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Centuries have passed since ‘Investment Banking' was first introduced to the world's financial system. The fascination of making profit through newly created financial innovations, rather than basically depositing money in commercial banks in hope that the interest rate would not be reduced is truly a smokescreen. The first clear sign of another severe financial crisis since “The Great Depression” has been the instability of Bear Stearns: one of the five leading investment banks in the US followed by the collapse of Lehman Brothers which has led to the current global financial turmoil.
The question remains whether or not investment banks had accelerated the eruption of the crisis or were they contributed to the worsening of the crisis in any way? The dissertation will therefore examine specific issues of law which govern and regulate investment banks in the US and Thailand. The aim is to analyse points of law that have been overlooked and which have resulted in inadequate law enforcement over investment banks which have steered into the financial crisis as well as to discuss how financial regulators regulate financial institutions, particularly, investment banks.
Efforts to analyse the cause of the current global financial crisis have been well made and it is often said that the subprime or the lending which does not meet the standard of creditworthiness and often filled with high risk is the main factor that triggered the outbreak of the 2007 credit crunch. However, subprime lending is only an indication of the problem. The root of the problem is in fact related to securitisation. According to Prof. Graham Penn and Prof. Philip Rawlings, “Securitisation” is:
‘...a method of asset-backed financing whereby debt financing is raised against specific assets in a manner which seeks to insulate the investor in the debt securities from risks other than the risk of the assets financed not performing in the manner anticipated.'
With this, bad debts are bundled up together and are transformed to be derivatives, in other words, they are securitised. They then are sold to investors in the form of highly rated securities, particularly, Collateralized Debt Obligations (CDOs) and Collateralized Loan Obligations (CLOs). These poisonous derivatives would not have been widespread without the help of investment banks that issues and trades a vast variety of securities, believing they could control the risk but in reality, they are the one who unbolted the most dangerous explosive.
As for the Asian financial crisis in 1997, the crisis started in Thailand with the collapse of Thai Baht and its effect was rapidly spread across Southeast Asia and East Asia. In any case, it seems clear that the crisis was a consequence of the mistake in policy made by Thai government and the Bank of Thailand. However, in this respect, it is important to note that apart from an attempt to rescue the Baht not to sink into the strong current, the government also had to bail out a large number of staggered financial institutions which was truly a futile help. The situation was worsening when internal financial misconducts committed by many firms including a famous investment bank were exposed, leading to questions on corporate governance and the ability to maintain market confidence.
Part I of this dissertation considers the definition of an investment bank, its structure and its activities.
Part II examines main points of laws and regulations in the US which regulate investment banks and other financial institutions in general. Suggestions will be presented where appropriate. Specific focus will be paid to the SEC (US Securities and Exchange Commission): a financial regulator in the US. The intervention of Fed (Board of Governors of the Federal Reserve System) will be referred to where related. Moreover, causes of the global financial crisis will be discussed along with implications the crisis renders to the current rules and regulations and how to improve them.
Part III addresses the implications of two financial crimes concerning embezzlement in Thailand and analyse how they were related to the Asian Financial Crisis. An issue concerning conflicts of interest and corporate governance will also be briefly addressed.
It could be tentatively assume that investment banks could greatly affect the market condition and the economy in general on account of their large assets which are connected to many financial sectors including common people who are indirectly being led to the financial cycle through their debts. Financial crises are not an unexpected result when greed is prioritized without prudent measures to cover the risk. From the lengthy analysis of this dissertation, it would be reasonable to conclude that investment banks were one of the main factors which stimulated the eruption of the financial crisis. However, it should also be emphasised that the actual underlying cause is the regulatory system and the lenient enforcement of rules and regulations performed by the regulator.
A. Investment Banking: Definition and Background
An investment bank is a financial institution that raises capital, trades in securities and manages corporate mergers and acquisitions. According to Datamonitor, an investment bank ‘... helps companies and governments raise money by issuing and selling securities in the capital markets (both equity and debt), as well as providing advice on transactions such as merger and acquisitions.'
Historically, investment banking evolved gradually in the United States as a kind of financial services available in the early 1800s. With the outbreak of the Civil War in 1861, investment banking had made its presence as a significant financial activity and the growth of retail investment banking was accelerated by World War I as the US investment banks provided loans for all of the combatant nations. As a consequence, the US, for the first time, had become a creditor nation, made lucrative income from the war and acquired a leading role in international finance since then.
As for the European, investment banking bears directly on its evolution in the United States. Even though the United Kingdom is considered to be a prominent player in the financial market as London is the center of the European market, it will be seen at once that former long-established world leading investment banks were all based in the US, namely, Bear Stearns, Lehman Brothers, Merrill Lynch, Morgan Stanley and Goldman Sachs. They will be referred to in the next section.
In the United States, it is mandatory for an adviser to be registered as a licensed broker-dealer in order to be able to perform services in the area of investment banking under the US Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) regulations which will be discussed later in the related chapter.
Consider the following description discussed in the Government-Business Forum on Small Business Capital Formation in 2004:
‘... “finders” or “investment bankers” constitute a major problem in corporate finance transactions and in the area of mergers and acquisitions. The vast majority of these persons are unregistered broker-dealers under federal and state securities laws, and accordingly transactions in which they are involve jeopardize the issuer, its officers and directors, and other investors because of the use of the unregistered/non-exempt person ...'
It would be reasonable to deduce that the main reason for imposing such rule (i.e. broker-dealer registration) is to protect investors and maintain market confidence as well as prevent fraudulent acts due to the fact that unregistered investment bankers may associate with those who have adverse regulatory histories. This may well ruin the legality of transactions in which they are involved.
It should also be emphasised that in the midst of the Great Depression, abuses related to securities activities of banks and their affiliates had been declared as the key provocations of the banking collapse. Therefore, the US congress attempted to restore public confidence by separating investment banking from commercial banking through section 21 of the Banking Act of 1933 (popularly known as the Glass-Steagall Act). The implicit reasoning behind this decision was the concern towards the danger of conflicts of interest between the promotional interests of investment banking and the obligations to render disinterested investment advice to customers which was a feature in commercial banking. On the other hand, in Europe and in England, the two activities can be operated in a single firm.
