Finance & Banking / Economic Law
This section includes literature on public finance, stock markets and domestic investment law.Literature on international economic and investment law, and literature on sovereign debt are listed in the International Law > International Economic Law section. Acree, Christine M and Peter L Cockrell, ‘Mortgage Regulation Developments in the COVID- 19 Era’ (2021) 76(2) Business Lawyer 627–633
Jurisdiction: USA
Abstract: The Consumer Financial Protection Bureau (‘CFPB’) has been active during the past year issuing rules and other guidance applicable to the mortgage industry. This survey highlights many of these regulatory developments. In particular, this survey addresses three notices of proposed rulemaking (‘NPRM’): two proposed rules that would revise the Qualified Mortgage Rule (‘QM Rule’) and a proposed rule that would amend various provisions of Regulation Z to facilitate the transition away from the London Interbank Offered Rate (‘LIBOR’). The CFPB also issued guidance related to the Home Mortgage Disclosure Act of 1975 (‘HMDA’), the Truth in Lending Act–Real Estate Settlement Procedures Act Integrated Disclosure Rule (‘TRID Rule’), and the Equal Credit Opportunity Act (‘ECOA’) Valuations and Appraisals Rule.
Adegoke, Taiye, ‘Banks and Other Financial Institutions Act (Amendment) Bill 2020 (A Comprehensive Analysis of the BOFIA 2020)’ (SSRN Scholarly Paper ID 3670773, 7 August 2020) Abstract: In July 2020, the Senate of the Federal Republic of Nigeria for the first time since 29 years passed a Bill to repeal the Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 and re-enact the Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 (Amendment) Bill, 2020. The Bill seeks to regulate banking and businesses of other financial institutions by prohibiting the carrying on of such businesses in Nigeria except under licence and by a company incorporated in Nigeria. This article examines section by section, the innovative provisions of the Bill and how they clearly improved on the old Act to meet the nuances of the current business world. It is hopeful that just as the new CAMA received the assent of the President of the Federal Republic of Nigeria, the new BOFIA scales through the House of Representatives and eventually gets the President’s assent as the new Act is poised to strengthen the legal framework for the regulation of banks and bring it in line with global best practices, and prevent distress especially during and after this turbulent period of COVID-19, so that the country can adequately prepare and deal with potential post COVID-19 challenges in the banking sector.
Adli, Muhammad, Triono Eddy and Ramlan Ramlan, ‘Legal Protection of Concurrent Creditors Due to Postponement of Debt Payment Obligations During the Covid-19 Pandemic’ (2024) 12(1) JHR (Jurnal Hukum Replik) 13–33 Abstract: The rights of concurrent creditors in the decision to postpone debt payment obligations during the COVID-19 pandemic. To know and analyze the rights of concurrent creditors in determining the vote for extension and peace after the postponement of debt payment obligations during the COVID-19 pandemic. To find out and analyze the obstacles and legal protection efforts against concurrent creditors due to the postponement of debt payment obligations during the COVID-19 pandemic. Problem formulations for this journal are; How are the rights of concurrent creditors in the postponement of debt payment obligations during the Covid-19 pandemic?, How are the rights of concurrent creditors in determining the extension vote and peace after the postponement of debt payment obligations during the Covid-19 pandemic? and What are the obstacles and legal protection efforts against concurrent creditors due to the postponement of debt payment obligations during the COVID-19 pandemic? This research is normative legal research accompanied by supporting data. The research data was collected through a literature study. The analysis was carried out using qualitative methods. Based on the research results, it is concluded that: First, the rights of concurrent creditors in the decision to postpone debt payment obligations during the Covid-19 pandemic are based on the theory of positive law put forward by John Austin, namely in Article 222 paragraph (2) of Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations. Second, the rights of concurrent creditors in determining the extension vote and peace after the postponement of debt payment obligations during the Covid-19 pandemic. Third, Obstacles to legal protection of concurrent creditors due to the postponement of debt payment obligations during the Covid-19 pandemic, namely the absence of funds for the costs of managing and administering postponement of debt payment obligations, uncooperative bankrupt debtors, and debtors selling/hiding their assets before being declared bankrupt. Legal protection efforts against concurrent creditors due to the decision to postpone debt payment obligations.
