Eugene Scalia, the high-profile lawyer the financial industry has hired to challenge the CFTC over its guidance for cross-border derivatives transactions, accused the agency of using "boilerplate disclaimers" to give an inaccurate impression its cross-border rules were not legally binding. "The commission wants to have it both ways: on the one hand it wants the prescriptions laid down in the cross-border rule treated as binding legal requirements, while on the other it does not want to follow the procedural requirements of the APA and the CEA," Scalia said in court documents filed last week. The CFTC earlier told a federal district court in Washington, D.C. that nothing in U.S. law required the CFTC to implement the cross-border rules through the rulemaking process. The agency claimed it issued the cross-border rules in the form of guidance rather than as "rigid rules” because the global swaps market was a dynamic market that continued to evolve. Scalia, who is a partner in
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