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This article analyses the financial regulation of Special Purpose Acquisition Companies (‘SPACs’) in the European Union and SPAC reform in the UK against the main legal system where the SPAC originates: the US. I argue that the US and financial regulators in Europe have opposing views on SPACs, evidenced by the adoption of two different regulatory approaches. As opposed to a SPAC regulation by business or function and by enforcement in the US, the European Union and the UK are implementing a SPAC regulation by objectives, where general principles of company and financial law inform the SPAC legal discipline. This enormously enriches the SPAC current debate, and sheds new light on the subject.
Global financial crises and potential sovereign defaults provide an opportunity for financial regulators and analysts to revise assumptions in their risk models. These conditions are also an opportunity for regulators and analysts to distinguish the ‘hyper-real’ economy, represented by derivatives, from the real economy, which requires assessment through an analysis of human as well as financial capital. Regulators are required to demonstrate that they are skilled in conducting the most thorough analysis of all elements of the finance system in order to help the investing public to manage risk as much as possible. The contribution of this article is to overview the limitations inherent in regulators’ traditional focus on financial analysis, as well as in financial analysts’ failure to consider the relevance of people management data when evaluating the potential performance of knowledge-intensive, service-based organisations. The article argues for a stronger focus on analysis of non-financial capital, including human capital, to provide a more effective ‘early warning’ of potential financial distress.
The Hayne Royal Commission into Australian financial sector misbehaviour reported in February 2019. It is, however, unlikely to provide a lasting solution to problems of financial sector misbehaviour. It has identified a number of types of misbehaviour, their ‘proximate causes’ and recommended solutions to those. But, reflecting its limited mandate and limited time, it was unable to investigate the complex question of whether there are more deep-seated, fundamental issues driving financial sector misconduct, both in Australia and globally. This article argues that there are, and that consequently the benefits from the Royal Commission will be relatively short-lived, with misconduct likely to resurface, albeit in different guises.
Addressing the contribution of EU financial markets to unsustainable business practices is vital to realising the EU’s commitments on sustainability. In this chapter, we assess recent EU legislative progress in this field. We argue that legislative and regulatory mechanisms in the field of financial regulation are progressing too slowly to meet the EU’s self-imposed targets for sustainability. We argue that, on current trajectories, a fundamental recalibration of reform efforts is required in relation to financial system participants if a reduction in the funding of activities that cause damage to the environment and to the social foundation of humanity is to be achieved. To this end, we provide a menu of rapid and meaningful policy interventions.
This paper purports to study the enormous proliferation of fintech online peer-to-peer (P2P) lending in Indonesia, along with their risks and the prevailing regulations of fintech online P2P lending. This article also suggests a varied spectrum of regulatory actions for regulating online P2P lending as an approach to increase consumer protection and stimulate the growth of Indonesia’s financial inclusion. It highlights the regulative risks and challenges of fintech online P2P lending in Indonesia and has discovered various spectra of regulatory responses that the Indonesian government can practise to regulate this potential industry. Solid recommendations were also given to regulators to better develop the present regulatory framework. This paper adds to the literature on the prevailing practice of online P2P lending by offering a legal outlook involving legal protection and the newly emerging fintech industry from an Indonesian context.
Speculation has been mounting that the digital yuan will be used to displace the US dollar and circumvent sanctions. In retaliation, financial institutions can be targeted whereby US dollar payment or financial system access can be sanctioned. If the United States weaponizes the dollar, the digital yuan will not provide sanction protection beyond the status quo. The digital yuan’s true innovation is the ability to manage capital controls and facilitate financial liberalization. Being a programmable currency, the digital yuan enables Mainland China to open its economy more expeditiously than would normally be possible, while providing the regulatory levers to manage monetary and financial stability. Mainland technology companies are instrumental in the circulation of the digital yuan through electronic payment platforms. These same technology companies have recently established virtual banks and stored value facility payment platforms in Hong Kong. This chapter argues that technology is introducing new risks into Hong Kong’s banking system which pose a material risk to financial stability. To manage these risks, financial data supervision and infrastructure is required which currently does not exist. With the recent growth surge and volatility in cryptocurrency markets, the current approach of neglecting financial stability supervision is erroneous and reckless.
