DOCSLIB.ORG

Pension Regulation and Supervision 1 November 2019

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Pension Regulation and Supervision 1 November 2019 Pension Regulation and Supervision 1 November 2019 Richard Hinz, Fiona Stewart World Bank Pensions Core Course Pension Regulation 2 Regulation: Legal Foundations and System of Rules and Regulations Governing the Structure and Operation of Pension Funds Establish form of system and Distinction “empower” various parties to perform functions or protect interests between Supervision: Regulation Oversight and Enforcement of Compliance With The Rules + Collection of information and Supervision monitoring of system to support review and analysis 3 Vulnerability To Old Age Poverty Leads to Less Risk Tolerance Why Pension Potentially a High Proportion of Funds are Average Member’s Wealth Different Less Sophisticated Clientele – From More Likely Low Income and Less Other Educated if System is Mandatory Savings? Limited Choice By Consumer Due to Mandates and Constrained Products 4 Specialized Financial Intermediary Long Time Horizon Low Liquidity Needs Attributes Heterogeneous Risk Tolerance Often Multiple Levels of Intermediation When Employers or Worker Associations are of Private Involved Pensions Use of Commercial Service Providers Creates Complex Incentive Problems Possible High Fiscal Exposure Through Tax Treatment and Guarantees 5 Address Market Compensate for Imperfections Asymmetric Theoretical and Failures Information Basis of Control Overcome Need for Potential Moral Consumer Regulation Hazard Myopia and Stimulate Supervision Competition and Efficiency 6 Systemic – Vulnerability to Macro Conditions Portfolio – Quality of Types of Investments Agency – Incentives of Risks to Be Individuals and Institutions Addressed Principal – Member’s Knowledge and Experience 7 Rules Defining the Structure and Main Organization of Funds Aspects of Regulation Requirements for the Common Operation of Funds to All Authority for Systems Supervision, Sanctions & Remedial Action 8 I Structure of Pension Funds Licensing of Governance of Fund Operators Funds Capital and Segregation of Reserves Assets Custody of Assets 9 II Operation of Pension Funds INVESTMENT EXTERNAL AUDIT REPORTING AND LIMITS ON FEES GUIDELINES REQUIREMENT DISCLOSURE AND EXPENSES GUARANTEES 10 III Supervision, Sanctions and Remedial Action GOVERNMENT AGENCY WITH LEGAL VENUE AND RIGHTS OF MEMBERS AND OVERSIGHT AND GUIDELINES FOR VENUE FOR RESOLUTION OF REGULATORY AUTHORITY APPLICATION OF SANCTIONS DISPUTES – PUNITIVE AND REMEDIAL 11 Two Stylized Models Many Systems Incorporate Elements of Both LATIN AMERICAN/CENTRAL ANGLO AMERICAN EUROPEAN • Mandatory Personal Accounts • Voluntary Employment Based DB and DC • Special Purpose Investment Companies • Employer Managed Trusts • Primary Intermediation • Secondary Intermediation • Open Funds • Closed funds 12 Structure • Pension Funds Are Profit Making Commercial Entities • Stockholders and Officers Establish Latin Authority American/ Rules for Operations • Directive Outcome Oriented Rules Central • Define Specific Limits and Practices European Supervision • Directive and Proactive • Daily Reporting, Pre-emptive Authority 13 Structure • Trust based, Not-for Profit Entities • Governance on Behalf of Members, • Agents Rather Than Principals Rules for Operations Anglo- • Process Based – Prudent Man Rules, Control of Transactions American • Agency/Relationship Oriented - Conflict of Interest Prohibitions Supervision • Exception Basis , Re-active • Remedial and Punitive 14 Regulatory Structure of Latin American Systems Specific Entry Requirements w/ Capital and Reserve Requirements Small Number of Entities Permitted Quantitative Investment Standards Extensive Interaction and Monitoring Preventive Sanctions 15 Rationale for Latin American/Central European Approach Low Risk Tolerance of Worker •Mandatory Pension Major Source of Security •Less Sophisticated, Experienced Population More Volatile Environment •Higher Exposure to Macro Instability •Less Developed Primary Financial Regulation Lower Opportunity Costs •Less Diverse Financial Products •Less Competitive Markets Higher Fiscal Exposure Through Politically Necessary Guarantees 16 Regulatory Structure Of Anglo-American Systems Minimal or No Entry Requirements - Registration Large Number of Funds “Prudent Expert” Investment Standards Reliance on Disclosure to members High Reliance on Other Financial Services and Regulation of Professions Exception Based Interventions Remedial/Corrective Sanctions 17 Rationale For Anglo- American Approach Higher Risk Tolerance •Primarily Voluntary Occupational Funds •Supplement Universal Public Pension Programs – More concentration in higher income groups Highly Developed Primary Financial Services Regulation Extensive System of Civil Law and