stock Exchange (NYSE), 

are today competing against one another on the basis of which has the better degree of 

“human touch” in the IPO process.243 These markets tout the role of professional 

discretion in determining a range of trading factors, including opening price, when 

trading begins and “price parameters to limit movements in the last few seconds before 

the open.”244 The human element is now seen as a key safeguard against the type of 

runaway technical errors that plagued Facebook’s 2012 IPO, when “more than 30,000 

 

Moore, Under Obama: One Million More Americans Have Dropped Out Of Work Force than Have Found 

a Job, Forbes, Oct. 6, 2014, available at http://www.forbes.com/sites/stevemoore/2014/10/06/underobama-one-million-more-americans-have-dropped-out-of-work-force-than-have-found-a-job/.

237 Regulatory pressure will force trading innovation to be “driven by the need for new mechanisms to 

ensure staff and clients don’t misbehave,” See Larry Tabb, Peering Into the Future – Yelling and 

Screaming in 2015, But Little Radical Change, Tabb Forum, Jan. 2, 2015, available at

http://tabbforum.com/opinions/peering-into-the-future-yelling-and-screaming-in-2015-but-little-radicalchange.

238 17 C.F.R. 37.9(a)(2).

239 Id. and 17. C.F.R. 37.9(a)(3).

240 17 C.F.R. 37.9(a)(3).

241 See Section V.C.4.

242 See Section V.D.

243 Sam Mamudi, Nasdaq Tries Human Beings to Stave Off IPO Poaching by Bid Board, Bloomberg, Jan. 

6, 2015, available at http://www.bloomberg.com/news/2015-01-06/nasdaq-highlights-human-touch-in-ipoprocess-to-fend-off-nyse.html.

244 Id.
61

buy and sell orders were either canceled or delayed, leading to a $10 million fine from 

the U.S. Securities and Exchange Commission.”

245

There is no ascertainable policy purpose in promoting human discretion in equity 

public offerings while restricting it in U.S. swaps trading. It would be a regulatory failure 

to restrict human discretion in the $600 trillion swaps markets, and herd trading onto 

automated electronic platforms, where software failures and other technical glitches 

could someday cause a “flash crash” unlike anything yet seen in global markets.

J. Increase Market Fragility

Nassim Nicholas Taleb, the well-known options trader who coined the phrase 

“Black Swan,” has written about the increased fragility of today’s top-down designed, 

overly complicated economic systems.246 He warns that naïve over-intervention in 

complex systems such as financial markets make them more vulnerable, not less, to 

cascading runaway chains of reactions and ultimately fragile in the face of outsized 

crisis events.247 He posits that the opposite of such fragility is not more robust or 

durable systems, but systems that are “anti-fragile.”248 Taleb uses “anti-fragile” to mean

systems that become stronger when subject to stress, the way a human body becomes 

immune to a disease through inoculation.249 Taleb explains that financial markets that 

are allowed to grow organically through trial and error and gain and loss, with plenty of 

redundancy, cyclical stresses and disorders, best resemble biological organisms that 

adapt and, indeed, thrive, in the face of shock and partial destruction.250 He also 

explains how systems artificially directed through untested regulatory prescriptions 

intended to limit randomness and avoid systemic stress become increasingly prone to 

fail in the face of sudden shocks.

251

 

245 Id.

246 See generally Nassim Nicholas Taleb, Antifragile: Things That Gain From Disorder (Random House 

2012).

247 Id.

248 Id.

249 Id.

250 Id.

251 Id.
62

Unfortunately, the CFTC swaps trading rules, with their prescriptive complexity, 

limits on human discretion and transaction methodology bias, seem to support this type 

of systemic fragility. That fragility increases rather than decreases the systemic risk –

the risk of failure of the swaps markets and the broader U.S. financial system – that the 

Dodd-Frank Act was ostensibly designed to reduce. Instead, the CFTC’s rules should 

allow for the supervised but natural development of U.S. swaps markets with all the 

richness and redundancy such organic development entails and the benefits of U.S. 

economic health and prosperity that “anti-fragility” can provide.
63

V. ALTERNATIVE SWAPS TRADING REGULATORY FRAMEWORK

This White Paper proposes a pro-reform reconsideration of many of the CFTC’s

swaps trading rules to align with natural swaps market dynamics and the express 

statutory framework of Title VII of the Dodd-Frank Act. This reconsideration of the 

swaps trading rules is drawn from five key tenets: comprehensiveness, cohesiveness, 

flexibility, professionalism and transparency. This section provides a high-level overview 

of this alternative swaps trading regulatory framework focusing on these five key tenets. 

A. Comprehensiveness

The first tenet of this White Paper’s alternative framework is to subject a 

comprehensive range of U.S. swaps trading activity to CFTC oversight. In this respect,

the CFTC implemented a broad SEF registration requirement.252 The final SEF rules 

explain that registration applies “to facilities that meet the SEF definition in CEA section 

1a(50).”253 This White Paper supports that comprehensive approach.

As the CFTC noted in the final SEF rules, the Dodd-Frank Act contains some 

ambiguity regarding SEF registration.254 Given this ambiguity, some market participants 

have argued that Congress did not intend to require CFTC registration for platforms that

meet the SEF definition, but only facilitate swaps not subject to the trade execution 

requirement.

255 However, the CFTC has already required SEF registration for any 

platform that meets the SEF definition, even if it only facilitates swaps not subject to the 

trade execution requirement.

256 Such SEF platforms are already temporarily 

registered.257

Furthermore, Congress generally intended in Title VII to bring all facilities for 

swaps trading into a comprehensive regulatory structure, not just a portion, through its 

 

252 17 C.F.R. 37.3(a)(1); SEF Rule at 33,481-483.

