Law and Business Review of the Americas Volume 10 Number 2 Article 2 2004 Regulatory and Supervisory Independence: Is There a Case for Independent Monetary Authorities in Brazil John William Anderson Jr. Follow this and additional works at: https://scholar.smu.edu/lbra Recommended Citation John William Anderson, Regulatory and Supervisory Independence: Is There a Case for Independent Monetary Authorities in Brazil, 10 LAW & BUS. REV. AM. 253 (2004) https://scholar.smu.edu/lbra/vol10/iss2/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Law and Business Review of the Americas by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. REGULATORY AND SUPERVISORY INDEPENDENCE: Is THERE A CASE FOR INDEPENDENT MONETARY AUTHORITIES IN BRAZIL? John William Anderson, Jr.*' "I wish to assert a much more fundamental role for institutions in soci- eties; they are the underlying determinantof the long-run performance of economies."' -Douglas North I. INTRODUCTION ESPITE its importance, the issue of financial sector regulatory and supervisory independence ("RSI") has received only margi- nal attention in literature and practice. The present work at- tempts to fill this gap by revisiting the theoretical approach justifying RSI and by conducting a case study on the Brazilian institutional framework. The object of this paper assumes greater relevance in light of the cur- rent political and economic perspectives in Brazil. In May 2003, an amendment to article 192 of Brazil's Federal Constitution of 1988 regulat- ing the Brazilian Financial System was approved by the Brazilian Con- gress.2 With the approval of this amendment, considerable changes are *John William Anderson, Jr., Brazilian Attorney, LL.M. in International Economic Law (with Distinction) from the University of Warwick, United Kingdom. t I would like to thank Dr. Jorge Guira for supervising the research that the present work is based upon, and for opening my eyes to the needs and richness of legal research within the fields of banking law and financial crises. Special thanks to Augusto Cdsar Silva Rodrigues, Ali El Hage Filho, Marusa Mrak and Paulo Leo- nardo Casagrande, for their most valuable comments and discussions on the sub- ject matter hereof. Rodrigo Marino Sekkel provided important feedback on economic matters. I should also thank Donald Baker, Miguel Lawson, and Victor Mendoza (partner and attorneys from White & Case LLP), from whom I received precious legal training, reflected in the analyses of this work. I acknowledge the funding provided by the Chevening Scholarship, granted by the Foreign and Com- monwealth Office of the United Kingdom and administered by the British Coun- cil, which provided me with the opportunity to participate in the LL.M. in International Law Program at the University of Warwick. Finally, sincere thanks to my parents and sister, for their overall support in every single matter and occa- sion. All the glory be given to God and to Jesus Christ, my Lord and saviour. 1. DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 107 (1990). 2. BRAZ. CONST. amend. XXXX (enacted May 29, 2003). 254 LAW AND BUSINESS REVIEW OF THE AMERICAS [Vol. 10 expected in the regulation of Brazil's financial system. Prior to being amended, the original constitutional provision established that the Brazil- ian Financial System, including banking, securities, insurance and re-in- surance sectors, would be regulated by a single complementary law, which required a qualified quorum or an absolute majority of each of Brazil's legislative houses for approval. The constitutional amendment now allows the financial system to be regulated by more than one com- plementary law. Considering the complexity of issues in regulating the financial system, this amendment allows for more rapid legislative pro- duction on the subject. Thus, debates in connection with the effectiveness and soundness of the current regulatory and supervisory framework of Brazilian monetary authorities have regained importance. In addition, it is uncertain how monetary policy and banking supervi- sion in Brazil will be conducted within the administration of President Lufs Inicio Lula da Silva. Certain challenges face the Brazilian monetary authorities in attempting to achieve monetary stability after the country's recent financial crisis in 1998 and 1999. These challenges include the re- duction of inflation, the pursuit of economic growth, the control of cur- rency value within the generalized global financial meltdown, and the guarantee of sound banking regulation and supervision. RSI can play an important role in the pursuit of such goals. In the first part of this article, the theoretical background of RSI will