Liability – Private Rights of Action Potential High Opportunity Losses from Restrictive Regulation Typically Limited Public Guarantees 18 Comparison Security – Efficiency Tradeoffs Stage of Development – Movement To Convergence Over Long Run Practicality: Small vs Large Number of Funds Different Reliance on Market Forces and Competition 19 Notable Developments and Trends Required risk Introduction of Solvency Licensing, Training and management Standards Linked to “Fit and Proper” architecture, Market Derived Criteria Requirements for procedures or – VAR and Asset Liability Trustees governance oversight Matching Models groups Harmonization with other Financial Movement to Multiple Introduction of Regulations – Portfolios and Age Automatic Enrollment Investment Advice and Based Portfolio Choices and Default Portfolios commissions emerging as key issues Minimum Annutizations, Increased Limitation of Greater Reliance on Programmed Permissible Fees and Market Disclosure Withdrawals and Phased Expenses Retirement 20 Basic Elements of Pension Regulatory Law Statutory (Legislative) Establishes Basic Framework and Rules of System Creates Source of Regulator/Supervisors Authority Interpretive (Regulatory) Extends statutory provisions to make Three system operational levels Capacity to adjust to changing conditions, new products & practices Oriented to Standards and Procedures Implementation (Judicial) Application to specific facts and circumstances 22 Civil vs Common Law Environment Underlying System Design (Trust vs Pension Companies) Strength of Mobilization of Interest Considerations Groups & Expectation of Opposition in Allocation Among Levels Time for Development Independence and Technical Capacity Regulator Quality and Independence of Judiciary 23 Main Elements That Need To Be Addressed in Some Form Legal Status and Governance of Funds Definition and Holding of Assets Licensing and Entry Requirements Structure and Scope of Regulatory/Supervisory Authority Rule Making/Interpretive Procedures Funding Source for Regulator/Supervisor 24 Main Elements (continued) Relationship of Pension Law to Other Laws Controlling Financial Services Individual Rights and Dispute Adjudication Withdrawal Requirements and Access to Funds Liability Structure and Delegations Tax Treatment of Pensions 25 Main Elements (continued) Reporting, Data and Records Conflict of Interest Prohibitions Fees and Expenses Investment Requirements or Prohibitions Penalty and Enforcement Structure 26 No Right or Wrong System - Like Good Architecture - Form Follows Function Context is Key Determinant CONCLUDING Objective and Tradeoffs Define Systems - Every Approach is Inevitably a Compromise THOUGHTS Optimize Through Evaluating Objectives, Structure and Priorities Assume Regulated Will Always Be Well Paid, Creative and Motivated To Find A Way To Get To The Money 27 Pension supervision Approaches to Supervision Risk-based Supervision and what it means for Pensions AGENDA New Supervisory Risk: Climate New Supervisory Risk: Cyber 29 Basics of Supervision 30 Supervisory Approaches 31 SUPERVISORY STEPS Market Development Enforcement Monitoring / Inspection Reporting Registration / Licensing 32 Types of Supervisory Structure Integrated Supervisory Authority Independent Pension Supervisory Authority • Better for conglomerates • Pensions sufficiently different • Avoids regulatory arbitrage • Cross sector gains don’t materialize • Economies scale • Coordination between authorities • Share information across financial can achieve same effect sectors Lessons Learnt • Some structures more appropriate for certain circumstances (e.g. occupational pensions more suited to independent supervisory authority / developing economies may want to keep resources in integrated authority or central bank) • Structure is not the most important thing – authorities which are focused, disciplined and communicate will deliver whatever the structure 33 IOPS Working Papers No. 1+16 What is Risk-based Supervision? A structured approach focusing identifying potential risks faced by pension funds and assessing the financial and operational factors in place mitigate those risks. This process then allows the supervisory authority to direct its resources towards the issues and institutions which pose the greatest threat. Can be applied in many different ways • quantitative measures of risk vs. qualitative judgement of risk management • risk-scores for each entity vs. analysis of risks systemic to pension system • identify weak areas within a supervised entity vs. which institutions amongst thousands may pose the greatest threat Elements common to all RBS systems • Determine objectives of supervisory authority + greatest risks to these • Assess hazard or adverse events + likelihood of these occurring • Assign scores and / or ranks to firms or activities based on assessments