253 SEF Rule at 33,481.

254 See SEF Rule at 33,481-482.

255 See SEF Rule at 33,479-480.

256 See SEF Rule at 33,481 n. 88.

257 As of Jan. 13, 2015, the Commission has temporarily registered 22 SEFs. See CFTC website, 

http://sirt.cftc.gov/SIRT/SIRT.aspx?Topic=SwapExecutionFacilities.
64

broad SEF registration provision.

258 Leaving platforms that solely facilitate the execution 

of swaps not subject to the trade execution mandate outside of CFTC oversight, and 

those that facilitate swaps subject to the mandate within, as some commenters have 

suggested, creates bifurcated regulated and unregulated markets and invites abuses 

and evasion.259

This White Paper proposes to adopt the CFTC’s registration approach, albeit in a

clear and direct manner. The scope of SEF registration should be defined through rules 

and not buried footnotes in the preamble text, such as the widely consequential impact 

of the CFTC’s now famous footnote 88.

260 Similarly, this White Paper proposes that all 

key components of the CFTC’s swaps rules reside in clear and definitive rule text and 

not in footnotes, staff advisories and ad-hoc no-action letters.

B. Cohesiveness

The second tenet of this White Paper’s alternative framework is regulatory 

cohesiveness. This approach would remove the artificial segmentation between 

Required Transactions and their limited execution methods and Permitted Transactions 

and their broad execution methods, and between block transactions “off-SEF” and nonblocks “on-SEF.” There is no statutory support for these divisions. They carry no 

ostensible policy justification. They are at odds with accepted global practices of swaps 

trading and hinder liquidity formation.261 They add large and unjustifiable regulatory 

costs and burdens and absorb limited agency resources. Instead, all CFTC-regulated 

swaps trading should fall within the same, cohesive and undivided regulatory 

framework.

 

258 The SEF registration requirement states “[n]o person may operate a facility for the trading or 

processing of swaps unless the facility is registered as a [SEF] or as a [DCM] under this section.” CEA 

section 5h(a)(1); 7 U.S.C. 7b-3(a)(1).

259 E.g., A platform meeting the SEF definition could shift its offerings to eliminate swaps imminently 

subject to a trade execution mandate in order to stay outside of CFTC oversight.

260 See SEF Rule at 33,481 n. 88.

261 See Section IV.B. and C. (discussing fragmentation and market liquidity risk).
65

C. Flexibility

This straightforward, comprehensive and cohesive approach will only work, 

however, if the CFTC returns to the Dodd-Frank Act’s express prescription for flexibility 

in swaps trading as outlined below. This White Paper proposes congressionally 

authorized flexibility in the following five key areas: 

1. Permitting trade execution through “any means of interstate commerce”

2. Allowing products to evolve naturally

3. Letting market structure be determined by the market

4. Accommodating beneficial swaps market practices

5. Treating core principles as general principles

1. Permit trade execution through “any means of interstate commerce”

This White Paper proposes that U.S. swaps markets be reopened to business 

and technological innovation that is currently stymied by CFTC swaps trading rules. 

Technology is improving American lives today in many ways, from hailing a taxi (e.g.,

Uber) and connecting with business colleagues (e.g., Linkedin) to listening to music 

(e.g., Spotify). Technological innovations are also transforming capital markets in areas 

such as raising money for business start-ups (e.g., Kickstarter) and consumer borrowing 

(e.g., Payoff). These innovations lower barriers to entry, reduce costs and open markets 

to a broader range of participants. Unfortunately, the CFTC’s swaps rules would prevent 

such technological innovation in the U.S. swaps markets.

Prudent regulatory oversight should allow methods of swaps execution to evolve 

organically based on technological innovation, customer demand and quality of service. 

SEFs, not regulators, should decide what methods of swaps execution are most 

suitable for the instruments they seek to execute and most useful to the particular 

customers they choose to serve. SEFs, not regulators, should decide in which 

promising new business methods and technologies to invest or not to invest. Similarly, 

market participants must not be denied the flexibility to choose what execution method 

is best suited to their swaps trading and liquidity needs. Therefore, the swaps market 
66

should continue to allow its participants a broad choice of methods of swaps execution, 

including, but not limited to, electronic CLOBs, simple order books, RFQ systems, 

electronic Dutch Auctions, hybrid electronic and voice execution methods, full voicebased execution methods, work-up and any other “means of interstate commerce” that 

may today or in the future satisfy customer swaps trading and liquidity requirements. 

Markets, not regulators, must determine the various means of interstate commerce

utilized in the swaps market. That is clearly what Congress intended.

2. Allow products to evolve naturally

This White Paper proposes a more commonsense approach to mandatory 

product trading on SEFs. That is, let new and novel swaps products develop 

commercially to the point where market participants naturally turn to platforms to offer 

trading in the product. Once that happens, the product must trade on a DCM or 

registered SEF. This evolution reflects the reality in the global swaps markets that 

participants initially trade newly developed swaps products bilaterally and only move to 

third-party trading platforms once commercial trading reaches a critical stage.

The Dodd-Frank Act trade execution requirement expresses this logic in that a 

clearing mandated swap must be executed on a SEF unless no SEF makes that swap 

available to trade (i.e., offers the swap for trading).262 This White Paper proposes to 

follow this simple approach and do away with the MAT process. As explained in Section 

III.C., the MAT process is not supported by the statutory language and has no sound 

policy basis. Simply following congressional intent would save precious resources. 

Anything more complicated is just regulatory make-work.

3. Let market structure be determined by the market

This White Paper proposes a more flexible approach to swaps market structure. 

As an essential governing principle, governments and regulators should not pick 

winners and losers in the commercial economy. Regulators should not substitute their 

judgment for the business judgment of commercial entities and participants.

