减少美国金融系统的系统性风险【外文翻译】 .doc

原文：The Reduction of Systematic Risk In The United States Financial SystemGoing forward, the central problem for financial regulation (defined as the prescription of rules, as distinct from supervision or risk assessment) is to reduce systemic risk. Systemic risk is the risk that the failure of one significant financial institution can cause or significantly contribute to the failure of other significant financial institutions as a result of their linkages to each other. Systemic risk can also be defined to include the possibility that one exogenous shock may simultaneously cause or contribute to the failure of multiple significant financial institutions. This Article focuses on the former definition because proper regulation could have the greatest potential to reduce systemic risk in this area.There are four principal linkages that can result in a chain reaction of failures. First, there are interbank deposits, whether from loans or from correspondent accounts used to process payments. These accounts were the major concern when Continental Illinois Bank almost failed in the mid-1980s. Continental held sizable deposits of other banks; in many cases, the amount of the deposits substantially exceeded the capital of the depositor banks. These banks generally held such sizable deposits because they cleared payments, such as checks or wire transfers, through Continental. If Continental had failed, those banks would have failed as well. Section 308 of the FDIC Improvement Act of 1991 gives the Federal Reserve Board powers to deal with this problem. The Act permits the Board to limit the credit extended by an insured depository institution to another depository institution. Limitation of interbank deposits may be feasible with respect to placements by one bank with another because the amount of credit extended is fixed for a given term. Indeed, it appears that the chain-reaction risk arising from bilateral credit exposures from overnight Federal Reserve funds transactions is quite low: Losses would not exceed one percent of total commercial banking assets as long as loss rates are kept to historically observed levels.Exposures are more difficult to identify with respect to interbank clearing accounts where the amount of credit extended is a function of payment traffic. For example, Bank A may be credited by its correspondent Bank B for an incoming wire transfer of $10 million. Bank A is thus a creditor of Bank B for this amount. If Bank B were to fail Bank A is seriously exposed. Without material changes in the payment system, such as forcing banks to make and receive all payments through Federal Reserve rather than correspondent accounts, it would be quite difficult to limit these types of exposures.Second, a chain reaction of bank failures can occur through net settlement payment systems. If one bank fails to settle its position in a net settlement system for large value payments, such as the Clearing House Interbank Payments System (CHIPS) in the United States, other banks that do not get paid may, in turn, fail. This risk was the major systemic risk concern of the Federal Reserve until CHIPS changed its settlement procedures in 2001 to essentially eliminate this risk.Third, a chain reaction of bank failures can occur through imitative runs. When one bank fails, depositors in other banks, particularly those whose deposits are uninsured, may assume that their banks may also fail and so withdraw their funds, exposing these banks to a liquidity crisis and ultimately to failure. This result comes from a lack of information in the market about what specifically caused the first bank to fail.(n15) The Federal Reserve plays the classic role of lender of last resort to stem irrational imitative runs in situations such as this one.Lastly, and especially prominent in the current crisis, a chain reaction of bank failures can occur as a result of counterparty risk on derivative transactions, such as credit default swaps (CDSs). ).Here the concern is that if institution X fails to settle its derivative position with institution Y, both X and Y will fail. If Y in turn cannot settle its positions, other institutions will also fail. This risk proved potentially significant in the failure of the hedge fund Long-Term Capital Management in 1998. Concerns of this type also underlay JPMorgan Chases assisted acquisition of Bear Stearns and the injection of federal funds into AIG.(n18) This is one area in which the failure of non-banks is a major concern, but the severity of this form of systemic risk and the degree of interconnectedness among financial institutions is currently unknown.