useful and timely caveat from the comptroller of the currency November 30, 2016
Posted by Bradley in : financial regulation , add a commentThomas Curry, in a speech at The Clearing House Annual Conference:
I am glad that our banks and the banking system are stronger today, but now is not the time to let our guard down. Those who have been in this business for more than one cycle know a downturn will come. Effective regulation and supervision will help ensure that the trough will not be so deep or so wide. Those who forget or choose to ignore the lessons of the last crisis do so at their own peril and increase the risk to all of us.
the play that goes wrong November 15, 2016
Posted by Bradley in : culture , add a commentNot the election. But The Play that Goes Wrong is to transfer to Broadway. I saw it this summer (while feeling anxious about the aftermath of the Brexit vote (I am still anxious)). The play is not deep, but it is very funny. The sort of antidote some of us might need right now.
parliament talks brexit, rule of law, freedom of the press, and we’re none the wiser November 7, 2016
Posted by Bradley in : brexit , add a commentAmong the many failures of transparency in this whole situation, today’s discussion of last week’s court decision, and the press reaction, is the one about not wanting to disclose to Parliament anything about the Government’s negotiating position that might prevent the UK from getting the best possible deal for the UK.
This sort of “trust us, we will do the best for you (and transparency would stop us doing that)” talk contrasts with the EU’s disclosure of documents relating to TTIP negotiations. Transparency isn’t inevitably seen as inconsistent with negotiation – at least when you recognise that you need to bring citizens on board with the results of the negotiation.
These parliamentary debates seem to be based on a rather different idea – that when the Government tells the people that it has negotiated the terms of a Brexit that are the best terms possible, or that the failure to reach agreement on such terms means that there will be a Brexit with no agreement on terms at all, that the citizens should just accept it. After all, the point is to do what a majority of the voters said they wanted, which is Brexit. It is politically impossible, seemingly to notice the Parliamentary failure to think through the details in the referendum legislation, or the massive fraud that was perpetrated on the citizens who voted.
The range of theoretically possible terms is vast – and to describe them all as Brexit makes no sense.
Moreover, it looks increasingly likely (and this would be entirely rational) that the only terms on offer will be those that offer the worst deal for the UK. The other Member States have every incentive to try to pick off every single part of UK economic activity they can. If they did not insist on the worst possible terms for the AUK they would be failing in their duties to their own citizens, and failing in their responsibilities to each other to do what is necessary to hold the European project together.
brexit rule of law issues November 6, 2016
Posted by Bradley in : brexit , add a commentThursday’s judgment in R (Miller) v Secretary of State for Exiting the EU is beautiful, a model of a judicial opinion, elegant and parsimonious, and also very careful not to trespass on political decision-making. It’s a judgment all law students in the UK should be required to read. But just as Mark Carney’s good faith implementation of his statutory mandate for financial stability has been critiqued as impinging on politics, so this good faith exercise of legal judgment has been impugned by people who should know better. And the Justice Minister stands by. How can a recognition of the fundamental principle of the British Constitution that sovereignty belongs to the Queen in Parliament be seen as anything other than pro-democracy? Meanwhile it looks as though the EU Commission is looking onto another (possible?) failure of the UK Government to respect the law – this time with respect to EU state aids rules and whatever promises have been made to Nissan. And surely this will attract just as much unthinking hostility as the other developments. And to think that the UK celebrated the 800th anniversary of Magna Carta last year.
a prime minister of pretences? October 30, 2016
Posted by Bradley in : governance , add a commentThe final paragraph of this piece by Nick Cohen raises some quite fundamental questions about transparency in government:
Now she is a prime minister of pretences, running a government where feelings matter more than fact. She pretends that we should leave the EU, even though she knows we should remain a member of the single market. She offers us the illusion that we are taking back control, even as we lose our freedom to act. She cuts deals in secret, in the hope that the public will never realise that her land of make-believe is an expensive place to live.
