From January 1st, 2011, Joëlle Toledano, a member of the College of the Autorité de Régulation des Communications Electroniques et des Postes (ARCEP – the French Postal and Telecommunications Regulatory Authority) will serve for one year as President of the recently created European Regulators Group for Post.
SPANISH
Informe temático (Telecomunicaciones y servicios postales): Joëlle Toledano es nominado a la Presidencia del Grupo Europeo de Reguladores de Servicios Postales
El 21 de enero del 2011, Joëlle Toledano, miembroo de la Autorité de Régulation des Communications Eelctroniques et des Postes (ARCEP – La Autoridad francesa de la regulación de telecomunicaciones y servicios postales) servirá por un año más como Presidente del reciente Grupo Independiente de Reguladores Europeos de servicios postales.
The Jury for Advertising Deontology ordered two of the government’s advertisements on cattle breeding to be taken off the air, because they falsely claimed that cattle breeding was mostly a family-run business run in an environmentally-friendly way. The sanction illustrates the power of self-regulation.
PORTUGUESE
Informe temático (Mídia): A Autoridade de auto-regulação em matéria de propaganda proíbe duas faltas propagandas.
O Júri para deontologia em matéria de publicidade ordenou que duas das propagandas governamentais sobre criação de gado fossem retiradas do ar, porque elas teriam difundido que a criação de gado seria um negócio familiar desenvolvido em harmonia com o meio ambiente. Esta sanção ilustra o poder da auto-regulação.
ITALIAN
Relazione tematica (Mass-media): L’autorità di autoregolazione dei pubblicitari impedisce la pubblicazione di due pubblicità menzognere.
La Jury for Advertising Deontology ha vietato la diffusione di due messaggi pubblicitari dello Stato relativi agli allevamenti animali, in quanto affermavano che l’allevamento dei bovini è praticato da aziende a gestione familiare e con sistemi che rispettano l’ambiente. Questa sanzione mostra l’impatto dell’auto-regolazione.
Season 2 Episode 3 of the British version of the series "Criminals" features the character of Danielle. Danielle is a mother which has decided to hunt down pedophiles on social networks in order to trap them and show to the world their acts. Danielle insists on the efficiency of her action with regard to the police and justice that she finds unproductive. In the episode, Danielle is accused of defamation by the police. While policemen try to explain to Danielle the importance of using a regular procedure and to respect the Rule of Law aiming to prove its accusations, she makes efficiency her only principle. According to her, her methods get results (on the contrary of those used by the police which respect procedures) and those she accuses to be pedophiles do not deserve defense rights.
We can learn three lessons from Danielle's story:
If Compliance Law is just a process of application of mechanical rules, then Rule of Law is not salient face to the principle of efficiency. But, if Compliance Law is defined by its "monumental goals" and that the respect of Rule of Law is erected in "monumental goal", then efficiency and Rule of Law become compatible and congruent.
The digital space must be disciplined by crucial digital firms supervised by public authorities, like in France or Germany for hate speeches and disinformation.
Compliance Law, and Law in general, must be pedagogue towards individuals as Danielle which do not understand why their behaviors are reproachable.
Professor Hervé Causse released a book of over 800 pages: Droit bancaire et financier (Banking and Financial Law).
Typically, there are "Banking Law" on one side and "Financial Law" on the other, each giving rise to separate books, Banking Law having long since detached from the Commercial Law and do having never really left Civil Law, Financial Law being more subject recently of books.
Typically, there are the "Banking Law" on one side and the "Financial Law" on the other, each giving rise to separate books, banking, having long since detached from the Commercial Law and do having never really left the Civil Law, financial law being more subject recently of books.
In the books of "Banking Law", we find the contracts, transactions (credit), mechanisms (like money), institutions (such as the National Central Bank) and sometimes specific repressive rules.
In the books of "financial law", first of all, we meet financial market, financial transactions (like all securities transactions or takeovers bids), the economy is much more present, the US Law being at home because of extraterritoriality as either model, repressive rules slipping everywhere, to the heart of what appears to be today a branch of law.
The important work of Hervé Causse goes further and corresponds to reality: it merges the Banking and Financial Law.
He does it because his work is based on the life of the sector, that is to say the professionals. In fact, professionals work in banks. Then he describes those who admit and control their activities, that is to say the authorities of supervision and regulation. He goes on to describe to the reader the instruments, financial prowess that the bankers invent.
Thus sucked by financial reality, what is left of the civil commitment of Banking Law? To take just one example, when the author discusses the concept of "banking service" from that of "financial service", he finds the uncertainty of this notions. The Banking Law is thus trying to forget the Civil Code, the “deposition” techniques being one example.
