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A Historical Analysis of the Origins, Development and Nature of Market Conduct Regulation: a Study of Four Insurance Markets

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A Historical Analysis of the Origins, Development and Nature of Market Conduct Regulation: a Study of Four Insurance Markets UNIVERSITY OF THE WITSWATERSRAND, JOHANNESBURG FACULTY OF COMMERCE LAW AND MANAGEMENT A HISTORICAL ANALYSIS OF THE ORIGINS, DEVELOPMENT AND NATURE OF MARKET CONDUCT REGULATION: A STUDY OF FOUR INSURANCE MARKETS Justine van Vuuren Student Number: 418337 Course Code: CR000 Degree: Master of Commerce (Insurance and Risk Management) School: Economics and Business Sciences Supervisor: Professor Robert W Vivian A dissertation submitted to the Faculty of Commerce, Law and Management of the University of the Witwatersrand, Johannesburg, in fulfilment of the degree Master of Commerce (Insurance and Risk Management) by dissertation. June 2017 DECLARATION I, ……………………………...declare that this research report is my own, unaided work, the substance of or any part of which has not been submitted in the past or will be submitted in the future for a degree in any university and that the information contained herein has not been obtained during my employment or working under the aegis of, any other person or organisation other than this university. (Name of candidate) Signed Signed this day of 2017 at Johannesburg. 2 ACKNOWLEDGEMENTS Firstly, I would like to express my sincere gratitude to my supervisor, Professor Robert Vivian, for the continuous support of my Masters study. Thank you for your unwavering patience, guidance, motivation, and instrumental knowledge. Your invaluable mentorship has been reassuring throughout this process. I would also like to thank all of my other colleagues for their insightful comments and encouragement. Thank you for constantly giving me the drive to complete my studies. To my family, friends and wonderful fiancé, Brent, thank you for lending an ear and providing the love and support throughout my Master’s journey. 3 TABLE OF CONTENTS 1. INTRODUCTION ............................................................................................................ 13 2 THE ROLE OF THE STATE ........................................................................................... 17 3 THEORIES OF REGULATION ...................................................................................... 21 3.1 Public interest theory ................................................................................................. 21 3.2 Economic theory of regulation .................................................................................. 23 3.2.1 Introduction ........................................................................................................ 23 3.2.2 Capture theory of regulation .............................................................................. 25 3.3 Conclusion ................................................................................................................. 27 4 TWIN PEAKS OF REGULATION ................................................................................. 29 4.1 Prudential Regulation ................................................................................................ 30 4.2 Market conduct regulation ........................................................................................ 32 4.3 Market Conduct and the Lockean Model .................................................................. 35 4.4 Conclusion ................................................................................................................. 46 5 UNITED KINGDOM ....................................................................................................... 48 5.1 British Insurance Market ........................................................................................... 49 5.1.1 Regulation of the insurance market up to 1720 ................................................. 49 5.1.1.1 Elizabethan era (1558-1603) .......................................................................... 49 5.1.1.1.1 Forum to resolve disputes and insurance law ........................................... 53 5.1.1.1.2 Comments on the regulatory position of the Elizabethan era ................... 55 5.1.1.2 Rise of the Lloyd’s market (1688) ................................................................. 57 5.1.1.2.1 Assessment of the regulatory position of Lloyd’s .................................... 61 5.1.1.3 South Sea Bubble saga (1720) ....................................................................... 64 5.1.1.3.1 Comment on the regulatory position of the South Sea Bubble ................ 67 5.1.2 Rise of the insurance corporate market in the UK (1844-1870) ........................ 68 5.1.2.1 Tariff Offices .................................................................................................. 70 5.1.2.1.1 Comment on market conduct issues of the tariff system. ......................... 72 5.1.2.2 Life assurance market..................................................................................... 73 5.1.2.2.1 Analysis of the 1870 legislative changes .................................................. 77 5.1.3 Regulation of the insurance market (early 1900s onwards)............................... 77 5.1.3.1 British Assurance Act..................................................................................... 77 5.1.3.1.1 Analysis of the 1909 changes ................................................................... 79 5.1.3.2 Continued improvements ............................................................................... 79 4 5.1.3.3 Impact of the failures of a number of insurers in the 1960s ........................... 79 5.1.3.3.1 Analysis of the changes ............................................................................ 80 5.1.3.4 Insurance Companies Act of 1982 ................................................................. 81 5.1.4 More recent regulatory developments ............................................................... 82 5.2 Transition to regulatory bureaucratic centralism: the rise of market conduct in terms of the Financial Services Act of 1986 .................................................................................. 83 5.2.1.1.1 Securities and Investment Board and Self-Regulatory Organisations ...... 86 5.2.1.1.2 Conduct of investment and insurance business ........................................ 89 5.2.1.1.3 Analysis of 1986 changes ......................................................................... 95 5.2.1.2 FSA and FSMA 2000 ..................................................................................... 95 5.2.1.3 Equitable Life ............................................................................................... 101 5.2.1.4 Birth of Twin Peaks: the birth of the market conduct regulator ................... 104 5.2.1.4.1 Core conduct of business rules ............................................................... 108 5.2.1.5 Retail Distribution Review (RDR) ............................................................... 113 5.3 British Intermediaries Market ................................................................................. 117 5.3.1 Regulation of insurance intermediaries ........................................................... 117 5.4 British Friendly Societies ........................................................................................ 118 5.4.1 Regulation of friendly societies ....................................................................... 118 5.4.1.1 Analysis of the regulatory changes .............................................................. 121 5.5 British Pensions Market .......................................................................................... 121 5.5.1 Evolution of provision for the destitute, including the aged ............................ 122 5.5.1.1 Elizabethan Poor Laws System (EPL) ......................................................... 122 5.5.1.2 Bismarckian State Pension ........................................................................... 124 5.5.1.3 Occupational pension schemes..................................................................... 126 5.5.1.3.1 Defined benefit ....................................................................................... 127 5.5.1.3.2 Defined contribution ............................................................................... 127 5.5.1.3.3 Decline of DB schemes in the private sector .......................................... 127 5.5.1.4 Personal pension provision........................................................................... 129 5.5.2 Conservative Government ............................................................................... 130 5.5.2.1 Basic State Pension ...................................................................................... 130 5.5.2.2 State Earnings Related Pension Scheme (SERPS) ....................................... 132 5.5.2.3 Occupational pension schemes..................................................................... 132 5.5.2.4 Personal pensions ......................................................................................... 133 5.5.3 Pension mis-selling scandal ............................................................................. 135 5 5.5.3.1 Regulatory failures ....................................................................................... 139 5.5.3.1.1 Assessment of the nature of the regulatory changes............................... 143 5.6 Supervisory Agencies .............................................................................................. 144 5.6.1 International Association of Insurance Supervisors (IAIS) ............................
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