Load more

Recommended publications
  • Core Principles of Private Pension Regulation
    OECD CORE PRINCIPLES OF PRIVATE PENSION REGULATION G20/OECD INFE CORE COMPETENCIES FRAMEWORK ON FINANCIAL LITERACY FOR ADULTS OECD Core Principles of Private Pension Regulation Photo credits: Thinkstock/Maryna Maschewsky © OECD 2016 FOREWORD Foreword The OECD Core Principles of Private Pension Regulation serve to encourage more efficient regulation and management of private pension systems. Private pensions play a major and growing role in complementing retirement income from public sources in OECD countries and worldwide. Their importance in ensuring adequate pension provision is increasing as government revenues are less able to finance retirement promises. The economic crisis led to a loss of public confidence in private pensions in many countries which needs to be reversed in order to encourage individuals to save for retirement. At the same time, the financial sustainability, solvency and adequacy of private pensions are challenged by population ageing and by an economic environment characterised by low growth, low returns and low interest rates. Efficient regulation and management of private pension systems are essential to withstand these pressures and to rebuild trust in private pensions. The OECD, in coordination with pension regulators across OECD countries, has updated and expanded the OECD Core Principles of Occupational Pension Regulation, first adopted in 2009. The 2016 OECD Core Principles of Private Pension Regulation provide governments, regulators and supervisors worldwide with a relevant common benchmark and high-level guidance on the design and operation of private pension systems. These revised Principles now include all funded pension arrangements, reflecting changes in the nature of private pension provision, especially the rise in defined contribution and personal pension plans; they aim to strengthen the regulatory framework of funded pension systems in order to promote the sound and reliable operation of private pension plans and thereby protect members' savings.
    [Show full text]
  • Scholarship@PITT LAW Gatekeeping
    Pittsburgh University School of Law Scholarship@PITT LAW Articles Faculty Publications 2004 Gatekeeping Peter B. Oh University of PIttsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Part of the Banking and Finance Law Commons, Business and Corporate Communications Commons, Business Intelligence Commons, Business Organizations Law Commons, Corporate Finance Commons, Evidence Commons, Finance and Financial Management Commons, and the Securities Law Commons Recommended Citation Peter B. Oh, Gatekeeping, 29 Journal of Corporation Law 753 (2004). Available at: https://scholarship.law.pitt.edu/fac_articles/134 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. Gatekeeping Peter B. Oh* ABSTRACT Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive
    [Show full text]
  • Constitution of the Puntland State of Somalia
    CONSTITUTION OF THE PUNTLAND STATE OF SOMALIA December 2009 English Translation November 2011 .• Puntland State was created in 1998 through a consultative agreement among the different regions that constitute Puntland. The creation of Puntland State emerged from Somalia's failure to re-establish an inclusive national government for eight years. The people of Puntland realized they could not continue without a government. It was then decided in the constitutional conference of 1998 that Punt land would become a state that would be part of a federal Somalia. A charter was approved in that same 1998 conference and later replaced with a provisional constitution that was approved by members of the House of Representatives in 200 l. A referendum on the constitution was to have taken place in 2004, although this was not accomplished. Since it was not possible to hold a referendum on the constitution it was decided that the constitution would continue in force while undergoing review. The constitutional review process began in May 2007 and continued until June 2009. In the review process, meaningful opinions were contributed from different sectors of Puntland society, such as Somali lawyers and foreign lawyers. Therefore, the new constitution was drafted to become the law of the people of Puntland and was based on the Islamic shari'a and, at the same time, the constitution guides the system of governance, and thus brings collaboration and order among the different government institutions of the state. It is important to mention that this constitution will have an impact on the life of every Puntlander, because no nation may exist without laws, and therefore this constitution brings order among citizens and moreover entrenches their human rights and responsibilities so that they may attain social and economic development.