Thanks to the book of Hervé Causse, the reader understands that the rules now being written by those designing financial regulation, these rules must find their bones in the financial regulatory system.
Rating agencies are private companies that assess the risk of defaulting payment by debtors. As such, the rating of a borrower affects the value of the debt security it issued and that is to circulate in the markets. That is why the activity of credit rating agencies is critical to the security of financial instruments and the functioning of financial markets, but also to the whole global credit system. For instance, an AAA rating guarantees security to investors. Rating agencies helps building trust in financial markets and in the banking system. Henceforth, since everyone relies on them as they save people's time from seeking on their own information on securities or on those who issue them on the marks, international rating agencies have become crucial operators.
'Rating' has also become a business, which is now concentrated within the hands of three undertakings (two American and one French). It has often been said that these three are conflicted. Some have indeed brought up the fact as they have provided the markets with unreliable information (especially about subprime and securitization) prevented them to self-discipline, which eventually participated in the global spread of risks and defaults.
The difficult history between the rating agencies, whether they are considered as mere businesses, crucial operators or as companies undertaking a public service, which eventually led to implement a specific Regulation in the immediate aftermath of the financial crisis, shows how the information is a public common. This justifies the intervention of the Financial Regulator, namely to better protect the consumer. Should we go further on? Some have mentioned the idea of nationalizing the business and hand it over to Government institutions (or at least public ones). This is, however, no longer on the agenda, as many conflicts of interests may arise since rating agencies keep on rating the paradoxical debtors that States are.
The Financial Crimes Enforcement Network (FinCEN) is an organ, depending on the American Treasury, in charge of fighting against financial criminality and especially against money laundering and terrorism financing. For this, it has large control and sanction powers.
In August 2020, the FinCEN published a document untitled "Statement on Enforcement" which aimed to explicit its control and sanction methods. It reveals what firms risk in case of offense (from the simple warning letter to criminal pursuits passing through financial fines) and the different criteria on which FinCEN is based to use one sanction rather than another. Among these criteria, we find for examples the nature and the seriousness of committed violations or the firm's history but also the implementation of compliance program or the quality and the spread of the cooperation with FinCEN durning the investigation.
One of the objectives of the publication of such an information document is to obtain the cooperation of firms by creating a confidence relationship between the regulator and the regulated firm. However, it is very difficult to ask to the firms to cooperate and to furnish information if they can fear that this same information can be used later as proof against them by the FinCEN.
Another objective is to reinforce legal security and transparency. However, the FinCEN's declaration does not seem to commit it, because it is not presented as a chart but as a simple declaration. Indeed, the list of the possible sanctions and the criteria used by the FinCEN are far from being exhaustive and can be completed in concreto by the FinCEN without any justification.
In the most developed nations, as in emerging countries, the economy and society are currently being entirely transformed by an industrial revolution originating in information and communication technologies.
Anti-competitive Behaviour Audacity - Autorité de Régulation des Communications Electroniques et des Postes (ARCEP - French Electronic Communications and Posts Regulator) - Communication - Competition - Confidence - Cooperation - Darwin - Digital revolution - Discrimination - European Commission - Ex ante / Ex post - Fiber optic - Future - impredictibility - Information - Infostructure - Infrastructure - Innovation - Internet - Lamarck - Napoleon - Network - Overregulation - Risk - Uncertainty - Underregulation *
* In The Journal of Regulation, these keywords are done by the Editor and not by the Author.
ITALIAN
Articolo: Innovazione e regolazione al servizio della rivoluzione digitale
Nelle nazioni le più sviluppate, nonché negli stati in via di sviluppo, l’economia e la società sono completamente trasformati da un rivoluzione industriale che trova le sue origini nelle teconologie d’informazione e di comunicazione.
Autorité de Régulation des Communications Electroniques et des Postes (ARCEP – Autorità francese di regolazione dei servizi postali e di telecomunicazione) – Commissione Europea - Comportamento anticoncorrenziale – Comunicazione – Concorrenza – Cooperazione – Darwin – Deregolamentazione - Discriminazione - Ex ante / Ex post – Fibra ottica – Imprevisibilità – Incertezza - Inflazione normativa - Informazione – Infostruttura – Infrastruttura – Innovazione – Internet – Lamarck – Napoleone – Rete – Rischio - Rivoluzione digitale *
* In The Journal of Regulation, le parole chiave sono responsabilità dell’Editore e non dall’Autore.
