Part II - Evolution and Resilience in Banking and Finance

4 Standard-Setting and Organizational Resilience The Case of the Institute of International Finance

M. Konrad Borowicz

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4.1 Introduction

The fundamental challenges faced by the management of financial trade associations are retaining existing members and attracting new ones. The management’s ability to do that defines the long-term success and resilience of such organizations. Not all associations are successful in achieving that goal. In the early 2000s, as many as six trade associations brought together the various creditors of sovereign debt.¹ Only three of them still exist today, and the Institute of International Finance (IIF) is by far the most influential among them; it has over 450 members that fund its activity. How did the IIF manage to hold on to its members and even expand its membership?

The IIF has emerged in the wake of sovereign defaults of the 1980s as an organization entrusted with monitoring sovereign borrowers. Its influence started to wane as sovereign markets appeared to have healed, mainly due to the Brady plan.² IIF’s membership started to decline as member institutions have begun to question the return on the investment associated with maintaining their membership in the IIF. By all accounts, the IIF was experiencing an existential crisis. Its continued viability as the voice representing private creditors of sovereign debt was uncertain.

IIF’s management successfully steered the organization through those uncertain times. Recent literature, particularly the work of two political economists, Abraham Newman and Elliot Posner, has suggested that the IIF’s continued success can be attributed to a combination of exogenous and endogenous factors.³ In the IIF’s case, the emergence of a new paradigm for banking regulation brought about by the Basel Accords created a new role for the organization in terms of regulatory advocacy. On the endogenous side, management capable of identifying opportunities for the expansion of the organization’s influence was vital to leverage the considerable experience of the IIF with the collection of information, to help it established itself as a credible contributor to the policy work at the Basel Committee on Banking Supervision.

Newman’s and Posner’s analysis suggests three strategies of organizational resilience that help explain the IIF’s success story. First, timely identification of new constituencies that can help support the work of the organization. Second, a reorientation toward new activities, specifically transnational policy advocacy in the realm of banking regulation. Third, the adaption of an internal governance mechanism to accommodate new members and facilitate new activities. Together, Newman and Posner argue, these strategies were critical for the continued relevance of the IIF.

In this chapter, I argue that standard-setting is another strategy adopted by the IIF to maintain relevance. The IIF adopted the strategy of standard-setting in the wake of new regulatory initiatives promoted in the sovereign debt space in the early 2000s. Despite the optimism that the Brady plan injected into sovereign debt markets, problems have not disappeared from those markets. Those problems have been the catalyst for a set of proposals aimed at establishing an official sector bankruptcy-like mechanism to facilitate sovereign debt restructurings known as the Sovereign Debt Restructuring Mechanism (SDRM). For fear of the impact this could have on public sector participation, the IIF, together with the other associations, opposed establishing the SDRM.⁴

The alternative to the SDRM proposal discussed consisted of contractual standards, which the IIF helped to define and endorsed. The standards set, among other things, thresholds of creditor participation aimed at ensuring that a small group of creditors does not undermine the efforts of the rest to restructure or write-off a portion of a piece of distressed sovereign debt. The IIF also played an essential role in developing the Principles for Stable Capital Flows and Fair Debt Restructuring, a code of conduct for the various actors in the sovereign debt market. Two informal groups comprising members from both the public and the private sector to which the IIF serves as a secretariat were entrusted with monitoring the implementation of the Principles.

My main argument in this chapter is that, by endorsing and in part also creating that framework, the IIF created the structural conditions for its continued relevance in the sovereign debt space. The IIF’s continued relevance is evidenced by its role in shaping the private sector’s response to the looming sovereign debt crisis induced by the COVID-19 pandemic, which I also describe in this chapter. Recognizing that the crisis undermined the ability of many emerging countries to service their external debt, the IIF called on its members to refrain from enforcing the contracts and join the Debt Service Suspension Initiative (DSSI) – an ad hoc regulatory instrument promoted by the G20 Finance Ministers and Central Bank Governors. Still, the IIF insisted that private creditor participation should be voluntary. What was the result? At the time of writing (March 2021), over forty-six countries have taken advantage of the debt relief under the DSSI. However, most of that relief came from public creditors; private creditor participation in the DSSI has been minimal.

By creating the structural conditions for its relevance by endorsing or developing standards, the IIF’s management has shown an entrepreneurial attitude that has remained largely neglected in the extant theoretical literature. The analytical framework developed by Newman and Posner and developed further here can help us understand the dynamics of resilience of trade associations. However, it also prompts questions about normative standards through which to view that resilience. When are the activities of such associations beneficial, and when do they create social costs? To the extent they create costs, what degree of control do public policymakers have over the activities of such associations? What are the channels through which public policymakers can exercise such control?

4.2 A Brief History of the IIF’s Economic Activism

4.2.1 IIF in the 1980s: Addressing the Information Gap in the Sovereign Debt Market

The IIF was established in 1983 in response to the perceived deficiencies in the structure of the sovereign debt market increasingly populated by private creditors.⁵ Around that time, several sovereign borrowers, most notably Mexico, Brazil, Argentina, and Poland, experienced problems servicing their external debt. Their perilous situation prompted concerns about the nature of private creditor participation in any future restructuring of the debt of those countries and private creditors’ role in the market more generally.

The IIF was formed as a result of a meeting organized by a group of policymakers affiliated with the Committee on Changing International Relations, a committee of the National Planning Association (NPA), a US think tank established in the 1930s. The group brought together representatives of commercial banks involved in sovereign lending to discuss the situation. As recounted by Walter Sterling Surrey, the IIF’s first general counsel, and Peri N. Nash, the group identified four major deficiencies: (1) the information made available by the borrowing countries to public lenders, such as the International Monetary Fund (IMF), was typically made available on a confidential sovereign-to-sovereign basis and therefore not readily available to commercial banks, (2) the information was often outdated, (3) the leading commercial banks developed their analyses but did not like to share it with other institutions, and (4) there were no uniform reporting standards.

Discussions about the structure of a new institution were held in New York in the summer of 1982 and brought together some thirty-one major banks from the United States, Japan, the United Kingdom, France, Canada, the Netherlands, the Federal Republic of Germany, and Switzerland as well as representative from the World Bank, the IMF, the Bank for International Settlements, the Bank of England, and the NPA. It was at that meeting that the IIF’s Articles of Incorporation had been drawn. Pursuant to the document, the purpose of the IIF was

to form an organization of commercial banks to promote a better understanding of international lending transactions generally; to collect, analyze and disseminate information regarding the economic and financial position of particular countries which are substantial borrowers in the international markets to provide the Members with a better factual basis on which each member independently may analyze extensions of credit to borrowers in such countries; and to engage in other appropriate activities to facilitate, and preserve the integrity of, international lending transactions.⁶

The Articles also provided that the IIF would be a nonprofit corporation located in Washington, DC. Its membership would comprise commercial banks active in the market for sovereign debt. The members’ voting powers in matters pertaining to the organization’s activities would be proportionate to the magnitude of the member’s exposure to sovereign debt. A small staff would manage the day-to-day operations of the IIF. The IIF would also seek to facilitate the exchange of views among members through the organization of working groups.

IIF’s work in the areas identified above would prove valuable during times of sovereign crises, such as those of the early 1980s. Still, it was not as clear what the benefit of retaining membership would be outside of the context of a challenging macroeconomic environment that typically acts as a catalyst for the emergence of such crises. The future validated those concerns. As noted in an empirical study by Newman and Posner, the Brady Plan of 1989 had resolved much of the debt crisis, and many small commercial banks had left the organization or merged with bigger banks. At the same time, the IMF and Bank of International Settlements (BIS) gradually opened up information to private actors, undercutting the value of IIF surveillance activities. US bank representation fell from 40 banks in 1987 to 18 by 1993. Overall membership declined from 167 full members in 1987 to 135 members in 1991. “By its own account, the organization faced a crisis in the late 1980s as its primary mission had evaporated.”⁷

4.2.2 IIF in the 1990s: Shaping the New Paradigm of Banking Regulation

The evolving political economy of banking regulation in the wake of revisions to the first Basel Accord of 1988 created a unique opportunity for the organizational revival of the IIF. The first Basel Accord broke ground in that it represented the first-ever international effort at coordinating banking regulation. Still, that Accord is commonly viewed as having been the product of mainly national actors, particularly central banks.⁸ Commercial banks, the principal target of the first Accord, may have sought to influence the final shape of the first Accord. However, they did that through national channels rather than directly by seeking to influence the Basel Committee for Banking Supervision (BCBS) – the body established and entrusted with the task of developing the Accord. Only when the proposal for the second Accord was floated did banks seek to exert a greater degree of influence over its shape by lobbying the BCBS directly.⁹ This was partly because Basel II was directed at activities of investment banks, many of which operated on a global basis. The IIF identified the opportunity to represent them and sought to capitalize on it.

Targeting large investment and money center banks as potential new members was the first strategy of the IIF identified by Newman and Posner aimed at the organizational revival of the IIF. The second strategy consisted of the comprehensive reorienting toward transnational regulatory policy efforts. As Newman and Posner note, the second strategy followed directly from the first.

Having identified investment and money center banks as their primary new member targets, IIF’s leaders sought to enhance the organization’s relevance to these banks’ new concerns about the Basel Committee’s expanding regulatory agenda. The strategy meant that the IIF would have to engage the new transnational rulemaking arena directly and would have to add a regulatory advocacy dimension to its traditional functions.¹⁰

In 1990, under the leadership of Managing Director Schulmann, the IIF formally altered its mission statement to broaden its goals, thereby hoping to appeal to a broader set of firms than those it sought to represent in the early days of its existence on matters pertaining to the sovereign debt market. That shift was also reflected in the appointment of a different group of people to its management. As Newman and Posner note, the appointment of Charles Dallara, a long-time US Treasury Department official, was an excellent example of that.¹¹ Crucially, as they note, the management of the IIF itself initiated that shift. In other words, it was not in another substantial way the result of pressure from the industry. The management also anticipated reluctance from the public sector to engage with the organization on the advocacy front. This is why the shift was implemented carefully and gradually.

The third strategy of adaptation identified by Newman and Posner consists of governance changes. The new focus on advocacy informed the design of internal operations of the IIF. In 1991, the IIF created a working group on capital adequacy.

