\\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 1 29-MAY-14 15:56 Managing Regulatory Arbitrage: A Conflict of Laws Approach Annelise Riles† Introduction ..................................................... 63 R I. Regulatory Arbitrage and the Law: Explaining the Failure of Global Financial Regulation ........................... 68 R II. Existing Approaches ...................................... 77 R A. The Problems with Substantive Legal Harmonization . . . 77 R B. The Role of National Courts .......................... 83 R C. Conclusion ........................................... 87 R III. The Conflict of Laws Alternative.......................... 89 R A. Why Conflicts? ....................................... 89 R B. What is Conflicts? .................................... 91 R C. How Conflicts Can Help Manage Regulatory Arbitrage . 96 R D. Why Has the Conflicts Approach Been Ignored? ....... 102 R E. Conclusion ........................................... 105 R IV. The Approach in Practice ................................ 106 R A. Pleading and Proving Foreign Law..................... 108 R B. Statutory Interpretation ............................... 109 R C. Comparative Analysis ................................. 110 R D. Relevant Policies and Interests ......................... 111 R E. Conclusion ........................................... 115 R Conclusion ...................................................... 117 R Introduction American International Group (AIG). The very name of this multina- tional insurance company screams out its U.S. connections.1 Yet in 2008, † Jack G. Clarke Professor of Law in Far East Legal Studies, Professor of Anthropology, and Director of the Clarke Program in East Asian Law and Culture at Cornell University. This Article was first conceived while I served as a visiting scholar from abroad at the Institute for Monetary and Economic Studies, Bank of Japan, and I thank my hosts there for their many helpful suggestions. For discussions and comments that substantially improved the piece, I thank Adeno Addis, Minoru Aosaki, Hannah Buxbaum, Michael Campbell, Martin Davies, Masato Dogauchi, Adam Feibelman, Anna Gelpern, Odette Lienau, Ralf Michaels, Hirokazu Miyazaki, Martha Poon, Shu-Yi Oei, and audiences at the Duke Law School (November 2012), the Cornell International Law Journal symposium (February 2013), the Tulane Law School (January 2014), and the New York University Law School (February 2014). I thank Diana Biller for her research assistance. 1. AIG is incorporated in Delaware and has its principal place of business in New York. DEL. INS. DEP’T, REPORT ON EXAMINATION OF AIG INSURANCE COMPANY 7 (2006), available at http://delawareinsurance.gov/departments/berg/ExamReports/AIGLIFE 2006web.pdf; Restated Certificate of Incorporation of Am. Int’l Grp., Inc., State of Dela- 47 CORNELL INT’L L.J. 63 (2014) \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 2 29-MAY-14 15:56 64 Cornell International Law Journal Vol. 47 when London traders, within an office of a subsidiary of AIG, engaged in trading activities that ultimately drove the parent company to the brink of failure,2 the trading conduct in question was largely beyond the reach of U.S. insurance and finance regulators,3 leaving American taxpayers on the hook for $182 billion.4 In the world of financial regulation, national financial regulators con- front a global financial system.5 Since 2008, regulators have made con- certed efforts to address the national regulatory differences that made AIG’s trades possible in the first place.6 New rules hammered out at multi- ple G20 summits since 2008 seek to address how these global challenges apply to banks.7 How have the markets responded to these rules? Finan- ciers have simply found ways of booking their transactions through non- ware Secretary of State (July 13, 2011), available at http://www.aig.com/Chartis/ internet/US/en/CertificateofIncorporation_tcm3171-440365.pdf. It was, however, started by an American in Shanghai. See Our History, AIG, http://www.aig.com/our-90- year-history_3171_437854.html (last visited Sept. 12, 2013). 