The University of Iowa College of Law recently hosted a marvelous symposium to examine the causes of and cures for the international financial meltdown. The symposium, entitled, Global Meltdown: Examining the Worst Global Financial and Economic Crisis Since the Great Depression was held from 8 a.m. to 4:30 p.m. Friday, Feb. 20 at the University of Iowa College of Law. The symposium was sponsored by the UI law journal Transnational Law and Contemporary Problems; University of Iowa Center for International Finance and Development; University of Iowa Student Government; the Executive Council of Graduate and Professional Studies; the International Law Society; University of Iowa International Programs; and the College of Law International Programs. My rthanks to Minji Kim of the TLCP and Enrique Carrasco for a highly informative and engaging program.
For my contribution to this excellent program I presented a paper entitled Sovereign Wealth Funds and Regulatory Responses to the Financial Markets Crisis. I have included here an abstract and the introduction to the paper. A finished pre-publication version of the entire paper will be posted soon. Comments and suggestions gratefully accepted!
Sovereign Wealth Funds and Regulatory Responses to the Financial Markets Crisis
Abstract: The current financial crisis has generated a tremendous set of consequences. It has also brought into sharp focus a number of new global actors and raised new issues of law and policy that stretch both into new and unchartered territory. The principal responses have focused on law and policy to protect the integrity and workings of the markets themselves—both domestically and internationally. The financial crisis has also revealed another global financial actor—the sovereign wealth fund. Now over a generation old in its current form, these financial entities have become an important player in global financial stability. Starting slowly after the Second World War, sovereign wealth funds have become a major player in financial markets. Over the last decade they have become more visible and more aggressive in the scope and form of their interventions in global finance. While governmental responses were at first wary—criticizing these funds as potentially dangerous to the sovereignty and independence of national markets, the increasing needs of national economic sectors quickly altered attitudes. This essay will examine sovereign wealth funds and their involvement in global finance. The focus of analysis is regulatory policy. It is built around the question: what ought to be the regulatory structure applicable when one state seeks to invest in the economy of another state? The study starts with the basics—history, definition, legal sources of and domestic regulation of sovereign wealth funds, and the identification of the most significant sovereign wealth funds. The object is to suggest how these entities can be distinguished from other sovereign investment and economic activity. The essay then turns to a consideration of the criticisms of sovereign wealth funds, focusing on the nature of their activities in host states, and proposed regulatory solutions. Much of this discussion touches on core conceptual issues with respect to which there is no consensus in theory or regulatory policy, the principal one of which touches on the fundamental character of sovereign wealth funds as public or private actors, and their activities as private market regulatory or participatory. More basic still, the discussion centers around the issue of the continued viability of the current distinction in the law grounded in mere status—between law frameworks applicable to public actors and that applicable to private actors, irrespective of the character of the acts subject to law. This paper means to destabilize that conception of law and offer one grounded in regulatory and participatory action irrespective of the status of the actor. As such, the current distinction between the public or private character of the actor will be subsumed to a focus on the regulatory or participatory character of the action. If sovereign wealth funds are understood as private actors participating in markets, then this might suggest the best case for the equal treatment of states with private entities, because it stands in the same shoes as a private investor. On the other hand, if sovereign wealth funds are understood as an instrumentality of the state, the these entities can be understood as instruments projecting state power into the territory of other states. The essay ends with a consideration of the ways in which this conceptual ambiguity and the policy debates it has sparked have been magnified in the context of the global financial crisis that started in 2008. Through sovereign wealth funds, the financial crisis has contributed in significant ways to the conflation of the public and private in a globalized market driven political economy.
I. INTRODUCTION
A century ago the guardians of public power in the United States articulated a widely held fear of private aggregations of power. That fear was pointed outward, to the community of individual actors, as well as inward to the authority and effectiveness of the public power itself. It suggested the nature of the threat as not merely economic, but also conceptual--large corporate aggregations threatened the hierarchy of legal authority in which the state and its apparatus stood at the very top as the only legitimate source of public regulation, and everything else occupied the space reserved for the objects of that regulation. "Through size, corporations, once merely an efficient tool employed by individuals in the conduct of private business have become an institution--an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state." (Louis K. Liggett Co. v. Comptroller of the State of Florida 1933, Brandeis, J. dissenting in part).
