TED BUTLER COMMENTARY

August 21, 2006

First Nickel, Then Silver?

(This essay was written by silver analyst Theodore butler, an independent consultant. Investment Rarities does not necessarily endorse these views, which may or may not prove to be correct.)

This past week, the investment world witnessed an event that has only occurred rarely in the past. I am referring to the extraordinary developments in the nickel market on the London Metals Exchange (LME), the largest base metals exchange in the world. Due to an unprecedented scarcity of metal, the LME was forced to revise the delivery terms of its nickel contracts. In return for allowing short sellers to delay delivery of metal, a daily penalty fee of around 1% of the contract value was payable by the shorts to long holders.

Here are some excerpts from the LME’s press release of August 16 –

Although there has been widespread reporting of this event in all the popular media and news services, I have been thunderstruck by how mostly all of the reports have danced around the key fact at the heart of this matter. That key fact is that the LME just declared that its nickel contract has gone into default.

While Mr. Heale states that the action by the exchange is designed to prevent default, the action taken is nothing but a declaration of default, rendering his statement as absurd. Default is a simple word. Any time you unilaterally violate or negate the terms and conditions of any legal contract, that contract is in default. Period.

Moreover, a simple analysis of the situation reveals that the LME is aligning itself with the interests of the naked shorts in nickel, as common sense should tell you that no long holder asked the exchange to suspend the delivery obligation of the shorts.

I must say that it is troubling that with such widespread reporting of this event, the most important fact, the delivery default, seemed lost as a message. But make no mistake; this default is a most serious matter. In fact, as I have written previously, a contract default is the absolute worst event that could befall any exchange. In an instant, a delivery default renders an exchange suspect as an institution. It makes no difference if that exchange has existed for hundreds of years, a delivery default can immediately destroy the strongest reputation. This is the grave risk that the nickel debacle poses to the LME.

The main concern for the nickel market and the LME is that the abrogation of the shorts’ delivery obligation is not the end of problem, even though it may lead to the end of the LME itself. That is because legitimate long contract holders, particularly industrial consumers, have been left in a lurch by the deferral of delivery of actual metal. What do the industrial nickel users now do?

The legitimacy of any exchange or contract is based upon all conditions and obligations being upheld, and not suspended when it is expedient to certain interests. In the case of a futures or forward contract on a physical commodity, the most important conditions and obligations are those which guarantee and mandate how the contract is converted to actual delivery.

Although only a very small percentage of any futures contract normally results in actual delivery of the physical commodity, it is precisely the delivery mechanism that determines the legitimacy of the contract. Take away that delivery mechanism and you take away the legitimacy. Take away the delivery mechanism and all you have left is paper contract with no connection to the commodity involved. This is what has happened to the LME nickel contract – because the exchange has suspended the shorts’ responsibility to deliver actual metal, that contract has become, essentially, worthless to industrial consumers.

The key point here is not that every contract created between a long and a short will result in actual delivery, but that every contract will result in delivery if either party wants it to. Each party to a contract, the long and the short, entered into that contract voluntarily. No one held a gun to anyone’s head, forcing them to buy or sell any contract. It is unfair and illegal that any authority (the LME) intercedes on behalf of either side to override a contract that was entered into voluntarily.

What the LME has done in nickel is relieve the shorts of having to round up actual metal to deliver against their contractual promise to deliver, and unilaterally transferred the obligation to the longs, the industrial user. These industrial consumer longs (and other longs) entered into their nickel contracts voluntarily and legally, with the option of taking delivery. Now they are told, with no warning, they can’t take delivery and must secure metal elsewhere. The shorts don’t have to scramble for material they promised to deliver, the longs have to scramble for material they were legally promised to receive. Nothing could be more unfair.

