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Legal Framework for Payments Systems

Legal Framework for Payments Systems

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Legal Framework for Payments Systems

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  1. Legal Framework for Payments Systems Overview and New Concepts Maria Chiara Malaguti

  2. National Payments Systemcomprises all institutional and infrastructure arrangements in a financial system for initiating and transferring monetary claims in the form of commercial bank and central bank liabilities • payment instruments to initiate and direct the transfer of funds between payer and payee • payment infrastructures for transacting and clearing payment instruments • financial institutions that provide payment accounts, instruments and infrastructures • market arrangements • laws and regulations CPSS General guidance for national payment system development 2006

  3. From a legal viewpoint

  4. Underlying obligation A B Cash Often the only recognized Legal tender Cheque Negotiable instrument Wire transfer Credit transfer Debit transfer Each payment instrument has special features: potentially specific legislation

  5. Payment by Fiduciary Money Central Bank Settlement Clearing Clearing House Bank B Bank A Correspondent banking (by agreement: agency) Mandate to pay Client B2 Client B1 Client A

  6. «The Payments System» in law: a three-level situation Operator to operator Finality of payment by fiduciary money and circulation of instruments (as cheques) Bank to client Agency relation and limits on mandate to pay/receive payment; transparency • Bank to bank • Bi-multilateral netting: systemic risk; settlement and role of central bank as lender of last resort

  7. On securities Stock Exchange Investor Broker A Broker B Order to buy Novation CCP (if any) Funds transfer CSD DVP Settlement Custodian Cash clearing and settlement Cash transfer into Central Bank money

  8. Special focus on the interbanking level

  9. Some legal barriers:netting and validity of contractual clauses Bilateral netting and legal «compensation» Bilateral netting and «current accounts» Mutuality and bilateralism: «mutuality» if set-off on behalf of clients? Multilateral netting and legal compensation Lack of bilateralism and mutuality Solution: netting by novation

  10. Some legal barriers:netting by novation and central counterparty c d b e a g f g Central counterparty Central counterparty liable towards each party instead of counterparty?

  11. Some legal barriers:finality of settlement, the «zero hour» and effects of bankruptcy • Retroactivity of bankruptcy effects • Par condicio of creditors

  12. Some legal barriers:the transfer of ownership of securities by book-entry • Need for transfer of paper-based document? • The question of centralized immobilization UNIDROIT draft Convention on securities held with an intermediary (latest May 2007)

  13. «The Payments System»as a regulatory concept Bank (?) A Bank (?) B Bank (?) C Credit risk Liquidity risk Insolvency risk Clearing Systemic risk Final settlement by Central Bank

  14. supervision oversight On the single operator to guarantee individual stability On the system as such to guarantee global stability Central banks Supervisory authorities Central banks Financial markets regulatory authorities

  15. Tools for oversight Regulation • Moral suasion/ soft law Cooperation • Self-regulation

  16. Banking or non-banking activity? Institutional or functional approach? Some regulatory issues:how to organize oversight? Regulation of remittances market? CPSS general principles January 2007

  17. E-money according to EC Directive • Stored on an electronic device • issued in receipt of funds of an amount not less in value than the monetary value issued • accepted as a means of payment by undertakings other than the issuer EC E-Money Directive currently under review

  18. Some regulatory issues:Consolidation or Competition? Cost-effectiveness Choice of providers Centralised risk management Reduction of systemic risk Leave the market free to consolidate, but: Fair and open access Sufficient pressure for innovation

  19. Sectors for legal and regulatory intervention • Recognition of fiduciary money • Regulation of specific instruments of payment according to specificities • E-money • Regulation of payment services (clearing/netting; settlement finality; zero hour) • Regulation: supervision and oversight • Consolidation and competition • Rules on conflict of laws

  20. For tailor-made solutions according to country legal environment.. • Order of priorities in legal and regulatory reform • With a global understanding of laws on property, contracts, corporate action, negotiable instruments, fiduciary relationships, financial institutions…

  21. ..with an eye to openess to foreign investments and inter-operability • Restrictions on the location • Barriers related to taxation • Rules on conflict of laws