The CFTC adopted its cross-border guidance as an interpretation and not a rule. The problem with the agency's avoidance of the proper rulemaking process is that it deprived itself and the industry of the opportunity to conduct legal analysis and obtain adequate market commentary. Unfortunately, when the CFTC came to the conclusion that its own guidance was flawed, it resorted to rulemaking through staff guidance. That was a lost opportunity to fix the problem either by initiating a proper…

The proposed rule is similar to the ones that it would replace, but it is not the same. The new rule is broader, particularly concerning the scope of accounts that may be covered, and as to firms that do not supervise spouses' accounts. Accordingly, all firms, even those that require that their employees trade with them, will have to revisit their employee trading procedures if the new rules are adopted. The first step would likely be for firms to determine what accounts their employees may…

The CFTC SEF trading rules did not receive substantial support from either the buy side or the sell side. Whether or not one agrees with the specific recommendations made by Commissioner Giancarlo, it is difficult to see the logic of the CFTC's continuing defense of market structures and trading rules that few participants favor and that do not contribute to market stability in any way. Significant credit should go to the Commissioner for his persistence in compelling the CFTC to revisit…

The questions in Form PF that require firms to provide important financial information are poorly drafted - so much so that the results derived from answering these questions are useless. Notwithstanding the serious though not unsurprising conclusion of the OFR Report (i.e., that the "Form PF submissions may obscure reporting funds' actual risks"), the notion that the OFR had to conduct a scientific study to determine the "precision" (or the absence thereof) of the results of Form PF is at…