Prof. Jayanth R. Varma's Financial Markets Blog

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Prof. Jayanth R. Varma's Financial Markets Blog, A Blog on Financial Markets and Their Regulation

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Sat, 17 Apr 2010

SEBI, IRDA and the courts

I wrote a column in the Financial Express today about letting the courts resolve disputes between two financial regulators.

When I wrote a month ago “At a crunch, I do not see anything wrong in a dispute between two regulators... being resolved in the courts,” (‘Fill the gaps with apex regulator’, FE, March 19); I did not imagine that my wish would be fulfilled so soon. The dispute between Sebi and Irda regarding Ulips seems to be headed to the courts for resolution. There is nothing unseemly or unfortunate about this development. On the contrary, I believe that this is the best possible outcome.

An independent regulator should be willing and able to carry out the mission laid down in its statute, without worrying about whether its actions would offend another regulator. Its primary loyalty should be to its regulatory mandate and not to any supposed comity of regulators. Equally, if a regulator intrudes on the mandate of another, the other regulator or its regulatees should have no compunctions in challenging it in a court of law.

In any case, the idea that regulators share cordial relationships with each other is a myth. Turf wars are the rule and not the exception. In the UK, for example, after Northern Rock, the Bank of England and the FSA began to talk to each other only through the press, it was obvious to all that the relationship was extremely bitter. In the US, during the crisis, severe strains were evident between the Fed and the FDIC. The relationship between the SEC and the CFTC has, of course, been strained for decades.

In the financial sector in particular, we want strong-willed regulators to act on the courage of their conviction. Since many of their regulatees probably have outsized egos, perhaps it does not hurt to have a regulator with an exaggerated sense of self-importance. We do not want regulators who are too nice to their regulatees. It follows then that we cannot wish that regulators be too nice to each other either.

What we need instead is a mechanism to deal with the problem of regulatory overreach—democracies thrive on checks and balances. Regulatory overreach is a problem, even when it does not involve another regulator at all. Instead of hoping that regulators will always exercise self-restraint, we need a process to deal with the consequences of regulators overstepping the line.

The best mechanism is a robust appellate process—appellate tribunals and beyond them, the regular judiciary. Regulators, too, must be accountable to the rule of law and an appellate process is the only way to ensure this. The judicial process is as capable of resolving disputes between two regulators as it is of resolving disputes between the regulator and its regulatees.

In the context of the dispute between Sebi and Irda, many people have argued that a bureaucratic process of resolving disputes is preferable to a judicial process. There is, however, little evidence for such a view from around the world. Bureaucratic processes are less likely to provide a lasting solution and more likely to produce unseemly compromises that paper over the problem.

The two-decade-long dispute in the US between the SEC and CFTC about equity futures provides an interesting case study to demonstrate this. In the early 1980s, the SEC and the CFTC came to an agreement (the Shad Johnson accord) dividing up the regulatory jurisdiction of stock index futures and index options, but they were unable to agree on the regulation of single stock futures. Futures on narrow indices were left somewhere in the middle, with the CFTC having regulatory jurisdiction but the SEC having a veto power on the introduction of the contract itself.

In the late 1990s, when the SEC barred the Chicago Board of Trade (CBOT) from trading futures on the Dow Jones Utilities and Transportation indices, CBOT took the SEC to court and won. The court sternly declared that, “SEC is not entitled to adopt a ‘my way or the highway’ view by using its approval power—as a lever.” With the Shad Johnson accord in tatters, the two regulators were finally forced to sort out the regulation of single stock futures—a matter that they had not been able to settle by bureaucratic processes for two decades.

It is evident that the resolution of the single stock futures dispute would not have happened without judicial intervention. For two decades, inter-regulatory coordination mechanisms in the US, like the President’s Working Group on Financial Markets were not able to resolve the matter—it was too convenient for both regulators to agree to disagree.

An important advantage of judicial resolution is that regulatory conflicts that have the most serious impact on the markets are more likely to be litigated than those that are less damaging. It is, therefore, more likely that the final outcome would be socially and economically efficient. There are no such incentives to guide a bureaucratic solution towards the social optimum.

Posted at 12:58 on Sat, 17 Apr 2010     2 comments     permanent link


R Sivakumar wrote on Mon, 19 Apr 2010 10:24

Re: SEBI, IRDA and the courts

I would be interested in your view of how the legal system is used by the regulators. The SEC has just sued Goldman Sachs for rule violations. This is a civil suit in a civil court. SEC is the rule maker and prosecutor, but is not judge and jury. In India, we don't see the same thing. The regulators are also quasi-judicial and it is only on appeals that the case is heard in a civil court. Which model works better? The regulator as legislator-prosecutor-judge or separation of the roles? In other parts of government rule making is the province of the legislature, prosecution of the executive and judging of the judiciary. Why are we accepting of an all-powerful regulator in the financial markets?

Mandar Kagade wrote on Mon, 19 Apr 2010 09:24

Re: SEBI, IRDA and the courts

You make a very good point, Professor Varma, in the last paragraph about the important advantage of judicial resolution of regulatory conflict. When there is judicial resolution,conflicts that have the most serious impact are more likely to be litigated. Put conversely, inefficient legal rules that cause these conflicts are more likely to be challenged when there is judicial resolution.

Richard Posner wrote in the 1970s, of the efficiency of common law and made his point in the same way; Posner said that the common law was efficient because under that system, parties have the incentive to challenge the rules of law that are inefficient, thus weeding out those rules.

This point may not be applicable generally (that is for private parties) in India because the fee-structure in the legal services market (charges are billed per hour/per hearing) that prevents alignment of interests between the principal and the agent-attorney. It is likely to apply however in the case of regulators,because they do not face the same (budgetary and time) constraints as private parties do. Hence, in their case, it is more likely that judicial resolution of the regulatory conflicts leads to litigation of conflicts that lead to most serious impact on the markets, so that the (inefficient) legal rules that lead to those conflicts are weeded out.