As a consequence of the global financial turmoil in 2008, the era of investment banking has come to an end as five world leading investment banks have no longer operated in investment banking. The details are as follows:
Bear Stearns has collapsed in March 2008. Its assets were acquired by JP Morgan Chase. It would be fair to assume that the collapse of Bear Stearns has initially triggered the global credit crisis which erupted in 2008.
Lehman Brother filed for bankruptcy protection under chapter 11 of the United States Bankruptcy Code.
Merrill Lynch was acquired by Bank of America.
Morgan Stanley and Goldman Sachs have transformed themselves into traditional bank holding companies.
Despite the fact that the end of the Wall Street investment banks has shown that the business model of the investment banking no longer applicable and commercial banks have become a significant financial institution which is speculated to be an important drive towards a country's economy, the fundamental business of an investment bank, e.g. dealing or trading in securities, offering financial advice, can continue to operate normally without the need to be the business under the name of investment bank.
B. Organisational Structure of an Investment Bank
Typically, an investment bank has three separate operational divisions which are the Front Office, Middle Office and Back Office.
Main activities of the Front Office are as follows:
Provide advice for customers on matters related to raising funds in the capital markets and advise on mergers and acquisitions. These matters are mostly associated with the issuance of securities in order to meet specific investment goals.
Investment management: The professional management of securities for the benefit of customers which can be institutional investors, such as insurance companies, pension funds etc. or private investors which for the most part are high net-worth individuals.
Sale and trading: A process in which an investment bank attempts to trade securities at the most profitable price. This process involves a direct contact to institutional or high net-worth investors to propose the investment in customers' securities.
Financial structuring via derivatives: This is a further step of ‘Sale and Trading'. As derivatives are particularly complex products of securities, they need expertise to analyse numerical prospects. Despite its complication, derivatives offer dramatically larger margins and returns than underlying cash securities which may be lower or higher rated.
Research: A division which does the research on the markets and writes reports about the economic circumstances, including the estimation about other factors that could affect the price of the customers' securities. It would be fair to assume that the main purpose for doing such research is to help investors in deciding whether or not to trade in securities they are interested.
Provide advice about investment strategies. The advice will be in accordance with the investment policy of each investment bank.
There is no need for this division to meet the customer and its main activities are as follows:
Risk management: The main purpose of the risk management is to prevent detrimental effects to the company and the market condition in general. The risk management can be done by analysing the market in conjunction with credit risks incurred.
Financial management: This sub-division is responsible for the capital management of an investment bank, including the duty to monitor potential credit risks. The aforesaid responsibilities are primarily necessary due to the need to maintain the investment bank's satisfactory credit liquidity and to prevent unwanted problems related to liquidity and financial risks which could lead the company's to financial difficulties. It should also be noted that this section also manages a firm's capital to make profit.
Compliance: Apparently, this sub-division's responsibility is to ensure that the company properly complies with rules and regulations being laid down by the authority.
Back Office or operational section is responsible for checking data, documents, or evidences that are related to the operation of an investment bank in order to assure that the information is totally accurate. Other responsibilities are managing the firm's accounts and IT (Information Technology).
Mention should also be made of the term “Chinese Wall” which McVea describes as
‘... the doctrine used to ensure that un-published price-sensitive information is not passed between certain departments within one corporate entity.'
As an investment bank is divided into three separate divisions, potential conflicts of interest may arise between those parts. As a consequence of implementing the Markets in Financial Instruments Directive (MiFID) which came into effect on 1 November 2007, the Financial Services Authority (FSA) in the United Kingdom sets out rules on conflicts of interests in SYSC 10 in the ‘High Level Standards' section of the FSA Handbook which requires that a firm must take all reasonable steps to identify conflicts of interest between the firm itself and between clients (SYSC 10.1.3). Rules on ‘Chinese walls' are also laid down under the same section at SYSC 10.2. This dissertation will not examine the doctrine in detail. However, a case study as well as general information will be discussed in the following section.
II. Regulatory System in Relation to the Financial Crisis in the United States, Investment Banks and Financial Regulators
A. A Brief Summary of Striking Matters during the Global Financial Turmoil
The global financial crisis which emerged in the mid-2007 would have accounted for what level of severity in the global economy and for how long is a matter that is difficult to speculate even in hindsight. However, it is clear that a crucial impact of the crisis renders it necessary to reform rules and regulations governing banking and financial services industries.
The situation is particularly severe in the United States as the crisis was initially begun in the US and its impacts had rapidly and globally spread. Primarily, there were problems concerning subprime lending in the US housing sector and many believed that these problems would be easily solved as players in this sector was not so large that it could affect the whole picture of the financial system and the economy in general. This could be the correct anticipation if the problem had not expanded from the housing sector to financial institutions sector via many sophisticated and complex forms of derivatives and the structured finance of securitisation which caused the collapse of Bear Stearns, one of the leading investment banks in the US, forcing the Federal Reserve (Fed) to immediately decrease the interest rate and fully increase liquidity to the financial institutions sector. As a reflection of Bear Stearns' circumstance, US Treasury Secretary Henry Paulson proposed plans to increase Fed's power to intervene with investment firms, particularly, investment banks' activities which were considered to be risky and hazardous to the financial system in order to protect the stability of the financial system and markets. The plan would enable the Fed to make its uninvited entrance whenever it senses the possibility of systemic risk to prevent circumstances which could trigger another crisis. A potential downside of the aforesaid plan is that investment banks and hedge funds could be exposed to over-regulations and could be subject to rigid scrutiny which is totally not preferable for those firms. Nevertheless, the plan does not go smoothly as expected due to an objection by two economists, namely Allen Meltzer and John Taylor who claims that by making the Fed a “super-regulator” authorised to regulate and interfere with activities of large financial institutions which certainly includes investment banks as they are “too big too fail” could jeopardize Fed's independence. Yet, there are limits to how far the concept of “super regulator” can be taken. The most striking point is the criticism that Fed had not done anything to prevent the current financial crisis and that if it was given more power, it would be more difficult for the Fed to focus on one task and work best at it. Should the Fed be given such power is still in question. Whether or not the Fed will be the one seriously regulated investment banks is not a crucial matter as long as investment banks are properly regulated.