 

262 CEA section 2(h)(8); 7 U.S.C. 2(h)(8).
67

This White Paper asserts that there is no “all-to-all” trading mandate set forth in 

Title VII of the Dodd-Frank Act and the Commission does not have the authority to 

impose one. Accordingly, this White Paper does not advocate for any particular market 

structure, such as existing separate D2D and D2C markets or combined all-to-all 

markets, but simply calls for letting participants in the marketplace determine the 

optimal market structure based on their swaps trading needs and objectives. Adhering 

to Congress’s mandate for flexible methods of execution will allow for a more organic 

and customer-driven development of swaps market structure and the necessary 

balancing of liquidity demand and liquidity provision.

SEF platforms must have the right to offer their services to segments of the 

swaps markets that they believe they are best qualified to serve, so long as they do so 

on an impartial basis consistent with the statute. Similarly, swaps participants must have 

the right to impartial treatment in seeking to transact with whichever CFTC-registered

platform they determine to provide the best service for their specific needs. 

In a similar regard, SEFs should be free to operate either on a name give-up or 

anonymous basis as they deem appropriate in the interest of the clients they serve.

Nevertheless, such freedom of choice should not prevent customer-driven approaches 

to post-trade disclosure, in which SEF participants could individually elect whether or 

not to permit limited identifying information to be provided to trade counterparties 

following a transaction.

4. Accommodate beneficial swaps market practices

This White Paper proposes to better accommodate established and beneficial

swaps market practices. For example, the proposal would allow SEFs to implement 

clear, workable error trade policies to address the situation where an executed swaps

transaction is rejected from clearing. It would also end the void ab initio policy that is not 

statutorily sound, creates a competitive disadvantage relative to the U.S. futures market 

and introduces unjustifiable risk to U.S. swaps transactions.
68

This proposal would also narrow the scope of confirmations for uncleared swaps 

to include only their primary and other material economic terms. There would be no 

need for confirmations to either supersede or reference master agreements or require 

SEFs to possess such agreements. It is practicably impossible for a SEF to collect and 

track changes to every agreement between participants, and to have to “glean” any 

information from these agreements for confirmation and reporting purposes.

263 If there 

is a concern that master or other agreements may be used to change the economic 

terms of a transaction entered into on a SEF, then SEF-issued confirmations could be 

structured to supersede the terms of any agreement between the counterparties that 

contradict transaction-specific economic terms in the confirmation.

This proposal would also better accommodate the activities of third-party 

commercial service providers, such as swaps trade data vendors, trade term affirmation 

providers and trade confirmation vendors. As explained in Section I.C., the swaps 

market has had a history of third-party service providers, unlike the futures market,

where DCMs handle these functions. These differing approaches are the result of 

differences in product development. One approach is not necessarily better than the 

other, and the proposal would provide the appropriate flexibility to accommodate both 

regimes so that market participants can decide which approach they prefer.

Similarly, this proposal would also take a benign view of compression, risk 

reduction, risk recycling, dynamic hedging and other similar services that provide 

operational efficiencies and crucial systemic risk reduction. As explained in Section I.C., 

these services exist in the swaps market, as opposed to the futures market, given the 

non-standardized terms and conditions of swaps products that make it operationally 

challenging to offset risk. At its core, the Dodd-Frank Act was aimed at reducing 

systemic risk. These services support this objective by using technology and continual 

innovation to meet the market’s risk-management needs. These activities should not be 

limited by forcing service providers to comply with misguided registration requirements 

 

263 CFTC Letter No. 14-108 at 4.
69

or with certain limited execution methods.264 Any other approach would be contrary to 

the public good of systemic risk reduction.

5. Treat core principles as general principles

This White Paper proposes to treat the SEF core principles as true principles 

rather than rigid rule sets. First, the framework would revise many of the futures-based 

SEF core principles to align with swaps trading and market structure as explained in 

Section III.H. Second, the framework would draw upon the CFTC’s long and esteemed 

history as a principles-based regulator to implement a flexible core principles-based 

approach for SEFs that aligns with the way swaps actually trade. Prescriptive rules, 

such as those discussed in Section III.H., would be removed. To implement such an 

approach, the framework would allow SEFs to work with the Commission to achieve the 

objectives of the core principles within the context of the unique construct and practices 

of modern swaps markets. In the words of a former CFTC Chairman, “What matters in a 

principles-based approach is not a focus on means, but rather effectiveness in 

achieving the desired policy outcomes .... In such a rapidly evolving industry, having the 

option to rely upon a flexible, principles approach provides a useful tool in carrying out 

our mandate under the CEA to promote responsible innovation and fair competition.”265

This approach treats SEFs less like DCM SROs, and more like platforms that 

operate in a competitive, institutional client market. This approach also considers the 

episodic liquidity of swaps and the multi-polar structure of the swaps market. This 

flexible approach would promote swaps trading under CFTC regulation as Congress 

intended. 

 

264 See SEF Rule at 33,480-483. See also CFTC Letter No. 13-81, Time-Limited No-Action Relief from 

Required Transaction Execution Methods for Transactions that Result from Basis Risk Mitigation Services

(Dec. 23, 2013), available at http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-

81.pdf (allowing basis risk mitigation services under certain conditions).

