The Regulation of Corporate Governance in European Financial Market Infrastructures: A Critique

IF 1.3 Q1 LAW
Eilís Ferran, Eleanore Hickman
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引用次数: 0

Abstract

1This article is the first to consider the variations in governance requirements applicable to European financial market infrastructures. It charts the tangled combination of laws, codes and regulations that apply to the governance of the largest European central counterparties, central securities depositories, and international central securities depositories. Despite the similarity of these institutions in terms of their sector, criticality, complexity and purpose, there are substantive variations in what is required of their governance. Here we question whether this variance is an appropriate reflection of differing institutional needs or a by-product of piecemeal regulatory reform.Our research found no apparent need to regulate for consistency of board size or structure, nor in relation to specificities of committee requirements. However, there are convincing arguments that change is needed around the meaning and application of independence. The current approach to FMI directorial independence is a poor fit given the sectors highly technical nature, its interconnectedness, and the limited pool of available expertise. On top of this, expertise, diversity, and commitment can become trade-offs for adherence to the requirements of independence. We argue that regulation needs to be sensitively calibrated to ensure these important factors do not get squeezed out under the weight of formalized independence. It is our view that independence requirements can be structured to create better balanced boards where the needs of independence, expertise, diversity, and commitment can be weighed against each other in context.
欧洲金融市场基础设施的公司治理监管:评论
1 本文首次探讨了适用于欧洲金融市场基础设施的各种治理要求。它描绘了适用于欧洲最大的中央交易对手方、中央证券存管机构和国际中央证券存管机构治理的法律、法规和规章的复杂组合。尽管这些机构在行业、关键性、复杂性和目的方面存在相似之处,但对其治理的要求却有很大差异。我们的研究发现,无论是在董事会规模或结构的一致性方面,还是在委员会要求的特殊性方面,都没有明显的监管需求。然而,有令人信服的论据表明,需要围绕独立性的含义和应用进行变革。鉴于金融中介机构的高度技术性、相互关联性以及可用专业知识的有限性,目前的金融中介机构董事独立性方法并不合适。此外,专业知识、多样性和承诺可能成为遵守独立性要求的权衡因素。我们认为,需要对监管进行敏感的校准,以确保这些重要因素不会被形式化的独立性所挤压。我们认为,可以对独立性要求进行结构性调整,以建立更加平衡的董事会,在这种情况下,独立性、专业知识、多样性和承诺等方面的需求可以相互权衡。
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来源期刊
CiteScore
1.00
自引率
16.70%
发文量
13
期刊介绍: In legislation and in case law, European law has become a steadily more dominant factor in determining national European company laws. The “European Company”, the forthcoming “European Private Company” as well as the Regulation on the Application of International Financial Reporting Standards (“IFRS Regulation”) have accelerated this development even more. The discussion, however, is still mired in individual nations. This is true for the academic field and – even still – for many practitioners. The journal intends to overcome this handicap by sparking a debate across Europe on drafting and application of European company law. It integrates the European company law component previously published as part of the Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR), on of the leading German law reviews specialized in the field of company and capital market law. It aims at universities, law makers on both the European and national levels, courts, lawyers, banks and other financial service institutions, in house counsels, accountants and notaries who draft or work with European company law. The journal focuses on all areas of European company law and the financing of companies and business entities. This includes the law of capital markets as well as the law of accounting and auditing and company law related issues of insolvency law. Finally it serves as a platform for the discussion of theoretical questions such as the economic analysis of company law. It consists of articles and case notes on both decisions of the European courts as well as of national courts insofar as they have implications on European company law.
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