2. See Congressional Oversight Panel, AIG Rescue, Its Impact on Markets, and the Government’s Exit Strategy 18, 43– 44 (2010), available at http://www.gpo.gov/fdsys/ pkg/CPRT-111JPRT56698/pdf/CPRT-111JPRT56698.pdf. 3. The Office of Thrift Supervision (OTS) was nominally responsible for overseeing AIG Financial Products through a European Union Directive requiring foreign compa- nies operating in Europe to have a home country “consolidated supervisor”— a responsi- bility the OTS director at the time later compared to “a gnat on an elephant.” See id. at 18; Press Release, Office of Thrift Supervision, OTS Receives EU Equivalency Designa- tion for Supervision of AIG (Feb. 22, 2007), available at http://www.occ.gov/static/ news-issuances/ots/press-releases/ots-pr-2007-11.pdf. The Commission Bancaire, the French regulatory body who originally decided that the supervision of AIG by the OTS was sufficient under the EU directive, later denied any regulatory authority over AIG Financial Products. See Matthieu Protard, AIG/France/Commission bancaire - Controˆle limit´e a` la Banque AIG, REUTERS (Mar. 30, 2009, 4:02 PM), http://fr.reuters.com/article/ idFRLU47902720090330. 4. CONGRESSIONAL OVERSIGHT PANEL, supra note 2, at 2. R 5. See, e.g., Chris Brummer, Post-American Securities Regulation, 98 CALIF. L. REV. 327, 328 (2010) (discussing SEC attempts to “export its preferred safeguards and reforms” abroad); Stavros Gadinis, The Politics of Competition in International Financial Regulation, 49 HARV. INT’L L.J. 447, 449 (2008) (“[C]ountries’ financial laws remain characteristically heterogeneous, despite exponential growth in international financial activity. While coordination efforts have succeeded in some regulatory areas, they have stalled in others despite strong efficiency arguments for a coordinated regime.”); Eric J. Pan, Four Challenges to Regulatory Reform, 55 VILL. L. REV. 743, 744– 45 (2010) (noting gaps between national regulatory schemes and problems in international cooperation); Pierre-Hugues Verdier, Mutual Recognition in International Finance, 52 HARV. INT’L L.J. 55, 55 (2011) (“The rapid globalization of finance since the 1970s has taken place against the background of a decentralized legal framework shaped primarily by national regulators.”). 6. Pan, supra note 5, at 750. R 7. See, e.g., FINANCIAL STABILITY BOARD (FSB), FSB FRAMEWORK FOR STRENGTHENING ADHERENCE TO INTERNATIONAL STANDARDS 6– 7 (2010); FSB, OVERVIEW OF PROGRESS IN THE IMPLEMENTATION OF THE G20 RECOMMENDATIONS FOR STRENGTHENING FINANCIAL STABILITY: REPORT OF THE FINANCIAL STABILITY BOARD TO G20 LEADERS (2010); BASEL COMM. ON BANK- ING SUPERVISION, REPORT AND RECOMMENDATIONS OF THE CROSS-BORDER BANKING RESOLU- TION GROUP (2010). See also Douglas W. Arner, Michael A. Panton & Paul Lejot, Central Banks and Central Bank Cooperation in the Global Financial System, 23 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 1, 37 (2010); Andrew F. Cooper & Colin I. Bradford, The G20 and the Post-Crisis Economic Order, CIGI G20 Papers No. 3 (June 2010). \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 3 29-MAY-14 15:56 2014 Managing Regulatory Arbitrage 65 bank institutions, known as the shadow banks, which are not subject to the G20’s rules. 8 The Financial Stability Board not surprisingly has responded by hammering out new rules to govern shadow banks. 9 And yet before these rules even come into operation, market participants are busy devising new kinds of exceptions. The ability of financial institutions to act beyond the reach of regula- tors threatens the sovereignty of nation-states and the well being of national economies.10 Yet as regulators are well aware, the threat is possi- ble only because of differences in national regulatory regimes.11 For off- shore investors, a patchy regulatory landscape is key to the business model; the very purpose of booking the transaction offshore, or through an entity that is not subject to a particular kind of regulation, is to circumvent regu- latory authority. This is the problem of so-called regulatory arbitrage.12 The prevailing wisdom is that regulatory arbitrage can be counteracted only if the rules across all legal systems are harmonized.13 In other words, 8. The shadow banking sector has grown significantly since the financial crisis— with some accounts putting it at three times the size it was in 2008. See Steven L. Schwarcz, Regulating Shadow Banking, 31 REV. BANKING & FIN. L. 619, 620 (2012); Phi- lipp Halstrick, Tighter Bank Rules Give Fillip to Shadow Banks, REUTERS (Dec. 20, 2011, 4:17 AM), http://www.reuters.com/article/2011/12/20/uk-regulation-shadow-banking- idUSLNE7BJ00T20111220 (discussing the possibility that tightened international bank- ing regulation would result in increasing movement to shadow banks). See also Sungjoon Cho & Claire R. Kelly, Promises and Perils of New Global Governance: A Case of the G20, 12 CHI. J. INT’L L. 491, 532 (2012) (noting that some commenters believe that Basel III will encourage financial firms to flee to shadow banking so as to escape its rigors); Charles