Judicial or Administrative Regulation of Finance?

Ten years after the financial crisis, the “legal design” of the financial regulation has evolved. From an outside perspective, the change is hard to see; the players are the same: independent administrative authority and judicial authority contribute together to preserving market stability. But, on closer observation, the macro-prudential and international prism, which is now promoted, changes the nature of the missions of public authority; and the rise of the repressive aspect restores the position of the judge. National models of “regulation” are abandoned in favour of regional models of “supervision”. In Europe, the movement is evident but incomplete: choices of assignment and the co-ordination of procedures between public authorities and judges, between local and regional bodies, are uncertain. They need to be redefined in order to allow for the fluid synergy of the authorities, a prerequisite for the effectiveness of the system. The stake is not only that of market stability; faced with the threat that is posed, for European businesses, by the strong arm of US supervision comprising the SEC and DOJ, the challenge is also to provide Europe with the means to influence and protect the values on which it is founded.