The Dodd-Frank Act was enacted on July 21, 2010. Generally, sections 619 and 620 of the
Act are known as the \"Volcker Rule\". Section 619 adds a new section 13 to the Bank Holding
Company Act of 1956 which generally prohibits banking entities from engaging in proprietary
trading or from acquiring or retaining an ownership interest in, sponsoring, or having certain
relationships with a hedge fund or private equity fund (\"covered fund\"), subject to certain
exemptions. Section 13 also provides for non-bank financial companies that engage in such
activities or have such interests or relationships to be subject to additional capital requirements,quantitative limits, or other restrictions. The FDIC, FRB, OCC, and SEC (the \"Agencies\") jointly issued the Proposed Inter-agency Rule (\"the Rule\") implementing the Volcker Rule on October 11 and 12, 2011. The CFTC also separately issued the rule implementing the Volcker Rule on January 11, 2012. The Rule is to come into effect on July 21, 2012 with a 2-year conformance period. Regarding the conformance period, the Federal Reserve Board announced the statement on April 19, 2012 clarifying that an entity covered by Section 619 of the Dodd-Frank Act has the full two-year period unless the Board extends the conformance period. According to the statement, during the conformance period, banking entities should engage in good-faith planning efforts, appropriate for their activities and investments, to enable them to conform their activities and investments to the requirements of section 619 and final implementing rules by no later than the end of the conformance period. In the case of Korean banks, they must now assess how the Rule regulates banks\' activities and investments first and then make preparations for the comprehensive extra-territorial effects of the Rule. In this article, I first review and summarize the content of the Rule and then go on to examine various issues which the Rule raises. I have also tried to identify several measures that Korean banks could take in response.
With respect to the extra-territorial effects of the Rule, even though there are several exemptions Korean banks may resort to, those requirements are too strict. Even in cases where
such exemptions may apply, Korean banks are required to adhere to comprehensive reporting,
recordkeeping, and compliance obligations imposed by the Agencies. The goal of the Rule is
to secure U.S. banks\' safety and soundness and the stability of the U.S. financial system.
However, certain extra-territorial effects of the Rule, as well as the complicated additional
requirements imposed by the Agencies have nothing to do with those goals. To prepare for
the adverse effects of the Rule against Korean banks, the latter may shut down their U.S.
branches, subsidiaries or agencies in order to ensure that the Volcker Rule does not apply to
them. Indeed, Deutsche Bank has already dropped its U.S. Bank status accordingly. Korean
banks may similarly believe that they will be able to prevent their subsidiaries from falling
within the scope of the Volcker Rule by pushing that subsidiary or entity outside of the relevant
banking entity. They might also consider aggressively taking advantage of the exemptions
given by the Rule. However, in the latter case, they would, in any event, be forced to reduce
the activities or investments of the relevant banking entity accordingly. In summary, whatever
path Korean banks take, it may simply not be possible for them to avoid the adverse effects
of the Volcker Rule on their current activities and investments. As a result, I argue that the
Korean government must make significant efforts, including filing appeals through diplomatic
channels, to prevent Korean banks from being unduly adversely affected by the Rule.