Agaba, Daphine Kabagambe, ‘Tackling Inequality and Governance Challenges: Insights from the COVID-19 Pandemic’ (2021) 21(2) African Human Rights Law Journal 877–906 Abstract: The article addresses inequality and governance in the face of the COVID-19 pandemic. Globally, it highlights ways in which COVID-19 has further exacerbated the already worrying inequality levels. Specifically, it addresses issues such as vaccine nationalism, rising income inequality levels, while the minority become richer, some from the manufacturing and selling of COVID-related products. From a governance perspective, it is argued that the reliance on liberal democracies to deliver equality is proving to be insufficient as these have been noted to pursue and prioritise market-based strategies that ultimately perpetuate inequality. Ultimately, it is forwarded that there needs to be a rethinking of the global political economy policies, including debt, health systems, intellectual property laws and trade, in order to directly address how such systems perpetuate inequality. In the context of the African continent, the article highlights the difficulty in accessing vaccines, posing a major threat to the continent, which is experiencing waves of the pandemic that are more disturbing than those that went before. It also highlights the extent to which paucity of research affects vaccine efficiency on the continent. COVID-19 has further worsened the already precarious political and economic situation in most of Africa, characterised by countries being unable to pay debt, electoral political violence, COVID-19 denialism, exploiting COVID-19 to clamp down on opposition, and misuse of COVID-19 funds. Thus, it is recommended that there needs to be an overhaul of the already broken fiscal and political environments rather than the adoption of piecemeal economic solutions such as debt freezes, or politically-flawed ones, that ultimately do not work.
Ahmed, Nova et al, ‘Resilience During COVID Pandemic: Role of Fintech in the Perspective of Bangladesh’ (SSRN Scholarly Paper ID 4009497, 26 October 2021) Abstract: This in-the-moment research during the COVID-19 pandemic explores the role of existing fintech (financial technology) in several communities, particularly among women in Bangladesh. Our qualitative study on n = 75 participants (Female = 63, Transgender = 2, Male = 6, 4 Male fintech service providers) have explored urban, semi-urban, and rural communities in Dhaka Division, Bangladesh, to understand the added values, challenges, and user perceptions of fintech during the ongoing pandemic. The study focuses more on the diverse problems women face during Fintech operations, which remain underexplored in the Global South context. It shows existing fintech providing contactless transaction options and opportunities of remote banking, opening up discussions on the challenges faced during fintech adoption. The study sheds light to the resilience of participants in using fintech services instead of discarding it in the face of negative experiences. It also reveals the widening digital divide and the required awareness towards minimizing the gap between the digitally disconnected communities. The participants put forward ideas about possible design improvement since fintech is the only financial tool for certain communities, and it is a safe way to support many during the pandemic. Based on findings, we have presented design implications for existing fintech options in Bangladesh; that will engage all the communities into better fintech usage and broaden the scope of CSCW literature in many dimensions.
Ahmed, SheharYar, ‘Impact of COVID-19 on Performance of Pakistan Stock Exchange’ (SSRN Scholarly Paper No ID 3643316, 4 July 2020) Abstract: The objective of this study is to determine the impact of COVID-19 on the performance of Pakistani Stock Market. This study uses the data of COVID-19 related positive cases, fatalities, recovers and the closing prices of PSX 100 index of the first half of 2020. The findings of the study suggest that only COVID-19 recoveries are influencing the performance of the index and the daily positive cases and fatalities are insignificantly related to the performance. Further studies can be performed by incorporating other variables such as economic growth, interest rate and inflation rate along with the COVID-19 related variables at a cross-country level.
Akbar, Raihan Imam Cahya and Yuhelson M Noer, ‘Legal Certainty of Donation of Debt Payment Obligations (PKPU) As a Means of Resolving Non-Load Loans Related to the Banking Relaxation Program during the Covid-19 Pandemic’ (2021) 4(4) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 13877–13885 Abstract: The Covid-19 pandemic has had an impact on the economy in Indonesia. The government says that Covid-19 is a non-natural national disaster. The application of social distancing is a way to deal with the spread of the covid-19 virus, but with the presence of social distancing this makes the weakening of the economy that has an impact on business actors in Indonesia. Delay of debt payment obligation (PKPU) provides the purpose of the debtor or creditor applying for a delay in debt payment obligations (PKPU). In addition, the government also provides banking relaxation regulations to support companies that are affected by covid-19. The purpose of this research is to find out the implementation of PKPU supported by relaxation of banking issued by the government to overcome bad credit and know legal certainty in the implementation of PKPU with the relaxation of banking. This research is a normative juridical law research. The result of this research is the implementation of PKPU with the relaxation of banking has been running in accordance with Law No. 37 of 2004 and OJK No. 11 / OJK.03 / 2020. But for waivers that apply in accordance with OJK No. 11 /ṔOJK.03/2020 only applies to business actors who have a loan ceiling to Bank Negara only 03 /2020. But for waivers that apply in accordance with OJK No. 11 /ṔOJK.03/2020 only applies to business actors who have a loan ceiling to Bank Negara only 03 / 2020. But for waivers that apply in accordance with OJK No. 11 /ṔOJK.03/2020 only applies to business actors who have a loan ceiling to Bank Negara only.
