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A Rational Regulatory Strategy for Governing Financial Innovation

Published online by Cambridge University Press:  03 October 2017

Iris H-Y CHIU Open the ORCID record for Iris H-Y CHIU [Opens in a new window]
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Abstract

Modern financial regulation has predominantly been economically-driven,1 progressing from addressing market failures to making markets more competitive and work better.2 The UK Financial Conduct Authority is expressly mandated to pursue regulatory objectives that maintain market integrity and protect consumers (addressing market failures) and to promote competition (making markets work better).3 Both the FCA and its sister regulator, the Prudential Regulation Authority (for banks), have recently adopted innovative regulatory initiatives to promote technologically-driven innovation, aimed at making markets work better. These initiatives are also a response to the recent explosion of technologically-led financial innovation outside of the regulatory perimeter.

In promoting financial innovation, we argue that the regulators have insufficiently focused on the need to govern financial innovation more generally. Although this concern may seem premature, the regulatory innovations are increasingly extending the perimeter for regulatory oversight of financial innovations. As the regulatory innovations have the potential to develop into more mature regulatory frameworks for governing financial innovation, we argue that regulators should manage the risks of their current approach and develop a regulatory strategy framework for balancing regulatory objectives and developing regulatory policy. We propose a framework anchored in rationality, consistency and accountability in governing financial innovation.

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Articles
Information
European Journal of Risk Regulation , Volume 8 , Special Issue 4: Special Issue on the EU Public-Health-Security Nexus , December 2017 , pp. 743 - 765
Copyright
© Cambridge University Press 

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Footnotes

*

Professor of Corporate Law and Financial Regulation, University College London. I thank Professors Florian Moslein and Maria Lee for comments on an earlier draft. I also thank an anonymous reviewer for helpful suggestions towards finalising this version. All errors and omissions are mine.

1

Summed up in ArmourJet al, Principles of Financial Regulation (Oxford, Oxford University Press, 2015) ch 3. The rationales for financial regulation have progressed from being driven by market efficiency to a broader form of economic public interest, such as in collective financial stability, especially after the global financial crisis 2007–09. See also AndenasMads and ChiuIris H-Y, The Foundations and Future of Financial Regulation (Oxford, Routledge, 2014).

2

HadfieldGillian, “Producing Law for Innovation” in Kauffman Foundation, Rules for Growth (Missouri, 2011) ch 2; also note Law in the Flat World (2010), available at <works.bepress.com/ghadfield>.

3

Financial Services and Markets Act 2000, ss 1B–1E, amended by the Financial Services Act 2012.

References

4 This point is discussed in greater detail in Section II. For example see Giuseppe Nicoletti and Stefano Scarpetta, “Regulation, Productivity and Growth: OECD Evidence” (World Bank Research Paper, 2003); Alain de Serres et al, “Regulation of Financial Systems and Economic Growth” (OECD Working Paper, 2006), available at <http://ssrn.com/abstract=965693>.

5 See <www.fca.org.uk/firms/innovate-innovation-hub>.

6 Price Waterhouse Coopers, Blurred Lines: How Fintech is Shaping the Financial Services Industry (March 2016); Douglas Arner, Jànos Barberi and Ross P Buckley, “The Evolution of Fintech: A New Post-Crisis Paradigm?” (2015), available at <http://ssrn.com/abstract=2676553>.

7 Dirk Zetzsche, Douglas Arner, Ross P Buckley and Janos N Barberis, “From Fintech to Techfin: The Regulatory Challenges of Data-Driven Finance” (2017), available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2959925>.

8 Douglas Arner, Jànos Barberis and Ross P Buckley, “FinTech, RegTech and the Reconceptualisation of Financial Regulation” (2017) Northwestern Journal of International Law and Business (forthcoming), available at <http://ssrn.com/abstract=2847806>; FCA, Call for Input: Supporting the Development and Adoption of RegTech (November 2015) and Feedback Statement: Call for Input: Supporting the Development and Adoption of RegTech (July 2016).

9 See an overview in Chiu, Iris H-Y, “Fintech and Disruptive Business Models in Financial Products, Intermediation and Markets – Policy Implications for Financial Regulators” (2016) 21 Journal of Technology Law and Policy 168 Google Scholar.

