Amid the swathe of proposed rules and regulations that are likely to apply to banks, financial institutions, rating agencies and others in the wake of the financial crisis, there are a significant number of new rules relating to capital adequacy treatment for securitisation transactions.

Although widely dubbed Basel III, the proposed rules do not really constitute a new regime so much as a series of amendments to the existing Basel II framework. Like a bad Hollywood sequel, the danger is that Basel III will be longer, more involved and less thought through than the original (and probably worse received by its target audience).

The initial proposals put forward by the Basel Committee focus on a number of key areas for reform intended to rectify the perceived failings of the previous regime. The European Commission (EC) has been quick to take them up and add to them. It has brought out successive papers of its own to amend the Capital Requirements Directive (referred to as CRD II, CRD III and CRD IV – it really is like the movies!), further raising the bar.

For instance, to try to prevent banks from simply passing risk on to luckless investors, one of the new requirements of the CRD forces banks to maintain a 5% stake in the deals they have structured – the so called 'skin in the game' rule. The argument is that if a bank has to keep exposure in a securitisation, then it will undertake greater due diligence and be less likely to put together deals with unacceptable risk profiles.

The changes do not end there. Likely to be among the least popular are the significant increase in disclosure (there is no real evidence that investors read all the materials they get anyway); the higher capital risk weightings; further regulation of rating agencies (upon which ratings capital treatment will still largely depend); alignment of treatment between the trading and banking books so that capital treatment for items held in either is broadly similar; increased supervision by the regulator (with real penalties for infractions); and a massive liquidity coverage ratio.

All of these appear to be excellent protective measures in theory, but the devil is likely to be in the detail. Some questions that still need to be addressed are:

1) If it becomes so difficult to hedge, disclose and trade so as to discourage all but the largest and most determined participants, will this actually assist the sensible development of a market that needs to be restored if the world economy is to emerge from a global downturn?

2) Can the regulators themselves really cope with the additional volume of documents/supervision visits/inspections/penalties proposed by the new rules?

3) If regulators introduce narrowly-drawn but extensive and significant liquidity coverage ratios, forcing every bank to hold high-quality cover for 100% or more of its exposures, will this not simply damage already depressed lending activity?

There have been significant market response papers to the various consultation papers released by the Basel Committee, the EC and the UK Financial Services Authority respectively. The problem is that the new rules will begin to bite from October 2010 and apply to securitisations from January 2011. I am not sure we are ready for them, or, like Jaws III or Rocky IV, that the concept has been properly thought through before being shown to a bemused public.

Jonathan Walsh (pictured) is head of the London structured capital markets team and co-head of the global securitisation group at Baker & McKenzie.