Contrary to arguments attributing organizational priorities to the material interest of industry, the IIF’s agenda shift was a reaction to Basel I rather than in anticipation of it. The aim of the IIF’s leaders in revamping the internal organizational structure was to make the IIF a better interlocutor with Basel and a source of expertise, rendering it more effective as an industry advocate and, ultimately, more attractive to new members.¹²

The strategies of adaptation proved to be successful. The IIF became the BCBS’ most influential adviser in large part due to its proven track record to collect information on a confidential basis. Around that time, the industry was increasingly embracing quantitative approaches to finance and relying on risk modeling. The BCBS was keen to build on that expertise, but its access to information about how banks used those models was limited. As Newman and Posner note, the IIF positioned itself as a supplier of that information, which proved instrumental for incorporating the internal risk models into the Basel II framework.

4.2.3 IIF in the 2000s: Strengthening the Contractual Framework for Sovereign Debt Restructuring

A series of sovereign crises, in particular the Mexican financial crisis and the Asian financial crisis of the late 1990s, created the opportunity for the IIF to reestablish itself as the preeminent organization in the sovereign debt space. As noted earlier, private creditors started playing an increasingly prominent role in sovereign debt markets, which, in some ways, has made sovereign debt defaults more interesting. Private actors tend to be more determined to recover their investment, as exemplified by the pursuit of Argentinian assets by the so-called vulture funds through much of the 2000s. While this may be a profitable strategy for some investors, overall, it is not a very effective method of policing sovereigns because it will reduce recoveries for creditors as a group.

Creditors as a group would be better off if they engaged in talks aimed at a restructuring of the debt. In the corporate debt context, bankruptcy law helps reduce the transaction costs associated with such talks by providing a set of rules to be followed that aim to maximize the recovery for the creditor group. Unfortunately, there is no bankruptcy law or court for sovereigns. In the early 2000s, senior officials from the IMF proposed the SDRM as an effort to “create some of the features of a bankruptcy regime without creating a bankruptcy court,”¹³ but the concept never came into fruition.

One of the main reasons for the project’s failure was that the IIF, together with several other associations, came out strongly against it in a 2002 paper.¹⁴ The paper identified several theoretical objections to the SDRM. Among other things, it challenged the assumption that there is an inherent collective action problem among private-sector creditors in a sovereign debt restructuring that precludes agreement. It also sought to undermine the analogy between domestic bankruptcy legislation and the SDRM by arguing that the SDRM would lack the necessary procedural checks and balances that render a domestic bankruptcy process fair and effective. However, the principal objection seemed to have stemmed from the private sector’s concern that the SDRM will decrease the participation of public creditors in sovereign debt restructurings, erode the rights of private creditors, and increase the frequency of sovereign debt restructurings.¹⁵

While the proposal enjoyed considerable support from the official sector, it ultimately failed to establish the SDRM. Sean Hagan, the IMF’s general counsel at the time, provides an account of the failure.¹⁶ The most important reason for the failure is that the implementation of the SDRM would require an amendment to the IMF’s Articles of Agreement. Under the Articles, a majority of three-fifths of the IMF’s members holding 85 percent of the voting power was needed. Since the United States held 17.14 percent of the IMF’s voting power, its participation was required. The United States ultimately declined to do so largely, as Hagan notes, due to steadfast opposition to the SDRM proposal by the major financial industry associations.

Not only did such opposition make it much more difficult for the SDRM proposal to be approved in Congress, but there was clearly a reluctance within the U.S. government to forge ahead with such an important reform of the international financial system when a key stakeholder in that system – the private sector – was so resistant.¹⁷

Interestingly, Hagan notes that European and Asian financial institutions were less openly hostile to the SDRM proposal than their US counterparts.¹⁸ Moreover, industry associations made up of investors that actually purchased and held sovereign debt (the “buy-side”) were more willing to engage in discussions regarding the design of the SDRM proposal than those responsible for actually placing new bond issuances for emerging market sovereigns (the “sell-side”).¹⁹

The private sector’s opposition to the SDRM was also premised on the ongoing work on standard aimed at facilitating sovereign debt restructurings through voluntary means. Those standards took two primary forms: collective action clauses (CAC) in sovereign debt documentation and a code of conduct known as the Principles for Stable Capital Flows and Fair Debt Restructuring.

CACs were a response to a design feature of sovereign debt contracts, which historically required all creditors to agree to a restructuring giving rise to the problem of holdouts or investors unwilling to agree to the terms of the restructuring. Since the mid-1990s, the official sector has encouraged CACs in international sovereign bonds, but that has not changed the market practice much.²⁰ Data quoted in a 2002 IMF report indicated that the vast majority of international sovereign bonds outstanding in that year did not contain CACs.²¹ The two main reasons identified in the report for the resistance in adoption are short-run costs associated with introducing any change in documentation (inertia) and concerns that issuers might face a permanent increase in borrowing costs if they were to introduce such provisions. The report notes that there is no evidence that the use of CACs would systematically raise borrowing costs. Concerning the first issue, short-run costs, and inertia, it notes that these problems could largely be overcome through the broad adoption of CACs. While it was apparent the IMF could play an important role in promoting such adoption, for example, by using clauses as a condition for access to Fund resources and/or special facilities, there was the issue of which clauses to promote exactly?

For a long time, the IMF has monitored the use of CACs in the market. In one of the first documents surveying their use, it classified them into two types: “majority restructuring” provisions, which enable a qualified majority of bondholders of an issuance to bind all holders of that issuance to the financial terms of a restructuring, either before or after default, and “majority enforcement” provisions, which enable a qualified majority of bondholders to limit the ability of a minority of creditors to enforce their rights following a default, thereby giving the debtors and the qualified majority of creditors the opportunity to agree upon a restructuring.²² There was a large variation of provision within these two types, particularly concerning voting thresholds.

The lack of uniformity in the drafting of CACs presented a unique opportunity for the IIF to engage in standard-setting – an activity it has previously shied away from. Other trade associations benefited from the first-mover advantage in this space. In the late 1990s, the EMCA proposed a model majority restructuring provision that would allow for a restructuring of key terms based on an affirmative vote of 95 percent of the bondholders. Still, that was viewed by the IMF as too high of a threshold, effectively defeating the purpose of the majority restructuring provision. The skeptical reception of the 95 percent threshold led another trade association, the ICMA, specifically its predecessor, the IPMA, which later, together with the ISMA, merged into ICMA to develop the 2003 Model Collective Action Clauses for Sovereign Bonds (under New York Law). The IIF, together with several other associations, endorse the model developed by ICMA, which provided for an 85 percent threshold.

In August 2014, ICMA published the latest sovereign debt contract reforms package, including new and updated CACs, a revised pari passu clause, and a model creditor engagement clause. The updated CACs – which include a menu of voting procedures including two different options for aggregation of votes across series to secure creditor agreement for modification of payment terms – was widely welcomed as a “means of facilitating collective action and avoiding disruption to sovereign debt restructurings that can arise from holdout litigation.” In 2015, the IIF – also a collaborator in the drafting process – endorsed the full package of the ICMA contract reforms.

The second prong of the standard-setting activity that the IIF was involved in concerned developing a code of conduct for actors participating in sovereign debt restructurings – what has later become known as the Principles for Stable Capital Flows and Fair Debt Restructuring. The publication of the Principles in 2004 followed from an early 2000s initiative of Jean-Claude Trichet (at the time, the governor of the Banque de France), who launched proposals for a Code of Good Conduct governing creditors and debtor states’ behavior. The G20 relegated the development of the Code to a working group led by the Banque de France and the IIF. The prominent role played by the IIF in the process can be linked to its increasing advocacy activities described earlier. By the early 2000s, the IIF had already established itself as the principal interlocutor for regulators and policymakers and managed to persuade several prominent figures from the financial industry to become members of its various committees. This included Jacques de Larosière, also a former governor of the Banque de France and in the early 2000, co-chairman of the IIF’s Special Committee and advisor to the chairman of BNP Paribas Group. The Principles were endorsed by the G20 in 2004.²³

The Principles focused on four areas: transparency and timely flow of information, close debtor-creditor dialogue and cooperation to avoid restructuring, good faith actions, and fair treatment. Before 2010, the Principles applied only to sovereign issuers in emerging markets. However, their applicability has since been broadened to encompass all sovereign issuers (voluntarily) and cases of debt restructurings by non-sovereign entities in which the state plays a major role in influencing the legal and other critical parameters of debt restructurings.

As the IIF notes,

the Principles promote early crisis containment through information disclosure, debtor-creditor consultations, and course correction before problems become unmanageable. They also support creditor actions that can help to minimize market contagion. In cases where the debtor can no longer fulfill its payment obligations, the Principles outline a process for market-based restructuring based on negotiations between the borrowing country and its creditors that involve shared information, are conducted in good faith and seek to achieve a fair outcome for all parties. Such a process maximizes the likelihood that market access will be restored as soon as possible under sustainable macroeconomic conditions.²⁴

Adherence to the Principles is voluntary – accordingly, their effective implementation requires acceptance and adherence by both debtors and creditors. The Group of Trustees of the Principles, with the support of the Principles Consultative Group, encourages and monitors the implementation of the Principles. While these groups have no statutory authority, they have earned de facto acceptance by sovereign debtors, their creditors, and the international policy community due mainly to the reputation and stature of their members, who collectively have decades of experience in international policy and capital markets. The IIF serves as secretariat to both groups. What that means in practice is that the IIF, building on its surveillance practice, collects information about individual debtors, asks for input members of the Principles Consultative Group, and produces an (annual) report on the progress in the implementation of the Principles.²⁵

The development and continued relevance of the Principles, given the cyclical nature of sovereign debt crises, allowed the IIF to expand its influence through the strategy of standard-setting. The Principles are now viewed as an indispensable feature of the sovereign debt market. The IIF, through its role as a secretariat to the Group of Trustees and the Principles Consultative Group and beyond it, is an organization indispensable to their functioning. More recently, the IIF has taken further initiatives aimed at enhancing its role even further. For example, in 2019, the IIF developed the Voluntary Principles for Debt Transparency. These new Principles build on the key guidelines of the Principles for Stable Capital Flows and Fair Debt Restructuring, and their implementation is also monitored by the Principles Consultative Group as well as the IIF itself.

4.3 The Contractual Framework for Sovereign Debt Restructuring in the COVID-19 Pandemic

In early 2020, many countries in the world imposed strict lockdowns to control the outbreak of the pandemic, thereby effectively freezing economic activity for months. While the economic hardship these measures would entail was apparent, those measures were believed to be necessary to control the pandemic. Economic policymakers were immediately confronted with the question of how to manage the economic fallout. Domestic policymakers needed to identify resources that would enable them to stimulate aggregate demand through fiscal policies. It was clear that such stimulus requirements would make it more difficult for those countries to service their international debt obligations and necessitate the incurrence of new debt. In other words, it was clear that countries would require cooperation from their creditors.