    [Show full text]
  • Understanding the Regulatory Framework Governing Private and Public Pensions
    fraserinstitute.org Contents Executive summary / iii 1. Introduction / 1 2. Basics of pension plans / 3 3. What laws govern pension plans? / 13 4. Regulatory differences between CPP and other pension plans / 18 5. Concluding thoughts and future research / 20 References / 21 Appendix: Characteristics of various private and public pension plans / 24 About the authors / 44 Acknowledgments / 44 Publishing information / 45 Supporting the Fraser Institute / 46 Purpose, funding, & independence / 46 About the Fraser Institute / 47 Editorial Advisory Board / 48 fraserinstitute.org / i fraserinstitute.org Executive summary A common argument made to expand the Canada Pension Plan (CPP) is that it is cheap to administer. While many studies have cast doubt on this claim, why would a public pension plan be cheaper to administer than a private one? Many factors affect the cost of running a pension plan, but a crucial yet over- looked factor is the regulatory landscape that private pension plan managers must adhere to and the regulations that their public sector counterparts are exempt from. This paper examines the regulatory requirements among various types of public and private pension plans to determine whether private pension plans are at a cost disadvantage with respect to public ones, with a specific focus on the CPP. In short, the paper finds that the CPP—due to its charac- teristics and legal obligations—enjoys a marked cost advantage over other pension plans. First, consider the legal responsibilities of the various plan administra- tors. Broadly speaking, private pension plans are subject to a variety of statu- tory and common law regulations. These require the pension plan admin- istrators to act as fiduciaries.
    [Show full text]
  • How the Bureaucracy and the Courts Abandoned Their Intended Roles Under ERISA
    Pace Law Review Volume 34 Issue 1 Winter 2014 Article 6 January 2014 A Failure to Supervise: How the Bureaucracy and the Courts Abandoned Their Intended Roles under ERISA Lauren R. Roth NYU School of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Courts Commons, Labor and Employment Law Commons, and the Retirement Security Law Commons Recommended Citation Lauren R. Roth, A Failure to Supervise: How the Bureaucracy and the Courts Abandoned Their Intended Roles under ERISA, 34 Pace L. Rev. 216 (2014) Available at: https://digitalcommons.pace.edu/plr/vol34/iss1/6 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. A Failure to Supervise: How the Bureaucracy and the Courts Abandoned Their Intended Roles under ERISA Lauren R. Roth* I. Introduction In 1922, Roscoe Pound wrote that “[w]ealth in a commercial age is made up largely of promises.”1 The primary purpose of the Employee Retirement Income Security Act of 1974 (“ERISA”) was to ensure that employers honored their promises to pay pension benefits to employees.2 Congress had to protect employees, however, without discouraging employers from voluntarily providing pension plans.3 As part of that balancing act, Congress decided to delegate substantial responsibility for administering ERISA to employers whose fiduciary role mandates that they protect employees who participate in ERISA plans (“participants”) and their beneficiaries.4 * Copyright © 2014.
    [Show full text]
  • OECD Guidelines for Pension Fund Governance
    DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS OECD guidelines for pension fund governance RECOMMENDATION OF THE COUNCIL These guidelines, prepared by the OECD Insurance and Private Pensions Committee and Working Party on Private Pensions, were adopted by the OECD Council on 28 April 2005. 1 1. The OECD Ministers agreed in 2002 “that implementation of best practices in corporate and financial governance entails an appropriate mix of incentives, balanced between government regulation and self-regulation. [They] seek to improve such governance to enhance transparency and accountability and thereby strengthen investor confidence and the stability and resilience of financial markets”. 2. The emphasis on financial governance as well as broader corporate governance reflects both the essential role of financial markets in the economy and the distinct risks and responsibilities of the sector. The emphasis on governance is because, even in highly regulated sectors, regulation alone cannot achieve the good practice necessary for integrity and effectiveness. Companies themselves must develop internal rules and systems in order to reach these goals, but governments and international bodies can provide guidance on these rules and systems. 3. In this perspective, the work on pension funds governance undertaken by the Working Party on Private Pensions was intended to capture the specificities of the governance of pension funds and to complement the revised OECD Principles of Corporate Governance1. 4. The Governance of pension funds must address sector specific issues related, for instance, to the responsibilities of fiduciaries, rights of beneficiaries/policyholders, risk management techniques or the non-corporate nature of numerous pension funds. Pension funds may be established as special purpose legal entities (pension entities), such as trusts, foundations, and corporate entities, that own and may also control the pension fund on behalf of the pension plan/fund members.
