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China is one of the pioneers in developing innovative models for credit business through a partnership between FinTech firms and traditional financial institutions such as banks. There are two main business models of FinTech-bank partnership, namely the loan facilitation model and the co-lending model. While this partnership brings many benefits, it has significant risks, including outsourcing risks, monopolistic practices, data protection, algorithmic bias, and financial systemic risk. This paper critically examines the Chinese regulatory responses to those risks with a focus on the outsourcing issue. Drawing upon the experiences of some overseas jurisdictions, including the US, the UK, the Netherlands, Luxembourg and Switzerland, this paper makes relevant suggestions for improving the Chinese regulation. China is advised to adopt a staged and differentiated approach to regulate FinTech-bank partnership. The first step is to establish a regulatory sandbox for FinTech firms to test their innovative activities, and, depending on the specific circumstances, an umbrella entity mechanism could also be introduced. Further, a sophisticated licensing regime can be established to set out differentiated rules for FinTech firms according to the nature and extent of the FinTech-Bank partnership, thus addressing the problem of regulatory arbitrage. [ABSTRACT FROM AUTHOR]

We study how banks' year-end window dressing affects the identification of global systemically important banks (G-SIBs) and their capital requirements. Some G-SIBs reduce their balance sheet at year-end, especially their derivative books and intra-financial system exposures, to an extent that they can reduce their requirements or avoid G-SIB designation. While window-dressing G-SIBs benefit from lower funding costs during normal conditions, they face tighter funding constraints and increased systemic risk during stress episodes. Supervisory judgement is thus crucial in assessing G-SIBs, and greater use of average as opposed to point-in-time data in regulation is recommended to mitigate window dressing incentives. [ABSTRACT FROM AUTHOR]

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This article analyses regulatory arbitrage in financial markets from a risk-based perspective. It assesses regulatory arbitrage in terms of the risk it may pose to the attainment of a regulatory objective, in this case financial stability. Its most distinct contribution to the literature is the application of the NOAEL approach—thus far mainly used in public health literature and regulatory toxicology—to the legal analysis and management of arbitrage risks. We propose several qualitative parameters relating to the likelihood of regulatory arbitrage and the negative impact if such arbitrage should occur. The article ultimately aims to help frame the ongoing debate about policy-making and the use of risk assessment methodologies to cope with regulatory arbitrage in financial markets. [ABSTRACT FROM AUTHOR]

Regulatory arbitrage refers to structuring activity to take advantage of gaps or differences in regulations or laws. Examples include Facebook modifying its terms and conditions to reduce the exposure of its user data to strict European privacy laws, and Uber and other platform companies organizing their affairs to categorize workers as non-employees. This article explores the constraints and limits on regulatory arbitrage through the lens of the technology industry, known for its adaptiveness and access to strategic resources. Specifically, the article explores social license and the bundling of laws and resources as constraining forces on regulatory arbitrage, and the legal mismatch that can arise from new business models and innovations as a key area in which the limits of regulatory arbitrage can be observed. [ABSTRACT FROM AUTHOR]

This article looks at the phenomenon of 'defensive regulatory competition' in European corporate law following Centros, Überseering and Inspire Art. In order to retain control over the corporate governing private limited entities operating within their territories and to prevent the proliferation of 'foreign limited' formations, Member States have modified some of the features of their laws that company founders consider to be the most unattractive, such as minimum capital and time-consuming incorporation procedures. The first part of the article analyzes the market for the law governing privately held firms, drawing from the debate in the United States. The US and Europe differ in that regulatory competition, as far as substantive law is concerned, focuses mainly on ex post mechanisms such as directors' duties and veil piercing. By contrast, European competition seems to be driven by ex ante issues relating to firm formation, such as minimum capital. The second part of the article draws on an ongoing empirical research project that attempts to explore the effects of regulatory competition and uses reforms in Germany and Belgium as examples. Regression analysis suggests that at least the German 2008 reform had a minor effect on the number of UK private limited companies being set up to do business in Germany. [ABSTRACT FROM AUTHOR]

We use staggered changes in the taxation of banks by U.S. states to show how banks adjust their capital structure in response to taxes. A one percentage point increase in the income tax rate leads to a decrease in the ratio of equity to total assets of 15 basis points. The effect is symmetric for tax increases and decreases but heterogeneous in that small and strongly capitalized banks react more. In response to taxes, banks also adjust their assets consistent with regulatory arbitrage activities intended to keep down regulatory risk measures, thereby keeping regulatory ratios at acceptable levels despite increasing leverage. Finally, higher taxes may decrease banks’ ability to survive crises. [ABSTRACT FROM AUTHOR]

