May 10, 2016
More On The Global Influence On American Financial Regulation, from a MetLife Designation Dissent
Posted by David Zaring

This is very out of time, but I've been reading the very good dissent on the designation of MetLife as systemically significant by the independent member of the committee that does those designations - the Financial Stability Oversight Council.  I disagree with the dissent because I think it requires too much of financial regulators, who want to avoid catastrophe, not encourage scientific rationality about it.  But still, plenty of fine arguments.  One that caught my eye, given that I've written about it, the international influence on the decision, emphasized by the decision of the global Financial Stability Board to designate MetLife as risky before the FSOC did:

Although it may be technically accurate to say that the FSB’s declaration is not legally binding on the Council, the FSB explicitly acts in collaboration with the standard-setters and national authorities with the expectation that the intended effects will be achieved by FSB member countries. The FSB’s framework for the identification of systemic risk in the financial system is clear about this intended influence: “The FSB’s decisions are not legally binding on its members – instead the organisation operates by moral suasion and peer pressure, in order to set internationally agreed policies and minimum standards that its members commit to implementing at national level.” As the FSB continues to consider other U.S. financial firms for designation as G-SIFIs, I encourage my fellow Council members whose agencies are members of the FSB to not again allow the FSB to “front-run” or pressure decisions that must be made first by the Council as a whole.

In my view, delegating policymaking to an international body is not that consistent with American administrative law principles, and entirely necessary in financial regulation.  It will be fascinating to see how the courts grapple with the problem.

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