Giuliano Castellano on Don’t Call It a Failure: Systemic Risk Governance for Complex Financial Systems (LSI)

"Don’t Call It a Failure: Systemic Risk Governance for Complex Financial Systems"
Giuliano Castellano
Law & Social Inquiry (First View, pp. 1-42)
Published online: March 2024

Abstract: The probability that an event will avalanche into an impairment of essential services constitutes a “systemic risk.” Owing to the inherent complexities of modern societies, the outbreak of a novel disease or the failure of a financial institution can rapidly escalate into an impact significantly larger than the initial event. Through the lens of complex system theory, this article draws a parallel between financial crises and disasters to contend that the regulatory framework for financial systemic risk is unequipped to address its fundamental dynamics. Epitomized by the market failure rationale, financial regulation is premised on a reductionist view that purports both systemic risk and law as external to the actions of market participants. Conversely, this article advances a twofold conceptual framework. First, it shows that systemic risk emerges from the same complex dynamics that generate the financial system. Second, it understands law as an agent of complexity, thus contributing to the emergence of finance and its inherent instability. Normatively, this conceptual framework reveals the limits of current regulatory approaches and constructs a holistic risk governance framework that is akin to the one adopted to govern disaster risks.

Hui Jing on Risk Allocation: The Contractual Practice of Chinese Charitable Trusts (Chinese J of Comp L)

"Risk Allocation: The Contractual Practice of Chinese Charitable Trusts"
Hui Jing
The Chinese Journal of Comparative Law
Published on 6 May 2022

Abstract: In 2016, the Charity Law of the People’s Republic of China (Charity Law) introduced the charitable trust into the Chinese domestic system, with a view to releasing the potential of trusts to promote charitable activities. Drawing upon the failure of public welfare trusts, the new charity law designates special regulators for charitable trusts and endows settlors with extensive powers in the utilization of the charitable trust device. However, the new law on charitable trusts is vague and incomplete in numerous respects. Because of the vagueness of the law, public supervision, and regulatory scrutiny, trust parties might perceive risks in the creation and management of charitable trusts, and such perceptions may in turn motivate trust parties to use contractual tools to allocate such risks among themselves. Through semi-structured qualitative interviews and the study of real-world charitable trust contracts, this article offers a comprehensive analysis of the role of contracts in the regulation of charitable trusts. It explores the main uses of contracts in the field of charitable trusts and the reasons leading to such uses; it also aims to better understand how the scope and function of the legislative framework for charitable trusts is shaped by contractual arrangements between trust parties.

Angela Zhang on Didi's Failure to Listen Forces Rewrite of Chinese Tech Listing Rules (Nikkei Asia/Opinion)

"Didi's failure to listen forces rewrite of Chinese tech listing rules"

*Angela Zhang

Nikkei Asia/Opinion

Published on 9 July 2021

Introduction: When Jean Liu, the president of Didi Chuxing, was asked during an interview with Bloomberg Television why she had given up the Goldman Sachs managing director's role to join the ride-hailing giant, her reply was that she saw Didi's potential to make a "huge impact."

     She was right, of course, with Didi rising up to become one of the most highly valued tech companies in China. But there is another side to the story behind Didi's rise -- the huge impact Didi has had on the Chinese society also comes with huge regulatory risk. ... Click here to view the full text. 

*Angela Huyue Zhang is director of the Center for Chinese Law at the University of Hong Kong. She is author of "Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation."

Buckley, Arner, Zetzsche & Selga on TechRisk (Singapore Journal of Legal Studies)

"TechRisk"
Buckley, Ross P., Arner, Douglas W., Zetzsche, Dirk A., Selga, Eriks K.
Singapore Journal of Legal Studies

March 2020, pp 35-62

Abstract: Fintech is now defined by a long-term, global process of digitisation of finance, increasingly combined with datafication and new technologies including cloud computing, blockchain, Big Data and artificial intelligence. Cybersecurity and technological risks are thus evolving into major threats to financial stability and national security. This trend has been magnified by the COVID-19 crisis which has heightened dependence on digital technologies and seen substantial parts of the population working from home through systems of questionable security. Additionally, the entry of BigTech firms brings two new issues. The first arises with new forms of potentially systemically important infrastructure. The second arises because data--like finance--benefits from economies of scope and scale and from network effects and--even more than finance--tends towards monopolistic or oligopolistic outcomes. This leads to potential systematic risk from new forms of "Too Big to Fail" and "Too Connected to Fail" phenomena. We suggest some basic principles about how to address this entire range of risks.

