Pub Date : 2019-04-22DOI: 10.1080/17521440.2019.1602696
David G Millhouse
The Australian Government is in receipt of landmark advice: Heydon Royal Commission, Productivity Commission, and the Hayne Royal Commission. Each of them points to deep systemic and cyclical problems in the provision of financial products and financial services. Whilst the Hayne Royal Commission identified egregious behaviour in banks and large financial institutions, far greater economic damage has occurred in less well known sectors of the Australian financial system. Australian law regulating and supervising Non-Bank Financial Entities (NBFEs) has failed those it purports to protect: the vulnerable investing public. Systemic failure manifests in extraordinary loss of investor funds and nationwide economic damage. Without substantial law reform, this author predicts systemic deficiencies in regulation will remain, repeating their cyclical manifestations. Australia’s plight is not unique but no other nation with a sophisticated economy now suffers comparatively. Blame is being attached to the basic policy framework whereas in fact it is policy implementation and enforcement that has allowed systemic failures to manifest. Research demonstrates that inherent tensions between entrepreneurship and investor risk, optimal investor outcomes balanced with compliance, are not of themselves contradictory in a market based system, but they rely upon defining objectives, eliminating conflicts of objectives and conflicts of interest, significantly enhanced behavioural standards of market participants, and the de-politicisation of the regulatory environment. This analysis demonstrates that fiduciary principles are misunderstood, applied haphazardly, often ignored, and subservient to specific statutory and contractual provisions. Australia has a history of subsuming fiduciary principles behind statutory and contractual frameworks facilitating grudging disclosure and creeping corruption. Community expectations of what each market participant should do is often different from what they actually do. Hayne’s real message is the need to link law and morality, community norms and expectations with legal reality.
澳大利亚政府收到了具有里程碑意义的建议:海登皇家委员会、生产力委员会和海恩皇家委员会。它们都指出了金融产品和金融服务提供中深层次的系统性和周期性问题。虽然海恩皇家委员会(Hayne Royal Commission)发现了银行和大型金融机构的恶劣行为，但在澳大利亚金融体系中不太知名的部门，经济损失要大得多。澳大利亚法律对非银行金融实体(NBFEs)进行监管和监管，但却未能保护其声称要保护的群体:脆弱的投资大众。系统性失灵表现为投资者资金的巨大损失和全国性的经济损失。笔者预测，如果没有实质性的法律改革，监管的系统性缺陷将继续存在，并重复其周期性表现。澳大利亚的困境并不是个例，但其他经济发达的国家现在都没有这样的遭遇。人们把责任归咎于基本的政策框架，而实际上是政策的实施和执行导致了系统性的失败。研究表明，企业家精神和投资者风险之间的内在紧张关系，投资者的最佳结果与合规之间的平衡，在基于市场的体系中本身并不矛盾，但它们依赖于确定目标，消除目标冲突和利益冲突，显著提高市场参与者的行为标准，以及监管环境的非政治化。这一分析表明，信托原则被误解，随意适用，经常被忽视，并服从于具体的法律和合同条款。澳大利亚有将信托原则纳入法律和合同框架背后的历史，这些框架助长了不情愿的披露和蔓延的腐败。社区对每个市场参与者应该做什么的期望往往与他们实际做的不同。海恩真正要传达的信息是，需要将法律与道德、社区规范和期望与法律现实联系起来。
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Pub Date : 2019-04-22DOI: 10.1080/17521440.2019.1602923
David G Millhouse
Australia has arguably benefited from its market based regulatory system and progressed toward its first objective of an entrepreneurial wealth creating society competing with its global peers; the second objective, being investment stability and risk mitigation, has for many people been an abject disaster. Proposed reforms to balance entrepreneurial market conduct with investor and beneficiary risk mitigation rely on themes established by Cooper (personal liability of superannuation trustee directors), Heydon (elimination of unhealthy culture), Hayne (confluence of law and morality) and the Productivity Commission (trust). The Australian government must act. It must do so strategically. It must establish the nexus between the intent of the law and its practical implementation for those it purports to serve. Parliament has yet to debate these underlying causes. If it does, then it must confront the distinction between fiduciary and non-fiduciary duties and recognise the power of fiduciary law. Confused parliamentary leadership has facilitated corruption of the regulatory system. These are philosophical as well as legal questions. Hayne points to the need for a framework for the re-integration of the intent and spirit of the law with its statutory manifestations. This paper is that framework.
