Third country central counterparty (CCP) supervision as a catalyst for more centralized EU CCP supervision?

ABSTRACT

In early 2022, a UK CCP cancelled some $4 billion of transactions in the war-affected nickel market, triggering outrage from market participants that were in the money. The ‘nickel debacle’ illustrates that CCP risk management and loss absorption mechanisms may result in value redistribution among stakeholders. With CCP stakeholders located in multiple jurisdictions, crisis management decisions from a single-jurisdiction CCP supervisor may not pursue multi-jurisdictional financial stability or a fair balance of stakeholder interests across jurisdictions. Although the case for centralised supervision of EU CCPs thus appears strong, national concerns have persistently blocked increased centralisation. This article re-examines decentralised EU CCP supervision in light of the much-debated post-Brexit centralised EU supervisory regime for systemically important third country CCPs. Two new arguments emerge from this juxtaposition, revealing a dichotomy between the named supervisory regimes that appears hard to justify. First, a decentralised supervisory regime for EU CCPs is difficult to logically square with the policy arguments underpinning the post-Brexit EU supervisory system for systemically important third country CCPs. Secondly, the controversial location policy for ‘too systemically important’ third country CCPs could be more justifiable if the EU were to adopt centralised EU supervision of systemically important EU CCPs.

KEYWORDS:

• CCP
• supervision
• Brexit

Acknowledgments

I am grateful to two anonymous referees, Eddy Wymeersch and participants at the 2022 Ghent-Vanderbilt Business Law Conference for helpful comments. Evidently, all remaining errors are my own. The views expressed in this article are mine and do not necessarily reflect the position of EY or Ghent University.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 N Moloney, ‘Brexit and Financial Services: (Yet) Another Re-Ordering of Institutional Governance for the EU Financial System?’ (2018) 55(175) Common Market Law Review 181.

2 See e.g. BIS, Global OTC derivatives market, table D5.1 <https://stats.bis.org/statx/srs/table/d5.1>.

3 From a legal perspective, CCP interposition either occurs through novation or open offer. With novation, existing contracts that are submitted to the CCP will be novated into two novel contracts, with each of the initial counterparties facing the CCP on the two new contracts. With open offer, the CCP issues a public statement in which it asserts that it aims to be contractually bound if two eligible counterparties come to an agreement about the terms of a transaction. See e.g. C Chamorro-Courtland, ‘Counterparty Substitution in Central Counterparty (CCP) Systems’ (2010) 26 Banking and Finance Law Review 519–42.

4 From an economic perspective, a CCP may thus be regarded as a ‘commitment mechanism’ seeking to assure performance of contractual obligations. See RT Cox and RS Steigerwald, A CCP is a CCP is a CCP, Policy Discussion Paper Federal Reserve Bank of Chicago no. 2017-01, April 2017, 2 <https://www.chicagofed.org/publications/policy-discussion-papers/2017/pdp-1>.

5 Market participants that are not recognized as clearing members by the CCP because they cannot – or do not want to – meet the CCP access requirements may still have their contracts cleared through a CCP. To that end, these so-called ‘clients’ (in US terminology: ‘customers’) have to establish a contractual relationship with a clearing member of a CCP, who in turn has access to the CCP.

6 Margin requirements oblige clearing members to provide collateral (i.e. cash or highly liquid financial assets) as a security against the counterparty risk that the CCP faces vis-à-vis the clearing members, i.e. the costs that may arise upon clearing member default.

7 Cf. e.g. M Weber, ‘Central Counterparties in the OTC Derivatives Market from the Perspective of the Legal Theory of Finance, Financial Market Stability and the Public Good’ (2016) 17(71) European Business Organization Law Review 83; Y Yadav, ‘Clearinghouses and Regulation by Proxy’ (2014) 43(161) Georgia Journal of International and Comparative Law 169.

8 Cf. e.g. H Peirce, ‘Derivatives Clearinghouses: Clearing the Way to Failure’ (2016) 64(589) Cleveland State Law Review 602; C Pirrong, ‘The Clearinghouse Cure’ (2008) 31(44) Regulation 45.

9 At the time of the adoption of the principles, the CPMI was known as the Committee on Payment and Settlement Systems (CPSS).

10 CPSS-IOSCO, Principles for Financial Market Infrastructures, April 2012, 182 p <https://www.bis.org/cpmi/publ/d101a.pdf>.

11 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, OJ L 201, 27 July 2012, 1.

12 Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 648/2012 as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories, OJ L 141, 28 May 2019, 42.

13 Regulation (EU) 2019/2099 of the European Parliament and of the Council of 23 October 2019 amending Regulation (EU) No 648/2012 as regards the procedures and authorities involved for the authorisation of CCPs and requirements for the recognition of third country CCPs, OJ L 322, 12 December 2019, 1.

14 Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132, OJ L 22, 22 January 2021, 1.

15 See most prominently: G20, Leaders’ Statement: The Pittsburgh Summit, 24–25 September 2009, recital 13, bullet 3 <https://g20.org/en/g20/Documents/2009-Pittsburgh_Declaration.pdf>.

16 P Norman, The Risk Controllers: Central Counterparty Clearing in Globalised Financial Markets (Wiley 2011) 298 and 313. Cf. CPSS, Market structure developments in the clearing industry: implications for financial stability, November 2010, 20 <https://www.bis.org/cpmi/publ/d92.htm>.

17 BS Bernanke, Clearinghouses, Financial Stability, and Financial Reform, remarks at the 2011 Federal Reserve Bank of Atlanta Financial Markets Conference, Stone Mountain, Georgia, 4 April 2011, 9 <https://www.federalreserve.gov/newsevents/speech/files/bernanke20110404a.pdf>.