During the 2008–9 global financial crisis, credit default swaps created conduits in the financial system which facilitated the transmission of systemic risk. In response, the Financial Stability Board recommended over-the-counter derivative clearing through a central clearing counterparty. Although the Securities and Futures Commission is the designated supervisor and resolution authority for Hong Kong’s central clearing counterparty, OTC Clear, its supervisory ambit, capacity, and powers are insufficient to mitigate systemic risk and manage financial stability. This chapter argues that a securities supervisor is not the optimal supervisor or resolution authority for OTC Clear. Central clearing counterparties require credit and liquidity risk management which aligns more with banking supervision and central banking. This is supported by the dominance of foreign exchange and interest rate derivatives being traded in Hong Kong. The optimal resolution authority for OTC Clear is the Hong Kong Monetary Authority, being the resolution authority for systemically important banks, having monetary authority expertise that aligns with foreign exchange and interest rate risks, experience in mitigating credit and liquidity risks, and being designed to manage financial stability.
In the wake of the 2008–9 global financial crisis, the G20 devised a framework for a sustainable recovery based on international cooperation. An agreement was reached to ensure that inter alia macro-prudential and regulatory policies would support sustainable economies by preventing credit and asset price cycles from becoming forces for financial destabilization. The G20 recognized the importance of striking a balance between micro- and macro-prudential regulation to control risks, and to develop tools to monitor the build-up of systemic risk in the financial system. This chapter argues that the design of the supervisory structure is instrumental in striking the appropriate balance between these regulatory disciplines. Clear mandates and supervisory judgement are necessary to control this interdependent relationship. Regulatory underlap, gaps, and arbitrage can surface when the supervisory structure does not harmonize with legal infrastructure. To mitigate these regulatory flaws causing financial instability and producing unsustainable economies, supervisors must have sufficient capacity, expertise, awareness, and discretion. Attaining financial stability and a sustainable economy requires the supervisory structure or model, and the supervisor’s capacity and expertise to be harmonized with the legal infrastructure.
Banks fail when an illiquidity event depletes capital reserves. Liquidity is sourced from assets that can readily be transformed into cash or from wholesale funding markets and central banks. Basel III strengthens bank balance sheets by allowing supervisors to release capital and liquidity reserves during times of market liquidity stress. This chapter analyzes the implementation of the Basel III capital and liquidity reforms in Hong Kong, banking sector stability during the 2008–9 global financial crisis and the Covid-19 pandemic, and systemic supervision. Hong Kong is a unique international financial centre because it is overwhelmingly populated by domestic systemically important banks. Universal banking and Basel III compel banking sector supervision of Hong Kong’s securities and insurance sectors, despite falling outside the supervisory design of the Hong Kong Monetary Authority. This chapter argues that different supervisory structures and models affect the regulation and supervision of financial stability in Hong Kong’s banking sector. Insurance and wealth management products in the banking industry can produce systemic risks that might be overlooked by the Hong Kong Monetary Authority. Supervisory bias towards the banking sector in conjunction with cross-sectoral underlap could cause financial instability and a systemic banking crisis in Hong Kong.
This chapter provides a brief financial history of Hong Kong’s financial regulation and financial crises between 1841 and 1997. In the beginning, financial markets were subject to market-based regulation and the British colonial legal influence. Hong Kong took a long time to embrace financial regulation. The chapter argues that Hong Kong’s financial markets and the origins of financial regulation have developed, evolved, and shaped in response to a series of financial crises. Hong Kong underwent extensive market and regulatory change when the first modern banking crisis and stock market crash battered the economy between the mid-1960s and the early 1970s. The deposit-taking company and banking crises of the 1980s provided the impetus to develop the current regulatory and supervisory architecture. By 1997, subsequent regulatory reforms had shaped this architecture to resemble other developed financial centres, with the banking, securities, and insurance sectors having a designated supervisor and ordinance.