{"title":"Empirical analysis supports the Hayne long run reform thesis","authors":"David G Millhouse","doi":"10.1080/17521440.2019.1602923","DOIUrl":"https://doi.org/10.1080/17521440.2019.1602923","url":null,"abstract":"Australia has arguably benefited from its market based regulatory system and progressed toward its first objective of an entrepreneurial wealth creating society competing with its global peers; the second objective, being investment stability and risk mitigation, has for many people been an abject disaster. Proposed reforms to balance entrepreneurial market conduct with investor and beneficiary risk mitigation rely on themes established by Cooper (personal liability of superannuation trustee directors), Heydon (elimination of unhealthy culture), Hayne (confluence of law and morality) and the Productivity Commission (trust). The Australian government must act. It must do so strategically. It must establish the nexus between the intent of the law and its practical implementation for those it purports to serve. Parliament has yet to debate these underlying causes. If it does, then it must confront the distinction between fiduciary and non-fiduciary duties and recognise the power of fiduciary law. Confused parliamentary leadership has facilitated corruption of the regulatory system. These are philosophical as well as legal questions. Hayne points to the need for a framework for the re-integration of the intent and spirit of the law with its statutory manifestations. This paper is that framework.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"13 1","pages":"162 - 187"},"PeriodicalIF":0.0,"publicationDate":"2019-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1602923","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44778672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-15DOI: 10.1080/17521440.2019.1605663
Terry A. Marsh, Gene Phillips
We discuss the recommendations of the Royal Commission into Banking and its admirable restraint in avoiding the temptation to call for more regulation: the 2,300 page U.S. Dodd-Frank Act and its progeny have amply demonstrated the perils of that approach. We identify elements of the banking and advisory market that pose challenges in implementing the positive changes called for in the Commission’s Report, and potential solutions. We offer three favoured candidates for overcoming anticipated resistance to implementation: learning from the technology giants; creating a meaningful enforcement program; and building a regulatory measurement system that enables a broader spectrum of clients to better assess and compare providers’ performance.
我们讨论了皇家银行委员会(Royal Commission into Banking)的建议，以及它在避免呼吁加强监管的诱惑方面令人钦佩的克制:美国长达2300页的《多德-弗兰克法案》(Dodd-Frank Act)及其后续法案充分证明了这种做法的危险。我们确定了银行和咨询市场中对实施委员会报告中所要求的积极变革构成挑战的因素，以及潜在的解决方案。我们为克服预期的实施阻力提供了三种有利的选择:向科技巨头学习;制定有意义的执法计划;建立一个监管衡量体系，使更广泛的客户能够更好地评估和比较供应商的表现。
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Pub Date : 2019-04-11DOI: 10.1080/17521440.2019.1603266
Alex Erskine
Illicit financial flows is a concept which will influence legal and regulatory developments for financial markets for the next decade and beyond. This note is intended to alert the sector and its lawyers and help them engage with the concept and its practical evolution. United Nations member countries are moving to meet their commitments to achieving Sustainable Development Goals, which include reducing illicit financial flows by 2030. It outlines some of the decisions that need to be made to make effective the commitment. Actions to curb illicit financial flows are being discussed and implemented, both locally and globally. This perspective suggests that it will be rewarding if some in banking and financial markets help those seeking to curb illicit financial flows.
{"title":"Engage with Illicit Financial Flows","authors":"Alex Erskine","doi":"10.1080/17521440.2019.1603266","DOIUrl":"https://doi.org/10.1080/17521440.2019.1603266","url":null,"abstract":"Illicit financial flows is a concept which will influence legal and regulatory developments for financial markets for the next decade and beyond. This note is intended to alert the sector and its lawyers and help them engage with the concept and its practical evolution. United Nations member countries are moving to meet their commitments to achieving Sustainable Development Goals, which include reducing illicit financial flows by 2030. It outlines some of the decisions that need to be made to make effective the commitment. Actions to curb illicit financial flows are being discussed and implemented, both locally and globally. This perspective suggests that it will be rewarding if some in banking and financial markets help those seeking to curb illicit financial flows.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"13 1","pages":"250 - 253"},"PeriodicalIF":0.0,"publicationDate":"2019-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1603266","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42041388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-31DOI: 10.1080/17521440.2019.1602694
S. Turnbull
This paper considers the efficacy of the Australian government's 2018 initiatives to counter widespread misconduct identified by its Royal Commission into misconduct in the banking, superannuation and financial services industry. As regulators exist to protect stakeholders, introducing stakeholders as co-regulators provides continuous intimate comprehensive identification of misconduct. The role, size, cost and intrusiveness of regulators are reduced. Regulators could use their discretionary powers to encourage firms to: (a) remove current unethical conflicts inherent in corporate constitutions; (b) establish constructive management of other conflicts; (c) provide independent voice to stakeholders for improving operations, competiveness, reporting misconduct, harms, risks or unsatisfactory service.
