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Vol. 9, Part 1, Pp Volume 9 – Part 2 – 2020 ISSN 2050-9014 LAW AND ISSUES ON FINANCIAL MARKET REGULATION, ECONOMICS BUSINESS DEVELOPMENT AND YEARLY GOVERNMENT’S POLICIES ON REVIEW GLOBALIZATION Editors F. CAPRIGLIONE – R. M. LASTRA – R. MCCORMICK C. PAULUS – L. REICHLIN – M. SAKURAMOTO in association with LAW AND ECONOMICS YEARLY REVIEW www.laweconomicsyearlyreview.org.uk Mission The “Law and Economics Yearly Review” is an academic journal to promote a legal and eco- nomic debate. It is published twice annually (Part I and Part II), by the Fondazione Gerardo Capriglione Onlus (an organization aimed to promote and develop the research activity on fi- nancial regulation) in association with Queen Mary University of London. The journal faces questions about development issues and other several matters related to the international con- text, originated by globalization. Delays in political actions, limits of certain Government’s poli- cies, business development constraints and the “sovereign debt crisis” are some aims of our studies. The global financial and economic crisis is analysed in its controversial perspectives; the same approach qualifies the research of possible remedies to override this period of progressive capitalism’s turbulences and to promote a sustainable retrieval. Address Fondazione Gerardo Capriglione Onlus c/o Centre for Commercial Law Studies Queen Mary, University of London 67-69 Lincoln’s Inn Fields London, WC2A 3JB United Kingdom Main Contact Fondazione G. Capriglione Onlus - [email protected] Editor‐ in‐ Chief F. Capriglione Editorial Board G. Alpa - M. Andenas - A. Antonucci - R. Olivares-Caminal - G. Conte - M. De Marco - M. Hirano - A. Kokkinis - I. MacNeil - M. Martinez - M. Pellegrini - C. Schmid - M. Sepe - A. Steinhouse - V. Troiano - V. Uskov Editorial Advisory Board F. Buonocore - N. Casalino - I. Kokkoris - A. Miglionico - D. Siclari ISSN 2050‐9014 Review Process 1. Articles and case notes submitted to the Review will be reviewed by at least two reviewers (chosen among the Editorial Board members) and, where necessary, by an external advisor. 2. Any paper will be submitted by the Editorial Board – anonymously, together with an evaluation form – to the reviewers for an overall assessment. 3. In case of a single negative evaluation by one of the reviewers, the Editor-in-chief may assume the responsibility to publish the paper having regard to highlight this circumstance. 4. In any case, the submission of the paper or its positive evaluation does not provide any right to the author to ask for the publication of the paper. Fondazione Gerardo Capriglione Onlus may reproduce articles published in this Review in any form and in any other publications. CONTENTS Governor Ciampi and the “Ambrosiano case”: international banking supervision and monetary policy .................................................................................................... 249 Rainer Masera Sharpening the teeth of EU social fundamental rights? The case of State Pension Age................................................................................................................................. 271 Andrea Minto - H. van Meerten A look at EU-UK trade relations in light of Brexit, pandemic and the trade and cooperation agreement... ............................................................................................. 281 Marcello Minenna FOCUS ON GLOBAL PERSPECTIVES Impacts, challenges and trends of digital transformation in the banking sector...341 Richard Baskerville - Francesco Capriglione - Nunzio Casalino A strategic framework for the Constitutional Court... ............................................ 363 Bruno Chiarini - Maria Carmela Aprile 1 GOVERNOR CIAMPI AND THE “AMBROSIANO CASE”: INTERNATIONAL BANKING SUPERVISION AND MONETARY POLICY Rainer S. Masera ABSTRACT: Following bank failures in 1974, notably in Germany (Bankhaus Herstatt of Cologne on June 16) and the US (Franklin National Bank of New York on October 8), the Central Bank Governors of the G10 countries decided to set up a Committee at the BIS in Basel to improve quality and enhance the effectiveness of banking supervision. The Eurodollar market and the rise of offshore financial centers had concurred to create an increasingly interlinked web of international banking transactions. The system of national supervision of domestic banking system had to be completed by incisive and coordinated action at international level, also to cope with the vulnerability to frauds and interactions with organized crime. The Basel Committee issued in December 1975 the Concordat, which provided a framework for international banking supervision and made a distinction between solvency and liquidity. It was within this emerging frame of reference that