10 Yeung provides an overview of regulatory response in the face of disruption that threatens to make regulatory policy obsolete or inappropriate – regulators could resist and enforce, or become overwhelmed or indeed choose to grapple with industry changes and adapt intelligently, see Karen Yeung, “Governance by Blockchain: The Coming Battle for Supremacy Between the Code of Law Vs Code as Law?”, speech at the Symposium on Blockchain and the New Financial Order, University College London, 19 June 2017.

11 FCA, Regulatory Sandbox (November 2015).

12 In light of the established market gaps for consumer investment advice, the FCA would look specifically into how financial technology innovation can fill the gap. See FCA, Financial Advice Markets Review (April 2017).

13 See <www.bankofengland.co.uk/pra/nbsu/Pages/default.aspx>.

14 Section 19 and Sch 2, see also case law that has taken an approach of interpreting the scope of the regulatory perimeter as capturing all functionally equivalent activities as those prescribed in Sch 2, for eg FSA v Anderson [2010] EWHC 599 (Ch)). Further, see the hugely contested characterisation of land-banking schemes as illegal collective investments which was finally settled in the regulator’s favour after several years of litigation, see Asset Land Investment Plc v The Financial Conduct Authority [2016] UKSC 17.

15 Highlighted by the Financial Stability Board, see FSB, Financial Stability Implications from Fintech (27 June 2016), available at <www.fsb.org/2017/06/financial-stability-implications-from-fintech/>.

16 It has been adopted in Hong Kong, Singapore, Australia, Canada and Japan.

17 See interview with Martin Wheatley (CEO of FCA 2013–2015), available at <http://play.buto.tv/DWCTY>.

18 See <www.fca.org.uk/firms/innovate-innovation-hub>.

19 FCA, Financial Advice Markets Review (April 2017).

20 See <www.bankofengland.co.uk/pra/nbsu/Pages/default.aspx>.

21 Cortez, Nathan, “Regulating Disruptive Innovation” (2014) 29 Berkeley Technology Law Journal 175 Google Scholar.

22 Described as a “performative turn” in regulation, Ioannis Lianos, “Law, Fintech, and the Performative Turn in Regulation”, paper delivered at the Blockchain Technology and a New Financial Order Conference, Centre for Law, Economy and Society, 19 June 2017, arguing that the regulator now makes regulatory policy and decisions within a new “society” of innovators, the financial industry, socially embedding such policies and decisions, perhaps distinguishing from merely being economically driven.

23 “Responsiveness” in regulation first developed in relation to enforcement and securing proportionate enforcement that reinforces meaningful compliance, see Ayres, Ian and Braithwaite, John, Responsive Regulation (Oxford, Oxford University Press, 1992)Google Scholar. This was subsequently developed into responsiveness in the supervisory process, see Baldwin, Robert and Black, Julia, “Really Responsive Regulation” (2008) 71 Modern Law Review 59 Google Scholar.

24 FCA, Default Standards for Sandbox Testing Parameters, available at <www.fca.org.uk/publication/policy/default-standards-for-sandbox-testing-parameters.pdf>.

25 See <www.fca.org.uk/firms/innovate-innovation-hub/regulatory-sandbox>.

26 See <www.fca.org.uk/news/press-releases/financial-conduct-authority-unveils-successful-sandbox-firms-second-anniversary>.

27 FCA, Regulatory Sandbox (November 2015).

28 Available at <www.bankofengland.co.uk/pra/nbsu/Pages/submittingassessing.aspx>.

29 Available at <www.bankofengland.co.uk/pra/nbsu/Pages/mobilisation.aspx>.

30 Basel Committee, Guidelines: Corporate Governance Principles for Banks (July 2015), available at <www.bis.org/bcbs/publ/d328.pdf>; G30, Banking Conduct and Culture: A Call for Sustained and Comprehensive Reform (July 2015), available at <http://group30.org/publications/detail/166>.

31 FCA, Journey to the FCA (October 2012), available at <www.fsa.gov.uk/static/pubs/other/journey-to-the-fca-standard.pdf>; PRA, Our Approach to Banking Supervision (October 2012), available at <www.fsa.gov.uk/static/pubs/other/pra-approach-banking.pdf>.

