OPEC EU Regulatory Update ‐ A View from the Venues IEA‐IEF‐OPEC Workshop; 15 March 2016 Regulatory Developments Affecting the Energy Markets and Implications for Oil Markets Context: How did we get here, lessons learned so far Scope of Market Regulation • Participants and Instruments Covered • Hedges versus Trees Measurement of Positions verses Risk • Position Limits • Commitment of Traders Reporting • Comparisons to developments in Dodd‐Frank Traded Oil Markets • Consequences and Implications Alexander McDonald, Chief Executive Officer Wholesale Markets Brokers’ Association & London Energy Brokers’ Association 1 Context: How did we get here, Lessons learned so far • Thanks to: o BP o CME o ICE Futures Europe o Total • Many further thoughts at Oxford Institute for Energy Studies Forum ‐ Energy Trading at the Crossroads; December 2015 o https://www.oxfordenergy.org/wpcms/wp‐content/uploads/2016/02/OEF‐103.pdf o MiFID II: the impact on commodity markets from a venue perspective o Ben Pott and Graham Francis of ICAP o Regulatory change: impact on major energy companies and challenges they face o Jonathan Hill of BP 2 Context: How did we get here, Lessons learned so far Why? ‐ What is the Point of Regulation? • Financial Regulation has its origins in Capital and Liquidity • Leverage and Supervision (Authorisation) • Read across to commodities – collateral assets • “Massive Passives” ‐ Gary Gensler, Bart Chiltern, Michael Barnier • Position Limits & Position Reporting • Systemic Risk • Physical Commodities <‐> Forward Contracts/ Derivatives • Price – Trade Information (Delivery Limits and Squeezes) • Volumes – Position Reporting • The Consumer • Wholesale versus Retail • Regional versus Global • Conduct • Market Rules / Market Abuse • Transaction Reports • Tax and Protect • Tariffs / GATT / TTIP / FTT 3 Context: How did we get here, Lessons learned so far Waypoints and Lessons • The Problem of Defining the Problem: • Scope, Price, Quantity, Fairness, Access, Transparency, Other… • Role of Nodes or Bridges • Vertical Siloed Exchanges o Rulebooks & Membership o Contracts, Specifications & Delivery • The Real World o Geography, Basis Risk o Cash Settlement and Physical Settlement o Standardisation Solutions: Common Credit Masters, TrayPort, Contract Fungibility • Position Limits & Position Reporting o CFTC and FERC ‐ Energy and Environmental Markets Advisory Committee (EEMAC) • Who Regulates? • DG FISMA and DG Energy / Ministries of Finance & Energy / ESMA and ACER / NCAs • IEA & OPEC or CPMI & IOSCO 4 Traded Oil Markets Brokered Oil Markets: Changes Over Last 5 years From: To: OTC Exchange Cleared Screen OTC Cleared Exchange Screen OTC Bilateral OTC Blilateral 5 Context: How did we get here, Lessons learned so far For Instance, Even Yesterday… Now You See It, Now You Don't – CFTC EEMAC Withdraws Report Regarding Proposed Position Limits: The February 25, 2016 report issued by the Commodity Futures Trading Commissions' Energy and Environmental Markets Advisory Committee, saying there was no evidence justifying proposed CFTC position limits, was withdrawn last week. In a statement issued by Commissioner J. Christopher Giancarlo, sponsor of EEMAC, "[t]he report was never intended to be a distraction from the substantive policy work of the Committee and the volunteer members who give their time and expertise." No other explanation was provided for the withdrawal. Conclusion and Recommendations: It is the considered view of the Energy and Environmental Markets Advisory Committee that the CFTC should not finalize the position limits rule, as proposed. Clearly given that the MIFID Position Limit and COT rules in the proposed RTS are under review, these developments in the US regime, from which EU_COMM borrowed line for line, are interesting • The problem is there isn't enough speculation in oil, not that there is too much, industry tells the CFTC • The Proposed Rule Fails the Decades‐Old Necessity Finding Required by the Commodity Exchange Act • The Proposed Rule for Position Limits Poses a Serious Threat to Energy Market Liquidity • The Enumerated Hedges in the 2013 Proposed Rule are Excessively Narrow • An Expanded Accountability Regime is a More Workable Alternative to Single and All‐Month Limits • new position limits are likely to have the serious unintended consequence of further reducing liquidity in energy derivatives, especially for those with delivery dates beyond the first several months (i.e., “further out on the curve”). This reduced liquidity would harm hedgers, who are already having trouble accessing liquidity, particularly in smaller, more regional power and gas markets • The CFTC’s proposed enumerated hedges exclude many commonly utilized risk management strategies. Thus, limiting bona fide hedgingtothe proposed enumerated hedges would have the unintended, and highly deleterious, effect of unnecessarily constraining effectiveenergy hedging strategies • Exchanges should play a central role in the process of evaluating and granting hedging exemptions for non‐enumerated hedges • In the words of one participant, the Proposed Rule is “a solution to a non‐existent problem Members Voting to Approve: James Allison Michael Cosgrove Bryan Durkin Benjamin Jackson William McCoy Craig PirrongLopaParikh Dena Wiggins 6 Members Voting to Dissent: Tyson Slocum; see separate written dissent. Context: How did we get here, Lessons learned so far Waypoints and Lessons 2 • CFTC migrated the commodities markets from swaps to futures in Q3 2012 • Inter‐Dealer brokers are only arranging what is now listed RM products under the relevant