Canada: Recent Developments In The Regulation Of Shadow Banking

Over the summer and fall shadow banking regulation moved forward on several fronts.

First, the SEC proposed rules that would reform the way money market funds operate "in order to make them less susceptible to runs that can harm investors". In keeping with previous guidance provided by the Financial Stability Board (FSB) and the Financial Stability Oversight Counsel (FSOC), the SEC proposal includes two principal alternatives that may be adopted alone or in combination. One alternative would require a floating net asset value (NAV) for prime institutional money market funds. (Note that government-debt funds are now to be excluded as it has become apparent that there had not been runs on these funds during the crisis). The other alternative would allow for the use of liquidity fees and redemption gates in times of stress.

The public comments on these proposals have been relatively predictable and in line with comments previously made in respect of the FSB and the FSOC proposals. Opposition to both the floating NAV and redemption fee alternatives remains strong. J.P Morgan Asset Management summarizes the views of MMF investors as follows:

"Specifically, MMF investors have indicated concern about changes to the basic tenets of money funds – stability of principal and daily liquidity.  Both Alternatives 1 and 2 have the potential to significantly reduce these key benefits that MMFs provide today and the adoption of either alternative will reduce the use of MMFs.  The extent of the impact appears to be dependent upon the details of the reforms adopted.  The majority of these investors have stated that they would look to utilize bank deposits, direct money market securities, government MMFs and possibly look to outsource more internal investments to outside managers." 

The one proposal which continues to be viewed as the least problematic is the imposition of redemption gates, which garners a certain degree of support from even such staunch opponents of the proposed reforms as the American Bankers Association and Melanie Fein.  As indicated by the former "we do believe the ability to gate a fund could slow redemptions sufficiently to enable a board to assess the situation and take appropriate actions."  If the regulator's real aim is to stop mass redemptions or runs, then only the imposition of a gate would be effective to accomplish this aim without significant collateral damage to the attractiveness of MMFs as an investment vehicle.

Second, the FSB finalized most of its policy recommendations regarding shadow banking risks in securities lending and repos.  In hopes of helping reduce excess leverage and dampening pro-cyclicality, the FSB pushed forward on its proposals for minimum standards for calculating haircuts and a framework of numerical haircut floors. In addition, the FSB has proposed that entities should not be allowed to re-hypothecate client assets in order to finance activities for their own account and only entities subject to adequate regulation of liquidity risk should be allowed to engage in the re-hypothecation of client assets.  Both the imposition of mandatory haircuts and restrictions on re-hypothecation are intended to decrease the "velocity" of the collateral or the amount of leveraging possible off of the assets.

 At the same time the FSB issued a policy framework for strengthening oversight and regulation of shadow banking entities which essentially merely refined the previous work of identifying the economic functions conducted by these entities and presenting a menu of policy tools from which authorities can draw if necessary to mitigate the shadow banking risks inherent in each of the economic functions.  In order to maintain consistency across jurisdictions in applying the policy framework and to detect new adaptions and innovations in financial markets, authorities are to set up an information-sharing process under the FSB.

According to the roadmap published in connection with the September G20 summit most of these and the other related shadow banking initiatives are to be largely completed and implemented by the member states sometime during 2014.

Finally, U.S. federal agencies issued a second notice of proposed rulemaking to implement the credit risk retention requirements of the Dodd-Frank Act.  The proposed rule contains a number of changes from the original 2011 proposal, among the most significant being:

  1. The standard requirement to retain 5% of the credit risk has been modified to apply to the "fair value" (determined in accordance with GAAP) rather then the par value of the ABS interests issued in the securization.
  2. Due to the foregoing, the controversial original requirement to fund a premium capture cash reserve account has been eliminated.
  3. Rather than having to select from vertical, horizontal or "L-Shaped" options, sponsors are now permitted to satisfy their risk retention requirements by holding any combination of vertical and horizontal interests.
  4. The definition of "qualified residential mortgage" eligible for an exemption has been broadened to match the definition of "qualified mortgage" under consumer protection rules.
  5. Restrictions on hedging, pledging and transferring retained investments may be relaxed towards the end of a transaction.
  6. A sponsor may satisfy its risk retention requirements through the purchase and retention by a significant originator of no more than its pro rata share (based on the unpaid principal balance of underlying assets) of the eligible interests otherwise retained by the sponsor.  The purchasing originator will be subject to the same restrictions on hedging, pledging and transferring its retained interests as the sponsor.
  7. In the case of ABCP conduits, a special option provides for the retention of the risk by the originator/seller of the ABS assets rather than the sponsor.  The advantage of not having to retain the risk at the sponsor level will provide a strong incentive for ABCP conduits  to be structured or restructured to comply with the eligibility  requirements, the most notable of which is that the conduit can only purchase ABS as opposed to the underlying receivables.  This will require the creation of an intermediate entity to purchase the receivables from the seller which will in turn issue the ABS to the ABCP conduit.
  8. The proposed rules maintain the safe harbor for certain foreign transactions involving non-U.S. sponsors selling no more than 10% of its ABS interests into the US, and which interests are not collateralized by more than 25% of U.S. assets.

Given the length of time that has passed since the original proposal, the agencies are apparently now keen to move to enactment.  Only 40 days were provided for comments on the extensive re-proposal and several applications for extension were ignored.  Nevertheless, a number of groups, including the Structured Finance Industry Group, the Securities Industry and Financial Markets Association and the American Bankers Association were after to pull together and submit lengthy and detailed commentary.  However, given the evident rush of the agencies, the prognosis for acceptance of these comments would appear to be rather dim.

One comment letter worth mentioning due to its applicability to cross-border transactions in general, is that of the Association for Financial Markets in Europe (AFME). Although the EU has enacted its own risk retention regime, its provisions do not align with the proposed American rules, leaving issuers in the position of having to comply with both regimes, thus restricting cross-border liquidity.  AFME has urged the American agencies to reassess the need for a mutual recognition process.  (It should be noted here that Canadian authorizes have not as yet proposed any risk retention rules.   In the continued absence of same, any mutual recognition process which may eventually be implemented would not be applicable to Canada-US cross border transactions.)  If, however, the U.S. agencies decline to contemplate such a process, AFME has suggested that the proceeds trigger should be higher than 10%, considering 20% to be more appropriate.

Final Thoughts

As described by the FSB, the shadow banking rules are intended to dampen or mitigate the effect of runs.  This is to be accomplished by, among other things, making participation in that system less attractive at the outset by the imposition of entry barriers (through increased capital requirements and risk retention rules), by reducing the velocity of collateral (through the imposition of margins) and by imposing costs (through the imposition of redemption fees) or erecting impediments (through redemption gates) to runs.  These measures are perhaps best described as throwing sand in the gears of the run mechanism or imposing a governor to slow its momentum.  Whether they will have the cumulative effect desired or advertised must await trial but we shouldn't be too surprised if they are never actually put to the test. This is primarily due to the fact that the restrictions placed on banks through capital and liquidity rules (assuming that proper enforcement is not undermined by the overly complex nature of Basel III: see comment by Paul Kupiec in November 14 Financial Post) combined with restrictions on proprietary trading should severely limit the appetite of the banks for the type of speculative and arbitrage-seeking behavior which contributed significantly to the formation of the asset bubble last time around.  Hopefully, absent the all-in antics of banks, the remaining players will not be capable of creating an asset bubble the collapse of which could have systemic consequences.  Indeed, this may well be another example of preparing for the last battle while a new and far more dangerous antagonist is allowed to marshall its forces in the wings.

The collapse of the shadow banking system resulted in a gaping hole in the monetary supply.  Since the crisis this hole has been filled by greatly increased central bank reserves and government treasuries (through, in part, quantitative easing).  Furthermore, the new rules have in many instances granted favorable treatment to government debt (see, for instance, the MMF rules cited earlier) thus further increasing demand.  In addition, the fact that some of this collateral must be maintained by banks for liquidity purposes and that massive amounts of treasury bonds have been purchased and held by the Fed means they are essentially stranded and unable to satisfy the demands of the greater economy.  This demand seems to dove-tail quite nicely with the ever increasing proclivity of governments to run massive deficits which have come to be justified as stimuli necessary to offset an "uncertain or sluggish recovery."