PORTUGUESE
Artigo: Inovação e Renovação a serviço da Revolução digital.
Nos países mais desenvolvidos, bem como nos em desenvolvimento, a economia e a sociedade vem sendo, atualmente, completamente transformados por uma revolução industrial baseada em tecnologias da informação e da comunicação.
Comportamento anti-concurrencial – Autoridade de regulação das comunicações eletrônicas e dos correios (ARCEP – Regulador francês de Comunicações e dos Correios) – Comunicação – Concorrência – Confiança – Cooperação – Darwin - Revolução digital – Discriminação – Comissão Europeia – Ex ante / Ex post – Fibra ótica – Futuro – Imprevisibilidade - Informação – Info-estrutura – Infra-estrutura – Inovação – Internet – Lamarck – Napoleão – Rede – Sobre-regulação – Risco – Incerteza – Sub-regulação.*
* No Journal of Regulation, as palavras-chave são fornecidas pelo Diretor, e não pelo Autor.
SPANISH
Artículo: Innovación y regulación sirviendo la revolución digital
En las naciones más desarrolladas, tal como en los países emergentes, la economía y la sociedad están actualmente siendo transformadas por una revolución industrial provenientes de las tecnologías informáticas y de telecomunicaciones.
Asymmetry is a key concept of regulation. Indeed, a competitive market works well when operators are in symmetrical relationships, ie there is no structural obstacle which prevents an agent from increasing his power solely on his merits (" competition by merits "). If there is an asymmetry, for example because a sector is monopolistic and the legislator has just declared it open to competition, there is a temporary asymmetry between the installed companies, the incumbent operators and the willing companies to enter this new market, the "new entrants". Historical operators, such as in the telecommunications or energy sector, when they were opened to competition by European directives, transposed by national laws (in french Law in 1996 for telecommunications and gas, in 2000 for electricity), benefit (sometimes referred to as grandfather clause), in particular because they have all the clients or all the know-how or all the patents, and that, in fact, the competitors can not enter the market. It is then necessary to establish a regulator also a priori temporary itself to establish to forceps the competition, by an asymmetrical regulation.
Asymmetric regulation, particularly applied in Great Britain at the time of the liberalization of the aforementioned sectors, means that the regulator will systematically favor new entrants, for example by dispossessing the incumbents for their benefit to make them on the market. Today, in the telecommunications sector, competition, notably on mobiles, is established, but the regulator does not intend to leave its place to disappear and today supports "symmetric regulation" .... Instead, it acts as a specialized competition authority.
Asymmetry may not be temporary but definitive, when inequality between operators, regardless of merit, does not come from a context of liberalization but from a structural failure of the market. For example, there are transport networks, transport of passengers or goods, railways or airstrip for airplanes, data or voice communication networks, pipes where gas or electricity circulate, etc., which belong to a single operator because they constitute economically natural monopolies. Under these conditions, the competitors of the monopoly must nevertheless have fair and effective access to this service and a regulator must necessarily be established for the effectiveness of that right (see Access).
Moreover, the Nobel Prize of Joseph Stiglitz (2001) was justified by his work on the asymmetry of information on certain markets, in particular the financial markets on which companies offer securities. Through the theory of the agency, it appears that the ordinary partners or ordinary investors have less information than the managers, even though the latter have the function of making decisions that bring the most to the former. But information asymmetry offers managers an "information rent" that allows them to offer many benefits and transfer risks to others. Regulators, in particular banking and financial regulators, are needed to combat information asymmetry. Transparency is one of the procedural means to combat this asymmetry. The financial and banking crisis of 2008 showed the extent of this asymmetry and, in fact, the inability of regulators to remedy it, for example, the British government estimated in 2010 that it was the financial regulator itself that was responsible for the crisis for not having sufficiently watched over conflicts of interest. In general, the global financial crisis was often later characterized as a crisis of regulators and regulation.
Prof. Pan conducts research on financial regulation, capital markets, corporate governance and international law. Among his many professional activities, he directs the Chatham House City Series and frequently speaks about international financial and corporate law issues across North America, Europe and Asia. Prof. Pan is a member of The American Law Institute.
Before joining Cardozo, Prof. Pan was an attorney for several years with Covington & Burling in Washington, DC, where he practiced corporate, securities and international law. He also was a Jean Monnet Lecturer in Law at Warwick University, England, and a visiting fellow in international law at Cambridge University, England.
He is currently serving as an Academic Fellow in the Office of International Affairs at the U.S. Securities and Exchange Commission in Washington, DC.