The global financial crisis proved that banks are not the sole source of systemic risk to the financial system and the wider economy. Indeed, systemic risk emanating from non-bank financial institutions proved to be a key vulnerability of the financial system. Such risks occurred, above all, when leveraged non-bank financial institutions performed bank-like activities such as maturity and/or liquidity transformation. However, the increasingly blurred distinction between markets, financial institutions, services and products is not matched in the European Union by an integrated regulatory and supervisory approach. Instead, regulation was and remains largely organised along sectoral lines, with an emphasis on the banking sector. As the global financial crisis shows, this creates a risk of gaps in the coverage of regulation and supervision, leading to inconsistent regulatory treatment of equivalent products and/or services. This in turn causes an unlevel playing field and increases the potential for regulatory arbitrage. In consequence, risky activities migrate to less regulated or unregulated parts of the financial system, leading to a largely unchecked build-up of systemic risk. Drawing inspiration from the reforms in the United States, we propose that the EU’s system of financial regulation be complemented by a robust body charged with identifying and monitoring non-bank financial institutions that are systemically important. This EU authority should have the discretion to designate a non-bank financial institution as a Non-Bank Systemically Important Financial Institution (non-bank SIFI). A logical choice would be to confer such powers on the European Systemic Risk Board. Designated non-bank SIFIs should be placed under direct prudential supervision by an EU body. This EU supervisor would have to establish, on an individual or categorical basis, appropriate enhanced prudential requirements tailored to the nature, risks and activities of the relevant non-bank SIFI. Additionally, a single European resolution regime should be in place to ensure that non-bank SIFIs can fail without destabilising the financial system. This would avoid a possible ‘Too-Big-To-Fail’ status, remove implicit government guarantees and subject the institution to market discipline. Our proposal aims to ensure that non-bank SIFIs are brought within a regulatory perimeter and supervisory scrutiny consistent with the risk they pose to financial stability. Such a regime would (i) help to eliminate (national) supervisory and regulatory gaps, (ii) reduce regulatory arbitrage activities, and (iii) contribute to the stability of the financial system and a level playing field. [ABSTRACT FROM AUTHOR]

This article traces the growing complexity of capital regulation with emphasis on decisions of the Basel Committee on Banking Supervision and bank regulators in the US. The pattern is one of increasingly complex regulations as each round of reform attempts to correct perceived weaknesses in the earlier regime. The outcome is a regulatory framework that is remarkably opaque, costly to monitor and enforce, and imposes heavy compliance costs on the regulatees, which are inevitably passed on in part to users of financial services. After a discussion of the most recent round of reforms, the article presents a table organized by five different regulatory capital numerators and five different denominators that define thirtynine different regulatory capital requirements, which Globally Significant US banks must meet. This way of organizing the various capital requirements shows how the number of capital ratios could be reduced by 75% with no loss of rigor. The conclusion speculates about why regulatory simplification seems so much more difficult to accomplish in the US than in other countries with much longer regulatory traditions. [ABSTRACT FROM AUTHOR]

This paper discusses the consequences of securitization and how it links to the Austrian Business Cycle Theory (ABCT). The argument that securitization is behind fiduciary credit expansion preceding the 2008 crisis is incomplete. Consolidated balance sheet analysis demonstrates that securitization per se actually sterilizes the inflationary effect of previous fiduciary credits by transforming them into credits backed by voluntary savings. This sterilization stage is subsequently followed by new fiduciary credits issuance as securitization creates excess reserves and excess capital for banks. However, when securitization is used as a tool to implement arbitrage strategies of the Basel prudential rules, it enables banks to create more fiduciary credit while time preference remains unchanged. This creates the conditions for business cycle amplification. [ABSTRACT FROM AUTHOR]

This article seeks to describe and analyse the phenomenon of 'insolvency tourism', a popular term used to describe the manoeuvring of debtors to secure the application of (more favourable) insolvency proceedings in a jurisdiction other than the one where they are incorporated or domiciled. This article argues that insolvent debtors are assisted in this by two factors: (i) the jurisdiction rules in the European Insolvency Regulation that permit a latitude of interpretation and are susceptible to manipulation; and (ii) the current and continuing disparity in domestic insolvency laws and available procedures within the European Union. This article looks at whether the phenomenon of 'insolvency tourism' will be diminished as a result of changes to the European Insolvency Regulation and the gradual convergence of national approaches to insolvency and European initiatives in this field. [ABSTRACT FROM AUTHOR]

Bail-in is quickly becoming a predominant approach to banking resolution. The EU Bank Recovery Resolution Directive and the US Federal Deposit Insurance Corporation's single point of entry strategy envisage creditors' recapitalisations to resolve a failing financial institution. However, this legislation focuses on the domestic aspects of bail-in, leaving the question of how it is applied to a cross-border banking group open. Cross-border banking resolution has been historically subject to coordination failures, which have resulted in disorderly resolutions with dangerous systemic effects. The goal of this article is to assess whether bail-in is subject to the same coordination problems that affect other resolution tools, and to discuss the logic of international legal cooperation in bail-in policies. We demonstrate that, in spite of the evident benefit in terms of fiscal sustainability, bail-in suffers from complex coordination problems which, if not addressed, might lead to regulatory arbitrage and lengthy court battles, and, ultimately, may disrupt resolutions. We argue that only a binding legal regime can address those problems. In doing so, we discuss the recent Financial Stability Board's proposal on cross-border recognition of resolution action, and the role of international law in promoting cooperation in banking resolution. [ABSTRACT FROM AUTHOR]

