The Accountability of Financial Regulators

Name: The Accountability of Financial Regulators | A European and International Perspective
Brand: Kluwer Law International
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A European and International Perspective

Pablo guez(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 28. November 2013

392 Seiten

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978-90-411-4819-3 (ISBN)

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Beschreibung

This book is the first to provide a multilevel, comparative, interdisciplinary, and practical analysis of the legal aspects pertaining to the accountability of FRSAs. Its points of reference include pre- and post-crisis regulatory schemes in three comparable but diverse jurisdictions (Spain, the United Kingdom, and the United States of America), in the European Union, and in three international networks of FRSAs. The study evaluates and critiques the financial supervision architectures and reforms undertaken during the period 2009-2013. Centering his analysis on the various roles that legislatures, governments, and stakeholders (the financial industry, consumers, society at large) play as forums and actors to which FRSAs are accountable, the author engages with the following issues and much more:

legal, political, and economic reasons behind differences in statutory approaches to FRSAs' accountability;
models of accountability emerging from post-crisis overhauls;
complementarities between the accountability structures operating at different jurisdictional levels and between instruments of accountability;
reporting and disclosure duties of FRSAs; and
participation of stakeholders in financial policymaking.
The analysis includes abundant examples of applications of accountability mechanisms in different jurisdictions, such as appointment procedures of the heads of FRSAs, instances of judicial or quasi-judicial challenge of FRSAs' decisions, and claims for damages brought against FRSAs. Quantitative data is used where appropriate. The multilevel analysis - comparative, European, international - provides a comprehensive overview of the accountability of FRSAs and permits a comparison among different levels of regulation. The study sheds clear light on the impact of the FRSAs' accountability on the soundness of financial markets, the protection of investors, the stability of the financial system, and democratic control and justice. It also assesses whether and how post-financial crisis reforms have addressed the accountability shortcomings of the pre-crisis setting. For all of these reasons, it will be warmly welcomed by lawyers, academics, and policymakers working in financial services and related fields.

