2000]COMMODITY FUTURES MARKET MANIPULATION 283
that "[m]arket authorities should have access to information that
permits them to identify concentrations of positions and the
composition of the market."3
"
Sumitomo was clear evidence of the fact that the LME had less
stringent supervisory requirements than those of U.S. exchanges. 39
For example, in 1996, the CFTC required disclosure of large positions,
whereas the LME merely made it voluntary for brokers to report their
large positions.' As articulated by the chairman of the Chicago
Board of Trade, large position reports arguably stifle the amount of
business that large traders will conduct on an exchange.' On the
other hand, the chairman of the NYMEX recognized that without the
rigorous reporting requirements set by the CFTC, Hamanaka may
have executed his attempt at manipulation directly on the U.S.
exchange. 2
Finally, the conference participants recommended that further work
be undertaken to ensure effective information sharing among market
regulators. 3 The conference report stated that regulators need to
share "relevant information concerning the supervision of their
respective markets, both on a routine basis and as needed, and to
promote communication among relevant personnel."' Moreover,
the participants agreed that they should "support [ ] efforts to
categorise and to prioritise the information which market authorities
may wish to share during specific market events, such as the
possibility of market manipulations."' 5 The agreement to share
information is vital in preventing further Sumitomo scandals. During
the fall of 1995, when the CFTC noticed the backwardation6 in the
copper market, the LME was reluctant to share information.'
Subsequent to Sumitomo, however, the CFTC and British regulators
signed a Memorandum of Understanding in which they consented to
cooperate with one another and to share supervisory information. -
In sum, the Tokyo Conference "encourages a parity of market
surveillance and information sharing among the jurisdictions of its
seventeen [sic] endorsing countries."- 9 If implemented, the solutions
proposed at the conference will make it much more difficult for rogue
traders like Yasuo Hamanaka to effectuate manipulative schemes.
33& Id at 7.
339. See supra Part IM.A. (describing the strict regulatory scheme on United States
futures markets as mandated by the CFrC).
340. See Volkman, supra note 281, at 237.
341. See id at 238.
342. See id
343. See Tokyo Conference, supra note 332, at 35.
344. Id. at 34.
345. Id. at 36.
346. See supra note 282 and accompanying text (describing backwardation).
347. See Volkman, supra note 281, at 239.
34& See id at 239-40.
349. Id at 240.
FORDHAM LAW REVIEW
Problematically, the proposed cooperative measures will only work if
the countries that endorsed the conference participants allow the
regulators to establish effective systems for market surveillance and
information sharing."' The combination of current domestic and
proposed international measures, nevertheless, are the right steps
toward preventing a severe manipulation problem, and these
measures provide the CFTC with multiple, simpler and quicker
methods of prosecution. 1
CONCLUSION
The purpose of prohibiting the concept of manipulation, regardless
of how one defines the term, is to avoid price movements that would
not otherwise exist and which ultimately cause damage to other
market participants. The CFTC is primarily concerned with
protecting the integrity of U.S. markets. Hamanaka's trading activity
in both the cash market for copper and in futures contracts on the
LME caused radical price movements on U.S. exchanges. These price
abnormalities were largely the result of three things. First, Hamanaka
did not face the strict regulations that the CFTC imposes on U.S.
exchanges. Second, Hamanaka was capable of speculating while
claiming a position as a hedger because of the tremendous amounts of
copper business conducted by the Sumitomo Corporation. Finally,
the LME's failure to cooperate immediately with the CFTC when it
alleged that there was a problem on the U.S. markets allowed
Hamanaka to push prices to exorbitant levels.
One could argue that Sumitomo demonstrates the need to revamp
the entire system to prevent a scandal in the physical commodity
futures markets. Yasuo Hamanaka did, in fact, capture almost 93% of
the physical supply of copper in addition to a dominant futures
position on the LME, thereby causing prices to rise to extravagant
levels. Very few players in the futures markets, however, have
enough time, capital, or creativity to implement a long market power
manipulation of a physical commodity with any degree of success. 5 3
Moreover, if the current regulatory structure is combined with more
careful monitoring of those who fall under the hedging exemption,
and increased cooperation among international regulatory authorities
becomes a reality, futures markets are more likely to avoid
detrimental situations like those witnessed in the Sumitomo scandal.
Ultimately, in the futures market for physical commodities, if the
LME had cooperated with the CFTC's investigation, the effect of
350. See id.
351. See, e.g., Markham, Unprosecutable Crime, supra note 25, at 357 & n.505
(discussing the extensive time periods that typically are required to litigate charges of
manipulation).
352. See supra notes 262-74 and accompanying text.
353. See supra note 270 and accompanying text.