Akrong, Kevin and Gail E Henderson, ‘COVID-19 and the Regulation of Alternative Financial Services’ 46(2) Queen’s Law Journal 357–371 Abstract: This article explores how the COVID-19 pandemic has exposed and exacerbated existing inequalities with respect to access to basic financial services in Canada. The authors examine changes made to the regulation of financial products in the wake of the pandemic in order to expose the need to ensure that these regulations protect the ability of all Canadians to meet their needs and financial obligations. Part IA compares the regulation of government cheques cashed at banks and alternative service providers. Part IB analyzes Ontario’s changes to the regulation of institutions providing payday loans and warns that the current regulatory scheme leaves a gap in the regulation of installment loans. Part II provides an overview of voluntary credit relief programs offered in response to the pandemic and discusses how taking advantage of these programs may impact a borrower’s credit score. Part III cautions that financial stress as a result of the pandemic may lead to those with poor or no credit history to turn to so called ‘credit repair loans’. The authors conclude by expressing their hope that the pandemic will generate the political will to work towards a regulatory system for financial produces that meets the needs of all Canadians.
Alon, Titan et al, ‘The Impact of COVID-19 on Gender Equality’ (National Bureau of Economic Research, NBER Working Paper No 26947, April 2020) Abstract: The economic downturn caused by the current COVID-19 outbreak has substantial implications for gender equality, both during the downturn and the subsequent recovery. Compared to ‘regular’ recessions, which affect men’s employment more severely than women’s employment, the employment drop related to social distancing measures has a large impact on sectors with high female employment shares. In addition, closures of schools and daycare centers have massively increased child care needs, which has a particularly large impact on working mothers. The effects of the crisis on working mothers are likely to be persistent, due to high returns to experience in the labor market. Beyond the immediate crisis, there are opposing forces which may ultimately promote gender equality in the labor market. First, businesses are rapidly adopting flexible work arrangements, which are likely to persist. Second, there are also many fathers who now have to take primary responsibility for child care, which may erode social norms that currently lead to a lopsided distribution of the division of labor in house work and child care.
Aminov, Mirobbos, ‘The Legal Framework Of Public-Private Partnership And The Economic Function Of The State In The Context Of The COVID-19 Pandemic: Example Of Uzbekistan’ (2020) 7(3) European Journal of Molecular & Clinical Medicine 3930–3934 Abstract: The concept of state function is one of the most important categories in the science of the theory of state and law. Because the study of issues related to the functions of the state serves to better understand its meaning, its role in society and its social function.This article is devoted to some issues of the role and importance of public-private partnership in the implementation of the economic function of the state.
Anggita, Wenni, Nanang Wahyudin and Wirazilmustaan, ‘Covid 33: Perceptions and Expectations of Council Members on Presidential Regulation No. 33 of 2020’ (2021) 3(2) Asian Journal of Law and Governance 34–39 Abstract: The uncomfortable news for government officials, members of the DPRD, as well as other civil servants in the midst of the corona pandemic (covid-19) with the issuance of Presidential Regulation Number 33 of 2020 concerning Regional Unit Price Standards which they call ‘Covid 33’. This is related to cutting some line items which were cut quite a lot by up to 75%. This Presidential Regulation is effective starting January 1, 2021 since President Joko Widodo issued Presidential Regulation Number 33/2020 concerning Regional Unit Price Standards in February 2020. This study aims to find out what the opinions of the members of the regional people’s representative council, especially in the Bangka Belitung Islands regarding the implementation of Presidential Regulation 33 of 2020. The sample of this study is 50 council members spread across 2 districts in Belitung using descriptive qualitative approach. Researchers distributed questionnaires and also conducted interviews with respondents to see their perceptions and how their expectations and input were regarding this Presidential Regulation 33/2020. The results of this study indicate that most respondents do not reject the implementation of Presidential Regulation 33/2020. However, revisions must be made in several parts. This is related to an increase in social expenditure as an increase in the economic cost of the community from council members. There is separation between government employees and board members in the implementation of Presidential Regulation 33/2020 because of the differences in the interests of their existence. The implementation of Presidential Regulation 33/2020 should also be adjusted to the capabilities of each region so that it does not generalize the capabilities of the regions. This is contrary to the welfare theory adopted by society where every community is no exception to the members of the council.
