The Scope of LIBOR Remediation is the Problem

Time is now of essence – with the end of 2021 deadline looming, financial institutions need to reduce their ‘stock’ of legacy LIBOR contracts to a minimum as a matter of priority, writes Rajen Madan, CEO, Leading Point.

The challenge is of course colossal. Firms need to find every reference to IBORs embedded in every contract they hold; update each contract with fallback provisions / reflect the terms of the alternative reference rate they are migrating to; and communicate the results with clients.

LIBOR’s retirement potentially impacts over $350 trillion of contracts and requires all LIBOR transactions (estimated at over 100 million documents) to be examined and most likely repapered. LIBOR is embedded in every asset class – mortgages and retail loans, to commodities, derivatives, bonds and securities.

It’s estimated that large banks may be exposed to more than 250,000 contracts directly referencing LIBOR maturing after 2021, and indirectly exposed to many thousands more embedded in servicing activities, supplier agreements and such.

Only 15 percent of Financial Institutions are ready to deal with this volume of contract remediation, deal restructuring, and repapering activities required for the scale of their legacy contract back-book; 14 of the world’s top banks expect to spend more than $1.2 billion on the LIBOR transition.

Firms that have comprehensive visibility of their legal contract information via retained structured data, can avoid 80 percent of the typical repapering process, and focus their efforts on the remaining, critical, 20 percent.

LIBOR Repapering Not a ‘Find and Replace’ 

The repapering of contracts isn’t as straightforward as a ‘Find and Replace’ on legal terminology referencing LIBOR.

Risks are many including conduct, legal, prudential and regulatory. Consider ‘conduct’ risk. In the UK, the Treating Customers Fairly (TCF) regime is particularly concerned with how customers are affected by firms’ LIBOR transition plans. Before contracts can be updated, firms will need to ensure that LIBOR linked products and services have ‘fair’ replacement rates that operate effectively.

Similarly, there’s prudential risk. When the underlying contracts change, firms may find that the instruments they rely on for capital adequacy purposes may no longer be eligible, potentially even resulting in a sudden drop in a bank’s capital position. Similarly, there are several Counterparty Credit, Market, Liquidity, and Interest Rate Risks that will need to be reflected in firms’ approaches.  

LIBOR is proving to be a real impetus for financial institutions to use technology that, to be honest, has been available in the marketplace for a long time now.

Mindset Change is Needed to Manage Legal Data

Most historic repapering exercises have involved hastily identifying the documents impacted, outsourcing the difficult issues to law firms (at huge cost) and throwing manpower (again at substantial cost) at the problem to handle the contract updates and communications with counterparties. The exact same process has been repeated for every repapering project. Despite the substantial costs, many financial institutions still don’t meet the deadline. MiFID II is an example.

With ample evidence of regulators continually tightening their grip on financial institutions through reform – alongside an increasingly dynamic global business environment (e.g. LIBOR, Brexit) – it is time organisations acknowledged and accepted repapering as a ‘business as usual’ activity.

A change in mindset and a smarter approach is needed to manage legal data. Financial institutions need to ensure that LIBOR or indeed any future business repapering exercise does not compromise client well-being or negatively impact client experience. For instance, to accurately model the financial risk firms’ portfolios are exposed to via LIBOR when transitioning to a new rate, they need a way to directly link, say, multiple cash and derivative contracts to a single client. Furthermore, in an environment where most firms are product driven, the scenario of multiple repetitive communications, requests for information and re-papering contract terms looms on the horizon for firms’ customers.

It is heartening to see that LIBOR is beginning to pique the interest of financial institutions to develop a long-term vision to create smarter capabilities that will deliver business advantages in the future.

Stephanie Vaughan, Global Legal AI Practice Director at iManage RAVN and ex-Allen & Overy, recently observed, “LIBOR is proving to be a real impetus for financial institutions to use technology that, to be honest, has been available in the marketplace for a long time now. While they may have dabbled with it in the past, due to the scale of the LIBOR remediation and the constantly changing regulatory challenges, it has finally hit home that such projects are a drain on resources and are delivering no business value.”

Financial institutions have started every repapering project (e.g. MiFID II, Dodd Frank, Margin Rules) from scratch including going through the entire process of determining the clients, what the terms of engagement are, when the contracts expire and so on.

Technology Can Make Repapering ‘Business as Usual’

A strategic approach to managing legal data requires all stakeholders in a financial institution to come on board – from business units and the compliance department through to legal operations and the General Counsel. This is instrumental to ensuring genuine cross-functional recognition and support for strategic directional change.

Financial institutions need to build a strong, technology-supported foundation for remediation projects. Thus far, financial institutions have started every repapering project (e.g. MiFID II, Dodd Frank, Margin Rules) from scratch including going through the entire process of determining the clients, what the terms of engagement are, when the contracts expire and so on.

Hereafter, with LIBOR and Brexit, extracting, classifying, storing and maintaining all these data points as structured, base level information on customers on a single technology platform, will provide institutions with capabilities to quickly understand their exposure, assign priorities and flexibly make contractual changes in tune with evolving requirements.

This approach is proven. Firms that have comprehensive visibility of their legal contract information via retained structured data, can avoid 80 percent of the typical repapering process, and focus their efforts on the remaining, critical, 20 percent. Financial institutions will then also be well poised to take advantage of new bolt on capabilities  that leverage artificial intelligence for application to specific use-cases – which in turn can deliver business value from contract search, contract classification, clause management, to real time analytics, contract generation and integration with operational, risk and compliance systems.

The opportunity with more effective legal data management is huge and realisable. Building and incrementally strengthening capability through the strategic and proactive use of technology is potentially the only way for financial institutions to adapt to their new regulatory and business environment.

The repapering of contracts isn’t as straightforward as a ‘Find and Replace’ on legal terminology referencing LIBOR.

Leading Point Financial Markets and iManage RAVN are hosting an industry workshop to discuss in more detail some of the issues addressed in this article and understand how smarter Data Management and Enabling Tech Solutions can realistically be used to reduce the cost, risk, and timelines of client outreach and repapering and improve client experience.

Industry practitioners can register interest here: https://leadingpointfm.com/event-regulatory-changes-understanding-the-challenge-with-repapering-and-how-to-reduce-the-cost/

This article is the 1st of a new series exploring the role of Legal Technology in Financial Services. Please stay tuned! https://leadingpointfm.com/insights/

PengWee Koh

PengWee Koh

Leading Point Financial Markets

Rajen Madan

Rajen Madan

Leading Point Financial Markets

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