K. Whitehead, Regulating for the Next Financial Crisis, 24 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 3, 20 (2011) (observing that in the United States, Dodd-Frank may cause a similar flight). For background on shadow banking, see gener- ally ZOLTAN POZSAR ET AL., FED. RESERVE BANK OF N.Y., SHADOW BANKING (2012). The FSB has recently unveiled new proposed regulations targeting shadow banks, using an approach many newspaper stories called “softly-softly.” See Press Release, FSB, FSB Publishes Policy Recommendations to Strengthen Oversight and Regulation of Shadow Banking (Aug. 29, 2013), available at http://www.financialstabilityboard.org/press/ pr_130829a.pdf; Huw Jones, ‘Shadow’ Banks Face 2015 Deadline to Comply with First Global Rules, REUTERS (Aug. 29, 2013, 2:55 PM), http://www.reuters.com/article/2013/ 08/29/us-g20-shadowbanking-rules-idUSBRE97S0TX20130829. 9. See FSB, STRENGTHENING OVERSIGHT AND REGULATION OF SHADOW BANKING: AN OVERVIEW OF POLICY RECOMMENDATIONS (2013), available at http://www.financialstabil- ityboard.org/publications/r_130829a.pdf. 10. See FSB, REDUCING THE MORAL HAZARD POSED BY SYSTEMICALLY IMPORTANT FINAN- CIAL INSTITUTIONS 2 (2010); GROUP OF THIRTY, FINANCIAL REFORM: A FRAMEWORK FOR FINANCIAL STABILITY 17 (2009). 11. REDUCING THE MORAL HAZARD, supra note 10; GROUP OF THIRTY, FINANCIAL R REFORM, supra note 10. R 12. Regulatory arbitrage has been defined as “those financial transactions designed specifically to reduce costs or capture profit opportunities created by different regula- tions or laws.” Frank Partnoy, Financial Derivatives and the Costs of Regulatory Arbitrage, 22 J. CORP. L. 211, 227 (1997). 13. See, e.g., BASEL COMM. ON BANKING SUPERVISION, THE JOINT FORUM, REVIEW OF THE DIFFERENTIATED NATURE AND SCOPE OF FINANCIAL REGULATION: KEY ISSUES AND RECOMMEN- DATIONS 4 (2010) (“Consistent implementation of international standards is critical to avoid competitive issues and regulatory arbitrage.”); ERKKI LIIKANEN, HIGH-LEVEL EXPERT GROUP ON REFORMING THE STRUCTURE OF THE EU BANKING SECTOR 77 (2012) (stating that diversity in accounting standards leads to regulatory arbitrage); THE DE LAROSIE` RE \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 4 29-MAY-14 15:56 66 Cornell International Law Journal Vol. 47 regulatory arbitrage opportunities can be eliminated only if the regulatory cost of transacting is identical globally. In practice, however, harmonizing national laws is an extremely contentious and difficult process.14 Attempts to universalize substantive regulation can quickly devolve into regulatory nationalism as internal political and economic interests clash with interna- tional expectations.15 What is more, the very process of harmonization risks creating new regulatory arbitrage opportunities because the pace of enacting legal change will be different across states.16 Why have nation-states proven so incapable of addressing regulatory arbitrage? As I explain below, the law has been one step behind financial arbitrage in its ability to grasp functional similarities and differences across national differences, and to coordinate among legal differences. In the cat and mouse game between regulators and financiers, finance has been the more creative partner, always one step ahead analytically. Yet remarkably, the law’s most sophisticated tools for addressing this kind of coordination have yet to be deployed in discussions of global financial regulation. The technical, arcane, legal techniques known in the civil law world as Private International Law or, in the common-law world as the Conflict of Laws (“Conflicts”), is the body of law that determines what law should apply where more than one sovereign can arguably lay claim to exercise sovereignty over an issue.17 For example, what law governs a contract between a bank in London and another bank in the Cayman Islands con- cerning assets in Singapore, and executed over the Internet? The answer is found in the Conflict of Laws. Conflicts is a body of law that addresses a question that has been largely ignored in global financial regulatory debates— the question of the scope (as opposed to the content) of national, international, and non-state regulation: how far does each regulatory authority extend, and what should be done when these overlap? Unlike the harmonization paradigm, which pursues legal uniformity, the Conflicts approach accepts that regulatory nationalism is a fact of life, and sets for itself the more modest goal of achieving coordination among GROUP, THE HIGH-LEVEL GROUP ON FINANCIAL SUPERVISION IN THE EU 27 (2009) (criticiz- ing the lack of harmonization of financial regulation in Europe on grounds that “diver- sity is bound to lead to competitive distortions among financial institutions and encourage regulatory arbitrage.”); Benjamin M. Weadon, International Regulatory Arbi- trage Resulting from Dodd-Frank Derivatives Regulation, 16 N.C. BANKING INST. 249, 259 (2012) (arguing that the lack of international harmonization in OTC derivatives regula- tion creates the possibility for “regulatory arbitrage” opportunities that could place U.S.