the bankruptcylaw safe harbor for derivatives a path：金融衍生工具的破产法安全港.pdfVIP

[12 Nov. 2013 Draft] The Bankruptcy-Law Safe Harbor for Derivatives: A Path-Dependence Analysis 1 2 3 Steven L. Schwarcz Ori Sharon Abstract: U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume, based on its existence, that the safe harbor necessarily reflects the most appropriate treatment of derivatives transactions under bankruptcy and insolvency law or the treatment most likely to minimize systemic risk. I. Background 2 II. The Concept of Path Dependence 4 A. Defining Path Dependence 4 B. Legal Path Dependence 5 III. Evolution of the Bankruptcy-Law Safe Harbor for Derivatives 6 The 1978 Bankruptcy Code 7 The 1982 Amendment 8 The 1984 Amendment 9 The 1990 Amendment 10 The Bankruptcy Abuse Prevention and Consumer Protection Act