Response to joint Consultation on draft RTS on risk-mitigation techniques for OTC-derivative contracts not cleared by a CCP
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Reverse the presumption that IM will not be collected : in article 1FP §3, the possibility to exempt transactions between counterparties under the threshold requires a prior formal agreement ; we think that the rule should be that in absence of a specific prior agreement among the parties the rule should be that there is no collateral posted; as mentioned legal services are overworked and this suggestion would simply make things workable.
With respect to concentration rules we have the following 3 comments to share:
1. we strongly suggest that there should be a realistic threshold of 100 million € under which diversification rules should not apply; not only because it is not workable to ask for a split collateral over different issuers on smaller amounts than 100 million, but also because in terms of systemic risk a de minimis principle is totally appropriate;
2. All funds (UCITS and AIFs subject to equivalent rules) that comply with the ESMA guidelines published in December 2012 on ETF and other issues relating to UCITS should be exempted from any other type of collateral management rules and specifically any diversification rule; it would be highly counterproductive to suggest to the UCITS investors that existing regulation is inadequate and has to be modified ; furthermore the balance between increased risk mitigation and investor protection (at best minimal ) and resulting cost (at the least very high) does not justify another layer of regulation for UCITS and other funds complying with ESMA guidelines.
3. ESMA guidelines ask for UCITS to spread received collateral in order not to exceed an exposure higher than 20% of the NAV of the fund on one single issuer. The denominator of the ratio is what is important in the fund, i.e. the net asset value or the net capital available in the fund; the proposed regulation refers to the total amount of the collateral when computing the diversification ratio; it is inconsistent to consider that there is a risk that could be mitigated with a diversification rule on a collateral of small amount; it is not workable to ask counterparties to split small amounts of collateral on several issues for even smaller amounts, uneasy to manage and costly to transfer; thus we recommend to compute the diversification ratio as a percentage not of the collateral itself but as a proportion of the NAV for funds, and/or if it is necessary to maintain one single standard as a proportion of the notional amount of the underlying derivative;
Derivative close out: funds are required in Europe to negotiate a possibility to ask for an exit out of a derivative at any time. It implies the possibility to put to an end the initial operation with the initial counterparty. The point is that if, for the sake of best execution, the asset manager has a better price with another counterparty for an opposite transaction it will have to post collateral for two opposite exposures as long as a netting is not accepted between counterparties (and there is no possibility to force such a netting). This is not an issue if no initial margin is exchanged but may become an obstacle to best execution if there is. Funds are heavily regulated and closely monitored and could benefit from an exemption to exchange initial margin; as a consequence they would not suffer any conflict when closing a derivative position.
Minimum Transfer Amount (MTA): the proposed regulation suggests a MTA of 500 000 €. This amount includes the net variation of IM and VM exchanged between 2 counterparties. Our organization, and we understand that it is shared by other entities, monitors IM and VM separately and we would prefer to have two MTAs. We hence suggest that be added it is possible to follow two MTAs instead of one.
Internal models : Amundi concludes derivative contracts on behalf of the funds it manages with large counterparties, usually the most prominent investment banks. We understand that should these counterparties ask for IM they would calculate the appropriate level based on an internal model that is approved by the supervisory authority. The same will happen when calculating daily VM or reasonable haircut levels. Amundi has not so far gone through the process of asking the AMF, its supervisory authority, to approve an internal model. We have however a large experience of discussing their models with investment banks when negotiating derivatives or challenging their prices.
We approve the requirement that banks communicate on the models they use and the data they take when running these models. Our responsibility towards our clients includes the verification of the prices of the financial instruments we use and the level of collateral is within the scope of our controls. We would advocate for a specific requirement to discuss the key structure of the models and the source of data used and suggest they should be as often as possible public data. As we fear that it might be difficult to receive the necessary information, we would consider as a good leverage that the client be recognized the possibility to seize the competent authority if he cannot obtain satisfactory explanations.
Internal rating based approach: when assessing credit quality of collateral, fund managers tend to refer to their large experience as direct investors. Managing money for third parties implies not only to comply with supervisory authorities but also to ensure that customers’ money is managed within a defined risk framework. Therefore one must ensure that both the client needs and the supervisory rules are understood. Sufficient information and appropriate transparency are necessary to allow :
- Due diligence made by the Asset Manager on the IRB used by the counterparty. When managing money for third parties, the validation of the IRB by a supervisory body is an important step that should be supplemented by the Asset Manager’s due diligence before selecting eligible counterparties to trade OTC derivatives.