265 Reuben Jeffery III, Chairman, Crafting Regulatory Policy to Meet Today’s Challenge, Address by 

Chairman Reuben Jeffery III, Futures Industry Association, 32nd Annual International Futures Industry 

Conference, Boca Raton, Florida (Mar. 15, 2007), available at

http://www.cftc.gov/PressRoom/SpeechesTestimony/opajeffery-16.
70

D. Professionalism

The fourth tenet of this White Paper’s alternative framework is to raise standards 

of professionalism in the swaps market by setting standards of conduct for swaps 

market personnel. More than any single event, the 2008 financial crisis confirmed the 

need for greater CCP clearing of swaps and reporting trades to centralized data 

repositories. The crisis serves less well, however, as a singular justification for the need 

to regulate swaps trading and execution. AIG did not fail because of flawed market 

practices or a lack of pre-trade price transparency.266 Although many market 

participants were under-collateralized for their swaps inventories, the markets 

themselves functioned satisfactorily through the crisis.267 And, while credit default 

protection against the failure of even the most “too big to fail” bank became very 

expensive in September 2008, it remained available in the swaps markets, which

continued to provide reasonable liquidity despite the broad market fear and panic.268

A stronger justification for regulation of swaps trading and execution is presented 

by the current scandal over pricing of LIBOR269 and certain foreign exchange 

benchmarks.270 In the LIBOR scandal, traders at some dealer banks and allied brokers 

at some interdealer brokerage firms falsely manipulated quotations of interest rates they 

 

266 AIG held approximately $28 billion of largely unhedged exposure to collateralized debt and mortgage 

obligations. AIG made a bad investment decision to expose itself to mortgages that went sour. The 

problem was that AIG made that bad decision, not that AIG paid too much for that bad decision due to 

pre-trade price opacity. Nor was it likely that any systemic breakdown would have occurred if AIG had 

been allowed to fail. See Wallison 412-416. 

267 Choi and Shachar at 10-17.

268 Id.

269 See, e.g., Liam Vaughan & Gavin Finch, Libor Lies Revealed in Rigging of $300 Trillion Benchmark, 

Bloomberg, Jan. 28, 2013, available at http://www.bloomberg.com/news/2013-01-28/libor-lies-revealed-inrigging-of-300-trillion-benchmark.html. LIBOR is an average interest rate calculated through submissions 

of interest rates by major banks in London. LIBOR underpins approximately $350 trillion in derivatives. 

LIBOR is used as a reference rate in many financial products, including mortgages, student loans, 

financial derivatives, and other instruments. LIBOR is a common reference rate for interest rate swaps 

and other derivative instruments traded in U.S. derivatives markets. Any manipulation of LIBOR may 

constitute an attempt to manipulate U.S. derivatives markets.

270 See, e.g., Chad Bray, A Primer on How Currency Manipulation Worked, DealBook, The New York 

Times, Nov. 12, 2014, available at http://dealbook.nytimes.com/2014/11/12/a-primer-on-how-currencymanipulation-worked/?_r=0; Press Release, CFTC Orders Five Banks to Pay over $1.4 Billion in 

Penalties for Attempted Manipulation of Foreign Exchange Benchmark Rates, CFTC (Nov. 12, 2014), 

available at http://www.cftc.gov/PressRoom/PressReleases/pr7056-14.
71

were paying or were expecting to pay, to borrow from other major banks.271 This was 

done primarily to inflate the bank’s creditworthiness and, in many cases, to profit from 

trading strategies based on movements in LIBOR driven by the inclusion of these false 

interest rate quotes.272

The LIBOR scandal and allegations of similar behavior in setting foreign 

exchange rates serve as an appropriate basis for regulatory action to enhance

professionalism in the swaps markets by ensuring standards of participant conduct. The 

fraudulent conduct of the traders and brokers implicated in the LIBOR scandal suggests 

a lack of consistent professionalism and ethical behavior at the trading level. United 

Kingdom authorities have reorganized their regulatory oversight to focus on failures in 

appropriate conduct in London financial markets.273 The new Financial Conduct 

Authority (FCA) regulates firms under its jurisdiction by proactively setting high conduct 

standards and exercising supervision and enforcement authority.274 The FCA has 

promised “a renewed focus on wholesale conduct” to ensure “trust in the integrity of 

markets” and prevent “market abuse.”275

This White Paper proposes like action by the CFTC to increase professionalism 

by setting standards for participant conduct in regulated swaps trading. It is noteworthy 

that U.S. individuals who wish to broker or sell equities or debt securities must register 

 

271 See, e.g., In the Matter of: Barclays PLC, Barclays Bank PLC and Barclays Capital Inc., Order 

Instituting Proceedings Pursuant to Sections 6(c) and 6(d) of the Commodity Exchange Act, as Amended, 

Making Findings and Imposing Remedial Sanctions, CFTC Docket No. 12-25, available at

http://www.cftc.gov/ucm/groups/public/@lrenforcementactions/documents/legalpleading/enfbarclaysorder

062712.pdf. 

272 Id.

273 Kim Durniat, Goodbye FSA, Hello PRA and FCA, Barnett Waddingham, Apr. 3, 2014, available at

http://www.barnett-waddingham.co.uk/comment-insight/blog/2013/04/03/goodbye-fsa-hello-pra-and-fca/.

274 Financial Conduct Authority (FCA), Regulating, http://www.fca.org.uk/about/what/regulating (last 

accessed Jan. 9, 2015); FCA, Championing, http://www.fca.org.uk/about/what/championing (last 

accessed Jan. 9, 2015). See also Sam Robinson, The Financial Conduct Authority - Its Role in the New 

UK Regulatory Framework, Bloomberg BNA (Aug. 5, 2014), available at http://www.bna.com/the-financialconduct-authority/.

275 Bank Governance Leadership Network, A New Era of Conduct Supervision: Consequences, 

Challenges, and Opportunities, ViewPoints, Tapestry Networks, Inc., at 2 (Mar. 21, 2014), available at 

http://www.ey.com/Publication/vwLUAssets/EY_-

_Navigating_the_new_era_of_conduct_supervision/$FILE/ey-A-new-era-of-conduct-supervision.pdf.
72

with the SEC and join an SRO.

