Setting an institutional and regulatory framework for trading platforms : Is there a case for a new trading venue under MiFID?

Purpose – The purpose of this paper is to provide a theoretical framework for the legal classification of trading venues in financial markets. Currently, there is no clear definition of when a trading platform should be classified as multilateral or bilateral. This paper builds a theoretical framework that will allow regulators to define the border (with its regulatory implications) between multilateral and bilateral trading venues. Design/methodology/approach – The approach used for this paper focuses on looking at the different trading models available in financial markets and analyzing their key features in order to bring up recurrent aspects that have helped to build the theoretical framework. Findings – Multilateral trading facilities would not only be systems bringing together multiple interests from third parties, but those systems bringing together multiple interests with “no discretion” ( ex ante rules) vis‐à‐vis membership, admission of products to trading, and matching of interests. All trading venues that do not meet these three key requirements will be falling under the bilateral trading classification, which implies the application of fiduciary duties, such as conflicts of interest rules and best execution. The paper then advances a proposal to solve the legal classification issue in the revision of the Markets in Financial Instruments Directive in Europe (MiFID). In effect, despite the claim that the Organised Trading Facility (EU) and the Swap Execution Facility (USA) would be equivalent categories, EU and US regulators, respectively, have taken divergent paths on how these venues will ultimately look. Originality/value – The value of the paper is in its ability to provide a theoretical framework to something that has not been assessed in these terms previously. Today, only the SEC is trying, for the first time, to have a definition of when a RFQ model can be defined “multilateral”. This topic has been rarely discussed before in financial regulation, while it is extensively discussed in market microstructure (but on the market structure implications, rather than its regulatory and policy implications).