D R Shashank
The author is a student at Symbiosis Law School, Pune
Within the labyrinthine expanse of financial markets, the pursuit of a seamlessly integrated framework proves to be a convoluted and yet indispensable venture. At the core of this intricate endeavor lies the compelling necessity of importing a congruent and legally enforceable corpus of fundamental regulations. This harmonization initiative extends beyond a mere aspiration to enhance allocative efficiency within a unified market; it stands as the cornerstone for cultivating trust among pivotal governmental entities and the myriad actors populating the market landscape. This article exposition lays the foundation for a more profound exploration into the pivotal role played by regulatory uniformity, illuminating its capacity to navigate through intricate challenges such as regulatory arbitrage and veiled protectionist maneuvers. As we embark on a nuanced analysis of the dynamics inherent in financial markets, the clarion call for a comprehensive harmonization strategy transcends its role as a mere regulatory imperative, evolving into a linchpin that underpins the cultivation of a resilient and dependable financial ecosystem for the integration of financial innovation with capital markets.
The essential prerequisite for the integration of financial markets is the importation of a harmonized set of fundamental regulations that progressively converge toward uniformity and are enforceable across all jurisdictions constituting the single market. The absence of such uniformity has the potential to significantly impede market integration, as it may incentivize regulatory arbitrage and veiled protectionist measures, even though regulatory arbitrage could enhance the profitability of international organizations. Consequently, the primary rationale for advocating full harmonization extends beyond the aim of augmenting allocative efficiency in an integrated market. It also encompasses the imperative of fostering trust between major governmental entities and market participants. The adoption of a comprehensive harmonization approach serves to mitigate concerns related to rule-gaming and the race to the bottom, phenomena that effectively amount to free riding. By implementing centralized supervision systems to ensure the consistent enforcement of standardized regulations, market competitors and managers can operate with a heightened level of assurance, confident in the minimized likelihood of regulatory exploitation and erosion of standards.
Inter-Juncture between FinTech and the Capital Markets
The primary objective of the Capital Markets Union (CMU) initiative, which aims at the integration of financial markets within the European Union (EU), is conspicuously underemphasized due to its perceived stagnation. This lack of focus is compounded by the preferential exploitation of domestic markets by major EU financial institutions. These institutions derive rents from such exploitation that surpass the returns attainable through international commerce and intra-EU competition, consequently eroding margins and profits. Numerous qualitative barriers, resistant to quantification and often stemming from entrenched industry practices rather than overt lobbying efforts, substantially contribute to facilitating the behavior of EU financial institutions in favor of domestic markets. Persistent client relationships, entrenched business networks fostering enduring trust bonds between financial intermediaries and providers/users of capital, as well as linguistic and cultural impediments, exemplify such nuanced and challenging-to-measure barriers. Due to their qualitative nature and the obscured rents they generate, regulatory or legislative measures prove ineffective in eliminating these barriers.
In the context of the EU, characterized by a multitude of smaller enterprises and significant institutional investors, particularly substantial users and providers of finance, the revitalization of a robust market for wholesale investing and risk-sharing could hinge significantly on FinTech and product innovation. This potential becomes more pronounced once the initial disruption caused by the transition from an intermediary-dominated environment to one necessitating less intermediation is fully assimilated. The implementation of data-sharing protocols and distributed ledgers holds the promise of enabling the emergence of EU markets in private equity and venture capital stakes. Concurrently, planned standardization efforts are poised to usher in a democratization of the market for securitized bonds. Even if these markets initially remain restricted to institutional investors, the prospect of opening them to retail investors is likely to surface over time, presenting a potential challenge to the provisions laid out in MiFID II.
The Need for Re-Integration Wave
The progress of establishing a capital market for risk-sharing within the EU has encountered significant impediments due to the aftermath of Brexit. This setback is notably observed in the domain of highly developed and liquid derivatives and securities markets, where the majority of EU derivatives trading and a substantial proportion of wholesale finance transactions traditionally take place. In addressing the investment gap within the EU, concerted efforts are being made to foster the creation of new categories of long-term financial assets. The establishment of a liquid market for long-term investments is contingent upon technological innovation as much as it is on the standardization of investment practices. It is imperative for the EU to reassess the ambit of regulatory frameworks such as MiFID II, MiFIR, and EMiR, which were enacted during a period when regulatory stringency was a focal point in response to the global financial crisis. This re-evaluation is deemed necessary to facilitate the development of robust wholesale financial markets within the EU.