18 Cf. e.g. H Jones and D Milliken, ‘UK will resist “dubious” EU pressure on banks, says BoE’s Bailey’ Reuters (24 February 2021) <https://www.reuters.com/article/britain-eu-bailey/update-1-uk-will-resist-eu-pressure-on-banks-over-clearing-boes-bailey-idUSL1N2KU1N9>; H Jones, ‘Brussels says it won't be rushed on City of London access to EU’ Reuters (19 January 2021) <https://www.reuters.com/article/idUSL8N2JU5DX>.

19 See e.g. CFTC, Registration with Alternative Compliance for Non-U.S. Derivatives Clearing Organizations, Notice of proposed rulemaking, 84 FR 34819 (19 July 2019), at 34835 (statement by CFTC Commissioner Quintenz). Cf. P Stafford, ‘US lawmakers called EU derivatives markets plans “retribution”’ Financial Times (26 June 2019) <https://www.ft.com/content/f720b74e-982c-11e9-8cfb-30c211dcd229>.

20 Art. 14(1) EMIR. See more in detail on the scope of the CCP authorization requirement under EMIR: E Callens, Regulation of Central Counterparties (CCPs) in Light of Systemic Risk: CCP Market Access Regimes in Global Markets (Intersentia 2022), 403–7.

21 Art. 17(4)(1) EMIR.

22 See title IV EMIR.

23 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L 166, 11 June 1998, 45.

24 Art. 17(4)(1) EMIR.

25 See ESMA, List of Central Counterparties authorised to offer services and activities in the Union <https://www.esma.europa.eu/sites/default/files/library/ccps_authorised_under_emir.pdf> accessed 10 November 2022.

26 In Belgium, for example, the Financial Services and Markets Authority (FSMA) and the National Bank of Belgium (NBB) were co-designated as NCAs, but no CCP has been established in Belgium so far.

27 Art. 14(2) EMIR. See in this context also art. 15(2) EMIR.

28 Art. 18(1) EMIR. In addition to the EMIR colleges and in line with good international practice, the lead supervisors of certain regionally or globally active CCPs have also established ‘global CCP colleges’, which seek to unite all relevant supervisors within a single college. Cf. IOSCO, Lessons Learned from the Use of Global Supervisory Colleges, January 2022 <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD696.pdf>.

29 European Commission, Commission Staff Working Document: Impact assessment accompanying EMIR 2.2, 13 June 2017, SWD(2017) 246 final, 10.

30 For the banks that are subject to ECB supervision, this will be the ECB. If the ECB is also part of the CCP college in its capacity of central bank of issue, it will have two votes (art. 19(3)(3) EMIR).

31 The CCP Supervisory Committee is a permanent internal ESMA committee that is responsible for certain CCP-related matters and which is structurally separated from the other functions of ESMA (art. 24a EMIR). Ex art. 41 ESMA Regulation, the Board of Supervisors of ESMA may establish internal committees to which it may delegate specific tasks that are attributed to the Board. The ESMA Regulation refers to Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, OJ L 331, 15 December 2010, 84. Voting powers within the CCP Supervisory Committee are divided between three full-time independent members that have been appointed by ESMA’s Board of Supervisors and the NCAs of the member states that have an authorized CCP within their jurisdiction. See on the CCP Supervisory Committee also: ESMA, Terms of Reference for the CCP Supervisory Committee, 13 November 2019, ESMA22-328-271 <https://www.esma.europa.eu/sites/default/files/library/esma22-328-271_terms_of_reference_ccp_supervisory_committee.pdf>.

32 See art. 19(3)(4) EMIR.

33 See more in detail: art. 18(2) EMIR.

34 Art. 19 EMIR.

35 Art. 17(4) EMIR. See also arts. 32(1)(4), 35(1)(2), and 49(1)(2) EMIR. If the NCA disagrees with the veto from the EMIR college, it may refer the matter to ESMA in accordance with art. 19 ESMA Regulation (art. 17(4)(6) EMIR). See below for full reference to the ESMA Regulation.

36 Art. 17(4)(4) EMIR.

37 The ESMA Regulation refers to Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, OJ L 331, 15 December 2010, 84.

38 See, ultimately, also: art. 19(4) ESMA Regulation.

39 See also: art. 21 ESMA Regulation.

40 Cf. D. E. ALFORD, ‘Supervisory Colleges: The Global Financial Crisis and Improving International Supervisory Coordination’ (2010) 24(57) Emory International Law Review 58.

41 Art. 21 EMIR.

42 MiFID II refers to Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173, 12 June 2014, 349.

43 Art. 69 MiFID II.

44 Art. 22(2) EMIR. See, however, on the withdrawal of authorization: art. 20 EMIR.

45 Art. 22(3) EMIR.

46 Art. 49(1)(1) EMIR.

47 Art. 49(1e) EMIR.

48 ESMA also holds autonomous powers that may function as a second counterbalance to the supervisory primacy of the NCA. That is, ESMA has the power to request a formal opinion from the European Commission requiring an NCA that has incorrectly applied EMIR to take all actions necessary to rectify the situation and comply with EMIR. See art. 17(5)(1) EMIR in conjunction with art. 17 ESMA Regulation.

49 Art. 23a(1) EMIR.

50 See arts. 23a and 24a EMIR.

51 Art. 25 EMIR.

52 Art. 25 EMIR; Commission Delegated Regulation (EU) 2020/1303 of 14 July 2020 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to the criteria that ESMA should take into account to determine whether a central counterparty established in a third country is systemically important or likely to become systemically important for the financial stability of the Union or of one or more of its Member States, OJ L 305, 21 September 2020, 7.