- based banks at a competitive disadvantage and increases risk because of migration to less-regulated jurisdictions.). 14. See, e.g., Eric C. Chaffee, Contemplating the Endgame: An Evolutionary Model for the Harmonization and Centralization of International Securities Regulation, 79 U. CIN. L. REV. 587, 589– 90 (2010) (acknowledging the serious obstacles to harmonization). 15. See infra notes 80– 83 and accompanying text. R 16. See, e.g.,BASEL COMM. ON BANKING SUPERVISION, supra note 13, at 4. R 17. See Karen Knop, Ralf Michaels & Annelise Riles, From Multiculturalism to Tech- nique: Feminism, Culture, and the Conflict of Laws Style, 64 STAN. L. REV. 589, 593 (2012) [hereinafter Multiculturalism]. \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 5 29-MAY-14 15:56 2014 Managing Regulatory Arbitrage 67 different national regimes.18 Under the Conflicts approach, the point is not to define one set of rules that apply for all, as is the case in public international law19— the law of international organizations such as the UN or the WTO. Rather, the point is to define under what circumstance a particular dispute or problem shall be subject to one state’s law or another. This alternative approach to international regulatory coordination has been developed over many centuries, beginning with efforts to coordinate transnational trade relations after the fall of the Roman Empire;20 it stands ready to serve us once again today. The advantage of this approach is that it provides a far more nuanced, sophisticated, and nevertheless manageable approach to answering practi- cal questions such as, “when should so-called host regulators of a global systemically important financial institution defer to so-called home regula- tors, and vice versa?” A further advantage is that it requires no new legisla- tion, no new agreements to be hammered out at global conferences of regulators, nothing but the more forceful and creative application of laws that are already part of the legal systems of all of the nations in which major financial centers are found.21 Accordingly, this Article proposes a Conflict of Laws approach to managing regulatory arbitrage.22 Thinking in terms of the Conflict of Laws encourages us to examine more carefully how we allocate authority across existing regulatory regimes. It changes the debate over global finan- cial regulation because it raises a crucial question that is largely ignored at forums such as the G20— namely, how far does each regulatory authority extend, and what should be done when these overlap? This Article proceeds as follows: In Part I, I analyze the problem of regulatory arbitrage in order to understand more precisely what we hope to achieve when we seek to eliminate it. I explain the financial logic of regula- tory arbitrage in order to understand why harmonization is not a sufficient solution. In Part II, building on this analysis, I critique the prevailing wis- dom— the harmonization approach to addressing regulatory arbitrage. If regulatory harmonization has failed us, I argue, national courts have also failed to step in to fill the regulatory gap. I focus here on the limitations of the U.S. Supreme Court’s approach in United States v. Morrison and the responses it has generated in the American legal academy. In Part III, I 18. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC 1– 2 (1846). 19. See Lan Cao, Toward a New Sensibility for International Economic Development, 32 TEX. INT’L L.J. 209, 227, 231, (1997). 20. See Simona Grossi, Rethinking the Harmonization of Jurisdictional Law, 86 TUL. L. REV. 633, 634 (2012). 21. See Karen Knop, Ralf Michaels & Annelise Riles, International Law in Domestic Courts: A Conflict of Laws Approach, 103 AM. SOC. INT. L. PROC. 269 (2010). 