Meanwhile, other news stories suggest that Mark Carney may choose to step down after much public criticism. Whether or not the stepping down would really be for personal reasons, there’s a deep irony here: a person who seems to have tried, in good faith, to carry out his statutory mandate is threatened for not going along with the fantasies the people in power choose to tell the public.
non-uk citizens not allowed to help with uk brexit work: more isolation (but it’s the opposite of splendid) October 7, 2016
Posted by Bradley in : britishness , add a commentThis is a shocking development from a country that claims it wants its universities to carry on being centres of excellence:
It is understood up to nine LSE academics specialising in EU affairs have been briefing the Foreign Office on Brexit issues, but the school was informed by a senior FCO official that submissions from non-UK citizens would no longer be accepted. Notes were subsequently sent to those in the group telling them of the instruction.
consequences of financial sector misconduct September 28, 2016
Posted by Bradley in : financial regulation , add a commentJohn Chiang, California State Treasurer, announced sanctions against Wells Fargo for a period of one year from today including the suspension of investments by the Treasurer’s Office in all Wells Fargo securities, suspension of the use of Wells Fargo as a broker-dealer for purchasing of investments by his office and suspension of Wells Fargo as a managing underwriter on negotiated sales of California state bonds where the Treasurer appoints the underwriter. The letter announcing the sanctions to Wells Fargo states:
In the case of Wells Fargo, how can I continue to entrust the public’s money to an organization which has shown such little regard for the legions of Californians who have placed their financial well-being in its care? I have a responsibility as a leader in the financial marketplace to take action aimed at helping you understand that integrity and trust matter.
Meanwhile the UK’s Financial Conduct Authority published a raft of consultation and other documents collected together under the rubric “new measures to maintain firms’ focus on culture”, including a Policy Statement on regulatory references, a Consultation Paper on Duty of Responsibility, a Consultation Paper on non-executive directors, a Discussion Paper on the legal function, a Consultation Paper on whistleblowing in foreign branches and a Consultation Paper on remuneration in CRD IV firms. The announcement notes that the Senior Managers’ and Certification Regime has been functioning for 6 months and today’s publications give information about the Regime and move to strengthen it.
asil international economic law interest group biennial conference September 28, 2016
Posted by Bradley in : events , add a commentI am going to the ASIL International Economic Law Interest Group Biennial Conference this week. The program is here. I am going to be talking about Financial Stability, Regulation and Politics (August 2016).
what is international law? September 28, 2016
Posted by Bradley in : um , add a commentI gave an orientation talk to our LLM students on this topic and have written up my notes: What is International Law?.
what hope of suing the troika over austerity? September 21, 2016
Posted by Bradley in : eu, financial regulation , add a commentIn an article with the title Austerity-hit citizens allowed to sue troika, ECJ rules, which discusses the implications of the decision in Ledra Advertising v Commission and ECB (Judgment) [2016] EUECJ C-8/15 (20 September 2016), Nicole Sagener writes:
Green MEP Sven Giegold said it was a “breakthrough for the protection of fundamental rights”and announced that he would endeavour to support any citizens looking to seek compensation from the troika. Giegold added that people who have been affected in countries like Greece, Portugal, Ireland and Cyprus finally have legal means by which to have their cases heard.
The article does note some caveats expressed by Andreas Fischer-Lescano: it’s not a “blank check” and will only apply in “extreme cases.”
To me the decision is another example of the Court nodding in the direction of the protection of human rights while emphasizing that they are not absolute. The Court states (in para 70, but this is not new):
restrictions may be imposed on the exercise of the right to property, provided that the restrictions genuinely meet objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed
The need to protect financial stability, the Court says, is an objective of general interest for the EU:
Indeed, financial services play a central role in the economy of the European Union. Banks and credit institutions are an essential source of funding for businesses that are active in the various markets. In addition, the banks are often interconnected and certain of their number operate internationally. That is why the failure of one or more banks is liable to spread rapidly to other banks, either in the Member State concerned or in other Member States. That is liable, in turn, to produce negative spill-over effects in other sectors of the economy…In view of the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of financial losses to which depositors with the two banks concerned would have been exposed if the latter had failed, such measures do not constitute a disproportionate and intolerable interference impairing the very substance of the appellants’ right to property. Consequently, they cannot be regarded as unjustified restrictions on that right.
Imagining circumstances in which EU institutions stated they needed to take urgent action to protect financial stability and the court said that the action was an unjustified interference with fundamental rights is. I think, difficult.