{"title":"Causes and solutions for misconduct in the financial services industry","authors":"S. Turnbull","doi":"10.1080/17521440.2019.1602694","DOIUrl":"https://doi.org/10.1080/17521440.2019.1602694","url":null,"abstract":"This paper considers the efficacy of the Australian government's 2018 initiatives to counter widespread misconduct identified by its Royal Commission into misconduct in the banking, superannuation and financial services industry. As regulators exist to protect stakeholders, introducing stakeholders as co-regulators provides continuous intimate comprehensive identification of misconduct. The role, size, cost and intrusiveness of regulators are reduced. Regulators could use their discretionary powers to encourage firms to: (a) remove current unethical conflicts inherent in corporate constitutions; (b) establish constructive management of other conflicts; (c) provide independent voice to stakeholders for improving operations, competiveness, reporting misconduct, harms, risks or unsatisfactory service.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"13 1","pages":"113 - 99"},"PeriodicalIF":0.0,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1602694","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42513958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-03DOI: 10.1080/17521440.2019.1626545
Hossein Nabilou
The ultimate objective of cryptocurrencies is to become a payment system substituting, complementing, or competing with the conventional payment systems. Irrespective of whether such an objective could be accomplished, the functional similarities between certain cryptocurrencies and fiat money has persuaded competent authorities of certain EU Member States to grant payment institution licenses to cryptocurrency exchanges. At first blush, granting such an authorization would seem to be a step forward as it would bring otherwise unregulated cryptocurrency exchanges within the scope of the existing payment regulatory framework. However, this authorization effectively applies payment laws to new payment infrastructures that rely on volatile settlement assets with probabilistic finality. Since the volatility and finality risks cannot be fully addressed under the existing payment laws, an alternative policy option would be granting a special license to cryptocurrency businesses or introducing ring-fencing mechanisms to protect the conventional payment systems from the risks of cryptocurrency payments.
{"title":"The dark side of licensing cryptocurrency exchanges as payment institutions","authors":"Hossein Nabilou","doi":"10.1080/17521440.2019.1626545","DOIUrl":"https://doi.org/10.1080/17521440.2019.1626545","url":null,"abstract":"The ultimate objective of cryptocurrencies is to become a payment system substituting, complementing, or competing with the conventional payment systems. Irrespective of whether such an objective could be accomplished, the functional similarities between certain cryptocurrencies and fiat money has persuaded competent authorities of certain EU Member States to grant payment institution licenses to cryptocurrency exchanges. At first blush, granting such an authorization would seem to be a step forward as it would bring otherwise unregulated cryptocurrency exchanges within the scope of the existing payment regulatory framework. However, this authorization effectively applies payment laws to new payment infrastructures that rely on volatile settlement assets with probabilistic finality. Since the volatility and finality risks cannot be fully addressed under the existing payment laws, an alternative policy option would be granting a special license to cryptocurrency businesses or introducing ring-fencing mechanisms to protect the conventional payment systems from the risks of cryptocurrency payments.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"14 1","pages":"39 - 47"},"PeriodicalIF":0.0,"publicationDate":"2019-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1626545","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41545517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-02DOI: 10.1080/17521440.2019.1571667
Diederik Bruloot, Evariest Callens, M. De Muynck
The European Mortgage Credit Directive (MCD) aims to create a Union-wide mortgage credit market with a high level of consumer protection. While focussing on the primary policy objective, i.e. facilitating the emergence of an internal market for mortgage credit, this paper analyses the MCD’s regulation of the activities of credit intermediaries, and the rules on establishment and supervision of credit intermediaries in particular. As professional middlemen, credit intermediaries could reduce information asymmetries between on the one hand creditors and on the other hand consumers. Against the background of Fintech intermediary disruption and the increasing importance of digital distribution channels for financial services, our paper analyses whether and/or to what extent the MCD’s prudential rules for credit intermediation qualify as true “enablers” for an Internal market for mortgage credit.
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Pub Date : 2019-01-02DOI: 10.1080/17521440.2018.1560535
J. O'Brien
As the Global Financial Crisis has demonstrated, fragility without purpose and vigilance is the defining characteristic of any complex system. The tentacles of the finance industry traverse state boundaries. They create moral and economic hazards as well as opportunities. Each poses legitimacy and authority implications. Failure to address those threats have contributed to a populist turn which, in turn, runs the risk of further policy uncertainty and instability. Responding to this crisis through resilience as both metaphor and organising framework is, however, problematic. The paper argues that notwithstanding its increasing usage, resilience is not a neutral concept. Privileging resilience as an end in itself may prove counter-productive unless underpinned by a normative reset of the purpose of the corporation and the market and duties and responsibilities each owe to society. It concludes that without clear definition of purpose and accountability regulatory structural form is irrelevant, as demonstrated by the failure of the twin peak model in Australia.
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