May 1, 2013
by Annelise Riles

“New Governance” and Global Financial Regulation

In its latest newsletter, the Tobin Project covered the online publication of my recent working paper in which I examine the relevance of “New Governance” regulatory theory to the challenges faced by the Financial Stability board in regulating systematically important financial institutions.

Tobin Project Newsletter

Direct link to my working paper: Is New Governance the Ideal Architecture for Global Financial Regulation?

October 2, 2012
by Annelise Riles

Market Totalitarianism

AIG Tower, Seoul

One of the big financial news stories of the week was that the US government will get its money back on the sale of AIG stocks. There is actually a debate about whether this is an accurate description of the state of affairs. But what interests me most is the fact–apparently agreed upon by both the champions and the critics of the TARP program–that the government’s return on its investment is the arbiter of the success or failure of the TARP policy. The state is now an investor, and its success or failure is evaluated according to the terms we apply to any other investor. What model of the state is this?
What fascinates me about this is that the state is a player in the market, to be evaluated on pretty much the same terms as we would evaluate any other market participant. This is a new kind of politics, not just a new kind of regulatory economics.
So what? I think this is actually a very big deal–something that should get political theorists going, and should engage us all in debates about the nature of democracy, or perhaps post-democracy, in an era in which states have imploded into markets and vice versa. I have a new paper coming out next spring on this subject in American Anthropologist and the title gives away my own views on this emerging politics: Market Totalitarianism.
I presented this paper last week as a keynote lecture at a conference at McGill Law Faculty entitled “Law Beyond the State.” A smattering of responses I got:

“You’re crazy.”
“You’re wild.”
“I wouldn’t be so radical.”
“People love what you do but they wouldn’t follow you there themselves.”
‘Your paper did not leave anyone indifferent…These slightly surreal moments are one of the great blessings of life.”
And weirdest of all, “Listening to you is an aesthetic experience.”

But that isn’t the worst: One of my own colleagues at an internal faculty workshop told me I should “just go hang out in the Hamptons with Romney and the other crazies.”
It is a sad commentary on how truly boring the legal academy has become when I count as outrageous. What seems to bother people are two things:

1. I am suggesting that there might actually be unintended consequences to centrist lefties’ eternal defense of the state (nothing new I thought here–see Todorov, Lefort, and any of the leftists with experiences of totalitarian states under their belts) and

2. I am suggesting that the techniques of private law, which we have devoted generations to showing up as endlessly malleable, and worse, politically suspect, might offer an ironic space for creative response to the current condition. Here is a very thoughtful version of the latter point:

“I found your diagnosis of the market and debt most compelling and was drawn to your use of Mauss and Davy. What I found surprising — and I suppose that is the Davy direction rather than the Mauss direction of your analysis — is that you ended up hitching your flag to the mast of the reciprocity of the contractual form (sounding remarkably like Ernie Weinrib in the end) rather than revisiting more insistently the gift relationship. In other words, I was expecting you to tell us that, in effect, capitalism had collapsed upon itself through the involution of debt that you described …and that the sphere of gift, relegated to the margins by market exchange, would have to be reinvested.”

That is indeed what one would expect of an anthropologist! Arguing for gifts instead of law.  What I find challenging about Georges Davy is that he refuses the distinction between the two.

April 21, 2011
by Annelise Riles

Raising questions about close-out netting

stock market chartEarlier this month, Stephen Lubben at Dealbook posted an interesting piece querying whether there may be hidden costs associated with giving banks huge breaks in their capitalization requirements under Basel III for close-out netting, the clause in the ISDA master agreement that provides that under a long list of specified conditions such as bankruptcy, reorganization, nationalization and so on, one of the parties to a swap transaction can demand that the two sides close out all their obligations and net them all out.  As I explain in detail in my book, Collateral Knowledge, the reason the parties want to do this is that under modern bankruptcy law, even if Bank A cannot pay Bank B because it is bankrupt, Bank B is still obligated to pay Bank A.  If the two sides have netted out their obligations though, the amount Bank B owes Bank A in this situation will be much less–it’s obligation minus whatever Bank A owed it but couldn’t pay.

One chapter of my book is devoted to the events surrounding the passing of a Netting Law in Japan that would guarantee that netting was enforceable.  At the time, ISDA, the International Swaps and Derivatives Association, was busy pushing such laws through in every major jurisdiction in which derivatives trading occurred. And as Lubben says, everyone in the industry asserts that netting is a universal good. In fact, in the entire period of my research I never heard a single person–not a regulator, not a market participant, not even an academic specializing in derivatives–suggest that there were any possible costs associated with netting. But as my research progressed I became increasingly curious about some of the possible costs. Indeed, ISDA’s furious drive to get netting laws passed all around the world suggested to me that someone at ISDA had to believe that there were at least some judges out there who, faced with a case about the enforceability of close-out netting agreements, might see enough costs there to decide to hold the agreements unenforceable. And yet when I queried people about these issues–even people without a direct pecuniary stake in the matter such as academics and bureaucrats–the question was just dismissed again and again as completely out of left field.

