54 Pages Posted: 19 Jan 2014 Last revised: 9 Jan 2017
Date Written: January 18, 2014
Almost twenty years after economists Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert Vishny published their groundbreaking and controversial research examining the relationship between investor protection laws and stock market development, our understanding of the relationship between law and finance is still in its theoretical infancy. Today, few would argue that strong laws do not help generate credible commitments, thereby promoting financial development. Ultimately, however, this observation is little more than a useful starting point for exploring the complex, dynamic, and structurally interdependent relationship between law and finance within modern financial markets.
So where might we turn for further insights into this important relationship? One potentially useful framework is the ‘Legal Theory of Finance’ (LTF). At the heart of LTF are four interwoven propositions. These propositions emphasize the legal construction of financial markets, their essential hybridity and inherent hierarchy, and the role of the law as not only a mechanism for generating credible commitments, but also a potential source of financial instability. LTF thus both compliments and expands upon conventional frameworks for understanding the relationship between law and finance.
This paper uses LTF to explore the emergence, growth, and risks residing within a little known but increasingly important segment of the Chinese shadow banking system: the $USD2 trillion dollar market for wealth management products (WMPs). WMPs possess a number of distinctive legal and economic features. First, despite being marketed by banks and other intermediaries as substitutes for conventional deposits, the liabilities generated by the majority of these products do not reside on bank balance sheets. Second, while WMPs typically lock-in investors’ capital for relatively short periods of time, this capital is often invested into less liquid, longer-term assets. The resulting maturity and liquidity mismatches thus recreate the fragile capital structure of banks. Third, WMPs have emerged largely in response to China’s interventionist approach toward both banking regulation and broader macroeconomic policy.
LTF holds out a number of important insights into the emergence of WMPs, their legal structure, their dramatic growth in the wake of the financial crisis, and the risks they pose to financial stability. More broadly, examining WMPs through the lens of LTF highlights the fact that – far from simply representing the ‘rules of the game’ – the law is also often the board, the game pieces, and the dice.
Keywords: law and finance, legal theory of finance, shadow banking system, China, wealth management products, WMPs
Suggested Citation: Suggested Citation
Awrey, Dan, Law and Finance in the Chinese Shadow Banking System (January 18, 2014). (2015) 48:1 Cornell International Law Journal 1-50; Oxford Legal Studies Research Paper No. 9/2014. Available at SSRN: https://ssrn.com/abstract=2381171 or http://dx.doi.org/10.2139/ssrn.2381171
By Shen Wei
By Morgan Ricks
By Erik Gerding