be revisited and analyzed. Section one limits the scope of this work and es- tablishes the different aspects of banking regulation and supervision. Section two addresses the main theoretical justifications for institutional RSI i.e., regulatory capture, time inconsistency, and the relationship be- tween institutions and economic growth. Section three outlines the insti- tutional framework of RSI. In the second part of this article, the degree of the Brazilian monetary authorities' RSI is assessed. Section four de- scribes the institutional framework of Brazil's financial system, evaluates the degree of RSI within the Brazilian monetary authorities, and outlines proposals for improvements, The final part presents concluding remarks. II. ESTABLISHING A THEORETICAL FRAMEWORK A. DEFINING THE SCOPE - BANKING REGULATION AND SUPERVISION 1. Banking Regulation and Supervision - Definitions and Rationales To limit the scope of this work and establish precise definitions of banking regulation and banking supervision, the boundaries of regulation and supervision must be set. In the present work, the term "regulation" should be understood as the normative intervention of the state in the economic activities of particulars, including the concession of public ser- vices and the direct regulation of economic activities. Similarly, the term "supervision" encompasses the activities of the state in connection with the enforcement of its normative activity. Supervision is often seen as an ancillary activity of regulation; it is directly related to the oversight of the 2004]INDEPENDENTMONETARY AUTHORITIES IN BRAZIL 255 performance of certain activities by particulars and to the compliance of rules enacted by regulatory bodies. Establishing definitions and rationales for banking regulation, how- ever, is a difficult task. As noted by Mathias Dewatripont and Jean Tirole, "[t]here is no consensus in academe on why banks should be regu- lated, and whether they should be regulated at all."' 3 As a result, a vast amount of literature exists on many features of banking regulation, and consensus is rare. Though current banking activities exceed the scope of traditional bank- ing activity4 (deposit-taking and lending),5 most of the rationales for banking regulation are still based upon the traditional business of banks. Thus, the proposed definition for "banking regulation" is the set of rules in the form of legislation enacted by a parliament, administrative rules enacted by competent governmental authorities, and rules issued by in- ternational organizations and self-regulatory organizations that discipline the above-described banking activity and the institutions that perform such activity. "Banking supervision" refers to the oversight of banking activity and of the institutions performing such activity, as well as the enforcement of related rules. Various rationales for banking regulation and supervision exist, includ- ing rationales arising from the traditional justifications for regulation, such as public interest,6 overcoming market deficiencies, 7 and guarantee- 3. MATHIAS DEWATRIPONT & JEAN TIROLE, THE PRUDENTIAL REGULATION OF BANKS 29 (1994). 4. See id.; ROSA MARIA LASTRA, CENTRAL BANKING AND BANKING REGULATION (1996) (recognizing that banks engage in a variety of other activities, such as the following: financial service operations not linked to the granting of actual loans, including the underwriting of securities; future or contingent loans, including the issue of documentary credits, asset sales with recourse, stand-by letters of credit and guarantees; and derivatives transactions). This diversification of banking ac- tivities is the result of an evolution in banking industry and an overall trend to- wards deregulation mainly triggered by increasing competition posed to banks by other financial intermediaries. 5. See LASTRA, supra note 4, at 81 ("A commercial bank is a financial intermediary that typically receives deposits and grants loans, and together with these credit intermediary functions performs other services, such as payment intermediary, as- set custodianship, investment manager."); see also id. at 76 (stating that these defi- nitions highlight the classic functions of banks and their major roles in economy activity: "to fund illiquid loans, which support productive investments, with highly liquid liabilities, thus transferring liquidity from surplus units (depositors) to defi- cit units (borrowers)."). DEWATRIPONT & TIROLE, supra note 3, at 13 ("A bank is a financial intermediary that participates in the payment system and finances enti- ties in financial deficit (typically the public sector, nonfinancial firms, and some households) using