What was the reaction of the creditor community to the apparent need faced by countries? On March 25, 2020, the president of the World Bank Group and the managing director of the IMF released a Joint Statement calling on official bilateral creditors to suspend debt payments from the member countries of the International Development Association to allow those countries to devote their liquidity to tackle challenges posed by the coronavirus outbreak.²⁶ Private creditors (and other international creditors, including sovereign wealth funds) should commit, upon specific request by the sovereign debtor, to forbear payment default for the poorest and most vulnerable countries significantly affected by COVID-19 and related economic turbulence for a specified time (e.g., for six months or to the end of 2020), without waiving the payment obligation.

In response to the COVID-19 “call to action” from the World Bank and the IMF, the G20 finance ministers and Central Bank governors announced the DSSI on April 15, 2020, supporting a net present value-neutral, time-bound suspension of principal and interest payments for eligible countries that make a formal request for debt relief from their official bilateral creditors and encouraging private creditors to participate on comparable terms.²⁷ The communique called for private creditors to work through the IIF.²⁸

The IIF initially agreed with the approach. In a letter addressed to the IMF, World Bank, OECD, and Paris Club, it noted that private creditors (and other international creditors including sovereign wealth funds) should commit, upon specific request by the sovereign debtor, to forbear payment default for the poorest and most vulnerable countries significantly affected by COVID-19 and related economic turbulence for a specified time (e.g., for six months or to the end of 2020), without waiving the payment obligation.²⁹

However, in a subsequent letter, dated May 4, 2020, the IIF provided an updated and stressed that participation should be wholly voluntary.³⁰ In effect, the private creditors declined to participate in the DSSI, other than on a voluntary, case-by-case basis.

The IIF’s outreach in the case of the DSSI has been primarily via two IIF policy working groups.³¹ The IIF has, among other things, surveyed its members about the status of requests made by DSSI-eligible countries to private creditors concerning debt suspension. As reported by the Principles Consultative Group, a June 2020 survey revealed no such requests had been made.³² By September, four private creditors have been approached by countries eligible for the DSSI requesting forbearance on comparable terms to official creditors.³³

While the limited requests from debtors arguably explain the limited involvement of creditors, we should bear in mind that outcome is at least partly the result of the private creditors’ refusal to participate in the DSSI other than on a voluntary, case-by-case basis. It was that decision that created the structural conditions for private creditor free-riding. As of August 2020, forty-three countries out of seventy-three eligible have made use of the DSSI; these countries, mainly from sub-Saharan Africa, will benefit from postponed debt payments of an estimated US$5 billion.³⁴

Nevertheless, there is the concern that the primary purpose of the debt relief offered by public creditors, whether by way of the DSSI or by other means, will be to pay private creditors. David Malpass, the president of the World Bank, had expressed that concern in a recent interview when he said that “there is a risk of free-riding, where private investors get paid in full, in part from the savings countries are getting from their official creditors.”³⁵ As Bolton et al. note,

if left entirely to their preferences, commercial lenders will behave in a commercially predictable manner even if this means, as it probably will with the DSSI, being tagged with the mildly opprobrious title of free-rider. Some of the emergency financial assistance being provided to the poorest countries by multilateral financial institutions, and some of the debt relief resulting from debt payment suspensions granted by bilateral creditors, will end up being used by the debtor countries to service their commercial obligations. To this extent, the private sector will free ride on the public sector.³⁶

What is the scale of private creditor free-riding? As reported by the European Network for Debt and Development, a nonprofit organization, between May and December 2020, the original duration of the DSSI suspension, the sixty-eight eligible countries for which data is available are paying around $10.22 billion to private creditors.³⁷ The forty-six countries that are receiving debt service suspension are paying $6.94 billion to private creditors. This is $1.64 billion more than what they are receiving from bilateral lenders as debt suspension.

4.4 Standard-Setting and Organizational Resilience

The IIF was not the only and certainly was not the first trade association to contribute to the standard-setting process in the realm of sovereign debt. The process has been initiated by a group of trade associations, sometimes referred to as the “Gang of Six,” with ICMA taking the helm of that process. ICMA had considerable experience in drafting model clauses and contracts for capital market transactions. The IIF never sought to compete on that front – to the contrary. It engaged in cooperation with ICMA. Still, it made efforts to reorient its activities and governance toward that process by putting forward the proposal that its Global Policy Initiative Department will act as a secretariat to the Group of Trustees and the Principles Consultative Group. In 2001, it established the Committee on Sovereign Risk Management, which has played an important role in the establishment of the Principles for Stable Capital Flows and Fair Debt Restructuring and the ongoing development of the voluntary contractual approach to sovereign debt restructuring.

The emerging framework provided an opportunity to strengthen the position of the IIF in the sovereign debt space. The IIF’s management skillfully capitalized on this opportunity. The IIF’s management did not only reorient the organization toward transnational policy initiatives, such as the Basel Accords, but also created and actively fostered the development of standards, such as the Principles for Stable Capital Flows and Fair Debt Restructuring. Standard-setting can thus be viewed as a strategy of organizational resilience – one that builds on and complements the strategies identified by Newman and Posner. In other words, standards are valuable not only to their users but also to the organizations that develop and promote them. It may be simplistic to only view the economic function of standards from the standpoint of its use cases. We should also recognize and examine how the setting of standards contributes to the empowerment of private standard-setting organizations and their advocacy agenda.

4.5 Conclusions

Trade associations need to retain existing members and acquire new ones to continue to exist. On that count, the IIF has done a remarkable job, which ensured its continued existence and relevance. The goal of this chapter was to cast light on the strategies adopted by the IIF to achieve that goal. Beyond the maintenance of its original function of monitoring sovereign borrowers, the existing literature has identified three strategies of organizational resilience adopted by the IIF during a period of its relative decline in the early 1990s: first, identifying new constituencies; second, reorienting toward transnational policy advocacy; third, adapting its governance accordingly.

In this chapter, I have argued that in the wake of new regulatory developments in the sovereign debt space, the IIF has successfully adopted a fourth strategy of organizational resilience: standard-setting. Specifically, the IIF has reoriented itself toward the endorsement of a contractual approach to sovereign debt restructurings. Furthermore, it has adapted its governance to reflect this new goal. Finally, it led standard-setting activities that helped entrench it as the leading actor in this space. The IIF’s role in shaping the private sector’s response to the looming sovereign debt crisis induced by the COVID-19 pandemic is an excellent example of that.

What can we make out of the preceding analysis? The key takeaway is that financial trade associations create structural conditions for their relevance through their standard-setting activities. The process through which they create the conditions and maintain their relevance is a vital source of leverage that public policymakers should seek to exploit. US financial institutions may not have the same interests as European or Asian institutions; the buy-side does not have the same interest as the sell-side. Policymakers should seek to exploit these heterogeneous preferences to promote their goals. The IMF’s attempt to create the SDRM was a good attempt to at doing just that. Despite its failure, that attempt could serve as an inspiration for how personality and skilled diplomacy can seek to orient private collective action toward the provision of global public goods rather than club goods.

5 Resilience and Change in Private Standard-Setting The Case of LIBOR

Pierre-Hugues Verdier

5.1 Introduction

The LIBOR scandal stands out as the most striking failure of private financial standard-setting in the post-crisis era. LIBOR, the London Interbank Offered Rate, is a well-known and widely used benchmark interest rate. For decades, it has been used to set rates for financial transactions around the world, ranging from home mortgages to syndicated loans, debt securities, and derivatives. In aggregate, these transactions amount to hundreds of trillions of dollars.¹ In June 2012, a settlement by Barclays Bank with the US Department of Justice (DOJ), Commodity Futures Trading Commission (CFTC), and UK Financial Conduct Authority (FCA) revealed that this key rate had been manipulated for years.² The culprits included brokers at smaller firms on the margins of the global financial system but also dozens of traders affiliated with the world’s largest banks – the very same banks that sat on LIBOR’s governing committee and provided the daily estimates on which it was based.

These revelations caused scandal and generated intense political pressure to reform LIBOR and other financial benchmarks. The LIBOR scandal and its consequences thus provide a crucial case study for the theory articulated in this project’s framing chapter.³ The chapter’s central claim is that “crisis events or other unfortunate regulatory disasters” tend to further empower, rather than weaken, private authority.⁴ Private authority’s resilience arises from several factors: its transnational nature,⁵ regulatory capture,⁶ the value of the system to its actors and their preferences,⁷ and the focus of public actors on short-term crisis-fighting rather than reform.⁸ Because of these factors, “the State and its public agents will rarely exercise coercion vis-à-vis private regulatory bodies and even less reclaim authority to protect the public interest.”⁹ The ultimate consequences are twofold: perpetuation of “free riding of private ordering”¹⁰ and reinforcement of “the neoliberal orthodoxy premised on the concepts of market competition and an increasingly limited role for the State.”¹¹

As this chapter will show, the LIBOR scandal constitutes a hard case for the theory. Indeed, it appears to contradict nearly all its central predictions. Public authorities engaged in resolute enforcement against the actors involved in LIBOR manipulation, including corporate criminal cases against several of the world’s largest banks that led to penalties of tens of billions of dollars. Prosecutors also brought individual charges against several brokers and bankers, some of which resulted in substantial prison sentences. As a direct consequence of the scandal, regulators replaced LIBOR’s private administrator, the British Bankers Association (BBA), which was widely seen as having failed to respond effectively to indications of possible manipulation. Since then, the public sector has played a central role in creating and administering new, more robust benchmark interest rates and encouraging their adoption. As part of this vast effort, public actors are orchestrating multiple public and private organizations, deploying regulatory tools to steer private actors to adopt the new rates, and addressing many complex legal and logistical issues raised by the massive stock of legacy LIBOR contracts.

Overall, the LIBOR scandal and its aftermath amount to what the theory suggests we should not observe: a substantial reassertion of public authority over a crucial element of the global financial infrastructure in response to a crisis. Neither the transnational nature of the benchmark itself, its users, and the manipulation scheme, nor the fact that the scandal coincided in time with the global financial crisis and the European debt crisis prevented this outcome. Moreover, private governance in this area appears to have shown little resilience once the scandal broke. Although one should be careful in drawing conclusions from a single case study, the LIBOR scandal casts doubt on the idea that the expansion of private authority in economic governance is a one-way trend that even major crises fail to reverse. Instead, this case suggests that the equilibrium between public and private authority can and does shift in response to crises, at least in certain circumstances.