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Dedication
Table of Contents
Preface
Acknowledgments
CHAPTER 1 The Accountability of Financial Regulation and Supervision Authorities: The Defining Elements
§1.01 INTRODUCTION
§1.02 THE ACCOUNTABILITY OF FINANCIAL REGULATION AND SUPERVISION AUTHORITIES (FRSAs)
§1.03 ACCOUNTABILITY TOWARDS POLITICAL FORUMS AND STAKEHOLDERS
[A] The Power to Call-to-Account and to Hold-to-Account
[B] Political Forums
[C] Stakeholders
[D] Other Accountors
§1.04 THE TIME OF ACCOUNTABILITY: EX-ANTE AND EX-POST ACCOUNTABILITY
§1.05 THE GROUNDS OF ACCOUNTABILITY
§1.06 THE MEANS OF ACCOUNTABILITY
§1.07 WHY IS THE ACCOUNTABILITY OF FRSAs IMPORTANT?
[A] The Accountability of FRSAs as a Source of Independence
[B] The Accountability of FRSAs as a Source of Democratic Control
[C] The Accountability of FRSAs as a Source of Regulatory and Supervisory Performance
[D] The Accountability of FRSAs as a Source of Corrective Justice
[E] The Accountability of FRSAs as a Source of Legitimacy
§1.08 UNDERSTANDING FAILURES IN THE ACCOUNTABILITY OF FRSAs
§1.09 REASONS, RESEARCH QUESTIONS, STRUCTURE AND METHODOLOGY OF THE BOOK
[A] Reasons for the Study and Main Research Questions
[B] Structure and Jurisdictions Analyzed, Period Covered and Other Methodological Aspects
[1] Structure and Jurisdictions Analyzed
[2] Period Covered
[3] Interdisciplinary Approach with a Legal Focus
[4] Accountability in Theory and in Practice
PART I The Accountability of Financial Regulation and Supervision Authorities in Spain, the United Kingdom and the United States of America
CHAPTER 2 The Structures of Financial Regulation and Supervision in Spain, the UK and the US
§2.01 INTRODUCTORY REMARKS
§2.02 THE DIFFERENT APPROACHES TO THE INSTITUTIONAL STRUCTURE OF FINANCIAL SUPERVISION
§2.03 THE STRUCTURE OF FINANCIAL SUPERVISION IN SPAIN, THE UK AND THE US
[A] The Structure of Financial Supervision in Spain
[1] Banking: Banco de España (BdE)
[2] Insurance: Dirección General de Seguros y Fondos de Pensiones (DGSFP)
[3] Securities: Comisión Nacional del Mercado de Valores (CNMV)
[4] The Financial Crisis and the Reform of the Spanish System of Financial Supervision: Towards a Twin Peaks Structure?
[B] The Structure of Financial Supervision in the UK
[1] From 1997 to 2012: Integrated Supervision
The Tripartite Scheme: The Bank of England (BoE), the Financial Services Authority (FSA) and the Treasury
[a] The Bank of England (BoE)
[b] The Financial Services Authority (FSA)
[2] The Financial Crisis in the UK and the Reform of the System towards a Twin Peaks Model
[C] The Structure of Financial Supervision in the US
[1] The Institutional Structure of Banking Supervision in the US
[a] The Board of Governors of the Federal Reserve System (Board of Governors of the Fed)
[b] The Federal Deposit Insurance Corporation (FDIC)
[c] The Office of the Comptroller of the Currency (OCC)
[2] Insurance Supervision in the US: State-Based Supervision and the National Association of Insurance Supervisors (NAIC)
[3] The Institutional Structure of Securities Supervision in the US
[a] The Securities and Exchange Commission (SEC)
[b] The Commodity Futures Trading Commission (CFTC)
[4] The Dodd-Frank Act: Towards a Twin Peaks Model?
§2.04 THE FAILURES IN THE ACCOUNTABILITY OF FRSAs TOWARDS POLITICAL ACTORS AND STAKEHOLDERS BEFORE THE FINANCIAL CRISIS
[A] Failures in the Accountability of FRSAs towards Political Forums
[1] Passivity of Parliaments over the De-regulatory Approaches Adopted by FRSAs
[a] The Case of Alternative Net Capital Requirements for Brokers/Dealers in Consolidated Supervised Entities
[B] Failures in the Accountability of Financial Supervisors towards Stakeholders: The Failure of FRSAs to Listen to Stakeholders - or to Some of Them
[1] FRSAs Were Captured by the Financial Industry: The Case of OTC Derivatives
[2] FRSAs Largely Dismissed the Interests of the General Investing Public and the Objective of Financial Stability
[a] Lending Malpractices: Advocate Groups and the Fed
[b] Dismissing Red Flags: Madoff, Markopolos and the SEC
§2.05 CONCLUSIONS
CHAPTER 3 The Accountability of FRSAs towards Political Forums in Spain, the UK and the US
§3.01 INTRODUCTION: THE ACCOUNTABILITY OF FRSAs TO POLITICAL FORUMS
§3.02 THE APPOINTMENTS AT FRSAs: THE ROLE OF GOVERNMENTS AND PARLIAMENTS
[A] The Appointments and Removals at FRSAs in Spain
[1] Banking Sector: The Appointments and Removals at the Banco de Espana (BdE)
[2] Insurance Sector: The Appointments and Removals at the Dirección General de Seguros y Fondos de Pensiones (DGSFP)
[3] Securities Sector: The Appointments and Removals at the Comisión Nacional del Mercado de Valores (CNMV)
