Germany's Ban on Short-Selling

It is pretty much a law of nature that issuers of securities hate short-selling.  They have tried for years to paint it as somehow unethical or at least unseemly, though it has always befuddled me as to why short-selling is any different than taking a long position on a security.  In both cases one is making a bet on future prices of the underlying asset, the only difference is in the direction.

But issuers of securities, whether they be corporate equities or government bonds, generally have strong personal incentives to see asset prices go up, or at least remain flat.  No CEO thinks short-selling is justified, but in fact the ability to sell short is critical to having quality pricing signals (see below for a discussion of how short-selling helps limit bubbles).

Of course, Corporate CEO's may gripe about short sellers, but they basically have to just live with them.  But governments are different.  They can actually ban what they don't like and have done so now in Germany.  What's next, a law saying that once you have bought a government security you are never allowed to sell it?

Postscript: Here is an example of how short selling reduces volatility.  First, some background

Chester Spatt, who was chief economist at the U.S. Securities and Exchange Commission from 2004 to 2007, said that Germany's short-selling ban would probably end up causing more market turbulence and not less.

"Like many types of well-intentioned regulation, this is likely to misfire," he said in an interview. "During our financial crisis in 2008, there was a ban on short-sales for about three weeks .... That ban was very counterproductive. It didn't help stabilize asset prices at all."

Here is an example of why this happens, as I discussed in an earlier post during that temporary US ban:

At the start of the bubble, a particular asset (be it an equity or a commodity like oil) is owned by a mix of people who have different expectations about future price movements.  For whatever reasons, in a bubble, a subset of the market develops rapidly rising expectations about the value of the asset.  They start buying the asset, and the price starts rising.  As the price rises, and these bulls buy in, folks who owned the asset previously and are less bullish about the future will sell to the new buyers.  The very fact of the rising price of the asset from this buying reinforces the bulls' feeling that the sky is the limit for prices, and bulls buy in even more.

Let's fast forward to a point where the price has risen to some stratospheric levels vs. the previous pricing as well as historical norms or ratios.  The ownership base for the asset is now disproportionately made up of those sky-is-the-limit bulls, while everyone who thought these guys were overly optimistic and a bit wonky have sold out. 99.9% of the world now thinks the asset is grossly overvalued.  But how does it come to earth?  After all, the only way the price can drop is if some owners sell [remember, we are discussing a world where naked shorting is banned], and all the owners are super-bulls who are unlikely to do so.  As a result, the bubble might continue and grow long after most of the world has seen the insanity of it.

Thus, we have short-selling.  Short-selling allows the other 99.9% who are not owners to sell part of the asset anyway, casting their financial vote for the value of the company.  Short-selling shortens bubbles, hastens the reckoning, and in the process generally reduces the wreckage on the back end.

Without short-selling, the only folks involved in the price-discovery process are those who have self-selected as being more bullish than average.  Short-selling vastly broadens the number of people, and thus the perspectives and information, involved in the pricing process.

I think "cargo cult" is a great moniker for this kind of regulation.  The price of European bonds are declining as lots of people sell?  Then lets ban selling, that will take care of the problem.   Just ignore that large government deficit behind the curtain.

  • http://anarchangel.blogspot.com Chris Byrne

    I have no problem with short selling in general. The problem I have is uncovered shorts.

    With uncovered shorts, and enough capital (or enough leverage), you can SERIOUSLY manipulate an issue, or even a market segment.

  • bob sykes

    The Germans banned naked short selling, not short selling per se. The US banned naked short selling some time ago, so the Germans are merely catching up.

