Davis Polk discusses U.S. Basel III Final Rule

The U.S. Basel III final rule is the most complete overhaul of U.S. bank capital standards since the U.S. adoption of Basel I in 1989 – nearly a quarter of a century ago.  The final rule comprehensively revises the regulatory capital framework for the entire U.S. banking sector by implementing many aspects of Basel III as well as key provisions of the Dodd-Frank Act, including the Collins Amendment capital floor in Section 171 and the ban on references to credit ratings in Section 939A.  The U.S. Basel III final rule also makes significant changes to the 2012 U.S. Basel III … Read more

Torys on why Chinese Companies Need More Than the JOBS Act

Although the JOBS Act was passed just over a year ago to facilitate capital raising in the United States, allegations of accounting fraud, diminished investor confidence and a regulatory impasse over audit work papers have caused many Chinese companies to exit the U.S. capital markets in the past two years. A large number of Chinese companies went public in the United States in 2010 through IPOs or reverse mergers, but in 2011, the trend began to reverse. In 2012, only two Chinese companies went public in the United States; so far in 2013, only one Chinese company has filed an … Read more

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Editor's Tweet: Torys on why Chinese Companies Need More Than the JOBS Act

Aguilar on Institutional Investors: Power and Responsibility

The following remarks were delivered by Commissioner Luis A. Aguilar of the U.S. Securities and Exchange Commission at Georgia State University on April 19, 2013. 

Good evening. Thank you for that kind introduction. I am glad to be here at Georgia State University and the J. Mack College of Business. I would like to thank the Center for the Economic Analysis of Risk (CEAR) and the Department of Finance for sponsoring this workshop. Before I begin, let me issue the standard disclaimer that the views I express this evening are my own, and do not necessarily reflect the views of … Read more

Against Being Against the Revolving Door

I have argued, in an article in the Illinois Law Review, and in an op-ed for the New York Times/DealBook, that the perils of the revolving door, whereby lawyers move in and out of government service whilst many wring their hands about it, are overstated.   In this post, I want to defend that argument mostly with reference to the employment outcomes of a set of elite prosecutors, most of whom went through the revolving door, but who have not exhibited the signs of corruption we might expect.

I’m not surprised by the result.  Most government officials have plenty of reasons … Read more

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Editor's Tweet: Wharton Professor David Zaring: Against Being Against the Revolving Door http://wp.me/p2Xx5U-15T

Should Lex Americana be universal? FATCA turns foreign banks into tax informants

Over the last decades, a number of initiatives taken by various US administrations on both sides of the aisle have raised concerns about the actual legality of the extraterritoriality attached to laws imposed by the United States of America on other jurisdictions around the world, often using “persuasion” rather than legal due process.

In my first course on International Private Law at the Catholic University of Louvain, we were taught that tax laws could not extend beyond the borders of the taxation authorities. The territoriality of tax laws is confirmed by the literature.   The double taxation treaties confirm this principle … Read more

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Editor's Tweet: George Ugeux discuss whether the Lex Americana should be universal? How FATCA turns foreign banks into tax informants

Should Municipal Bond Issuers be Required to Disclose Bank Loans?

You may be surprised to learn that municipal bond issuers are not required to disclose bank borrowings.  I’ve heard numerous estimates that such issuers have outstanding bank borrowings in the $200 to $300 billion range, which would amount to approximately 5-8 percent of the $3.7 trillion municipal bond market. A nine-member working group of banks, underwriters, financial analysts and attorneys recently released a white paper to provide guidance to states and municipalities on disclosure for bank borrowing.  As discussed below, the white paper appears to be a blueprint for disclosing as little as possible.

It’s pretty astounding that a community

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Editor's Tweet: Cate Long of Reuters Discusses Whether Municipal Bond Issuers should be Required to Disclose Bank Loans?

The Separation of Investments and Management

This post comes to us from Professor John Morley, who is currently an associate professor of law at the University of Virginia School of Law.  He will be joining the Yale Law School faculty as an associate professor this July. 

In my new paper, “The Separation of Investments and Management,” I suggest a basic shift in the way we think about investment funds. The essence of these funds and their regulation lies not just in the nature of their investments, as we commonly believe, but also—and more importantly—in the nature of their organization.

Every type of … Read more

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Editor's Tweet: Yale Law School's Professor John Morley discusses the separation of investments and management

Sullivan & Cromwell discusses the Basel Intraday Liquidity Framework

The Basel Committee on Banking Supervision (the “Basel Committee”), in consultation with the Committee on Payment and Settlement Systems, recently published a final document concerning supervisory monitoring tools for intraday liquidity management (the “Intraday Liquidity Document”).