It could be assumed that the global financial crisis is a direct consequence of recklessness. To be precise, lenient regulatory system encouraged banks to lend in a manner considered “moral hazard” as they knew the Fed would come to their rescue one way or another and insurance was also provided. Investment banks start doing businesses other than their typical activities in order to gain more profits. To achieve the goal faster, they need to be the player which means they have become an investor themselves. Investment banks organise various kinds of assets and securitised them. Rating agencies rate the assets based on information from many sources including investment banks. The question is - do rating agencies somehow associate with investment banks in rating assets higher than its true quality? If the answer is yes, then an issue of conflicts of interest will certainly arise. Generally, rating agencies should be an independent institution so that the rating will not distort the picture of assets and markets. If not, a severe problem could inevitably happen when those assets are found to be low in quality and that obligors of the underlying debts cannot pay back the money. A direct effect is the domino collapse of many financial institutions that we have witnessed and a profound crack in the financial and regulatory system.
B. Causes of the 2008 Global Financial Crisis
According to Raghuram Govind Rajan, an American Economist, who was a former Chief Economist of the International Monetary Fund, suggested that the current financial crisis was composed of two main problems which were excessive credit facilities and excessive leverage which created a situation of severe illiquidity, the collapse of financial institutions, and financial markets fell into panicking conditions.
Excessive credit flowed into the US due to the fact that the financial market in the US is the most advanced market in respect of financial innovations which could render preferred high profits for foreign investors. So long as the housing sector in the US is still in a boom, the securitisation is still a risk that worth taking.
As for the excessive leverage, financial institutions were highly leveraged for the purpose of trading in derivatives. They were also leniently providing loans without performing appropriate investigation about the borrower's creditworthiness which greatly affected derivatives that were issued on the grounds that the underlying debts would be perfectly performed. When the housing bubble exploded, the subprime borrowers defaulted, the value of derivatives were inevitably decreased, causing troubles for financial institutions in finding funds to pay back the leverage. Ultimately, banks stopped lending to one another causing “Credit Crunch” condition. It should be noted that large investment banks in the US (currently, five leading investment banks in the US were all transformed one way or another as previously mentioned in Part I) were highly leveraged while not being strictly regulated like other financial institutions. This may be one main reason behind the collapse of investment banks.
C. Who's to Blame?
Consider the following descriptions from different sources:
In Joseph Stiglitz's (the recipient of the 2001 Nobel Prize in Economics) article ‘The Fruit of Hypocrisy', he asserts that there are flaws in many aspects of the US financial system, particularly; there were no reactions or attempts to manage risks or appropriately allocate capital. The initial point of the crisis as well as the collapse of Bear Stearns were attributed to financial innovations which are protected from being thoroughly regulated by those profited financial institutions in fear that regulations would suppress the growth of such innovations and banks and firms would gain less. Therefore, the crisis is ‘the fruit of a pattern of dishonesty on the part of financial institutions, and incompetence on the part of policymakers.' In brief, Stiglitz has concluded that weak and inefficient regulatory system itself and human greed are the roots of the crisis.
As reference to a Wall Street Journal article ‘Did Authorities Miss a Chance to Ease Crunch?' and Gary Aguirre's memorandum to the US Senate Committee on Banking, both reports probed into the US Securities and Exchange Commission's (the SEC) inaction towards the investigation on Bear Stearns' misevaluation of subprime debts which could have lead to a lawsuit against Bear Stearns and could have averted the subprime crisis. These two reports triggered the inspector general to conduct the investigation and find reasons why the case was suddenly dropped. It is said that the main reason was because there was an “ongoing personal relationship” between a senior SEC official and a Bear Stearns' lawyer who was a former colleague at the SEC. Even though obvious evidences were not presented, the matter was still bothering on whether or not there was conflicts of interest. The general inspector also found that the SEC were aware of the possibility that Bear Stearns would collapse but due to the SEC deficiencies in enforcing firms to comply with voluntary accounting rules, the standard had not been met and a severe consequence ensued. Nevertheless, the SEC chairman critisised that in fact, the blame should be put on the regulatory system as it was more than apparent that the voluntary regulation did not effective. To conclude, this description shows that the SEC is clearly an inefficient regulator and is the main reason behind the collapse of Bear Stearns which triggered the crisis. Apparently, this is consistent with Stiglitz's opinion in part of the incompetence of both the policymakers and the regulations.
Allan Meltzer claimed that there were no proper actions performed by the Federal Reserve (the Fed) to prevent the current financial turmoil. He also addressed that Fed's actions had encouraged moral hazard of banks and firms and promoted incentives to take ventures. It could be deduced that as a reflection of the Fed's previous actions which always supported financial institutions and came into rescue when they were in trouble, it would be fair to conclude that this is the root of the crisis. In fact, this opinion is back to the basic thought of reckless acts by financial institutions which caused troubles for every sector concerned.
Many investment banks have been critically affected by the financial turmoil, causing them to change their capacities into another form of financial institutions. This is undoubtedly a result of undue dependence on financial innovations without proper risk management. The fall in profit margins, higher capital needs due to recession surely and greatly affected businesses that are related much to capital markets, particularly investment banks. Furthermore, the turmoil also made it apparent that investment banks' vulnerabilities were crucial. They depended much on the short-term repurchase market for secured funding, making investment banks susceptible to even the slightest changes in the markets. In addition, investment banks are big in activities and roles in the markets. Their collapse had an effect on the financial condition and market confidence as a whole. Therefore, it would be reasonable to assume that investment banks are definitely related to the crisis. They were at and behind the staring point of the crisis and the situation would not have been this severe if they were not involved in derivatives and securitisations.
In conclusion, it cannot be exactly concluded on who is the one to blame for the financial crisis as many of the aforesaid players were more or less contributed to the crisis. However, it is clear that weak regulatory system in regulating banks and firms including investment banks created moral hazard in operating businesses. Highly leveraged firms and inadequate capital reserve and assets made them susceptible to the change in markets' condition and when the housing bubble reached its limit, derivatives which depended much on bad underlying debts became a problem for firms that heavily invested in them, of course, those firms includes investment banks which are the main investors who heavily damaged as well. Financial regulator, particularly, the SEC was badly criticised and was clearly the underlying reasons that contributed to the outbreak of the crisis as illustrated in the Bear Stearns' case. Therefore, the regulatory system, banks and firms, particularly investment banks' moral hazard, the SEC, the Fed, and financial innovations could be described altogether as the main factor that caused the crisis.