Yet, in other respects, the LIBOR case illustrates the phenomena described in Chapter 1. In the period that preceded the first settlement by a major global bank of US criminal charges in June 2012, the relationship among the public and private bodies involved in LIBOR oversight was characterized by a collaborative approach and a clear preference on the part of public authorities for private design, management, and oversight of financial benchmarks. This remained true even after the first indications of possible manipulation became public in mid-2008. At the time, public bodies, their attention consumed by crisis-fighting, showed limited interest in the problem and underwrote the BBA’s tepid and ultimately ineffective reforms. In stark contrast, the Barclays criminal settlement precipitated much broader public intervention in the form of a wide-ranging enforcement campaign and fundamental LIBOR reforms.

This chapter argues that the intervention of a different set of public actors – namely prosecutors and the enforcement arm of the CFTC, a derivatives market regulator – is the key factor that explains this stark difference in outcomes before and after 2012. These public actors’ priorities and incentives differ substantially from those of those public actors – namely prudential banking regulators and central banks – traditionally involved in overseeing private standard-setting in the banking industry. Their generalist nature and lack of close cooperative relationship with the industry make them less vulnerable to capture.¹² Because their responsibilities do not include crisis-fighting, they can concentrate on investigating and prosecuting misconduct. And at least for US agencies, the transnational nature of the relevant market poses little obstacle to effective enforcement. Thus, many of the factors described in the framing chapter that perpetuate the resilience of private standard-setting cease to apply when these public actors take center stage.

These considerations suggest that the phenomena described in the framing chapter are characteristic of a particular version of private-public sector relationships, one that reflects preference for private ordering and finds its proponents in agencies whose mission centers on prudential oversight and financial stability. To the extent that this approach creates blind spots, the intervention of other public actors is key to restoring the balance between private standard-setting and effective public oversight. At the same time, one should not expect complete replacement of private standard-setting by public management, even in response to a major crisis, in areas like benchmarks where widespread adoption by private actors is essential to achieve the benefits of the standard. Thus, the transition to the new benchmarks that will replace LIBOR involves collaboration among central banks, regulators, market participants, and industry bodies. It takes place, however, under a conspicuous shadow of public authority.

Section 5.2 briefly describes the evolution of LIBOR and its functioning prior to the global financial crisis. Section 5.3 examines how the relevant private and public actors, most centrally the BBA and UK authorities, reacted to the first public reports of potential LIBOR manipulation in mid-2008. Section 5.4 examines the June 2012 Barclays settlement and the broader enforcement campaign against LIBOR manipulation, focusing on the role of US prosecutors and market regulators. Section 5.5 describes the regulatory aftermath of the scandal, including immediate steps to reform the LIBOR-setting process and impose new regulation on benchmarks and longer-term reforms that will replace LIBOR with publicly managed, transaction-based benchmark rates. Section 5.6 concludes.

5.2 Origins and Evolution of LIBOR

LIBOR grew out of private initiative in the offshore US dollar market. As US dollar holdings overseas grew in the 1950s and 1960s, a vibrant interbank lending market emerged, centered in London. Foreign holders of US dollars deposited them in London banks, including branches of major banks from around the world, which lent dollars to each other through overnight and term deposits. Increasingly, they also lent dollars to end users, funding these loans through interbank deposits. The growth of this market generated demand for standardization of contract terms. One such crucial term was the interest rate, as banks sought a uniform way to link the floating rate paid by borrowers to their own funding costs. Initially, individual loan contracts created mechanisms to aggregate the interbank borrowing rates reported by major London banks. In the 1980s, the BBA consolidated the process and began publishing a single set of rates.

To generate LIBOR for each reported currency and maturity, the BBA received daily submissions from a panel of large banks active in the London interbank market. Each bank submitted an estimate of “the rate at which an individual contributor panel bank could borrow funds, were it to do so by asking for and then accepting interbank offers in reasonable market size just prior to 11:00 London time.”¹³ The BBA generated LIBOR by eliminating submissions in the top and bottom quartile and averaging the remaining submissions. The rules were designed and the process overseen by a BBA committee composed of representatives of the contributing banks. Thus, the initial creation and management of LIBOR required little official assistance or public imprimatur: an industry group simply aggregated and published market information for the benefit of its members.

In doing so, these private actors provided a public good: LIBOR was published in leading financial newspapers and could be used by anyone. Because it was set independently, it circumvented disputes that might arise between parties to a contract as to whether the party responsible for setting the rate did so accurately. It also reduced search and transaction costs for market participants by facilitating rate comparisons and avoiding the need to design a rate-setting mechanism for each contract.¹⁴ Network effects also meant that using the benchmark became more attractive as more market participants did so. Unsurprisingly, LIBOR came to dominate lending markets worldwide, including many transactions and products with no direct link to the London interbank US dollar market.¹⁵

For decades, the private sector managed LIBOR without much public intervention or oversight. There seemed to be little concern among regulators, the BBA, or market participants that glitches could emerge. However, potentially significant problems were lurking below the surface. Because the contributing banks traded numerous assets whose value was linked to LIBOR, they had significant financial stakes in the daily LIBOR fixings. This was even more so for individual traders or desks within the bank, whose positions would likely be more concentrated. The fact that representatives of these same banks made and oversaw the process generated potential conflicts of interest. The risk of inaccurate or biased submissions was exacerbated by the fact that they were not based on actual transactions but on estimates by traders of the bank’s borrowing costs for the relevant currency and maturity. Because many currencies and maturities were illiquid, data from actual transactions provided limited discipline on submitters’ discretion.

Bankers often asserted that LIBOR’s design ensured that it could not be manipulated.¹⁶ Because outliers were excluded, it was said, a single bank could not meaningfully affect the rate by skewing its submissions. Although this belief was demonstrably false,¹⁷ it appeared to be widely shared among market participants and regulators. This attitude reflected faith in the self-correcting nature of markets: the BBA and reporting banks had incentives to preserve LIBOR’s franchise value and therefore to provide effective oversight. UK officials also saw LIBOR as a success story, cementing the centrality of London in worldwide credit markets.

5.3 The Financial Crisis and the BBA’s Reforms

The first signs of trouble with LIBOR emerged during the financial crisis. In April 2008, after the collapse of US investment bank Bear Stearns, news reports emerged suggesting that major banks might be misreporting their borrowing costs to avoid appearing to be under stress. In fact, studies showed, LIBOR submissions were very close to each other, which experts saw as evidence that they were inaccurate.¹⁸

These news reports prompted a first round of LIBOR reform. Under pressure from regulators and market participants, the BBA announced that it would review its rules on LIBOR reporting and increase its efforts to detect and sanction inaccurate submissions. It soon became clear, however, that the BBA was unwilling to undertake any major reforms to the LIBOR-setting process or its governance structure. Senior BBA officials declared that any problems were minor and transitory, accused critics of misunderstanding the process, and reiterated that the LIBOR methodology ensured that the rate was accurate. After several weeks, the organization announced that there would be no immediate changes and made vague promises to strengthen LIBOR oversight, with details to be announced later.

The BBA’s inaction did not go unnoticed by regulators. Upon learning of it, Mervyn King, the Bank of England’s governor, responded to a Bank official: “This seems entirely inadequate. What should we do?”¹⁹ Timothy Geithner, the head of the Federal Reserve Bank of New York, who had also become concerned about LIBOR’s integrity, sent King a list of proposed reforms. The proposed changes, while modest, would have addressed some of the most salient vulnerabilities.²⁰ UK. authorities, however, proved unwilling to press the BBA to undertake such substantive reforms, let alone to increase public oversight. They agreed with the BBA’s plan to conduct a months-long consultation. During that process, virtually all the FRBNY’s proposals were quietly dropped. In November 2008, as the financial crisis raged, the BBA announced minimal reforms, effectively promising that its existing committee would oversee submissions more closely under the existing rules.²¹ Although several commentators criticized the reforms as insufficient, UK and US regulators appeared to accept them.

To this point, the story of the LIBOR scandal seems in line with the theory proposed by the framing chapter. Shaken by a major crisis that undermined LIBOR’s credibility, the BBA adapted to deflect the scandal. After delaying action, it adopted largely cosmetic reforms that preserved private authority over LIBOR. Public actors proved willing to accede to this outcome. As predicted, their intense focus on crisis-fighting facilitated the BBA’s approach: UK and US regulators and central bankers were consumed by the growing financial crisis. Beyond this, internal discussions in the UK government reveal officials’ strong reluctance to impose public regulation or oversight and a corresponding preference for a private sector solution, supporting the notion that “cognitive capture” may play a role in perpetuating private authority. The benchmark’s transnational nature also inhibited public intervention: US and UK regulators, while appearing to cooperate, in fact clashed. The latter, including officials at the Bank of England and the Financial Services Authority (FSA), apparently believed that the FRBNY was trying to exploit the crisis to undermine the “London-centric” nature of LIBOR. They thus dismissed its suggestions and supported the BBA’s modest reforms.

5.4 The Barclays Settlement and Its Aftermath

The Bank of England, FRBNY, and FSA were not the only public actors looking into LIBOR manipulation. The CFTC had launched an investigation, later joined by the DOJ, which culminated in April 2012 in a first criminal settlement with Barclays. Under a non-prosecution agreement, the bank agreed to pay $453 million in penalties.²²

The settlement revealed extensive misconduct relating to LIBOR setting. As journalists and economists had suspected, Barclays and other banks had understated their borrowing costs during the financial crisis to avoid appearing financially distressed, thus skewing LIBOR downward. In addition, multiple traders and brokers had conspired to fix LIBOR to benefit their trading positions, often at their own customers’ expense. At Barclays, derivatives traders routinely asked LIBOR submitters to skew the bank’s submissions in their favor, taking advantage of the submitter’s relatively junior position and lack of effective compliance oversight. This revelation further undermined LIBOR’s credibility.

Barclays was far from the only bank involved in LIBOR manipulation. The bank’s leadership apparently hoped that, by settling first, they would minimize the scandal’s fallout. That strategy proved a failure: the settlement triggered an enormous scandal that soon spun out of control, forcing Barclays’ CEO, COO, and chairman to resign in short order. The public bodies that had approved LIBOR reforms in 2008, especially the Bank of England and the FSA, came under heavy criticism. The LIBOR scandal triggered parliamentary hearings in the United Kingdom, Congressional hearings in the United States, and an internal review by the FSA. Eventually, the FSA was broken up and its market oversight and enforcement functions were transferred to the newly created Financial Conduct Authority (FCA).