Arner, Douglas W et al, ‘After Libra, Digital Yuan and COVID-19: Central Bank Digital Currencies and the New World of Money and Payment Systems’ (University of Hong Kong, Faculty of Law Research Paper No 2020/036, 2020) Abstract: Technology, money and payment systems have been interlinked from the earliest days of human civilization. But of late technology has reshaped money and payment systems to an extent and speed never before seen. Milestones include the establishment of M-Pesa in Kenya in 2007 (creating mobile money systems), Bitcoin in 2009 (triggering in time the explosive growth in distributed ledger technology and blockchain), the announcement of Libra in 2019 (triggering a fundamental rethinking of the potential impact of technology on global monetary affairs), and the announcement of China’s central bank digital currency – the Digital Currency / Electronic Payment (DCEP) referred herein to as Digital Yuan (marking the first launch by a major economy of a sovereign digital currency). The COVID-19 pandemic and crisis of 2020 has spurred electronic payments in ways never before seen. In this paper, we ask the question: In the context of the crisis and beyond, what role can technology play in improving the effectiveness of money and payment systems around the world?This paper analyses the impact of distributed ledger technologies and blockchain on monetary and payment systems. It particularly considers the policy issues and choices associated with cryptocurrencies, stablecoins and sovereign (central bank) digital currencies. We examine how the catalysts reshaping monetary and payment systems around the world – Bitcoin, Libra, China’s DCEP, COVID-19 – challenge regulators and give rise to different levels of disruption. While the thousands of Bitcoin progenies were able to be ignored, safely, by regulators, Facebook’s proposed Libra, a global stablecoin, brought an immediate and potent response from regulators globally. This proposal by the private sector to move into the traditional preserve of sovereigns – the minting of currency – was always likely to provoke a roll-out of sovereign digital currencies by central banks. China has moved first, among major economies, with its Digital Yuan – the initiative that may well trigger a chain reaction of central bank digital currency issuance across the globe. In contrast, in the COVID-19 crisis, we argue most central banks should focus not on rolling out novel new forms of blockchain-based money but rather on transforming their payment systems: this is where the real benefits will lie both in the crisis and beyond. Looking forward, neither the extreme private nor public model is likely to prevail. Rather, we expect the reshaping of domestic money and payment systems to involve public central banks cooperating with (new and old) private entities which together will provide the potential to build better monetary and payment systems at the domestic and international level. Under this model, for the first time in history, technology will enable the merger of the monetary and payment systems.
Arner, Douglas W et al, ‘Digital Finance & The COVID-19 Crisis’ (University of Hong Kong, Faculty of Law Research Paper No 2020/017, 16 April 2020) Abstract: The COVID-19 coronavirus crisis is putting unprecedented strain on markets, governments, businesses and individuals. The human, economic and financial costs are increasing dramatically, with potentially huge impact on developing countries and emerging market countries in addition to developed countries and regions. Across all of these, the greatest toll is likely to fall on those least able to bear it, with terrible damage to human development across the world.This paper examines how the digital financial infrastructure that emerged in the wake of the 2008 Global Financial Crisis is being, and can be, leveraged to overcome the immediate challenges presented by the pandemic and manage the impending economic fallout. The origins of the 2008 crisis and current crisis are different: 2008 was a financial crisis spilling over into the real economy. 2020 is a health and geopolitical crisis, spilling over simultaneously into financial markets and the real economy. As such, this crisis requires different approaches.This study operates at two levels: • At the macro level, it seeks to identify areas of systemic risk and strategies and frameworks to support policy coordination and action; and • At the micro level is seeks to illustrate how digital finance tools may be able to assist addressing some of the challenges emerging.Strategies to address financial aspects of the crisis in order to reduce the economic and human impact include: (1) ensuring sufficient liquidity to support market functioning and underpin demand; (2) intensifying information exchange on health and financial / economic matters in an effort to ensure accurate information despite forces that work against this; (3) heavy, temporary financial support for individuals; for small, medium and large enterprises to avoid loss of infrastructure and preserve the capacity for an orchestrated response (by avoiding mass insolvency); and potentially, in some cases, for governments; (4) leveraging digital finance and payments to reduce human-to-human contact, while organizing support for the elderly and other digitally excluded people who would normally use physical channels; (5) establishing a well-funded coordination body as a crisis management tool to ensure information exchange; (6) directing financial resources to medical infrastructure; and (7) directing financial resources to digital infrastructure and connectivity to support all other aspects of society and the economy, including, especially, the online facilitation of education and widespread work-from-home policies.At the same time, the digitization of financial services in the last decade offers alternative and more direct means by which it may be possible to stimulate the real economy, which will be critical in mitigating the economic impacts and maintaining social cohesion. Tools that support financial inclusion, sustainable development and achievement of the UN Sustainable Development Goals can also provide useful tools during a crisis. These short term strategies are expected to generate deeper structural changes long-term. For now, one cannot predict the new world that will emerge post crisis, but this issue will require focussed attention going forward as the immediate situation eventually comes under control and recovery begins.