D. Implications of the Financial Crisis to Financial Regulations
The global financial crisis is a clear sign that financial regulations should be overhauled. The question is - what is the optimal solution for the current regulatory system?
Generally, the regulatory system should consist of rules and regulations that reflect the need of players in the financial markets without having to loosen the main policy of supervision. Rules and regulations should be easily and swiftly issued to serve the need of the financial markets in case there is a change in circumstances and those rules should be flexible enough to reduce the possibility of over-regulation.
Over-regulation is not preferable as it could create an opposite effect from what the authority or the regulator has expected. To be precise, financial institutions may find it uncomfortable from being strictly overseen. As a consequence, they will have incentives to avoid rules and regulations. Therefore, adjusting financial regulatory system to be more reasonable so that financial institution would have incentives to comply with the rules could be a productive solution.
As Raghuram Rajan has pointed out that occasionally financial crisis cannot be avoided and that it could affect large financial institutions which are “too big to fail”. The best solution is probably to concentrate on adjusting the financial structure to be more robust in order that the damage incurred as a consequence of the crisis could be alleviated by funds from the financial sector itself not from taxpayers' money.
Moreover, collaborations between the authority in charge of the financial sector and the financial regulator are important. They should work together and share necessary information to each other in order to reach the optimal result in regulating as well as solving problems due to the financial crisis.
E. The Turner Review
The Turner Review (hereinafter, the Review) is a wide-ranging regulatory review in response to the global financial crisis. The aim is to identify underlying causes of the crisis and whether or not deficiencies in financial regulations contributed to the severity of the crisis. The significance of this review is that it is a comprehensive review that deeply analyses the origins of the global banking crisis and provides suggestions for reforming regulations within the UK and also at the international level.
This dissertation will not discuss the review in detail. Only striking points that are related to the topic of this dissertation will be presented and analysed.
The Review put emphasis on how securitised credit which is a type of financial innovation achieved the opposite effect despite the assumption that financial innovations are beneficial considered by definition. Rapid and massive growth in the use of securitised credit will not create satisfactory results for the banking system if capital requirements are inadequate compared to the size of activities performed by financial institutions. Therefore, it is suggested that if capital adequacy requirements are well practised, the risk of failing into the crisis stream will be alleviated. This is true in respect of banks and some types of financial firms in which the nature of their activities are subject to risks originated from the mismatch between their assets and liabilities and these matters will be particularly crucial at the time of the crisis. Good compliance with the capital adequacy requirements can help mitigate those risks and help prevent the fall of the banking system. Nonetheless, it is argued that the minimum capital requirements are of little significance in practice if the anti-avoidance provisions are not included. In other words, the anti-avoidance provisions will ensure that assets required to the specified minimum value are actually contributed. This can be considered in conjunction with a suggestion from the Review that the capital or assets contributed should be in high quality. However, it is doubtful whether the “high quality” assets are what type of assets and how or what criteria can be used to evaluate their value. This matter is open to a concern over possible mischievous collaborations to misevaluate the true value of those assets; nevertheless, appropriate regulations can help solve the problem.
The Review also addresses a concern about an issue of over-regulation. It is emphasized that if the regulation is over-tightened, there is a possibility that activities might move to non-regulated sectors e.g. hedge funds. Therefore, it is particularly important to regulate activities which have features like a typical bank's activities but conducted by other financial institutions. This implies that it is necessary for the regulator or authorities to have the power to impose restrictions and lay down rules for a wider range of financial institutions to comply with on condition that those activities could threaten the stability of financial system and/or there is a potential that they will become systematically significant.
F. The US Securities and Exchange Commission (SEC)
The US Securities and Exchange Commission (SEC) is the US financial regulator whose responsibilities are to ‘protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.'
The financial turmoil has triggered awareness on the importance of appropriate regulations that many of them may be outdated and needed to be reformed as well as institutional collaborations.
During the financial turmoil, the SEC has acted for the benefit of investors and the markets along with the Department of Treasury, the Federal Reserve (Fed) and other US regulators. There are attempts to stabilise the market and take actions against market manipulation, strengthen regulations over credit rating agencies as well as liquidity management practices and capital adequacy requirements. The SEC also enhances the level of disclosure rules in order to improve market's transparency. Another important matter that should be paid attention to is the Memorandum of Understanding between the SEC and the Federal Reserve which promotes the cooperation between the two major authorities in sharing information for the purpose of achieving optimal results in performing their responsibilities. An important implication of this cooperation is that activities which are historically overseen by the SEC will also be under the supervision of the Federal Reserve which is a good sign of stronger regulations towards financial institutions and financial markets.
Apart from the aforesaid actions, investment banks are particularly being overseen and placed new liquidity requirements which are considered high but will definitely strengthen the stability of investment banks. Also, there is a special programme for major investment banks which is an oversight of risk management practices as the importance of Bear Stearns has been aware and addressed. Another point that is worth noting is that Public Investment Corporation is being established in response to the Department of Treasury under the US president - Barack Obama's policy to rehabilitate and clear bad debts from the US financial system. The corporation will be funded with a maximum of capital not more than $ 100,000M to be an initial fund to support the buying of assets and bad loans from banks and other financial institutions that have stopped operating businesses. It is a matter of time to evaluate whether or not this plan is efficient enough to solve the problem in the baking sector. Transparency and good governance in the corporation are matters that should not be overlooked.
From lengthy issues being discussed, it can be concluded that there are problems in the US financial and banking system that encouraged the emergence of the global financial crisis. Investment banks are not actually the only one to blame in causing the crisis. The regulatory rules, the regulators, the authorities as well as other sectors and institutions that are related to the financial sector were more or less contributed to the matter. Nevertheless, attempts to identify the problem and find the most appropriate solutions have been well underway. It should always be bear in mind that regulations should serve society and the system and should be improved to the change and development of the financial world.
A. Investment Banking in Thailand
According to Datamonitor's industry analysis about the Global Investment Banking & Brokerage, the market segmentation of the investment banking & brokerage sector, the United States accounts for 46.1% of the sector's total value, while a percentage of 33.4% is shared by Europe. In comparison, the Asia-Pacific region covers only 18.10% of the global total value.