Lubben focuses on one possible problem with close-out netting, the fact that the parties can invoke the clause under the contract for a laundry list of reasons, not simply for actual bankruptcy. His concern is that “letting everyone rush to the exits in time of financial crisis” increases systemic risk.  I am not sure if this is as big of a problem in practice as it appears to be on paper.  My research documents numerous occasions in which parties could have invoked the terms of the netting clause but chose not to do so for a variety of interesting and complicated reasons relating to their calculation of what was in their long term best interest. One of the things I try to do in the book is to show how distant law in the document may be from law in practice in the financial markets and this is an example.

However I have another kind of concern about netting agreements. What I think Lubben is really getting at in his comment is that they run an end game around national bankruptcy laws. This means not only that the parties get to liquidate their agreements for reasons that would not be valid under the bankruptcy law but also that in cases of real bankruptcy or reorganization the parties get out of the rules governing who gets paid first. Under the bankruptcy laws of every country I know, swap counter parties would be close to the end of the line of creditors to be paid in bankruptcy.  In other words citizens, through their legislatures, have decided that when there is not enough money left in a bank to pay everyone, others–secured creditors, employees, and so on–should be paid first. Moreover if you compare the class of creditors who would be paid first with the average class of swap counter parties you will find that the former are more local–employees, landlords, tax authorities–while the latter are far more likely to be offshore. But yet netting says forget all that, swap counter parties’ claims come first, before we even get to the bankruptcy priority list. No wonder ISDA members were worried some judges might not see things their way.

And yet in Japan where I did my research there was absolutely no public debate about the netting law. No NGO took up the issue; no bankruptcy law professors raised any concerns; the opposition did not even raise any questions about it. Perhaps it is not too late, in the context of Basel III, to simply begin to ask whether the benefits to market stability entailed in netting really do outweigh the very serious social costs. That would require at least beginning to recognize what those costs are however.

January 3, 2011
by Annelise Riles

Market Governance Is About People (And How They Think)

(This entry was originally posted on Jan. 3, 2011 on the Credit Slips website. I want to thank again Bob Lawless and Adam Levitin for inviting me to guest-blog daily on Credit Slips during the first week of January)

This week I want to raise with you a few thoughts about the way forward on financial regulation that have come out of interviewing and observing regulators in their interactions with market participants over ten years. My research has been mainly in Japan but involves some US components as well.

Before I get started though, the wider theme this week is going to be how vitally important it is to get out in the market and among regulators and talk to people rather than to just assume we know what a rational person in this or that role might think or do. I am continually amazed at how little we know about what regulators think and do; how little they know about what market participants think and do; how little market participants know about each other; how little the journalists know about any of this. And yet there is a growing body of very serious and solid empirical qualitative research out there based on long term observation and deep knowledge of particular markets that we could be relying on to answer these questions. Some examples: Doug Holmes on central bankers, Vincent Lepinay and Hiro Miyazaki on derivatives traders, and my work, and the work of Credit Slips’ own Anna Gelpern on lawyers. We need to start basing out regulatory policies on the empirical facts–on what we know about how real people in the markets think and act–not on what we imagine they might do.The keywords here are “people” and “thinking”.  Somehow we seem to have forgotten that markets and their regulation are all about real people, in real relationships that carry certain expectations about what doing the right thing might be–with regulators, with their competitors in the industry and their former classmates, with their customers, with their spouses and children, with their bosses and secretaries, and on and on–and certain sets of intellectual and mechanical tools for making sense of the realities they confront and making choices about what to do about them.

The disciplines of sociology and anthropology have a whole bunch of sophisticated tools for studying these things, and there is now a growing field out there called the anthropology of finance.  What anthropologists and sociologists know about market activity dovetails with behavioral economists’ insight that market behavior is not inherently rational or self-interested.  The next question is, what does shape market behavior? Anthropologists and sociologists study market culture, market institutions, and market thinking–everything from the kinds of technologies traders use to interpret the market to the relationships between regulators and market participants–to answer those questions. I discuss the insights of my own research and what anthropological approaches more generally have to offer in my book, Collateral Knowledge: Legal Reasoning in the Global Financial Markets, which will be out from the University of Chicago Press in March 2011.

If we really take in this simple fact about markets, all kinds of new opportunities to shape market activity come into view. So in the next few days I will throw out a few examples of how this perspective might contribute to current policy debates in the headlines. I look forward to your ideas and criticisms, and if any of you are attending the AALS meetings in San Francisco this week it would be great to talk in person too.

December 15, 2009
by Annelise Riles

Regulatory Compliance in the Global Financial Markets: What is it? How do we get it?

On December 10, Annelise Riles gave a presentation on the lessons of anthropological research for global financial regulation at the US Treasury Department. Here is an outline of some of the key points of her presentation.

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