Statutory regulation vs private regulation

Jamie Whyte // 17 January 2018

The EU’s second Markets in Financial Instruments Directive (MiFID II) came into force earlier this month. According to the European Securities and Markets Authority (ESMA), its 1.7 million paragraphs will make financial markets more efficient, resilient and transparent.

But will they? Is MiFID II well-designed?

As with any major new regulation, the effects of MiFID II will not be observable for many years, if ever. Nevertheless, it’s a safe bet that MiFID II is poorly designed, for a simple reason: The bureaucrats who made it need not compete for customers. Cars, clothes, medical services and everything else tends to be shoddy when made by people who face no competition. Why should regulations be an exception?

Consider a stock exchange making its own rules, such as reporting requirements for companies listed on it and membership criteria for brokers.

If the rules are too lax, the exchange will be a perilous place for investors and it will lose business to exchanges with stricter rules. Equally, if the rules are too onerous, companies will not list on the exchange and it will lose business to competitors with less onerous rules. Competition makes stock exchanges offer rules that find a good trade-off between the interests of issuers and of investors. Those that don’t will go out of business.

Stock exchanges are not unusual in imposing rules on their customers. It is unavoidable for many private enterprises – banks, insurers, universities and tennis clubs, among others. And, as with stock exchanges, if they do a bad job of designing their rules, they will lose business to competitors who do better.

Contrast such private sector rule-making with governmental rule-making. If MiFID II is a poor set of regulations, ESMA will not go out of business. It is funded from taxation, not from willing customers. And, short of giving up trading in European securities, the firms it regulates cannot “vote with their feet”.

The bureaucrats of ESMA have no financial incentive to improve their regulatory product. Yet I am confident that they will do much work to revise it over the coming years. How else can they justify their ongoing employment? Regulators funded from taxation benefit not from the quality of their rules but from the quantity of them. Rules that require revision are even better than rules that don’t.

If you doubt it, ask yourself why the quantity of regulation grows every year along with the number of people employed in regulatory agencies. Why were the last regulations never quite enough? Why was the first MiFID, which came into force in 2004, 1.7 million paragraphs short of the proper total?

For governmental regulators, failure is success.

Recommended further reading:

Thatcher: The myth of deregulation‘ by Philip Booth
Does Britain need a financial regulator‘ by Terry Arthur and Philip Booth

This post appeared first on the IEA’s blog.

EPICENTER publications and contributions from our member think tanks are designed to promote the discussion of economic issues and the role of markets in solving economic and social problems. As with all EPICENTER publications, the views expressed here are those of the author and not EPICENTER or its member think tanks (which have no corporate view).


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