Half Time score on EU short selling regulation: Common sense 1, Poltical motives 1

Pardon for this uncharacteristically jargon-heavy blog-post...

Following our event on the proposed EU regulation of short selling in March, we expressed our concerns that political motives were trumping common financial sense at that point in the negotiations (based on the European Parliament’s proposal). It looked as if certain EU politicans had got one over on the markets (or so the politicans would like to present it) with a proposed ban on uncovered credit default swaps (CDS) and extending a ban on naked short selling to the sovereign debt markets.

Now, having examined the latest proposal to come out of the recent meeting of EU finance ministers, its looks as if the common sense is slowly gaining some ground back.

For starters, they’ve left CDS largely alone, apart from a clause which allows CDS activities to be temporarily banned in exceptional circumstances if all national regulators agree (which gives the FSA an effective veto).

The proposal still bans naked short selling (as it was ultimately designed to do), including sovereign debt, but this can be rescinded if it is seen to harm liquidity in sovereign debt markets. Interestingly, short selling of sovereign debt is allowed if it is seen as hedging against a corresponding long position. The European Securities Market Authority (ESMA) is mostly given a coordination role, it can attempt to rescind or extend the ban on an EU-wide basis but, again, it requires the consent of national authorities to do so.

The transparency rules are still included, stating that any investor with a significant net short position in shares must disclose it to regulators and to the markets if above a certain threshold. Importantly, this has been watered down in reference to sovereign debt so that no public disclosure is necessary. Public disclosure of short positions isn't uncomplicated but ultimately its impact will depend on the exact threshold levels and the format in which it is disclosed, both details which are yet to be announced.

Clearly, the Council's proposal is better than what some countries, such as France, had pushed for, particularly in relation to sovereign debt. It looks as if, at least in this round of the negotiations, the common sense approach - not least in terms of avoiding cutting off sources of liquidity for struggling eurozone countries - has been taken to heart. However, the negotiations are far from over, with the European Parliament still pushing for its far tougher proposal.

Member states and MEPs will now have to try to find a compromise between their respective proposals (with some member states no doubt using those negotiations trying to win back concessions that they horse-traded away - that's the nature of co-decision and Qualified Majority Voting).

So while this is pretty good news, it's only the half-time score.

A fight breaks out in a bar...

Last week we organised a debate in London on the EU's proposed short-selling rules (a summary of the event can be found here). With four excellent panellists, we covered lots of ground and managed to get into the crucial details without losing track of the bigger picture (always a challenge with what is, after all, a highly technical piece of financial legislation).

The proposal is currently gridlocked in negotiations between MEPs, member states and the Commission.

As it stands, the proposed short-selling regulation is a mixed bag - some much needed transparency measures are welcome, but some provisions on the table could be counterproductive and hurt weaker European economies . In particular, MEPs want to impose a blanket ban on short-selling of "uncovered" Credit Default Swaps on sovereign debt, to counter "speculation" against weaker eurozone economies. That the Commission, and virtually everyone else, has pointed out that there is no evidence that short-selling drives up borrowing costs for governments, seems not to matter.

MEPs insistence on a blanket ban is all about political games - it has nothing to do with economic realities. As MEP Syed Kamall (who's opposing the ban) noted at the debate - and others have noted as well - when a fight breaks out in a bar, you don't hit the guy that started the fight, you hit the one you always wanted to hit (see picture - we'd like to say that the two guys sitting down chilling are representative of the UK's approach to Europe but that might be a bit harsh, at least in this case).

We take a closer look at the proposal and state of the negotiations over on Public Service Europe. We acknowledge that,

The overarching goals of the European Union's new short-selling regulations are supposed to "create a harmonised framework for coordinated action at European level, increase transparency and reduce risks". These are commendable aims, which are also widely accepted by those within the industry.

But on the proposed CDS ban, we note

In fact, in many cases, the ability to "go short" increases investments in struggling economies since it serves to reduce risks involved in that investment – while offsetting the exposure investors may have to long positions elsewhere. Take away this form of insurance, and fund managers will grow increasingly reluctant to invest in the very economies that are in need of cash inflows.

For example, take an investor who considers putting his money into a project or enterprise in one of the eurozone economies, which is struggling to cope with large levels of debt at the moment. Naturally, he will want to have a way to hedge or insure himself against potential losses, in what is a risky economic environment. One way of doing this is to take a short position on the sovereign debt of this country in order to offset some of the risk. An excessive ban on CDS short-selling activities would reduce the flexibility of markets to respond to these kinds of risks, which in turn increases the cost of capital and reduces investments in - and lending to - struggling eurozone economies.

Alluding to the "fight in a bar" analogy, we conclude,

The biggest problem with this proposal is, therefore, that it is driven by a narrow political agenda rather than economic evidence, best practice and common sense. It is easier for politicians to accuse "speculators" - a vague group of people that is never really defined - for carrying out an evil conspiracy, than to deal with the real problems facing the EU economy. Such as low growth, an undercapitalised banking sector, an unsustainable single currency and governments spending money they do not have.

Unfortunately, in this fight it seems as if, rather than improving financial regulation, struggling European countries will be hit the hardest