The fear, thus well articulated, was grounded in a set of simple world-order conceptions in which regulation was understood to be memorialized in law derived from public bodies legitimately vested with authority to command every member of the community it controlled. As one of its once discredited and now increasingly popular critics once noted:
[t]he images of legal science and legal practice were (and still certainly are) mastered by a series of simple equivalences. Law = statute; statute = the state regulation that comes about with the participation of the representative assembly. Practically speaking, that is what is meant by law when one demanded the “rule of law” and the “principle of the legality of all state action” as the defining characteristic of the Rechtsstaat. (Schmitt 2004, 18 (1932)).One worried about hierarchies of public regulatory regimes, or the unruliness of customary law in a new rational and “scientific” age. Thus, for example, Albert Dicey could suggest: "The plain truth is that as a matter of law Parliament is the sovereign power in the state… As to the actual limitations on the sovereign power of Parliament. The actual exercise of authority by any sovereign whatever, and notably by parliament, is bounded or controlled by two limitations. Of these the one is an external, the other is an internal limitation. The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws.” (Dicey 1915, 73-74). Hans Kelson spoke to the critical presumption of the basic norm. "That all the norms of a legal system derive ultimately from the basic norm has to be presupposed, he argued, because without this assumption that which we know to exist could not exist: positive law qua the object of cognitive legal science would not be possible.” (Duxbury 2008, 52). This was an age of positive law emanating from a legislature (Austin 1861) and the reordering of custom on a new and scientific basis (Michaels 2005, 11).
This was the classical age of Rechtsstaat. (Rosenfeld 2001 1318). "While it is true that in the modern Rechtsstaat the sovereign cannot act otherwise than in compliance with law, it is equally true that he sets the law in accordance with which he is to act. The law lays down the formal procedure by means of which it can be changed, but the power which formulates and brings about the change is not the law itself.” (Emerson 1928, 267; also 35-39, 60-77). Beyond the state, there was little that was legitimate in the political sphere. Everything else might be coercive, but it was not public (a matter affecting the governance of the community)--from the compulsion of religious behavior codes to the limited agreements memorialized in contracts between finite parties covering very limited set of behaviors. And even these might be regulated by the state. (Backer 2008). This move by the state to usurp the power of cataloging reality is mocked in a wonderful passage in Gioacchino Rossini’s comic opera La Cenerentola in which the existence of and the death of a daughter was disputed solely on the basis of the appearance of her name in the registry of deaths and births. (Ferretti 1817). Because, above the state there could be nothing, all was subject to and flowed from, the only legitimate source of public regulatory power. But large corporate organizations threatened that order--and the authority of the state--asserted by states through its military and articulated through its officials.
A generation ago the guardians of public power on a global stage continue to articulate the same widely held fear--but now threatening all states. In the form of multi-national corporations, the belief has grown that large aggregations of private power can overwhelm the more limited and territorially based public power, especially (but not exclusively) of small states. (Backer 2006). These entities might subvert not only the traditional order hierarchy represented by the state, but might well subvert the global monopoly of power represented in the public power through the erection of supra-national systems of public actors. And not economic entities alone threaten monopolies of power whose borders are protected by the conceptual division of law into public and private spheres. The growth of transnational civil society actors, and their incorporation within the rising international system suggests that the patterns of change share some unifying characteristics. (Bas Arts, ed. 2001; Josselin, ed. 2001).
One response has been to attempt to domesticate these sources of private transnational power to an aggregate morality of public power expressed at the international level and transposed into the law of all public actors. The U.N.'s Global Compact project represents one attempt to operationalize such a system. (U.N. Global Compact; Therein & Pouliot 2006; Ruggie 2008). The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (2000) system represents another. The alternative, and less well accepted response, at least within the community of public actors, has been based on a willingness to acknowledge the public power of these private institutions and to bring them within the regulatory framework that binds other public actors. (Backer 2006a).
Still, the subversion of the classical notion of the public order, when that subversion can be effected to the advantage of the primi inter pares of the global state community, might still be a tempting alternative. (Hueglin 1979, 12). And so today, the guardians of public power have succumbed to the lessons of a century. If the old field boundaries are ineffective in preserving local or global monopolies of public power, then those monopolies must adjust to fit themselves to the newer realities. So states have now sought to extend their market share in all markets for power. No longer content to wield the traditional (and traditionally limited) forms of public power, the state now serves as a major player in markets for economic power. This participation is not merely in the old and now fairly tame form of ownership of state enterprises--mercantilist/Marxist-Leninist undertakings with a long and well understood history and purpose. (Backer 2008a).