As the aforesaid paragraph suggest, it would appear that the Asia-Pacific region is not a significant player in this industry. Particularly, in Thailand, the investment banking industry is not being sufficiently promoted nor interested. This is due to the fact that agricultural export and tourism are Thailand's main activities which depend on the growth of economy and the strength of commercial banks in providing loans for individuals or small to medium business enterprises rather than investment banking.
Essentially, as a result of the collapse of the Bangkok Bank of Commerce (BBC) (it would be reasonable to acknowledge the BBC as a pioneer in seriously conducting businesses as an investment bank in Thailand) in 1996, foreign and local investors, customers of many commercial banks, and even the Thai people in general had no longer confident in the stability of Thai banking system nor the Thailand's economy. This is undoubtedly one of the main underlying causes that led to the Asian Financial Crisis in 1997. The same can be said of Ekthanakit Finance Public Company Limited's case (also known as ‘Finance One PLC' or ‘Fin-1'). Fin-1 conducted its businesses in hope to turn into an investment bank. This company was one of the fifty-six companies that were forced to wind up by the authority of the Bank of Thailand during the 1997 monumental financial crisis and was charged with a severe offence of embezzlement. Cases concerning the two notorious companies will be discussed later in the following sub-chapters.
Therefore, investment banking is considered to be a difficult and risky business that must be closely observed in Thailand. At present, investment banking is only a sub-division in many commercial banks which offer the service mainly to large corporations or high net-worth individuals.
However, it should be noted that Thailand has no specific laws to regulate investment banks. There are attempts to propose rules to regulate investment banks in Thailand. Unfortunately, those proposals did not gain enough interest from the public due to under publicity and were totally ignored.
B. Embezzlement and the Asian Financial Crisis
It is settled that the Asian Financial Crisis in 1997 was a result of the burst of the bubble state in Thailand's real estate sector. This was attributed to the over-speculation in the aforesaid sector and even in the Thailand's stock market. As a consequence, foreign investors were panicked and Thailand's creditworthiness was greatly in doubt. This led to a dramatic capital outflow followed by a mismatch of capital flow. The situation was worsened by the attack of foreign hedge funds to the Baht in conjunction with the short selling of Thai Baht and Malaysian Ringgit made by a notorious financial wizard: George Soros. Attempts by the authorities to defend the currency exchange rate only bled the country's foreign reserve and, eventually, Thailand had to encounter a high possibility of default and was left with no other choices but to let the Baht float on 2nd July 1997, withdrew support for distressed non-bank financial organisations and sought support from the International Monetary Fund (IMF). Later, fifty-six financial institutions were forced to enter a process of winding up; including Finance One PLC, a leading finance company in Thailand at that time which caused a domino effect to the collapse of other banks and financial institutions as a reflection of Thailand's financial system discredit.
It is essential to point out that sophisticated financial innovations like derivatives are the abyss of the crisis. During the 1990s, Thailand was the recipient of a numerous number of inflows of international capital as a result of the liberalization in Thailand's banking and non-banking sectors. Those capital inflows were the main capital sources for local business enterprises including banks and financial firms. The act of recklessly investing on derivatives plus personal greed of directors of investment banks and other financial institutions had led to one of the most disgraceful scandal in the Thai banking and financial history and was one of the main factors which triggered the outbreak of the crisis.
Nevertheless, those financial firms were not the only one to blame. Thailand's financial regulations which were considered as weak prudential regulations and lack sufficient supervision of financial institutions were also indirectly encouraged the misconduct. The dissertation will focus on the case of financial crimes committed by Bangkok Bank of Commerce (BBC) and Finance One PLC (Fin-1) and analyse its relation with Thailand's financial regulator and the financial crisis in 1997.
Bangkok Bank of Commerce (BBC)
Rakesh Saxenaand Krirk-kiat Jalichandra
Summary of facts
It would be fair to assume that the crisis in the Bangkok Bank of Commerce (hereinafter, the BBC) was a primary ignition of the burst of the economic bubble which then steered into one of the most disastrous financial crisis in Thailand's history by the work of Rakesh Saxena.
The BBC had continuously encountered with financial loss since 1982 on account of a large number of non-performing loans. The Bank of Thailand investigated the financial condition of the BBC and ordered it to immediately increase its assets. That was when Rakesh played a prominent role in the BBC.
Rakesh Saxena is an Indian financier who engaged in many financial fraudulent acts. It is not apparent when Rakesh joined the BBC but it appeared that he was highly confided by Krirk-kiat (the BBC's senior vice-president at that time) and was later promoted to be Krirk-kiat's personal advisor. He brought the BBC into ‘Investment Banking' sector in 1994 with a confirmation to revive the BBC's by vastly providing loans for the purpose of Leveraged Buyout (LBO) for many corporations of the amount exceeding 13,000M Baht. Most of the loans were for politicians.
However, this strategy was actually the tactic used to transfer the BBC's money into Rakesh's personal accounts. During 1994-1996, Krirk-kiat was the one who approved a one billion Baht loan to For Fifth Orange Co Ltd. Even though the collateral was about ten times lower than the evaluated price in value estimated by the bank (the land was estimated to have a price only at 832 million Baht.) The collateral that was not commensurate with the amount of the loan provided was the popular tactic employed to embezzle and transfer money.
From the report of Dr. Surakiat Sathirathai as part of the Bank of Thailand's investigatory report, it is claimed that‘... the BBC's was the only capital source for corporate borrowers to succeed in the targeted leveraged buyouts. Many borrowers were involved with politicians. The trading price of registered shares, which was being in the process of registration in order to transfer title, was significantly lower than the price of tender offer. Mortgaged properties were highly evaluated despite the actual price was relatively low. The main purpose of the buyout was not to operate those companies being bought but for the purpose of share speculation. Moreover, there were also credit facilities provided by the BBC for the second time and other encumbrances created in order to change the group of borrowers into a new group by way of novation. As a result, the BBC had to responsible for all expenses incurred, a premium charged was cut from the facilities provided. Therefore, technically, the BBC did not gain any profit from providing loans ... .' (Translated)
Office of the Attorney General had played an important role in tracking the money-transfer trail. A special team had investigated cases concerning Rakesh and Krirk-kiat. Of all cases being investigated, there are two cases which have apparent evidences to support that Rakesh transferred money from the BBC to his personal accounts.