  • Gary Rhodes

    Naked shorting happens in all forms in our society and we don't think twice about it. Think carefully about insurance and you will understand. So why is insurance on sovereign bonds such a political issue. Because the CEO's of the those corporations are driving their companies in the ground and they don't want anyone to be able to see/stop them from doing it. Just like a CEO in a corporation will tell their shareholders to get certificates of their stock to push the shorts (covered BTW) out of the market to cover up their own malefesence, so to do CEO's of countries. As with all such things it doesn't end well because the people that are holding the stocks or bonds get wise and the music stops and some are left holding the bag. And THIS is where the shorts come in. In a market were sentiment has turned and panic has set in. No one ... and I mean it ... no one wants to buy. People are stampeding to sell their whatever, stocks, bonds, CDO's etc ... With this much supply, prices go down and they go down hard. If everyone is long or potentially long, no one wants to get in front that bus, and prices continue to plunge. Without anyone willing to take the chance of buying things get totally out of hand, BUT if there was someone who could and would buy during this disaster then the fall is cushioned, and this slows the panic response. As market participants see waves of buying hitting the market they feel more confident that their long won't be destroyed in the panic. With more longs entering and more shorts covering because the market has slowed the market makes a new bottom, wealth is transfered from the weak to the strong and life begins again, but without the covering of shorts things go from bad to worse to stupid. And honestly the bigger the uncovered short the better because they are going to need to cover their bet. That is good ... not bad.

    As for market manipulation Chris. Welcome to the market. Big players push prices all of the time. Mostly they do it long, but here is something that you don't know. With an issue that big, getting out will push the market the other way. This is something that people with big positions contend with all of the time. Look up LTCM (Long Term Capital Managment) and see what happened when someone tried to unload a leveraged long on the market. Leverage is a double edged sword as most new traders soon discover, and managing the enormous amounts of money that some people do and trying to get a return can be tricky. Fortunately for us those with the skill and proven track record do it. Those that evaporate people's money rarely get a second chance.

  • mesaeconoguy

    What’s next, a law saying that once you have bought a government security you are never allowed to sell it?

    That is exactly what is next, though in a slightly masked form: the May 6 market selloff, which triggered a cascade of resting stop orders, taught us that 1) people think stop orders mean you will get executed at the stop price (wrong), and 2) people have no clue how index ETFs really trade.

    I would look for an explicit indefinite short sale ban on the impending GM IPO, which is now run by Obamalini, Inc.

  • Pat Moffitt

    Governments play checkers in a world of chess.

  • Michael

    The process of short selling is often presented as person A has a stock. They lend it to person B who sells it hoping to buy it back at a lower price, then returns it to person A.

    Gary seems to be making the process to be person A has a stock. Person B thinks the stock is over valued, and offers to buy at 80 cents on the dollar. Person A chooses to sell.

    The second scenario makes sense as a new set of buyers of setting a limit on what they'll pay for the stock.

    The first scenario doesn't make sense as person A lets person B get value from the loss, but what benefit does person A get?

  • http://www.farsouthofi-10.blogspot.com joe

    In order to buy a non-naked short, the market maker has to pay someone for the option on their stock,
    so person A gets 1 or 2 dollars a share giving person B the right to sell the stock short. Then the total
    number of short sales can't be more than the total number of outstanding shares.

    With naked shorts, no one gets paid for the option on their shares and the supply of short sales is infinite.

    Short sales are fine. Naked shorts combined with credit default swaps are a menace to the universe.
    If someone can buy a life insurance policy on you, then by selling an infinite amount of your stock short thereby
    killing you and getting paid for the insurance policy, odds are you're going to end up dead.

  • Fred Z

    There never, ever has been a truly naked short. The naked seller always posts cash, and plenty of it, with his broker. The instant the naked seller's bet even goes close to going bad, the broker grabs that cash and buys back the stock.

    That's why all this talk of "selling an infinite amount of your stock short" is misleading. To sell an infinite amount of stock short, the seller needs to post an infinite amount of cash.

    Even market manipulation is tough. Brokers want cash security. You can offer them the rest of your supposed blue chip portfolio, and they may take it as security, but surely heavily discounted.

    Last time I did a short my broker wanted 200% security. So when I shorted 1000 shares of a $10 stock at $8 I had to have $20,000 in my margin account. If the stock rose to $11 I had to post, or have, an extra $2,000.

    That percentage security requirement varies with type of security shorted, and the exchange, but the very best available at my broker is 104% for Federal bonds.

    Calling a huge cash/security posting 'naked' is just ridiculous.

