Law on Trial: Can the EU regulate a financial crisis?

This post was contributed by Daniele D’Alvia, MPhil Law student in Birkbeck’s School of Law. Here, Daniele reports on the Law on Trial 2016 event held on Thursday 16 June: “Can the EU Regulate a Financial Crisis?”

This year, Law on Trial – the School of Law’s week-long programme of free-to-attend public lectures and panel discussions – focused on the EU referendum. The annual showcase brought together academic staff, recognised internationally as authorities in their field.

Law on Trial 2016

Law on Trial 2016

The 16th of June 2016 has been a landmark event for the 2016 ‘Law on Trial’ series of conferences. Indeed, the 4th day of ‘Law on Trial’ has been specifically dedicated to the role of financial law in Europe. The main question that Professor Michelle Everson has posed for the panel discussion, namely ‘Can the EU regulate a financial crisis?’ has shown to be a popular topic for the high interest that the audience has manifested during the event.

In particular, Prof. Ellen Vos (Maastricht University) illustrates the regulation and the role of European agencies. She reminds of the importance of delegating powers to agencies in the EU in order to regulate risk and uncertainty (for instance, risks in the environment, food, health and safety and specifically in relation to financial crisis). On this line Prof. Michelle Everson introduces the concepts of moral hazard, risk management and systemic risk. These terms are exceptionally important in the understanding of the current financial crisis and pave the way for the speech of the third guest speaker, namely the head of the compliance office of Wells Fargo, Patrick Devine.

He gives an outstanding presentation by pointing out how the current financial crisis is global in nature, but the solutions provided therein are local. For instance, think of the EU banking insolvency procedures there is not a universal bank insolvency law, because insolvency law is national in nature. To this end, the Single Resolution Mechanism in Europe is a first attempt to provide a uniform regulation of bank insolvency through the operation of the Single Resolution Board. He outlines that the credit-crunch that occurred in America in 2007-2008 was only the trigger, but not the cause of the current financial crisis. Indeed, he concludes that the cause of the current economic crisis is just inside the same economic system, namely capitalism.

This has always been the cause in his view and the legislative frameworks have only tried to regulate the trigger and not the environment in which triggers stand. Finally, Dr. Matthias Goldmann presents the idea of Karl Polanyi on the utopia of the ‘self-regulating market’. Indeed, in 1944 Polanyi wrote the ‘Great Transformation’, which divided between a society that uses markets as one valuable tool, and ‘market society’ that places everything on the auction block, even labour. Therefore, Dr. Matthias Goldmann argues that the idea of ‘market society’ has been one of the causes of the current financial crisis and he, therefore, provides a re-interpretation of the phenomenology of contemporary financial markets, where the market itself should play a more prominent role.

In the end, the panel discussion has been dominated by the conception of risk in financial crisis and how risk can be prevented or regulated.

The conception of risk and financial risk between economic theories and philosophical arguments

I would like to introduce here the concept of the ‘past qualification’ of risk based on a possible re-interpretation of Professor Frank Knight’s book ‘Risk, Uncertainty and Profit’, which has developed a philosophical argument on risk instead of a pure economic theory on profit. The book has always been recognised for its outstanding contribution towards a distinction between risk and uncertainty, namely between objective and subjective dimensions of risk towards a theorisation of insurable form of hazards and true uncertainties.

Prof. Knight’s theory of risk is part of the remarkable story on risk.[1] Indeed, according to Bernstein risk management is a revolutionary idea where far from being an antagonist, as the mysterious fate or the voluntas dei, the future has become an opportunity. The concept of risk-taking has been developed in Western countries from Fibonacci’s Liber Abaci (1202), Cardano’s Liber de Ludo Aleae (1525) and Galileo’s Sopra la Scoperta dei dadi (1623) through the laws of probability framed, inter alia, by Pascal and Fermat,[2] and in particular the science of statistics of Graunt, Petty and Halley,[3] promoting the concept of insurance as a commercial tool in the eighteenth century. In other words, the story of risk has initiated by formalising its ontological meaning based on an objective dimension.