Furthermore, as long as the shorts’ obligation to deliver nickel is suspended, there is no good reason for an industrial user to buy an LME contract. This is the greatest threat to the LME. And it’s not just deterrence for those buyers who want to take actual delivery. With the delivery mechanism destroyed in nickel, the linkage between the price of real metal and the LME contract is also destroyed. Without the requirement for delivery, the price of nickel on an LME contract and nickel in the real world loses its connection. In this case, the price of LME nickel is merely a figment of anyone’s imagination. What good does it do an industrial consumer to hedge on the LME, if there is no assurance his contract will converge with the price of actual metal on the delivery due date? Without the delivery mechanism, there is no linkage between paper contract and actual metal.

This is the real meaning of the LME’s delivery default. It is also the same thing with the short-side manipulation in COMEX silver. It is a coincidence that this LME nickel disaster has occurred precisely at the same time others and I have been alleging a manipulation in COMEX silver. However, nothing could prove our case more clearly.

A long-side manipulation, evidenced by a concentrated long position and prices higher than would be without the concentrated position, is something the regulators have vast experience in dealing with. While disruptive and illegal, long-side manipulations are usually short in duration and easy to terminate. The concentrated longs, usually speculators, are forced to sell their positions, causing prices to collapse and end the manipulation.

A short-side manipulation, like those in LME nickel and COMEX silver, is evidenced by a concentrated short position and prices lower than would be without the concentrated short position. (The concentrated short position in nickel has been reported in news stories, while the concentrated short position in COMEX silver is reported by the CFTC). The regulators have little or no experience with short side manipulations, and since the concentrated shorts are industry insiders, rather than outside speculators, there is little incentive for the regulators to move against their own.

The real problem with short-side manipulations is that it is very difficult to terminate without great damage because they have a long duration. When a short-side manipulation is terminated, like in LME nickel, it threatens great and lasting disruption to the actual market because the resultant shortage of material causes real hardship with no easy remedy. This is in addition to the damage caused to an exchange or contract involved in such a short-side manipulation, which ends in a delivery default.

Clearly, the UK regulators and LME officials waited too long to attack and resolve the short-side manipulation in nickel. If they had acted responsibly and forced the concentrated shorts to cease their manipulative activities, the delivery default might have been averted. Now it is too late in nickel, as the damage is done. Is it too late for silver?

I think there may still be time for the US regulators to act in silver and avoid a COMEX silver delivery default. But I also have my doubts. That’s because the CFTC and NYMEX/COMEX officials have been dragging their feet on the issue of the concentrated short position. Instead of promptly responding to allegations of manipulation and a looming delivery default, the regulators are stalling. Stalling didn’t benefit the regulators in LME nickel. It only made matters much worse.

In fact, the main, if not only, difference between nickel and silver is that the regulators will never be able to say they were not warned in silver. And if the regulators in silver still do not see how the recent events in LME nickel are directly foretelling what is going to happen in COMEX silver, then they do not deserve to be regulators any longer.

While I will continue to attempt to end the silver manipulation (with your help), it is entirely possible that government regulators and COMEX officials will continue to evade their legal responsibilities and allow the silver manipulation to exist, right up to the inevitable delivery default. That will be tragic, but it will be on their heads.

Fortunately, there is something else that you can do. You can take the debacle in LME nickel as yet another confirmation as what will happen in silver and position yourself accordingly. If there has ever been an exclamation point given to "buy and hold real silver", it has been given to you by the LME actions in nickel. If an exchange that has been in existence for hundreds of years can suddenly terminate delivery obligations in its contracts, how hard do you think it will be for those issuing pool and leveraged accounts in silver to do exactly the same thing? I think anyone holding such accounts needs to have their heads examined.

But the strongest message of the LME default is being sent to the silver industrial consumers of the world, because the biggest potential losers in nickel are the industrial users. If the LME can get away with suspending delivery requirements in nickel, how hard will it be for the COMEX to suspend delivery requirements in silver? Do you think the CFTC will come to your defense? The same CFTC that is stalling on the concentrated short issue in silver? Even more than those investors and speculators dealing in paper contracts, any user who is not stockpiling real silver inventories, in light of what just occurred on the LME, is missing the boat.