- Regular audit made in order to check that the counterparty is using its IRB in an appropriate manner. The Asset Manager should be able to demonstrate through an audit trail that he has complied with his duty to assess the quality of collateral.
The collateral is used as a guarantee in case the counterparty fails to meet its commitment. The quality of collateral rated by a “defaulting” counterparty may make its sale very difficult (and thus limit considerably the purpose of posting collateral). Typically, if the IRB is used for non-rated securities it can make the sale of the collateral in a stress period more difficult in the absence of an external rating. We feel IRB approach could lead to wrong way risk and should not be encouraged.
For this reason, combined with the fact that small/medium size asset managers will not be able to have approved IRB models nor to monitor their counterparties IRB models, we feel that the advantage given to IRB models as opposed to external ratings is not fair and that the acceptable CQS should be positioned at the same level, level 3 for usual bonds, in both cases.
An example of circumstances where re-use will be helpful is to be found in the case of back to back transactions where a counterparty A manages the exposition it took from a derivative contract with a fund through a reverse transaction with counterparty B; the collateral received from the fund by A may be re-used and posted in favour of B that finally takes the market risk. The more so if A is a financial institution that provides the fund with a guarantee.
The required prior explicit approval by the poster of the collateral (transaction by transaction), the fact that it can check that the re-use is made in conjunction with a further transaction aiming at managing the risk initially taken from the fund and not to take further exposure, the possibility to earmark the collateral…all is made to limit the re-use to a very few cases when professionals willfully agree.
Question 2. Are there particular aspects, for instance of an operational nature, that are not addressed in an appropriate manner? If yes, please provide the rationale for the concerns and potential solutions.
Grand fathering clause: we insist on the necessity to fully establish the fact that the regulation will only apply to transactions conducted after its implementation date; it should not only be mentioned under recital 18 but also included in the text of the regulation itself. Furthermore, we consider that a precision should be added to make sure that “genuine amendments” as referred to in the BCBS/IOSCO final report (§ 8.9 and footnote 20, p. 24) made to existing derivative contracts shall not be in the scope of the new regulation. An explicit mention in article 1 FP § 4 would bring the necessary clarification. As a matter of fact, investment funds often amend existing contracts to reduce their notional amount to adjust their exposure, as a consequence of redemptions. Thus, it is very important for them to keep these existing contracts outside the scope of the regulation.Reverse the presumption that IM will not be collected : in article 1FP §3, the possibility to exempt transactions between counterparties under the threshold requires a prior formal agreement ; we think that the rule should be that in absence of a specific prior agreement among the parties the rule should be that there is no collateral posted; as mentioned legal services are overworked and this suggestion would simply make things workable.
With respect to concentration rules we have the following 3 comments to share:
1. we strongly suggest that there should be a realistic threshold of 100 million € under which diversification rules should not apply; not only because it is not workable to ask for a split collateral over different issuers on smaller amounts than 100 million, but also because in terms of systemic risk a de minimis principle is totally appropriate;
2. All funds (UCITS and AIFs subject to equivalent rules) that comply with the ESMA guidelines published in December 2012 on ETF and other issues relating to UCITS should be exempted from any other type of collateral management rules and specifically any diversification rule; it would be highly counterproductive to suggest to the UCITS investors that existing regulation is inadequate and has to be modified ; furthermore the balance between increased risk mitigation and investor protection (at best minimal ) and resulting cost (at the least very high) does not justify another layer of regulation for UCITS and other funds complying with ESMA guidelines.
3. ESMA guidelines ask for UCITS to spread received collateral in order not to exceed an exposure higher than 20% of the NAV of the fund on one single issuer. The denominator of the ratio is what is important in the fund, i.e. the net asset value or the net capital available in the fund; the proposed regulation refers to the total amount of the collateral when computing the diversification ratio; it is inconsistent to consider that there is a risk that could be mitigated with a diversification rule on a collateral of small amount; it is not workable to ask counterparties to split small amounts of collateral on several issues for even smaller amounts, uneasy to manage and costly to transfer; thus we recommend to compute the diversification ratio as a percentage not of the collateral itself but as a proportion of the NAV for funds, and/or if it is necessary to maintain one single standard as a proportion of the notional amount of the underlying derivative;
Derivative close out: funds are required in Europe to negotiate a possibility to ask for an exit out of a derivative at any time. It implies the possibility to put to an end the initial operation with the initial counterparty. The point is that if, for the sake of best execution, the asset manager has a better price with another counterparty for an opposite transaction it will have to post collateral for two opposite exposures as long as a netting is not accepted between counterparties (and there is no possibility to force such a netting). This is not an issue if no initial margin is exchanged but may become an obstacle to best execution if there is. Funds are heavily regulated and closely monitored and could benefit from an exemption to exchange initial margin; as a consequence they would not suffer any conflict when closing a derivative position.