This was a necessary conclusion because from an epistemological point of view the discourse on risk can be complex. Risk under this new light is the probability of occurrence of an event that may or may not occur, but risk is always a measurable uncertainty. In Prof. Knight’s words:

‘the practical difference between the two categories, risk and uncertainty, is that in the former the distribution of the outcome in a group of instances is known (either through calculation a priori or from statistics of past experience), while in the case of uncertainty this is not true (….) the best example of uncertainty is in connection with the exercise of judgement or the formation of those opinions as to the future course of the events, which opinions (and not scientific knowledge) actually guide most of our conduct’[4].

So, it is possible to state that the knowledge about risk is the knowledge of a knowledgeable situation. In other words, the ontological discourse on risk is representing what is knowable in principle or a priori by virtue of laws of probability and the science of statistics. It is knowledge of objective facts. For this reason, in my view the real revolutionary idea of Prof. Knight is the categorisation of risk on the past line.[5]

The practical effect of the ‘past qualification’ of risk in global financial markets

Now, the words of our guest speaker Mr. Patrick Devine are even more intelligible: in his view capitalism has always been the cause of the current financial crisis. In philosophical terms we could say that the past qualification of risk in its objective dimension has always been the cause of every financial crisis because simply it has always been there, but it has never been regulated. In Patrick Devine’s words: ‘we regulate the trigger of a crisis (we could say what has caused the uncertainty), but not the environment in which the triggers stand (we could say the real risk).

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Footnotes

[1] Bernstein (1996). Peter L. Bernstein (1996) Against the gods: the remarkable story of risk (John Wiley & Sons)

[2] Bernstein (1996) pp 57-72.

[3] Bernstein (1996), p 92.

[4]   Knight (2002), p 233.

[5] Knight expressly said that uncertainty is the formation of opinions as to the future course of events (i.e. a subjective belief).

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Law on Trial 2016: Brexit – Should the UK leave the EU?

This post was contributed by Birkbeck Law students Janet Cheng and Henrique Nobre. Here, Janet and Henrique report independently from the Law on Trial 2016 event held on Tuesday 14 June: “Brexit: Should the UK leave the EU?”. Speakers at the event, which Janet and Henrique moderated, were Professor Justin Frosini; Professor Christopher Lord; Professor Albert Weale; Dr Angela WardDr Roch Dunin-Wąsowicz.

This year, Law on Trial – the School of Law’s week-long programme of free-to-attend public lectures and panel discussions – focused on the EU referendum. The annual showcase brought together academic staff, recognised internationally as authorities in their field.

Law on Trial 2016

Law on Trial 2016

Henrique Nobre’s report

The second evening of the Law on Trial event reflected the public expectation in discussing this extremely hot topic. The room was full of students, academics and members of the public eager to listen to our guest speakers’ arguments on Britain’s membership of the European Union.

The beginning of the session was very engaging, especially when Dr Angela Ward showed a copy of the tabloid The Sun full of scaremongering arguments and urging its readers to vote leave. Dr Ward shared with us her extensive experience and opinions on how a leave vote would endanger our economy and international relations.

Arguments were presented in relation to the position that the UK will assume in relation to trade agreements, the impact on freedom of movement, the possibility of national instability, e.g. a second Scottish referendum and the possible end of the United Kingdom, and the general uncertainty of a positive outcome.

The guests were outstanding in presenting positive and negative arguments without trying to compel the audience. The intention of the event was not to campaign for one side or the other, although it is difficult to hide personal views when talking about an issue that will affect all of us. The audience opinions were varied and contributed massively to a very fruitful discussion.

To moderate an event of such a high level and importance was a real pleasure. The panel was highly selected, the event was extremely well organised, the public was participative and there is no better company on stage than Janet Cheng (President of ELSA Birkbeck).

I felt that the event was a great opportunity to voice and discuss our concerns and that Birkbeck School of Law has chosen the right momentum to do it. As mentioned at the end of the event, independent of personal views, I urge everybody to exercise their democratic right and vote to the best outcome.

Janet Cheng’s report

The referendum coverage has been dominated by debate on immigration and trade in the media and national press from both sides of the campaign. These might be the voters’ greatest concerns, however, there are still many other issues we should be aware of.

Our panel was comprised of five outstanding scholars – Dr Angela Ward, Professor Christopher Lord, Professor Justin Frosini, Professor Albert Weale and Roch Dunin–Wasowicz PhD, all from different academic backgrounds. Through their expert presentations, looking at subjects including the review of the latest newspapers’ headlines; environmental ethnic concerns; political views in European countries and so on, the audience gained a better picture of the whole referendum.