53 ESMA, List of third-country central counterparties recognized to offer services and activities in the Union, ESMA70-152-348, <https://www.esma.europa.eu/sites/default/files/library/third-country_ccps_recognised_under_emir.pdf> accessed 4 January 2021.

54 ESMA (n 53).

55 Art. 25(2) and (6) EMIR.

56 Art. 25(2b) EMIR.

57 Art. 25(2b)(a) EMIR. These provisions consist of arts. 16 and 26–54 EMIR. Only art. 7 EMIR regarding non-discriminatory CCP access requirements is exempted. It must be noted that for the assessment of T2 CCP compliance with EMIR, ESMA shall consider the extent to which a CCP’s compliance with those requirements may be deemed satisfied by its compliance with comparable requirements applicable in its home jurisdiction (‘comparable compliance’). Arts. 25(2b)(a) and 25a EMIR. See more in detail: Commission Delegated Regulation (EU) 2020/1304 of 14 July 2020 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to the minimum elements to be assessed by ESMA when assessing third-country CCPs’ requests for comparable compliance and the modalities and conditions of that assessment, OJ L 305, 21 September 2020, 13.

58 Art. 25(2c)(1) EMIR.

59 Art. 25(2c)(1) EMIR.

60 Art. 25(2c)(2) EMIR.

61 ESMA, Assessment Report under Article 25(2c) of EMIR: Assessment of LCH Ltd and ICE Clear Europe Ltd, 16 December 2021, ESMA91-372-1945, 141, <https://www.esma.europa.eu/sites/default/files/library/esma91-372-1945_redacted_assessment_report_under_article_252c_of_emir_ukccps_final_1of2.pdf> (part one) and <https://www.esma.europa.eu/sites/default/files/library/esma91-372-1945_redacted_assessment_report_under_article_252c_of_emir_ukccps_final_2of2.pdf> (part two).

62 E Callens, Regulation of Central Counterparties (CCPs) in Light of Systemic Risk: CCP Market Access Regimes in Global Markets (Intersentia, 2022), 502 et seq.

63 ESMA, Assessment Report under Article 25(2c) of EMIR: Assessment of LCH Ltd and ICE Clear Europe Ltd, 16 December 2021, ESMA91-372-1945, 141, <https://www.esma.europa.eu/sites/default/files/library/esma91-372-1945_redacted_assessment_report_under_article_252c_of_emir_ukccps_final_1of2.pdf> (part one) and <https://www.esma.europa.eu/sites/default/files/library/esma91-372-1945_redacted_assessment_report_under_article_252c_of_emir_ukccps_final_2of2.pdf> (part two).

64 Art. 25(2c)(4)(a) and (6) EMIR.

65 Prior to EMIR 2.2, the European Central Bank (ECB) had already tried to establish a form of CCP location policy, requiring CCPs with an average daily net exposure of more than five billion euros in euro-denominated derivatives to be incorporated in the euro area (ECB, Eurosystem Oversight Policy Framework, July 2011, 10 <https://www.ecb.europa.eu/pub/pdf/other/eurosystemoversightpolicyframework2011en.pdf>). However, the attempt from the ECB to establish this location policy failed because the policy was successfully challenged by the UK and annulled by the General Court of the EU in 2015 for lack of clear legal basis. See Case T–496/11, UK v. ECB, EU:T:2015:133. See for comments on the decision, e.g.: E Ananiadis-Bassias, ‘The ECB’s ‘Location Policy’ for Central Counterparties: Is the General Court Drawing a Line, or Taking One Step Back to Take Two Steps Forward?’ (2016) 41 European Law Review 122–30; H Marjosola, ‘Missing Pieces in the Patchwork of EU Financial Stability Regime? The Case of Central Counterparties (2015) 52 Common Market Law Review 1491–528. For the updated version of the Eurosystem oversight policy framework, see: ECB, Eurosystem oversight policy framework: Revised version (July 2016) <https://www.ecb.europa.eu/pub/pdf/other/eurosystemoversightpolicyframework201607.en.pdf>.

66 See, however: ESMA, Methodology for assessing a Third Country CCP under Article 25(2c) of EMIR, 12 July 2021, ESMA91-372-1436, 14 p <https://www.esma.europa.eu/sites/default/files/library/methodology_for_assessing_a_tc_ccp_under_article_252c_of_emir_.pdf>.

67 See e.g. DD Stump, ‘We must rethink our clearing house rules: The EU and US should drop duplicative registration requirements’ Financial Times (24 January 2019) <https://www.ft.com/content/ebed650e-1fbc-11e9-a46f-08f9738d6b2b>. Stump is a CFTC Commissioner.

68 Art. 25b(1)(1) EMIR. See also art. 25b(1)(2) and 25b(2) EMIR.

69 M Lehmann, ‘Brexit and CCP Supervision: From Extraterritoriality to a Model of Shared Control’, European Banking Institute Working Paper Series 2021 – no. 101 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3904130>.

70 Arts. 25g and 25h EMIR.

71 Art. 25q EMIR. See also: art. 25i EMIR; art. 25j EMIR; art. 25l EMIR; art. 25p(1)(1)(c) EMIR; art. 25b(2) EMIR; Commission Delegated Regulation (EU) 2021/731 of 26 January 2021 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to rules of procedure for penalties imposed on third-country central counterparties or related third parties by the European Securities and Markets Authority, OJ L 158, 6 May 2021, 1.

72 Art. 25k(1)(a) and (c) EMIR.

73 EUROPEAN COMMISSION, Feedback statement on the public consultation on the operations of the European Supervisory Authorities having taken place from 21 March to 16 May 2017, 20 June 2017, 14 <https://ec.europa.eu/info/sites/info/files/2017-esas-operations-summary-of-responses_en.pdf>. Cf. e.g., KE Sørensen, ‘Enforcement of Harmonization Relying on the Country of Origin Principle’ (2019) 25 European Public Law (381) 386 et seq.