Instead, in the form of sovereign wealth funds, that state is now becoming the very thing which, a century ago it feared most as an internal threat to its authority. The term refers to official sector assets that began to be regarded as something different from traditional central bank reserves. It appears to have been popularized in 2005. “However, increasingly, a different type of public-sector player has started to register on the radar screen - we shall refer to them as sovereign wealth managers. These are neither traditional public-pension funds nor reserve assets supporting national currencies, but a different type of entity altogether.” (Rosenov 2005, 52-57). States have become, to some extent, pools of national wealth potentially as great as the financial strength of a state, used for the purpose of investing in private markets. But in the way that large aggregations of private wealth frightened public authorities, now large aggregations of public wealth seeking a home offshore produces a similar kind of fear in the same public actors. The facilitating cause is the creation of the very system that frees economic actors from the constraints of territory and more closely binds public actors thereto. (Rose 2008, 83-149; Kimmett 2008, 126-28).
And so a century's worth of worry has brought the community of nations closer to a solution they can both understand and control. That solution is also grounded in a simple mechanics—to acquire a significant stake within those very markets that defy territorial limits. In this way, states, like private economic actors, might be able to overcome the regulatory barriers of territory, but for a wholly different purpose. (Backer 2006b). For states on the verge of being overwhelmed by aggregations of private power, the logical alternative is to acquire as large a portion of that power as one can. And that approach has the benefit of not upsetting the form of economic organization currently in place. But it does have a most salutary consequence from the perspective of the state--it reduces complication in international relations. It can reduce the power of intruders on the traditional stage of power conflicts, leaving (again) the state in substantial control of that stage. In a global system in which military campaigns are no longer morally and legally justifiable to any significant extent (except perhaps when engaged under the protection of the most powerful states), the public penchant for aggression and competition must be satisfied by other means. Today those means of friendly competition, or aggressive combat, take place indirectly.
But with innovation comes irony, and additional challenges. Both were brought into sharp focus in the course of events leading up to the acknowledged collapse of the global economic system after September 2008. Currently, public expert bodies place the start of the current economic turmoil sometime in 2007. (IMF 2009). But that determination was put off until the time of the 2008 American Presidential election. (Paulsen 2009). One of the most dramatic events of the financial crisis was the rescue of several American financial institutions by foreign sovereigns willing to invest in those institutions. (Yale Global Online Jan. 17, 2008). Foreign governments rescued troubled American financial institutions facing near collapse due to the acute subprime crisis during the second part of 2007 and early 2008. Those investments were accomplished through a variety of entities, including sovereign wealth funds. As noted by David Cho:
The nation's biggest financial firms, battered by huge losses in their mortgage businesses, are relying on an enigmatic source for cash: foreign governments in the Middle East and Asia.Sovereign wealth funds were central to the rescue of U.S. and European banks. (Economist 2009; Jickling 2008, 12). This was hailed in some quarters. “SWFs have much to offer. SWFs' recent injections of capital into several OECD financial institutions were stabilising because they came at a critical time when risk-taking capital was scarce and market sentiment was pessimistic.” (OECD, April 4, 2008, 2-3). Still, the fact that the owners of these funds were states now confounds the usual understanding inherent in the traditional system of separate legal spheres for public (regulatory) and private (participatory) activities. It was one thing when these funds were use by states as vehicles through which they held their reserves and protected their financial security. As Andrew Rozanov note:
Citigroup announced yesterday that it had sold a 7.8 percent stake in the company worth $14.5 billion to a group of investors, including the government of Singapore and Saudi Prince Alwaleed bin Talal, as it revealed a colossal $10 billion loss for the fourth quarter. Merrill Lynch, which is expected to report a massive loss tomorrow, said that it sold a special class of stock worth $6.6 billion to funds managed by South Korea and Kuwait.
This is the second time in recent months that the two banks have sought help from foreign government investment pools, known as sovereign wealth funds. (Cho 2008).
These days one often hears a question posed with regard to huge foreign exchange reserves accumulated by these countries along the lines of: “Do they really need so much?" In terms of intervening to support their currencies, the answer is a resounding no. But frame the question differently: “How much sovereign wealth do these countries need to provide economic, political and social security - be it through faster development or dependable insurance against the huge risks they run?" and the answer may well be different. One example may best illustrate the point: Kuwait managed to regain its independence and rebuild the country after the Iraqi invasion in large part thanks to the large pool of assets accumulated and managed by KIA [Kuwait Investment Authority]. (Rosenov 2005).Rosenov also noted the darker side of this form of rescue. "But, as is often the case, when new actors emerge on the international financial scene, the players need to become better acquainted. The growing role of SWFs raises issues regarding the smooth functioning of financial markets and they raise investment policy questions, including legitimate concerns in recipient countries about protecting national security.” (Id.).