The first case is a case related to City Trading Corporation Co., Ltd. which was a company registered in Cayman Islands. Rakesh used City Trading as his nominee to borrow money from the BBC, using over-evaluated collateral, and then used the money to buy companies. Technically, those companies would belong to Rakesh and finally, Rakesh would transfer the money to his close relatives' accounts. This conduct is unquestionable, an embezzlement.
An even worse case is a case concerning Penelope Finance and Investment Co., Ltd. or ‘Penelope' which was registered in Switzerland by four subscribers including Rakesh and Krirk-kiat. The main underlying purpose of this company was to be their “money siphon”. This time, Rakesh exercised a more sophisticated method to embezzle BBC's money by transferring BBC's foreign investment units to Penelope, claimed that he would swap those investment units with an equal amount of Latin-American Bonds. However, when Penelope received the unit, there were no evidences that Penelope assigned the bonds back to BBC, instead, the bonds were sold and the money received was surprisingly credited to Rakesh's accounts. It is believed that the ‘siphon' method used in Penelope is ‘Asset Swaps' which is a technique used to conceal the BBC's loss. In addition, according to the Bank of Thailand investigation, Rakesh used to use BBC's money to invest in derivatives, particularly, leveraged derivatives with Bankers Trust International PLC London. When there was a loss, Rakesh would do the Asset Swaps with Republic of Argentina FRB or Interfin Credit Aktien or Venezuela DCB. With this, the loss would not appear in BBC's balance sheets as what were going to be recorded would be new assets being swapped. This is the reason why the BBC's loss had never been discovered by the Bank of Thailand annual inspection.
According to an investigation by Bangkok Commercial Asset Management Co., Ltd., which was a company founded in accordance with the Financial Reformation Plan of the Ministry of Finance with the main purpose to manage the BBC's assets after the winding up, it is found that BBC was in debt as a result of Rakesh and Krirk-kiat's embezzlement approximately at the amount of 60,000M Baht. About 26,000M Baht was the debt created by Rakesh's siphon network alone.
In March 1996, seventeen cases were raised against Rakesh and Krirk-kiat by the attorney general accusing the offences of embezzlement and fraud. Rakesh immediately fled to Canada, left Krirk-kiat to contend the case alone. Currently, the Supreme Court of Canada has rendered a decision to extradite Rakesh Saxena as a prisoner. Rakesh appealed to the Canadian Minister of Justice to revise the decision and the appeal is still pending.
As for Krirk-kiat, on 11th March 2009, Krirk-kiat was found guilty by the Criminal Court on the charge of embezzlement under sections 353 and 354 of the Criminal Code and the offence of acting in violation of the Securities and Exchange Act B.E. 2535 (A.D. 1992) sections 307, 311, and 313 by dishonestly approved loans. Including the aforesaid case, the rulings have currently been handed down for eight embezzlement cases concerning BBC. The rulings led to 130-year imprisonment, a pecuniary fine of 7,500,124,138.02 Baht, another pecuniary fine in US dollars of 472,122,946.02, and to pay damages in order to compensate BBC at the amount of 2,334,652,551.04 Baht.
Criticisms of the BBC Case to Thai Financial Law and the Connection to the Asian Financial Crisis
(a) The Bank of Thailand (BOT) is the only financial regulator which regulates all financial institutions by virtue of the authority given by the Commercial Bank Act B.E. 2505 (A.D. 1962), the Finance, Securities, and Credit Foncier Business Act B.E. 2522 (A.D. 1979) and other decrees. Being the only authority renders many difficulties regarding the effectiveness in enforcing rules and regulations laid down. Small firms have been neglected as well as middle size commercial bank like BBC. It is not possible to fully cover efficient supervision over those financial institutions. As a result, corrupted acts frequently occur as there are no specific measures to penalise the misconduct and the BOT does not seriously give notices or warnings to those firms due to excessive work.
(b) Some governmental officers and even officers within the BOT were corrupted. The most obvious example from the BBC case is a governmental officer dishonestly evaluated the value of the collateral which resulted in an approval of loans which were not fully covered by the collateral in case there was a default.
(c) There was no attempt to investigate unusual money transfers, particularly, the transfer to foreign firms as done in the BBC case which Rakesh transferred a large amount of embezzled money to his firms abroad without any problem by making it seemed to be credit facilities provided. In other words, the BOT failed to examine whether or not there were conflicts of interest which were against rules under the Commercial Bank Act between financial institutions (namely, the rule that a financial institution or an individual cannot hold shares of other financial institution exceeding 5% of the sold shares (section 5 Bis ) and the general rule that closely connected persons always cause conflicts of interest).
(d) The corollary of the aforesaid point is that the root of the conflicts of interest issue is a problem concerning the company registration system stated in the Company Law. There are no sufficient measures to verify the real affairs of a company. In fact, it is almost impossible to investigate whether or not a company is merely a nominee of the other or a company actually does businesses as stated in the memorandum of association. Therefore, it would be reasonable to claim that it is difficult to clarify the real businesses of a company unless checking with the registrar or the memorandum itself. Consequently, when Rakesh and Krirk-kiat transferred BBC's money to their companies, it was difficult to investigate their connection with those companies and it was even harder to ascertain real activities conducted. It was later revealed that their companies recklessly spent BBC's money investing in derivatives which was absolutely contradicted to the purpose stated in the memorandum. It should also be noted that serious loss was incurred on account of investing in derivatives. This was a part that caused capital outflows and eventually resulted in a serious deficit (due to great loss of capital and market confidence) which triggered the financial crisis.
(e) There was a problem relating to indefiniteness of the BOT's policy to tackle with financial related problems of commercial banks and other financial institutions. Despite the fact that BBC's financial problem had been discovered since 1990 ( Note: at that time, the misconduct had not yet been found), the BOT did not place certain orders or measures to solve the problem. When the problem was severe, it was way too late to fix it. The only option left was to wind up the BBC which greatly affected public confidence.
(f) Rakesh and his team were notoriously known as sophisticated financiers, particularly, in the area of investment banking. Many complex financial innovations were introduced. However, instead of being beneficial to financial markets, the BOT and the Securities and Exchange Commission of Thailand were struggling due to lack of sufficient knowledge on how those financial innovations worked. Unreadiness of rules and regulations also encouraged misconducts like what happened in the BBC which considerable loss was concealed by derivatives investment. A firm's debts had become public debts and later erupted as bad debts which deteriorated the country's financial status as a whole.
