Subject: Financial regulation: The money moves on - FT
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Date: Wed, 15 Sep 2010 10:43:27 -0400

Financial regulation: The money moves on
By Patrick Jenkins and Brooke Masters
Published: September 14 2010 20:11 | Last updated: September 14 2010  
20:11

It took two years to get there, but when international regulators late  
on Sunday announced the final details of their mammoth overhaul of  
bank capital and liquidity standards – the so-called Basel III package  
– there were hopes they were laying to rest the ghost of Lehman  
Brothers.

Just ahead of Wednesday’s second anniversary of the ignominious Lehman  
collapse, the Basel Committee on Banking Supervision unveiled a finely- 
tuned package of reforms – more than tripling capital requirements –  
to the accompaniment of much back-slapping.

“The combination of a much stronger definition of capital, higher  
minimum requirements and the introduction of new capital buffers will  
ensure that banks are better able to withstand periods of economic and  
financial stress, therefore supporting economic growth,” declared Nout  
Wellink, the veteran Dutch central bank chief who chairs the  
committee. The changes “will create a much more resilient banking  
system in the future”, echoed Lord Turner, head of the UK’s Financial  
Services Authority. The deal was the key to “a more stable banking  
system that is less prone to excessive risk-taking”, chorused US  
regulators.

There have been critics. Initial regulatory proposals have been  
watered down after industry consultation. Parallel reform proposals  
from politicians have also been weakened on their way into law. The  
powerhouses of Wall Street and the City of London lobbied hard to  
retain their historical sources of high-risk profit in the face of  
those determined to “de-risk” the system.

But there is real change all the same. The Basel III regime, to be  
phased in by 2019, comes on top of legal reforms in various parts of  
the world, notably the US, where the so-called Volcker package  
implemented via the Dodd-Frank legislation aims to curtail big banks’  
risks. Most fundamentally, the practice of pure proprietary trading –  
whereby banks bet their own money dealing in anything from gold to  
Greek bonds – is being outlawed in the US within two years.

Lehman’s Legacy

FT series of analysis and debate on the repercussions for bankers,  
regulators and governments of the September 2008 fall of Lehman Brothers
In addition, the changes make all forms of trading, particularly  
“prop” trading, more expensive by forcing banks to hold more capital  
in reserve to support the activity.

Yet a nagging worry is expressed by some regulators, bankers and other  
experts within the financial services industry that these reforms,  
like others in the past, risk backfiring. What if those taboo, high- 
risk businesses cannot be stopped in their tracks as regulators and  
politicians would like? What if, instead, they just move to a new home  
– within the sprawling mass of hedge funds, private equity firms,  
trading houses, even energy companies, all of which are largely  
unregulated and free of the capital requirements imposed on the banks?

Few are prepared to talk openly about the issue for fear of seeming  
disloyal to the campaign for concerted action against the banks but in  
interviews conducted over several months the Financial Times has  
pieced together a picture of mounting unease that the focused  
crackdown on banking could just push risk out of the reach of the  
toughest regulation and into fast-growing “shadow” areas.

“I think this is a real risk,” says one influential European bank  
executive on condition of anonymity. “I don’t buy the argument that if  
it’s a hedge fund it doesn’t matter because it’s a bunch of rich  
people’s money and so the government isn’t going to have to bail it  
out if it fails.” With hedge funds growing far bigger, and being  
increasingly backed by big pension funds and insurance companies, it  
can be systemically important whether these funds fail or not. “Who  
says a hedge fund can’t be a systemic failure? Then you’ve just  
shifted the problem from the banks to somewhere else where you can’t  
really get at it.”

There is a pretty powerful precedent for the theory that a “shadow”  
banking system can cause or compound a crisis. The fall of Lehman,  
Bear Stearns and other banks around the world in 2008 was made  
possible because the financial risk that stemmed from the US subprime  
mortgage lending was being recycled around the market via shadow  
banking structures. These entities, from money market funds to  
investment products such as collateralised debt obligations, hid the  
real risk because they were not properly regulated.

It is impossible to know how another shadow banking market will  
evolve, but even top regulators suggest lightly supervised non-bank  
financial services companies could be the next accident waiting to  
happen.