  • Rick Caird

    No Fred, you are wrong. What you are telling us about is what is happening between you and your broker. What the broker is doing is making sure you can pay if the stock goes up rather than down. Remember, you do have to buy it back at some point. You are describing, though, basic short selling. Your broker would not allow you to do a naked short. The naked shorts are done by the big boys, not us retail guys.

    As others have pointed out, Fred, naked short selling increases the supply of the stock because I have not borrowed any shares. Think of it this way. If there are a 100s of stock outstanding and I naked short one share by selling it to you. Then there are 101 shares outstanding. If no one stops naked shorting, I could sell another 99 shares and then there would be 200s outstanding. Hence technically, each share would be worth half of what it was worth before I started my naked short selling. Besides that, it is fraud. I have sold you a share of stock, I cannot produce at settlement.

  • Marcio
  • Fred Z

    Rick, are you seriously suggesting that any broker or market maker would do a true naked short for a client without getting oodles of security from that client? The big boys post cash or security, just like us retail schmucks, even if they are not technically borrowing the security, possibly because their broker hasn't got enough.

    Unless the broker is nuts, or dishonest, and not even God can protect us from that.

    As for the fraud argument, man that's old. It's maybe true if you buy a share from Joe Schmoe down the corner, but if you buy on a stock exchange you are contractually bound by their rules, and those rules expressly authorize short sales. If you buy from Schmoe, best make settlement date the instant you hand over the cash.

    As for the creation of stock, nuh-uh. The agreement is not "I sell you this here share" it is "I promise to deliver to you on settlement date a share". Your theory says the implied term is "and I have that share right here, right now, clutched in my hot sweaty hand" but the actual implied term the stock exchanges force on us is "and I will have that share on settlement date even if I have to beg, borrow or steal it and if I don't I'll pay damages".

    I do agree with you that the net effect is like the creation of extra shares. It is also like changing the value of the extant pool of shares.

    It is also a private contract between supposedly knowledgeable and consenting adults and the business of nobody else whatever, especially government bureaucrats and thieving congresscritters, who haven't a hot clue on a good day.

  • John

    Best letter to the SEC on this topic ever, from Benjamin N. Over (courtesy of maoxian.com): http://bit.ly/RsJUX

  • Michael

    In order to buy a non-naked short, the market maker has to pay someone for the option on their stock,
    so person A gets 1 or 2 dollars a share giving person B the right to sell the stock short.

    If person A were to consider this, then person A believes to some degree that the stock is going to lose value. Why not just sell the stock?

    Rick, are you seriously suggesting that any broker or market maker would do a true naked short for a client without getting oodles of security from that client?

    I feel there are a few that can move a market. George Soros isn't backing the hard left for the love of the underclass. He's betting on economic harm of the US.

  • Fred Z

    Michael, really, when Soros shorts the $US and he's right, the fall in the dollar is Soros fault? Really?

    You think it's not the fault of votes from stupid, lazy, greedy and incompetent voters leading to the same from legislators? The socialist, destructive policies of the US federal and state governments have no effect on the US dollar, but old Soros shorting the currency, he alone causes it to fall? Really? The folly, short sightedness and cowardice of the American public, from top to bottom, has nothing to do with it? Really? Truly, that's what you think?

    Jeez, whoulda thunk it. Soros, must be like God or something.

    PS: Soros posts security too. Either that or his brokers are dishonest or insane. Me, I think he posts security, and tons of it. I suspect his bets are so big, and so frightening to the brokers, that he has to post even a higher percentage than us retail schmucks.

    PPS: Always embarrassing to have an old commie be right about how stupid one has been, n'est ce pas?

  • http://www.farsouthofi-10.blogspot.com joe

    I'm no expert, I don't short stocks for the same reason I don't play the 'don't pass' line in craps; it just feels wrong.

    But I do have a good friend who sells puts (options) on his shares of stocks, he gets paid a small fee per share and lends the shares
    to his broker. if the stock price goes up enough to the option price then the stock is sold automatically at the strike price, otherwise
    at the end of the option period the stock comes back unchanged.