22. I build here upon two key sources: an earlier article, co-authored with Ralf Michaels and Karen Knop on the uses of Conflicts in the human rights sector (see Mul- ticulturalism, supra note 17, at 593) and my own ethnographic research on the uses of R legal technicalities like Conflicts by private actors in the financial markets to create their own global private law regime (see ANNELISE RILES, COLLATERAL KNOWLEDGE: LEGAL REA- SONING IN THE GLOBAL FINANCIAL MARKETS (2011)). \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 6 29-MAY-14 15:56 68 Cornell International Law Journal Vol. 47 introduce the Conflicts approach. After a short introduction to the Con- flict of Laws, I describe how regulatory arbitrage might be approached from a Conflicts perspective. In Part IV, I explain how a Conflicts approach might work in practice with the help of an example adapted from a recent civil suit by the SEC under the anti-fraud provisions of the Exchange Act. The Article concludes by focusing on the wider stakes of such an approach, from the point of view of regulatory theory. I. Regulatory Arbitrage and the Law: Explaining the Failure of Global Financial Regulation The legal literature on regulatory arbitrage is surprisingly thin. The chorus of commentators often decries this or that regulatory initiative as “leading to regulatory arbitrage,” and commentators cite regulatory arbi- trage as an obvious problem and an obvious rationale for legal harmoniza- tion.23 Proponents of deregulation argue that regulatory arbitrage will inevitably disadvantage domestic financial firms because business will immediately move offshore if regulators should be so brash as to attempt to raise regulatory standards.24 Yet there is almost no substantive analysis of what regulatory arbitrage is, what exactly is wrong with it, and what are the range of options for addressing it. Likewise, the response of national regulators to the threat of regula- tory arbitrage has been to focus on eliminating the differences that make 23. See, e.g., Brett McDonnell & Daniel Schwarcz, Adaptation and Resiliency in Legal Systems: Regulatory Contrarians, 89 N.C. L. REV. 1629, 1641 (2011) (“The multisectored nature of American financial regulation makes such regulatory arbitrage a constant risk.”); Saule T. Omarova, Wall Street as Community of Fate: Toward Financial Industry Self-Regulation, 159 U. PA. L. REV. 411, 416 (2011) (“Given the complexity and global nature of the modern financial market, any government’s attempt to regulate it in a purely unilateral command-and-control manner will inevitably encounter the fundamen- tal problem of regulatory arbitrage, whereby financial institutions find new ways to get around government rules, thus creating a never-ending spiral of rulemaking and rule evading.”). 24. See John C. Coffee, Jr., Systematic Risk After Dodd-Frank: Contingent Capital and the Need for Regulatory Strategies Beyond Oversight, 111 COLUM. L. REV. 795, 819 (2011) (“Regulatory arbitrage, in the sense of one nation actively seeking to lure firms from other more regulated countries, did not drive this process of deregulation. But regula- tory disparities did enable the U.S. financial industry to insist on maintaining the der- egulation of OTC derivatives and the limited oversight of investment bank leverage by giving them a powerful argument: Increase regulation, they claimed, and our bank will be forced to shift its operations abroad.”). For examples of this argument, see, e.g., WORLD BANK GLOBAL FINANCIAL DEVELOPMENT REPORT 2013, RETHINKING THE ROLE OF THE STATE IN FINANCE 65– 66 (2012) (“The trend toward regulating more and the growing complexity of regulation distorts incentives by facilitating regulatory arbitrage . . . .”); Robert A. Jarrow, A Critique of Revised Basel II, 32 J. FIN. SERV. RES. 1, 15 (2007) (“Last, the differences in the horizons, the confidence level, and the scale factors in the compu- tation of the credit risk VaR versus the market risk VaR are problematic. Indeed, these differences could result in ‘regulatory arbitrage’ if these differences imply different levels of capital and some credit risky investments (e.g. loans) can be categorized as falling under either the credit risk or the market risk requirements.”). \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 7 29-MAY-14 15:56 2014 Managing Regulatory Arbitrage 69 arbitrage possible.25 The implicit— though largely unexamined— rationale is that if substantive legal rules are harmonized, then arbitrage should not be possible because arbitrage is about exploiting formal differences, despite the functional similarity of products across different markets owing to the interrelationship of markets. For the regulators and academics thinking about regulatory arbitrage problems, the notion that harmonization is the answer is largely taken for granted.26 The problem is just how to achieve it. And here, too, there is a standard and almost universally accepted view of the path forward. The harmonization response turns on a public international law model of global consensus-making through high-level negotiations among nation- states.27 The concept is international rulemaking through a global interna- tional institution— perhaps on the model of the WTO, for the present on the more limited scale of the Financial Stability Board and the G2028— promulgating international rules that apply uniformly and are ultimately nationally enforceable in each jurisdiction. 