Complexity, Innovation and the Regulation of Modern Financial Markets

60 Pages Posted: 25 Aug 2011 Last revised: 16 Jan 2017

Dan Awrey

University of Oxford, Faculty of Law

Date Written: September 1, 2011

Abstract

The intellectual origins of the global financial crisis (GFC) can be traced back to blind spots emanating from within conventional financial theory. These blind spots are distorted reflections of the perfect market assumptions underpinning the canonical theories of financial economics: modern portfolio theory; the Modigliani and Miller capital structure irrelevancy principle; the capital asset pricing model and, perhaps most importantly, the efficient market hypothesis. In the decades leading up to the GFC, these assumptions were transformed from empirically (con)testable propositions into the central articles of faith of the ideology of modern finance: the foundations of a widely held belief in the self-correcting nature of markets and their consequent optimality as mechanisms for the allocation of society’s resources. This ideology, in turn, exerted a profound influence on how we regulate financial markets and institutions.

The GFC has exposed the folly of this market fundamentalism as a driver of public policy. It has also exposed conventional financial theory as fundamentally incomplete. Perhaps most glaringly, conventional financial theory failed to adequately account for the complexity of modern financial markets and the nature and pace of financial innovation. Utilizing three case studies drawn from the world of over-the-counter (OTC) derivatives – securitization, synthetic exchange-traded funds and collateral swaps – the objective of this paper is thus to start us down the path toward a more robust understanding of complexity, financial innovation and the regulatory challenges flowing from the interaction of these powerful market dynamics. This paper argues that while the embryonic post-crisis regulatory regimes governing OTC derivatives markets in the U.S. and Europe go some distance toward addressing the regulatory challenges stemming from complexity, they effectively disregard those generated by financial innovation.

Keywords: Complexity, financial innovation, financial regulation, shadow banking system, OTC derivatives, securitization, collateral swaps, synthetic exchange-traded funds, ETFs, Dodd-Frank Act, European Market Infrastructure Regulation

Suggested Citation

Awrey, Dan, Complexity, Innovation and the Regulation of Modern Financial Markets (September 1, 2011). (2012) 2:2 Harvard Business Law Review 235-294; Oxford Legal Studies Research Paper No. 49/2011. Available at SSRN: https://ssrn.com/abstract=1916649 or http://dx.doi.org/10.2139/ssrn.1916649

Dan Awrey (Contact Author)

University of Oxford, Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UL
United Kingdom

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