    [Show full text]
  • Somalia (Puntland & Somaliland)
    United Nations Development Programme GENDER EQUALITY AND WOMEN’S EMPOWERMENT IN PUBLIC ADMINISTRATION SOMALIA (PUNTLAND & SOMALILAND) CASE STUDY TABLE OF CONTENTS KEY FACTS .................................................................................................................................. 2 ACKNOWLEDGEMENTS ............................................................................................................ 3 EXECUTIVE SUMMARY.............................................................................................................. 4 METHODOLOGY ........................................................................................................................ 6 CONTEXT .................................................................................................................................... 7 Socio-economic and political context .............................................................................................. 7 Gender equality context....................................................................................................................... 8 Public administration context .......................................................................................................... 12 WOMEN’S PARTICIPATION IN PUBLIC ADMINISTRATION .................................................16 POLICY AND IMPLEMENTATION REVIEW ............................................................................18 Post-Conflict Reconstruction and Development Programme ................................................
    [Show full text]
  • A Comparative Review of Pension Policies in Two OECD Countries
    Modern Economy, 2011, 2, 850-861 doi:10.4236/me.2011.25095 Published Online November 2011 (http://www.SciRP.org/journal/me) Many Roads to Paris: A Comparative Review of Pension Policies in Two OECD Countries Jacob Assa New School for Social Research, New York, USA E-mail: [email protected] Received April 26, 2011; revised June 23, 2011; accepted July 27, 2011 Abstract Common (neoliberal) wisdom warns against the detrimental effects of demographic changes and fiscal pres- sures on traditional (both defined-benefit and public) pensions and urges a paradigm shift towards defined- contribution plans and personal retirement accounts. This paper examines these claims, promoted by the OECD and World Bank, among others, by comparing the experiences of two OECD members—Israel and Ireland. While Ireland, one of the founders of the OECD, has pursued typical neoliberal policies of re- trenchment, Israel—the newest member of the OECD—has taken a more sinuous path, reversing some re- trenchment and eventually making pensions mandatory and almost doubling employer contributions to them. The outcomes of these policies seem to be far more positive in Israel than in Ireland, both in terms of their effects on retirees and workers, as well as their impact via aggregate demand on the overall economy, par- ticularly in the aftermath of the Great Recession. Keywords: Welfare, Demography, Retirement, Pension 1. Introduction economy. The purpose of this paper is to examine these claims— Pension policies are often at the forefront of political and as well as the accompanying policy prescriptions—in economic debates, even more so now following the larg- light of the evidence, using a comparative study of two est recession since the Great Depression.
    [Show full text]
  • Core Principles of Occupational Pension Regulation
    OECD RECOMMENDATION ON CORE PRINCIPLES OF OCCUPATIONAL PENSION REGULATION This Recommendation was approved by the OECD Council on 5 June 2009. RECOMMENDATION ON CORE PRINCIPLES OF OCCUPATIONAL PENSION REGULATION THE COUNCIL, Having regard to Article 5 b) of the Convention on the Organisation for Economic Co-operation and Development of 14 December 1960; Having regard to the previous Recommendation on Core Principles of Occupational Pension Regulation adopted on 30 March 2004 which is replaced by the present Recommendation; Recognising the important role played by private pensions in the retirement income systems worldwide; Recognising the important economic and social role played by occupational pension plans, including the role of employers as plan sponsors; Recognising the need for appropriate regulation and supervision of occupational pension systems; Recognising the desirability of an authoritative set of core principles and guidelines for occupational pension regulation and supervision, On the proposal of the Insurance and Private Pensions Committee: RECOMMENDS that Members, in establishing, amending or reviewing their occupational pension regulations in accordance with their own political, administrative and legal context, take due account of the Core Principles of Occupational Pension Regulation and their associated guidelines which are set out in the Annex to this Recommendation and which form an integral part thereof. INVITES Members to disseminate these core principles among public and private sector institutions involved in the management of private pension systems as well as organisations that represent the interests of pension plan members and beneficiaries. INVITES non-Members to take due account of this Recommendation and, where appropriate, to adhere to it under conditions to be determined by the Insurance and Private Pensions Committee.
    [Show full text]
  • Why Have Defined Benefit Plans Survived in the Public Sector?
