Scope of the Securities Regulations

Transcription

1 CHAPTER2 Scopeofthe SecuritiesRegulations T hemifidencompassesinvestmentfirms,regulatedmarkets,andmtf.itregulates investmentadviceasaservicerequiringauthorization.theu.s.regulationsfocus on brokers and dealers and exchanges, which are respectively the investment firms andthe RegulatedMarkets inthesenseofthemifid. 1 Themaindifference betweenthetworegulationsisthatdarkpoolsarenotexplicitlycapturedbythemifid (thedirectiveisnotcurrentlyappliedtothem)whereastheyareconsideredasin the United States and are registered as broker and dealers. They however do not displaypublicquotesiftheyarebelowacertaintradingvolumethreshold. Hedge fund managers are partially captured by both regulations. In Europe, if they deal with transferable securities, hedge fund managers would be considered as investment firms but would not have to apply all the requirements of the MiFID Directive if they only had professional clients. In the United States, hedge funds managershavetoregisterasinvestmentadvisers,butcanbenefitfromwaiversifthey deal with qualified investors. Some hedge funds may also have to register with the SEC as brokers and dealers. Traditionally the SEC has distinguished dealers from traders : 2 ifhedgefundsplacequotationsonbothsidesofthemarket,areknownasa sourceofliquidity,andareasupplierofsecurities,theywouldbeconsidereddealers. Finally,some managersorconsultantsof hedgefundsmayhaveto registerwiththe SECasbrokers,iftheyparticipateinameaningfulwayinanyofthekeyphasesofa securities transaction (for example, receipt of transactionrelated compensation, solicitationofsecuritiestransactionsandhandlingoffundsandsecurities). The outcome of both regulations, focusing either on investment firms or brokers/dealers,seemsnonethelesssimilar:theadvice,brokerage,dealinginsecurities hastobeauthorized/registered,andtransparentsoastoensureinvestors protection. The EU Securities Regulations Focus on Investment Firms and Trading Venues Article1oftheMiFIDDirectivestates: thisdirectiveshallapplytoinvestmentfirms andregulatedmarkets. TheLevel1Directiveencompassesthreemainconcepts: 7

2 8 World Bank Working Paper 1. Investment firm: Any legal person whose regular occupation or business is theprovisionofinvestmentservicestothirdpartiesand/ortheperformanceof oneormoreinvestmentactivitiesonaprofessionalbasis.memberstatesmay include under this definition undertakings which are not legal persons, providedthat(i)theirlegalstatusensuresalevelofprotectionforthirdparties interestequivalenttothataffordedbylegalpersons;and(ii)theyaresubjectto equivalent prudential supervisions appropriate to their legal form. They can be systematic internalizers (SI), which on an organized, frequent, and systematic basis deal on own account by executing client orders outside a RegulatedMarketorMTF.Concretely,investmentfirmsdeclarethemselvesSI forselectedequities(selfcertificationregime),androutemostorderstoother trading venues including their own platform. SI are associated with the tradinginsharesandregulatedunderarticle27ofthemifiddirective. 2. Multilateral Trading Facility (MTF) is a multilateral system operated by an investment firm or a market operator, which brings together multiple third partybuyingandsellinginterestsinfinancialinstruments inthesystemand in accordance to nondiscretionary rules. There are basically alternative tradingplatformstoexchanges,oftencreatedbybankstoprocesstheirtrades such as Turquoise as regards equities. The MTF concept is similar to the AlternativeTradingSystems()widelydevelopedintheUnitedStates(see Section2.2). 3. RegulatedMarket(RM)isamultilateralsystem(i)operatedand/ormanaged by a market operator, (ii) which brings together multiple thirdparty buying andsellinginterestsinfinancialinstruments inthesystemandinaccordance withitsdiscretionaryrules inawaythatresultsinacontractinrespecttothe financialinstrumentsadmittedtotradingunderitsrulesand/orsystemsand (iii)whichisauthorizedandfunctionsregularly.rmscorrespondtothemajor exchanges in the EU, but not all exchanges are RMs, some of them are regulatedasmtfs.themaindifferencebetweenarmandamtfremainsthe nonapplication of the Prospectus Directive (2003/71/EC), the Transparency Directive(2004/109/EC)andsubsequentlytheIFRStoMTFs. MiFID regulations seek to capture the execution of trading in securities irrespective of the trading methods used to conclude those transactions: thus, Regulated Markets, MTF, and systematic internalizers are all subject to transparency requirements albeit to a varying degree (waivers exist for MTF and systematic internalizers in the case of large or illiquid transactions). However, some trading venuessuchasdarkpoolsarenotcurrentlycapturedbymifid,althoughtheyaccount forasubstantialamountoftradingvolume(upto40percentbysomeestimates). Darkpoolsofliquidityaretradingfacilitieswhichmatchanonymouslylargeand small orders. In Europe, they may be classified in two categories: (i) dark pools operatedbybrokerdealersorinvestmentbanks,alsocalled crossingnetworks and (ii)darkpoolsoperatedasmtfs.crossingnetworksofthefirstcategorydonothaveto comply with MiFID pretrade transparency requirements, and with other rules imposedonrmsandmtfssuchastheobligationtotreatinvestorsequally,toprovide fair access to the trading platform and market surveillance, and to operate a non