276 They must also pass the Series 7 exam, which seeks 

to measure the knowledge, skills and abilities needed to perform the functions of a 

registered securities representative.277 Similarly, in U.S. futures markets persons acting 

as introducing brokers (IBs), futures commission merchants (FCMs), commodity trading 

advisors (CTAs), commodity pool operators (CPOs) and retail foreign exchange dealers 

(RFEDs), or an associated person (AP)278 of such futures professionals, must register 

with the CFTC and National Futures Association (NFA). Generally, all applicants for 

NFA membership must pass the Series 3 exam, which seeks to measure futures 

markets proficiency.

279 Yet, there is currently no examination that one must pass in the 

U.S. to broker swaps. There is currently no standardized measurement of one’s 

knowledge and qualification to act with discretion in the world’s largest and, arguably, 

most systemically important financial market – swaps.280

Rather than implementing highly prescriptive swaps trading rules that seek to 

limit intermediaries’ (e.g., interdealer brokers, FCMs, IBs) discretion through certain illsuited execution methods,

281 this alternative framework proposes to establish standards 

 

276 See SEC, Guide to Broker-Dealer Registration (Apr. 2008), 

http://www.sec.gov/divisions/marketreg/bdguide.htm#II (last accessed Jan. 9, 2015).

277 See Financial Industry Regulatory Authority (FINRA), General Securities Representative Qualification 

Examination (Series 7) Content Outline (2014), available at 

http://www.finra.org/web/groups/industry/@ip/@comp/@regis/documents/industry/p124292.pdf.

278 17 C.F.R. 1.3(aa).

279 See National Futures Association (NFA), Registration, Who Has to Register, 

http://www.nfa.futures.org/NFA-registration/index.HTML (last accessed Jan. 9, 2015); NFA, Proficiency 

Requirements, http://www.nfa.futures.org/NFA-registration/proficiency-requirements.HTML (last accessed 

Jan. 9, 2015); NFA, Examination Subject Areas National Commodity Futures Exam, available at 

http://www.nfa.futures.org/NFA-registration/study-outlines/SO-Series3.pdf. 

280 The Dodd-Frank Act requires registration of swap dealers (SDs) and major swap participants (MSPs), 

and directed the Commission to promulgate specific business conduct requirements and “such other 

standards and requirements as the Commission may determine are appropriate in the public interest, for 

the protection of investors, or otherwise in furtherance of the purposes of this Act.” CEA sections 4s(a), 

4s(h) and 4s(h)(3)(D); 7 U.S.C. 6s(a), 6s(h) and 6s(h)(3)(D). Pursuant to this direction the Commission 

issued business conduct standards for SDs and MSPs in Part 23 of its regulations. Those regulations do 

not require any sort of proficiency testing, however. Moreover, APs of SDs and MSPs are not required to 

register under the Dodd-Frank Act or the Commission’s regulations. See Registration of Swap Dealers 

and Major Swap Participants, 77 FR 2613 (Jan. 19, 2012).

281 Apparently, an objection of the CFTC staff for Dutch Auction swap execution is that brokers have 

discretion in finding price points at which to commence an auction. This same concern regarding 

discretion is present in the conditions that CFTC staff have outlined for basis risk mitigation services. See 

CFTC Letter No. 13-81, Time-Limited No-Action Relief from Required Transaction Execution Methods for 

Transactions that Result from Basis Risk Mitigation Services (Dec. 23, 2013), available at

http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-81.pdf (see condition 7).
73

that would enhance the knowledge, professionalism and ethics of personnel in the U.S. 

swaps markets that exercise discretion in facilitating swaps execution, as well as certain 

supporting compliance and operations personnel. 

As explained in Section I., the episodic liquidity and customized nature of swaps 

transactions often require intermediaries to arrange trades. Intermediaries’ discretion 

cannot be usurped by machines. Just as today’s equity IPO markets retain the presence 

of competent human professionals to exercise judgment and discretion in trade 

execution to avoid run-away electronic automated trading dynamics, so do global swaps 

markets require trained and skilled professionals to foster orderly markets with 

adequate trading liquidity to meet counterparty demand. This proposal seeks to 

implement an examination regime for interdealer brokers and other personnel to assure 

they are up to this important task.

282

 

This alternative proposal would focus on raising the knowledge, skills, 

professionalism, ethics and conduct of key personnel at interdealer brokers, FCMs, IBs, 

swap dealers and major swap participants, among other entities acting in the swaps 

market. The proposal would look to established precedents, such as the NFA’s Series 3 

exam and rules for IBs and other members,283 as well as the Financial Industry 

Regulatory Authority’s (FINRA) Series 7 exam and rules for broker-dealers,

284 as a 

guide and modify them to apply to swaps trading and markets (e.g., by creating a 

licensing exam and rules specifically for swaps).

285 Regulators would work with the 

 

282 Any examination must be designed to reflect the unique nature of the swaps market, such as the 

absence of retail participation.

283 See NFA, NFA Manual / Rules, Compliance Rules, available at

https://www.nfa.futures.org/nfamanual/NFAManualTOC.aspx?Section=4.

284 See FINRA, FINRA Rules, available at

http://finra.complinet.com/en/display/display.html?rbid=2403&element_id=607.

285 E.g., The Series 7 exam is for individuals who want to enter the securities industry to sell any type of 

security. The Series 14 exam is designed to assess the competency of compliance officials. The Series 

24 exam is designed to assess the competency of entry-level General Securities Principals. The Series 

99 exam is designed to assess the competency of certain operations personnel. See FINRA, FINRA 

Administered Qualifications Examinations, available at

http://www.finra.org/Industry/Compliance/Registration/QualificationsExams/Qualifications/p011096

(providing further details).
74

industry to understand the testing, qualifications, trading standards and sanctions that 

should apply to intermediaries and other personnel.

