واسطه گری مالی در قانون بازارهای امنیتی و اقتصاد هدایت مقررات کسب و کار

The economic theory explains the role performed by intermediaries in financial markets. In securities markets, in particular, intermediaries act as facilitators of the financial exchange. In this context, conduct of business regulation is justified on the basis of structural problems of asymmetric information affecting the relationship between securities professionals and the individual investor. In this paper, two major conduct of business rules are analysed in the light of the kind of market imperfections they should be intended to address: the suitability and the anti-churning rules. From a functional perspective, the analysis merges major insights of financial theory with a comparative discussion of the legal rules in both the U.S. and the European Union. Law and economics approach to the matter leads to a much broader and more economically sound interpretation of the “churning” problem. This is related to an agency-based explanation of one of the most topical puzzles under debate in financial economics: the problem of noise trading.

The efficiency of financial markets is one of the main matters of concern for economic (and thus legal) policymakers. Efficient allocation of financial resources is the necessary premise for the productive and allocative efficiency of an aggregate (country or world-wide) economy. Securities are one of the most important means for the exchange of financial resources. Securities markets, and the role played by financial intermediaries within them, are going to be therefore the subject matter of the present study.1 Three major qualifications are required in order to clarify the scope of the analysis. First of all, I am focusing exclusively on the exchange of securities performed in secondary markets. Whereas it is true that efficient allocation of financial resources depends on the efficient performance of the primary market, setting the equilibrium price of newly issued securities, primary markets, however, would presumably not even exist without secondary markets. The key role and function of secondary markets are very well known in financial economics.2 They basically consist in the marketability of the securities investment and in the evaluation of the same securities through an efficient pricing mechanism. Although it would be interesting, one is not addressing here the problem of the origin and development of organized secondary markets. Simplistic as it may appear, they are taken for granted. Secondly, by the expression financial intermediaries, I am generally referring to the professional businesses in the securities industry, through which the exchange of securities in secondary markets is ultimately performed by individual investors either directly or indirectly, within the context of dynamic investment management on their behalf. In this sense, the term financial intermediary is mostly used here as a synonym for securities professional. From the economic-functional perspective, that means considering just some, but not all of the functions performed by intermediaries in the financial sector: namely, the exchanging of securities either on behalf of customers or on their own account, the provision of securities investment advice, and the management of securities portfolios.3 I am neglecting, on the other hand, perhaps the most important function traditionally performed by financial intermediation, that is asset transformation, typically carried out by commercial banks and insurance companies. In legal-institutional terms, I am therefore referring to financial intermediaries whose core business is related to the investment of tradable securities, and specifically to brokers, dealers, investment advisers (including professional asset managers), as well as to the broad category of financial institutions engaged in managing collective investments on behalf of other market participants (i.e., investment companies).4 Thirdly, this paper is going to discuss rationales and shortcomings of legal intervention in the market of financial services relating to individuals’ investment in securities (hereinafter: “financial investment services,” or simply “financial services”). The discussion, however, is exclusively concerned with conduct of business regulation, and thus focuses on how securities professionals deal (i.e., conduct business) with their customers. Prudential regulation, related concerns of financial institutions stability, and possible systemic effects (i.e., externalities) on the financial sector as a whole are therefore not addressed by the present study.5

Economic theory of financial intermediation shows the crucial role played by intermediaries in the mechanisms of securities market efficiency. Individual, unsophisticated investors participate in the financial exchange taking place in the securities market through the services provided by financial intermediaries. However, the provision of such services is affected by a structural problem of asymmetric information and related concerns of moral hazard and adverse selection. Individual investors are, in fact, “rationally ignorant” in that they lack the information and the financial expertise necessary to engage in a knowledgeable evaluation of the quality of the services provided by intermediaries. Should it be a rational choice for the investor to spend time and effort in acquiring that information and expertise, he or she would not even need to rely so much on the intermediaries’ services to perform his or her investment decisions; he or she would, rather, become a securities expert him/herself. Provided investors, in general, are not—and should rationally not strive to become—securities experts, the information reliability problem and related quality uncertainty of the services rendered by intermediaries to their customers will give rise to a serious concern of market failure. Recalling the characteristic distinction of goods and services on the basis of their salient quality attributes, one has shown that the provision of financial services typically embodies credence good characteristics, whose quality is not ascertainable at a reasonable cost even after a process of repeated purchase. This is likely to impair market spontaneous self-correcting mechanisms, such as the indirect protection of uninformed customers by a significant amount of comparison shopping consumers at the margin (the Schwartz and Wilde’s famous argument), as well as the suppliers’ attempts to signal high-quality services by investing in reputation. Without regulatory intervention, the market for financial services would be presumably characterized by “lemons” equilibria where only low-quality services and unreliable information, as to investment opportunities, are available to the public of investors. Most risk-averse individuals would, therefore, refrain from dealing with securities professionals and, thus, from entering the financial exchange in the securities markets. A system of conduct of business regulation disciplining financial intermediaries’ behavior in the securities industry is therefore needed to ensure the reliability of the information that securities professionals are supposed to provide, thereby guaranteeing the soundness of the investment advice on whose basis investors enter and—directly or indirectly—participate in the securities markets. In this field, the “law and economics” approach provides some useful insights for the interpretation of legal rules, by making such interpretation more attentive to the economic problems and related concerns of market failure the same rules should be intended to cope with. In the present article, I have attempted to apply this approach to the analysis of two major rules of conduct disciplining the provision of financial services: the “suitability” rule and the “antichurning” rule. Results of the economic analysis are quite suggestive, at least as far as the notion of churning is concerned. One can argue, on economic grounds, that churning by financial intermediaries is relating to one of the most puzzling issues under discussion in financial economics: the problem of allegedly excessive “noise trading.” Normative conclusions on this specific matter suggest a more general approach to the conduct of business regulation. This regulation should be, in the first place, aimed at stimulating market self-correcting mechanisms, by developing a legal framework wherein reliable signals of the overall quality of the services provided by securities professionals can be easily sent to the public of investors and, of course, understood by them. Market forces’ “invisible hand” would then do the rest of the job. F Allen and and 1990 and C Dematte and P Mottura 1993