Arbitragem regulatória X one size fits all: a discricionariedade na regulação bancária internacional entre Cila e Caríbdis

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Prado, Viviane Muller
Salama, Bruno Meyerhof
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The peculiarities of banking – an activity that is normally seem as vital to the pursuit of development, as well as deeply influenced by the law – stimulated the rising of an international regime of regulation. This advent happened together with the works of international organizations, such as the Basel Committee for Banking Supervision (BCBS) and the Financial Stability Board (FSB), and due to the perception that we live in a world where the markets are interconnected, but remain nationally regulated. Apart from the discussion surrounding the merits and efficacy of the regulatory standards proposed by these organizations, in a context in which many countries try to implement them, interests to this work to investigate the elements that define the adequate degree of discretion to be offered in these standards formulation's regarding their implementation. The analysis of this problem suggests that there are two extremes to be avoided: the regulatory arbitrage and the one size fits all. On one hand, avoiding the regulatory arbitrage is a concern of the banking regulation´s literature that represents the will to refrain much variation between the regulatory regimes of different jurisdictions. This signalizes three vectors towards a smaller degree of discretion, represented by the desire for: greater coordination, fairer competition and avoidance of a regulatory race to the bottom between the countries. On the other hand, avoiding the one size fits all is a recurrent concern of the law and development’s literature that suggest the need to take into account the local idiosyncrasies in the formulation of regulatory policies. This signalizes other three vectors, this time aiming towards a greater degree of discretion. These are represented by concerns with: the efficacy of the adopted measures, the guaranty of some maneuver space that respect a country self-determination – in a manner that, at least, will decrease the eventual democratic deficit of international standards – and the practical viability of experimentalism. Aiming to analyze this problem and considering these extremes, a two-step strategy is proposed: the first step being the construction of a theoretical framework and the second step being the verification of a research hypothesis, according to which a specific case of banking regulation com demonstrate how these elements interact in the definition a the degree of discretion. So, in a first moment – after the necessary contextualization and methodological description - a theoretical framework is built utilizing the banking regulation literature and the tools provided by the discussions about the impact of the law in the development, because these discussions have dealt with the formulation of international standards and their implementation in different national environments for many years. Also in this first moment and as part of the construction of the theoretical foundations, an excursus is made to verify the hypothesis of the confidence in the banking system be a species of a common, as well as it´s possible consequences. From this framework, the segment of banking regulation regarding the deposit insurers is chose for a case study. This study – realized with input provided by bibliographical and empirical research – aims to demonstrate with which degree of discretion and how the formulation and implementation of international standards happened in this segment. At the end, it is analyzed how those vectors interact in the case of the deposit insures, as well as the suggestions possibly deduced from this verification for the others segments of banking regulation.

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