Minimum Transfer Amount (MTA): the proposed regulation suggests a MTA of 500 000 €. This amount includes the net variation of IM and VM exchanged between 2 counterparties. Our organization, and we understand that it is shared by other entities, monitors IM and VM separately and we would prefer to have two MTAs. We hence suggest that be added it is possible to follow two MTAs instead of one.
Question 4. In respect of the use of a counterparty IRB model, are the counterparties confident that they will be able to access sufficient information to ensure appropriate transparency and to allow them to demonstrate an adequate understanding to their supervisory authority?
The question of internal models should not be addressed only with reference to internal rating but more generally. In both instances, transparency and advance notice of changes in the models are a necessity. Properly calibrated models should be stable and should not frequent modifications. Counterparties should hence discuss the models as well as their expected stability.Internal models : Amundi concludes derivative contracts on behalf of the funds it manages with large counterparties, usually the most prominent investment banks. We understand that should these counterparties ask for IM they would calculate the appropriate level based on an internal model that is approved by the supervisory authority. The same will happen when calculating daily VM or reasonable haircut levels. Amundi has not so far gone through the process of asking the AMF, its supervisory authority, to approve an internal model. We have however a large experience of discussing their models with investment banks when negotiating derivatives or challenging their prices.
We approve the requirement that banks communicate on the models they use and the data they take when running these models. Our responsibility towards our clients includes the verification of the prices of the financial instruments we use and the level of collateral is within the scope of our controls. We would advocate for a specific requirement to discuss the key structure of the models and the source of data used and suggest they should be as often as possible public data. As we fear that it might be difficult to receive the necessary information, we would consider as a good leverage that the client be recognized the possibility to seize the competent authority if he cannot obtain satisfactory explanations.
Internal rating based approach: when assessing credit quality of collateral, fund managers tend to refer to their large experience as direct investors. Managing money for third parties implies not only to comply with supervisory authorities but also to ensure that customers’ money is managed within a defined risk framework. Therefore one must ensure that both the client needs and the supervisory rules are understood. Sufficient information and appropriate transparency are necessary to allow :
- Due diligence made by the Asset Manager on the IRB used by the counterparty. When managing money for third parties, the validation of the IRB by a supervisory body is an important step that should be supplemented by the Asset Manager’s due diligence before selecting eligible counterparties to trade OTC derivatives.
- Regular audit made in order to check that the counterparty is using its IRB in an appropriate manner. The Asset Manager should be able to demonstrate through an audit trail that he has complied with his duty to assess the quality of collateral.
The collateral is used as a guarantee in case the counterparty fails to meet its commitment. The quality of collateral rated by a “defaulting” counterparty may make its sale very difficult (and thus limit considerably the purpose of posting collateral). Typically, if the IRB is used for non-rated securities it can make the sale of the collateral in a stress period more difficult in the absence of an external rating. We feel IRB approach could lead to wrong way risk and should not be encouraged.
For this reason, combined with the fact that small/medium size asset managers will not be able to have approved IRB models nor to monitor their counterparties IRB models, we feel that the advantage given to IRB models as opposed to external ratings is not fair and that the acceptable CQS should be positioned at the same level, level 3 for usual bonds, in both cases.
Question 6. How will market participants be able to ensure the fulfilment of all the conditions for the reuse of initial margins as required in the BCBS-IOSCO framework? Can the respondents identify which companies in the EU would require reuse or re-hypothecation of collateral as an essential component of their business models?
Amundi has the view that BCBS/IOSCO principles have taken a prudent and pragmatic approach when strongly limiting the possibility to re-use or rehypothecate received collateral. We think that there is no reason not to follow these principles. OTC derivatives are traded between professionals. If a counterparty agrees that the re-use of collateral will be positive and made for the benefit of its clients, re-use should not be prohibited.An example of circumstances where re-use will be helpful is to be found in the case of back to back transactions where a counterparty A manages the exposition it took from a derivative contract with a fund through a reverse transaction with counterparty B; the collateral received from the fund by A may be re-used and posted in favour of B that finally takes the market risk. The more so if A is a financial institution that provides the fund with a guarantee.
The required prior explicit approval by the poster of the collateral (transaction by transaction), the fact that it can check that the re-use is made in conjunction with a further transaction aiming at managing the risk initially taken from the fund and not to take further exposure, the possibility to earmark the collateral…all is made to limit the re-use to a very few cases when professionals willfully agree.
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