After much debate, politicians and central bankers are warming to the idea that banks should make preparations for their own failure. This plan -- memorably dubbed a "living will" by Mervyn King, governor of the Bank of England -- would allow regulators to wind down even large, cross-border institutions without putting public money at risk.

Alistair Darling, Britain's chancellor, wants to introduce legislation this autumn to force banks to draw up living wills. Such plans have drawn predictable squeals from bank executives, who claim the idea is hard to implement for large cross-border groups. They have a point. Nevertheless, bankers should embrace the idea, for the simple reason that it is better than any of the alternatives.

The status quo is no longer acceptable, so policymakers have three choices for dealing with large, systemically important financial institutions. The first is to make them smaller so that the collapse of any one bank would no longer threaten the system. The second option is to take a "zero failure" approach to regulation, along the lines of safety rules in the airline industry.

Both of these approaches have flaws. Small banks still pose a risk if they all collapse together. And preventing failures entirely would require a level of regulation that would stifle innovation and further reduce competition in financial services.

By contrast, a system of living wills would be far less intrusive. This is not to suggest the switch would be straightforward. Differences in national insolvency laws mean it is currently impossible to establish a consistent approach to winding up complex cross-border institutions. Politicians' desire to protect local depositors and taxpayers -- often at the expense of foreigners -- also complicates matters. Simplifying corporate structures that have evolved over decades will also not be easy.

And even assuming that all these problems can be overcome, governments would still struggle to convince investors that they were really willing to use their powers.

Yet rather than resisting change, banks should welcome it. If the industry can come up with a credible mechanism that protects taxpayers from its mistakes, it can make a case for maintaining some commercial freedom. This may not be simple. But the alternatives are even less attractive.

On Wall Street, this practice of taking collateral and reusing it is called rehypothecation. In essence, it's a form of free money for derivatives dealers to use as they please -- even to repost it as collateral to finance their parent company's own borrowings.

And we're talking big bucks. The International Swaps and Derivatives Association recently reported that derivatives dealers have taken in $4 trillion in collateral from their trading partners. That's an 86 percent increase over the $2.1 trillion in cash collateral those same dealers reported having on their books in early 2008.

Now it's not surprising that investment firms took in more collateral from their trading partners over the last year, when the financial markets were in turmoil. Cash collateral is one way for derivatives dealers to protect themselves against the risk of a trading partner defaulting on one of these sophisticated financial contracts.

There's nothing wrong with a dealer taking legitimate steps to insure an orderly unwind of a busted trade.

But Wall Street firms should not have free license to reuse this collateral any way they see fit. The Obama administration should revise its proposal to require derivatives dealers to hold all cash collateral in segregated escrow accounts that can't be reused or touched by the dealer.

The same rule should also apply with any collateral that is posted with a regulated exchange on which a derivative contract gets traded.

Right now, a party to a derivatives contract can request that any collateral be held in an untouchable, segregated account. But most derivatives traders don't do this because dealers often charge higher fees for keeping cash in segregated accounts.

A measure banning the redeployment of collateral by dealers would not only bring fairer pricing to the derivatives markets but would also eliminate another source of leverage for Wall Street firms.

And here's another thing a ban on rehypothecation would accomplish: it would make it easier to deal with the fallout from the collapse of a major derivatives dealer.

It has been estimated that Lehman Brothers, before it collapsed in September, redeployed tens of billions in collateral it took in as a derivatives dealer.

Nearly a year later, hedge funds, banks and other financial institutions that entered into derivatives transactions with Lehman are still trying to determine just where the cash they posted as collateral for those trades went. The litigation over those collateral disputes could take years to resolve.

Michael Greenberger, a former director at the Commodity Futures Trading Commission who teaches law at the University of Maryland, says rehypothecation benefits no one but the derivatives dealer. Worse, he says, allowing investment firms to reuse and redeploy collateral only complicates the "unwinding and resolution' of a collapsed dealer.