When it came to the second part of the evening, the members of the audience were enthusiastic in expressing their views and questions to our panel. Although thoughts and opinions might differ, I think we had a healthy channel to express our views and opinions freely. And this is most important to our democratic society.

Tomorrow, we have to decide whether to leave or remain.

Looking ahead into an uncertain future the two sides weigh up the risks and opportunities and come to different conclusions. Is it safer to continue with our current multi-national arrangements, minimizing risk and change, or is the EU an outdated 1950s concept which ties the UK to the old world and which is dysfunctional and doomed to fail?

Are there realistically alternative modes of international co-operation in a more connected world? Are the advantages of a single market outweighed by regulation and the opportunities of trading with the rest of the world? What should our immigration policy be? From a legal perspective, how should our laws be made in today’s global society and how much democratic control of legislation do we want?

The decision facing us will have far-reaching consequences for the future of the UK. This is the most important decision voters are likely to be asked in our lifetime so we encourage everyone to reflect seriously and to exercise their right to vote.

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Ever closer to different destinations: How the renegotiation changed the EU’s aims

This post was contributed by Professor Simon Glendinning and Dr Roch Dunin-Wąsowicz, of the London School of Economics (LSE).This post originally appeared on the LSE blog – read here.

On Tuesday 14 June, Dr Dunin-Wąsowicz will speak at ‘Brexit: Should the UK leave the EU?’. The event will run as part of ‘Law on Trial: Europe at the Crossroads’  – the School of Law’s week long public debate on the EU referendum (13-17 June). For details and to book your place, please visit the ‘European Law on Trial’ website.

Law on Trial 2016

The EU is the result of an ongoing creative project, write Simon Glendinning and Roch Dunin-Wąsowicz, who report on the last session of the LSE Commission on the Future of Britain in Europe. Tracing its Kantian origins, they explain that historically, the idea of “ever-closer union” was conceived as a way of overcoming the pathologies of national states. This ambition has not disappeared, but it is now accepted that some Member States might be more integrated than others. After David Cameron’s 2016 renegotiation, with its emphasis on  sovereignty, there is no requirement for the UK to move towards deeper integration.

The EU is now effectively a multi-speed union without a single final destination (telos). In order to understand how David Cameron’s renegotiation brought about this change, we need to examine what, if anything, is understood by the phrase “ever closer union among the peoples of Europe”.

As a member of the EU a state may both enhance the sovereignty it retains, and have a say in the development and powers of the union in those areas where sovereignty is shared or pooled. The 2016 renegotiation, with its emphasis on the definition of ‘ever-closer union’, should be understood in this light.

The concept of Ever Closer Union

Talk of “ever closer union” is a contraction of the full enigmatic formulation: “Ever closer union of the peoples of Europe”. It holds together two features of the European Union that seem to be intractable, irreducible and contradictory. First, it seems to contain an internal tension within it between the singularity of a “union” and the plurality of “peoples”. And, second, it seems to sustain an ambiguity over whether it concerns (primarily) a political body aiming to cultivate conditions for closer cultural or spiritual relationships between peoples – call that a union of minds – or a political body aiming at closer political relationships between nations – call that a union of governments.

Both of these interpretations have been defended in the theoretical literature on the emergence in Europe of a “political body” beyond Europe of the nations. Both have their roots in the writings of the philosopher Immanuel Kant. The first interpretation is probably Kant’s own. It is the idea of political institutions which create sustainable conditions of co-operation and understanding between the peoples of Europe that makes war between the nations increasingly “less likely”. The second interpretation is illustrated by the work of the contemporary philosopher Jürgen Habermas, who construes the European project as a movement towards the creation of an international or supranational state in Europe.

The renegotiation: “Sovereignty”

These two conceptions of institutional design of the EU were strikingly present in the differences between the first draft and the second draft of the renegotiation achieved by the UK government in February 2016 under the title of “Sovereignty”.

The original draft of the text proposed by Cameron and Tusk outlines a clear telos of “trust and understanding among peoples living in open and democratic societies sharing a common heritage of universal values” and yet stipulates that it is not “equivalent to the objective of political integration”. In a fascinating development, this formulation did not survive into the final text. It was replaced by a lengthier,and much more legalistic one, focused almost entirely on the UK’s “opt-out” of any further political integration – should it take place.