74 IMF, Euro Area Policies: Financial Sector Assessment Program. Technical Note—Supervision and Oversight of Central Counterparties and Central Securities Depositories, IMF Country Report no. 18/227, July 2018, 12 <http://www.astrid-online.it/static/upload/imf_/imf_ue_18-227.pdf>; European Commission, Commission Staff Working Document: Impact assessment accompanying EMIR 2.2, 13 June 2017, SWD(2017) 246 final, 10.

75 ESMA, Peer Review under EMIR Art. 21: Supervisory activities on CCPs’ Margin and Collateral requirements, 22 December 2016, ESMA/2016/1683 <https://www.esma.europa.eu/sites/default/files/library/2016-1683_ccp_peer_review_report.pdf>.

76 Cf. IMF, Euro Area Policies: Financial Sector Assessment Program. Technical Note – Supervision and Oversight of Central Counterparties and Central Securities Depositories, IMF Country Report no. 18/227, July 2018, 12 <http://www.astrid-online.it/static/upload/imf_/imf_ue_18-227.pdf>; A Unterman, ‘Regulating Global FMIs: Achieving Stability and Efficiency across Borders’ in M Diehl, B Alexandrova-Kabadjova, R Heuver and S Martínez-Jaramillo (eds), Analyzing the Economics of Financial Market Infrastructures (IGI Global, 2016) (41) 46; F Wendt, ‘Central Counterparties: Addressing their Too Important to Fail Nature’, IMF Working Paper 15/21, 2015, 12 <https://www.imf.org/en/Publications/WP/Issues/2016/12/31/Central-Counterparties-Addressing-their-Too-Important-to-Fail-Nature-42637>.

77 M Lehmann, ‘Brexit and CCP Supervision: From Extraterritoriality to a Model of Shared Control’, European Banking Institute Working Paper Series 2021 – no. 101, 9 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3904130>.

78 During the banking crisis in Iceland, resolution authorities carved out domestic activities of failing banks and transferred them to a ‘new’ bank. See P Baudino, JT Sturluson and J-P Svoronos, ‘The banking crisis in Iceland’, FSI Crisis Management Series, no 1, March 2020, 15 et seq. (no. 39 et seq.) <https://www.bis.org/fsi/fsicms1.pdf>.

79 See for a good overview of the events during the nickel debacle: IMF, Global Financial Stability Report: Shockwaves from the War in Ukraine Test the Financial System’s Resilience, April 2022, 38–39, <https://www.imf.org/en/Publications/GFSR/Issues/2022/04/19/global-financial-stability-report-april-2022>.

80 LME, Notice 22/057: Nickel Market Update, 10 March 2022 <https://www.lme.com/-/media/Files/News/Notices/2022/03/TRADING-22-057-NICKEL-MARKET-UPDATE_.pdf>.

81 See on the power to suspend trading: LME, London Metal Exchange: Rules and Regulations, pt. 3, no. 1.3, 1 June 2022 <https://www.lme.com/Company/Market-Regulation/Rules/Rule-book>.

82 LME, Notice 22/052: Suspension of LME Nickel Market, 8 March 2022 <https://www.isda.org/a/em0gE/Trading-22-052-Suspensino-of-LME-Nickel-Market.pdf>; LME, Notice 22/053: Nickel Suspension – Further Information: Delivery Deferral and Trade Cancellation, 8 March 2022 <https://www.lme.com/api/sitecore/MemberNoticesSearchApi/Download?id=11ffba2e-b241-462d-b430-79be927c300f>.

83 In early April, the FCA and BoE jointly announced that they would be reviewing what had happened during the nickel debacle. See: FCA, BOE, Joint statement from UK Financial Regulation Authorities on London Metal Exchange and LME Clear, 4 April 2022 <https://www.fca.org.uk/news/statements/uk-financial-regulation-authorities-london-metal-exchange-lme-clear>.

84 See e.g., LCH, General Regulations of LCH Limited, April 2022, regulation 37(d) <https://www.lch.com/system/files/media_root/220425_General%20Regulations_Overnight%20Funding%20Account%20%2B%20Collateral%20%2B%20Standard%20Collateral%20Definitions_CLEAN.pdf>.

85 LME Clear, LME Clear Limited: Rules and Procedures, 19 July 2021, rule 6.15 <https://www.lme.com/en/clearing/rules-and-regulations>. See also: LME, London Metal Exchange: Rules and Regulations, pt. 3, no. 17.1, 1 June 2022 <https://www.lme.com/Company/Market-Regulation/Rules/Rule-book>.

86 See e.g. S Li and E Onstad, ‘Hedge fund Elliott sues LME for $456 million over nickel trading halt’, Reuters (6 June 2022) <https://www.reuters.com/markets/commodities/elliott-associates-sues-lme-456-mln-over-nickel-trading-halt-hkex-2022-06-06/>; P Desai and H Jones, ‘Explainer: LME under the regulatory spotlight after nickel debacle’, Reuters (11 April 2022) <https://www.reuters.com/world/uk/lme-under-regulatory-spotlight-after-nickel-debacle-2022-04-11/>; J Wallace, ‘Inside the Nickel Market Failure: Massive Trades the Exchange Didn’t See’, Wall Street Journal (18 March 2022) <https://www.wsj.com/articles/inside-the-nickel-market-failure-massive-trades-the-exchange-didnt-see-11647598557>.