Now over a generation old in its current form, financial entities identified as sovereign wealth funds have become important factors in global financial stability. (Kellog 2008). “Because Sovereign Wealth Funds have long term investment horizons and generally have no commercial liabilities, they are better placed than most private investors to withstand market pressures in times of crisis. For this reason, Sovereign Wealth Funds have been a stabilising force during the current financial turmoil.” (Almunia 2008). Starting slowly after the Second World War, sovereign wealth funds have become a major player in financial markets. (Kellog 2008). “Of course, the formation of SWFs is not a new phenomenon. However, almost two thirds of the existing Funds were established in the past decade. As a result, the importance of Sovereign Wealth Funds has grown not only within their own countries, but their relevance also has increased for the international financial system.” (Lipsky 2008).
Over the last decade they have become more visible and more aggressive in the scope and form of their interventions in global finance. (Johnson 2007).
“Though oil-producing countries have been looking at investments in the West since the 1970s, their strategies back then were largely confined to safe assets with a low return, like United States Treasury debt. By 2001, with the collapse in oil prices, many of the oil exporters had depleted their dollar reserves, economists say. But the boom in oil prices in the last five years has changed all that. It has persuaded oil producers to set up or expand “sovereign wealth funds” as vehicles to invest far more aggressively in the West, in their own economies and in emerging markets.” (Weisman 2007).Governmental responses were at first wary—criticizing these funds as potentially dangerous to the sovereignty and independence of national markets. (Truman 2008). “During the second half of 2007 and early 2008, some SWFs made high-profile investments in major U.S. and European companies. Amid growing unease about some SWFs' governance structures and investment objectives, U.S. and European policymakers aired a mix of divergent points of view. French President Nicolas Sarkozy made hawkish statements, as did many politicians in Germany. The U.K. government took a more welcoming stance toward SWFs. The U.S. Treasury was the most proactive, agreeing to a set of investment principles with two of the largest SWFs.” (Oxford Analytica 2008)
However, the increasing needs of national economic sectors quickly altered attitudes. “OECD member countries have come out strongly in this debate in welcoming Sovereign Wealth Funds and have given us a mandate to develop guidance for recipient countries. And we came out first. . . . We can congratulate ourselves on an outcome where SWFs, working with the support of the IMF, and the OECD were able to create a positive interaction – a real synergy – that has delivered something important to the global economy.” (Gurría 2008). But at the same time, international organizations have sought to impose some sort of regulatory framework on sovereign wealth funds, at least a framework that does not adversely affect capital markets and the needs of states for infusions of inbound investment, whatever its source. This has produced an approach that mimics that embraced for the regulation of multinational enterprises—guidelines and other soft law instruments grounded in transparency and benchmarking principles of good behaviors in efforts from that of the International Monetary Fund (International Working Group of Sovereign Wealth Funds 2008), the OECD (April 4, 2008), tand the United States. (U.S. Treaury 2008). The IWGSWF explained
The International Working Group of Sovereign Wealth Funds (IWG) presented the Santiago Principles to the International Monetary Fund's policy-guiding International Monetary and Financial Committee on October 11, 2008. The IWG made public the set of 24 voluntary Principles and related explanatory material and announced it has established a Formation Committee to explore the creation of a Standing Group of Sovereign Wealth Funds. (International WOrking Group of Sovereign Wealth Funds, Home).The principles are meant to be transposed into the municipal law of the adherents thereto. “In furtherance of the "Objective and Purpose", the IWG members either have implemented or intend to implement the following principles and practices, on a voluntary basis, each of which is subject to home country laws, regulations, requirements and obligations. This paragraph is an integral part of the GAPP.” (International WOrking Group of Sovereign Wealth Funds 2008, 5).
And so today, like their ancestors nearly a century ago, the guardians of public power articulate a growing fear of public aggregations of private power, which like aggregations of private power by private actors now threaten their power to control affairs within their national territory. Like their ancestors, they worry about large economic aggregations that threaten the viability of the traditional state system and the preservation of distinctions between public and private power. But unlike the perceived danger confronting their ancestors, the challenges today do not arise from the usurpation of public power by private enterprises. Instead it arises instead from the usurpation of private power by foreign public actors that reaches across borders. “The most obvious consideration is national security. As with any form of foreign investment, countries on the receiving end of SWF investment need to ensure that national security concerns are addressed, without unnecessarily limiting the benefits of an open economy.” (Kimmitt 2008, 123).