(n19) A report by the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) on the governments investments in AIG indicated that Goldman Sachs, a major counterparty, would have been made whole in the event of an AIG default. The report further indicated that the Treasury and Federal Reserve were primarily concerned with losses that would be incurred by investors in AIG in the event of a default, including $10 billion of state and local government money, $40 billion in 401(k) plans, and $38 billion in retirement plans. The reports explanation of the governments action also mentioned concern over stemming runs on money market funds, which held $20 billion in AIG commercial paper. Similarly, in their recent testimony on the "Federal Bailout of AIG," Treasury Secretary Timothy Geithner and New York Federal Reserve General Counsel Thomas Baxter also emphasized factors other than derivatives counterparty risk, including the impact that the failure of AIG would have on money market funds, personal savings and retirement plans, and insurance policyholders. If prospective investor losses, rather than the fallout of interconnectedness, were the true basis for the government policy with respect to AIG, it may be that the concern with systemic risk is overstated. Further study and better disclosure from the Treasury and Federal Reserve is needed to support informed estimates of the magnitude of the problem. In any event, gauging the impact of systemic risk is difficult to determine and beyond the scope of this Article.The threat of systemic risk (whether real or imagined) results in both the need for government bailouts at taxpayer expense and in an increase in moral hazard. These results occur because both equity and debt holders, as well as counterparties, may be protected against losses. Of course, the government could decide not to intervene, but this laissez-faire approach could put the entire global economy at risk, an even worse outcome. As the financial crisis has illustrated, banks cannot always count on the government to cut off systemic risk when it occurs. The politics of supplying money to banks are unpopular and unsustainable by the Federal Reserve over the long term without intense public scrutiny and loss of independence.At the outset, it is also worth noting that the "Volcker Rules" and related limitations on bank size announced by the Obama Administration on January 21, 2009 do not have much if any potential to reduce systemic risk. The Volcker Rules would prohibit bank holding companies and all of their subsidiaries from engaging in proprietary trading, as well as from investing in or sponsoring hedge fund and private equity operations. Although President Obama has characterized proprietary trading as trading "unrelated to serving customers," a precise legal standard has not been given. The related size limitations were initially described as straightforward caps on each banks market share of non-deposit liabilities. As Deputy Treasury Secretary Neal Wolin describes, however, the size limits would not require banks to divest existing operations or restrict organic growth, but would instead limit banks ability to gain market share through mergers and acquisitions.The Volcker Rules are unlikely to reduce systemic risk for several reasons. First, banks generally engage in relatively little proprietary trading. For example, Wells Fargo and Bank of America, two of the largest deposit-funded banks, are estimated to earn less than 1% of revenues from proprietary trading. Second, activities that threaten the financial system do not occur only in banks. In fact, none of the most prominent failures of the financial crisis-Fannie Mae, Freddie Mac, AIG, Bear Stearns, or Lehman-was a deposit-taking bank. And third, focusing on proprietary trading ignores the real cause of the financial crisis: losses from lending and securitization. Goldman Sachs has estimated that losses from lending and securitization accounted for approximately 80% of overall credit losses incurred by U.S. banks.Nor should we expect reductions in systemic risk to result from the size limitations. An institution does not pose systemic risk because of its absolute size, but rather because of its debt, its derivatives positions, and the scope and complexity of its other financial relationships. Because the problem is not size but interconnectedness, reform should focus on reducing the interconnections so that firms can fail safely. Furthermore, even if size were the right issue, Mr. Wolins testimony implies that the size limitations would not require any existing bank to shrink. If size is the source of systemic risk, presumably we should be concerned about it whether it is the result of acquisition, organic growth, or otherwise.The draft legislation introduced by Senator Dodd on March 15, 2010 (the Senate draft) contained a modified version of the Volcker Rules and size limitations. Though the Senate draft calls on the Financial Stability Oversight Council to conduct studies of whether these reforms will reduce systemic risk before they are implemented, studies are not needed to confirm that benefits from these reforms will be negligible. Outright restrictions on proprietary trading proposed in the Senate