87 Cf. CP Buttigieg, ‘Governance of Securities Regulation and Supervision: Quo Vadis Europa’ (2015) 21 Columbia Journal of European Law (411) 445 (arguing that large cross-border financial institutions should be subject to centralized supervision while other institutions can remain subject to national supervision).

88 Art. 23(1) EMIR.

89 H Marjosola, ‘Missing Pieces in the Patchwork of EU Financial Stability Regime? The Case of Central Counterparties’ (2015) Common Market Law Review (1491) 1511.

90 D Schoenmaker, ‘The Financial Trilemma’ (2011) 111 Economics Letters 57–59. Cf. generally: F Lupo-Pasini, ‘Economic Stability and Economic Governance in the Euro Area: What the European Crisis Can Teach on the Limits of Economic Integration’ (2013) 16 Journal of International Economic Law 211–56.

91 The three components of the financial trilemma can all be measured along a sliding scale. See F Lupo-Pasini, RP Buckley, ‘Global Systemic Risk and International Regulatory Coordination: Squaring Sovereignty and Financial Stability’ (2015) 30 American University International Law Review (665) 719.

92 C Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 42; N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (2) Rules in Action’ (2011) 12 European Business Organization Law Review 177–225.

93 P-H Verdier, ‘Mutual Recognition in International Finance’ (2011) 52 Harvard International Law Journal (55) 65; T Wei, ‘The Equivalence Approach to Securities Regulation’ (2007) 27 Northwestern Journal of International Law and Business (255) 256.

94 N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (1) Rule-Making’ (2011) 12 European Business Organization Law Review (41) 70–71; R Romano, ‘For Diversity in the International Regulation of Financial Institutions: Critiquing and Recalibrating the Basel Architecture’ (2014) 31 Yale Journal on Regulation 1–76; SJ Griffith, ‘Substituted Compliance and Systemic Risk: How to Make a Global Market in Derivatives Regulation’ (2014) 98 Minnesota Law Review (1291) 1349; R Romano, ‘Against Financial Regulation Harmonization: A Comment’, Yale Law and Economics Research Paper no. 414, 2010, 17 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1697348>.

95 P-H Verdier, ‘Mutual Recognition in International Finance’ (2011) 52 Harvard International Law Journal (55) 65; S Gadinis, ‘The Politics of Competition in International Financial Regulation’ (2008) 49 Harvard International Law Journal (447) 456; T Wei, ‘The Equivalence Approach to Securities Regulation’ (2007) 27 Northwestern Journal of International Law and Business (255) 287–88; PB Griffin, ‘The Delaware Effect: Keeping the Tiger in its Cage. The European Experience of Mutual Recognition in Financial Services’ (2001) 7 Columbia Journal of European Law (337) 338; R Romano, ‘The Need for Competition in International Securities Regulation’ (2001) 2 Theoretical Inquiries in Law (387) 388. Competition among regulators or supervisors is often understood to lead to a ‘race to the bottom’ with a degradation of norms applicable to market participants. This risk should be balances against the potential benefit of regulatory or supervisory innovation or experimentation.

96 Cf. European Commission, Enforcing EU law for a Europe that delivers, 13 October 2022, COM(2022) 518 final, 1 <https://commission.europa.eu/system/files/2022-10/com_2022_518_1_en.pdf> (stating that provisions of EU law should have the same meaning and are to be applied in the same way in all member states).

97 See for a more positive take on the potential of supervisory diversity as a counterweight against regulatory homogeneity: N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (2) Rules in Action’ (2011) 12 European Business Organization Law Review (177) 186–87.

98 European Parliament, Resolution on derivatives markets: future policy actions, 15 June 2010, P7_TA(2010)0206, no. 16 <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52010IP0206>.

99 N Moloney, The Age of ESMA: Governing EU Financial Markets (Hart Publishing 2018), 298; P Norman, The Risk Controllers: Central Counterparty Clearing in Globalised Financial Markets (Wiley 2011), 342. Cf. generally C Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability after the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 44–45; N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (1) Rule-Making’ (2011) 12 European Business Organization Law Review (41) 79. Cf. European Commission, Feedback statement on the public consultation on the operations of the European Supervisory Authorities having taken place from 21 March to 16 May 2017, 20 June 2017, 14 <https://ec.europa.eu/info/sites/info/files/2017-esas-operations-summary-of-responses_en.pdf>.

100 European Commission, Commission Staff Working Document: Impact assessment accompanying EMIR 2.2, 13 June 2017, SWD(2017) 246 final, 26.

101 J Friedrich and M Thiemann, A new governance architecture for European financial markets? Towards a European supervision of CCPs, SAFE White Paper no. 53, June 2018, 3, <https://www.econstor.eu/bitstream/10419/181874/1/1029469415.pdf>. Cf. N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (2) Rules in Action’ (2011) 12 European Business Organization Law Review (177) 210.

102 See arts. 7(g), 27(2), and 45 CCPRRR. The two largest EU CCPs (LCH SA (established in France) and Eurex Clearing AG (established in Germany)) also have banking licenses and fall within scope of EU banking legislation. However, CCPs authorized under EMIR have been excluded from the scope of the Single Resolution Mechanism (SRM) Regulation (art. 94 CCPRRR). The SRM Regulation refers to Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010, OJ L 225, 30 July 2014, 1.

103 EACH, An effective recovery and resolution regime for CCPs: Additional subjects to be considered, June 2015, 10-11 <https://www.eachccp.eu/wp-content/uploads/2015/07/EACH-paper-Additional-subjects-An-effective-Recovery-and-Resolution-Regime-for-CCPs-Jun15.pdf>.