The Intraday Liquidity Document complements the Basel Committee’s overall liquidity risk management framework by setting forth a new set of metrics (or “ monitoring tools”) intended to enable national supervisors to monitor banks’ intraday liquidity risk and ability to meet payment and settlement obligations on a timely basis under both normal and stressed conditions. The tools are also intended to benefit authorities responsible for … Read more

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Editor's Tweet: Sullivan & Cromwell discusses the Basel Intraday Liquidity Framework

Gibson Dunn discusses the Fed’s Foreign Banking Organization Proposal: Will Comments on the Intermediate Holding Company Requirement Be Heeded?

The comment period has now closed on the controversial proposed rule (FBO Proposal) of the Board of Governors of the Federal Reserve System (Board) implementing Sections 165 and 166 of the Dodd-Frank Act (Dodd-Frank) for foreign banking organizations (FBOs) and foreign nonbank financial companies supervised by the Board. 

If the FBO Proposal becomes final in the manner proposed, it will mark a sea change in the regulation of the U.S. operations of FBOs, by requiring FBOs with $50 billion or more in total global consolidated assets and $10 billion or more in total U.S. nonbranch assets to form an intermediate Read more

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Editor's Tweet: Gibson Dunn discusses the Fed's Foreign Banking Organization Proposal

Irredeemably Inefficient Acts: A Threat to Markets, Firms, and the Fisc

My forthcoming article, Irredeemably Inefficient Acts: A Threat to Markets, Firms, and the Fisc, identifies a category of acts that clearly and inevitably reduce social welfare.  These acts—which I call irredeemably inefficient—have not been expressly recognized in previous work.  Yet the distinction I draw reflects a fundamental feature of the U.S. antitrust law, justifies several recent Delaware Chancery Court decisions, and suggests substantial rethinking of some important aspects of securities and commodities regulation.

Irredeemably inefficient acts have remained outside of the standard theory of public enforcement of law.  That theory holds that inefficient conduct may be converted into … Read more

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Editor's Tweet: Professor Alex Raskolnikov of Columbia Law School discusses his new paper on Irredeemably Inefficient Acts.

Information Transmission between Financial Markets in Chicago and New York

High frequency trading has led to widespread eff orts to reduce information propagation delays between physically distant exchanges.  In my recent paper Information Transmission between Financial Markets in Chicago and New York, co-authored with Gregory Laughlin and Anthony Aguirre of UC Santa Cruz, we use relativistically correct millisecond-resolution tick data to document a 3-millisecond decrease in one-way communication time between the Chicago and New York areas that occurred from April 27th, 2010 to August 17th, 2012. We attribute the first segment of this decline to the introduction of a latency-optimized fi ber optic connection in late 2010. A second … Read more

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Editor's Tweet: Stanford Law's Joseph Grundfest discusses Information Transmission between Financial Markets in Chicago and New York

Warren Buffett v. Modern Finance Theory

Experienced readers of Warren Buffett’s letters to the shareholders of Berkshire Hathaway Inc. have gained an enormously valuable informal education. The central theme uniting Buffett’s lucid essays is that the principles of fundamental business analysis, first formulated by his teachers at Columbia Business School, Ben Graham and David Dodd, should guide investment practice.

This stance conflicts with the dominant view of contemporary teachers of finance, which stresses modern finance theory’s efficient market hypothesis to challenge whether such fundamental analysis can be practiced successfully. Debate over this question nevertheless continues, in academia and on Wall Street, raising issues of great important … Read more

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Editor's Tweet: Professor Lawrence A. Cunningham of GW Law discusses Warren Buffett's investing philosophy against modern finance theory

Deterring Libor Manipulation and Improving Benchmarks

It’s tempting to think that we might be seeing the end of potential manipulation of financial benchmarks and rates, such as Libor.

The story would go like this: the Libor rate was an anomaly – humorous in retrospect – that was structured in a way prone to manipulation because it relied on the subjective (and objectively unverifiable) judgments of bank personnel who were subject to conflicts of interest.  Having weathered that scandal, we have now grown wiser. The FSA’s recent reforms of the rate-setting process have constrained the opportunities for ex ante human discretion in Libor: they treat Libor panel … Read more

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Editor's Tweet: Andrew Verstein of Yale Law School discusses deterring Libor manipulation and improving benchmarks

Cyprus: what happened to the sanctity of insured deposits?

In the turmoil created by the decision of the Cyprus Government to impose a 6.75% levy on deposits up to 100,000 euros and 9% above, it might be useful to look at the legal aspects of this decision. The issue of a guarantee scheme for deposits is not new, and even Cyprus established such a scheme in 2000. This posts walks through the relevant European and Cypriot regulation.  I argue that there is no precedent for Cyprus’ levy and that it creates a serious risk of contagion.