286

In the preamble to the final SEF rules, the CFTC already acknowledges that a 

SEF must establish and enforce rules for its employees, and that a SEF’s employees 

have certain obligations under the CFTC’s existing regulations.

287 This alternative 

framework would create a formal process and rules to implement and expand upon the 

CFTC’s preamble language. This approach would bring the swaps market more in line 

with the regulation of trading intermediaries in other capital markets, such as equities 

and futures. If done correctly, this approach would provide an exemplary model for the 

world to follow.

E. Transparency

The last tenet of this White Paper’s alternative framework focuses on promoting 

swaps trading and market liquidity as a prerequisite to increased transparency. It is 

certainly true that the right measure of pre- and post-trade transparency can benefit 

market liquidity. Yet, the history of markets has shown that absolute transparency can 

harm liquidity and trading.

288 The regulatory objective must be to strike the right balance 

and do so in a progressive manner.

289 Markets as complex as the swaps markets,

where adequate liquidity is already a challenge, require care in the imposition of 

transparency mandates to ensure that this liquidity is not harmed.

As explained in Section III.A., Congress understood the liquidity challenge in the 

swaps market and thus set two goals for SEFs, to be balanced against each other: (a) 

 

286 To the extent that a person must register as an FCM or IB, Commission and NFA standard of conducttype rules should be modified to apply to swaps trading.

287 SEF Rule at 33,506.

288 There are historical examples of markets that have sought to achieve full market transparency without 

adequate exemptions. In 1986, the London Stock Exchange (LSE) enacted post-trade reporting rules 

designed for total transparency with no exceptions for block sizes. What ensued was a sharp drop in 

trading liquidity as market makers withdrew from the market due to increased trading risk. ISDA/SIFMA 

Block Trade Study at 8. To bring back trading, the LSE thereafter engaged in a series of amendments to 

make its block trade rules more flexible and detailed over time. Id. at 8-9.

289 It is worth noting that the trade reporting regime that is often cited positively as a model for swaps 

trade reporting is the TRACE system for U.S. corporate bonds that was phased in gradually and 

iteratively over several years. 
75

promoting the trading of swaps on SEFs and (b) promoting pre-trade price transparency 

in the swaps market.290 To date, pre-trade price transparency has been greatly 

emphasized to the detriment of liquidity.

291 SEFs are required to offer an Order Book or 

an RFQ System to 3 market participants.292 Other SEF execution methods that do not fit 

within these narrow rules have been or are in jeopardy of being rejected.293 Yet, over 

one year into SEF trading, the Order Book method of execution – the method of 

execution that is promoted as providing the greatest degree of pre-trade price 

transparency – has failed to gain traction.294 Neither SEF goal is being achieved by 

requiring an Order Book that no one is using. The CFTC’s over-engineered and 

restrictive swaps trading rules have wholly failed to achieve a key objective of 

meaningful price transparency. It is time to try something different.

A better way to promote price transparency is through a balanced focus on 

promoting swaps trading and market liquidity as Congress intended. Instead of taking a 

prescriptive approach to swaps execution that drives away participants, this framework 

would allow the market to innovate and provide execution through “any means of 

interstate commerce.” That way, participants could choose the execution method that 

meets their needs based upon a swap’s liquidity characteristics, which in turn, promotes 

trading on SEFs and liquidity. As explained in Section I.D., trading platforms pre-DoddFrank Act calibrated their execution methods to the particular liquidity characteristics of 

the instruments traded and sought to foster the greatest degree of trading liquidity.

These execution methodologies, such as hybrid methods, work-up and Dutch Auctions 

seek to concentrate liquidity by bringing participants together and enabling them to 

execute orders based on transparent prices. In other words, promoting swaps trading 

and market liquidity will lead to enhanced price transparency; stifling trading liquidity will 

degrade it.

 

290 CEA section 5h(e); 7 U.S.C. 5h(e).

291 See, e.g., Section III.A.

292 Id.

293 Id. and Section IV.E.

294 See Madigan, Anonymity (“The volume so far has been mostly RFQ ... Clients can use the Clobs ... 

somewhere north of 95% of our client flows are going through our RFQ system,” says Lee Olesky, chief 

executive of Tradeweb in New York.). See also Lynn Strongin Dodds, SEFs: A Slow Start So Far, 

DerivSource, Nov. 17, 2014, available at http://derivsource.com/articles/sefs-slow-start-so-far.
76

The pro-reform proposals set forth in this White Paper are a package. They stand 

together as a comprehensive whole. It would serve little purpose to reassert the broad 

reach of SEF registration without easing the rigid inflexibility of the CFTC’s swap 

transaction rules. It would make little sense to seek to improve standards of participant 

conduct without removing the unwarranted restraints on their professional discretion. It 

would be pointless to seek greater market transparency while continuing to thwart 

market liquidity. These proposals work together to achieve the aims of Title VII of the 

Dodd-Frank Act to improve the safety and soundness of the U.S. swaps market. They 

should not be adopted on a piecemeal basis.
77

VI. CONCLUSION: Return to Congressional Intent

In September 2014, the largest U.S.-listed IPO of all time occurred on the NYSE

when Alibaba, the Chinese e-commerce giant, raised over $25 billion.

295 In fact, the 

third quarter of 2014 was great for U.S. IPOs with over $40 billion raised as compared 

with $8.6 billion raised in Europe and $14.3 billion in Asia.

296 During the quarter, U.S. 

markets overall accounted for 52 percent of cross-border IPO activity.