3 Comparing European and U.S. Securities Regulations 9 discretionaryexecutionsystem.darkpoolsoperatedasmtfsofthesecondcategory areregulated,buttheybenefitfromsomepretradetransparencywaiverspermittedby the MiFID Level 2 Regulation (market model, large orders). 3 However in all cases, investmentfirmsresponsibleforexecutingtheorderonbehalfofaclientwillneedto decidewhetherthesubmissiontoadarkpoolcomplieswiththeorderhandlingand bestexecutionobligationstowhichtheyaresubject. 4 ThereisanactivepublicdebategoingoninEuropeastocrossingnetworksshould beregulatedasmtfs.exchangesandmtfsarguethatthefacttheyoperateoutsidethe MiFIDDirectivegivesthemanunfaircommercialadvantage.Conversely,investment banks argue that their crossing networks are merely an automation of OTC services thattheyhavealwayscarriedouttofacilitateclients orders. 5 CESRislookingatthis issue and is expected to deliver a supervisory guidance in the coming months. The MiFIDreviewbytheEUCommissionexpectedtobelaunchedattheendof2009will addressthisissueaswell. Table2.1attemptstoshedlightonthe dark concept.itisimportanttonotethat severaltypesofdarkpoolsexist,andthatthedistinctionwithexchangesandmtfis becomingmoreblurrysinceexchangesandmtfhaveestablishedtheirowndarkpools ofliquidityinrecentyears. As regards the MiFID s scope on financial instruments: Some dispositions are applied differently depending on the instruments and the trading venues. Certain MiFID obligations only apply to financial instruments admitted to trading on a RM. Therearenopreandposttradetransparencyrequirementsforbonds,securitizeddebt and derivatives; however the duty of best execution applies to all instruments includingbonds;thereisnoobligationoftransactionreportingforsecuritiesthatare notadmittedtotradingonaregulatedmarket;exemptionstotheappropriatenesstest are possible for noncomplex products but not for bonds or securitized debt that embedaderivative. The U.S. Securities Regulations Focus on Broker-Dealers and Exchanges The 1934 Securities Exchange Act regulates the registration, operations and integrity of brokers and dealers. At the SRO level, the FINRA rules control the organisation and businessconductofbrokersanddealers(withconceptssuchasinvestmentsuitabilityand bestexecution).intheunitedstates,brokersanddealersarethe investmentfirms. ThebrokerdealerconceptisnonethelessbroaderthantheMiFID investment firms :alternativetradingplatformssuchasdarkpoolsorelectroniccommunication Networks(ECNs)registerwiththeSECasbrokerdealers.The1998SECregulationon Alternative Trading Systems (Reg ) requires to register as brokerdealers, exchanges (if they have selfregulatory powers or trade above a certain market volume), 6 ortorespectminimumrequirementsiftheyrepresentlessthan5percentof thetradingvolumeforanygivensecuritytheytrade. 7 Ifanaccountsformorethan 5 percent of the average daily volume in a security over four of the preceding six months, it (i) must establish written standards for granting access to trading on its system,and(ii)mustnotunreasonablyprohibitorlimitanypersoninrespecttoaccess toservicesofferedbysuchsystembyapplyingthesewrittenstandardsinanunfairor discriminatorymanner. 8