Ekthanakit Finance Public Company Limited
( ‘Finance One PLC' or ‘Fin-1'): Pin Chakkaphak
Summary of facts
One year following the collapse of BBC, finance and securities companies had to encounter a monumental crisis in 1997. The financial System was greatly affected owing to depositors' lack of confidence that their money would be secured. The situation reached its crucial point when the government decided to use the floating exchange rate which eventually led to the collapse of Thai Baht. On 8th December 1997, by the authority of the minister of finance, the Financial Sector Restructuring Authority (FRA) decided to purge finance companies by declaring the close down of fifty-six finance and securities companies all at once, including Fin-1. Furthermore, the BOT's governor at that time determined to tackle with white-collar criminals who were related to those companies. Certainly, Pin Chakkaphak was one of the targets.
Pin Chakkaphak, also known as ‘the takeover king', started Fin-1 after he had resigned from Chase Manhattan Bank in Hong Kong which he was the second vice president to succeed his family's Yip In Soi Finance Company in Bangkok. Pin had changed the company's name into Finance One PLC and this was the starting point of the Fin-1 Empire.
Pin started building Fin-1's empire by exercising ‘takeover' strategy. Despite Pin's aggressive way of acquiring companies, he was widely praised by both local and foreign reporters for his intelligence and visions in operating business. The use of new financial innovations, which had never been introduced in Thailand, caused commotions to Thailand's Stock Market's executives due to lack of information and regulations to supervise those financial innovations. The success of the Fin-1 group in a blink of an eye had made Pin become another prominent financial wizard in Thailand.
Pin could efficiently produce the value added to the undertaking that was taken over. This made Fin-1 group's share price had significantly increased and soared far beyond its true value. In this respect it is important to note that there was a certain investment structure in Fin-1 group which was cross-shareholdings. The main advantage of this structure is that the growth of businesses will be amazingly fast but certain disadvantages seemed to be overlooked. This issue will be discussed later.
The next step of Fin-1 was to be an investment bank. To achieve this, Pin needed a joint venture or cross-holding with a bank. Nevertheless, despite a large amount of money offered, the proposal to join was rebuffed by the Bank of Asia. This was the first omen of the collapse of Fin-1 Empire.
In 1994, Pin decided to increase Fin-1's share capital by issuing shares under a four-sophisticated-step for the purpose of supporting the following two to three-year investment plan. However, there was a rumour that the Securities and Exchange Commission of Thailand (SEC) planned to charge Pin with a severe offence of share manipulation which was quite a credible rumour as there was an initial rumour about Pin intended to spread inside information for a particular group. After that, there was a confusing fluctuation of Fin-1's share price in the stock market; nonetheless, shortly after the commotion, the share price rallied again as a result of the news regarding new joint venture project between Dynasty Ceramic PLC and Fin-1 which the SEC had to stay silent as there was no evidence whether or not there was a spread of inside information which would make the dealing an insider trading.
In the second half of 1996, Thai economy began to stumble. Panicking investors' action to pull money out of the stock market greatly affected Fin-1. Unfortunately, at that time, Thailand's financial liquidity was in a critical state, forced the government to wind up other finance companies to the total number of fifty-six. The foreign reserve was rapidly drained due to an attempt to fight the attack of exchange rate by hedge funds. The Financial Institution for Development Fund (FIDF) helped rehabilitate companies that were wound up by providing loans, buying their shares, buying distressed debts, and underwriting other financial responsibilities, including deposit insurance. Consequently, the fund incurred great debts about one trillion baht which become public debts and the fund also failed to rescue Fin-1. Ultimately, Fin-1 was forced to wind up and all that left was distressed assets of more than 100,000M baht which tarnished the image of Thailand's credibility of the financial system.
From an investigation by the Bank of Thailand, it was found that between November 1996 and February 1997, Fin-1 provided financial support for two subsidiaries using the method of promissory note discounting and being the sub-buyer of the bill of exchange for thirteen times. Generally, if a company provides credit facilities or loans or other types of financial support to another company, there must be commensurate collateral or security provided and the borrower's creditworthiness must be taken into account. According to the information from the Department of Business Development, Ministry of Commerce, the two subsidiaries had net loss of almost 2,000M Baht, yet Fin-1 still provided loans for them without any collateral. The Bank of Thailand alleged that this conduct was in a manner that was detrimental to the public company that did financial related business and was within the scope of an offence of embezzlement. Consequently, Pin Chakkaphak and the other two executives were charged with embezzlement and the violation of section 22 Tre and section 75 Tre and Septum of the Finance, Securities, and Credit Foncier Business Act (a person who holds the authority in a public company commits improper act that is detrimental to the company or the public in general). Pin left Thailand for London, fought the extradition request from Thailand. On 27 July 2001, England and Wales Court of Appeal rejected the extradition request, and on 14 August 2001, England prosecuting attorney informed Thailand's authority that in the extradition case, it was not possible to appeal to the High Court of Justice as there was no de jure issue arising that would allow the appeal to the High Court. Therefore, the case ended there. At present, Pin works as an investment advisor in England and Europe. As for the other two executives, the Criminal Court found guilty and sentenced the two to 13 and 10-year imprisonment and to pay damages of 1,500M Baht.
Criticisms and implications of the Fin-1 Case to Thai Financial Law and the Connection to the Asian Financial Crisis
(a) It was for the first time that Thai authorities seriously tried to file lawsuits against white-collar criminals and Pin Chakkaphak was a fine opportunity to dissuade the public. Following the aforesaid issue, a certain question was raised: Was Pin a scapegoat to blame for the Asian Financial Crisis? The Answer was ‘No' from Thai prosecutors as they saw Pin as the real culprit who ‘amassed fortunes by riding the wave of foreign funds that began flooding Asia in the late 1980s'. Whether or not Pin is actually guilty of the charge is a question that will always be mysteriously remained.
(b) Generally, the cross-holding structure makes a company's assets rapidly growth in a short period of time but it is not simple to segregate assets of each company. Moreover, the growth of the company does not imply the stability of that company at all. The cross-holding strategy is beneficial when the capital market is in bloom. However, the opposite result is common when the economy is stagnant. Therefore, it would be reasonable to limit large companies not to do the cross-shareholding among one another to a certain percentage in order to prevent the domino effect when their circumstances could affect the economy.