Senior figures from Jean-Claude Trichet, president of the European  
Central Bank, down have raised the issue with peers in recent months.  
“The important thing right now is that we have acted to strengthen  
bank regulation,” says one central banker. “The biggest danger would  
have been doing nothing. But, going forward, we as regulators must  
watch closely how the shadow banking market evolves.”

More FT video

The biggest concern probably surrounds the growth of prop-style  
trading operations within hedge funds and private equity companies.  
“Private equity and hedge funds could be winners, taking on more  
risk,” says Kian Abouhossein, banks analyst at JPMorgan. “Through  
derivatives, for example, you can imagine them taking on very big  
positions. This is all about risk fragmentation, which could be a good  
thing. But if you then get risk concentration within hedge funds,  
that’s the real danger.”

Simon Gleeson, an expert on financial regulation at Clifford Chance,  
the law firm, is clearer still. “There is a real danger that risk  
moves out of the regulated system – out of the bit of the industry  
that regulators can see. Non-banks – funds and insurers, for example –  
will have a significant cost advantage under the new rules on bank  
capital. It’s a third more expensive in regulatory capital terms to do  
business with a bank than with a non-bank. This is a powerful  
incentive to use non-banks as counterparties.”

Recent months have already brought spin-outs from banks including  
Goldman Sachs, BNP Paribas and Deutsche Bank as prop traders have set  
up their own hedge funds. Now, elements within Goldman’s prop team are  
reportedly weighing a wholesale shift to the likes of Kohlberg Kravis  
Roberts, the private equity firm, or BlackRock, the fund manager.

Nervousness also exists about the volumes of trading being done within  
energy companies and other commodity trading houses. Oil companies and  
trading houses have been steadily extending their reach beyond their  
traditional focus on physical commodities into exotic over-the-counter  
derivatives to serve customers, a trend that some expect to accelerate  
now that their capital advantage over banks is widening sharply.

Oil companies such as Total and BP and traders including Cargill and  
Vitol are in effect shadow banks for the commodities industry,  
replicating the services that the likes of Goldman Sachs and Morgan  
Stanley monopolised for years. That might mean selling an oil swap to  
an airline or an OTC corn option to a farming group.

Trading and oil company executives see their move towards derivatives  
as a natural extension of their business, saying the OTC deals help  
their clients to hedge price risk. But some analysts say the  
activities, which are largely unregulated, bring big risks to the  
system. Without the capital requirements imposed on banks, a default  
becomes more dangerous, they say. The shift also awakens unwelcome  
memories of Enron, the failed US energy company whose traders severely  
disrupted the California energy markets in 2000-01 as well as costing  
investors billions of dollars.

Recently, some trading companies have withdrawn from providing  
commodities derivatives services to customers after losing large  
amounts. Japan’s Mitsubishi Corp is to close its oil derivatives  
business by March 2012. The unit made heavy losses on jet fuel hedges  
related to the collapse of JAL, the Japanese airline.

Financial regulators typically have oversight of traders and oil  
companies in this area. But in Europe, in particular, they admit  
privately that they pay very little attention to them.

What worries some of the world’s more go-ahead regulators is that  
failing to respond to the potentially counterproductive elements of  
Basel III would repeat mistakes with predecessor regimes – Basel I and  
Basel II – which critics say laid the foundations for the latest  
financial crisis.

“We must be honest about past errors,” says one senior central banker.  
“We must admit that it was a mistake to relax trading capital  
requirements in 1996. Equally, it was a mistake in the past not to  
think about the quality of capital when setting quantity targets.” It  
was an insufficient supply of top-notch equity within the banks, and a  
surfeit of lower-quality debt capital that was unable to absorb losses  
effectively, that allowed the financial crisis to wreak such havoc on  
the whole system.

Not everyone thinks the world should worry. Paul Volcker and George  
Soros are among luminaries to have played down the risks to financial  
stability posed by hedge funds and other non-banks. In any case,  
limited moves are afoot to improve supervision of them. In the US, the  
Dodd-Frank legislation makes several efforts to tackle the risks posed  
by the shadow banking sector. Hedge funds will be required to register  
and provide information to the Securities and Exchange Commission,  
giving US regulators far more oversight of such firms than before.

The new Financial Stability Oversight Council also has the power to  
demand information from non-banks with more than $50bn in assets and  
it can place such firms under the supervision of the Federal Reserve  
if it believes they pose a threat to US financial stability.