Barclays was the opening salvo of a broader enforcement campaign by the DOJ and CFTC. In subsequent years, US authorities brought criminal and regulatory charges against several other global banks, including UBS, RBS, Lloyds, Deutsche Bank, and Citigroup, imposing fines and penalties of more than $4.5 billion. This enforcement campaign was part of a larger trend of US criminal prosecutions targeting major international banks for a range of violations, including benchmark manipulation, tax evasion, and sanctions violations, that resulted in fines and penalties of more than $34 billion.²³ In subsequent years, prosecutors and regulatory agencies in other jurisdictions joined this enforcement campaign. In several cases, home state regulators participated in US-led enforcement actions; but non-US governments also grew more assertive in initiating their own actions. Investigations spread to related markets and benchmarks, most notably foreign exchange.

Several features characterized this campaign and distinguished these actions from previous regulatory enforcement: the use of broad criminal statutes to reach misconduct not explicitly targeted by more specific regulatory regimes; the use of criminal investigation techniques, such as whistleblower rewards and plea bargain offers to witnesses; and much higher penalties. Another notable feature is the prosecutions’ explicit orientation toward organizational reform and self-regulation. US criminal enforcement policies adopted in the late 1990s and expanded since explicitly aim at providing incentives for organizations to establish effective compliance, internal investigation, and reporting policies and procedures in order to mitigate punishment.²⁴ In addition, prosecutors often impose extensive compliance obligations on organizations that settle criminal cases, requiring adoption of new internal policies, hiring of new staff, and external oversight by corporate monitors or regulatory agencies.²⁵

These corporate prosecutions can also be accompanied by individual criminal charges. Prosecutors in the United States and the United Kingdom brought such charges against numerous individuals embroiled in the LIBOR scandal. Tom Hayes, the ringleader of a group of traders and brokers who repeatedly manipulated LIBOR, was found guilty and sentenced to fourteen years in prison in 2015.²⁶ In total, at least fifty individuals were indicted, of which several pleaded guilty. Others were acquitted, including six brokers accused of conspiring with Hayes. Although prosecutors found it difficult to extradite individuals,obtain convictions, and sustain them on appeal, the LIBOR scandal represented a significant shift from the lack of post-crisis individual prosecutions.

In sum, beginning with the Barclays case in 2012, prosecutors and regulators engaged in robust enforcement campaign against LIBOR manipulation, which went well beyond the public sector’s tepid reaction to indications of manipulation in 2008. This campaign constituted a significant assertion of public authority in an area that had erstwhile been left almost completely to private standard-setting and oversight.

The deterrent effect of the enforcement actions by itself amounted to a form of re-regulation. A recent study found no indication of manipulation by major banks after 2010, which the researchers attributed to that deterrent effect.²⁷ This is consistent with the idea that, in areas where regulation aims to discipline self-serving behavior and internalize costs, private rule-making is unlikely to be stable unless some actor is available to punish deviations and impose a “penalty default rule.”²⁸ While the BBA’s own enforcement mechanism clearly did not fulfill that function, public enforcement of the private standards – in this case through criminal prosecutions of firms and traders who manipulated the process in their own interest – may provide such a background penalty default even without further public regulation.

In any event, prosecutors and regulators did not limit themselves to imposing fines and other sanctions. They also used settlements as vehicles to require banks to implement reforms to improve the integrity of their LIBOR submission process, consistent with their compliance-oriented approach to the resolution of other corporate criminal cases. Finally, as will be seen in Section 5.5, the enforcement campaign and the publicity that surrounded it provided the impetus for broader reforms that substantially increased public oversight of benchmarks and aim to eventually eliminate LIBOR altogether.

What explains this shift in the public sector’s approach? The answer lies in the identity of the public actors involved. The central actors in the enforcement campaign that began in 2012 were not central banks and specialized regulatory agencies but prosecutors and, to some extent, the enforcement arms of market regulators.

The factors that tend to inhibit robust public response to crises or governance failures arising from private standard-setting are much less applicable to these actors. Unlike central bankers and banking regulators, prosecutors and market conduct enforcers have little or no role in immediate crisis-fighting; on the contrary, because of their more direct lines of political accountability, crises generate incentives for them to be seen as acting resolutely. As part of generalist law enforcement agencies, prosecutors are much less vulnerable than specialized agencies to capture – cognitive or otherwise – by a particular regulated industry. They also have little or no stake in fostering private governance for its own sake.

Finally, the transnational nature of private authority matters less to these actors: unlike central bankers and specialized agencies, which must maintain continuing collaborative relationships with regulated entities, industry organizations, and their own foreign counterparts, prosecutors and enforcement agencies are accustomed to acting unilaterally where needed. In the case of US authorities, the broad extraterritorial reach of the relevant US laws and the country’s leverage over private actors – through its control of access to US dollar payments and other critical infrastructure – often allows them to bring successful enforcement actions even without meaningful foreign cooperation.

These factors suggest that the resilience of private authority, at least in international finance, is driven in significant part by the nature of the incentives of the specialized agencies that traditionally oversee financial institutions. In LIBOR and other cases, the shift in initiative within the public sector from these agencies to prosecutors and market regulators undermined the resilience strategies of private actors like the BBA and the banks themselves. That shift may be part of a broader trend, apparent since the financial crisis, by which areas such as international finance that were traditionally seen as effectively beyond the purview of ordinary law enforcement are losing the benefit of this exceptionalism.

5.5 Reforming Benchmarks, Replacing LIBOR

The Barclays settlement and subsequent prosecutions, by exposing widespread LIBOR manipulation, made it clear that the BBA’s 2008 reforms had been ineffective and that public oversight was lacking. Ultimately, it convinced policymakers that continued private management of this vital benchmark was untenable and that it must be replaced altogether. Thus, LIBOR reform proceeded in two stages, the second of which remains ongoing.

The first stage followed immediately upon the Barclays settlement. The UK government appointed Martin Wheatley, an experienced regulator, to conduct an independent review of LIBOR. The report, released later in 2012, recommended a series of reforms amounting to substantially stronger public oversight. They included introducing new legislation to regulate LIBOR-setting, including specific criminal penalties for benchmark manipulation; transferring LIBOR to a new administrator selected by public tender; and discontinuing LIBOR for insufficiently liquid currencies and maturities.²⁹

Most of Wheatley’s recommendations were incorporated in the Financial Services Act 2012.³⁰ LIBOR management was transferred from the BBA to a new operator, an affiliate of the Intercontinental Exchange (ICE), by public tender.³¹ European authorities also reacted: the Market Abuse Directive was amended to cover benchmark manipulation and the European Commission introduced a proposal that led to the adoption in 2016 of a regulation imposing extensive oversight of financial benchmarks.³² IOSCO, for its part, adopted global principles for benchmark administrators.³³ The LIBOR scandal thus led directly to a substantial assertion of public authority, not only over LIBOR itself but over financial benchmarks generally.

Reforms, however, could not stop at this increased oversight. The scandal had exposed deeper weaknesses in LIBOR: manipulation was not just the result of poor governance but of the fact that the underlying market for interbank dollar lending had shrunk. As that trend continued, even the historically more active currencies and maturities would increasingly be based on estimates rather than actual transactions, threatening the accuracy of the benchmark and making it more vulnerable to manipulation. A 2014 report by the Financial Stability Board recommended reforms to financial benchmarks to base them on actual transactions rather than discretionary estimates; it further recommended the creation of entirely new, transaction-based risk-free reference rates to replace flawed benchmarks like LIBOR.³⁴

In response to these recommendations, a series of national and regional coordinating committees were created to develop accurate and useful risk-free benchmark rates that could be used in a variety of financial instruments, and to foster their adoption. The US Alternative Reference Rates Committee, convened in 2014, selected the Secured Overnight Financial Rate (SOFR) as the main US dollar risk-free rate. Unlike LIBOR, SOFR is managed by a public sector entity, the FRBNY, and based on actual transactions in overnight repos on US treasuries, the world’s largest funding market. Among the risk-free rates adopted by committees in other jurisdictions, several will also be publicly managed, such as SONIA (Bank of England), STR (European Central Bank), and TONAR (Bank of Japan).³⁵

The initial expectation was that these rates would coexist with the reformed LIBOR and similar IBORs for other currencies and locations. In July 2017, that expectation changed radically. In a widely reported speech, Andrew Bailey, the FCA’s chief executive, explained that despite improvements to LIBOR, it was becoming increasingly unsustainable and would need to be phased out. Panel banks, he said, “feel understandable discomfort about providing submissions based on judgements with so little actual borrowing activity against which to validate those judgements.”³⁶ While the FCA could use its regulatory powers to compel panel banks to continue to provide LIBOR submissions, “it is not only potentially unsustainable, but also undesirable, for market participants to rely indefinitely on reference rates that do not have active underlying markets to support them.”³⁷ Accordingly, the FCA did not intend to compel submissions after the end of 2021, meaning that most or all LIBOR rates would end on that date. Bailey’s remarks were widely perceived as sounding LIBOR’s death knell. The predicted end of LIBOR in 2021 raised serious concerns as trillions of dollars of contracts worldwide still referenced the benchmark, few of which had workable fallback provisions.

These events triggered a second, much more ambitious stage of reform: the enormous task of shifting market practices – including trillions of dollars in legacy contracts – to new benchmarks and ensuring that these new rates would be robust and useful to market participants. The FCA’s announcements proved insufficient by themselves to shift market practices. Many participants apparently assumed that LIBOR would in fact continue after 2021 or that substitute synthetic LIBOR rates would be published that could be used seamlessly for existing contracts. The estimated volume of financial contracts based on USD LIBOR actually increased between the announcement and early 2021, reaching $223 trillion.