exchange rules. • The exchanges converted the clearable swaps post‐Dodd Frank into Swap Futures meaning an IDB doing this business would not be subject to OTF rules but that of the exchange (Block thresholds/Transparency/time limits etc). • 1 day VAR v 5 day VAR (liquidation) • Utterly dependant on the Block Trade Limits set under the rules of the RM. These are far smaller than the Block Trade limits on SEFs set by the CFTC • CCP recognition / deference between US & EU for MPoR was a deal breaker for the RMs • If the position limits regime is extended to what are RM products then ICE & CME will just dual list its benchmark contracts outside the EU. Proof is already there with ICE listing Brent Futures mini‐contract in Singapore. • Worth looking at Dodd‐Frank Core Principle 9 & how the CFTC has kicked it into the long grass because it knows once it mandates block thresholds on the US DCMs, the exchange will offer that product outside the US. (CME prepared for it by listing contracts on CME Europe). 7 Scope of Market Regulation Commodities under MiFID2 • Based in a general principal of inclusion under a wide scope • Narrower and targeted exemptions • Some issues: • Proportionality and appropriateness • Definitions of commodities and of commodity derivatives • Who, What, Where and Why? (upside down legislation) • Different overlapping and orthogonal legislations (EMIR, REMIT, CRR, BENCH, SFTR) • Commitment of Trader Reporting • EU Call for Evidence – NCA views • Ancillary Activities Exemptions • Bringing back the exemption test considering the ratio of the capital employed for carrying out the ancillary activity to the capital employed for carrying out the main business. • Challenges for top‐down (data capture) and for bottom‐up (intent) regulation 8 Scope of Market Regulation Expanded Scope under MiFID II • Under MiFID I, many firms trading commodity derivatives are able to rely on exemptions to avoid the need for authorisation. MiFID II will severely restrict those exemptions. • MiFID II still provides an exemption from its scope for firms dealing in commodity derivatives on their own account, provided that this activity is ancillary to their main business. ESMA has been mandated to determine via RTS when activity is to be considered as ancillary. • While there are therefore still some moving pieces, what can be expected is that the final rules will be consistent with the broader MiFID II policy objective of bringing more commodity trading firms within the scope of European financial regulation. • The consequences of NFC firms being brought within the scope of MiFID II are important – because once a firm falls within scope it becomes subject to the requirements of a MiFID authorised firm, the EU capital requirements framework, being a financial counterparty under EMIR and application of the full MiFID II position limits regime. • Introduction of capital requirements for commodity trading firms could be a single biggest challenge for the industry. If inappropriately calibrated, it is estimated that capital requirements could add between EUR 50 and 500 million in compliance and risk management costs for each commodity dealer. • Basel III regulations contain a leverage ratio formulation that counts segregated customer margin as leverage in calculating a bank’s capital requirements. The futures industry has demonstrated to regulators that customer margin is highly regulated and segregated away from a bank’s assets and should be recognized as exposure‐reducing in the Basel calculations. Without such an offset, banks will face an increase in the amount of capital required to support futures clearing which will directly impact on the ability for banks to offer client clearing services to commodities market participants. • Higher marginal costs to commodity dealers will have an impact on commodities trading activity with consequent and dramatic reduction in market liquidity and quality. The costs of requirements would be passed by those remaining to other market participants and ultimately to consumers. 9 Position Limits Commodities under MiFID2: Hedges versus Trees • Industry up in arms over position limits: it believes that position management (i.e. the use and intent of a given position rather than its size alone) as opposed to fixed position limits per se is a superior approach for efficient and well‐functioning markets. • Level I of MIFID II ‐ hedge exemptions can only be relied upon by non‐financial entities. • In parallel, MiFID II is set to require a significant number of utilities and large commercial hedgers to register as MIFID firms ‐ effectively excluding such firms from hedge exemptions and introducing the other attendant controls and regulatory costs • Key to a successful implementation of appropriate levels for such limits is the recognition of the co‐ dependency of commercial and non‐commercial (‘speculative’ or financial) segments of markets. • For effective risk transfer to take place between commercial to non‐commercial entities and hence bona fide hedging to take place, the ability of financial players to take the other side of large commercial positions governs the sustainability and viability of commercial hedging in turn. • The alternative is a failed market or reduced liquidity, especially at times of stress when commercials would be less likely to be the default offerors of liquidity relative to non‐commercial entities. • If there is no potential reward for assuming risk or regulatory strictures become too extreme, risk transfer will not take place. 10
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