While the Capital Markets Framework primarily embodies a liberalizing policy directed at both retail and wholesale financial markets within the EU, there may arise instances where certain facets of this regulatory regime could prove incompatible. In a region characterized by a diverse landscape of institutional investors and small to medium-sized enterprises, the EU is poised to progressively rebuild a robust market for wholesale investment and risk-sharing. As elucidated in this discourse, the advent of blockchain technology is anticipated to catalyze a transformative shift in the clearing and settlement processes of securities and derivatives. This technological evolution is expected to instigate a paradigm shift, significantly reducing costs and streamlining procedures. Over time, such developments are foreseen as potent catalysts for advancing the integration of the EU market.
Impact on India – The Investment Hub
The growth trajectory of Indian FinTech is propelled by a confluence of positive governmental initiatives, proactive regulatory measures, a robust funding environment, a thriving venture capital ecosystem, expansive demographic opportunities, widespread FinTech adoption, and the availability of talent and technology conducive to entrepreneurial endeavors that shape the trajectory of the new India. However, several challenges persist within this landscape. Concerns related to data security and privacy risks in collaborative scenarios, a notable lack of financial literacy and awareness, the underperformance of initial public offerings (IPOs), geopolitical and macroeconomic uncertainties impacting institutional investor confidence, and the dynamic landscape of regulatory changes pose ongoing challenges for FinTech entities, necessitating adaptive strategies.
While the Reserve Bank of India (RBI) is increasingly demonstrating a keen interest in enhancing corporate efficiency, a comparable enthusiasm for cryptocurrencies is notably absent. The RBI, through a notification dated April 6, 2018, prohibited entities under its regulatory purview from engaging in cryptocurrency trading. However, this prohibition faced legal challenges in the case of Internet and Mobile Association of India v. RBI, resulting in the apex court overturning the ban and deeming it unconstitutional. Presently, India explicit prohibitory measures against the utilization of cryptocurrencies or crypto assets and regulatory frameworks governing their practical application. Oversight of the Indian securities market falls under the purview of the Securities and Exchange Board of India (SEBI), which is responsible for regulating trading activities, investment advisory services, and capital market investments. It is pertinent to note that the existing regulatory framework does not explicitly authorize the deployment of artificial intelligence (AI) tools and robo-advisory mechanisms for the provision of investment-related services.
Foreign bank participation is poised to play a pivotal role in fortifying the interconnectedness between domestic and international markets, concurrently fostering a climate of healthy competition and aligning with India's commitment to the General Agreement on Tariffs and Trade (GATT) under the World Trade Organization. The proposition of permitting foreign institutional investors (FIIs) to engage in 100% debt funds for investment in Indian government securities, both at the central and state levels, across primary and secondary markets, stands as a transformative measure. This move holds the potential to significantly enhance the fusion of domestic and international markets, allowing for the reduction of interest rates and exchange risks. The authorization for banks and authorized dealers (ADs) to borrow and invest funds overseas, within specified constraints, and extend foreign currency loans to Indian enterprises for productive purposes is poised to further facilitate the vertical integration of domestic and international foreign exchange markets.
Moreover, the envisaged benefits extend to exporters, who could opt for rupee credit in lieu of foreign currency loans. Corporates stand to benefit from engaging in active hedging activities, encompassing the use of foreign currency options and forwards, forward contracts based on historical performance, cancellation and rebooking of forward contracts, and the utilization of foreign currency-rupee swaps to manage longer-term exposures emanating from external commercial borrowings. The integration of credit and equity markets has been advanced through the introduction of capital adequacy criteria and the empowerment of public sector banks to raise capital from the stock market, thereby augmenting their paid-up capital. This holistic approach signals a comprehensive effort to strengthen and harmonize various facets of India's financial landscape.
Conclusion
In summation, the intricacies embedded within the fabric of financial markets mandate a meticulous and multifaceted pursuit of unblemished integration. The elemental necessity of introducing an interconnected and legally binding framework of fundamental regulations emerges as the linchpin in this intricate undertaking. Beyond the primary objective of optimizing allocative efficiency, this drive for harmonization evolves into a cornerstone for cultivating confidence among pivotal stakeholders. As we navigate the labyrinthine dynamics inherent in financial markets, the resounding call for holistic harmonization not only serves as a requisite regulatory measure but also plays a pivotal role in erecting a resilient and bona fide financial ecosystem. The trajectory towards harmonization transcends a mere convergence of regulatory measures; it signifies a dedicated commitment to alleviating complexities and countering challenges such as regulatory arbitrage and concealed protectionist maneuvers. This journey is one of sculpting a unified terrain, empowering market participants to navigate with unwavering assurance. Fundamentally, the relentless pursuit of regulatory coherence stands as an indispensable aspect of shaping a financial landscape characterized by unwavering stability, unwavering reliability, and enduring trust.