Financial Private Regulation and Enforcement

This paper considers the topic of private regulation and enforcement for internationally active financial services firms. The paper documents the following types of regulation and enforcement that involve significant private input: house rules, contracts, internal compliance, management-based regulation, private standard-setting bodies, cartels, and private litigation. The paper assesses these systems or modalities along the dimensions of effectiveness, legitimacy, quality, and enforcement. The paper suggests that the following factors (among others) will contribute to determining the pattern of private/public interaction in a given regulatory context: (1) minimization of transactions costs; (2) access to information; (3) expertise; (4) political power of the regulated industry; (5) contests over regulatory turf; (6) regulatory budget constraints, and (7) history or path-dependence. The topic of financial private regulation and enforcement concerns the activities of private firms in the financial sector which are involved in cross-border activities – Citigroup, Bank of America, HSBC, UBS, JPMorgan Chase, RBS, BNP Paribas, Barclays, Morgan Stanley, Goldman Sachs, Deutsche Bank, HBOS, Société Générale, Banco Santander, American Express, Nomura, and so on. For convenience of reference, I will refer to this type of organization as an internationally active financial services firm (IAFSF). This paper will categorize different types of private regulation and enforcement applicable to IAFSFs and then will offer some tentative thoughts about the underlying forces that may determine the phenomena under observation, with special reference to the HiiL Concept Paper, The Added Value of Private Regulation in an Internationalised World? Towards a Model of the Legitimacy, Effectiveness, Enforcement and Quality of Private Regulation. The principal subject of investigation will be the activities of IAFSFs under U.S. law, but attention will be given to international standards and regulations as well.