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public and private ordering

European Business Organization Law Review (EBOR) (1)

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The Dynamics of OTC Derivatives Regulation: Bridging the Public-Private Divide
Dan Awrey
Journal:

European Business Organization Law Review (EBOR) / Volume 11 / Issue 2 / June 2010

Published online by Cambridge University Press:

28 July 2010, pp. 155-193

Print publication:

June 2010
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Over-the-counter (OTC) derivatives have emerged as a global behemoth – the ‘800 pound gorilla’ of modern financial markets. In the wake of both their precipitous growth and prominence in the thick of the current global financial crisis, financial market regulators have found themselves under pressure to enhance their regulation of OTC derivatives markets. This paper explores both the private and social costs and benefits of OTC derivatives and the respective strengths and weaknesses of public and private systems of ordering in pursuit of the optimal mode of regulating OTC derivatives markets. On the basis of this exploration, this paper advocates employing modes of regulation which abandon the largely artificial distinction between public and private ordering, align the incentives of public and private actors and facilitate the long-term transfer of information and expertise between these actors in order to generate more nuanced and responsive regulation and thereby enhance social welfare.