Friday, March 29, 2013

European Commission Extends Investigation of Anti-Competitiveness in Credit Default Swap Market to ISDA

The European Commission has extended the scope of an investigation into the market for credit default swaps to include the International Swaps and Derivatives Association (ISDA), a professional organization of financial institutions involved in the OTC trading of derivatives. The Commission's inquiry found preliminary indications that ISDA may have been involved in a coordinated effort of investment banks to delay or prevent exchanges from entering the credit derivatives business. Such behavior, if established, would stifle competition in the internal market in breach of EU antitrust rules.

This investigation was opened in April 2011 and is currently on-going. The Commission is examining whether a number of investment banks may have used a leading provider of financial information in the credit default swap market to foreclose the development of certain trading platforms. This could have been achieved through collusion or an abuse of a possible collective dominance.

Articles 101 and 102 of the Treaty on the Functioning of the European Union prohibit anticompetitive agreements and the abuse of dominant positions. The implementation of these provisions is defined in the EU's Antitrust Regulation, which can also be applied by national competition authorities. There is no legal deadline to complete antitrust investigations.  Rather, the duration of an antitrust investigation depends on a number of factors, including the complexity of the case and the extent to which the undertaking concerned cooperates with the Commission.
Credit default swaps are financial products traded between financial institutions or investors. They are derivatives originally created to provide protection against the risk of default. Information about credit default swaps is needed to allow market participants to determine the value of their investment portfolios and develop investment strategies. In order to create and sell aggregated credit default swap information products and services, information service providers need access to a certain amount of  transaction and valuation data.
The Commission has actually opened two antitrust investigations concerning the credit default swaps market. In the first case, the Commission is examining whether sixteen investment banks and a leading provider of financial information in the credit default swap market colluded and may hold and abuse a dominant position in order to control the financial information on credit default swaps. The first investigation focuses on the financial information necessary for trading credit default swaps. The Commission has indications that the sixteen investment banks that act as dealers in the credit default swap market give most of the pricing, indices and other essential daily data only to the leading provider of financial information in the market concerned. This could be the consequence of collusion between them or an abuse of a possible collective dominance, reasoned the Commission, and may have the effect of foreclosing the access to the valuable raw data by other information service providers.
In the second case, the Commission opened proceedings against nine of the sixteen investment banks and ICE Clear Europe, the leading clearing house for credit default swaps. Here, the Commission is investigating in particular whether the preferential tariffs granted by ICE to the investment banks have effectively locked them into the ICE system to the detriment of competitors. More specifically, the Commission is investigating a number of agreements between the nine credit default swap dealers. These agreements contain a number of clauses involving preferential fees and profit sharing arrangements that might create an incentive for the investment banks to use only ICE as a clearing house. The effects of these agreements could be that other clearing houses have difficulties successfully entering the market and that other players in the credit default swap market have  no real choice where to clear their transactions. If proven, the practice would violate Article 101.
The Commission will also investigate whether the fee structures used by ICE give an unfair advantage to the nine investment banks by discriminating against other credit default swap dealers. This could potentially constitute an abuse of a dominant position by ICE in breach of Article 102.