    It's my understanding that these lent stocks are the source of the stocks that have to be borrowed to sell stocks short.
    The reason naked short selling can happen is that most shares of stock aren't bought and sold between individuals anymore, but just
    shuffled between entries on the books of the market making companies. So if I tell etrade I want to sell stock short, they don't
    go to the trouble of borrowing any shares externally, they just mark down that I've borrowed the shares and make sure I have enough
    money in my margin account to cover. Then they do it again with person C, D, E, F, G and h. suddenly there's a lot more shares around
    then then existed previously and the price goes down. It's a casino. It's not a very good casino, because at least at a good casino
    you get free drinks.

  • Gary Rhodes

    For the record I am not a casino gambling person. I don't like it because the odds are not in my favor. I think the issue that everyone is skirting around is that the market IS a casino. They roll up their nose and say that that is a bad thing. I agree that the markets are a casino and I don't think that that is a bad thing. Let us be clear though on what it is that people are betting on when they enter the market casino. The bet is placed on what the price of a particular thing is. In a command control economy, one person or one group does this instead. They say what is produced, whether there is consensus or not, the decision is usually political. The things that a small group of people say are what the economy produces. If you would like to see a glimpse of this process in action see Lenin's Russian makeover. Amazingly in a economy like that, food is the least important (See N. Korea). As to naked short selling or any other type of market bet, the only thing that is not fair is the same as any crappy casino i.e. one player is allowed to renege on a bet they placed. This means that a few people or one person are allowed to set prices for the economy and are the de facto drivers of what is produced. The most recent example of this is GM. GM screwed their bond holders, a renege on their bet with those people. By circumventing this bet a group of people is now dictating what gets produced by the economy. They are saying in essence, that it doesn't matter to us whether anyone will use what we have, we have the power to command resources regardless. This is wrong.

    A quick note to those that think that a few people have the power to move markets ... if a big player makes a large naked short, someone has to buy that short. Yes this is a bet, and as with any bet ONE is right ONE is wrong. The one who is right collects from the one who is wrong. This is the nature of a bet. The size of the bet is irrelevant. The goal is price discovery. If one person has a lot of power they can and will move markets, but they can't compete against every person who owns money, and has an opinion on the price of something.

    Michael the two parties of any bet get one and only one thing from a bet, the right to monetary gain for being correct.

    Rick ... see the futures market. Lots of speculation there. Just be careful that you dump your bet before it comes due (Funny story in a Market Wizards about a guy who waited to long to unload his egg contracts)

    joe ... That example is a straw man, because you don't talk about what happens at the settlement of the bet. It will go something like this: there will be a clause in the contract (bet) that exempts the insurance company (bettor) from payment should the target die from murder. And surprise, surprise the police are very likely to investigate a large bet placed against the deceased. Thereby exposing the fraud of the winner of the bet, and invalidating the bet. Person goes to jail insurance company keeps money.

  • Tim

    Michael, just to clear up the confusion. If I am holding a financial instrument that somebody else wants to short; I don't sell them options, I'm loaning them the actual instrument with a promise that I will get a same number of shares back at the agreed upon date. I'm not betting that the price will go down, I'm betting that the price will go up, or at least remain constant. But, by loaning out the asset; I'm allowing somebody else to bet that the price will go down.

    Think of a physical asset, and this starts to make a bit more sense; as well as why the ban on naked short selling makes sense.

    Suppose I have 1000 bushels of corn.

    Now, in November, I'm going to need that corn to feed to my cows or make bourbon. Either way; I think the cost to replace my corn will be higher in November than I'll get for selling it now.

    You, on the other hand, think the cost to replace my 1000 bushels of corn will be less in November. So, you pay me money to borrow my corn; with the understanding that you will deliver 1000 bushels to me in November.

    I, not caring what the price will be in November; make money on the loan. You can sell the corn, turn it into E85 gas, or whatever. I don't care what you do with it; you owe me 1000 bushels in November -- and I don't care how much it will cost you.

    But, in the meantime; I don't have use of my 1000 bushels of corn. I can't make it into bourbon now; because *I don't have it* -- you do. Now, if I change my mind; and think the price for corn will be less in November, not more, I can't sell the corn that you have borrowed.

    If this were a naked short; you would 'borrow' the corn, but leave it in my control; where I could sell it, feed to my cows, start up Arizona Tamale Corporation, or whatever. In a naked transaction; you've just created a 1000 bushels of corn out of thin air.

