weakness in the traders’ argument. Once those funds are open to other investors, how do the ABCDs justify not playing by the same rules as others? If the companies wish to sell their services to investors, that activity ought to be clearly and wholly separate from any of their commercial hedging activities, with the burden of proof that that this is so resting clearly with the trading firm. Questions have also been raised about whether these firms are manipulating markets for their own gain. Bunge Global Markets was found in 2009 to be in contravention of the Commodities Exchange Act by the US Commodity Futures Trading Commission (CFTC). Twice in March 2009 Bunge traders placed buy and sell orders for soybeans in the pre-opening trading session, which they then cancelled before the market session opened. The CFTC found that the traders had no intention of executing those orders (something that the traders openly acknowledged), but instead were deliberately seeking information about support for specific price levels. Their activity influenced the Globex (electronic trading platform) Indicative Opening Price (IOP), which is an opening price broadcast to Chicago Mercantile Exchange market feed data and all CME Globex users. The CFTC noted, ‘If successful, they would have obtained information that was unavailable to other traders. Because the traders had no intention of allowing the orders to be executed, placing the orders caused prices to be reported that were not true and bona fide…’ 100 and as such were in violation of parts of the Commodity Exchange Act. The CFTC ruling was released in 2011, and Bunge was fined $550,000 for this violation and ordered to ‘cease and 101 desist’ from violating those parts of the Act.
4. Regulatory reform and the reaction of the ABCDs The regulatory context In the USA, agricultural futures markets have been tightly regulated for nearly a century. The Grain Futures Act of 1922 required that all futures trading could only take place on approved exchanges, which were required to outlaw manipulation or cornering of the market. Daily reporting of trading on the market by large traders has been required since 1923, on the grounds that the large traders could influence prices and needed to be more closely monitored than others. The US Commodity Exchange Act of 1936 empowered US federal regulators (now known as the Commodity Futures Trading Commission, or CFTC) to establish ‘position limits’ on ‘non-commercial’ traders who are not bona fide hedgers. Non-commercial traders are those who do not trade the actual commodity, such as speculators and banks. Commercial traders are those who are end-users of the commodity, such as farmers, grain elevator operators, food processors, and trading companies. Position limits place a ceiling on the number of agricultural futures contracts a single noncommercial trader is allowed to hold. The purpose of the regulation was not to eliminate speculation, which is widely seen to perform a useful price discovery function. Instead, the idea is to prevent market manipulation and distortion by overly powerful speculators that could cause havoc for farmers, food producers, and consumers. The 1936 Act speaks of the objective of eliminating ‘excessive speculation’ that causes ‘sudden or unreasonable fluctuations or 102 unwarranted changes’ in commodity prices. The regulatory framework in the USA began to soften when position limits were effectively relaxed over the 1980s and 1990s. In 1986 the US Congress directed the CFTC to consider including the use of future markets to manage financial investment portfolio risks in its definition of bona fide hedging. This request prompted the CFTC to issue a number of clarifications and interpretations that effectively expanded the definition to include trading strategies aimed at 103 reducing financial risk. The CFTC also granted exemptions from speculative trading limits to 104 a number of financial institutions starting in the 1990s. Banks also began to request and were granted ‘no action letters’ from the CFTC. These letters provided regulatory relief by stating that the regulatory body would not recommend enforcement action against the requesting entity for failure to comply with specific CFTC rules or regulations 30
Cereal Secrets: The world’s largest commodity traders and global trends in agriculture