The FSA, Integrated Regulation and the Curious Case of OTC Derivatives

(2010) 13:1 University of Pennsylvania Journal of Business Law 1-58

Oxford Legal Studies Research Paper No. 61/2010

78 Pages Posted: 21 Jul 2010 Last revised: 10 Jan 2017

See all articles by Dan Awrey

Dan Awrey

Cornell Law School; European Corporate Governance Institute

Date Written: July 20, 2010

Abstract

With a view to better understanding the optimal structure of financial regulation, this paper tests prevailing theoretical hypotheses respecting the efficiency and overall desirability of integrated financial regulation relative to competing institutional models. This test is conducted though the lens of a comparative case study examining the approaches adopted by (fragmented) U.S financial regulators and the (integrated) U.K. Financial Services Authority (FSA) toward the myriad of regulatory challenges posed by the emergence, growth and systemic importance of over-the-counter (OTC) derivatives markets. More specifically, this paper examines why, despite the numerous theoretical advantages of integrated regulation, the FSA adopted a non-interventionist regulatory regime governing OTC derivatives markets which was both functionally equivalent to the fragmented U.S. regime and, arguably, socially sub-optimal. This paper argues that the FSA’s approach toward the regulation of OTC derivatives markets may potentially be explained on the basis of a combination of (1) poor coordination, (2) the FSA’s attempts to balance competing regulatory objectives, (3) incentive problems which arise for national regulators in the context of global financial markets, and (4) the inherent limitations of financial regulation. Each of these potential explanations holds important insights for the ongoing debate respecting the optimal structure of regulation.

Keywords: financial regulation, OTC derivatives, integrated regulation, institutional structure, political economy, financial market complexity, Dodd-Frank Act

Suggested Citation

Awrey, Dan, The FSA, Integrated Regulation and the Curious Case of OTC Derivatives (July 20, 2010). (2010) 13:1 University of Pennsylvania Journal of Business Law 1-58, Oxford Legal Studies Research Paper No. 61/2010, Available at SSRN: https://ssrn.com/abstract=1645800

Dan Awrey (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

European Corporate Governance Institute ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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