Regulation is like the 3 bears porridge. If you have none, the world is worried about your businesses and the safety of their money if placed with you. If you have too much it is too costly and difficult for businesses and customers alike, so the work goes elsewhere. You need the Goldilocks amount, not too much and not too little.
As you need to ration your regulatory interventions, you should establish the priorities you need to achieve with effective regulation. There are two overriding requirements when regulating businesses that can take your money on a promise of giving it back sometime.
The first is the regulator needs to ensure your money when invested with a bank or other institution remains your money, held to your account or available when you need it. You must be able to get it back at the stated times in the contract. That is why we have bank solvency and liquidity requirements, and custodian and Trustee arrangements for funds.
The second is the regulator needs to ensure that the institution does with the money what they say they will do with the money. If the financial institution has said it is running a fund which bets on the horses, it needs to show how it is has placed bets on the horses and what happened to its bets. If it says it is keeping your money safe in deposits it should do so and be able to show you where and how it has done so.
The regulators these days try to go much further than that. They are interested in ensuring advisers offer correct advice. The problem with this approach is no-one knows in advance what is correct advice. Today’s risky asset can be tomorrow’s investment success. Today’s safe asset may collapse tomorrow. The Regulator could end up entrenching the errors of the day into many people’s portfolios or savings. Regulators would urge people not to buy the betting on the horses funds, but to stick with the bank deposit fund. That would protect their money in normal circumstances. If , however, the fund had placed lots of its money in Icelandic deposits in 2008, whilst the horse betting fund had a winning streak, the results could confound the normal predictions.
Investment today poses serious problems for regulators and investors. Are gilts still a safe haven investment, the possible core of a cautious portfolio? Or are the small yields now a warning sign of another bubble, which will one day burst and lose holders a lot of money? Is gold a great idea, with more years of bull market ahead of it as people get more disenchanted with paper currencies and as Asian demand stimulates the party? Or is gold a barborous relic, now sitting at a high price, which could itself tumble? Have European bank shares discounted the obvious discomforts of life in the Eurozone, or have they further to fall as the crisis unfolds?
The clash of opinions on these and other investment matters are what makes a market. If the Regulators spend too much time worrying about wrong selling, and risk measurement, they run the risk of missing the big issues over solvency, liquidity and transparency which should be fundamental to regulating honest and sucessful markets. Many investors accept caveat emptor when they themselves choose which funds or assets to buy. What they cannot accept is the failure of a bank to return a deposit when due, the collapse of an investment fund because it has done things it did not say it would do, or the theft of money from an investment by a crooked manager. Those are the big things the Regulators need to target.