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Swap Transactions Under the Commodity Exchange Act: Is Congressional Action Needed?

NCJ Number
118498
Journal
Georgetown Law Journal Volume: 76 Issue: 6 Dated: (August 1988) Pages: 1917-1947
Author(s)
M D Young; W L Stein
Date Published
1988
Annotation
This analysis of financial swaps concludes that many of them may constitute futures contracts under existing law and would therefore violate the Commodity Exchange Act in the absence of a statutory change.
Abstract
Swaps are a growing force in today's international financial network. They are bilateral contractual arrangements involving a mutual exchange of commitments. Most participants in the swap market are major financial institutions and businesses that rely on swaps to help manage the risk of adverse changes in interest rates or currency exchange rates. The Commodity Exchange Act requires all futures contracts to be traded only on exchanges, but it does not specifically define futures contracts. Instead it generally describes them as involving the purchase or sale of a commodity for future delivery. In December 1987 the Commodity Futures Trading Commission (CFTC) proposed to take no action on certain types of swaps. As a result, swap markets may move to safe regulatory havens to avoid CFTC regulation unless an appropriate exemption is fashioned. Congress may therefore need to consider legislation that strikes the appropriate balance between the policies of fair competition, market integrity, and international competitiveness. 156 footnotes.

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