    And that's why naked short sales don't make sense. Because, in a naked short, you've just benefited from something that you don't have a controlling interest in. And, just like carbon offset credits -- the same asset can suddenly be involved in more than one transaction. And it doesn't matter that you have sufficient security on the margin call -- you can't make that 1000 bushels of corn out of thin air.

    Because here's the theoretical worst case scenario for a naked short -- nobody is willing to sell to cover the position. Suppose there just isn't a 1000 bushels of corn out there for you to get.

    Joe: Puts are related to shorts; but they're slightly different. The wikipedia page is actually accurate enough to spell out the difference:
    "The advantage of buying a put over short selling the asset is that the option owner's risk of loss is limited to the premium paid for it, whereas the asset short seller's risk of loss is unlimited"

    If you buy a put or a short, you are betting that the price will go down. If the price goes up, a put loss is limited to the difference between the price at the time you bought the put and the strike price at the exercise date. If you short sold it; your loss is the difference between the price on the short sale date and the current price -- so your loss could be, in theory, unlimited.

  • Ron H.

    "In a naked transaction; you’ve just created a 1000 bushels of corn out of thin air."

    And yet, this is exactly what banks do with our money. The money is in my demand account, and loaned to you at the same time.

  • Michael

    Tim, Your explanation makes sense but leaves one question. If I own 100 shares of P&G and hope they go up in value, why would I want to loan them to someone that wants them to go down in value?

    Am I hoping to make a few dollars from the loan and get the shares back at their original or higher value?

    And just out of curiosity, how long do these loans tend to be? Days, Weeks, Months?

  • Tim

    Ron H.: But there are two differences. A bank is required to carry a liquid reserve, specifically to cover some percentage of accounts on deposit. And, a bank is not able to lend in excess of their total capitalization. Neither of these are true in a naked short. That's what makes them naked. (Sure, a broker may require you to have a margin account, but naked shorts are illegal in the US. In theory; the broker can make the margin call or force you to return the outstanding shares.) And, of course, Central Banks actually do create money -- and one of the tools for regulating the money supply is the reserve requirement.

    Michael: You get paid a loan fee; and you get 100 shares back at the end of the loan term. The only money you make on the transaction is the fee. Remember, you get *shares* back, not *cash*.

    As to why, I can think of a couple of reasons. I'm more than willing to let somebody else be wrong. If I think the fundamentals of a company are strong; I'm more than willing to take the risk not being able to get out of my position over the term of the short for the profit on the fee. Lastly; there's always the matter of perspective. If I'm very long -- willing to hold the shares for a long time and willing to ride out dips in value -- then it doesn't hurt my strategy to loan them out.

  • http://teejaw.com TeeJaw

    For some reason people think making a contract to buy or sell something you don’t presently own is nefarious. But that is so only if you don’t deliver when the transaction closes.

    Well, if you make a contract to sell something that you for sure can never deliver, like the Brooklyn bridge, maybe they would be right. But stocks traded on an active exchange can easily be acquired or borrowed and delivered to the buyer on the due date. As long as the buyer gets the benefit of his bargain I don’t get what the fuss is about. Everyone is happy except the stock’s issuer, but the issuer is not a party to the transaction and has no standing. If the issuer does not want its shares to be actively traded, it has a remedy. Remain a private company. Then it can control how its shares are traded.

    The issuer wants the massive cash infusion that taking itself public provides. It can decide which is more important to it, but it can’t have both.

  • http://teejaw.com TeeJaw

    I just bought a new car. I gave the dealer a $1,000 deposit and signed a contract to buy the car. The dealer did not have the car I wanted at that time and said he would search other dealers to find one that met my specifications within 20 days. On day 18 he called and said he had found a car at a dealership in another city that had agreed to loan the car to him so he could deliver it to me. He told me that car dealers often trade cars that way. I guess that was a naked short sale. Worked out for everyone.

  • Tim

    TeeJaw: A short sale isn't a contract to buy something you don't own -- it's a contract to sell something to which you've obtained the rights. Only in a naked sale, not having the rights has created additional stock.

