NUS Law
Introduction to Law & Finance / January 2015
Overview and Allocation of Topics
Gerard Hertig, ETH Zurich
January 13, 2015
Course Overview
1. Introduction: What is law & finance?
2. Financial systems and competition
3. Corporate governance
4. Prudential regulation and capital adequacy
5. Information and gatekeepers
6. Financial products and financial transactions
7. Resolution
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1. What is Law & Finance?
1. Moving from a dogmatic to a functional approach
– Financial purpose / effect vs legal categories
– Focus on transaction costs (coordination, drafting) and
externalities vs focus on legal doctrines
– Take better account of institutions
2. ‘Relying’ on empirical analysis
– ‘Complete’ dataset vs leading cases/major transactions
– Using proxies and constructing indexes
3. Integrating behavioral finance
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A. Implications for this Course
• Take into account Economics and Politics
• Adopt a broad view, policy-oriented approach
• Deal with core regulatory issues
• Based on a selection of 12 papers  See A.1 – A.7
• Each session starts with a presentation based on a
draft Comment on the relevant paper
• Presentation is followed by comment by one
participant followed by general discussion organized
along core issues raised by the paper
• Active individual participation is crucial
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A.1 Financial Systems and Competition
• Perotti: Financial Systems
– Political regimes and financial structures
– Finance and the broadening of political participation
– Political choices in democracy
• Ratnovski: Competition Policy for Modern Banks
– Banks are different in capital market based economy
– Hard to regulating entry-exit as market structure plays
limited role
– Segmenting activities and reinforcing ‘nationalizations’
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A.2 Comparative Corporate Governance
• Morck/Yeung: Comparative Corporate Governance
– Varieties of governance but standard model
– Major differences arise at the occasion of crises
– No clear trend towards convergence or divergence
• Rock: Role of Institutional Investors
– Significant increase in equity holdings
– Apparently no corresponding increase in activism
– Role of undiversified activists and passive investors
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A.3 Prudential Regulation and Capital
• De la Torre/Ize: Macro-Prudential Regulation
– Taking into account irrationality and externalities
– Preventing private parties to take advantage of public
interest interventions
– Tempering mood swings
• Flannery: Bank Capital
– What is adequate capital?
– Can banks ever have ‘enough’ capital?
– What are the alternatives?
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A.4 Transparency and Information Providers
• Enriques/Gilotta: Disclosure
– Related party transactions as an instrument of tunelling
– The need for sophisticated enforcement actors
interventions
– The role of medias
• Becker/Opp: Replacing Ratings
– The role of rating agencies
– Are rating agencies too though or too lenient?
– Using expected losses and book values instead
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A.5 Financial Products
• Pistor: Law in Finance
– Relation between law and finance: credibility
vs flexibility
– Application to sovereign debt, private credit
markets and derivative markets
– There is no equality in finance
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A.6 Executing Financial Transactions
• Rehlon/Nixon: Central Counterparties
– Counterparty vs. market risks
– Managing the counterparty risk via margin calls
– Supervising ‘systemic’ CCPs
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A.7 Resolution and Liquidation
• Jackson/Skeel: Large Financial Institutions
– Avoiding the resolution of large players
– Bail-ins and mergers
• Croci/Hertig/Nowak: Small Commercial Banks
– Resolution is possible even in times of crisis
– For some banks, bail-outs are more efficient than
resolution
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B. Putting Law & Finance in Context
1. The evolving role of banks and capital markets
2. Institutions and finance
3. Law and Politics
4. Current role of law in finance
5. Implication for the approach adopted in this
course
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B.1 Historical Perspective
• Financial systems arise to better exploit gains from trade
• First stage (3’000 BC – 1300 AD)
– Mesopotamia  Means of payment and loans
– Greeks/Romans  Money changers, deposit takers, mortgages
– Fairs  Recording of claims and liabilities
• Second stage (1300 AD  1500 AD)
– Northern Italy  Bills of exchange, insurance, accounting
• Third stage (1600 AD  1700 AD)
– Amsterdam  Stock exchange
– Sweden  Central Bank
• Fourth stage (1700 AD )
– Stock market-oriented systems = Anglo-Saxon
– Bank-oriented systems = Continental Europe
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Banks and Markets
• Traditionally
– UK & US considered market-oriented (why?)
– Germany & France considered bank-oriented (why?)
• Is this still true?
– Globalization (convergence effect?)
– Systemic risk (why does it matter?)
• Was there ever a clear-cut distinction?
– Many differences that matter (which ones?)
– Similarities France/US, Germany/US
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Banks have a past
Do they have a future?
• Banks  link between creditors and borrowers 
transformation function
• Emergence during the Renaissance
• From commercial to investment banking
• Moving to asset/wealth management
• What about P2P and its implications?
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B.2 Institutions and Finance
Economic exchanges are shaped by institutions
– Combination of formal and informal ‘rules of the game’
– Complement contracts in allocating risk and value among
economic actors

Quality of institutions explain economic growth

Institutions that form financial ‘rules of the game’
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

Legal Political
Cultural
(including social capital, ethics and religion)

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Political Institutions
• Unconstrained autocracy
– Undermines financial accumulation
– Political and economic elites
– Limits entry and competition
• Broadening political participation
– Political power allocated to larger set of citizens
– More savings, more credit
• Democracy
– Bank-based systems  Civil law?
– Market-based systems  Common law?
– Varieties of capitalism and State intervention
 Impact on competition
 Impact on the role of legal institutions
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Legal Institutions
• Law-making
– Statutes: ‘Private’, ‘public’ & ‘criminal’ law
– Case law: Leading cases vs. other cases
– Self-regulation: Clarification, barrier to entry and
window dressing functions
• Enforcement
– Enforcement and compliance
– Private enforcers, public officials, gatekeepers
– Sanctions
• Importance of politics and culture
– Capture and molding effects
– Time-invariance of culture
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B.3 Law & Politics: Market Integration
• Single market models
– US/Eurozone vs. UK/Switzerland
– Impact on competition policy
– Impact on free movement of financial services
• Single passport and barriers to entry
• Harmonization and mutual recognition
• Optimal currency area
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Link between monetary and fiscal policy
Impact on sovereign debt
Supervising financial intermediaries
Bailing out financial intermediaries (state aid and QE)
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Law & Politics: Statutory Framework
• Reliability and stability
– Good times: reliability of ex ante commitment
– Bad times: Ex post adjustments
• Temporarily overruling applicable law
• Providing regulatory subsidies
• State intervention: Public choice issues
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Industrial firms (listed and non-listed)
Financial institutions (banks and asset managers)
Controlling owners and SH activists
Regulatory authorities
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Law & Politics: Private Choice
• Law to support contracting
– Drafting costs : Customization ± optimal
– Charter or individual contract  Default (off-the-rack)
– Possibility to improve, standardization function
• Imperfect markets
– More complex/significant than expected by many
– can make contractual approach suboptimal
– When is this the case and how should lawmakers
impose mandates?
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B.4 Current Role of Law in Finance
• Shift from relational to market-based finance
• Law remains central to modern finance
– At the core of financial instruments
– Lending authority to public and private instruments
– Delegating powers to public or private regulators
• Financial markets are rule bound systems
– Infrastructure
– Contracts and liability
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