European regulation

On July 12, 2010, the European Commission adopted a legislative proposal … Read more

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Editor's Tweet: Georges Ugeux, Chairman and CEO, Galileo Global Advisors, discusses Cyprus: what happened to the sanctity of insured deposits.

Money Market Fund Reform: Endorsement of the Minimum Balance at Risk Proposal

On February 28, I submitted a letter on Money Market Fund Reform to the Financial Stability Oversight Council in response to their November 2012 request for comments on a number of alternative proposals.  I endorse the so-called “Minimum Balance at Risk Proposal,” in which fund sponsors would create a capital buffer by contributing or raising capital of one percent of a money market fund’s assets while fund investors would be subject to delayed redemption of three percent of their account over $100,000.  This approach could cause sponsors to internalize the costs of portfolio security selection while forcing large fund investors … Read more

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Editor's Tweet: Professor Jeffrey N. Gordon of Columbia Law School discusses Money Market Fund Reform

Call for Working Papers in Finance, Economics, Accounting, Law, and Business

On June 7, 2013, CalPERS is hosting its inaugural Sustainability & Finance Symposium in Davis, California.  The event is co-chaired by Professor Robert J. Jackson, Jr. of Columbia Law School on behalf of the Ira M. Millstein Center for Global Markets and Ownership.  The symposium is part of a larger initiative being undertaken by CalPERS to drive innovative thought leadership that will inform and advance our understanding of sustainability factors and the impact they may have on companies, markets, and investment intermediaries from the perspective of a large, global, long-term, and multi-class institutional asset owner.

The symposium is seeking … Read more

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Editor's Tweet: CalPERS Call for Working Papers in Finance, Economics, Accounting, Law and Business

Market Discipline: The Next Generation

My forthcoming article, Interbank Discipline, draws attention to the important role that banks play monitoring and disciplining other banks.  To understand the significance of interbank discipline, the Article proposes a new way of thinking about market discipline more generally.  In the first wave, advocates of market discipline viewed it as a basis for deregulation.  Why expend government resources duplicating the efforts of market participants, the rationale went, particularly considering that regulation can discourage market discipline and markets are often more effective than regulators?  The 2007-2009 financial crisis, and numerous scandals preceding it, largely brought an end to such reasoning.  … Read more

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Editor's Tweet: Professor Kathryn Judge of Columbia Law School discusses the next generation of market discipline.

The Custom-to-Failure Cycle

The article, The Custom-to-Failure Cycle, which I wrote with my research assistant Lucy Chang (Duke Law School class of 2012), examines how reliance on heuristic-based customs can lead to financial failures. In areas of complexity, people often rely on heuristics—by which we broadly mean simplifications of reality that allow people to make decisions in spite of their limited ability to process information. When this reliance becomes routine and widespread within a community, it can develop into a custom. This type of custom may not—and indeed, our article assumes, does not—become the basis for law per se. Rather, it is … Read more

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Editor's Tweet: Professor Steven Schwarcz of Duke Law discusses his recent article with Lucy Chang on the cycle leading from custom to failure.

A Comparative Analysis of Shadow Banking Reforms by the FSB, USA and EU

The year 2013 is likely to be a watershed time in the development of shadow banking oversight and regulation. Of particular note are three upcoming developments: (1) the Financial Stability Board (the FSB) has commenced public consultations on its initial proposals and final recommendations are scheduled to be released in September 2013; (2) the USA will soon begin designating its first nonbank Systemically Important Financial Institutions (SIFIs), and will clarify its plans for regulating such entities in practice; and (3) the European Systemic Risk Board is preparing to recommend shadow banking oversight changes in early 2013. It is therefore an … Read more

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Editor's Tweet: Cleary's Ed Greene and Elizabeth Broomfield discuss their comparative analysis of shadow banking reforms by the FSB, USA, and EU.

Implications for the CFPB After the D.C. Circuit’s Recess Appointments Decision

A panel of three judges in the D.C. Circuit stunned Washington on Friday by striking down President Obama’s recess appointments to the NLRB in Noel Canning v. NLRB on a basis much more sweeping than had been anticipated. The two holdings in the decision cast doubt over the longstanding practice of intrasession recess appointment, which has been used especially frequently in the last two decades.

For financial institutions, the decision is of direct interest because it calls into question President Obama’s recess appointment that same day of Richard Cordray as Director of the CFPB and, as a result, all of … Read more

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Editor's Tweet: Davis Polk's Tahyar, Yanes, and Guynn discuss the DC Circuit's recent decision in Noel Canning v. NLRB and the Implications for the CFPB.