Public choice and private contracting in financial markets

ABSTRACT In this article, I propose that high levels of concentration in markets make the production of standardised contracts in those markets more likely to be captured by the dominant players creating opportunities for them to extract rents and further reduce competition through contract and market design. I examine how contracts produced by the International Swaps and Derivatives Association (ISDA) shaped the organisation and its activities. ISDA’s governance was dominated by a concentrated group of dealer banks who benefited from the opaque OTC market microstructure revolving around ISDA’s standardised contracts. The organisation’s activities, such as lobbying and data collection, were aimed in part at preserving that microstructure allowing dominant firms to extract rents and reduce competition. In the absence of policy interventions, standardised contracts produced by trade associations can become captured in ways not dissimilar to public regulation.