32 FCA, Project Innovate: Call for input Feedback Statement (October 2014), available at <www.fca.org.uk/publication/feedback/fs-14-2.pdf>.

33 Francesco Daveri, Rémy Lecat and Maria Laura Parisi, “Service Deregulation, Competition and the Performance of French and Italian Firms” (2011), available at <http://ssrn.com/abstract=1950551>.

34 Eg Arie Melnik and Oz Shy, “Exclusion, Competition, and Regulation in the Retail Loan Market” (2014), available at <http://ssrn.com/abstract=2374975> on how competitive financial markets promote financial inclusion.

35 De Serres et al, supra, note 4.

36 Daveri, Lecat and Parisi, supra, note 33, on the service sector generally in a number of countries under survey; Kaal, Wulf A, “What Drives Dodd-Frank Act Compliance Cost for Private Funds?” (2016) Journal of Alternative Investments Google Scholar, available at <http://ssrn.com/abstract=2629386> on how the introduction of the Dodd-Frank Act 2012 in the US created barriers to entry for smaller new mutual funds.

37 Deakin, Simon, “The Rise of Finance: What Is It, What Is Driving It, What Might Stop It?” (2008) 30 Comparative Labour Law and Policy Journal 67 Google Scholar; on the US, see David G Tarr, “The Political, Regulatory and Market Failures That Caused the US Financial Crisis” (World Bank Research Paper, 2016) however qualifying that it was not de-regulation in terms of the lack of regulation, but rather loosening standards through “perverse” regulation (a term used in the article) as a form of “de-governance” that supported financial markets liberalisation.

38 Andenas and Chiu, supra, note 1, at chs 2 and 3.

39 For example the Investment Services Directive 1992 emphasised the EU passport for investment firms and only provided a skeletal set of principles for protecting investors. This relative imbalance was only slowly addressed. We can compare the first Markets in Financial Instruments Directive 2004 that replaced the 1992 Directive with the intense suite of investor-protection reforms in the 2014 Directive that replaced the 2004 one.

40 FSA, “The Turner Review: A Regulatory Response to the Global Banking Crisis” (March 2009), available at <www.fsa.gov.uk/pubs/other/turner_review.pdf>.

41 Wilmarth Jnr, Arthur E, “The Dark Side of Universal Banking: Financial Conglomerates and the Origins of the Subprime Financial Crisis” (2009) 41 Connecticut Law Review 963 Google Scholar; Canova, Timothy A, “Financial Market Failure as a Crisis in the Rule of Law: From Market Fundamentalism to a New Keynesian Regulatory Model” (2009) 3 Harvard Law and Policy Review 369 Google Scholar.

42 Rise of macroprudential regulation, systemic-risk based regulation and greater intensity in prudential and conduct of business regulation overall, see overview in Andenas and Chiu, supra, note 1; MacNeil, Iain and O’Brien, Justin (eds), The Future of Financial Regulation (Oxford, Hart, 2010)Google Scholar; Ferran, Eilis V et al, The Regulatory Aftermath of the Global Financial Crisis (Cambridge, Cambridge University Press, 2012)Google Scholar.

43 See eg discussion in Michel Klein and Colin Mayer, “Mobile Banking and Financial Inclusion: The Regulatory Lessons” (2011), available at <http://ssrn.com/abstract=1846305>.

44 Where “good” firms are driven from the market and only “bad” firms remain, as consumers are unable to differentiate between the two, therefore disincentivising “good” behaviour.

45 De Serres et al, supra, note 4.

46 Maria Manuel Leitão Marques and Leonor Bettencourt Nunes, “Deepening the Freedom of Services through Pro-competitive Regulation” (2013), available at <http://ssrn.com/abstract=2350701>; Ferran, Eilis V, Building an EU Securities Market (Cambridge, Cambridge University Press, 2004)Google Scholar on how legal integration is market-building in nature for the EU; Chiu, Iris H-Y, Regulatory Convergence in EU Securities Regulation (The Hague, Kluwer, 2008)Google Scholar on how regulatory convergence relates to textual laws and law in action.

