Compliance and Regulation Law bilingual Dictionnary


by Marie-Anne Frison-Roche


Trust has long been the very foundation of monetary, banking, financial and insurance systems. The banking and financial industry relies on the confidence that consumers, investors here, give to the securities they acquire. Goods issued on the market do not have a corporality and their value depends only on the confidence that the buyer inserts in the value that the other investors themselves grant to the security. This is why the financial market is said to be intersubjective. This very subjective character of the banking and financial markets is not shared with the markets for goods and services because on them goods have a physical existence that is palpable by the consumer. For example, there is no need to trust the apple vendor to know that the apple exists, and it takes little time to bite it and know its taste. The financial title can not have these virtues.

This subjectivization of the banking and financial markets has led more than elsewhere to the need for a charismatic regulator, and it is on these markets alone that there are central bankers - gurus - of whom Alan Greenspan has long been the paragon, since we now recognize the role of "regulator" of central bankers. Thus, people's behavior, image, reputation, expectations of behavior, etc., are essential, and gambling economic theory has largely developed in relation to banking and financial markets. Similarly, in these sectors, Regulation and Supervision are articulated, the personality of the people who run the systemic institutions being controlled.

But the question of trust can be asked in more general terms, which implies the question of the link between regulation, supervision and even reference to a "sector". The main difficulty is that trust is volatile and fear causes it to be lost, fear being self-fulfilling. As shown by the succession of financial crises of 2008, the major challenge is restoration through the regulation of confidence in the markets). The new mechanisms, in particular the banking union in Europe, in particular the banking resolution, are aimed at this.

The restoration of trust is extremely difficult, as legal texts and the law in a more general way are ill-equipped to give rise to feelings: one does not decree competition, one decrees still less confidence. Different States seek regulatory solutions either by increasing prudential requirements (European model) or by closely monitoring the use of funds by banks (the Volcker rule for the United States) or by internal reorganization in the event of default by The forecast of the bank wills and the intervention of resolutions.

In a more general way, it is the regulator that injects confidence. Independence and the absence of conflict of interest being a major element of this, central banks tend to move closer to the figure of the Regulator, which approximates the figure of the Judge and the Tribunal, obliged by the legal principle of Impartiality that oblige them.


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