the Bank of Italy and the Revised version of a paper – in Italian – presented at a Seminar organized by the Banca d’Italia. Ignazio Visco e Marco Magnani “Carlo Azeglio Ciampi, Governatore della Banca d’Italia”, Roma 9 luglio 2019. I am grateful to the Archivio Storico della Banca d’Italia (ASBI) for the help and support in the access to documents contained in the Archive. I wish to thank Alberto Baffigi, Federico Barbiellini Amidei, Francesco Capriglione, Francesco Carbonetti, Chiara Carnabuci, Lamberto Dini, Elisabetta Loche, Marco Magnani and Carlo Santini for their valuable contributions, and two referees for very helpful observations. All errors or omissions remain mine. Dean of the School of Business at Università degli Studi Guglielmo Marconi, Rome. The author of this paper worked as Economist in the Monetary and Economic Department of the Bank for International Settlements (BIS) from 1971 to 1975. Thereafter, he joined the Bank of Italy where he worked until 1988. He has been Head of the Research Department and Director for Economic Research. In 1982, during his tenure as Alternate Member of the Board of Directors of the BIS, Governor Ciampi assigned him to monitor the Banco Ambrosiano issue – in close cooperation with the Supervision and Legal Services of the Bank of Italy – with specific reference to works carried out at the BIS by the Committee of the G10 Central Bank Governors, by the Euro-currency Standing Committee and by the Basel Committee on Banking Supervision (BCBS) – then so- called Cooke Committee. 249 G10 Governors dealt with the crisis of the Banco Ambrosiano Group: the crisis had started in 1977 and was concluded with the formal liquidation on August 6, 1982. The measures taken by Governor Ciampi and Treasury Minister Andreatta, the dialectical interactions with the Basel Committee, the G10 Governors (banking supervision and monetary policy) and the IOR in the Vatican City are analized and discussed in this article. In preparing the paper the author could benefit from the extremely competent support of the Historical Archives of the Bank of Italy and the access to documents only recently accessible for public consultation. As is shown, the action undertaken by Governor Ciampi and by the Bank of Italy in the Ambrosiano case contributed to the evolution of banking supervision as regards both the revision of the Concordat and, thereafter, the development of a system of mandatory risk-weighted capital ratios. A parallel lasting lesson is that capital adequacy requirements must be complemented by targeted effective supervisory guidance and oversight of corporate governance for banking firms to prevent, insofar as possible, inappropriate and illegal practices, while ensuring accountability of shareholders and top managers for their wrongdoings. SUMMARY: 1. Three Flashbacks: International Banking Supervision, the Opaque Model of Banco Ambrosiano (BA) and the BA’s First Crisis in 1977. – 1.1. International Banking Supervision. – 1.2. The Deliberately Opaque Model of Banco Ambrosiano. – 1.3. The First Crisis of Banco Ambrosiano in 1977 and the Action Undertaken by the Bank of Italy (Baffi, Sarcinelli, Padalino). – 2. The Crisis of Banco Ambrosiano Group (BAG) 1981-82. – 2.1. The Prodromes of the Crisis. – 2.2. The Liquidation of Banco Ambrosiano Spa Milan (BASPA) and the Establishment of Nuovo Banco Ambrosiano (NBA); the Insolvency of Banco Ambrosiano Holding Luxembourg (BAHL): Reference Framework and Short Historical Outline. - 2.3 The Actions Undertaken by Governor Ciampi and by the Bank of Italy at the BIS with the Governors of the G-10 and with BA’s Large International Creditor Banks. 3. Conclusions. 1. 1.1. On June 16, 1974 the Herstatt Bankhaus of Cologne went into liquidation as per decision of the Supervisory Authority of the Federal Republic of Germany following speculative foreign exchange transactions resulting in huge 250 losses. In addition to serious national repercussions, the bank failure caused problems in international settlements also because of the difference in time zones between Frankfurt and New York (the bank was closed down at 4:30 p.m. in Germany while it was 10:30 a.m. in New York). Therefore, its insolvency gave rise to supervisory issues in respect of gross settlements at the international level, which were not real time back then (BCBS, 2004). In the aftermath of such events, the Banking Supervisory Authorities of the Group of Ten (G10) at the BIS in Basel decided to set up the Basel Committee on Banking Regulations and Supervisory Practices (thereafter re-named Basel Committee on Banking Supervision). Back then, the Committee was often referred to as the Cooke Committee, after Peter Cooke, Director of the Bank of England who chaired the Committee for many years1. In
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