104 Art. 67(4) SRM Regulation.

105 European Commission, Commission Staff Working Document: Impact assessment accompanying EMIR 2.2, 13 June 2017, SWD(2017) 246 final, 60. Cf. R Canini, ‘Central Counterparties are Too Big for the European Securities and Markets Authority (Alone): Constructive Critique of the 2019 CCP Supervision Regulation’ (2021) 22 European Business Organization Law Review 673–717.

106 European Commission, Commission Staff Working Document: Impact assessment accompanying EMIR 2.2, 13 June 2017, SWD(2017) 246 final, 60.

107 European Commission (n 106).

108 Cf. N Moloney, The Age of ESMA: Governing EU Financial Markets (Hart Publishing 2018) 296.

109 De Larosière Group, Report from the High-Level Group on Financial Supervision in the EU, February 2009 <http://ec.europa.eu/economy_finance/publications/pages/publication14527_en.pdf>, 85 p.

110 De Larosière Group, Report from the High-Level Group on Financial Supervision in the EU, February 2009, 75, <http://ec.europa.eu/economy_finance/publications/pages/publication14527_en.pdf>.

111 For the member states in which NCAs do currently not hold supervisory powers over (large) CCPs, on the other hand, this point may exactly be a reason to support centralized CCP supervision at the EU-level.

112 Cf. D Howarth and L Quaglia, ‘Brexit and the Battle for Financial Services’ (2018) 25 Journal of European Public Policy (1118) 1128.

113 N Moloney, The Age of ESMA: Governing EU Financial Markets (Hart Publishing 2018) 297.

114 Case 9-56, Meroni v. High Authority of the European Coal and Steel Community, EU:C:1958:7, at p. 152. See generally e.g. the seminal paper of Griller and Orator: S. Griller and A Orator, ‘Everything Under Control? The ‘Way Forward’ for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 European Law Review 3–35.

115 Joined Cases C-154/04 and C-155/04, Alliance for Natural Health and others v. Secretary of State for Health and National Assembly Wales, EU:C:2005:449, at para. 90; Case 9-56, Meroni v. High Authority of the European Coal and Steel Community, EU:C:1958:7. Cf. N Moloney, EU Securities and Financial Markets Regulation (Oxford University Press 2014) 909.

116 E Chiti, ‘In the Aftermath of the Crisis – The EU Administrative System Between Impediments and Momentum’ in CELS (ed.), Cambridge Yearbook of European Legal Studies 2015, vol. 17 (Cambridge University Press 2015) (311) 317; C Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15 European Business Organization Law Review (1) 40 et seq.; E Wymeersch, ‘The European Financial Supervisory Authorities or ESAs’ in E Wymeersch, KJ Hopt, G Ferrarini (eds), Financial Regulation and Supervision: A Post-Crisis Analysis (Oxford University Press 2012) (232) 238; M Chamon, ‘EU Agencies Between Meroni and Romano or the Devil and the Deep Blue Sea’ (2011) 48 Common Market Law Review 1055–75; N Moloney, ‘The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (2) Rules in Action’ (2011) 12 European Business Organization Law Review (177) 221; M Chamon, ‘EU Agencies: Does the Meroni Doctrine Make Sense?’ (2010) 17 Maastricht Journal of European and Comparative Law 281–305.

117 M Simoncini, ‘The Erosion of the Meroni Doctrine: The Case of the European Aviation Safety Agency’ (2015) 21 European Public Law (309) 310; C Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 31-32; E Wymeersch, ‘The European Financial Supervisory Authorities or ESAs’ in E Wymeersch, KJ Hopt and G Ferrarini (eds), Financial Regulation and Supervision: A Post-Crisis Analysis (Oxford University Press 2012), (232) 238. See, however: E Chiti, ‘In the Aftermath of the Crisis – The EU Administrative System Between Impediments and Momentum’ in CELS (ed.), Cambridge Yearbook of European Legal Studies 2015, vol. 17 (Cambridge University Press 2015) (311) 316–17 (arguing that EU agencies may be granted powers implying a degree of discretion to the extent that this discretion has been previously framed by a EU legislative act so that arbitrary exercise of the discretionary power is impossible).

118 Or, in duly justified specific cases and in the cases provided for in arts. 24 and 26 TEU to the Council of the EU.

119 See also Case 98/80, Romano v. Institut national d'assurance maladie-invalidité, EU:C:1981:104.

120 Case C–270/12, UK v. European Parliament and Council of the EU, EU:C:2014:18, para. 41 et seq. Cf. G Lo Schiavo and A Türk, ‘The Institutional Architecture of EU Financial Regulation: The Case of the European Supervisory Authorities in the Aftermath of the European Crisis’ in LS Talani (ed.), Europe in Crisis: A Structural Analysis (Palgrave Macmillan 2016) (89) 98.

121 Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps, OJ L 086, 24 March 2012, 1.

122 Case C–270/12, UK v. European Parliament and Council of the EU, EU:C:2014:18, para. 53. See more in detail on the ‘short selling case’: G Lo Schiavo, ‘A Judicial Re-Thinking on the Delegation of Powers to European Agencies under EU Law? Comment on Case C-270/12 UK v. Council and Parliament’ (2015) 16 German Law Journal 315–35; C. Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15 European Business Organization Law Review 1–57.

123 C Di Noia, M. GARGANTINI, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 15.

124 E Wymeersch, ‘The Future of Financial Regulation and Supervision in Europe’ (2005) 42 Common Market Law Review (987) 988.

125 C Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 14; J-P Schneider, ‘A Common Framework for Decentralized EU Agencies and the Meroni Doctrine’ (2009) 61(special issue, 2009) Administrative Law Review (29) 30; E Wymeersch, ‘The Structure of Financial Supervision in Europe: About Single Financial Supervisors, Twin Peaks and Multiple Financial Supervisors’ (2007) 8 European Business Organization Law Review (237) 242.

