Reglering av banker

The subject of this dissertation is the regulation of banks. The enquiry is built around three overreaching research questions:1. What is a bank?2. Why do banks have to be regulated?3. How should banks be regulated? Each of these three questions is dedicated a separate and comprehensive section, each consisting of several chapters. Even though the subject is jurisprudence, the perspective of the enquiry is chiefly that of economics, more precisely finance, and the overriding aim is to find socially desirable legal solutions. To a large extent this is achieved through a process of identifying socially desirable goals for legislation and discussing different legal means of achieving them. The overall aim is socially optimal regulatory solutions, which is what makes the enquiry jurisprudence. Not only economic analysis plays a part in the process of finding legal solutions, but legal principles and limitations of different kinds also have an important role, for example requirements of legal certainty. One way of describing the enquiry is to say that it starts with the identification of the fundamental functions of banks from an economic perspective and ends just before the formulation of concrete legal rules. One could say that the legislator is pointed in desired directions and legal solutions are suggested, but that concrete rules are not formulated. The enquiry is primarily focused on market failures related to information asymmetries. Negative external effects do not have the prominent place in this enquiry that they usually do in other works. A central question is how banks’ opaque, and therefore hard to value, assets affect the needed regulation. A starting point for the analysis of regulation is a compilation of reasons to regulate banks. The reasons are divided into what is referred to as fundamental reasons – called reasons of the first order – and reasons that follow from other regulation – called reasons of the second order. The enquiry is about prudential regulation. Capital (own funds) and capital requirements play a central role. Capital is central because it determines robustness and incentives. Capital requirements are seen as a means to achieve adequate levels of capital. The dissertation contains almost no analysis of the law as it stands. Since the enquiry lies in the intersection between law and finance and has a de lege ferenda perspective, the methodological considerations are comprehensive. The regulation of banks pose almost unique challenges when it comes to legal certainty, in so far as there is a built in tension between a need for qualitative judgements, e.g. of various aspects of banks’ activities and business models, and the requirements of legal certainty. A well-functioning crisis management regime should play an important part in banking legislation and this issue is dedicated a chapter. Crisis management is important both ex ante as a governance tool and ex post as the handling of failing banks is important from a societal perspective. The final chapter contains a comprehensive summary of the enquiry’s assessments, conclusions and proposals as well as an element of qualitative elaboration