A comparative analysis of the US and EU retail banking markets - Wsbi
A comparative analysis of the US and EU retail banking markets - Wsbi
A comparative analysis of the US and EU retail banking markets - Wsbi
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4.3.2 United States<br />
4.3.2.1 Background<br />
During <strong>the</strong> 1920s in <strong>the</strong> <strong>US</strong>, approximately 20 million<br />
small <strong>and</strong> large shareholders were trading $50 billion’s<br />
worth <strong>of</strong> securities on <strong>the</strong> stock market. It is estimated<br />
that half <strong>of</strong> <strong>the</strong>se securities became worthless following<br />
<strong>the</strong> 1929 crash 198 . As early as 1933, <strong>the</strong> <strong>US</strong> Congress<br />
passed <strong>the</strong> first two laws that govern <strong>the</strong> securities<br />
<strong>markets</strong> as a response to <strong>the</strong> stock market crash: <strong>the</strong><br />
Securities Act <strong>of</strong> 1933 <strong>and</strong> <strong>the</strong> Securities Exchange<br />
Act <strong>of</strong> 1934.<br />
In response to <strong>the</strong> events <strong>of</strong> 1929, <strong>the</strong> 1933 Act<br />
introduced laws that require full <strong>and</strong> fair disclosure<br />
<strong>of</strong> <strong>the</strong> character <strong>of</strong> securities to ensure that investors<br />
receive sufficient information to be able to make<br />
informed investment decisions. Ano<strong>the</strong>r objective was<br />
to prevent misinterpretation <strong>and</strong> fraud associated<br />
with <strong>the</strong> trading <strong>of</strong> securities. The 1934 Securities<br />
Exchange Act set <strong>the</strong> basis to establish <strong>the</strong> Securities<br />
<strong>and</strong> Exchange Commission (SEC), a regulatory agency<br />
independent <strong>of</strong> federal government, but still under <strong>the</strong><br />
oversight <strong>of</strong> a number <strong>of</strong> congressional committees.<br />
The SEC was assigned high level regulatory <strong>and</strong><br />
enforcement powers: power to register, regulate <strong>and</strong><br />
oversee <strong>the</strong> exchanges, broker-dealers, investment<br />
advisors, transfer agents <strong>and</strong> clearing agencies 199 .<br />
The Act also introduced <strong>the</strong> obligation for all publicly<br />
traded securities to be registered with <strong>the</strong> SEC, bringing<br />
in more transparency by requiring companies to<br />
disclose all relevant information about <strong>the</strong>ir properties<br />
<strong>and</strong> businesses, a description <strong>of</strong> <strong>the</strong> security to be<br />
<strong>of</strong>fered for sale, information about <strong>the</strong> management<br />
<strong>of</strong> <strong>the</strong> company <strong>and</strong> its financial performance.<br />
Several o<strong>the</strong>r Acts were adopted in <strong>the</strong> following<br />
years (Public Utility Holding Company Act <strong>of</strong> 1935,<br />
Trust Indenture Act <strong>of</strong> 1939, Investment Company<br />
Act <strong>of</strong> 1940 <strong>and</strong> Investment Advisers Act <strong>of</strong> 1940),<br />
but <strong>the</strong> next major change to <strong>the</strong> securities market<br />
was introduced in 1975 with <strong>the</strong> amendment to <strong>the</strong><br />
1934 Securities Exchange Act 200 . This legislative reform,<br />
which became known as <strong>the</strong> National Market<br />
System (NMS), required <strong>the</strong> SEC to facilitate <strong>the</strong><br />
development <strong>of</strong> a national market system for <strong>the</strong><br />
trading <strong>of</strong> securities.<br />
The objective <strong>of</strong> NMS is “promoting fair competition<br />
among individual <strong>markets</strong>, while at <strong>the</strong> same time<br />
assuring that all <strong>of</strong> <strong>the</strong>se <strong>markets</strong> are linked toge<strong>the</strong>r,<br />
through facilities <strong>and</strong> rules, in a unified system that<br />
promotes interaction among <strong>the</strong> orders <strong>of</strong> buyers<br />
<strong>and</strong> sellers in a particular NMS stock. The NMS <strong>the</strong>reby<br />
incorporates two distinct types <strong>of</strong> competition –<br />
competition among individual <strong>markets</strong> <strong>and</strong> competition<br />
among individual orders – that toge<strong>the</strong>r contribute<br />
to efficient <strong>markets</strong>” 201 . In response, a number <strong>of</strong> key<br />
mechanisms were developed over <strong>the</strong> years to increase<br />
market efficiency, transparency <strong>and</strong> investor protection.<br />
- The best execution rule obliges investment firms<br />
to execute clients’ orders under <strong>the</strong> most<br />
favourable conditions to <strong>the</strong> client. Trading centres<br />
are obliged to publish monthly statistics about<br />
execution quality to enable investors to judge<br />
whe<strong>the</strong>r best execution was achieved. Moreover,<br />
investment firms must publish quarterly statistics<br />
with a list <strong>of</strong> venues to which orders are routed to<br />
give information on <strong>the</strong>ir relationship with <strong>the</strong><br />
market <strong>and</strong> to avoid conflict <strong>of</strong> interests between<br />
investment firms <strong>and</strong> <strong>the</strong>ir clients.<br />
- Order h<strong>and</strong>ling rules (quote rule <strong>and</strong> limit order<br />
display rule) have <strong>the</strong> main objective to increase<br />
market transparency. These rules provide public<br />
information about <strong>the</strong> prices at which market<br />
makers are prepared to trade <strong>the</strong>ir securities.<br />
- Increased market interconnection makes it possible<br />
to easily gain access to numerous trading venues.<br />
These fundamental categories <strong>of</strong> measures set a solid<br />
basis for <strong>the</strong> development <strong>of</strong> <strong>the</strong> <strong>US</strong> capital market<br />
<strong>and</strong> served as a starting point for <strong>the</strong> new Regulation<br />
NMS which was adopted in 2005. All mentioned<br />
measures <strong>and</strong> <strong>the</strong> NMS Regulation are looked at in<br />
more detail below.<br />
4.3.2.2 Applicable legislation<br />
4.3.2.2.1 Best execution<br />
Whenever an investment company has a choice <strong>of</strong><br />
executing its client’s order in more than one trading<br />
venue, it has a fiduciary obligation to choose <strong>the</strong> one<br />
where <strong>the</strong> conditions are most favourable to <strong>the</strong><br />
client. This best execution rule is certainly one <strong>of</strong> <strong>the</strong><br />
most important mechanisms designed to ensure<br />
investor protection.<br />
198 <strong>US</strong> SEC «The investor’s advocate: how <strong>the</strong> SEC protects investors <strong>and</strong> maintains market integrity», July 2005.<br />
199 Not all <strong>the</strong> powers mentioned were initially granted to SEC, but added subsequently over time.<br />
200 The NMS was newly amended in 2005 as a response to market developments. This will be discussed in more detail below.<br />
201 <strong>US</strong> SEC, Regulation NMS, Release No. 34-51808; File No. S7-10-04, June 2005.<br />
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