47 Ioannis Lianos, “The Interaction Between Competition Law and State Action: Looking Inside the Black Box (of the State)” (2012), available at <http://ssrn.com/abstract=2334208>.

48 C Joerges, “The Law in the Process of Constitutionalising Europe” EUI Working Paper 2002/4 (Florence, European University Institute, 2002).

49 Bank of England, The Financial Policy Committee’s powers over Housing Tools: A Policy Statement (July 2015), available at <www.bankofengland.co.uk/financialstability/Documents/fpc/policystatement010715.pdf>.

50 FSB, Policy Recommendations to Address Structural Vulnerabilities from Asset Management Activities (January 2017), available at <www.fsb.org/2017/01/policy-recommendations-to-address-structural-vulnerabilities-from-asset-management-activities/>.

51 Christos Staikouras and Geoffrey Wood, “Competition and Banking Stability in the Euro Area: The Cases for Greece and Spain” (2000), available at <http://papers.ssrn.com/paper.taf?abstract_id=233911>.

52 Levi-Faur, David, “The Global Diffusion of Regulatory Capitalism” (2005) 598 Annals of the Academy of Political Science 12 Google Scholar; Froud, Julie and Ogus, Anthony, “Rational Social Regulation and Compliance Cost Assessment” (1996) 74 Public Administration 221 Google Scholar; Ogus, Anthony, Regulation: Legal Form and Economic Theory (Oxford, Oxford University Press, 1994)Google Scholar.

53 FCA, Economics for Effective Regulation (March 2016).

54 Brummer, Chris, “Disruptive Technology and Securities Regulation” (2015) 84 Fordham Law Review 977 Google Scholar.

55 Ronald J Gilson, “Locating Innovation: The Endogeneity of Technology, Organizational Structure and Financial Contracting” (2009), available at <http://ssrn.com/abstract=1492762>.

56 Andrew Kling, “Not What They Had In Mind: A History of Policies that Produced the Financial Crisis of 2008” (2009), available at <http://ssrn.com/abstract=1474430>.

57 Lars Norden, Consuelo Silva Buston and Wolf Wagner, “Financial Innovation and Bank Behavior: Evidence from Credit Markets” (2011), available at <http://ssrn.com/abstract=1800162>.

58 Thorsten Beck et al, “Financial Innovation: The Bright and the Dark Sides” (2014), available at <http://ssrn.com/abstract=1991216>. However, there is also contrary research that shows such benefits to be limited for countries that already have stringent and developed bank regulations in place, such as capital adequacy.

59 Saumitra Jha, “Sharing the Future: Financial Innovation and Innovators in Solving the Political Economy Challenges of Development” (2012), available at <http://ssrn.com/abstract=2001039>, on how financial innovation penetrates the political economy and brings about stability for economic development.

60 Arentsen, Maarten J, van Rossum, Wouter and Steenge, Albert E (eds), Governance of Innovation (Cheltenham, Edward Elgar, 2010)CrossRefGoogle Scholar.

61 Giuseppe Nicoletti and Stefano Scarpetta, “Regulation, Productivity and Growth: OECD Evidence” (World Bank Research Paper, 2003).

62 Such as the “suitability” standard in the FCA Handbook COBS 9; the EU Markets in Financial Instruments Directive 2014, Art 25(2). It is arguable that the fiduciary standard applicable in the US is also premised upon human judgment, see Melanie Fein, “FINRA’s Report on Robo-Advisors: Fiduciary Implications” (2016), available at <http://ssrn.com/abstract=2768295>.

63 Carla Reyes, Nizan Packin and Benjamin P Edwards, “Distributed Governance” (2016), available at <https://ssrn.com/abstract=2884978>.

64 Tedesco, Darren, “I, Robo-Adviser? Creating the Blended Adviser Experience” (2015) Journal of Financial Planning 17 Google Scholar.

65 Eric Biber et al, “Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb” (2017) Vanderbilt Law Review (forthcoming), available at <http://ssrn.com/abstract_id=2951919>.

66 Missing out on the social benefits of innovation was pointed out in Slating, Timothy A and Kesan, Jay P, “Making Regulatory Innovation Keep Pace with Technological Innovation” (2011) Wisconsin Law Review 1009 Google Scholar.