    Unless you think that being on a public exchange somehow allows holders to circumvent the issuer's ability to control the number of shares outstanding, they're a party to the transaction.

    And, your car example is flawed. In this case, the manufacturer's title was transferred from the third party dealer to your dealer; depriving the third party dealer the ability do anything else with that car. (FYI. The dealers hold originating titles to their stock. In other words, the dealer owns the cars. The third party dealer didn't loan that car to your dealer; there was a transaction in there somewhere -- either cash or a straight up trade.)

    And, in the end; that's really the issue. It isn't that short sales are bad; they are actually very useful. The objection is uncovered short sales create assets by virtue of the nature of the transaction.

  • Ron H.

    Tim: I understand all that about banking, I was referring only to the similarity between making corn out of thin air, which you find troublesome, and banks creating money out of thin air, which we all seem to accept.

  • morganovich

    rick-

    as someone who has been a professional fund manager for 15 years, i can tell you that you are categorically wrong.

    all leverage comes from somewhere, long or short. your prime broker(s) give it to you, and you cannot trade (legally) on the short side without a locate and a borrow.

    any long or short position (legal or no) requires margin. our requirements might not be as high as on an etrade account, but they're quite firm. go over them, and you will be liquidated. banks are very focused on these issues.

    most "naked shorting" is the result of a delivery failure on a locate. i call BNP to borrow shares of JPM. they don't have any, so they go to the street and GS and borrow some which they promise to me. then GS fails to deliver to them. this is a bureaucratic screw up due to the fact that borrows are not cleared, but it's not the sinister trend you seem to think it is.

    funds that short unborrowed stock consistently will rapidly find themselves brokerless and in trouble with the SEC. try it and see.

    further, even a naked short does not increase shares outstanding, only shares traded which is a liquidity enhancer, not a detriment to shareholders. "supply of stock" as you deeming it is a meaningless phrase. shorting leads to pricing efficiency and greater liquidity. if you are looking to buy something, you would much rather buy from a short than a long. he'll have to buy it back one day supporting the price in the future.

    every share short is a share that must one day be bought. it does not increase market cap or reduce claims on assets to shareholders. it's just an accounting offset.

    when i see a stock that looks cheap and with an attractive future, i love to see a huge short interest when i buy.

  • markm

    TeeJaw: "For some reason people think making a contract to buy or sell something you don’t presently own is nefarious. But that is so only if you don’t deliver when the transaction closes."

    I work at a contract manufacturing plant. Nearly every order we take is a contract for something that we don't presently own - and that won't exist until we make it.

  • Mark

    Something missing from all these arguments is the fact that if someone sells a naked short there has to be someone on the other side taking the long view.

    It is much like betting on the Superbowl in Vegas. You choose one of two teams. This is a naked bet because you have no underlying interest in either team. In Vegas, when one team gets too much betting activity they change the odds to make the less liked team more attractive. Interestingly in Vegas gambling, taking a covered position is illegal.

  • Methinks

    People are so confused about naked shorting vs. borrowing.

    In fact, there is no moral difference.

    Market makers don't have to locate. They can sell "naked" (so no, it's not illegal. It's only against the rules for customer traders).

    The exemption is given in order to enable a market maker to discharge his responsibility of always providing a two-sided market. In 2008, the SEC tightened the rules for covering and the result has been to suck the liquidity out of the market - especially for difficult to hedge (other than shorting a correlated stock) low and medium liquidity stocks. The effects of that is that these stocks now can get even further away from fair value and the transactions costs and risk have increased dramatically. There's less liquidity and you're paying up for the little that's left.

    And for what? Where's the benefit? There isn't one.

  • HoosierHawk

    It seems to me that the price of anything is a function of the demand for it, and the supply of it. Prices go up because no one who has it is willing to part with it for the current price, so you have to pay more if you really want it.

    Short selling artifically creates more of it which undermines the price determined by supply and demand. As I understand the author's point, this can prevent bubbles, but I think that bubbles are generally created by unnatural interference and stopping that is the way to prevent bubbles.

  • ShortieShame

    As a short seller I want to be the guy that pushes the stock over the edge. How it got that close to the edge is not up to me.