Around the world, fireworks traditionally mark special holidays and events, and people in the US will see their fair share this weekend as the nation celebrates the 4th of July.

The New York Times must also be in a celebratory mood as it has launched its fireworks a day early. Have a look at today’s editorial. It breathlessly states:

“The aim of the Dodd-Frank law is to prevent gambling in derivatives, financial contracts that are supposed to manage risk, but that have long been misused for catastrophically excessive speculation.”


We have heard many explanations about what Dodd-Frank is supposed to be about, but none as breathless as this one. Have a look at this document from the Senate Banking Committee: Nothing about preventing gambling.

With regard to “long been misused for catastrophically excessive speculation,” we would ask a simple question: what does this mean? If it refers to derivatives-related losses that brought a firm down, which ones does the editorial have in mind? Barings? Orange County? MF Global? They were all about exchange-traded products or securities. Lehman? Countrywide? Washington Mutual? Fannie and Freddie? These were real-estate related, in the form of either mortgages or mortgage securities. None of these situations stemmed from OTC derivatives.

And then there’s AIG, which certainly did involve OTC derivatives. But whatever AIG was, it wasn’t speculation that led to its bailout. Inadequate risk management and margining practices were at the core of the problem.

Now we know the editorial represents the conventional wisdom in many circles. We are clearly swimming upstream. The actual facts are, in some sense, nothing more than an annoyance to this story line. Positing them creates a risk of being tarred and feathered as anti-regulation or anti-Dodd-Frank. But this too would be inaccurate.

One more important item we should point out: the statement quoted above is not the main point of the paper’s editorial, which is about derivatives trading outside the US by certain foreign affiliates of US banks. But the thinking behind it shapes and informs the views expressed on the main issue, which is why it invites (nay, demands) comment. And we are happy to oblige.

As for the main issue: it is clear today that a growing number of non-US companies and firms are looking to ensure that they operate within the regulatory frameworks of their home jurisdictions (e.g., firms trading in the European Union regulated by EU rules and rule-makers).

They do not want to trigger US regulatory requirements because it would add another layer to their compliance efforts without any countervailing benefit. Their view is that this additional layer is unnecessary because the regulatory frameworks in each major jurisdiction are basically equivalent (albeit there are differences in timing). It’s a view shared by US firms who operate under US rules and who do not want to face duplicative rules elsewhere.

Policymakers around the world are currently trying to hash out how to make a global system of equivalency work for a product set — OTC derivatives — that is truly global.

None of this is mentioned in the editorial.

Happy 4th of July!