    State and Local Pension Plans Number 2, December 2007 WHY HAVE DEFINED BENEFIT PLANS SURVIVED IN THE PUBLIC SECTOR? By Alicia H. Munnell, Kelly Haverstick, and Mauricio Soto* Introduction While 401(k) plans now dominate the private sec- different. Unlike private sector firms, state and local tor, defined benefit plans remain the norm among governments are perpetual entities. They do not dis- state and local governments. Why have public sector appear — like many of the large manufacturing firms employers not shifted from defined benefit plans to — taking their plans with them, and they are much 401(k)s like their private sector counterparts? less concerned about the financial volatility associated This brief examines the unique factors affecting with defined benefit plans. States and localities can the two sectors that may explain their very different also increase required employee contributions to keep patterns of pension coverage. State and local govern- the plan’s finances under control. Finally, the public ments have an older, less mobile and more risk-averse sector has not had comprehensive pension regulation workforce, with a higher degree of unionization to like the Employee Retirement Income Security Act of press for benefits that satisfy the needs of these work- 1974; the absence of such regulation lowers adminis- ers. The nature of the employer is also fundamentally trative costs and enables later vesting. *Alicia H. Munnell is the Peter F. Drucker Professor of Man- agement Sciences in Boston College’s Carroll School of Manage- LEARN MORE ment and Director of the Center for Retirement Research at Boston College (CRR).
    [Show full text]
  • Trusts No More: Rethinking the Regulation of Retirement Savings in the United States Natalya Shnitser
    BYU Law Review Volume 2016 | Issue 2 Article 8 March 2016 Trusts No More: Rethinking the Regulation of Retirement Savings in the United States Natalya Shnitser Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Banking and Finance Law Commons, and the Retirement Security Law Commons Recommended Citation Natalya Shnitser, Trusts No More: Rethinking the Regulation of Retirement Savings in the United States, 2016 BYU L. Rev. 629 (2016). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2016/iss2/8 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 05.SHNITSER.FIN (DO NOT DELETE) 8/4/2016 6:38 PM Trusts No More: Rethinking the Regulation of Retirement Savings in the United States Natalya Shnitser∗ The regulation of private and public pension plans in the United States begins with the premise that employer-sponsored plans resemble traditional donative, or gift, trusts. Accordingly, the Employee Retirement Income Security Act of 1974 (ERISA) famously “imports” major principles of donative trust law for the regulation of private employer-sponsored pension plans. Statutes regulating state and local government pension plans likewise routinely invoke the structure and standards applicable to donative trusts. Judges, in turn, adjudicate by analogy to the common law trust. This Article identifies the flaws in the analogy and analyzes the shortcomings of a regulatory framework that, despite dramatic changes in the nature of modern pension benefits, still regards employees as gift recipients, grants both settlor and trustee rights to employers, and relies increasingly on trust-based fiduciary obligations to prevent employers from prioritizing the interests of their non-employee stakeholders over the interests of pension plan participants.
    [Show full text]
  • Prudent Person Rule” Standard for the Investment of Pension Fund Assets*
    “PRUDENT PERSON RULE” STANDARD FOR THE INVESTMENT OF PENSION FUND ASSETS* In recent years, there has been remarkable growth in privately managed pension assets in many OECD and non-OECD countries. In some countries – such as Australia, Ireland, the United Kingdom, and United States – privately-funded pension programmes have been in place for sometime, although undergoing seemingly constant change in regulatory detail. In these countries, a number of incremental changes, including the introduction of sometimes substantial, new types of privately-funded retirement savings opportunities, have contributed to the growth trend. In other countries – for example, Hungary, Poland and Mexico – the growth of privately managed pension assets has been caused by the implementation of broader, wholesale reforms intended to reduce reliance on unfunded, government-sponsored social security and pension programmes. In light of the demographic and fiscal pressures facing many countries, we likely can anticipate continuation of governmental efforts to encourage the accumulation of privately managed pension assets. The manner in which these assets are invested and the way in which that investment is regulated and supervised are crucial to the success of these privately funded pension programmes. The regulation and supervision of pension assets has two main goals: First, to assure the safety and security of those assets and second, to create an environment in which asset management can obtain the best returns at an acceptable level of risk. How best to achieve these goals has been the subject of intense debate in both OECD and non- OECD countries in recent years, especially those that have established or are in the process of establishing funded pension programmes and, in particular, those in which assets are managed by private sector institutions.
    [Show full text]