25. See, e.g., FSB, OTC DERIVATIVES MARKET REFORMS: THIRD PROGRESS REPORT ON IMPLEMENTATION 2 (2012) (“Full and consistent implementation by all FSB members is important to reduce systemic risk and the risk of regulatory arbitrage that could arise if there are significant gaps in implementation.”); FSB, IMPROVING FINANCIAL REGULATION: REPORT OF THE FINANCIAL STABILITY BOARD TO G20 LEADERS 10 (2009) (“To guard against regulatory arbitrage, it is imperative that initiatives to expand the perimeter of regulation [of the financial system] are effectively and consistently implemented across key juris- dictions.”); OTC DERIVATIVES REGULATORS GROUP, REPORT TO THE G20 MEETING OF FINANCE MINISTERS AND CENTRAL BANK GOVERNORS OF 18– 19 APRIL 2013 1 (2013) (a group of authorities with responsibility for the regulation of the over-the-counter (OTC) derivatives markets in Australia, Brazil, the European Union, Hong Kong, Japan, Onta- rio, Quebec, Singapore, Switzerland and the United States, the Group wrote that “[t]he principals recognise that the OTC derivatives market is a global market and firmly sup- port the adoption and enforcement of robust and consistent standards in and across jurisdictions. This will help further the G-20 regulatory reform agenda for OTC deriva- tives markets to mitigate risk, improve transparency and protect against market abuse, and to prevent regulatory gaps, reduce the potential for arbitrage opportunities, and fos- ter a level playing field for market participants, intermediaries and infrastructures.” They did note, however, that complete harmonization would likely prove “difficult.”); Press Release, European Commission, Financial Services: Commission Sets Out Future Actions to Strengthen the Safety of Derivatives Markets (Oct. 20, 2009), available at http://europa.eu/rapid/press-release_IP-09-1546_en.htm?locale=en (announcing pro- posals for derivatives regulation in line with G20 objectives, and affirming that “[t]he Commission intends to further develop the technical details in cooperation with its G20 partners in order to ensure a coherent implementation of these policies across the globe and thus avoid regulatory arbitrage.”); see also Annelise Riles, Is New Governance the Ideal Architecture for Global Financial Regulation? 18– 20 (Inst. for Monetary & Econ. Stud., Discussion Paper Series 2013-E-1, 2013) [hereinafter Riles, New Governance], available at http://www.imes.boj.or.jp/research/abstracts/english/13-E-01.html. 26. Riles, New Governance, supra note 25, at 14. R 27. Id. at 55– 56. 28. See Robert Hockett, Bretton Woods 1.0: A Constructive Retrieval for Sustainable Finance, 16 N.Y.U. J. LEGIS. & PUB. POL’Y 401, 404– 06 (2013) (arguing for an updated version of Keynes’s International Clearing Union— something that would function like a “world central bank.”). \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 8 29-MAY-14 15:56 70 Cornell International Law Journal Vol. 47 Yet before one can decide how best to approach regulatory arbitrage, one needs to understand clearly what exactly are the problems with regula- tory arbitrage and how regulatory arbitrage opportunities emerge. Despite the negative connotations of the term “regulatory arbitrage,” the cat and mouse game between national regulators and financiers is somewhat more complicated than an old-fashioned game of good guys ver- sus bad guys or lawmakers versus law-evaders. Arbitrage— “a trading strat- egy that takes advantage of two or more securities being mispriced relative to each other”29 — is a longstanding and economically valuable practice, in which value is created by seeking out and eliminating arbitrary differences between functionally equivalent assets.30 The reasoning behind arbitrage is one of the great singular achievements of economic thought.31 In arbi- trage, traders seek out hidden functional similarities across what look on the surface like differences: a basket of stocks and an index, or the rules of one legal system and those of another.32 This practice increases the effi- ciency of markets because it eliminates price differences and links markets