Title Page

Current Developments in Monetary and Financial Law

Volume 5

International Monetary Fund

Copyright Page

© 2008 International Monetary Fund

Cataloging-in-Publication Data

Current developments in monetary and financial law. — Washington, D.C. : International Monetary Fund. 1999-

p. : cm.

Includes bibliographical references.

ISBN 978-1-55775-796-8 (volume 1)

ISBN 978-1-58906-176-7 (volume 2)

ISBN 978-1-58906-334-1 (volume 3)

ISBN 978-1-58906-507-9 (volume 4)

ISBN 978-1-58906-773-8 (volume 5)

1. Banking law—Congresses. 2. Monetary policy—Law and legislation—Congresses. 3. Financial policy—Law and legislation—Congresses. 4. Financial crises—Congresses. 5. Banks and banking—State supervision—Congresses. 6. Banks and banking, International—Congresses. 7. Bank and banking, Central—Congresses. 8. Economic and Monetary Union—Congresses. 9. Payment systems—Congresses. I. International Monetary Fund. Legal Dept. II. IMF Institute. K1066.C97

Price: $65.00

Please send orders to:

International Monetary Fund, Publication Services

700 19th Street, N.W., Washington, D.C. 20431, U.S.A.

Telephone: (202) 623-7430; Telefax: (202) 623-7201

E-mail: publications@imf.org

Internet: http://www.imfbookstore.org

Contents

• • Preface

• I. LEGAL DEVELOPMENTS IN THE IMF

  • 1 The International Monetary Fund’s Legal Instruments to Promote Financial Stability

    • Ross Leckow

• II. CENTRAL BANK LAW

  • 2 The Price Stability Mandate of the European System of Central Banks: A Legal Perspective

    • Niall J. Lenihan

  • 3 Should a Central Bank Also Be a Banking Supervisor?

    • Francisco José de Siqueira

• III. FINANCIAL STABILITY: OVERVIEW

  • 4 Understanding Financial Stability: Toward a Practical Framework

    • Garry J. Schinasi

  • 5 Institutional Responses to Recent Episodes of Financial Instability

    • Charles Enoch

  • 6 The Fund’s Role in Sovereign Liquidity Crises

    • Kern Alexander

  • 7 Central Banks and Financial Stability : A Survey of Financial Stability Reports

    • Martin Čihák

• IV. RATIONALE FOR REGULATION OF DERIVATIVES AND HEDGE FUNDS

  • 8 Reassessing the Rationale and Practice of Bank Regulation and Supervision after Basel II

    • James R. Barth, Gerald Caprio, Jr., and Ross Levine

  • 9 Derivatives Law in the United States: Who Regulates? What Is Regulated?

    • Philip McBride Johnson

  • 10 Hedge Funds and the SEC: Observations on the Why and How of Securities Regulation

    • Troy A. Paredes

• V. FINANCIAL DISCLOSURE, LIABILITY OF SUPERVISORS, AND LEGAL RISK IN FINANCIAL MARKETS

  • 11 “To Protect or Not to Protect, That Is the Question”: Statutory Protections for Financial Supervisors—How to Promote Financial Stability by Enacting the Right Laws

    • Ross Delston and Andrew Campbell

  • 12 Achieving Financial Stability Through Disclosure

    • Roberta S. Karmel

• VI. ANTI-MONEY LAUNDERING—TERRORIST FINANCING AND FINANCIAL STABILITY

  • 13 The Broader Impact of Terrorism on Financial Stability

    • Richard Barrett

  • 14 The Impact of Weak AML/CFT Frameworks on Financial Stability

    • Zenón Alberto Biagosh

  • 15 Elements of an Effective AML/CFT Framework: Legal, Regulatory, and Best Institutional Practices to Prevent Threats to Financial Stability and Integrity

    • Ian Carrington and Heba Shams

• VII. GOVERNANCE, DEPOSIT INSURANCE, AND MARKET DISCIPLINE

  • 16 The Moral Hazard Implications of Deposit Insurance: Theory and Evidence

    • Patricia A. McCoy

• VIII. PAYMENTS, SETTLEMENT, AND SECURITIES INFRASTRUCTURE

  • 17 The Central Bank’s Role in the Payment System: Legal and Policy Aspects

    • Christian A. Johnson and Robert S. Steigerwald

  • 18 Legal Protection of Payment and Securities Settlement Systems and of Collateral Transactions in the European Union

    • Diego Devos

  • 19 On the U.S. Commercial Law Response to the Development of Intermediated Securities Holding Systems

    • Sandra M. Rocks

  • 20 The Hague Securities Convention

    • Christophe Bernasconi

  • 21 The Draft Unidroit Convention on Intermediated Securities: Transactional Certainty and Market Stability

    • Herbert Kronke

• Biographical Sketches

Preface

The Legal Department and the Institute of the IMF held the tenth biennial seminar for legal advisers of central banks of member countries on October 23-27, 2006. The theme of the seminar was Law and Financial Stability. The Hon. Randall Kroszner, Governor, Board of Governors of the Federal Reserve System of the United States, delivered the keynote address, while Mr. Rodrigo de Rato, IMF Managing Director, and Mr. John Lipsky, IMF First Deputy Managing Director, also addressed the seminar. Presentations were made by officials of the IMF and other international organizations, officials of central banks, representatives of the private sector, lawyers, and scholars. The papers published in this volume are based on those presentations. The views expressed are those of the authors and should not necessarily be attributed to the IMF or to any institution with which they are affiliated.

The seminar covered many topics and was intended to enhance understanding of financial stability generally and of the legal instruments available to central banks, supervisors, international institutions and others to promote it. Particular attention was devoted to the legal framework for central banking, banking regulation, payments and securities settlement systems, and anti-money laundering and terrorist financing. Also discussed were capital markets issues, including the rationale for regulating hedge funds and derivatives.

The sponsorship of an international seminar, with participants from many central banks and speakers from different parts of the world, is a complex matter. Many people contributed to the preparation of the seminar and the publication of this volume. I wish to express our particular gratitude to Messrs. Barend Jansen and Roy Baban of the Legal Department for the role they played in organizing and preparing the seminar. Thanks also go to Ms. Linda Byron, Mr. Henry Wright and Ms. Nan Wang of the Legal Department who provided administrative and organizational assistance. Mr. Peter Whitten, a private consultant, Ms. Patricia Loo of the External Relations Department and Ms. Duangratai Jayanan of the Legal Department provided editorial expertise with respect to the composition of this volume. Mr. John Austin and Mr. Ayodeji Badaki, both of the Legal Department, also played important roles in facilitating the publication of this volume.

Sean Hagan

The General Counsel

Director of the Legal Department