4 10 World Bank Working Paper Table 2.1: The Dark Concept Concept Dark pool Independent dark pools Broker-dealer dark pool (crossing network) MTF dark pool Exchange owned dark pool Definition and Example EU regulation U.S. regulation Trading venue that provides liquidity that is not displayed on order books. For example, Liquidnet Instinet, Posit, Euro- Millenium Dark pool usually operated by an investment bank for example, Credit Suisse cross finder Dark pool owned by a MTF in Europe. For example: Turquoise s dark pool Dark pool owned by a Regulated Market. For example: Baikal, the London Stock Exchange s dark pool and Neuro Dark NASDAQ- OMX s dark pool Source:CESR,MiFIDDirective,Reg. Two types of dark pools: a) dark pools operated by broker-dealers also called crossing networks, which are unregulated and are not subject to pre-trade transparency requirements; b) dark pools operated as MTFs, which do benefit from pre-trade transparency waivers but have to comply with other MTF rules. There is however a posttrade transparency requirement for equities traded on dark pools: investment firms are required to report transactions in public shares carried out outside a Regulated Market or a MTF. Most are regulated as MTF in Europe. Investment banks do not need to apply for a waiver from MiFID s pre-trade transparency obligations as long as the platform is not registered as a MTF. MTFs apply to their supervisor for a waiver from MiFID s pre-trade transparency obligations Exchanges apply to their supervisor for a waiver from MiFID s pre-trade transparency obligations Dark pools are considered as and register as brokers and dealers. However, most of them do not display public quotes, because they represent less than 5 percent of the trading volume in any security they trade, or because they may have obtained an exemption from the 5 percent rule (for example, Liquidnet). Nevertheless, they must promptly report trades over 100 shares.

5 Comparing European and U.S. Securities Regulations 11 Dark pools are regulated in the United States under Reg and register as brokerdealers. As most of them are below the 5 percent threshold or have obtained exemptions (for example, Liquidnet), 9 they do not display quotes in the public data stream but they must promptly report their executed trades to the public. However, thetradereportdoesnotidentifytheparticularpoolresponsibleforthetrade,which makes it difficult to assess the liquidity in a particular stock. As dark pools have strongly developed in the past year, there is also a debate in the United States as to whethermoreregulationonthosepoolsisneeded. 10 TheMiFIDconceptofsystematicinternalizerforequitytradesisnotregulated as such in the United States. Internalization within a brokerdealer would be consideredasotctrade,unlessthetradeisprintedonanexchange. Asregardtheinstruments,theU.S.rulesaresimilartoMiFIDinthesensethat bonds, securitized debt and derivatives do not bear pre and post transparency requirements(therearesomeexceptions:corporateandmunicipalbondsbenefitfrom posttradetransparencyintheunitedstates).onnationalsecuritiesexchanges,traded securities must be registered, which is similar to MiFID article 40, admission of financialinstrumentstotrading. The following tables summarize the scope of EU and U.S. securities regulations, andgiveanoverviewofthemarketshareofeachtradingvenues.itseemsthatsince thestartoftheglobalfinancialcrisis,theshareofotcequitytrading(includingdark pools) in Europe has significantly increased, mainly as a result of declining trading volumesatregulatedexchanges. 11 Tables2.3and2.4illustratethesheerdifficultyto measurepreciselythetradingmarketshareofdarkpoolsgiventheirmultiplefacets. InEuropetheyareincludedintheOTCtradingwithoutthepossibilitytodifferentiate darkpoolsfromotherotc.intheunitedstates,otcandaregroupedtogether, but there are independent estimates of the market share of dark pools in equities tradingataround7 9percent,accountedforabout40darkpools. 12 Table 2.2: Scope of EU and U.S. Securities Regulations MiFID Investment Firms (IF) Systematic Internalizers (SI) Multilateral Trading Facilities (MTF) Regulated Markets (RM) Key provisions of MiFID are not applied to dark pools unless they are set up as MTFs; thus they do not apply to crossing networks Some dispositions applied differently depending on financial instruments (for example, transparency requirements) U.S. Securities Regulations Brokers and Dealers No concept of Systematic Internalizer Alternative Trading Systems () Exchanges Dark pools regulated under Reg but they may be exempted from pre-trade transparency requirements if below a certain volume threshold Some dispositions applied differently depending on financial instruments (for example, transparency requirements)