to each other. From the perspective of financial theory, the investment strategy in regulatory arbitrage is exactly the same as in other kinds of arbitrage: the arbitrageur seeks to profit from a discrepancy in the price of the investment in two different markets by buying or producing the product in the market of lowest regulatory cost.33 For example, a certain kind of financial trans- action might be outright prohibited in one jurisdiction, yet permitted in another, or a certain transaction might be prohibited in two jurisdictions but the penalties, or the odds of facing civil lawsuits or prosecution, might differ from one jurisdiction to another. In such a scenario, the arbitrageur will engage in the conduct in the jurisdiction of lowest cost, and yet sell the resulting product to investors in jurisdictions where the costs would be higher, thus profiting on the price differential.34 A simple example is the case of an offshore non-bank entity that pro- vides the same investment services to U.S. investors as an investment bank, and yet is not subject to G20-mandated capital adequacy requirements. These capital adequacy requirements are intended to cushion the bank against the risk of failure, but the offshore non-bank entity is not subject to them— both because it is located offshore and because it is not a bank according to the G20’s definitions. This offshore non-bank entity pockets the substantial savings it incurs, relative to regulated banks, from not hav- ing to hold so much capital on reserve in order to sell its investment ser- vices to U.S. investors. 29. JOHN C. HULL, OPTIONS, FUTURES, & OTHER DERIVATIVES 658 (4th ed. 2000). 30. See id. at 14. 31. See generally HIROKAZU MIYAZAKI, ARBITRAGING JAPAN: DREAMS OF CAPITALISM AT THE END OF FINANCE (2013). 32. See id. at 34; HULL supra note 29, at 14 (“Arbitrage involves locking in a profit by R simultaneously entering into transactions in two or more markets.”). 33. See HULL, supra note 29, at 14; see MIYAZAKI, supra note 31, at 36. R 34. See HULL, supra note 29, at 14; see also MIYAZAKI, supra note 31, at 36. R \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 9 29-MAY-14 15:56 2014 Managing Regulatory Arbitrage 71 Note that in this example the non-bank is actually engaging in two distinct kinds of regulatory arbitrage— what we might term jurisdictional and categorical arbitrage. Jurisdictional arbitrage is, as the name suggests, a matter of profiting from differences in the laws of different jurisdictions. Categorical arbitrage, in contrast, involves profiting from a legal discrep- ancy between the treatment of two forms of conduct that are functionally the same— in this example, the creation of an entity that is not a bank in legal terms but functionally offers the same services as a bank. The prob- lem of categorical arbitrage is a longstanding subject of debate, albeit in another vocabulary, among legal scholars interested in the problem of legal “loop-holes” and the relative value of rules versus standards,35 and it also is discussed by domestic financial regulation experts interested in the relative merits and demerits of systems of multiple regulatory authorities versus systems of singular regulatory authorities for financial markets.36 Regula- tory arbitrage, in contrast, is typically understood in terms of the problem of transnational regulation— of the “offshore.”37 To date, legal scholars have not adequately recognized, as have the offshore non-banks, that these problems are one and the same. In brief, an arbitrage opportunity consists of two elements: (1) a functional (or economic) similarity among products such that one can substitute for another, and (2) a (relatively) stable formal difference of some kind that accounts for a difference in price among functionally equivalent products. This difference must be great enough that, once the arbitrageur subtracts the cost of arbi- trage itself, buying in one market and selling in another yields a profit. Imagine, for example, that one is arbitraging the cost of oil in one country versus another. One is buying oil where the price is low and sell- ing it where the price is high. Doing so depends on (1) a functional simi- larity between oil sold in both countries— the fact that oil is more or less the same thing wherever it is found, and (2) the fact that there is a stable price for oil in both markets that is different in the two markets. Or to be more precise, the price must be different enough that even when one fac- 35. See, e.g., Frederick Schauer, The Convergence of Rules and Standards (Ctr. for Bus. & Gov’t, John F. Kennedy