Regulators responded by acting to compel market participants to accelerate the transition away from LIBOR. The FCA issued further statements making it increasingly clear that market participants should not expect LIBOR to continue, culminating in March 2021 when it announced that most LIBOR settings would cease at the end of 2021 and that even the most widely used US dollar rates would cease in June 2023.³⁸ That statement added that even if synthetic LIBOR rates were published after these dates, they would not be considered representative, thus prohibiting their use in new contracts. US financial regulators issued a joint supervisory letter in November 2020 warning that issuing new LIBOR-based contracts after the end of 2021 “would create safety and soundness risks” and could lead to regulatory action.³⁹ In addition to stopping the issuance of new LIBOR-based contracts, regulators also required that market participants develop plans to include fallback language in existing contracts that may be affected by LIBOR’s cessation.⁴⁰

Regulators, the ARRC, and the private sector cooperated in designing and implementing contractual fallback language for existing contracts. The International Swaps and Derivatives Association (ISDA), an industry association heavily involved in developing model contracts for swaps and other financial derivatives, issued an IBOR Fallbacks Protocol under which participating firms agree to amend their existing LIBOR-based derivatives to add fallback provisions.⁴¹ The ARRC and its multiple working groups issued model fallback clauses for numerous categories of LIBOR-based contracts, including mortgages, business loans, debt securities, and securitizations.⁴² For legacy contracts that parties are unable to amend, the ARRC lobbied the New York State legislature to adopt legislation to automatically switch to a prescribed fallback rate upon termination of the benchmark.

Perhaps the most challenging aspect of the LIBOR transition has been to make available a full set of term rates that can substitute for LIBOR. SOFR, for example, is an overnight rate: it measures the interest rate charged on overnight lending transactions secured by US Treasury securities. Because it is based on a large volume of actual transactions, it is very robust. But it does not directly substitute for the principal use of LIBOR, which is to prospectively set the interest rate for a given period, for example, three months, under a contract. To generate term rates based on SOFR that are also robust and transaction-based, the administrator must have access to a pool of relevant transactions. The market for such transactions – in this case, SOFR-based swaps – is still in its infancy. The ARRC and regulators have also tried to foster its development, and as of the fall of 2020 the latest signs were encouraging, but it remains much smaller than the market for LIBOR-based swaps.

For that reason, the contractual fallback clauses mentioned above typically do not prescribe a specific alternative term rate to be used upon LIBOR termination. Instead, they incorporate into the relevant contracts language such as “the forward-looking term rate … that has been selected or recommended by the Relevant Governmental Body.”⁴³ While this language reflects continuing uncertainty about the availability and exact nature of SOFR-based term rates, it also represents a remarkable conferral of authority to the public sector to effectively rewrite the terms of hundreds of trillions of dollars of financial contracts at the stroke of a pen.

5.6 Conclusion

The LIBOR scandal and its aftermath appear to be a clear case in which a major failure of private regulation led directly to a substantial reassertion of public authority over a vital aspect of the international financial infrastructure. As such, it calls for qualification of the conjecture in the framing chapter that the shift from public to private authority constitutes a one-way ratchet that even severe crises cannot reverse and even tend to accelerate.

At the same time, the LIBOR case also demonstrates several tendencies described by the framing chapter: the difficulty of coordinating public regulation of transnational markets, governmental focus on immediate crisis-fighting measures rather than long-term reform, and ideological preference for market-based regulation. These tendencies, however, dominate only as long as the main public actors involved are those – principally bank regulatory agencies and central banks – traditionally charged with prudential oversight of the banking industry. The intervention of public actors with different objectives and incentives – namely prosecutors and market regulation agencies – marks a major shift in the nature and scope of public regulation and oversight.

These observations suggest that the balance between public and private authority in regulating markets can indeed adjust in response to crises and failures. A key factor may be the existence and active involvement of public actors outside the traditional regulatory paradigm and less bound by the tendencies outlined above. In other words, the case argues for private authority to be overseen not by one but by multiple pairs of eyes in the public sector.

To be sure, one must be wary of drawing general conclusions from a single case. The future of LIBOR remains uncertain, and new opportunities for manipulation or other unintended consequences of the reforms may arise. Even if the transition proves entirely successful, specific features of the LIBOR case may not recur in other areas. For instance, the long-term decline of the underlying lending market on which LIBOR submissions were based and the limited benefits and increased risks of participation for the contributing banks created demand for public involvement in coordinating the transition. Market participants may not have been as eager to participate in public-led reforms of a vibrant benchmark.

In addition, while prosecutors and enforcement-focused agencies can provide a strong impetus for reform, they can only respond to a limited class of crises, namely those that involve misconduct that can credibly be characterized as criminal. Where private authority generates other kinds of problems or externalities, these actors may lack the ability to intervene. Finally, other public actors may lack the resources or influence of US prosecutors and regulators, raising the risk that negative impacts of private authority on the public outside powerful countries may go unchecked. The circumstances in which crises may favor expansion or retrenchment of private authority thus constitute a rich area for further research.

6 The Basel Committee on Banking Supervision in the Post-crisis International Governance of Banking Regulation Continuity Despite Weakness

Matteo Ortino

6.1 Introduction

The regulatory regime applicable to the banking sector consists of multiple sets of principles, rules, and standards: international, regional, and national law; hard law and soft law; public law, private law, and private rules; political and technical decisions. Although to varying degrees, each component of that regime plays a part in the setting of goals to be pursued and standards of conduct to be followed. As the components or/and their combination change so does the regime as a whole and thus its functioning. The regulatory regime applicable to the banking sector can therefore be thought of as an ecosystem characterized by diversity and interdependence.

But is the ecosystem of banking regulation also characterized by resilience – another essential characteristic of ecosystems? What drives the evolution of that regime and what explains its resilience, particularly in the face of a crisis, such as the financial crisis of 2007–2008?

The remainder of this chapter is organized as follows: first, we introduce the Basel Committee on Banking Supervision and the standards its members develop. Second, we survey the failures of the Basel regime leading to the global financial crisis of 2007–2008 and some possible explanations thereof. Then, we discuss the reasons why the fundamental features of the regime are still in place even after its evident inadequacies and why the reforms adopted in the wake of the crisis are a way to safeguard the resilience of such features.

6.2 The Basel Committee of Banking Supervision (BCBS) and the Regulatory Regime for Banking

The cross-border trade of goods and services, foreign investment, and finance as well as other activities central to the functioning of the global economy are each governed by distinct legal and regulatory regimes. All those regimes carry out the same three basic regulatory functions, that is, rule or standard-setting, monitoring, and enforcement. However, the way in which these functions are discharged differs a great deal. While the regimes in trade and in foreign investment mainly rely on binding international law, the most important components of the regulatory regime in banking are international soft law and national law.¹ The structure of the international financial architecture is characterized by what has been called “Transnational Regulatory Networks,”² or “loose network of soft-law standard setters,”³ or “International regulatory forums.”⁴ The ecosystem that has the Basel Committee of Banking Supervision (BCBS or Basel Committee) at its epicenter is emblematic of the regulatory regime in banking.

The BCBS is the most important international standard-setting body in the field of financial regulation. Its remit concerns banking regulation and particularly prudential requirements of internationally active banks.

Established in 1974 by the central bank governors of the G10 group of countries, it currently has forty-five members from twenty-eight jurisdictions, consisting of central banks and authorities with formal responsibility for the supervision of banking business. Therefore, it is composed not of governmental representatives but of officials from domestic technocratic authorities; however, representatives from political institutions such as the European Commission sit as observers, a status that in practice is equivalent to proper membership. The internal organizational structure of the Basel Committee comprises the Committee (the ultimate decision-making body), Groups, Working Groups, and Task Forces, the chairman and the secretariat. The Committee can be analyzed against the three regulatory functions of standard-setting, monitoring, and enforcement.

The Basel Committee’s main objective is financial stability. Its Charter states that its “mandate is to strengthen the regulation, supervision and practices of banks worldwide with the purpose of enhancing financial stability” (Section 1).⁵ A minimum harmonization of national or regional banking laws and regulation protects fair competition and particularly prevents banks that are subject to adequate prudential requirements from being at a competitive disadvantage relative to banks coming instead from more permissive jurisdictions. In this way, a related objective is being pursued by the BCBS, that is, to prevent a dangerous and unfair inter-jurisdictional competition in laxity in the field of banking.

The BCBS has become a synonym for powerful international sources of informal law. The principles and standards that are adopted by the Committee are widely implemented at the domestic level, not only in its members’ legal systems but also in third-country jurisdictions. Informality is a feature characterizing the very nature of such an entity, as well as its decision-making processes and the legal nature of the standards it adopts. Its Charter is not an international treaty. The BCBS is not an international organization, nor does it possess any legal personality; agreements reached internally by its members do not formally constitute a source of law. As explicitly stated in its Charter, “The BCBS does not possess any formal supranational authority. Its decisions do not have legal force. Rather, the BCBS relies on its members’ commitments, as described in Section 5, to achieve its mandate.” The BCBS represents an international forum for the “negotiation” and development of principles and standards aimed at protecting a sound international financial system.

The BCBS is part of a wider system, composed of international and national principles/rules/standards and actors (BCBS-system). The BCBS’ standards, as essential as they are, constitute only a segment of a composite legal regime, in which further important and complementary roles are played inter alia by the Group of 20 (G20)⁶, the Financial Stability Board (FSB),⁷ and national authorities. The G20, the FSB, and the BCBS are all sources of decisions meant to be implemented by domestic regulators in their own legal system.⁸ In line with the organizing principle of specialization and division of labor, each plays a different role in the regulation of banking markets.⁹ Collectively, they provide some of the legislative, executive, and technical components of financial regulation that find their way into domestic jurisdictions and applied to financial institutions by domestic regulators. The G20 “specializes” in taking meta political decisions, while the FSB focuses on proposing and implementing these decisions by coordinating technical decision markers, and, finally, the BCBS works to articulate prudential banking regulatory and supervisory standards. In 1988, the Committee adopted the Capital Accord, also known as “Basel I,” which underwent a radical revision in 2004, known as “Basel II.” Finally, in response to the 2007–2008 global financial crisis, the Basel Committee members approved a comprehensive package of reforms collectively known as “Basel III.” These reforms have sought to address problems in the banking system exposed by the global financial crisis, including unsustainable levels of leverage, insufficient high-quality loss-absorbing capital, excessive variability of banks’ modeled risk-weighted assets, a mispricing of liquidity risk, and the buildup of system-wide risks.

