Cookies?
Library Header Image
LSE Research Online LSE Library Services

The inherent limits of ‘legal devices’: lessons for the public sector's central counterparty prescription for the OTC derivatives markets

Braithwaite, Jo (2011) The inherent limits of ‘legal devices’: lessons for the public sector's central counterparty prescription for the OTC derivatives markets. European Business Organization Law Review, 12 (01). pp. 87-119. ISSN 1566-7529

[img]
Preview
PDF - Published Version
Download (588Kb) | Preview

Abstract

In the wake of the financial crisis considerable momentum has built up behind proposals to extend central counterparty (CCP) clearing in the over-the-counter derivatives markets. However, implementation is proving complex. This paper argues that one cause of this complexity is that the public sector is seeking to incorporate into legislation (and require the wider use of) a privately owned and operated risk management mechanism. As a matter of law, the paper argues that CCP clearing can be understood as a market-generated 'legal device'; in other words, one designed to support the markets by means of the interaction of various private law techniques. Following this analysis through, the paper highlights the benefits and drawbacks which derive from the legal techniques underlying CCP clearing (standardisation of contracts, asset-backing, netting and so on) and argues that these qualities are inherent to the device. It concludes that the inherent capacity of CCP clearing gives rise to a qualitatively different set of challenges for policymakers to those arising from technical implementation and it explains that both types of problem need to be addressed if the CCP prescription is to be effective

Item Type: Article
Official URL: http://journals.cambridge.org/action/displayJourna...
Additional Information: © 2011 T.M.C. Asser Press & The Author
Library of Congress subject classification: H Social Sciences > HG Finance
K Law > KD England and Wales
Sets: Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 06 Mar 2012 15:38
URL: http://eprints.lse.ac.uk/42228/

Actions (login required)

Record administration - authorised staff only Record administration - authorised staff only