Mortgage banking subsidiaries of bank holding companies (BHCs) became increasingly active players in the mortgage origination market during the last decade. At the time, the Federal Reserve Board (FRB) had supervisory power over BHCs, and under the Bank Holding Company Act was authorized to monitor and examine the subsidiaries of BHCs under certain circumstances. However, this authority did not clearly extend to routine examinations of nonbank subsidiaries of BHCs. This changed between 2007 and 2009 due to FRB policy on consumer compliance supervision for nonbank subsidiaries of BHCs. Our empirical analysis tests for the impact of the new policy on the quantity and quality of loan originations by mortgage banking subsidiaries of BHCs. We use a difference-in-differences estimator with the control group being other types of lenders. We show that loan production moved from mortgage banking subsidiaries to their affiliated depository institutions after the policy change. The quality of loans originated by mortgage banking subsidiaries of BHCs increased after the policy change: The denial rates for mortgage applications increased, loan-to-income ratios decreased, and the proportion of owner occupied houses increased in mortgage banking subsidiaries more than they did in other types of lenders. [ABSTRACT FROM AUTHOR]

The shadow banking system is the one that conducts credit, maturity and liquidity transformation outside regular banking mechanisms. Chinese practices largely fit into this concept. However, unlike their foreign peers, Chinese shadow banking institutions have been intertwined into a complex whole and have achieved credit intermediation usually through wealth management products, often using the problematic asset-pool model. They are also substantially influenced by the unique political economic dynamics in China, such as the rigid financial licensing regime and credit policy control. Both the supply and demand ends of funding have provided those activities with new features, for instance, the P2P lending marketplaces and local government financing vehicles. Chinese government agencies have interplayed responsively and proactively with the market via rulemaking and enforcement, in particular recently, with the aim to fix loopholes, level the playing field and limit regulatory arbitrage. However, further efforts are imperative in order to develop moderate and appropriate regulation and draw clearer legal boundaries. [ABSTRACT FROM AUTHOR]

This study uses reported trade figures from China and Hong Kong to examine the relationships among market impediments, trade figure irregularities, and tax-induced regulatory arbitrage. The empirical findings, consistent with our tax-induced regulatory arbitrage models and the round-tripping phenomenon in China (that is, moving funds across the Mainland Chinese border through trade, typically to Hong Kong or an offshore tax haven, before re-entering China as foreign direct investment), provide support for several conclusions. First, the spurious flows of funds to and from China, via the underreporting of exports and the overreporting of imports, closely follow the preferential tax incentives accorded to foreign investors. Second, the underreporting of exports is negatively related to export tax rebates. Third, the overreporting of imports is negatively related to import tariffs. Finally, both of these two appear to be most prevalent in state-owned enterprises. [ABSTRACT FROM AUTHOR]

After the global financial crisis, systemic risk regulation has taken centre stage. Many consider hedge funds a potential threat to financial stability. Regulating hedge funds, however, is necessarily a transnational challenge because no national government alone can effectively control the systemic risks affecting its economy. This article takes the example of hedge funds for a case study of emerging transnational regulation. After an introduction to hedge funds and the reasons for regulating them, it considers the possible elements of a transnational regulatory regime for hedge funds: transnational industry self-regulation, including such induced by the government, regulatory competition between government regulators, and harmonisation of government regulation. The main conclusions are: self-regulation cannot substitute fully for government regulation in controlling systemic risks caused by hedge funds. Equally, regulatory competition tends to undercut systemic risk regulation. Effective transnational regulation can only be accomplished through harmonisation of government regulation. Such harmonisation is likely to arise if regulation is needed to control systemic risk in global financial markets. [ABSTRACT FROM AUTHOR]

After a slow start, the European Company (Societas Europaea - SE) has become increasingly popular. Besides documenting the growth of this new company type, we examine whether firms choose to incorporate in the SE corporate form because they engage in 'legal arbitrage' by exploiting differences in legal rules between jurisdictions. We specify a number of hypotheses on particular legal arbitrage motives. To validate our hypotheses, we use a broad telephone survey among SE users in Germany as well as a simple country-level regression model based on a unique, hand-collected dataset on SE incorporations. We find strong evidence that firms use the SE to mitigate the effect of mandatory codetermination rules. Establishing a one-tier board structure (in jurisdictions that impose a two-tier structure on their national public companies) and taking advantage of the SE's mobility for tax purposes also seem to be driving SE formations. By contrast, our analysis fails to support the suggestion that firms use the SE to shop for the most favourable national company law to fill the gaps in the SE Regulation. [ABSTRACT FROM AUTHOR]