Managing banking sector liquidity in financial crises has historically depended on deposit protection and the lender of last resort. Deposit protection assuages market panics by guaranteeing that depositors will be paid if a bank fails. The lender of last resort is a capital injection to preclude a failure when an illiquid yet solvent bank has exhausted all other funding sources. This chapter analyzes deposit protection, the lender of last resort, and how different supervisory structures influence the implementation of these bank stabilization tools. Moreover, certain structures can adversely affect supervisors from fulfilling their financial stability mandates. Hong Kong is susceptible to a supervisory coordination failure from a statutory friction that prioritizes monetary over banking stability. A tension is created within the Hong Kong Monetary Authority which could compel the Financial Secretary to usurp control during a financial crisis. This tension exposes the Hong Kong Monetary Authority to macro-prudential underlap which could undermine its financial stability mandate. Despite these flaws, the statutory mandates of the Hong Kong Monetary Authority complement Hong Kong’s deposit protection and lender-of-last-resort policies, which have performed faultlessly over the past 20 years. However, neither approach has been sufficiently tested during this period.
Since the 1997 handover to Mainland China, Hong Kong has endured pandemics, recessions, and financial crises. Hong Kong’s financial supervisory architecture performed relatively well following the speculative attacks on the Hong Kong dollar and the Hang Seng Index during the 1997–8 Asian Financial Crisis, the liquidity crunch in the 2008–9 global financial crisis, and the economic shutdown from the Covid-19 pandemic. There have been no major supervisory failures or financial instability despite several international financial assessments and reviews recommending structural reforms. This chapter argues that these recent crises call for Hong Kong’s financial supervisory architecture to reflect on the financial system, rather than wait for a market failure to incentivize a redesign. The ongoing financial system integration with Mainland China is placing more reliance on supervisory coordination and cooperation to manage financial stability. Hong Kong is critical to Mainland China’s financial market liberalization and internationalization which will be a key driver of financial market growth in the future. As an international financial centre, Hong Kong is actively involved in market and regulatory developments. Hong Kong has taken a leading role to ensure its financial markets evolve and are fertile to embrace prevailing market trends.
In Hong Kong, the banking system is the primary source of financial stability risk. Post-2008 regulatory reforms have focused on financial stability policies and tools while neglecting the design of supervisory models. This book provides a comparative analysis of how supervisory models affect the management of financial stability regulations in Hong Kong's banking system. Regulatory issues discussed span prudential regulations, systemically important banks, unconventional liquidity tools, deposit insurance, lender of last resort, resolution regimes, central clearing counterparties and derivatives, Renminbi infrastructure, stock and bond connect schemes, distributed ledger technology, digital yuan, US dollar sanctions, cryptocurrencies, RegTech, and FinTech. A Regulatory Design for Financial Stability in Hong Kong elucidates the flaws and synergies in Hong Kong's banking regulatory framework and proposes conventional and innovative regulatory reforms. This book will be of great interest to banking, financial, and legal practitioners, central bankers, regulators, policy makers, finance ministries, scholars, researchers, and policy institutes.
Policy networks fulfil an important role within policymaking. Networks of public and private actors provide information to policymakers and may halt or accommodate policy change. Generally, these networks exhibit stability, but at times, they are transformed due to disruptive shocks. This article compares lobbying networks surrounding three EU financial regulatory agencies before and after the global financial crisis. Utilising network-analytical methods, the analysis assesses network change after the financial crisis and the subsequent institutional and regulatory reforms. The findings show that as lobbying networks expand, they become more fragmented. They also demonstrate that shocks stimulate the entrance of new interest groups and make repeat players more selective in their lobbying efforts. This implies that the financial regulation policy network becomes less club-like after the crisis, allowing new groups to inform regulators about their policy preferences.
Using the lens of history, A History of Financial Technology and Regulation illuminates recent changes to the world of finance. With lucid prose and the help of concrete examples, Seth Oranburg helps readers understand the role of technology in finance today, including complex phenomena such as mutual funds, cryptocurrencies, and the stock market itself. Chapters begin with basic principles and historical analogy before describing complex digital-investment strategies and instruments. Readers will also gain an introduction to key concepts in financial regulation, learning how law and regulations prevented some financial crises while perpetuating others. Oranburg concludes with ideas about what's next for finance and how the law should respond. This book will appeal to specialists and nonspecialists alike who are interesting in learning more about business, economics, finance, law, and regulation.