67 Eg see Josh Lerner and Peter Tufano, “The Consequences of Financial Innovation: A Research Agenda” (2009), available at <www.aeaweb.org/conference/2010/retrieve.php?pdfid=351>.

68 Ramsay, Ian M, “Financial Innovation and Regulation: The Case of Securitisation” (1993) 4 Journal of Banking and Finance Law and Practice 169 Google Scholar.

69 Above, Scott Frame, W and White, Lawrence J, “Technological Change, Financial Innovation, and Diffusion in Banking” in Allen N Berger, Philip Molyneux, and John OS Wilson (eds), The Oxford Handbook of Banking, 2nd edn (Oxford University Press, 2015)Google Scholar.

70 Knoll, Michael S, “The Ancient Roots of Modern Financial Innovation: The Early History of Regulatory Arbitrage” (2008) 87 Oregon Law Review 93 Google Scholar.

71 Ramsay, supra, note 68.

72 Adam, Tim and Guettler, Andre, “Pitfalls and Perils of Financial Innovation: The Use of CDS by Corporate Bond Funds” (2015) 55 Journal of Banking and Finance 204 CrossRefGoogle Scholar; Margaret M Blair, “Financial Innovation and the Distribution of Wealth and Income” (2010), available at <http://ssrn.com/abstract=1656451>; Tanju Yorulmazer, “Has Financial Innovation Made the World Riskier? CDS, Regulatory Arbitrage and Systemic Risk” (Federal Reserve Bank of NY Paper, 2013), available at <http://ssrn.com/abstract=2176493>.

73 FSB, “FinTech Credit: Market Structure, Business Models and Financial Stability Implications” (May 2017), available at <www.fsb.org/wp-content/uploads/CGFS-FSB-Report-on-FinTech-Credit.pdf>.

74 A phenomenon termed as financialisation, see Erturk, Ismail et al, “The Democratization of Finance? Promises, Outcomes and Conditions” (2007) 14 Review of International Political Economy 553 Google Scholar.

75 Awrey, Dan, “Towards a Supply-Side Theory of Financial Innovation” (2013) 41 Journal of Comparative Economics 401 Google Scholar; Awrey, Dan, “Complexity, Innovation, and the Regulation of Modern Financial Markets” (2012) 2 Harvard Business Law Review 235 Google Scholar.

76 John Kay, “Bonds designed to leave savers bemused”, Financial Times (16 November 2010), available at <www.ft.com/content/1912d062-f1ba-11df-bb5a-00144feab49a>.

77 Avgouleas, Emilios, “Regulating Financial Innovation: A Multifaceted Challenge to Financial Stability, Consumer Protection, and Growth” in N Moloney, E Ferran and J Payne (eds), Oxford Handbook of Financial Regulation (Oxford University Press, 2015)Google Scholar; Norden, Silva Buston and Wagner, supra, note 57.

78 Brian J Henderson and Neil D Pearson, “The Dark Side of Financial Innovation” (2009), available at <http://ssrn.com/abstract=1342654>.

79 Nicola Gennaioli, Andrei Schleifer and Robert Vishny, “Financial Innovation and Financial Fragility” (2010), available at <ssrn.com/abstract=1688940>.

80 Blair, supra, note 72; Wenxi Jiang and Hongjun Yan, “Financial Innovation, Investor Behavior, and Arbitrage: Evidence from the ETF Market” (2016), available at <ssrn.com/abstract=2023142>.

81 Awrey (2012), supra, note 74.

82 Cortez, supra, note 21.

83 Slating and Kesan, supra, note 66.

84 Erik Vermeulen, Mark Fenwick and Wulf A Kaal, “Regulation Tomorrow: What Happens when Technology is Faster than the Law?” (2016), available at <http://ssrn.com/abstract=2834531>.

85 State policy for innovation is usually characterised by being facilitative, supportive and even pro-active in terms of energising and funding activity, see Caarlson, Bo, “Entrepreneurship and Public Policy in Merging Clusters” in Annika Rickne et al (eds), Innovation Governance in an Open Economy (Oxford, Routledge, 2012) at 251 Google Scholar, but regulators have mandates to govern and control behaviour and activity within the scope of their jurisdiction and should arguably not pursue a single-minded promotion approach.