The goal of regulatory reform should be to minimize risk and take away any incentive for Wall Street firms to engage in the kind of hanky-panky that brought about the financial crisis. Barring derivatives dealers from redeploying collateral is a good place to start.

That's the message from the government's reluctance to swoop in and bail out one of the nation's biggest commercial lenders, CIT Group Inc, as it struggles to stay afloat. But even though CIT doesn't have the firepower to take down the global financial system, its failure would certainly be felt by some of the struggling small businesses that rely on its financing.

CIT is negotiating with its regulators to find a solution to its near-term liquidity problems, but speculation that it will file for bankruptcy has intensified after the Wall Street Journal reported that it was preparing for a possible filing.

Not that you can blame the Federal Deposit Insurance Corp and the tough-minded Sheila Bair for thinking twice about supporting a junk-rated lender that has already sucked in more than $2 billion of government funds.

A failure, however, could still hurt Main Street since it's sure to make already tight credit conditions even more restrictive for businesses already on the ropes. This is important for regulators as well as investors to keep in mind.

For the last two years, dangers in the esoteric corners of the opaque credit markets were the ones that needed minding. Problems with complicated and difficult-to-understand structured credit products helped fell financial giants like

Lehman Brothers and AIG who were supposed to know best how to manage risk.
Regulators have responded in kind with a blueprint for overhauling the system and a commitment to supporting firms that are too big to fail.

But the dangers are shifting. Though credit is flowing to large companies seeking to drum up funds through the debt markets, smaller ones are still finding it difficult to access funds. The National Federation of Independent Business reported that 16 percent of small-business owners reported loans were harder to get in May -- the highest reading since the recession of 1980-82.

A potential CIT failure could make matters worse. Though it may not be a household name, it is a major middle-market lender. Among its many business lines, the company is an important source of financing for thousands of small- and medium-sized businesses that don't have the heft to raise funds in the capital markets.

The lender's best business bits would certainly be picked up by larger banks, but that would most likely only take care of the most credit-worthy clients. There's sure to be some that would fall through the cracks into a world where access to credit is still challenging.

Even credit cards are harder to come by. Advanta, which specialized in small business credit cards, shut down its credit card accounts for future use after it ran into trouble.

This isn't to say the government needs to come to the rescue every time a financial institution gets in trouble. It doesn't. But CIT's potential failure should be a warning sign that while systemic risk has been cured, the credit crisis has not.

That means more pain is yet to come and the much-desired economic recovery could prove elusive for some time.

Update: See what my colleague Matthew Goldstein has to say on CIT here. And Rolf Winkler argues here why CIT shouldn't be bailed out.

Hedge funds get a particularly "light touch'' when it comes to government oversight in the Obama plan. Essentially, the administration is calling for a reinstatment of a Securities and Exchange Commisison rules that requires managers to register with the agency as investment advisors.  The rule was overturned by the federal courts, but many large hedge funds remained registered with the SEC--even though they weren't required to do so.

The registration requirement would give the SEC the authority to conduct periodic inspections and require hedge funds to report information on trading positions. But the information reported by the hedge fund would remain confidential and not shared with the general public.

Some in the $1.1 trillion hedge fund industry feared managers might be required to publicly report "short'' positions on stocks. But there's nothing of the sort in the administration's proposal.

In short, the registration requirement is no big deal and don't expect much squawking from the hedge fund industry. Obama gave them a great a big kiss.

It’s not exactly a wake, but participants at this year’s World Economic Forum have witnessed many of their most cherished beliefs being challenged, upended and sometimes ground in the mud.

Think of it as the “Davos Consensus,” a loose alignment of principles that held sway in this Swiss mountain resort and in large parts of the world over the past decade.

This consensus, which generally favoured the market over the state, “light-touch” regulation of financial services and the free flow of goods and capital across borders, is somewhere between on the defensive and in full, not always organised retreat.

What is a lot less clear is what might replace it.

It’s true that the global economic crisis and the debt bubble that preceded it did not deliver on much of the promises made by defenders of globalisation and market forces. Instead it was one of the biggest misallocation of resources in history; to housing and consumption that either wasn’t needed or really couldn’t be afforded.