But this usurpation, in the form of sovereign wealth funds, inverts the logic of traditional confrontations between public and private power. So inverted, traditional analysis adds rather than reduces confusion and thus muddles policy approaches. If sovereign wealth funds are understood as private actors participating in markets, then this might suggest the best case for similar treatment of states and private entities, because as far as any transaction is concerned, the state stands in the same shoes as a private investor. On the other hand, if sovereign wealth funds are understood as an instrumentality of the state, the these entities can be understood as instruments projecting state power into the territory of other states. (Santiso 2008, “financial actors from developing countries are playing with other OECD financial giants as equals” through their sovereign wealth funds.” Id., at 1). While the conceptual movement within the European Union had been toward a public law conception of all assertions of state power (Backer 2008a), whether within or outside the national territory, the view of international regulators has taken a more ambiguous position. (International Working Group of Sovereign Wealth Funds 2008).
This essay examines sovereign wealth funds and their involvement in global finance. The focus of analysis is regulatory policy. It is built around the question: what ought to be the regulatory structure applicable when one state seeks to invest in the economy of another state? The study starts with the basics—history, definition, legal sources of and domestic regulation of sovereign wealth funds, and the identification of the most significant sovereign wealth funds. The object is to suggest how these entities can be distinguished from other sovereign investment and economic activity. The essay then turns briefly to a consideration of the criticisms of sovereign wealth funds, focusing on the nature of their activities in host states, and proposed regulatory solutions. The purpose is to provide context for the more interesting and important question that sovereign wealth fund regulation debates tend to avoid, and with respect to which there is no consensus in theory or regulatory policy: what is the fundamental character of sovereign wealth funds, and how should the regulation of their activities as private market regulatory or participatory be affected by that determination? More basic still, the discussion centers around the issue of the continued viability of the current distinction in the law grounded in mere status—between law frameworks applicable to public actors and that applicable to private actors, irrespective of the character of the acts subject to law. This paper means to destabilize that conception of law and offer one grounded in regulatory and participatory action irrespective of the status of the actor. As such, the current distinction between the public or private character of the actor will be subsumed to the question of the regulatory or participatory character of the action.
The essay ends with a consideration of the ways in which this conceptual ambiguity and the policy debates it has sparked have been magnified in the context of the global financial crisis that started in 2008. Through sovereign wealth funds, the financial crisis has contributed in significant ways to the conflation of the public and private in a globalized market driven political economy. The consequence: notions of public and private power are now necessarily reconceptualized. In the form of sovereign wealth funds, one can abandon the old distinction between public and private power to build a new legal matrix founded on the distinction between regulatory and participatory power. Within that matrix, the character of the actor is less dispositive than the quality of power asserted. There has been something of a recognition of this notion, if only obliquely within a discourse that seeks to reinvigorate the public sector in the face of the privatization pressures that appear to flow from the current global economic order that privileges free movement of capital across borders.
With material and institutional dimensions that are large and complex with overlapping aspects, the public domain should not be used interchangeably with the public sector, with which it is often confused. Nor should it be limited to the provision of public goods, a staple of modern economic liberalism. In the primary sense of the term, the public domain is about the resources carved out from the market that empower and transform both the state and non-state actors. (Drache 2001, 4).Just as, in the West, law has moved from status to contract distinctions, so it is evolving from public/private to a regulatory/participatory distinction. In the words of Carol Harlow, asserted thirty years ago, the understanding the the "'night-watchman' state is rapidly being replaced by a state whose functions range from welfare to commercial activities and from law and order to education." (Harlow 1980, 257). Within that binary the status of the actor, as a state or as a corporation, will count for less than an understanding of the nature of its particular intervention--regulatory or participatory.
Accordingly, just as the central problem of the last century was to conceptualize distinctions between public and private law based on the fundamental division of law grounded in the status of the actor, so the central problem of law in this century will be to conceptualize distinctions between regulatory and participatory law regimes. For this framework, the status of the actor will make less difference than the nature of the exercise of power by that actor. The actions of states, corporations and other actors (for example non-governmental organizations like Amnesty International and the like) that assert regulatory power ought to be regulated under the same sets of norms with respect to those actions. Likewise, corporations and states that act within regulatory systems ought to be subject to the rules of those systems in equal measure. The character of the action rather than the status of the actor ought to be the basis of law systems the object of which is to regulate actors who intervene in areas once deemed to be the sole preserve of states. To the extent that public bodies continue to cling to the antiquated distinctions, preserving systems grounded in forced legal distinctions grounded in status, they will continue to fail in efforts to both properly conceptualize and effectively intervene, in the new power realities on the ground.
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