Sch. of Gov’t, Harv. Univ., Regulatory Policy Program Work- ing Paper RPP-2001-07, 2001); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687 (1976); Saul Levmore, Double Blind Lawmak- ing and Other Comments on Formalism in the Tax Law, 66 U. CHI. L. REV. 915, 915 (1999); Symposium, Formalism Revisited, 66 U. CHI. L. REV. 527 (1999); David A. Weis- bach, Formalism in the Tax Law, 66 U. CHI. L. REV. 860, 860– 62 (1999) (discussing “anti-abuse rules” (standards) in tax law, and arguing that “standards prevent the tax law from being too complex.”); see also Rachelle Y. Holmes, Deconstructing the Rules of Corporate Tax, 25 AKRON TAX J. 1, 2– 7 (2010) (arguing that moving to “principles-based” tax rules would help close loopholes, as well as allowing “the corporate tax rules to be more adaptable in an evolving and complex global market” and “facilitate the ability of the United States to coordinate rules and policies with other jurisdictions.”). 36. See, e.g., GROUP OF THIRTY, THE STRUCTURE OF FINANCIAL SUPERVISION: APPROACHES AND CHALLENGES IN A GLOBAL MARKETPLACE (2008). 37. See, e.g., Victor Fleischer, Regulatory Arbitrage, 89 TEX. L. REV. 227, 243 (2010). \\jciprod01\productn\C\CIN\47-1\CIN103.txt unknown Seq: 10 29-MAY-14 15:56 72 Cornell International Law Journal Vol. 47 tors in the cost of shipping the oil from one market to another, one can still sell the oil at a profit. So arbitrage is an “art of association”38 of two things— a similarity, and a difference. I want to pause here for just a moment to appreciate how remarkably sophisticated arbitrage is as a mode of thinking.39 Arbitrage is a tool for appreciating both similarities and differences, all at once. The economic genius of arbitrage is that the similarity and the difference can be of virtually any kind.40 Indeed, the more unthinkable the connection, the more likely that arbitrage opportunities can be found and exploited. What distinguishes regulatory arbitrage is simply that all the relevant differences are differences of law or regulatory practice.41 Concretely, reg- ulatory arbitrage requires: (1) An interrelationship of financial markets resulting in a functional simi- larity among financial products across different financial markets. For example, it makes no functional difference to an investor if a swap is “booked” through the New York office of the investment bank or the Dubai office. The swap has the same functional value to the investor, wherever it “is.” Note that this interrelationship of financial markets, giving rise to func- tional equivalence, is itself the product of prior financial engineering and arbitrage of other kinds. (2) A relatively stable formal difference in the laws governing particular financial markets. The laws of New York and Dubai must be clearly ascer- tainable, relatively stable, and if there is a difference that affords some tax or regulatory advantage to our investor, she must be able count on the fact that this advantage probably will not disappear overnight. It must be worth her while to pay the cost of arbitrage— for example, of finding an investment advisor with an office in Dubai in order to reap the regulatory advantage of booking the transaction offshore. We will come to the important question of what makes for a relatively stable difference in law in Part II. What is immediately obvious from this definition is that regulatory arbitrage depends on a rich ecosystem of diverse regimes and types of law, which are not organized into any clear, coherent, hierarchical whole. International law and state law, state law and non-state law, and differing bodies of national law, such as insurance law and banking law, all contribute to blind spots and overlap between pieces of regulatory authority— the fact that both New York and Dubai may have a legitimate stake in regulating the transaction and may have the means to enforce their regulations. Regulatory arbitrage profits on these gaps and overlaps in regulation. 38. Daniel Buenza & David Stark, Tools of the Trade: The Socio-Technology of Arbitrage in a Wall Street Trading Room, 13 INDUS. & CORP. CHANGE 369, 374 (2004). 39. I am indebted to Hirokazu Miyazaki for making me appreciate this point. See generally MIYAZAKI supra note 31. See also Roberta Romano, Against Financial Regulation R Harmonization: A Comment 19 (Yale Law & Econ., Working Paper No. 414, 2010), avail- able at http://ssrn.com/abstract=1697348 (“[R]egulatory arbitrage is a key driver of financial innovation.”). 40. See MIYAZAKI, supra note 31, at 49; Beunza & Stark, supra note 38, at 375. R 41. See Fleischer, supra note 37, at 243. R