Nicolas Veron, who follows regulation at the Brussels-based Bruegel  
Institute, says the US has so far done the best job. “Their vision was  
to regulate all financial firms, whether they are banks or not,” he  
says. “In Europe, we are wedded to pigeonholing institutions. The EU  
has not realised how much risk transfer occurs across different  
categories of finance that can escape sectoral regulation.”

Some experts say they are particularly concerned that the migration of  
activities into the shadow sector might make the economy more  
resistant to central bankers’ efforts to control inflation through  
monetary policy. Easily available wholesale funding from non-bank  
sources, for example, may make it easier for a bank to ignore interest  
rate signals. The Basel committee is trying to tackle this issue  
through a new liquidity policy called the net stable funding ratio,  
but it has agreed to delay the new rules until at least 2018 because  
of sharp opposition.

“The debate we must have now is how to delineate clearly the frontiers  
of regulation,” says Michael Mainelli, an academic and regulatory  
consultant. “If too many problems arise in shadow banking under the  
narrow approach, there will be cries for regulatory extension. Too  
broad an approach leads to sprawling regulation, of variable quality  
and effectiveness. As problems arise, the regulatory system will lurch  
from crisis to crisis and wind up extending to cover everything and  
nothing.”

Whatever the truth about the risks building up in non-banks, one thing  
is certain: a more joined-up approach to regulatory thinking can only  
be a good thing, as Paul Tucker, deputy governor of the Bank of  
England responsible for financial stability, urged in a speech this  
year. “Banking supervisors cannot sleep safely solely on the basis of  
their own work,” he said. “The financial stability authorities need to  
attend to the dynamics of the overall system.”

He was talking predominantly about the causes of the last financial  
crisis. But his message applies just as powerfully to the next one.

In supervision, as in the mosh pit, ‘any co-ordination is coincidental’

Since the near collapse of the financial system in 2008, regulators  
and politicians around the globe have been scrambling to tighten  
supervision and enact a raft of rules that they hope will prevent  
another crisis, writes Brooke Masters.

The leaders of the Group of 20 industrialised and emerging nations  
promised in 2009 globally co-ordinated efforts to make banks safer by  
damping down risk-taking, controlling pay and raising regulatory  
standards. But the reality has been somewhat different.

While the Basel Committee on Banking Supervision managed to reach a  
global deal on capital and liquidity standards on Sunday, that has not  
stopped individual countries and the European Union from going their  
own ways on everything from remuneration and short selling to the  
responsibilities of custodian banks that are paid to safeguard funds’  
assets.

“The warm words of comfort from the G20 on global responses to global  
problems are mutating into a nightmarish tangle of fragmented regional  
and national proposals,” says Bob Penn, a London-based lawyer at Allen  
& Overy. “All are aimed at the same broad goals but they are complex,  
vastly different in detail, will progress at different speeds and will  
have numerous unintended consequences – particularly for international  
financial institutions.”

The US recently enacted a sweeping set of regulatory reforms known as  
the Dodd-Frank Act, which includes everything from limits on  
proprietary trading (taking bets with a bank’s own money rather than  
for clients) to new consumer protection rules and the creation of a  
body to monitor and control systemic risk.

The UK has come out with its own liquidity and pay rules, and recently  
put out a discussion paper suggesting that Basel and regulators  
worldwide should rethink their approach to capital requirements for  
trading books. The Swiss enacted tougher capital rules well ahead of  
the Basel announcement, and the Germans in turn enacted a broader ban  
on short-selling of financial stocks before anyone else in the EU.

The EU has approved its own pay rules, passed regulations for credit  
ratings agencies and is working on rules likely to change the way  
banks create and sell derivatives. Brussels has also created a clutch  
of pan-European regulators, including one specifically focused on  
banking. In addition, it is drafting the first EU-wide directive for  
hedge funds, which includes tough rules for custodian banks.

The situation is akin to the mosh pit at a rock concert, warns  
regulatory consultant Barbara Matthews. “Everyone shares the same goal  
amid a frenzy, but any co-ordination that occurs is coincidental, and  
along the way people can get hurt,” she says. “Folks in a mosh pit  
have fun until they get hurt. Regulators have fun using their  
muscle ... until something comes back to bite them.”

Additional reporting by Javier Blas