The Financial Services Regime in International Economic Law: on the Difficult Relationship between Trade Liberalization and Prudential Measures

The PhD thesis analyses the financial services regime in international economic law from the perspective of the difficult relationship between trade liberalisation and prudential measures. Financial stability plays a fundamental role for the well-being and well-functioning of the global economy, but, it is at the same time a complex sector to regulate and supervise and, especially after the 2007-08 economic crisis, States have tightened up their regulation of financial services, introducing more severe and protectionist prudential measures. However, in an increasingly interconnected global economy, the harmonization of prudential regulation at the international level is an essential step to guarantee integrity, fairness and stability of financial markets and trade. The research analyses the tools at disposition to achieve this aim, the related problematic issues and the perspectives and possible solutions for the future, starting from the World Trade Organization (WTO) legal framework and its General Agreement on Trade in Services (GATS), devoted to discipline trade in services among the WTO Members. Then, the research moves to a second legal instrument, the Free Trade Agreements (FTAs), which has witnessed a remarkable spread in the last decades. Finally, the research addresses the international standards, developed by supranational entities and implemented by an increasing number of States, as they offer rules and guidelines adequate to update the international financial scenario. Nevertheless, the international standards alone cannot be the solution because, first, they are not mandatory, as governments decide voluntarily to apply them and, second, their decision-making process do not respect the requirements of transparency and representative membership. In light of this analysis, the thesis aims at providing an answer to its research question: how to give more certainty to States and economic operators in the planning of the domestic disciplines and business activities in order to provide a sound and stable international financial system.

The Law and Economics of Hedge Fund Regulation: A Comparison between the U.S. and the EU

This doctoral dissertation seeks to assess and address the potential contribution of the hedge fund industry to financial instability. In so doing, the dissertation investigates three main questions. What are the contributions of hedge funds to financial instability? What is the optimal regulatory strategy to address the potential contribution of hedge funds to financial instability? And do new regulations in the U.S. and the EU address the contribution of hedge funds to financial instability? With respect to financial stability concerns, it is argued that despite their benefits, hedge funds can contribute to financial instability. Hedge funds’ size and leverage, their interconnectedness with Large Complex Financial Institutions (LCFIs), and the likelihood of herding behavior in the industry can potentially undermine financial stability. Nonetheless, the data on hedge funds’ size and leverage suggest that these features are far from being systemically important. In contrast, the empirical evidence on the interconnectedness of hedge funds with LCFIs and their herding behavior is mixed. Based on these findings, the thesis focuses on one particular aspect of hedge fund regulation: direct vs. indirect regulation. In this respect, a major contribution of the thesis to the literature consists in the explicit discussion of the relationships between hedge funds and other market participants. Specifically, the thesis locates the domain of the indirect regulation in the inter-linkages between hedge funds and prime brokers. Accordingly, the thesis argues that the indirect regulation is likely to address the contribution of hedge funds to systemic risk without compromising their benefits to financial markets. The thesis further conducts a comparative study of the regulatory responses to the potential contribution of hedge funds to financial instability through studying the EU Directive on Alternative Investment Fund Managers (AIFMD) and the hedge fund-related provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

The Structure of Financial Supervision: Consolidation or Fragmentation for Financial Regulators?

This research was designed to answer the question of which direction the restructuring of financial regulators should take – consolidation or fragmentation. This research began by examining the need for financial regulation and its related costs. It then continued to describe what types of regulatory structures exist in the world; surveying the regulatory structures in 15 jurisdictions, comparing them and discussing their strengths and weaknesses. This research analyzed the possible regulatory structures using three methodological tools: Game-Theory, Institutional-Design, and Network-Effects. The incentives for regulatory action were examined in Chapter Four using game theory concepts. This chapter predicted how two regulators with overlapping supervisory mandates will behave in two different states of the world (where they can stand to benefit from regulating and where they stand to lose). The insights derived from the games described in this chapter were then used to analyze the different supervisory models that exist in the world. The problem of information-flow was discussed in Chapter Five using tools from institutional design. The idea is based on the need for the right kind of information to reach the hands of the decision maker in the shortest time possible in order to predict, mitigate or stop a financial crisis from occurring. Network effects and congestion in the context of financial regulation were discussed in Chapter Six which applied the literature referring to network effects in general in an attempt to conclude whether consolidating financial regulatory standards on a global level might also yield other positive network effects. Returning to the main research question, this research concluded that in general the fragmented model should be preferable to the consolidated model in most cases as it allows for greater diversity and information-flow. However, in cases in which close cooperation between two authorities is essential, the consolidated model should be used.

Determining the effect of regulation on Microfinance Institutions Financial Self-Sustainability. A Cross-Country Comparison

Microfinance is an initiative which seeks to address financial inclusion, micro-entrepreneurship, and poverty reduction without over burdening governments. However, the current sector of microfinance is still heavily dependent on the good will of donors. The over-reliance on donations is a feature which threatens the long term sustainability of microfinance. Much has been written about this reliance, but research to date hasn’t empirically examined the effect of regulation as a mediator. This is a critical area of study because regulation directly affects Microfinance Institutions’ (MFI) innovation, and innovation is what shapes the future of microfinance. This thesis considers the role that regulation plays in affecting MFI’s and their ability to innovate in products, services and long-term sustainability via access to capital. Interviews were undertaken with stakeholders in MFI’s, NGO’s, Self-Regulating Bodies, and Regulators in India, Pakistan, and Bangladesh. This thesis discusses findings from interviews in relation to regulatory measures regarding financial self-sustainability of MFI’s. The conclusions of this thesis have implications for policy and inform the microfinance literature.

Regulating FinTech: The perspectives of law, economics, and technology

FinTech (financial technology, ‘‘FinTech’’) is a double-edged sword as it brings both benefits and risks. This study appraised FinTech’s technological nature that brings changes in complexity in modern financial markets to identify the information deficits and its undesirable outcomes. Besides, as FinTech is still developing, the information regarding, for instance, whether and how to apply regulation may be insufficient for both regulators and those regulated. More one-size-fits-all regulation might accordingly be adopted, thereby resulting in the adverse selection. Through the lens of both law and economics and law and technology, this study suggested AFR (adaptive financial regulation, ‘‘AFR’’) of FinTech to solve the underlying pacing issue. AFR is dynamic, enabling regulatory adjustments and learning. Exploring and collecting information through experiments and learning from experiments are the core of AFR. FinTech regulatory sandboxes epitomize AFR. This study chose Taiwan as a case study. This study found several barriers to adaptive and effective FinTech regulation. Unduly emphasizing consumer protection and the innovation entry criterion by improperly imposing limits on the entry into sandboxes, ignoring post-sandbox mechanisms, and relying on detailed, specific and prescriptive rules to formulate sandboxes are examples. To solve these barriers, this study proposed several solutions by looking into the experiences in other jurisdictions and analyzing. First, striking a balance between encouraging innovation and ensuring financial stability and consumer protection is indispensable. Second, entry to sandboxes should be facilitated by improving the selection criteria. Third, adhering to realizing regulatory adjustment and learning to adapt regulation to technology, this study argued that systematic post-sandbox mechanisms should be established. Fourth, this study recommended “more principles-based sandboxes”. Principles rather than rules should be the base on which sandboxes or FinTech regulation are established. Having principles could provide more flexibility, being easier to adjust and adapt, and better at avoiding.