297 The U.S. is 

ranked as the top country for new equity fundraisings for the fourth straight year.298

Why did Alibaba choose New York to offer its shares rather than major

exchanges in Asia and Europe? Certainly, the depth of U.S. equity liquidity necessary 

for a blockbuster offering drew in Alibaba. Yet, companies big and small from around 

the world flock to the U.S. IPO market. Is it only trading liquidity, or does it also have to 

do with the balance of favorable market characteristics and a proven and well-respected

U.S. regulatory framework?

According to the head of equity capital markets at Nomura, “[f]lexibility around 

governance provisions and the reputation for US capital markets as a whole” make the 

U.S. a premier place to list.299 Flexibility in corporate governance provisions was 

important to Alibaba.300 U.S. listing rules permitted Alibaba’s unique board structure, 

which the Hong Kong Stock Exchange prohibited.

301 Yet, no one can assert that the 

flexibility afforded Alibaba makes the U.S. a lax and lenient jurisdiction in which to list 

shares. The SEC’s public company disclosure regime and registration process is likely 

the world’s most rigorous. However, it is globally recognized that the U.S. IPO market 

 

295 Includes the overallotment exercise.

296 Leslie Picker, Ruth David and Fox Hu, IPO Markets Don’t Need Alibaba for Best Quarter Since 2010, 

Bloomberg, Sep. 30, 2014, available at http://www.bloomberg.com/news/2014-09-30/ipo-markets-don-tneed-alibaba-for-best-third-quarter-since-2010.html.

297 Id.

298 Jackie Kelley, US Leads The World in 2014 IPOs, Forbes, Dec. 23, 2014, available at

http://www.forbes.com/sites/ey/2014/12/23/us-leads-the-world-in-2014-ipos/; Eric Platt and Josh Noble, 

New York Widens Global Lead for IPOs, Financial Times, Sep. 29, 2014 (Platt & Noble), available at

http://www.ft.com/intl/cms/s/0/821ee226-45c1-11e4-9b71-

00144feabdc0.html?siteedition=intl#axzz3IsqLvLYD.

299 Platt & Noble.

300 Id.

301 Id.
78

has a highly optimal balance of robust regulation, fulsome corporate disclosure, human 

discretion and flexible corporate compliance as compared with its peer marketplaces. 

As a result, the world and its capital seek out the U.S. IPO market, bringing along jobs 

and economic growth.

As compared with the recently resurgent global interest in the U.S. IPO market, 

however, the world’s response to the CFTC’s newly implemented swaps trading 

regulations has been a stark “No, thank you.” As discussed in Section IV.A., the world is 

voting with its trading book to transact in other markets whenever possible. Non-U.S. 

person market participants are curtailing transactions with U.S. counterparties to avoid 

the CFTC’s ill-designed and highly prescriptive U.S. swaps trading rules.

In his best-selling book, The Great Degeneration: How Institutions Decay and 

Economies Die, Niall Ferguson describes contemporary financial market regulation that 

well-characterizes the CFTC’s swaps trading rules: 

Today ...the balance of opinion favours complexity over simplicity; rules 

over discretion; codes of compliance over individual and corporate 

responsibility. I believe this approach is based on a flawed understanding 

of how financial markets work. It puts me in mind of the great Viennese 

satirist Karl Kraus’ famous quip about psychoanalysis; that it was the 

disease of which it pretended to be the cure. I believe excessively 

complex regulation is the disease of which it pretends to be the cure.

302

 

This paper has attempted to explain why the world has shunned the CFTC’s

swaps trading regime. The fundamental problem is that the CFTC’s regime is overengineered and mismatched to the distinct liquidity, trading and market structure 

characteristics of the global swaps markets. In crafting a swaps trading regulatory 

framework disproportionately modeled after the U.S. futures market, and imposing it 

through complicated and highly prescriptive rules in contravention of congressional 

intent, the CFTC is driving trading liquidity away from U.S. markets. The current regime 

is causing global swaps trading to fragment into U.S. person markets and non-U.S. 

person markets, exacerbating the inherent challenge of swaps trading – adequate 

 

302 Niall Ferguson, The Great Degeneration: How Institutions Decay and Economies Die 58-59 (Penguin 

Press 2013).
79

liquidity. The result will be higher costs and burdens for U.S. risk hedging and slower 

American economic growth and job creation. Undoubtedly, these added costs will be 

borne harder on Main Street than on Wall Street.

This paper proposes an alternative, pro-reform agenda. It advocates for a 

comprehensive, cohesive and flexible alternative swaps trading framework that aligns 

with swaps market dynamics and is true to congressional intent. The framework is built 

upon five broad tenets: comprehensiveness, cohesiveness, flexibility, professionalism

and transparency. This framework should yield enormous benefits. It would promote 

healthy global markets by regulating swaps trading in a manner well matched to the 

underlying market dynamics. It may undo much of the global fragmentation in swaps 

trading and the resulting increased systemic risk by drawing the global trading 

community to the CFTC’s swaps regime, rather than rejecting it. The framework would

relieve much of the developing domestic market fragmentation and promote trading

liquidity – an inherent challenge in the swaps market. It would help reduce the 

enormous legal and compliance costs of registering and operating a CFTC-registered

SEF. This framework would encourage technological innovation to better serve market 

participants and preserve the jobs of U.S.-based support personnel. It would free up 

CFTC resources and save taxpayer money at a time of federal budget deficits. It would 

provide the CFTC with another opportunity to coordinate its rules with other jurisdictions 

that are implementing their own swaps trading rules. It may even reverse the increasing 

fragility of U.S. swaps markets by allowing their more organic development and growth

for the greater benefit of U.S. economic health and prosperity. Most critically, it would 

fully accord with Title VII of the Dodd-Frank Act.