126 Art. 55 et seq. EMIR.

127 Art. 14 et seq. Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies, OJ L 302, 17 November 2009, 1.

128 Art. 14 et seq. CRA Regulation; art. 55 et seq. EMIR.

129 Cf. C. Di Noia and M Gargantini, ‘Unleashing the European Securities and Markets Authority: Governance and Accountability After the ECJ Decision on the Short Selling Regulation (Case C-270/12)’ (2014) 15(1) European Business Organization Law Review 30–31.

130 Cf. T Wei, ‘The Equivalence Approach to Securities Regulation’ (2007) 27 Northwestern Journal of International Law and Business (255) 259. See also: SEC, Joint Press Statement of Leaders on Operating Principles and Areas of Exploration in the Regulation of the Cross-Border OTC Derivatives Market, 4 December 2012 <https://www.sec.gov/news/press-release/2012-2012-251htm>; S Gadinis, ‘The Politics of Competition in International Financial Regulation’ (2008) 49 Harvard International Law Journal (447) 459.

131 See for – thus far largely unsuccessful – academic proposals that envision more centralized supervision in international finance: M Lehmann and J Schürger, ‘Multilateralizing Deference – A Proposal for Reforming Global Financial Law’ (2022) 41 Review of Banking and Financial Law forthcoming (proposing to let an international institution issue a non-binding opinion on deference); A Unterman, ‘Regulating Global FMIs: Achieving Stability and Efficiency across Borders’ in M Diehl, B Alexandrova-Kabadjova, R Heuver, S Martínez-Jaramillo (eds), Analyzing the Economics of Financial Market Infrastructures (IGI Global 2016) (41) 65 (envisioning a centralized international institution that would verify compliance with internationally agreed minimum requirements, allowing, upon positive assessment, a CCP to operate in other jurisdictions than the one in which it is established); A Artamonov, ‘Cross-Border Application of OTC Derivatives Rules: Revisiting the Substituted Compliance Approach’ (2015) 1 Journal of Financial Regulation (206) 222–23 (proposing that decisions with respect to comparability of regulatory and supervisory frameworks be made by a neutral international organization such as the Financial Stability Board (FSB)); EJ Pan, ‘Challenge of International Cooperation and Institutional Design in Financial Supervision: Beyond Transgovernmental Networks’ (2010) 11 Chicago Journal of International Law 243–84 (proposing an international administrative law model for the supervision of financial markets regulation). Cf. P-H Conac, ‘The International Organisation of Securities Commissions (IOSCO), Europe, Brexit, and Rethinking Cross-border Regulation: A Call for a World Finance Organisation’ (2020) 17 European Company and Financial Law Review 72–98; CM Baker, ‘When Regulators Collide: Financial Market Stability, Systemic Risk, Clearinghouses, and CDS’ (2016) 10 Virginia Law and Business Review (343) 384–94; EF Greene and JL Boehm, ‘The Limits of “Name-And-Shame” in International Financial Regulation’ (2012) 97 Cornell Law Review (1083) 1136–37.

132 JC Coffee, ‘Extraterritorial Financial Regulation: Why E.T. Can’t Come Home’ (2014) 99 Cornell Law Review (1259) 1262. Cf. e.g. EC Chaffee, ‘Contemplating the Endgame: An Evolutionary Model for the Harmonization and Centralization of International Securities Regulation’ (2010) 79 University of Cincinnati Law Review 587–618 (envisioning globally harmonized and centralized securities regulation but admitting that this scenario is – at least in the short run – unrealistic).

133 A Unterman, ‘Regulating Global FMIs: Achieving Stability and Efficiency across Borders’ in M Diehl, B Alexandrova-Kabadjova, R Heuver, S Martínez-Jaramillo (eds), Analyzing the Economics of Financial Market Infrastructures (IGI Global 2016) (41) 64.

134 Cf. in the context of securities regulation: C Brummer, ‘Post-American Securities Regulation’ (2010) 98 California Law Review (327) 349–55.

135 G20, G20 Leaders’ Declaration St Petersburg, 6 September 2013, no. 71 <http://www.g20.utoronto.ca/2013/2013-0906-declaration.html>. See also: ODRG, Report of the OTC Derivatives Regulators Group (ODRG) to G20 Leaders on Cross-Border Implementation Issues, November 2015 <https://www.esma.europa.eu/sites/default/files/library/2015/11/odrg-06-11-15_-_report_of_the_odrg_to_the_g20_nov_final_06112015.pdf>, 10 p.; ODRG, Report of the OTC Derivatives Regulators Group (ODRG) to G20 Leaders on Cross-Border Implementation Issues, November 2014 <https://www.esma.europa.eu/sites/default/files/library/2015/11/odrg_report_7_november_2014.pdf>, 10 p.

136 See generally: IOSCO, Good Practices on Processes for Deference: Report, June 2020 <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD659.pdf>.

137 Cf. IOSCO, Market Fragmentation & Cross-border Regulation: Report, June 2019, 3 <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD629.pdf>. Mutual recognition refers to the notion that regulators and supervisors from different jurisdictions reciprocally recognize that the concerned foreign legal and supervisory regimes are sufficiently similar to allow that compliance with the foreign legal and supervisory framework is deemed to function as a (partial) substitute for compliance with the domestic framework. Cf. P-H Verdier ‘Mutual Recognition in International Finance’ (2011) 52 Harvard International Law Journal (55) 57 and 63; PB Griffin, ‘The Delaware Effect: Keeping the Tiger in its Cage. The European Experience of Mutual Recognition in Financial Services’ (2001) 7 Columbia Journal of European Law (337) 337. Substituted compliance refers to the unilateral decision to defer to a foreign legal and supervisory framework as a (partial) substitute for compliance with the domestic framework. See, e.g. E Tafara and RJ Peterson, ‘A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework’ (2007) 48 Harvard International Law Journal 31–68.

