Counter-party Default Risk

Over-the-counter (“OTC”) spot and forward contracts in currencies are not traded on exchanges; rather, banks and FCM’s typically act as principals in this market. Because performance of spot and forward contracts on currencies is not guaranteed by any exchange or clearing house, the client is subject to counter-party risk — the risk that the principals with a trader, the trader’s bank or FCM, or the counter-parties with which the bank or FCM trades, will be unable or will refuse to perform with respect to such contracts. Furthermore, principals in the spot and forward markets have no obligation to continue to make markets in the spot and forward contracts traded.

In addition, the non-centralized nature of the Foreign Exchange market produces the following complications:

A bank or FCM may decline to execute an order in a currency market which it believes to present a higher than acceptable level of risk to its operations. Because there is no central clearing mechanism to guarantee OTC trades, each bank or FCM must apply its own risk analysis in deciding whether to participate in a particular market where its credit must stand behind each trade. Depending on the policies adopted by each counter-party, a given bank or FCM may decline to execute an order placed by a trader/customer. This has happened on occasion in the past, and will no doubt happen again, in response to volatile market conditions.

Because there is no central marketplace disseminating minute-by-minute time and sales reports, banks and FCMs must rely on their own knowledge of prevailing market prices in agreeing to an execution price. The execution price obtained for a trader/customer to a large extent will reflect the expertise of the bank or FCM in trading the particular currency. While the OTC interbank market as a whole is highly liquid, certain currencies, known as exotics, are less frequently traded by any but the largest dealers. For this reason, a less experienced counter-party may take longer to fill an order or may obtain an execution price that differs widely from what a more experienced or larger counter-party will obtain. As a consequence, two participants trading in the same markets through different counter-parties may achieve markedly different rates of return during times of high market volatility.

The financial failure of counter-parties could result in substantial losses. Again, when trading Foreign Currencies on an OTC basis, the trader/customer will be dealing with institutions as principals and institutions may be subject to losses or insolvency. In case of any such bankruptcy or loss, the trader might recover, even in respect of property specifically traceable to his or her account, only a pro rata share of all property available for distribution to all of the counter-party’s customers.

While that portion of a trader/customer’s assets deposited with an FCM with respect to regulated exchange traded futures will be subject to the limited regulatory protections afforded by the client segregation rules and procedures, customer funds deposited to secure or margin OTC Foreign Exchange trading will not have such protection, as FCM’s are exempt from substantial regulation under the Commodity Exchange Act for their activities as counter-party to non-exchange traded currency contracts.

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