(c) Compared with the US's decision not to bail out Lehman Brothers during the first phrase of the 2008 financial crisis, it is doubtful why Thailand spent a dramatically large amount of money which was obviously the taxpayers' money on Fin-1 in hope to rescue it but ultimately failed. It has been suggested that the US's decision was based on the benefit of the majority. Was Thailand's decision based on the benefit of financiers and politicians who could not bear to fail? Was that suggested the so-called Cronyism? The answer can be varied based on each person's discretion.
(d) A problem of the efficacy of rules and regulations remain. The investigatory system on a company's financial status was weak and did not be properly performed. It should be easy to spot a credit facility which is not provided with commensurate securities or collaterals or a loan provided for a firm which can be certainly identified whether or not they will default. Yet, Fin-1 was still be able to provide such loans, making it suspicious whether there were governmental officers involved, particularly in the BOT. A crucial question that must be answered is a question related to the transparency of the regulatory system and whether or not the authority could be bought by cheap money.
(e) Pin Chakkaphak also used sophisticated financial innovations to earn a large amount of money for the purpose of leveraged buyouts and takeovers. This was troublesome for the Securities and Exchange Commission to catch up with even at present. The main reason is that it is time consuming doing research and issuing rules and regulations which may not be up-to-date for enforcing, created an opportunity for an astute financier to easily take advantages from being not regulated. There are attempts to reform the markets' regulations and the result is the Securities and Exchange Act has finally been reformed and re-enacted. The most remarkable change is the emphasis on the fiduciary duty of directors of listed companies. A director must perform his duties with reasonable care and more importantly on the course of good faith. A highlight is a chapter concerning the safe harbour for directors or other at the same positions who have no conflicts of interest and performed their duties bearing in mind the interest of the firm as their priorities. Apart from the aforesaid highlight, there are also provisions which aim to prevent those who committed misconducts from asserting any ratification mistakenly made by the company in order to escape from their liabilities and in turn, protect those who inform the authority of the misconduct. This is truly a step forward of Thai Law which is a fruit of our past mistakes.
Nothing can detract from the central fact that the 1997 financial crisis was erupted by the regulator and the government's unnecessary intervention with the market flow and capitalism which, in turn, generated inefficiency and non-transparency of the supervision system and eventually led to one of the most disastrous financial crises. Moreover, many financial institutions took advantages of rules and regulations that were not clearly stated, making it easy to circumvent and abuse the proper practice and the worst of all were corruption and fraud. It would be fair to assume that these are still a problem at present in Thai society. At the same time it could be argued that the crisis was an inevitable outcome of the financial liberalization when the country was not fully prepared for it. This argument has the tendency to support the intervention by the government and the regulator when it is applicable.
As far as the two cases mentioned in this chapter are concerned, it would appear that the BOT and the government's unconcern towards the circumstances in which banks and other financial institutions carelessly lent loans or made high-risk investment was a main direct cause of an economic downturn and the country's consecutive deficits. Failing to maintain market confidence rendered it useless to inject funds for weak financial institutions as deposit run made them more vulnerable.
According to the Economist, it is criticised that regulators and the government were low in qualifications to sustain the good governance in the financial system and that the BBC case was an obvious outcome of such incapability. Furthermore, the BOT was careless in regulating banks and firms by letting those firms concealed bad debts through sophisticated balance sheet alternation for a long time and the BOT intentionally neglected firms and banks which had a connection with politicians or powerful tycoons. According to Richard Hornik, he criticised that Asian society lack public scrutiny and the technocrats ignored public opinions and cheap money could easily make people corrupted. Richard Lacoya has gone so far as to succinctly conclude that the abyss of all problems was the Crony Capitalism. More generally, it seems hard to deny that failure in national policy as well as rules and regulations are well be a contributory factor which postponed a country's growth.
C. Conflicts of Interest and the ‘Chinese Wall' Doctrine
Chinese Walls or Information Barriers are considered to be an important part of most complex and sophisticated financial organisations. The purpose of a Chinese Wall is to prevent the distribution of information and to provide an information barrier to prevent information from reaching other parts of the firm or company. The essential thing about the Chinese Wall is that it has to be effectively maintained. However, in practice, it is difficult to maintain the efficacy of the wall when there are a large number of individuals involved, particularly in an investment bank which is a large financial organisation where a lot of individuals are necessary in order to effectively perform productive services. In the case of ASIC v Citigroup Global Markets Australia Limited ( Citigroup case), it is suggested that‘... The law will protect investment firms operating multiple businesses from claims of breach of fiduciary duty and insider trading provided that sufficient safeguards are maintained.'
It would be reasonable to assume that the significance of this suggestion is the recognition of the efficacy in managing information using the Chinese Wall. Nevertheless, this view is open to doubt as there is no precise answer to a crucial question of how the ‘sufficient safeguards' can be maintained. There are, of course, suggestions of what Chinese Walls should include in order to being effective but this does not assure that Chinese Walls will be seriously taken into account. What is essential is a matter concerning ‘Corporate Governance' which is a fundamental system that enables a firm or a company to achieve its goal through strategies that will satisfy every party concerned. If the corporate governance is properly exercised, the Chinese Walls will probably be more effective as well.
The core problems underlying the global financial crisis are mainly due to different causes as follows:
Securitised derivatives which have a low quality of underlying debts.
Banks and firms which conducted businesses in a moral hazard manner.
Weak financial regulations and lenient financial regulators without proper collaborations with other authorities.
Therefore, it can be concluded that investment banks are only a factor that triggered off the crisis. They are contributed to the crisis or even accelerated the outbreak of the crisis by committing moral hazard. The actual problem remains in the regulatory system.
As for the financial crimes of embezzlement, it is obvious that the crime would not have been easily committed when financial rules and regulations are properly in place and the regulator pays attention to the move of financial activities and be prepared to control them.
Financial crisis can be prevented or at least mitigated by appropriate regulations. Financial institutions that have played a significant role in the financial sector should also be prepared to strictly comply with the regulation so that the regulation are not futile and can efficiently prevent unwanted situations, protect investors as well as maintain market confidence.
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