138 See on national treatment in general: P-H Verdier, ‘Mutual Recognition in International Finance’ (2011) 52 Harvard International Law Journal (55) 63; SK Schmidt, ‘Mutual Recognition as a New Mode of Governance’ (2007) 14 Journal of European Public Policy (667) 671. Cf. IOSCO, IOSCO Task Force on Cross-Border Regulation: Final Report, September 2015, 6 et seq. <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD507.pdf>.

139 CFTC, Exemption From Derivatives Clearing Organization Registration, Supplemental notice of proposed rulemaking, 84 FR 35456 (July 23, 2019), at 35479 (statement by CFTC Commissioner Stump).

140 See e.g. A Unterman, ‘Regulating Global FMIs: Achieving Stability and Efficiency across Borders’ in M Diehl, B Alexandrova-Kabadjova, R Heuver, S Martínez-jaramillo (eds.), Analyzing the Economics of Financial Market Infrastructures (IGI Global 2016) (41) 49.

141 Cf. N Moloney, ‘Reflections on the EU Third Country Regime for Capital Markets in the Shadow of Brexit’ (2020) 17 European Company and Financial Law Review (35) 59.

142 Regulatory and supervisory powers related to US securities and derivatives markets have traditionally been divided between the CFTC and SEC. Largely oversimplified, the CTFC has jurisdiction for derivatives and the SEC has jurisdiction for securities. Complications in this division of powers arise for financial products that touch upon the jurisdiction attached to both securities and derivatives (e.g. derivatives referencing securities). See in more detail: E Callens, Regulation of Central Counterparties (CCPs) in Light of Systemic Risk: CCP Market Access Regimes in Global Markets (Intersentia 2022) 267 et seq.

143 See more in detail on alternative compliance and exemption from registration: E Callens, Regulation of Central Counterparties (CCPs) in Light of Systemic Risk: CCP Market Access Regimes in Global Markets (Intersentia 2022), 523 et seq.

144 CFTC, Registration With Alternative Compliance for Non-U.S. Derivatives Clearing Organizations, Final rule, 85 FR 67160 (October 21, 2020).

145 CEA § 5b(h), 7 USC § 7a-1(h); CFTC, Exemption From Derivatives Clearing Organization Registration, Final rule, 86 FR 949 (January 7, 2021). The direct implication of an exemption from registration is that the foreign CCP must not observe US rules. Vitally – and crucially different from what is the case for registered CCPs – exempt CCPs are permitted to clear proprietary swaps of US persons and futures commission merchants, but may not clear US customer positions. See 17 CFR § 39.6(b)(1).

146 See for a proposal of reform: E Callens, Regulation of Central Counterparties (CCPs) in Light of Systemic Risk: CCP Market Access Regimes in Global Markets (Intersentia 2022) 516–17.

147 European Commission, Statement: Commissioner McGuinness announces proposed way forward for central clearing, 10 November 2021 <https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_21_5905>, 2 p.

148 European Commission, Consultation document: Targeted consultation on the review of the central clearing framework in the EU, 8 February 2022 <https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/2022-central-clearing-review-consultation-document_en.pdf>, 46 p.

149 European Commission, Consultation document: Targeted consultation on the review of the central clearing framework in the EU, 8 February 2022, 3 <https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/2022-central-clearing-review-consultation-document_en.pdf>.

150 European Commission, Consultation document: Targeted consultation on the review of the central clearing framework in the EU, 8 February 2022, 3 and 39 <https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/2022-central-clearing-review-consultation-document_en.pdf>.

151 See the received contributions <https://ec.europa.eu/info/business-economy-euro/banking-and-finance/regulatory-process-financial-services/consultations-banking-and-finance/targeted-consultation-review-central-clearing-framework-eu_en>.

152 European Commission, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs), 23 May 2022 <https://ec.europa.eu/info/sites/default/files/business_economy_euro/accounting_and_taxes/documents/220523-esas-operations-report_en.pdf>, 18 p.

153 ESMA CHAIR, Letter: European Commission’s targeted consultation on the review of the EU central clearing framework, 1 April 2022, ESMA91-372-2125, 18 et seq. <https://www.esma.europa.eu/press-news/esma-news/esma-responds-european-commission-consultation-emir-review>.

154 European Commission, Communication from the Commission: A Capital Markets Union for people and businesses-new action plan, 24 September 2020, COM(2020) 590 final, 14 (action 16) <https://eur-lex.europa.eu/resource.html?uri=cellar:61042990-fe46-11ea-b44f-01aa75ed71a1.0001.02/DOC_1&format=PDF>. See also: European Commission, Consultation document: Targeted consultation on the supervisory convergence and the single rule book. Taking stock of the framework for supervising European capital markets, banks, insurers and pension funds, 12 March 2021 <https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/2021-esas-review-consultation-document_en.pdf>.

155 Art. 1(5) ESMA Regulation.

156 See, e.g. European Commission, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS), 8 August 2014, COM(2014) 509 final.

Additional information

Notes on contributors

Evariest Callens

Evariest Callens works as a Manager in the Belgian financial regulatory team of EY. Prior to joining EY, he worked at the Financial Law Institute of Ghent University, first as a doctoral researcher and afterwards as a postdoctoral researcher. During this period, he was also a visiting researcher at Harvard Law School and a graduate trainee at the European Securities and Markets Authority (ESMA). He holds a Master in Law, a Complementary Master of Science in Economics, and a PhD in Law, all from Ghent University.