[4] Recent Developments in the Appointments at Spanish FRSAs
[B] The Appointments and Removals at FRSAs in the UK
[1] The Appointments and Removals at the Bank of England (BoE)
[2] The Appointments and Removals at the Financial Services Authority (FSA)
[3] The UK Institutional Reforms in the Field of Financial Regulation and Supervision: The Appointments and Removals at the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA)
[C] The Appointments and Removals at FRSAs in the US
§3.03 PARLIAMENTARY HEARINGS WITH REPRESENTATIVES FROM FRSAs
§3.04 BUILDING TRANSPARENT FRSAs? THE ROLE OF REPORTING AND DISCLOSURE DUTIES
§3.05 CONTROLLING THE BUDGETS OF FRSAs
§3.06 CONCLUSIONS
[A] The Heterogeneity of Accountability Models and Practices across Jurisdictions
[B] Why Do Different Jurisdictions Adopt Diverse Accountability Schemes?
[C] The Post-financial Crisis Reforms in Spain, the UK and the US
[D] Accountability and Independence
[E] The Limitations of the Legal Design of Accountability
CHAPTER 4 The Accountability of FRSAs towards Stakeholders in Spain, the UK and the US
§4.01 INTRODUCTION
4.02 PARTICIPATION OF STAKEHOLDERS IN FINANCIAL POLICY-MAKING
[A] Constitutional and Legislative Frameworks Regarding Stakeholder Engagement
[B] Public Consultations
[C] Stakeholder Consultative Bodies
[1] Asymmetric Representation as a Source of Asymmetric Accountability
[2] Stakeholder Consultative Bodies: Which Way Forward?
§4.03 THE CREATION OF FRSAs AND OF FRSAs' BODIES IN THE CONSUMER AND INVESTOR REALMS
[A] The US: The Consumer Financial Protection Bureau (CFPB) and the SEC's Office of the Investor Advocate
[1] The Consumer Financial Protection Bureau (CFPB)
[2] The SEC's Office of the Investor Advocate
[B] The UK: The Money Advice Service (MAS)
[C] The Implications of FRSAs and of FRSAs' Bodies in the Field of Consumer and Investor Protection for the Legitimacy of Financial Rules
§4.04 REVOLVING DOOR: THE MISSING REFORM?
§4.05 THE ACCOUNTABILITY OF FRSAs TOWARDS STAKEHOLDERS IN JUDICIAL INSTANCES
[A] The Judicial Review of the Actions of FRSAs
[B] The Tort Liability of FRSAs
[1] The Tort Liability of FRSAs in Spain
[a] AVA and Gescartera or How the Law and Its Judicial Interpretation Create Barriers to the Effective Liability in Tort of FRSAs in Spain
[2] The Tort Liability of FRSAs in the UK: Statutory Insulation from Liability
[3] EU Law and the Liability of the FRSAs of the Member States
[4] The Tort Liability of FRSAs in the US
[a] The Liability of the SEC for Negligent Supervision: The Madoff Saga and the Discretionary Function Exception
§4.06 CONCLUSIONS
PART II The Accountability of the European Supervision Authorities in the Financial Field and of the European Systemic Risk Board
CHAPTER 5 The Post-financial Crisis European Financial Supervision Architecture and the Need for Enhanced Accountability
§5.01 FINANCIAL SUPERVISION IN THE EUROPEAN UNION BEFORE THE EUROPEAN SYSTEM OF FINANCIAL SUPERVISION
§5.02 FROM THE LAMFALUSSY COMMITTEES TO THE DE LAROSIÈRE AUTHORITIES
§5.03 THE EUROPEAN SUPERVISION AUTHORITIES IN THE FINANCIAL FIELD (ESAs)
§5.04 THE EUROPEAN SYSTEMIC RISK BOARD (ESRB)
§5.05 THE NATURE AND SCOPE OF THE ACTIONS OF THE ESAs AND OF THE ESRB AND THE NEED FOR ENHANCED ACCOUNTABILITY
[A] The Powers of the ESAs and of the ESRB and the Need for Enhanced Accountability
[1] Development of Draft Technical Standards
[2] Issuance of Warnings, Guidelines and Recommendations
[3] Adoption of Binding Decisions Addressed to FRSAs and to Financial Market Participants
[a] Breaches of EU Law by the FRSAs of the Member States
[b] Emergency Situations
[c] Settlement of Disagreements between FRSAs
[B] The Reach of the Actions of the ESAs and of the ESRB and the Need for Enhanced Accountability
[1] The Role of the ESAs and of the ESRB in the Prevention, Management and Resolution of Crises
[2] Maximum Harmonization, Regulations and the Role of the ESAs
CHAPTER 6 The Accountability of the European Supervision Authorities in the Financial Field towards Political Forums
§6.01 INTRODUCTION: THE ACCOUNTABILITY OF THE EUROPEAN SUPERVISION AUTHORITIES (ESAs) AND OF THE EUROPEAN SYSTEMIC RISK BOARD (ESRB) TOWARDS POLITICAL ACTORS IN PERSPECTIVE
§6.02 THE ACCOUNTABILITY OF THE ESAs AND OF THE ESRB TOWARDS THE EU POLITICAL INSTITUTIONS
[A] Political Oversight over the Appointments and Removals at the ESAs and at the ESRB
[1] Appointments and Removals at the ESAs
[2] Appointments and Removals at the ESRB
[B] Political Oversight over the ESAs and the ESRB's Decisional Powers
[1] Political Oversight over the ESAs' Decisional Powers
[a] Oversight over Draft Regulatory Technical Standards