Americans demanded retribution from the mortgage lenders whose subprime loans defaulted and from investment bankers whose mortgage-backed securities sharply declined in value in 2007, leading to financial panic and the Great Recession. From 2008 to 2019, the federal government extracted hundreds of billions in fines from dozens of corporations, but few individual business executives were held accountable, and no senior banker was convicted of a crime. I use the trial court record of five government enforcement cases against individuals to explain this apparently anomalous result. I conclude that, in addition to a lack of funding, the prosecution effort was hindered by the government’s erroneous selection of cases to pursue. Further, the diffused nature of decision making in the mortgage finance market made it difficult to prove that any one senior-level participant had the criminal intent necessary for a conviction or a Securities and Exchange Commission civil fine or injunction. The trial results also support the argument that the growth and consolidation of investment banks from 1990 to 2008 created incentives for misconduct within the firms.
Recent developments in the international banking system, especially the 2007–9 crisis and subsequent wave of postcrisis regulation, have drawn increasing attention to the structural power of banks and banking systems. States need a functioning financial system to ensure the overall health of their economies, so states must shape policy to protect their financial firms. National financial systems may be dominated either by banks or by capital markets. In states where banks dominate provision of capital, states must shape policy to protect their banks because of their structural importance, independent of any lobbying or other direct action on the part of banks to exercise instrumental power. The entangling of structural and instrumental power means studying differences in structural power requires either careful case-study work or cross-national comparison of responses to a common shock. The implementation of the 2011 Basel III Accords provides just such an opportunity. This article offers a quantitative analysis of a new dataset of implementation of Basel III components in the Basel Committee on Banking Stability member states from 2011 to 2019 and demonstrates the structural power of banks in bank-based systems to accelerate implementation of favorable policies and slow implementation of unfavorable ones.
The United States’ financial regulatory structure is notoriously complex and defies categorisation. The structure embodies some of the principles of the Twin Peaks model, and yet a foggy mountain range better describes the US regulatory architecture – multiple peaks with murky demarcation. Criticism of the US structure is, at the same time, too easy and too hard. The structure is easy to criticise because of blatant overlaps that scream inefficiency, yet criticism is difficult because the clunky and complex structure works reasonably well, or at least is not obviously the primary cause of recent regulatory failures. Certainly, the Global Financial Crisis exposed regulatory gaps, the under-regulated shadow banking system is the classic example. Yet the then existing regulatory architecture did not account for the failure of agencies to utilise their authority in the run-up to the crisis. Structure may be important, but leadership is essential. This chapter begins with an overview of the US financial regulatory structure followed by a closer examination of the financial stability architecture in the US following the Global Financial Crisis and the very recent developments in that arena. Those recent developments are then evaluated alongside the Twin Peaks model.
As the Global Financial Crisis has demonstrated, any complex system is vulnerable to fragility without purpose and vigilance. 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 poses the risk of further policy uncertainty and instability. Responding to this crisis through resilience as either metaphor or organising framework is, however, problematic. This chapter argues that notwithstanding its increasing usage by international bodies such as the G20, resilience is not a neutral concept. Privileging resilience as an end in itself may prove counterproductive unless underpinned by a normative reset of the purpose of the corporation and the market, and the 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 and ineffectiveness of the Twin Peaks model in Australia.
This chapter argues that a Twin Peaks model designed around financial stability and market conduct regulators supervising all financial sectors would overcome the sectoral model’s limitations. This regulatory change supports the evolution and competitiveness of Hong Kong as an international centre for finance and technology. The proposed reform agenda concludes that technological developments, cost-effective and proportionate regulatory reforms, and a modern regulatory architectural design for setting internationally recognised standards of smart regulation enabled by regulatory technology or RegTech must be the path forward.