The Duck That Broke the Camel’s Back

The cross-border application of Dodd-Frank is one of the thorniest issues now facing the Commodity Futures Trading Commission and the industry it regulates. The CFTC’s policy in this area is set out in “guidance” rather than rules, an unusual format for a matter so critical to the functioning of the derivatives markets. Three trade associations challenged this approach by filing a lawsuit against the CFTC arguing that the guidance should be thrown out and replaced by a normal rule-making process. The court issued its decision on Sept. 16. In the following article, four lawyers assess the ruling and the future of CFTC policy in this area.