Since its creation, there has been a progressive expansion of the BCBS’ mandate, of its membership as well as of its capacity to influence the content of domestic banking regulation and supervision. This trend has continued even after the global financial crisis, which as it is well known was triggered in the banking sector. Interestingly, in the wake of the crisis, there has been a further increase in the BCBS’ powers and scope of influence, notwithstanding the fact that its standards not only were not able to prevent the crisis but in fact contributed to its outbreak and spread. The Basel Committee was in fact part of the problem, not part of the solution. According to Rodrik, the BCBS

has produced largely inadequate agreements. The first set of recommendations (Basel I) encouraged risky short-term borrowing and may have played a role in precipitating the Asian financial crisis. The second (Basel II) relied on credit rating agencies and banks’ own models to generate risk weights for capital requirements, and is now widely viewed as inappropriate in light of the recent financial crisis. By neglecting the fact that the risks created by an individual bank’s actions depend on the liquidity of the system as a whole, the Basel Committee’s standards have, if anything, magnified systemic risks.¹⁰

6.3 The Weaknesses of the BCBS

The failings of the BCBS system can be found in all of its basic regulatory functions: standard-setting, monitoring, and enforcement. They are interconnected weaknesses that feed into one another.

With respect to standards setting, there is a partial conflict between the goal formally attributed to them by the BCBS, that is, international financial stability, and the goals that individual members in the Committee may ascribe to them, that is, the protection and competitiveness of their own national banking sector. The compromises that often follow from this conflict detract from the realization of the statutory purpose of the Committee.

Further, the substantive content of the standards adopted by the Committee has been found wanting, in at least three respects. First, the conduct prescribed for the banks by the standards tends to be insufficiently rigorous for the stability of the financial system. The inadequate technical quality of the Basel standards is exemplified by the excessively low capital requirements and the reliance on self-regulation in the form of banks’ own risk assessment determinations. In this respect, Basel II mirrored the inadequacies of national banking regulation and supervisory practices, particularly in the United States, in the years leading to the crisis.

The inadequacy of Basel standards in their specific prescriptions and level of harmonization have various causes, including insufficient understanding of financial markets, regulatory capture, and national interests. The financial crisis revealed gaps in the policymakers’ understanding of the functioning and effects of financial markets and of financial and technological innovation, especially in terms of risks to the general well-being.¹¹ This gap – which private interests have taken advantage of – has given rise to flawed economic theories and misconceptions, which in turn have produced ineffective banking regulation, both at the international and at the national level. Lastra points out that before the crisis widespread was “the belief … that financial markets are best left to their own devices.”¹² The substantive regulatory flaws in the Basel standards stemmed, in large part, from the failure of the Anglo-American legal and theoretical framework in the field of financial regulation, which constituted until 2007 the reference model for the definition of the international standards regime.

Furthermore – stressing the “capture” explanation for the failings of Basel – Rodrik states that “if the regulations were written by economists and finance experts, they would be far more stringent.”¹³ The “over-reliance on private sector input”¹⁴ evident in the Basel standards – and deemed as one of the reasons of their failure – is probably the product of both gaps in the policymaker’s understanding of the functioning and effects of financial markets and of financial and technological innovation and regulatory capture. Furthermore, the wide range of national preferences and interests that confront each other at the Basel negotiation table tends to result in poor regulatory compromises, consisting in weak and ineffective standards.¹⁵

Second, because of ongoing conflicting national interests, the level of harmonization reached in the Basel agreements is usually not high enough to prevent the negative effects of a regulatory competition or the “race-to-the-bottom” problem. Particularly when the standards affect politically sensitive domains, they tend to be weaker.

Third, when a substantial degree of harmonization is achieved, the standards are often not adequate to the needs of many countries, particularly the less developed ones. This is because they are conceived to suit, in the first place, the more advanced economic and banking systems of the real rule-making members in the BCBS.

Some of these failings have a common institutional underlying factor: the Basel Committee’s decision-making structure and process. The BCBS’ governance structure failed to produce effective regulations and supervisory standards; first, because it lacked transparency, accountability, and legitimacy, thus enabling, among other things, special interest group pressure from major banks and international finance associations to have disproportionate influence on the regulators that were members of the Committee, stirring the process in their favor and to the detriment of an adequate regulatory outcome.¹⁶ And second, because the countries and the banking industry that developed the standards did not consult countries that were not members of the Committee (mainly developing and emerging market economies).

The Basel system has proven to be inadequate also with respect to enforcement. In fact, many commentators, be they academics or regulators, seem to hold the belief that the single biggest institutional failing of the BCBS is not its standard-making structure and process but on the enforcement side. According to this view, Basel standards were not effective in preventing the 2007–2008 financial crisis because they were poorly implemented at the domestic level, in the sense that implementation, and as a result enforcement, was lacking or varied across jurisdictions. Agreed standards were not (fully) adopted in some jurisdictions or were not uniformly implemented or enforced across national legal systems, to the detriment of international financial stability and the level playing field. Therefore, what attracts a great part of the commentary on the Basel institutional system is its failure to properly carry out the enforcement function. For example, according to Lastra, the global banking system requires legal and institutional changes especially at the surveillance and enforcement stages, rather than in the law-making function. While formal international standard-setters like the Basel Committee are “adept” at the regulatory function and thus “can continue with their rule-making role,” what is really missing is an effective enforcement of these standards.¹⁷

The reasons for inadequate implementation and enforcement are various and to a certain extent link back to the function of standard-setting. First, the non-binding nature of Basel standards means that any deviation from them is, from a strictly legal point of view, formally costless for national jurisdictions. This makes it easier for domestic interests – be they public and/or private, general or special – when it is time to implement or enforce these standards, to prevail over conflicting international commitments and the goal of international financial stability. Second, as already mentioned, Basel standards, to the extent that their regulatory content is determined by the most influential members of the Committee, may not be adequate for the other jurisdictions and their specific economic and financial system. This is particularly the case of nonmember countries from less economically advanced part of the world, which are not even represented in the Basel negotiations. These other countries are likely to proceed at best with a lukewarm implementation, also because a full implementation can be disproportionately costly.¹⁸

6.4 The Resilience of the BCBS

6.4.1 Exogenous Factors Accounting for Resilience

The most characteristic component of the BCBS regime, that is, the soft-law nature of its standards and the related informality of the standard-setting body, is unlikely to be replaced anytime soon. According to Arner, “outside of the EU, there continues to be very limited interest in moving from soft law to hard law approach to international financial regulation.”¹⁹ What explains the continued resilience of the BCBS and its standards?

At least four exogenous factors can explain this resilience. First, a certain degree of institutional inertia or path dependency certainly contribute to the continued relevance of the BCBS and its standards.²⁰ A radical transformation of the regulatory approach, like the switch from an informal network of national regulators to a proper hard-law organization or agreement would be, conceptually and practically, more difficult to put in place than incremental revisions of the status quo. This is particularly true in a regulatory space as complex as international banking, which does not simply or mostly provide for liberalization measures (like the trade and the foreign investment regimes) but instead entails the harmonization of national regulation of financial institutions and activities. The latter task becomes even more difficult to carry out if the political conditions at the international level are missing, as when international multilateralism is receding and replaced by a stronger unilateral or bilateral approach to international relations.

Second, soft law provides a series of practical and legal advantages that make it a very useful – and thus resilient –instrument of setting standards in the field of banking, domestically and internationally. Generally, soft law represents a sort of regulatory compromise between conflicting needs. It is still law but without the obligation to comply with many substantive and procedural legal requirements that are attached to hard law. It carries out the same principal regulatory function as hard law, namely, standard-setting, but generally with more flexibility, speed, and technical expertise and much less formality. This is why soft law is extensively relied upon, especially by specialized agencies, in the field of financial services. The latter is characterized by technical complexities and by the speed of financial and technological innovation and market developments. For its flexibility and malleability, soft law is particularly suitable to cope with the infinite variations of regulated financial activities and institutions.

The same underlying reasons explain the use by the BCBS of soft law as opposed to binding international legal acts. Soft law standards represent the useful compromise to solve the tension between, on one side, the BCBS members’ lack of legal authority and legitimacy to impose international hard law prescriptions and, on the other side, the need for cross-border regulatory and supervisory consistency. Similarly, BCBS’ soft law standards and principles are meant to solve the tension between an international regulation sufficiently ambitious and universal in its applicability and appropriately transparent to be assessable by market participants and national authorities,²¹ with the need for some degree of flexibility in their implementation and enforcement so as to be compatible with different legal and economic systems.²²

The third factor behind the resilience of soft law in international banking regulation is the protection of certain interests by and in major countries, which makes the latter ambivalent about stepping up international cooperation. Such interests want to gain from international coordination by promoting some degree of inter-state commitment, while avoiding the costs associated with proper hard law agreements. In its standard-setting function, the Basel regime is shaped in a way as to simultaneously increase the advantages and reduce the disadvantages of international coordination in the banking field as much as possible. On the one hand, by providing some degree of conduct harmonization across global financial markets through common standards and the relative behavior-changing mechanisms, the regime narrows down the margin for regulatory race to the bottom and reduces the sources of international financial instability. On the other hand, the absence of formal binding obligations and dispute resolution systems simplifies the efforts to adjust – if, when, and to the extent necessary – the national implementation and enforcement of international standards according to conflicting (public or private) domestic interests. Verdier²³ has highlighted three domestic actors that are keen on leveraging the characteristics of the Basel regime to further their own interests, even if it is to the detriment of internationally agreed policy goals: developed jurisdictions (such as the United States, the United Kingdom, and the EU), their financial industries, and their specialized financial regulators. According to this account, the pursuit of their own interests by these three forces has greatly contributed to the decades-long resilience of an international regulatory approach based on nonbinding standards and on delegated and somewhat discretionary implementation and enforcement. Thus, soft law will remain the dominant legal form in international banking regulation until for those actors its benefits exceed the costs or until other actors and interests prevail.

Finally, the fourth exogenous factor, strengthening the resilience of the Basel regime, has to do with political international credibility. National implementation of what is agreed in the BCBS has also an important international political dimension. Since 1974, the BCBS standards, once adopted by its members by consensus, have been endorsed by the Group of Central Bank Governors and Heads of Supervision (originally of the G10). However, since 2008, the G20 has started holding summits at the level of heads of state or government; and in that composition in November 2010 (G20 Seoul Summit), it endorsed the Basel III agreement.

Therefore, through its highest-profile political composition, the G20 has brought to the international economic governance of financial markets a higher level of political and institutional commitment. The latter in turn can bring a higher degree of legitimacy and authority to international legal standards. More specifically, while remaining soft law, the BCBS standards can become a little “harder” because of the official commitment by the highest-level political institutions to their implementation at the domestic level. The mechanism increasing the standards’ compliance pull is not strictly legal but political: it is a question of international credibility. If and to the extent that international political commitments are not followed through by a country’s domestic institutions, damaging consequences can follow in terms of reduced international credibility, and thus of future negotiation strengths, of that country and of its internationally active representatives and organs (starting from the very central bank and supervisory authorities that sit in the BCBS).

