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WASHINGTON -- The Commodity Futures Trading Commission is trying to answer a
seemingly simple question: What is a U.S. futures exchange and what is a foreign
one? The difference was obvious in the days when these financial contracts were
traded exclusively by human beings standing in trading pits in New York, Chicago
or London.
Not anymore. The rise of all-electronic exchanges that do business all over
the world without trading floors has made differentiating between a domestic and
foreign futures operation much more complex. Futures contracts convey the
obligation to buy or sell an underlying asset, like a bond or commodity, at a
set price in the future.
Last week the CFTC, the U.S. futures industry's main regulator, held a
hearing, inviting a dozen exchange chiefs, foreign regulators and financial
scholars to sit around a table to help figure it out. "Determining where an
exchange is located is difficult, if not impossible," said CFTC Commissioner
Walter Lukken in his opening remarks.
After several hours of talking, the task still looked impossibly difficult:
The CFTC called the hearing to air competing views, and it got as many as time
would allow.
Regulatory turf figures prominently in the debate: Financial markets are
increasingly global, while regulatory regimes are almost always national. The
planned merger of two stock-market operators, NYSE Group Inc. and Paris-based
Euronext NV is adding urgency to the larger question of how to regulate global
markets. Euronext also has a significant derivatives business in London.
The CFTC has a track record of regulating with a light touch and
collaborating with foreign counterparts. These days, it is under pressure to be
more hands-on, to define more clearly its jurisdiction and to assert its powers,
especially in the area of energy trading.
Some of that pressure is coming from a handful of members of Congress who are
pushing legislation that would expand CFTC oversight -- the ultimate goal being
to curb speculation in energy trading to bring down oil and gasoline prices. The
Senate bill would expand CFTC oversight into parts of the unregulated
energy-trading markets. In an interview, Sen. Carl Levin (D., Mich.), a
co-sponsor, said the CFTC had "abdicated" its responsibility to oversee trading
in crude-oil and other energy contracts.
Industry heavyweight New York Mercantile Exchange also is pushing the CFTC to
harmonize the rules that govern it and one rival in particular. Nymex complains
that a futures-trading unit of a rival, IntercontinentalExchange Inc., gets to
operate under the somewhat looser regulations of the United Kingdom's Financial
Services Authority.
The unit, ICE Futures, has captured about 30% of the trading in West Texas
Intermediate crude-oil futures since it launched a contract to rival that of
Nymex in February. ICE says it is taking share away from Nymex because that
exchange still does most of its business via "open outcry" trading pits.
Since the late 1990s, the CFTC has dealt with foreign forays into the U.S.
market on a case-by-case basis. More than a dozen times the regulator has used a
"no-action" letter to grant foreign operators permission to place their trading
terminals in the U.S. while keeping their home-country regulator. Essentially,
the CFTC outsources oversight to a foreign regulator.
The International Petroleum Exchange received such a no-action letter from
the CFTC in 1999. That London-based exchange was later acquired by Atlanta-based
ICE and became ICE Futures -- which explains how an all-electronic exchange
whose main computer servers are based in Georgia falls under the oversight of
Britain's FSA.
The back-and-forth on other points raised at the hearing showed that the
global interests involved in the future of the futures industry only agree on
one thing: They want flexibility from the CFTC.
When CFTC Chairman Reuben Jeffery suggested that measuring an exchange's
"U.S. trading volume" -- that is, whether it does a critical mass of its
business in the U.S. -- might be the best way to determine whether it should
fall under the CFTC, other regulators, academics and industry executives
unanimously shot down the idea. Volume can go up and down, said one European
regulator. Multiple countries could claim they have significant volume, another
panelist chimed in.
Even Nymex Chief Executive James Newsome -- a former CFTC chairman -- said he
didn't want the CFTC to impose its rules on rival ICE. Instead, he suggested the
agency "level the playing field" by letting Nymex operate under the same rules
as ICE Futures. British regulations, unlike those in the U.S., don't impose
limits on the number of contracts that a trader can control, and don't require
the stringent record-keeping and reporting on large trades that the CFTC imposes
on Nymex.
To underscore the limits of U.S. regulators' reach, Mr. Newsome suggested
that Nymex might try to move its own fledgling electronic-trading operations to
fall under U.K. regulations.
But Sir Robert Reid, chairman of ICE Futures, wasn't buying the idea that ICE
was winning business because of different rules. At the hearing, he quipped that
when a competitor loses, it's only natural to blame the
referee.