Tuesday, March 23, 2010

Parallels to Regulating the Financial Sector

Executive Summary: The financial services industry and regulators are in rare agreement over the need for some sort of reform. The broad spectrum of views on the issue suggests a need for some fundamental questions that highlight the key decision making elements of the process. Here are some questions that may position you to quick get to the crux of the matter.

A friend* who owns and runs a company in the chemicals industry asked, "If the state is responsible for everything, and pays for everything, why have any liability (on the private players) at all?" As a responsible businessman, he was reacting to a news article that in case of problems, a power plant operator's liability would be capped at 5 to 10% of the total cost of building the plant. The sector? Nuclear power.

The financial services sector and its regulators are apparently in rare agreement that some change must be effected in the sector. The questions I raised in the exchange over the nuclear power sector may be applied to the financial services sector. This is to serve as a parallel to help think through the direction of regulatory reform.

The key to the questions is based on:
1. Market structure
2. Managing liability

Fundamental Questions
Here are some fundamental questions that may help us get a better grip on the discussion.

1. Liability:
- Why do we need the concept of a corporation and the limited liability corporation, for private industry to successfully exist?
- Why do we need the concept of bankruptcy and the potential of a corporation emerging from it?
- Why do countries support the concept of LLCs, and why do more "efficient" (???) economies have "good" bankruptcy laws and implementations?
- Does liability, actual or nominal, ever disappear? Or does it just sit hidden (liability arising out of the risk of a catastrophic event), or rest in plain view (estimated liability after the catastrophic event has occured), till some action is taken?

2. Comparables:
- Does a generator of hydro electric power, who has built a dam, get some sort of liability support?
- If yes, is there a particular reason for either denying or augmenting liability support for the nuclear power sector?

3. The Need for Private Players in the Industry:
- Why do we need private players in the sector? Why can't the government go it alone? Is there a need for more capital, technology, management expertise, or innovation?

4. Regulation:
- How does regulation create the right sort of safeguards and incentives?
- Can the regulation be effectively implemented/ enforced?

More on Liability
An example from the brick and mortar world:

If a building falls a few years after construction (now, we could use the example of crane accidents which have happened in New York), the supplier of building materials/ builder/ building management/ city may get sued/ face civil or criminal action/ etc. Perhaps the high cost of paying out the liability may cause one of the players to go bankrupt. Lets deconstruct this scenario:

1. Was the supplier of building materials working in an environment where faulty components were expected to be weeded out by other players in the value chain, and were not supposed to make the building collapse? In that case, was the liability shared by the "integrated" supplier, construction company and the checks and balances system?
2. Was the liability so huge that, despite it being correctly apportioned to all stakeholders, it remained so large that even after liquidating, the private players involved couldn't make a dent in the liability? In that case, what's the point of apportioning liability?
3. Is it possible to limit the effects of a collapse of a market to within the market? E.g. Does the market have enough players to replace the bankrupt company?
4. Would the collapse of the company cause the market to collapse? Would the collapse of the market be acceptable?
5. Is this a market where "failure" means only two options- all players come together to fix the problem, or someone is prosecuted for negligence, while the rest try to fix the problem?

An Example of a "Negotiated" Allocation of Liability
Lets return to the financial services industry, and look at how Iceland is handling the liabilities arising out of the collapse of its financial services industry:
What do you think?

Update: Nikhil shared a wonderful article that showed that folks in the 1950s in the US had thought about these deep philosophical questions while creating an industry in the Nuclear Power sector. It's just fantastic to know that. Now, the same assumptions may not apply in a different context, but it is still fantastic to get an insight into "market engineering".
* Thanks Nikhil.

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