HKU's New LLM in Compliance & Regulation (Q&A with Prof Arner)

Prof D Arner, Prof Alexa Lam, Prof KC Chan, Dean Hor

The official ceremony launching HKU's new LLM in Compliance and Regulation was held on Monday, 14 March 2016, in the company of distinguished guests including the Secretary for Financial Services and the Treasury, Professor KC Chan. In the following interview, the Director of the LLM(CR), Professor Douglas Arner, explains the genesis, aims, scope and structure of the new programme, which begins in September 2016. 

     1. What inspired this new LLM? Does it exist anywhere else?  Over the past 20 years, in Hong Kong and around the world, financial regulation and compliance has been one of the faster growing areas. This programme is very much intended to meet a high and increasing demand among firms and market participants for a high quality degree in the area. The programme builds on existing Faculty strengths, in particular our world class Asian Institute of International Financial Law and LLM in Corporate and Financial Law, and related staff, research and teaching. In particular, the LLM in Corporate and Financial Law has seen a very large increase in applicants seeking a compliance related degree over the past 10 years. In the wake of the 2008 global financial crisis, we felt that now was the right time to create a new and focused programme.

     This is the first such programme in Hong Kong and the region. Other major universities elsewhere have also recently been launching or considering launching similar programmes for the same reasons as HKU. Given our existing strengths in the area, it is a very appropriate next stage for HKU's efforts.

Prof Arner

     2. How will this new LLM be different from the LLM in corporate and financial law and the other LLM offerings? The LLM in Compliance and Regulation is designed to focus on the needs of those working or intending to work in regulation and compliance areas. It is designed to provide them with an overall understanding of the major trends in the area as well as their expression in Hong Kong, Mainland China and the Asia Pacific region. It is thus a more focused programme than the LLM in Corporate and Financial Law, which is designed for those looking for greater understanding of key trends and issues in the transactional area. The LLM in Compliance and Regulation will focus not only on the content of international standards and local rules and regulations in the financial sector but also on developing professionalism and culture to support competitiveness not only in firms but also in the financial sector generally.

Dean Hor

     3. There are already many compliance training programmes offered in the marketplace. How will this one be distinctive and what is the target group?  This is the first university masters programme in the region. It is thus an academic programme rather than one focused on compliance training. Graduates will expect to have a broad understanding of the issues and trends as well as of the rule makers and the rules themselves. As a university, this is our advantage compared to a private sector training programme and one that fits with our mission of supporting both human capital and societal development. The programme will accept students with or without law degrees and will strongly consider related experience. We anticipate a balanced cohort of mid-career, senior and junior applicants from a wide variety of different academic and professional backgrounds.

    4. Based in a Faculty of Law setting, will this programme be highly academic and not sufficiently practical? What are the expected learning outcomes of the programme?  As a university, our advantage is building an integrated programme that builds wider understanding of key issues and trends, providing those completing the programme with the tools to address compliance and regulatory issues as they develop in future. The programme is built on a foundation course which will provide the necessary tools to understand the complex international and local regulatory systems. In addition, there are a wide range of specialised courses providing in-depth analysis of specific areas, such as anti-money laundering, securities regulation, listed companies compliance, privacy etc. The programme is topped with a series of capstone courses seeking to integrate understanding across specialised areas. Thus, those completing the programme should find themselves well placed for career advancement in the sector.

     At the same time, the teachers in the programme will be a mix of experienced academics as well as highly experienced professionals working in the area and seeking to share their knowledge and expertise.

     5. How is the programme related to the research programme of the HKU Faculty of Law?  Corporate and financial law and regulation forms one of the Faculty's core strategic research areas and areas of strength. We have been building in this area of almost 20 years, reflected in the fact that our Asian Institute of International Financial Law is now widely regarded as the leading corporate and financial law research centre in the Asia Pacific region. Likewise, our LLM in Corporate and Financial Law is highly competitive, with graduates working at all levels across the region and the world. Thus, the LLM in Compliance and Regulation very much builds on existing Faculty research strengths.

      For more information on applying to the programme, click here.