The Growing Importance of Risk in Regulation

Ojo, Marianne (2009): The Growing Importance of Risk in Regulation. Published in: Journal of Risk Finance , Vol. 11, No. 3 (2010)

Abstract

This paper traces the developments that have contributed to the importance of risk in regulation. Not only does it consider theories associated with risk, it also discusses explanations as to why risk has become so important within regulatory and governmental circles. Two forms of risk regulation, namely risk based regulation and meta regulation are considered. As well as considering the application of both in jurisdictions such as the UK, the paper places greater focus in discussing the importance of meta regulation in jurisdictions such as Germany, Italy and the US. The preference for meta regulation is based on the premises, not only of the advantages considered in this paper but also on the application of Basel 11 in several jurisdictions. Whilst meta regulation also has its disadvantages, the impact of risk based regulation on the use of external auditors plays a part in the preference for meta regulation.

• Item Type: MPRA Paper
• Language: English
• Keywords: meta regulation; enforced self regulation;risk; compliance
• Subjects: K - Law and Economics > K2 - Regulation and Business Law

References

'Agencies Seek Public Comment on Proposed Supervisory Guidance for Basel II' <http://www.federalreserve.gov/boarddocs/press/bcreg/2007/20070215/default.htm>

'An Update on Basel II Implementation in the US', 'Reasons for Basel II', 'Remarks by Governor Susan Schmidt Bies at the Global Association of Risk Professionals Basel II Summit, New York, February 27 2007

NO Angermueller, M Eichhorn and T Ramke, 'New Standards of Banking Supervision – A Look at the German Implementation Approach for the Second Pillar of Basel II' 2005 (2) Journal of International Banking Law and Regulation 52

Basel Committee's Core Principles for Effective Banking Supervision and the Relationship between Banking Supervisors and Banks' External Auditors , International Auditing Practices Committee

V Beattie, S Fearnley and R Brandt ‘Behind Closed Doors: What Company Audit is Really About’ (Institute of Chartered Accountants in England and Wales) 26

U Beck Risk Society: Towards a New Modernity 1992 Beverly Hills Sage

M Blair and G Walker, Financial Services Law (2006)136

E Boehmer 'Who Controls Germany? An Explanatory Analysis' Institut fuer Handels und Wirtschaeftsrecht, Universitaet Osnabrueck, Arbeitspaper Nr 71 (1998)

J Braithwaite, ‘Meta Risk Management and Responsive Governance’ Paper to Risk Regulation, Accountability and Development Conference, University of Manchester, 26-27 June 2003

'Core Principles For Effective Banking Supervision' October 2006; See <http://www.bis.org/publ/bcbs129.pdf> (last visited 11th July 2008)

Deutsche Bundesbank, Die Aufsicht ueber Finanzkonglomerate in Deutschland, Monatsbericht, (April 2005) 43-48 Deutsche Bundesbank, 'Supervision of Financial Conglomerates in Germany' Monthly Report (April 2005) 39 Deutsche Bundesbank, 'The Evolution of Accounting Standards for Credit Institutions, Deutsche Bundesbank Monthly Report (June 2002) p 39 Deutsche Bundesbank, 'The Deutsche Bundesbank's Involvement in Banking Supervision' Monthly Report (September 2000) http://www.bundesbank.de/bankenaufsicht/bankenaufsicht_bafin_fenster.en.php

P Dewing and P O Russell, The Role of Auditors, Reporting Accountants and Skilled Persons in UK Financial Services Supervision Institute of Chartered Accountants of Scotland (2005)

T Filipova Concept of Integrated Financial Supervision and Regulation of Financial Conglomerates : The Case of Germany and the UK (Nomos 2007) 39

Financial Services Authority Annual Report 2006/07 at page 162 FSA (2000) A New Regulator for the New Millennium, January FSA (2000) Building the New Regulator: Progress Report 1, December FSA (2002) Building the New Regulator: Progress Report 2, February FSA (2003) The Firm Risk Assessment Framework, February.

CAE Goodhart, (ed) 'The Emerging Framework of Financial Regulation ( Central Banking Publications Ltd London 1998) 95-96

J Gray and J Hamilton, Implementing Financial Regulation : Theory and Practice (2006) 36

A Greenspan, ‘Banking’, Federal Reserve Bulletin, 7 October (2002)

M Gruson 'Foreign Banks and the Regulation of Financial Holding Companies' p 4

F Haines,‘Regulatory Failures and Regulatory Solutions: A Characteristic Analysis of the Aftermath of Disaster’, Law and Social Inquiry ( 2009) 39 (forthcoming)

J Hitchins M Hogg and D Mallett, Banking : A Regulatory Accounting and Auditing Guide (Institute of Chartered Accountants 2001)120,121. House of Commons - Treasury – Minutes of Evidence , House of Commons Environmental Audit, Fourth Report 13 March 2007 Session 2006/2007

K Koguchi, 'Financial Conglomeration', Financial Conglomerates (1993) OECD 11

RM Lastra Legal Foundations of International Financial Stability 2006 Oxford University Press See forward by Charles Goodhart on page vii

M Moscadelli, 'The Modelling of Operational Risk: Experience with the Analysis of Data collected by the Basel Committee' (July 2004) Banca D'Italia Temi di Discussione del Servizio Studi Bank of Italy, Banking Supervision Department Number 517/2004

OECD Report on Regulatory Reform 1997 Volume 1: Sectoral Studies 72 – 76

Organisation for Economic Co-operation and Development, ‘Trends in Banking Structure and Regulation in OECD Countries’ 1987 at p 14

C Parker , The Open Corporation: Self Regulation and Corporate Citizenship Cambridge University Press, Cambridge, UK (2002)

'Proposed Supervisory Guidance for Internal Ratings-Based Systems for Credit Risk, Advanced Measurement Approaches for Operational Risk, and the Supervisory Review Process (Pillar 2) Related to Basel II Implementation

D Quiroz Rendon, ' The Formal Regulatory Approach to Banking Regulation' Badell & Grau Legal Consultants, see <http://www.badellgrau.com/legalbanking.html>

DH Scott ' The Regulation and Supervision of Domestic Financial Conglomerates' August 1994 The World Bank Financial Sector Development Department Policy Research Working Paper No 1329

D Singh, 'Legal Aspects of Prudential Supervision' 2007 at p 90 <http://www.fsa.gov.uk/pubs/other/enf_process_review_report.pdf> pg 35

'Supervision of Financial Services in the OECD Area'< http://www.oecd.org/dataoecd/29/27/1939320.pdf>

See 'Supervision of Banks and Other Intermediaries: Banking Supervision”, Bank of Italy at p 205 <http://www.bancaditalia.it/vigilanza_tutela/vig_ban/pubblicazioni/rela/2001/Supervision.pdf>

The Federal Reserve System Purposes and Functions