破产银行衍生品交易规则将改变

The world’s biggest banks have agreed to tear up the rule book on derivatives to make it easier to resolve a future failing institution like Lehman Brothers.

全球最大银行已同意修改衍生品交易规则，未来让像雷曼兄弟(Lehman Brothers)这样机构的破产清算更为容易。

People familiar with the matter said 18 bank “dealers”, ranging from Credit Suisse to Goldman Sachs, have agreed to give up the right to pull the plug on derivatives contracts with a crisis-stricken institution.

知情人士称，18家银行“交易商”（从瑞士信贷(Credit Suisse)到高盛(Goldman Sachs)）已经同意，当银行遭受金融危机打击时，放弃与其终止衍生品合约的权利。

Several months of complex talks involved regulators and asset managers but were led by dealers under the umbrella of the International Swaps and Derivatives Association.

几个月的复杂谈判包括监管机构和资产经理，但由国际互换和衍生品协会(International Swaps and Derivatives Association)管理下的交易商主导。

US regulators, who have previously condemned the industry’s crisis planning as inadequate, had demanded banks come up with a plan to stop their counterparties terminating derivatives contracts in the event of a crisis. The banks portrayed the success of the talks as a rare positive example of industry collaboration.

美国监管机构此前要求银行制定一份计划，在发生危机时阻止对手方终止衍生品合约。银行将此次谈判的成功视为一个罕有的行业合作的积极例子。美国监管机构此前谴责衍生品行业的危机计划不够完善。

Isda is due to announce the agreement to change its “protocols”, which govern the $700tn market, in the next few days. They will take effect from January 1 2015.

国际互换和衍生品协会将于未来几天宣布这项修改其“规则”的协议，这些规则管理着700万亿美元的衍生品市场。协议将于明年1月1日起实施。

According to a report from the US government Accountability Office, 80 per cent of Lehman’s derivatives counterparties closed out their deals with the bank within five weeks of its bankruptcy filing.

根据来自美国政府问责局(US Government Accountability Office)的一份报告，雷曼80%的衍生品合约对手方在雷曼递交破产申请的5周内终止了与该银行的交易。

That, in theory, helped the companies mitigate their counterparty risk with the failed bank but it also meant that Lehman’s estate had to spend years in court trying to claw back collateral from its partners.

理论上说，中止交易帮助这些公司降低了雷曼会带来的交易对手风险（counterparty risk），但也意味着雷曼不动产不得不花费多年打官司，从合作伙伴那里追回抵押品。

“One of the problems with Lehman was when there was a failure of one subsidiary clients of derivatives trades took funding away and took business away, adding to market instability,” said one bank negotiator.

一位银行谈判代表表示：“雷曼的问题之一是当一家子公司破产时，衍生品交易的客户拿走了资金，也带走了业务，这加大了市场的不稳定。”

This also made it harder to find buyers for the rump of Lehman. The current thinking among regulators is that the core of a failing institution should be preserved. Although shareholders would be likely to be wiped out, the operating company would be recapitalised or sold to mitigate the shock to the broader financial system.

这还导致雷曼的残留业务更难找到买家。监管者当前的想法是，破产银行的核心业务应受到保护。尽管股东可能会血本无归，但仍在运转的公司将进行资金重组或被出售，以减轻对更广泛的金融体系的冲击。

The concept of “too big to fail” has become hugely controversial since the financial crisis when AIG was bailed out by the US government because of fear of the consequences of its failure.

自此次金融危机以来，“大而不倒”的概念一直极具争议性，当时由于担心破产影响，美国政府对美国国际集团(AIG)进行了纾困。

Regulators have been struggling to come up with a viable system to avoid a repeat of the expensive bailout of AIG or the damaging failure of Lehman. The Dodd-Frank financial reforms in the US and parallel reforms in Europe instituted new procedures to “resolve” a failing institution but many believed these were unworkable without changes to derivatives contracts.

监管机构一直很难设计出一个可行的体系，来避免AIG代价高昂的纾困或者雷曼具有破坏性的破产再度出现。美国的《多德-弗兰克金融改革法案》(Dodd-Frank)以及欧洲类似的改革为“清算”破产银行制定了新程序，但很多人认为，如果衍生品合约没有修改的话，这些改革都将是不可行的。