[b] Oversight over Draft Implementing Technical Standards
[c] Oversight over Guidelines and Recommendations
[d] Oversight over Binding Decisions Addressed to FRSAs and to Financial Institutions
[2] Political Oversight over the ESRB's Decisional Powers
[C] Transmission of Information from the ESAs and from the ESRB to Political Forums as an Accountability Mechanism
[1] Work Programmes and Annual Reports
[2] Statements and Hearings
[3] Assessment of Market Developments
[4] Advice
[5] Accountability with and without Transparency in the Reporting Obligations of the ESAs and of the ESRB vis à vis the EU Political Institutions
[D] Budgetary Oversight and Control
§6.03 THE ACCOUNTABILITY OF FRSAs WITH MEMBERSHIP IN THE ESAs AND IN THE ESRB TOWARDS THE EU AND THE MEMBER STATES' POLITICAL INSTITUTIONS
§6.04 THE ACCOUNTABILITY OF THE ESAs AND OF THE ESRB TOWARDS THE MEMBER STATES' POLITICAL FORUMS
§6.05 THE ACCOUNTABILITY OF THE ESAs TOWARDS POLITICAL FORUMS: ACCOUNTABLE AND INDEPENDENT SUPERVISION OF THE EU FINANCIAL MARKETS?
CHAPTER 7 The Accountability of the European Supervision Authorities in the Financial Field towards Stakeholders
§7.01 INTRODUCTION
§7.02 THE EVOLUTION OF STAKEHOLDER PARTICIPATION IN EU FINANCIAL REGULATION
[A] Participation in the European Economic and Social Committee's Membership and Activities
[B] Participation in the European Commission's Consultation Procedures and Initiatives
[C] The Interactions between Legislative and Stakeholder Fora: The European Parliamentary Financial Services Forum and the Finance Watch Initiative
[D] The Participation of Financial Industry Representatives in Soft-Law Delegated Regulation
[E] Participation in the Market Participants Consultative Panels at the Lamfalussy Committees
§7.03 THE PARTICIPATION OF STAKEHOLDERS IN THE EUROPEAN SUPERVISION AUTHORITIES (ESAs)
[A] The ESAs' Stakeholder Groups (SGs)
[1] The SGs and Input-Legitimacy in EU Financial Regulation
[2] The Legal Configuration of the ESAs and of the SGs
[a] The Membership of the SGs: Asymmetric Representation of Stakeholders
[b] The Internal Decision-Making Procedures at the SGs: Asymmetric Allocation of Powers
[c] The Safeguard Clause: The Adoption of Decisions in Cases of Urgency
[B] The Involvement of Stakeholders in the ESAs' Public Consultations
[C] The ESAs' Standing Committees Consultative Groups
[D] The ESAs and Revolving Doors
§7.04 THE DUTY OF THE ESAs TO GIVE REASONS AS AN ACCOUNTABILITY MECHANISM
§7.05 THE ESAs AND TRANSPARENCY
§7.06 THE ESRB AND THE LIMITS OF ACCOUNTABILITY TOWARDS STAKEHOLDERS
§7.07 STAKEHOLDER JUDICIAL AND QUASI-JUDICIAL REDRESS
[A] The Accountability of the ESAs towards Stakeholders through Judicial Means: The Role of the CJEU
[1] The Request of Judicial Review of Decisions of the ESAs
[2] The Liability of the ESAs Towards Stakeholders for Damages
[B] The European Ombudsman (EO) as a Source of Redress
§7.08 CONCLUSIONS
PART III The Accountability of International Networks of Financial Regulation and Supervision Authorities
CHAPTER 8 International Networks of Financial Regulation and Supervision Authorities as Global Standard-Setters
§8.01 INTRODUCTION: TOWARDS A DEFINITION OF INTERNATIONAL NETWORKS OF FINANCIAL REGULATION AND SUPERVISION AUTHORITIES (INFRSAs)
§8.02 SOME STORY ABOUT THE BCBS, THE IOSCO AND THE IAIS
[A] The Basel Committee on Banking Supervision (BCBS)
[B] The International Organization of Securities Commissions (IOSCO)
[C] The International Association of Insurance Supervisors (IAIS)
[D] The Network of INFRSAs: The Joint Forum
§8.03 CONCLUSIONS
CHAPTER 9 The Accountability of International Networks of Financial Regulation and Supervision Authorities
§9.01 INTRODUCTION
§9.02 THE ROLE OF FRSAs IN INFRSAs: LEGITIMACY CONCERNS FROM A NATIONAL PERSPECTIVE
§9.03 THE ACCOUNTABILITY OF INFRSAs TOWARDS FRSAs AND TOWARDS STAKEHOLDERS
[A] The Membership in INFRSAs
[1] The Membership in the BCBS
[2] The Membership in the IOSCO
[3] The Membership in the IAIS
[B] The Internal Organization of INFRSAs
[1] The Internal Organization of the BCBS
[2] The Internal Organization of the IOSCO
[3] The Internal Organization of the IAIS
[C] The Transparency and the Inclusiveness of INFRSAs
[1] Transparency and Inclusiveness in the BCBS
[2] Transparency and Inclusiveness in the IOSCO
[3] Transparency and Inclusiveness in the IAIS
§9.04 CONCLUSIONS
[A] Heterogeneity of Jurisdictions Represented in the Work of INFRSAs
[B] Heterogeneity of Stakeholders Represented in the Work of INFRSAs
[C] Diversity of Participatory Arrangements
[D] The Financial Crisis and the Reforms in the Governance of INFRSAs
Concluding Remarks
Index
Back Cover

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