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Will Dodd-Frank Reduce Safe Harbor Overreach?

posted by Stephen Lubben

As loyal Slips readers will no doubt recall, I've been something of a broken record (what's the modern version of that saying? Buggy mp3?) on the issue of the safe harbors in the Bankruptcy Code, especially as expanded by the 2005 Amendments. In short, I believe that that special treatment of derivative contracts is both more likely to increase systemic risk than reduce it, and incredibly overbroad, giving parties an incentive to disguise regular contracts as derivatives to get out of the automatic say and the operation of section 365.

But I wonder if the recently enacted Dodd-Frank financial reform legislation might reduce the temptation to claim that every routine supply contract is actually a protected swap. Under the legislation, a "Major Swap Participant" is subject to new capital and margin requirements, if not otherwise subject to prudential regulation. A big energy company that is routinely arguing in chapter 11 cases that their supply contracts are subject to the safe harbors might back itself into these capital and margin rules, especially given that the definition of "swap" under the reform legislation is quite similar to that under the Code.

Comments

Does this not also give debtors an immediate argument that a "swap" is not a "swap" if the counterparty in question has not met these margin requirements as of the claiming of the safeharbor?

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