The final document “recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union”. It also outlined that Treaties remain the only source of legitimation of the Union and “do not compel all Member States to aim for a common destination”, leaving the telos of ‘Ever Closer Union’ undefined, but the possibility of deeper integration among some Member States strongly implied.

The original tension between unity and plurality of the ambition for “ever closer union among the peoples of Europe” clearly remains here – but it is now expressed differentially rather than internally: some peoples within the Union might be more integrated than others. The general tension is nevertheless retained in what one might call its voluntarism: there is no requirement for Member States to move towards deeper political and economic integration; it therefore remains dependent on whether nations desire it, and should some Member States desire it, then they are free to pursue it. Should others (not only the UK) not desire it, they are not obliged or compelled to do so. The possibility is affirmed here of amulti-speed union without a single telos.

Whether the telos of “Ever Closer Union” is conceived as a union of minds or of governments, the renegotiation showed for the first time that there is no longer a shared vision of a single telos of union among the 28 Member States of the EU – or, at least, no single aim of political integration common to them all.

The reality revealed by the negotiation is that there are in fact different “tiers” of European Union integration: a tier focused around the Eurozone and increasingly common economic government and deeper political integration (which may or may not survive in the form of a single group); a tier focused on commitments to an increasingly single-market; and a tier from the post-Communist European Member States who are rediscovering their own sovereignty at the same time as engaging in a process of European integration, and still deciding their path in the Union.

Statue_of_Europe-(Unity-in-Peace)

Statue of Europe, Brussels

The history of the European political project

These developments raise important questions about the historical character of the Union itself, and indicate that its understanding of its own (ideal) historical telos changes in the course of its own (actual) history of making and attaining new institutional conditions.

The general historical “scansions” of the history of the European political project become crucial. The main feature of its early development was a hope among many that there would be a rapid movement towards an international state. The basic political motivation for this was the conviction, powerfully reinforced by the experience of nationalism and wars among the nations of Europe, that national political formations are intrinsically pathological and should be replaced by a more rational international system that would be effectively immune to them. The hope for rapid development did not last into the era of “functionalism” where a slower step-by-step approach was taken: the EU taking over certain national functions in the expectation that there would be a logic of successive developments in different areas “pulled” into play by the earlier transfers of competences to the European level.

Both of these models preserved a supra-national or “federalist” telos as their guiding ambition: the movement towards a union of governments. However, during the course of the second half of the twentieth century the idea of the nation state as an intrinsically problematic political form began to lose its hold on the political imagination. Instead, it was increasingly widely believed that it was not the form of the nation-state as such that was the problem but the form of government within that state. In particular, the pathologies were strongly connected to authoritarian, totalitarian and otherwise non-democratic regimes. A democratic nation-state, by contrast, was regarded as an instrument of peace and security both within itself and between such states.

The return of the nation

This shift powerfully altered the “horizon” of thinking about the ends of European Union. Federalism no longer appeared to be the only rational ambition of “Ever Closer Union” (though many cleaved to that idea and still do), and in its place a new “mantra” – with a new corresponding telos – has appeared to have taken hold within many national governments and on some of those working within the EU institutions: “National where possible, European where necessary”.

The now known reality of a differentiated union with overlapping circles of engagement and perhaps with multi-speed elements means that there is a delicate equilibrium in place. If Britain departed, the vision of Europe as an area of free trade in a single-market would have considerably diminished force within the EU, and there would be pressure, especially on countries in the Eurozone, to make a decision over the extent of economic and political union that they would be prepared to accept or want. Further opt-outs might be sought by various states, perhaps especially from post-communist countries unlikely to want to give up only recently acquired independence and sovereignty. The EU could start unravelling – not in one go, but gradually, in the way of the Holy Roman Empire.

At this stage in its history the EU is now faced with the alternative of either altogether abandoning the idea of supranational union in favour of a form of intergovernmental cooperation that finds agreement to pool or share sovereignty where it can; or of an EU of two Europes, one pushing towards political union and centred on the Euro, and another based on market rationalisation, but both existing independently and not adversarially within a broader European Union.