6 12 World Bank Working Paper Table 4: Market Shares of Trading Venues by Type of Financial Instrument EU (MiFID) Equities FixedIncome Derivatives Regulated Markets 49.0% 5.0% 20% MTF 8.0% 3.1% 0% OTC including dark pools 41.0% 89.2% 80% SI (for equities only) 2.0% NA NA Other 0.0% 2.7% United States Equities FixedIncome Derivatives Exchanges 64.2% <1% 20% OTC (including /dark pools) 35.8% >99% 80% Source:FESE,Xtrakter( BIS(forDerivatives). EUEquitiestradingasofMay2009,fixedincomeasofDec U.S.equitiesasofJuly2009inexchangelistedstocks,fixedincomeasofJuly2009(TRACE). Notes 1 TheU.S.regulationsdefinebrokersanddealersasfollows:abrokerisanypersonengagedin thebusinessofeffectingtransactionsinsecuritiesfortheaccountofothers;adealerisanyperson thatisengagedinthebusinessofbuyingandsellingsecuritiesforitsownaccount(exchangeact section3(a)(4)(5)). 2 Atraderisapersonthatbuysandsellssecuritiesnotaspartofaregularbusinessandisnot registeredwiththesec. 3 There are four types of pretrade transparency waivers: (i) systems based on a trading methodology by which the price is determined with a reference price generated by another system (reference waiver price); (ii) systems that formalize negotiated transactions (negotiated trade waiver); (iii) orders that are held in an order management facility maintained by the Regulated Market or MTF pending their being disclosed to the market (order management facility waiver); (iv) orders that are large in scale compared with normal market size (large in scalewaiver).source:cesr,impactofmifidonequitysecondarymarketsfunctioning,10june CESR,QuestionsandAnswersonMiFID,May Complinet,CESRwillinvestigateexchanges MiFIDlevelplayingfieldconcernaboutcrossing networks,12june RegintroductionpartC: anysystemexercisingselfregulatorypowers,suchasregulating itsmembers conductwhenengagedinactivitiesoutsideofthattradingsystemmustregisteras anexchangeorbeoperatedbyanationalsecuritiesassociation. Inaddition,theCommission candeterminethatadominantalternativetradingsystemshouldberegisteredasanexchange.it wouldfirsthavetoexceedcertainvolumelevels(...). 7 They only have to file with the SEC a notice of operation and quarterly reports, maintain records, and refrain from using the words exchanges or stock market. Source: Reg introductionpartc. 8 FairAccessRule ofregamendedbyregnms,17cfr (b)(5)(ii)(b).sec,order Granting Exemption to Liquidnet, Inc. from Certain Provisions of Regulation under the SecuritiesExchangeActof1934,September27, SEC,ibid.

7 Comparing European and U.S. Securities Regulations SEC, Speech by SEC Chairman, remarks at the IOSCO Technical Committee Conference, October 8, Wall Street Journal, NYSE Executives: More regulation of dark pools needed, May19, Source:FESE.ThemarketshareofOTCvenuesinequitytradinginEuropehasincreasedfrom 26percentinOctober2008to41percentinMay RosenblattSecuritiesestimatesthemarketshareofdarkpoolsinU.S.listedstocksat8.9percent indecember2008.accordingtotabbgroup,thismarketsharewas7.14percentinapril2009.