Economic stimulus was originally intended to counteract the otherwise harsh consequences of natural corrections to the economy, but it was generally accepted that they were to be removed once the crisis had passed. Now it seems that this limited application of stimulus has been deemed insufficient.  Rather, the Fed seems to believe that it is able to, and thus should, manipulate the economic cycle to achieve constant growth.  "NG-DP targeting, if it works, has the potential to make severe economic slumps a thing of the past" (Dylan Matthews, Washington Post).  In service of this goal, short term interest rates have been reduced to and maintained at nearly zero per cent, promises have been made that these rates will remain low for the foreseeable future and huge amounts of money have been pumped into the system in order to influence long-term rates.  At this point there does not seem to be any end of these policies in sight. When Ben Bernake merely broached the possibility that the Fed might begin tapering Q3, his comments so unsettled the financial markets that he quickly retreated. 

But this constant growth is being fueled by an explosion of government debt which is sustainable only as long as the corresponding interest burden is controlled.  As described by the Bank for International Settlements in its 2013 recent annual report: 

"Continued low interest rates and unconventional policies have made it easy for the private sector to postpone deleveraging, easy for the government to finance deficits, and easy for the authorities to delay needed reforms in the real economy and in the financial system.  After all, cheap money makes it easier to borrow than to save, easier to spend than to tax, easier to remain the same than to change." 

Sooner or later the ability to suppress interest rates will begin to be compromised by the increasing pressure brought to bear on the value of the U.S. Dollar and the eventual demand of holders of the debt for increased return to compensate for the debasing of the currency. 

With such large amounts of debt being carried by governments, any significant increase to their debt service burden could have serious consequences.  It is far from clear that the central bankers or indeed governments have the will or even the tools to respond but time may now be of the essence. According to Donald McKinnon in the Financial Post on October 29, it is time for the Fed to begin to slowly raise interest rates and phase out QE in order to get ahead of the problem. But to be successful, governments also need to take this problem seriously, and, notwithstanding the negative effect on growth and the associated political risks, to begin making significant reductions in their debt loads.  (The work being done by the Canadian federal government to reduce the deficit is a good start and will help us weather the storm to come but must continue in order to reduce the overall debt.) 

Some commentators believe it is already too late to avoid the uncontrolled growth, and the catastrophic consequences of the bursting, of the government debt bubble.  Thus such adherents of the Austrian school of economics as David Stockman ("The Great Deformation"), Peter Schiff ("The Real Crash") and Detlev Schlichter ("Paper Money Collapse") take a fairly dim view of the prospects of avoiding a catastrophic crisis.  In their view, the root of all modern economic evil is the creation of the Fed, its control over the money supply and its ever-increasing degree of activism in the use of this control to shape and guide economic performance.  Part of the remedy, as they see it, is to pry the controls away from the Fed and to return to sound money, that is, the gold standard.  These authors, like the editors of the Financial Post, tend to use the word 'Keynesian' as an expletive and in turn are characterized, along with Ron Paul, as libertarian cranks.  Like the opposite sides of the climate debate, they all seem to talk past one another leaving no common ground on which to resolve differences or test their hypotheses or to earn for their discipline any consideration as a true science, dismal or otherwise.  In any case, if I were to hazard a guess I would say that we are destined to find out whether the wizards at the Fed have really tamed the chaotic forces of the economy or whether their hubris will bring it all down around our ears sometime during the next decade or so.  They promise to be, in the words of the ancient Chinese proverb, 'interesting times' so buckle up and keep safe!  

Well that's it for me.  I have had great fun writing these pieces and learning more about these complex and crucially important topics and I hope you have found it to be mildly diverting .  Wishing everyone great holidays and Happy Trails.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.