Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - BANK REGULATION IN THE 1990S
BANK REGULATION IN THE 1990s edited by J. J. Norton, Cameron Markby Hewitt Professorial Fellow in Banking Law, Queen Mary and Westfield College, Professor of Banking Law, School of Law, Southern Methodist University, Dallas. Lloyd’s of London Press, London (1991), xxi and 171 pp., plus 6 pp. Index). Hardback £55.
This volume of essays is dedicated to the memory of that great scholar Professor Clive Schmitthoff (1903–1990), the doyen of modern commercial law scholars. It is a series of essays, partly descriptive and partly critical, on the state of banking regulation in the U.K., U.S.A., EC and at an international level. Nine leading experts were brought together by the Centre for Commercial Law Studies, Queen Mary and Westfield College London to identify and analyse key issues and trends in the area of bank supervision.
The timing of the volume is perhaps unfortunate in that the BCCI affair has cast a shadow over the area of national and international regulation and placed the traditional approach in the melting pot. Reading the essays, I could almost hear the hollow laughter of the fraudsters at some of the more complacent self-satisfaction at the current state of affairs reflected in some of the contributions—particularly ironic in this connection is the first essay by Brian Quinn, Executive Director of the Bank of England, “The Influence of the Banking Acts (1979 and 1987) on the Bank of England’s Traditional Style of Banking Supervision”. Many might question the comment: “It is not in doubt that the Bank’s supervisory regime has been strengthened over the last decade” (p. 6). It is also doubtful whether the tired old “moral suasion” arguments such as: “The author firmly believes that there is an important place within the Act for moral suasion and considers the use of the Bank’s traditional influence can in many circumstances be a better protection for depositors and for the financial system as a whole than the application of the Bank’s formal powers under the Act” (p. 6) would cut much ice with the hapless depositors of BCCI—an interesting question might be how much Mr Quinn knew about the BCCI fiasco as he was penning these reassuring words?
There are some interesting essays in the book—Richard Dale’s on the separation of banking and securities businesses (Chap. 7), Joel Trachtman’s on whether a securities type regulatory approach is preferable to the traditional pattern of banking regulation (Chap. 9) and Stephen Huber’s on the efficacy of the ineptly named American Bank Secrecy Act (Chap. 8). There is also a useful amount of descriptive information on the development of capital adequacy and solvency ratio regimes sponsored by the Basle Committee of Banking Supervisors (Chaps. 4–6). The essay on U.S. banking regulation was rather disappointing, being rather superficial and lacking any really penetrating analysis.
Clearly the BCCI affair is going to lead to some serious soul searching among bank regulators and perhaps traditional approaches need more adequate justification. More commentators are challenging the traditional nostrums of the regulators. Thus, James L. Pierce has written that: “The risk-adjusted capital adequacy standards are already distorting and overly complex, and they will probably become even more so over time as the regulators respond to
556