6.4.2 Endogenous Factors Accounting for Resilience

After having highlighted the most important exogenous drivers of the resilience of the Basel regime, it is important to turn to the endogenous factors.

The fact that international financial regulation is still based on soft law standards does not mean that the reforms that have been introduced within the Committee after the start of the crisis have left such component unchanged. Rather, the reforms can be viewed as an attempt to reconcile the almost inevitability – at least for now – of having to rely on soft law standards with the need to reduce the weaknesses of this very type of regulatory approach. In other words, the changes brought to some parts of the international regime of banking are meant to make up at least partially for the continued reliance on an informal standard-setting body and nonbinding legal standards, so as to have the advantages of soft law while reducing its drawbacks as much as possible. At least to some extent, these changes contribute to the resilience of the regime, in an attempt to avoid more radical reforms.

In this regard, two important endogenous factors in the resilience of the Basel regime will be highlighted below:²⁴ the membership enlargement of the BCBS and the BCBS internal mechanism of peer assessment (of the two, the latter will be examined in more detail). These reforms can be seen as means to improve especially the implementation and enforcement of BCBS standards, notwithstanding their continued soft-law nature. In some way, the objective of such reforms is to make the BCBS standards less soft, not in a formal sense but de facto, that is, to facilitate, or apply pressure for, a higher degree of compliance, even in the absence of a legally binding obligation.

6.4.2.1 Extended Membership

The first reform, which could improve the implementation of BCBS standards, is the broadening of the Basel Committee’s membership. The expansion was decided and took place in 2009, carrying forward the call from G20 leaders for major standard-setting bodies, including the FSB and the BCBS, to review their membership.²⁵ By involving additional countries and making them part of the standard-setting process, two beneficial effects can arise, at least in principle. Due to the involvement and representation of additional jurisdictions, the standard-making process – and the resulting standards – might be seen as more legitimate. Furthermore, in this way, also less influential countries’ financial and economic needs and specificities are more likely to be taken into account and incorporated in the final agreements. Consequently, the final BCBS standards can be more easily accepted, and thus more consistently implemented, by a wider network of countries. However, whether and to what extent these effects are effectively going to materialize is another matter.

6.4.2.2 The BCBS’ Peer Assessment Program

The second reform that can increase the compliance pull of BCBS standards is the Regulatory Consistency Assessment Program (RCAP) established within the Basel Committee in 2012 for monitoring and evaluating the adoption and implementation by its members of its agreed standards. The program can work in synergy not only with the political credibility-based implementation mechanism mentioned above but also with other functionally equivalent mechanisms normally associated with nonbinding international financial law. As explained below, these mechanisms are based on market discipline and on the possible regulatory reaction and retaliation by foreign financial banking regulatory and supervisory authorities to deviations from Basel agreements.

The RCAP consists of two distinct but interlinked parts: the monitoring of timeliness and the assessment of consistency. The first part monitors the timely adoption of Basel standards. It takes place every semester and is based on the data provided by each member. The second part assesses the consistency and completeness of domestic implementing measures, highlighting possible deviations from agreed standards.

The second part results in a “report card” given to each individual member regarding compliance with the commitments undertaken within the Committee. The report card contains two evaluations. Each assessed jurisdiction receives a grade concerning the key components of a specific legal framework (e.g., risk-based capital framework) and a grade on the framework as a whole. The best grade that members can obtain is “compliant,” where all the minimum requirements have been observed; the second highest rating is “largely compliant,” where only the main standards have been met; negative judgments of “‘materially non-compliant” follow, when fundamental provisions are not met or differences have been found between international standards and domestic legislation capable of seriously affecting financial stability or conditions of equal competition at international level; and of “non-compliant,” when the applicable Basel requirements have not been adopted or differences have been found that could seriously affect financial stability or international competitive parity.

The assessment part of the RCAP has two strands: jurisdictional peer reviews and thematic assessments of regulatory outcomes. While the first concerns the assessment of domestic legal regimes, the other concerns banks, in the sense that in addition to evaluating the correspondence between the standards and the legal regimes adopted by the individual jurisdictions, the application of the same standards by individual banks (sampled) is also assessed to determine whether, how much, and how this application diverges across banks and countries.

The part of the RCAP that most interests the present analysis is jurisdictional assessment, due to its relevance as a monitoring mechanism that is aimed at promoting consistent domestic adoption and implementation of the Basel standards. The objectives, the object, the parameters, and the evaluation procedures are illustrated in a guide prepared by the Committee: the Handbook for Jurisdictional Assessments.²⁶ The guide explains the complete assessment program and describes the RCAP questionnaires, which member jurisdictions complete ahead of the assessment and update regularly.

The evaluation of individual legal regimes aims to promote the full and correct implementation of the Basel standards by the members of the Committee. To this end, the RCAP identifies domestic rules and requirements applied to international banks that are not in line with the letter or spirit of the relevant Basel standards. The assessment relates to domestic regulations aimed at regulating the aspects covered by Basel standards, while a broader analysis on the functioning of the regulatory framework and the effectiveness of supervision is not carried out.

The evaluation process is divided into several phases and involves various institutional actors. After a preparatory and preliminary phase, there is the evaluation phase focused on the work of the Evaluation Group (the Assessment Team) set up ad hoc for the preparation of a draft report; then there is the revision phase in which a different Group – the Review Team – reexamines the draft report and then transmits it together with its observations to other bodies (the Peer Review Board [PRB] and the Supervision and Implementation Group [SIG]) “hierarchically” superordinate, for approval and possible sending to the Committee for discussion and final approval.

The pressure to comply with Basel standards exerted on members through the RCAP stems from the cumulative negative consequences that the publication of negative assessments can produce. Despite the euphemistic tones used in explaining the objectives of the RCAP – according to which its assessments “help member jurisdictions to undertake the reforms needed to make them more aligned with Basel standards”²⁷ – the implicit purpose is to increase the costs for those jurisdictions that decide to deviate from Basel standards. The main costs are of three types. First, there are reputational and credibility costs at the political level (G20 and FSB) and at the technocratic level (among the participants to the Basel Committee), which can negatively impact the strength of a member’s future negotiation position. Second, there are market costs stemming from market discipline, if and to the extent to which national deviations from internationally agreed standards are perceived by market participants as a sign of weakness of the corresponding domestic banking system. And third, there are regulatory costs which derive from the additional legal requirements imposed across jurisdictions on internationally active banks whose country of origin deviate from Basel standards. Foreign regulators and banking supervisory authorities can deem those banks as a greater source of financial instability and/or can retaliate seeing such deviations as undermining the sought-after level playing field in the global banking market.

These deterrent effects are potentially the stronger the more authoritative the evaluation process and its final assessment – in addition to the substantive content of standards – is perceived. To this end, although these are in any case peer reviews, and therefore not carried out by an impartial third party, the RCAP is based on a procedure with various elements aimed at reasonably ensuring a “fair” evaluation.

The RCAP procedure does not end with the assessment but essentially provides for continuous control by the Committee on the subsequent progress made by the competent domestic authorities to correctly implement the Basel standards. Among other things, at least one year after the non-positive evaluation, the assessed jurisdictions must draw up a report indicating the legislative and regulatory amendments adopted or proposed to correct the nonfulfillment and gaps highlighted by the evaluation approved by the Committee. In addition, subsequent RCAP assessments may also include in the examination those elements of the domestic regime that in the previous assessment had been reported as being corrected. So, in essence, the RCAP monitoring mechanism exerts ongoing pressure on members. This pressure is further strengthened by the involvement of the more strictly political actors of international cooperation in economic and financial matters: for accountability, the BCBS periodically reports to the G20 and the FSB, in addition to other external stakeholders, on progress achieved in the implementation of the agreements concluded within the Basel Committee.

Only time will tell if, even in the absence of any enforcement authority, this new monitoring mechanism will actually work in fostering “more consistent implementation through peer pressure and public identification of noncompliant jurisdictions.”²⁸

6.5 Conclusion

The fundamental question addressed by this chapter was what explains the resilience of the Basel Committee and its standards, particularly in the aftermath of the crisis. The Committee has been criticized much in the same way as private standard-setters and the delegation of rule-making powers to private bodies have.²⁹ In the European Union (EU), for example, the reliance on private standard-setters to achieve legal harmonization across Member States has been questioned for lack of legitimacy and accountability. Concerns have been expressed that their decision-making is not sufficiently transparent, prompting the risk of capture by the industry to be regulated and thus to the exclusion of other stakeholders’ voice and interests.³⁰

However, still in relation to EU law, these legitimacy concerns have not determined any real change of course on the part of EU policymakers, the reason probably being that the standard-setting process is deemed to be actually working.³¹ In other words, the acceptance of such “non-democratic” bodies, processes, and networks may be based on their effectiveness on the ground and thus on output legitimacy. This sets these private standard-setters apart from the Basel Committee, whose standards have instead failed to concretely achieve their objectives, depriving such international regulatory approach of much of its output legitimacy.

This chapter has highlighted some of the reasons behind paradigm continuity in the post-crisis international governance of financial regulation, still dominated by an approach based on informal networks of national regulators. The decision, taken at the political (G20) and at technocratic (Committee) level, has been to favor incremental changes of the existing institutional structure and workings rather than a system overhaul. The chosen strategy is therefore to keep on relying on the Basel Committee and on nonbinding international standards, while introducing some institutional reforms to the way the BCBS system works in order to address at least some of its most problematic issues. In particular, important changes have been adopted with a view to making standard-setting more legitimate and receptive to a wider range of national interests and specificities, and standards implementation more widespread and fuller across jurisdictions.

However, fundamental problems with the BCBS system have not been addressed (limited legitimacy, regulatory capture, disproportionate influence of some jurisdictions on the standard making process, lack of involvement of an adequately wide range of stakeholders also beyond the financial sector, lack of international dispute-settlement mechanisms, diversity of financial and economic systems across jurisdictions, etc.). The fact that not even a crisis as disruptive as the 2007–2008 global financial crisis was able to trigger enough political will and technical ingenuity to overcome the actual governance model – toward a more formal international law approach or, in the opposite direction, an increased nationalization/diversification of the prudential regulation of international banking³² – is testament to the resilience of the factors – including path dependence, practicality, and the diversity of national regulatory preferences reflecting public and private interests – behind such model.