86 Iain MacNeil, “Innovation, Law and Regulation” (2017, on file with author).

87 Competition Act 1998 and subsequent amendments form the basis of the UK’s competition law. This area of policy is, however, largely shaped by EU legislation transposed in the UK. For an overview of powers and enforcement against anti-competitive practices such as price fixing, cartels, abuse of dominant positions, see Whish, Richard and Bailey, David, Competition Law (Oxford, Oxford University Press, 2012)Google Scholar.

88 FCA, Investment and Corporate Banking Market Study (October 2016), available at <www.fca.org.uk/publication/market-studies/ms15-1-3-final-report.pdf>; and the FCA’s proposed reforms to remove anti-competitive practices such as contractual restrictions in FCA, Reforming the Availability of Information in the UK Equity IPO Process (March 2017), available at <www.fca.org.uk/publications/consultation-papers/reforming-availability-information-uk-equity-ipo-process>.

89 FCA, Asset Management Market Study (Interim Report November 2016); Final Report (2017), available at <www.fca.org.uk/publication/market-studies/ms15-2-3.pdf>.

90 As part of the “Responsible Lending Review”, the competitiveness of the residential mortgage sector will be reviewed in this ongoing endeavour: FCA, Feedback Statement: Call for Inputs on Competition in the Mortgage Sector (May 2016), available at <www.fca.org.uk/publication/feedback/fs16-03.pdf>, which indicates that the FCA will undertake a market study in this area to determine next steps.

91 E Wymeersch, “The Structure of Financial Supervision in Europe: About Single, Twin Peaks and Multiple Financial Supervisors”, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=946695>.

92 FSA, “The Turner Review: A Regulatory Response to the Global Banking Crisis”, supra, note 40; Ferran, Eilis, “The Break-up of the Financial Services Authority” (2011) Oxford Journal of Legal Studies 455 CrossRefGoogle Scholar.

93 FCA, Economics for Effective Regulation, supra, note 53.

94 Froud and Ogus, supra, note 52.

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97 Masur and Posner, supra, note 96; Mark Harrison, “Assessing the Impact of Regulatory Impact Assessments” (2009) 16 Agenda 41, available at <http://ssrn.com/abstract=1906482>.

98 Carrigan, Christopher and Shapiro, Stuart, “What’s Wrong with the Back of the Envelope? A Call for Simple (And Timely) Benefit-Cost Analysis” (2016) Regulation and Governance 1 Google Scholar.

99 Wiener, Jonathan, “Better Regulation in Europe” (2006) 59 Current Legal Problems 447 Google Scholar.

100 FCA, Economics for Effective Regulation, supra, note 53; Cass R Sunstein and Robert W Hahn, “A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis” (John M Olin Program in Law and Economics Working Paper No 150, 2002); Sunstein (1996), supra, note 95.

101 Sunstein (2014), supra, note 95.

102 FCA, Call for Input: Supporting the Development and Adoption of RegTech (November 2015) and Feedback Statement: Call for Input: Supporting the Development and Adoption of RegTech (July 2016).

103 FCA, Economics for Effective Regulation, supra, note 53.

104 Daniel C Hardy, “Regulatory Capture in Banking” (IMF Working Paper, 2006), available at <http://ssrn.com/abstract=892925>.

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107 Financial Services and Markets Act 2000, ss 1M–1Q, 2L–2N, amended by the Financial Services Act 2012, applying to the FCA and PRA respectively. The PRA needs to consult a Practitioner Panel, and the FCA maintains a Practitioner Panel, Small Business Practitioner Panel, Market Participants Panel and Consumer Panel.

108 Christian Voegtlin and Andreas Georg Scherer, “Responsible Innovation and the Innovation of Responsibility: Governing Sustainable Development in a Globalized World” (2015), available at <http://ssrn.com/abstract=2716152>, on the necessity of governing innovation in order to ensure that social responsibility objectives are also met alongside the private interests of exploiting and profiting from innovation.

109 Wiener, supra, note 99; Harrison, supra, note 97.

110 Supra, note 95.