In releasing this White Paper, I am conscious that it invariably will be drawn into 

the preconceived storyline that seems to frame all contemporary discussions of the 

2008 financial crisis and the Dodd-Frank Act. Depending on one’s political persuasion, 

that set narrative generally features, on one side, either valiant market reformers striving 

to prevent another financial crisis or faceless bureaucrats stifling legitimate business 

activity, while on the other side are feckless toadies for Wall Street working to “roll back” 
80

regulatory reform or brave souls speaking “truth to power” to the same faceless 

bureaucrats. 

This false narrative is especially challenging for me as an unwavering supporter 

of the core swaps reforms of Title VII of the Dodd-Frank Act. Because I come at these 

reforms from the real world of commerce, I am not satisfied with loudly trumpeted 

agency rules that work only on paper as academic exercises. Effective regulation must 

perform efficiently in the reality of everyday global markets or it will produce useless, 

counterproductive or even harmful consequences. 

Fortunately, some of the Dodd-Frank rules put in place by the CFTC have 

worked well out of the box. Others need to be fine-tuned. Some need to be replaced 

altogether. The false narrative that all Dodd-Frank rules were perfect at conception and 

are now sacrosanct is just that – false.303 The perpetuation of this narrative makes it 

harder to achieve the purposes that the law seeks to advance: financial market reform 

and systemic risk reduction. My hope is that coverage of this White Paper and its proreform proposals, perhaps fueled by increasing market awareness of the identified 

regulatory flaws, will reflect less partisan reporting. That will lower the emotional 

thermostat as the CFTC begins the necessary process of rule repair and replacement. 

I urge my fellow Commissioners and CFTC staff to revisit our agency’s 

fundamentally flawed swaps trading rules and replace them with a more coherent 

framework that follows congressional intent and aligns with the natural commercial 

workings of the swaps market. Such a framework will achieve Congress’s express goals 

of promoting swaps trading and market transparency in a well-conceived regulatory 

framework without exacerbating systemic risk and market fragility.

Derivatives are vital to the U.S. economy. Used properly, they enable American 

companies and the banks from which they borrow to manage changing commodity and 

energy prices, fluctuating currency and interest rates and credit default exposure. They 

 

303 The recent TRIA legislation that amended the Dodd-Frank Act to exempt non-financial firms, such as 

farmers and manufacturers, from having to post collateral in derivatives transactions was passed with 

overwhelmingly bipartisan political support. See generally, Zachary Warmbrodt, Democrats’ Quandary: 

Which Dodd-Frank Changes Weaken the Law?, POLITICOPro, Jan. 8, 2015.
81

allow state and local governments to manage their obligations and pension funds to 

support healthy retirements. They allow agricultural producers to hedge their prices and 

costs of production so that Americans enjoy plenty of food on grocery shelves. They 

allow Americans to rely on enough electricity to run their homes and gasoline to fuel 

their cars. The health and efficiency of the derivatives markets have a direct impact on 

the price and availability of the food we eat, the warmth of our homes and the energy 

needed to power our factories. 

The stated purpose of the Dodd-Frank Act was to reform “Wall Street.” That task 

must be completed in a way that does not burden “Main Street” by adding new 

compliance costs onto our farmers, power utilities and manufacturers. It is the job of 

market regulators like the CFTC to promote U.S. markets with smart regulations rather 

than impede them with unwarranted costs and over-engineered complexity. U.S. 

financial markets have long been the most fair, transparent, efficient and innovative in 

the world. We must keep them so. Our goal in this new era must be the health of 

markets and the regeneration of the spirit of American enterprise – a spirit that rekindles

some of our lost prosperity and puts everyday people back to work.

A smarter and more flexible swaps regulatory framework would enable the U.S. 

to take the global lead in smart regulation of swaps trading, just as it does with IPOs. It 

would allow American businesses to more efficiently hedge commercial risks, promoting 

economic growth. Such a framework would also stimulate the American jobs market. A 

smarter swaps regulatory regime would return to the express letter and language of 

Title VII of the Dodd-Frank Act. It would eschew the artificial slicing and dicing of U.S. 

trading liquidity and unwarranted restrictions on means of execution that are 

unsupported by the law. A smarter swaps regulatory framework should be built upon the 

five tenets discussed herein: comprehensiveness, cohesiveness, flexibility, 

professionalism and transparency. For decades the CFTC has been a competent and 

effective regulator of U.S. exchange-traded derivatives. The opportunity is at hand to 

continue that excellence in regulating swaps markets. It is time to seize that opportunity.
About the Author 

J. Christopher Giancarlo was nominated by President Obama on August 1, 2013, and 

was sworn in as a Commissioner of the U.S. Commodity Futures Trading Commission 

on June 16, 2014 for a term expiring in April 2019.

Commissioner Giancarlo practiced corporate and securities law for 16 years in New 

York and London. Thereafter, he served for over a dozen years as a senior executive of 

a publicly-traded operator and provider of swaps trading platforms and trading software 

and technology used worldwide. Commissioner Giancarlo helped that firm launch and 

develop its operations in 16 global financial centers. 

Commissioner Giancarlo was also a founding Co-Editor-in-Chief of eSecurities, Trading 

and Regulation on the Internet (Leader Publications). In addition, Commissioner

Giancarlo has testified three times before Congress regarding the implementation of the 

Dodd-Frank Act, and has written and spoken extensively on public policy, legal and 

other matters involving technology and the financial markets.

Commissioner Giancarlo believes that vibrant, open and competitive markets are an 

essential element to a strong U.S. economy. He has been a consistent advocate for 

practical and effective implementation of the following three pillars of Title VII of the 

Dodd-Frank Act: enhanced swaps transparency, regulated swaps execution and central 

counterparty clearing. His support for these reforms is based simply on practical 

experience. Commissioner Giancarlo believes that balanced and well-drafted regulatory 

oversight should go hand-in-hand with open and competitive markets, economic growth,

and American job creation.