Banks wiped out much of their capital base and their regulators failed spectacularly too, missing everything from the dangers of a build up in leverage to the Madoff Ponzi scheme.

Now the state is in the ascendant, both as an “investor” and regulator and as an economic force. Everywhere the talk is about stimulative government spending and although it’s intended to be a temporary measure while the economy recovers you do get the feeling that the shift in the balance between state and private enterprise might outlast the downturn.

And even though banks have not yet been widely nationalised, there is no doubt that the state is actually directing which parts of the economy get cash. The United States is buying mortgage related debt, Britain is bailing out its auto industry, and there is every chance that further investments in banks by governments will mean more control of how, where and to whom they lend.

It is too a huge contrast from last year, when the debate was about how much globalisation, in the form of sovereign wealth fund ownership of the western banking system, was tolerable. The sovereign funds aren’t buyers any more and the cash that is flowing into banking is mostly within individual states; governments ploughing funds into banks.

It’s really not too far-fetched to speculate that globalisation might have reached its high-water mark.

It is also absolutely certain that regulation of finance will be tighter.

“The ideology of the last decade was self-regulation which means no regulation,” NYU economist Nouriel Roubini told a panel discussion in Davos.

“If we don’t want a backlash against trade we have to have prudential regulation of the financial system.”

REGULATORY FREIGHT TRAIN

One tiny problem is that the stuff underlying the Davos consensus really was pretty good at doing lots of things, not least raising living standards in huge swathes of the developing world. States aren’t traditionally all that great at allocating resources either, and it is by definition impossible for them to explain when and how they will step back and let individuals pick up the ball.

Maybe most concerning is the threat of protectionism. Most governments who rescue their banks and spend money trying to stimulate their economies have a natural incentive to try and capture as much of the benefit as they can for their voters. If you are on the line for the losses of a big international bank, do you really want it to continue taking chances lending abroad? Wouldn’t it be more sensible to just go back to “basic” banking, lending to businesses you really know? That is a line we will hear more of and it is protectionism in another form.

There have also been moves in the United States to attach “Buy American” provisions to the $825 billion economic stimulus package. While it’s not exactly the Smoot-Hawley tariffs that made the Depression so much worse, it is a slippery slope. Even more regulation of financial services, needed or not, will tend to make states eager to bottle up their banks at home, the better to watch closely that they are not taking the wrong kinds of risks.

And while the move to allow judges to force loan amendments, so-called “cramdowns” on to investors makes very good economic sense, given the collapse in housing and the complexity of many mortgage securities, it raises questions about what other contracts won’t be honoured and will be repudiated by the state.

So what’s next? The consensus here is that the state will have to come in and clean up everybody’s messes but business executives don’t seem to have twigged yet that regulation is heading at them like a freight train.

Whatever the new rules are, the sooner governments can spell them out the sooner everyone else can get on with their newly diminished roles in the rebuilding.

– At the time of publication James Saft did not own any direct investments in securities mentioned in this article. He may be an owner indirectly as an investor in a fund.

There are a number of macro risks that will continue to grab headlines in 2009, including the conflicts in Afghanistan and Iraq, cross-border tensions and state instability in Pakistan, and Iran’s 
ongoing quest to develop advanced nuclear technologies.

These risks are real, and will not be resolved easily or quickly. But there are two other general groups of political risks that could be defining both for investors and policy makers: first, the prospect of a number of interrelated market risks in developed and emerging Europe, and second, the challenges faced by the United States regarding multilateral leadership (particularly in the area of financial regulatory reform).

Political risks have historically mattered much more in emerging markets, but political risk in the developed, industrial democracies is rising more quickly than anyone would have predicted a year ago.

