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Credit Risk Mitigation Techniques -
Supervisory Requirements Changes
Relying on netting and offsetting mechanisms is key to financial institutions in assessing derivatives exposures and
calculating resulting capital adequacy requirements.
Until recently, most supervisory authorities allowed financial firms to rely on internal or external legal reviews and
advice confirming that netting and offsetting mechanisms are legally effective and enforceable in the relevant
jurisdictions. These did not usually involve formal legal opinions.
Recent regulatory developments resulting from the regional implementation of the Basel III framework*, however,
require that credit risk mitigation techniques such as netting and offsetting mechanisms should now be established
using formal legal opinions for all relevant jurisdictions.
This is a significant change for financial firms using derivatives products: an increasing number of banks are
required to obtain legal opinions for both new and existing arrangements. If no opinion exists, netting and
offsetting mechanisms may be challenged, resulting in potentially significant increases in capital requirements.
ISDA membership provides access to legal opinions on the enforceability of derivatives netting, enabling
institutions to reduce credit risk and therefore cut capital requirements in many jurisdictions.
ISDA estimates the cost of a legal netting opinion at approximately $30,000 annually. A distinct legal opinion would
typically be required for each derivative counterparty, and in each jurisdiction.
* Source: CRR Article 194(1) in the European Union.
** Source: Annual Reports - JP Morgan 2014, Wells Fargo 2015, Goldman Sachs 2015, Citi 2015, Bank of America 2015, Morgan Stanley 2015.
13 x
25 x
8 x
3.3 x
40 x
1.7 x
0
5
10
15
20
25
30
35
40
All
Derivatives
Interest
rate
Foreign
exchange
Equity Credit Commodity
Figure 1 illustrates the potential increase in
derivatives mark-to-market resulting from the loss
of the ability to use netting and offsetting
mechanisms. Figures are based on six large US
banks’ reported net and gross derivatives assets.
Based on the ‘All Derivatives’ multiple of 13x, for
each current $1m in derivatives risk-weighted
assets (RWAs), banks could face additional $12m in
RWAs. Assuming a capital ratio of 8% and a capital
cost of 15%, the resulting cost increase would be
$144,000 for each current $1m in derivatives RWAs.
Figure 1**
SINGAPORE
Contact: Lin Ling Tan
Membership Coordinator, Asia
lltan@isda.org
Phone: +65 6653 4170
HONG KONG
Contact: Keith Noyes
Regional Director, Asia Pacific
knoyes@isda.org
Phone: +852 2200 5900
ISDA Membership Contacts:
NEW YORK
Contact: Liz Zazzera
Head of Membership
lzazzera@isda.org
Phone: +212 901 6000
LONDON
Contact: Katie Cramphorn
Assistant Director,
Conferences & Membership
kcramphorn@isda.org
Phone: +44 (0) 20 3808 9715
TOKYO
Contact: Tomoko Morita
Senior Director and
Head of Tokyo Office
tmorita@isda.org
Phone: +813 5200 3301

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ISDA Opinions for Basel Capital Regulatory Relief

  • 1. Credit Risk Mitigation Techniques - Supervisory Requirements Changes Relying on netting and offsetting mechanisms is key to financial institutions in assessing derivatives exposures and calculating resulting capital adequacy requirements. Until recently, most supervisory authorities allowed financial firms to rely on internal or external legal reviews and advice confirming that netting and offsetting mechanisms are legally effective and enforceable in the relevant jurisdictions. These did not usually involve formal legal opinions. Recent regulatory developments resulting from the regional implementation of the Basel III framework*, however, require that credit risk mitigation techniques such as netting and offsetting mechanisms should now be established using formal legal opinions for all relevant jurisdictions. This is a significant change for financial firms using derivatives products: an increasing number of banks are required to obtain legal opinions for both new and existing arrangements. If no opinion exists, netting and offsetting mechanisms may be challenged, resulting in potentially significant increases in capital requirements. ISDA membership provides access to legal opinions on the enforceability of derivatives netting, enabling institutions to reduce credit risk and therefore cut capital requirements in many jurisdictions. ISDA estimates the cost of a legal netting opinion at approximately $30,000 annually. A distinct legal opinion would typically be required for each derivative counterparty, and in each jurisdiction. * Source: CRR Article 194(1) in the European Union. ** Source: Annual Reports - JP Morgan 2014, Wells Fargo 2015, Goldman Sachs 2015, Citi 2015, Bank of America 2015, Morgan Stanley 2015. 13 x 25 x 8 x 3.3 x 40 x 1.7 x 0 5 10 15 20 25 30 35 40 All Derivatives Interest rate Foreign exchange Equity Credit Commodity Figure 1 illustrates the potential increase in derivatives mark-to-market resulting from the loss of the ability to use netting and offsetting mechanisms. Figures are based on six large US banks’ reported net and gross derivatives assets. Based on the ‘All Derivatives’ multiple of 13x, for each current $1m in derivatives risk-weighted assets (RWAs), banks could face additional $12m in RWAs. Assuming a capital ratio of 8% and a capital cost of 15%, the resulting cost increase would be $144,000 for each current $1m in derivatives RWAs. Figure 1** SINGAPORE Contact: Lin Ling Tan Membership Coordinator, Asia lltan@isda.org Phone: +65 6653 4170 HONG KONG Contact: Keith Noyes Regional Director, Asia Pacific knoyes@isda.org Phone: +852 2200 5900 ISDA Membership Contacts: NEW YORK Contact: Liz Zazzera Head of Membership lzazzera@isda.org Phone: +212 901 6000 LONDON Contact: Katie Cramphorn Assistant Director, Conferences & Membership kcramphorn@isda.org Phone: +44 (0) 20 3808 9715 TOKYO Contact: Tomoko Morita Senior Director and Head of Tokyo Office tmorita@isda.org Phone: +813 5200 3301