A Review Of Self Regulatory Organizations In The Securities Markets

As competition among markets has increased, so have some market participants' concerns about the inherent conflicts of interest that securities self-regulatory organizations (SRO) face in their dual roles as market operators & regulators. This report describes how the SEC, the NASD, & the NYSE have been addressing concerns about: the impact of increased competition, including demutualization, on the ability of SROs to effectively regulate members with which they compete, & possible regulator inefficiencies associated with broker-dealer membership in multiple SROs. Describes alternative approaches that some securities market participants have discusses as a means of addressing concerns about the current self-regulatory structure.

This paper examines the strengths and weaknesses of securities regulatory systems worldwide with a view to a better understanding of common problems and areas of global concern. We found that a consistent theme emerges regarding the lack of ability of regulators to effectively enforce compliance with existing rules and regulation. In many countries, a combination of factors, including insufficient legal authority, a lack of resources, political will and skills, has undermined the regulator's capacity to effectively execute regulation. This weakness is more acute in areas of increased technical complexity such as standards for and supervision of the valuation of assets and risk management practices.

The author examines the implications of demutualization of financial exchanges for their roles as self-regulatory organizations. Many regulators and exchanges believe that conflicts of interest increase when exchanges convert to for-profit businesses. Demutualization also changes the nature of an exchange's regulatory role as broker-dealers' ownership interests are reduced. These factors are leading to reduced regulatory roles for exchanges in many jurisdictions. The resulting changes have significant implications for regulation of financial markets, especially as exchanges are the only self-regulating organizations (SROs) in most countries. Major changes in the role of exchanges require a rethinking of the allocation of regulatory functions and the role of self-regulation, as well as stronger mechanisms to mitigate conflicts of interest. Carson looks at the views of both exchanges and regulators on these issues in Asian, European, and North American jurisdictions where major exchanges have converted to for-profit businesses. He finds that views on the conflicts of interest faced by demutualized exchanges vary widely. In addition, the tools and processes used by exchanges and regulators to manage conflicts also differ significantly across jurisdictions. The author concludes that new and greater conflicts result from demutualization and canvasses the regulatory responses in the jurisdictions examined.

This book provides a unique comparative and global analysis of the regulation of disclosure in financial (securities) markets. It is written by two authors who represent both the new world (Australia) and the old world (Germany). The authors present their research in the global business context, with legal and regulatory perspectives including some references from Africa, Asia, the Middle East and South America. After every “boom” and “bust”, legislators pass new disclosure legislation, often in a heated environment fuelled by politics and the media. Little regard is paid to existing regulation or the lessons learned from earlier regulation. The result is the continuing enactment of redundant and overlapping disclosure laws. Since financial markets are often described as markets for information, the failure to ensure disclosure is at the heart of financial services regulation. This book argues that the solution to the failure of disclosure is a brief, easily understood, principles-based, plain English safety-net amendment to statute law such as “you must keep the financial market fully informed”, a measure that would support effective mandatory continuous disclosure of information to financial markets. This book examines the reasons for disclosure regulation, and how the efficient operation of financial markets is dependent on disclosure. It examines the adequacy of common law and civil law concerning broker/client disclosure, and concludes that industry licensing in itself fails to keep the market informed. While recognizing the failures of securities commissions to achieve good disclosure in financial markets, it confirms the effectiveness of coregulation of disclosure by a commission with the support of the financial markets (such as the stock exchange). Coregulation builds on financial market self-regulation, and is best described in the words of one-time SEC Chairman William O. Douglas, who, in the 1930s, described it as a shotgun behind the door.