Europe

Political-market risk in emerging Europe is significantly higher now than any time in the past decade. Russia and Ukraine, and even recent star “emerging Europe” performers such as Turkey, Hungary, and Romania face serious vulnerabilities in the coming 
year. In addition, western financial institutions based in countries
 like Germany, Italy and Austria are particularly vulnerable to a credit 
crisis in Eastern Europe, where they have large loan exposures. Russia’s growing anti-westernism, its state intervention in strategic
 economic sectors, and its assertive posture regarding Georgia have been widely discussed, and will remain concerns in
 2009.

This also plays into one of the most problematic country risk 
stories right now: Ukraine. Its steel-centric economy is in free
 fall due to dramatically reduced global demand, many of its companies
 have large foreign debt financing needs that they will struggle to meet, 
 and its domestic politics are gridlocked and bordering on 
dysfunctional.

Add serious ongoing tensions with Russia to the list, and 
the situation looks bad from almost every angle. The year has
 already started badly, with Gazprom cutting gas supplies 
to Ukraine, and the
 standoff highlights the growing animosity between Moscow and Kiev.

The global financial and credit crises, combined with recession in
 Western Europe, have exposed several other countries in emerging Europe 
to serious financial market risks. In Hungary, the IMF and the 
EU needed to step in with a dramatic aid package in order to head off a potential currency and bond market collapse. And in Romania, there are
 growing concerns about a real estate bubble, rapidly declining economic
 growth, and the evaporation of repatriation cash flows from Romanians 
living in Italy and Spain.

Both the Hungary and Romania stories highlight the increasing 
interconnectedness of political and market risk in the EU. The newer
 member states can no longer be considered in relative isolation from the
 core, Western European countries.

The most notable example is the 
exposure of Western banks to credit risk in Eastern Europe. In recent
 years western banks have made substantial home mortgage, consumer, and
 business loans to eastern Europeans that were denominated in western 
currencies. The borrowers were
 exposed to local currency risks that the often did not fully understand
.

Italy, 
 Austria, and Germany had the largest exposures. Now these western
 governments may need to step in to assist with the solution. In fact, if
 the EU and European Central Bank had not intervened in dramatic fashion 
in Hungary, a number of western-European banks and pension funds would
 have been in very serious trouble. The problem is that this may only be 
the beginning of a crisis that could involve dozens of countries in both 
the East and the West.

The U.S. and Multilateralism

In the past several years the dynamics of “multilateralism” have evolved 
fairly dramatically. Two central developments this year:

1.  A number of
 additional players such as India, China, and Brazil are actively
 seeking to play a larger role in multilateral negotiations and 
institutions.

2.  The U.S. is in the process of a presidential 
leadership transition, with an expectation that the new administration
 will address these issues differently than its predecessor.

This new environment presents both challenges and opportunities. A 
larger number of “key” players at the table means that policy 
coordination could be much more difficult - a classic collective action
 problem. At the same time, engaging newer, emerging-market countries may 
make sustainable “breakthrough” outcomes more plausible, as these 
countries will be central to tackling complex issues such as climate 
change and global trade.

Prior to September of 2008, the central challenges of 
multilateral cooperation were in areas such as energy/climate change, 
 trade, and security. Then the global financial and credit crisis offered 
an almost perfect experiment. How would the world’s leading 
countries, along with those who aspired to positions of greater 
leadership (e.g. China, India, Brazil) manage this systemic crisis?

When it comes to a new financial regulatory architecture, the U.S. is 
likely to find support for its agenda in the UK and China, who will
 share the its general aversion to giving meaningful regulatory authority 
to multilateral institutions such as the IMF. As long as these three key
 players can agree on general principles for market regulation, power 
will remain in the hands of national governments rather than any
 multilateral organization.

But this 
is where a key, lurking political risk comes into play - can the U.S.
 actually take the lead in developing a coherent approach to new 
regulation of capital markets?

Congress will probably feel that it needs to act in a dramatic
 fashion and enact new legislation. The Treasury and the Federal Reserve 
will also have serious, and potentially conflicting agendas. So even if
 the multilateral dimension looks manageable, the domestic and
 bureaucratic politics of new regulation present a substantial new risk.