Conclusion

The idea of ‘ever-closer union” has never had a single or fixed teleological sense which has driven the political project of co-ordination and co-operation between the Member States – neither for the UK nor for the rest. Nevertheless, it is significant that the chapter of the renegotiation that contains a discussion of this phrase is entitled “Sovereignty”. In other words, it is an essentially political concept belonging to an essentially political project. And on this score, the idea of collective action is such that any member of a democratic club may help set the rules and their interpretation.

This political process in an ongoing political project is illustrated by what took place in the 2016 renegotiation, and includes what, if anything, is understood by the distinctive and ambiguous phrase “ever-closer union among the peoples of Europe”.

This post represents the views of the authors and not those of the BrexitVote blog, nor the LSE. Image:Statue of Europe

Simon Glendinning is Professor of European Philosophy at the LSE’s European Institute and Director of the Forum for European Philosophy.

Roch Dunin-Wąsowicz  is a sociologist. He is a graduate of the New School for Social Research in New York City, holds a PhD from the LSE’s European Institute and is Managing Editor of LSE BrexitVote. @RochDW.

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Law on Trial 2016: Can the EU Regulate a Financial Crisis?

This post was contributed by Daniele D’Alvia, MPhil Law student in Birkbeck’s School of Law. Here, Daniele considers the central question of a Law on Trial 2016 event being held on Thursday 16 June: “Can the EU Regulate a Financial Crisis?”

This year, Law on Trial – the School of Law’s l week-long programme of free-to-attend public lectures and panel discussions – will focus on the EU referendum. The annual showcase will run from Monday 13 to Friday 17 June 2016 and will bring together academic staff, recognised internationally as authorities in their field. Find out more

Law on Trial 2016

On the 23rd of May 2016 the international credit rating agency Moody’s downgraded – for the second time this year – Deutsche Bank’s ratings for unsecured senior debt to Baa2 two notches above junk status, and it has also cut the long-term deposit rating one notch from A2 to A3. The cut has occurred after the heavy loss that the German Bank has faced last year and its impossibility to guarantee internal capital generation by 2018.

In addition, since the 1st of January 2016 Europe has seen the implementation of a new ‘bail-in’ regime for banks (namely, the new rules are a result of the EU Bank Recovery and Resolution Directive), which requires the writing down of senior debt (bond instruments in particular) in case of a possible default or financial distress of banks. This circumstance has surely affected those assessments provided by Moody’s too.

Furthermore, the German Council of Economic Experts has recently proposed a new sovereign insolvency mechanism in order to overturn the financial principles of the post-war order in Europe. The proposal is centred on new ‘haircuts’ on holders of Eurozone sovereign debt and aims at matching the new-implemented rules enacted for banks under the EU Bank Recovery and Resolution Directive that have been mentioned above.

This has been done to restore the credibility of the ‘no-bailout’ clause in the Maastricht Treaty. The tax-payer does not have to suffer any loss under the new ‘bail-in’ culture, but what about the markets and the senior creditors? Indeed, under the new scheme bondholders will suffer losses in any future sovereign debt crisis before there can be any bail-out of the Eurozone by the European Stability Mechanism. The negative effects of such reforms have just manifested this year in January 2016 when the bondholders (i.e. senior debt) of the Portuguese bank Novo Banco have been written down under the new implemented scheme of ‘bail-in’ for banks in distress.

Indeed, these reforms are contributing to a ‘bond-running’ effect because the senior debt under these regimes is the first one to be written down. To this end, a new possible aggressive speculation by investors and economic crisis is just ready to start in Europe.

It really seems that currently in Europe the real question has shifted from how to stay in Europe to how to stay in the market. In other words, nowadays it is the politics of financial markets that governs politics at national governments level and not the other way round.

Hence, the rhetoric but essential question that Prof Michelle Everson has posed for the panel discussion that will be held this year at Law on Trial: “Can the EU Regulate a Financial Crisis?” Indeed, the panel discussion is focused on providing a possible answer by taking into account the global nature of financial risk, the limits of financial regulation as well as its effects in relation to both the management of risk (i.e. the sovereign and bank insolvency mechanisms) and its pricing (i.e. a bank in default).

Law on Trial 2016: The European Union at the Crossroads, runs at Birkbeck from Monday 13 to Friday 17 June. Book a free place here.

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