تضاد منافع و انضباط بازار در میان شرکت های خدمات مالی

Very recent reports on Maxwell Communications Corporation and Enron clearly underlined a single important weakness in the behaviour of corporations and financial markets –– the exploitation of conflicts of interest. Although potential conflicts of interest are a fact of life among financial firms, they can only come to flower when competition is not perfect and when markets are not fully transparent. Since underlying market imperfections are systematic even in highly developed financial systems, causing agency problems, it is essential that the problem of conflict-of-interest exploitation is addressed through improved transparency and market discipline if public confidence in financial markets is not to be repeatedly shaken.

In 2001, the UK Department of Trade and Industry (DTI) released its final report on one of the most dramatic British financial scandals in recent memory, the theft of almost $600 million in pension funds belonging to the late Robert Maxwell’s Maxwell Communications Corporation and Mirror Group Newspapers PLC.1 The theft had come to light ten years before, and blame was placed squarely on Robert Maxwell himself (who had apparently committed suicide) and on his son, Kevin. Indeed, the events had vindicated the DTI’s own judgment in having censured Maxwell as far back as 1971 as being “unfit to run a public company.” What had occurred was criminal – outright larceny and financial fraud. Shocking to many observers was the DTI’s conclusion, reached in a deliberate and thoughtful way and carefully phrased with classic British understatement –– words like “cliquishness, greed and amateurism” and not lightly invoked –– that the crime could not have been committed without the active participation of lawyers, accountants and financial intermediaries. Maxwell’s accountants (Coopers & Lybrand Deloite) had not noticed the missing pension assets, his law firm and financial adviser (Clifford Chance and Samuel Montagu) suppressed their legal and due diligence judgment to avoid jeopardizing fee income, and his broker-dealer (Goldman Sachs) was cited by the DTI for helping support the Maxwell Communications share price using third parties as a front. Despite a sorry track record and no sign that “Maxwell had changed his spots,” all apparently did little more than follow the money.

One can argue that regulation-based and market-based external controls, through the corporate governance process, create the basis for internal controls which can be either prohibitive (as reflected in Chinese walls and compliance systems, for example) or affirmative, involving the behavioral “tone” and incentives set by senior management together with reliance on the loyalty and professional conduct of employees. The more complex the financial services organization – perhaps most dramatically in the case of massive, global financial services conglomerates where comprehensive regulatory insight is implausible – the greater the challenge of sensible conflict-of-interest regulation, suggesting greater reliance on the role of market discipline. The logic runs as follows: First, market discipline can leverage the effectiveness of regulatory actions. For example, following the 2003 Global Settlement and its widespread coverage in the media, the proportion of “sell” recommendations rose abruptly, in the US from less than 1% in mid-2000 to about 11% in mid-2003. In Europe the percentage of “sell” recommendations rose from 12% to 24% in Germany, from 13% to 21% in France, and from 6% to 16% in the UK over the same period. 22