Increased regulation on the horizon

Earmarked as a contributor to the 2008 financial crisis, over-the-counter (OTC) derivatives were one of the financial instruments identified by the G20 summit as needing increased regulation. Different jurisdictions have approached the regulation of OTC derivatives in their own manner. In South Africa, regulation has been addressed in the Financial Markets Act, 2012 (FMA) and its draft regulations.

What is a derivative?

A derivative is a type of financial instrument whose price is determined by reference to one or more underlying assets, such as shares, currencies or interest rates. Derivatives may either be traded on an exchange, or off-exchange. Off-exchange derivatives are commonly known as OTC derivatives, and are traded and negotiated between two parties without going through an exchange or other intermediaries.

Mandatory central clearing

One of the G20 recommendations was that all OTC derivative transactions be centrally cleared. Central clearing is a process in which OTC derivative transactions are cleared by a single (central) counterparty (CCP), to reduce individual risk. A CCP could be a clearing house licenced in terms of the FMA or an external clearing house. Each party in the transaction enters into a contract with the CCP so each party does not take on the risk of the other defaulting.

Using a CCP is a new requirement. As the regulations are still in draft form, the central clearing requirement is not yet in effect in South Africa and we do not yet have any licensed CCPs.