I've been asked why retail forex does not have seg funds protection and so I wanted to pass along this brief regulatory history of the retail foreign exchange market:
In 2001 retail online currency trading was regulated for the first time with the passage of the Commodities Futures Modernization Act of 2000 (âCFMAâ). This law provided that any non-bank firm making a market in retail FX transactions could be registered and licensed by the Commodities Futures Trading Commission (âCFTCâ). This law was a step in the right direction but it did not in any way grant customers trading FX with these firms any funds protection in the event of bankruptcy as is common in exchange traded markets such as equities and futures.
In particular, the CFMA did not make any adjustments to the CFTCâs âsegregation rule.â The segregation rule stipulates that all client funds deposited for trading domestic, on exchange futures or options on futuresbe kept segregated from all company funds and that in the event of bankruptcy the customerâs funds are legally segregated from creditors and must be returned to the clients.
In May 2008, Congress amended the Commodity Exchange Act (âCEAâ) and created an entirely new registration category, the Retail Foreign Exchange Dealer (âRFEDâ), for forex dealers operating in the U.S. Neither at that time nor two years later when Congress enacted sweeping financial sector reform legislation with the Dodd-Frank Reform and Consumer Protection Act of 2010 were provisions included that could have provided for RFEDs to segregate funds for the protection of retail FX customers
The CFTC explained the reason for not including segregation of funds for retail FX as follows:
http://www.cftc.gov/ucm/groups/public/@lrfederalregister/documents/file/2010-21729a.pdf
â⦠Several commenters maintained that the Commission should require segregation of customer funds by counterparties in order to provide some protection in the event of a counterparty insolvency. The Commissionâs segregation requirements with regard to futures flow from Section 4d of the Act which, generally speaking, requires that customer property for trading commodity contracts be kept apart, or segregated, from the FCMâs own funds. However, as noted in the Commissionâs proposing release, a segregated funds regime cannot be replicated in the context of off-exchange retail forex trading. Unlike segregation of customer funds deposited for futures trading, under the relevant provisions of the Bankruptcy Code, such amounts held in connection with retail forex trading would not receive any preferential treatment to unsecured creditors in bankruptcy.â
This hiccup with the bankruptcy code is what is currently holding up everything from seg funds protection to insurance. More in my next post.