draft would apply to insured depository institutions, companies that control insured depository institutions, bank holding companies, and all subsidiaries of the foregoing. The Dodd proposal is even more strict than Chairman Volcker recommended. According to Chairman Volcker it would be acceptable for Goldman Sachs to drop its bank charter and continue to engage in proprietary trading. However, under the Senate draft, Goldman would almost certainly be a systematically important nonbank financial company when it dropped its bank charter, and thus would continue to be supervised by the Federal Reserve. While Goldman could, as a non-bank, continue to engage in proprietary trading, it would be subject to Federal Reserve controls, including "additional capital requirements" and "additional quantitative limits."Thus, even if Goldman Sachs were to give up its bank charter, it would be required to hold additional capital against its proprietary trading positions. Because institutions that are systemically important are likely to be more thoroughly regulated than those that are not, this could encourage proprietary trading to shift to less carefully monitored firms, thereby increasing systemic risk. Saddling non-bank financial companies engaged in proprietary trading with additional capital requirements is thus problematic.This Article addresses what I regard as the five most important policies for dealing with systemic risk: the imposition of capital requirements (or limits on leverage), the use of clearinghouses and exchanges for over-the-counter derivatives, the resolution of insolvent institutions, the emergency lending by the Federal Reserve, and the structure of the regulatory system as it affects the control of systemic risk.II. Capital Requirements Ex ante, regulatory capital requirements have been the chief measure to reduce systemic risk. Capital requirements, which have focused principally on banks, are designed to decrease the likelihood of financial institution failure. If institutions do not fail, the problem of systemic risk largely disappears. Capital requirements have been highly regulated for a long time. Since 1988, the requirements have been standardized worldwide by the Basel Committee on Bank Supervision. The United States implemented Basel I and is in the process of implementing Basel II for banks and their holding companies. The SEC had already implemented Pillar I of Basel II for securities firms holding companies before the onslaught of the credit crisis. These capital requirements proved highly inadequate. The SECs Basel II-based rules permitted the top five major investment banks to achieve leverage of over thirty to one.(Insufficient capital was a significant cause of the failure of Lehman Brothers and Bear Stearns. Insufficient capital also played a major role in forcing Merrill Lynch to sell itself to Bank of America. Indeed, the most intensive and detailed area of regulation, capital, has proven ineffective. This failure demonstrates that more regulation does not necessarily translate into less systemic risk.Source: Scott,Hal S, 2010. “The Reduction of Systematic Risk In The United States Financial System”. Harvard Journal of Law. pp.2-5.译文：减少美国金融系统的系统性风险一、系统性风险减少:核心问题 展望未来,中央金融监管问题(指处方的规则,有别于监督或风险评估)是减少系统性风险。系统性风险是没有一个重要的金融机构可以导致或有助于失败的其他重要金融机构的联系。系统性风险也可以确定的可能性,包括一个外来冲击,同时可导致失败的多种重要金融机构。这篇文章的重点是前定义,因为可以适当规管最大的潜力,减少系统性风险。主要有四种联系可以导致连锁反应失败。第一,有银行同业存款,无论从贷款或代理账户用于处理付款。这些账户主要关注的是大陆伊利诺斯银行。大陆举行了大量存款的其他银行，在许多情况下,该笔存款数量大幅超过资本的储户银行。这些银行普遍拥有庞大存款, 因为他们能够清楚的付款,例如通过大陆检查或电汇。如果大陆失败,这些银行就会失败。第308联邦存款保险公司改进了1991年美国联邦储备委员会的力量来处理这个问题。该法案允许董事会限制信贷保险的存款机构到另一个存款机构。事实上,看来连锁风险双边信贷风险从占联邦储备资金是相当低，损失将不超过百分之一的商业银行资产总额只要损失率保持在历史上观察到的水平。 风险更难确定关于银行同业结算账户的金额的信贷是一个功能的支付交通。例如,银行A可贷记其代理银行B转帐1000万美元。对B银行这笔款项来说银行A是一个债权银行。如果银行B失败银行A是严重暴露。没有重大变化的支付系统,如迫使银行,并得到所有支付联邦储备而不是代理账户, 它会比较困难的限制这些类型的动向。第二,连锁失败的银行可以通过净结算支付系统。如果一个银行未能解决其地位净结算系统的大额支付,如银行同业支付结算系统(芯片)在美国,其他银行,并不可能支付,反过来则是失败的。这种风险是对重大系统性风险的关注,美国联邦储备委员会在2001年改变了芯片解决程序,基本上消除这种风险。第三,连锁失败的银行可以通过模仿运行。当一个银行失败,在其他银行存户,特别是那些存款没有医疗保险, 可能认为他们的银行也要失败,所以撤回他们的资金,使这些银行流动性发生危机并最终失败。这一结果来自缺乏市场信息使第一银行造成失败。在这种情况下，美国联邦储备委员会发挥作用以阻止模仿运行。最后,特别是突出在目前的危机,一个连锁的银行可能会出现失误,结果造成对方的风险,衍生工具交易,如信用违约换汇。在这里关注的是,如果机构X未能解决其衍生立场与机构y, X和Y将失败。 如果y又无法解决自己的立场,其他机构也将失败。这种风险可能显著的证明了在1998年对冲基金长期资金管理公司的失败。这种类型的关注也涉及了摩根大通辅助收购贝尔斯登及在美国国际集团的联邦基金。非银行机构发放在某一方面的失败是一个主要关注的问题,但这种严重的系统性风险的程度和金融机构之间相互联系是目前不明确的。公布的一份报告显示特殊的检察长为翻腾的资产的救济程序在政府的投资表明,高盛集团的主要对手在美国国际集团的默认值。报告进一步表示,财政部和联邦储备委员会主要是关心的是在美国国际集团的投资者的情况下,默认的设置中所造成的损失,包括100亿美元州和地方政府的钱, 40亿美元的养老金计划和380亿美元退休计划。该报告对政府的行动也提到表明关注运行在货币市场基金于200亿元在美国国际集团的商业票据。同样,在其最近的证词“联邦缓急,美国国际集团”财政部长蒂莫西盖特纳和纽约联邦储备委员会一般律师托马斯巴克斯特还强调衍生品交易对手以外的其他因素, 包括在货币市场基金中影响美国国际集团的失败、个人储蓄和退休计划、保险的保单。如果准投资者损失不是相互关联的影响,是真正的基础上的政府政策 ,那可能是系统性风险的夸大。进一步研究和更好地披露财务和联邦储备委员会,以支持知情估计问题的严重性。在任何情况下,量规系统性风险的影响是很难决定的,远远超出了本文所涉及的范围。威胁的系统性风险(不论是真实或想像的)结果,需要政府在纳税人救援费用和道德风险上面的增加和防范。这些结果可能发生因为股票和债券持有人,以及交易对手,可免受损失。当然,政府可以决定不进行干预,但这种自由放任办法可以把整个全球经济的处于风险当中,甚至更糟的结果。金融危机表明,银行不能永远相信政府切断系统性风险的存在。在政治上,向银行提