Arner, Douglas W, Emilios Avgouleas and Evan Gibson, ‘Financial Stability, Resolution of Systemic Banking Crises and COVID-19: Toward an Appropriate Role for Public Support and Bailouts’ (University of Hong Kong, Faculty of Law Research Paper No 2020/044, 1 August 2020) Abstract: A wide range of approaches has been applied to address banking and other financial crises. The nature of the approach depends on the nature of the crisis, its origins, evolution and context. Systemic banking crises are among the most common and costly to address. The experiences of the three major international financial crises of the past 25 years – the Asian Financial Crisis, the Global Financial Crisis, and the European Debt Crisis – offer critical lessons regarding the most effective approaches in tackling bank solvency during a systemic crisis. One of the most common and also effective methods has been the transfer of non-performing loans (NPLs) to an Asset Management Company (AMC) that performs workouts or liquidates stressed loan portfolios at a more opportune time to amortize losses. In most cases the use of AMCs has delivered positive results for the taxpayer. Contemporary consensus as regards tackling bank solvency during a systemic financial crisis focuses heavily on prevention of government bailouts in order to protect state finances and curb moral hazard. However, an overly dogmatic focus on preventing public financial support in the context of a systemic bank solvency crisis may place insurmountable obstacles to the use of state-backed AMCs and other forms of resolution of NPLs and bank recapitalization. This paper provides a new perspective on the common belief that public support in the context of systemic bank insolvency – i.e. bank bailouts – is an inefficient use of public funds or conducive to moral hazard. Our study finds that state-backed AMCs can be effective in recapitalizing banking systems, depending on the modus operandi of the restructuring, funding and the conditions attached to the fiscal backstop. With respect to systemic banking crises or those caused by exogenous factors, such as the unprecedented disruption of economic activity due the COVID-19 pandemic, preservation of financial stability and not containment of moral hazard should be policy-makers’ predominant goal. Thus, we suggest that a combination of balance sheet restructuring and the use of AMCs to manage NPLs is the optimal approach.
Aung, Mi Khin Saw, ‘Legal Changes in the COVID-19 Pandemic in Myanmar’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 109–121 Abstract: Myanmar conducts the request-based approach to control the COVID-19 pandemic effectively and to mitigate the economic impact. Myanmar has restricted the pandemic according to Prevention and Control of Communicable Diseases Law 1995 and has formed the different levels of Committee on Prevention, Control and Treatment of COVID 19 by Natural Disaster Management Law 2013 to manage and response the effects of COVID-19 pandemic with the issuance of orders, directions and instructions based on the advisory opinions of the think tank. The COVID-19 Economic Relief Plan (CERP) is set up to exclude the potential risks from the range of COVID-19 effects of this pandemic especially on the economy.
Avgouleas, Emilios and Aggelos Kiayias, ‘The Architecture of Decentralised Finance Platforms: A New Open Finance Paradigm’ (Edinburgh School of Law Research Paper No 2020/16, 3 August 2020) Abstract: The evolving merger of payments technology with technology underpinning investment markets’ infrastructure can have a great impact on the mode of supply of financial services, notwithstanding technical, legal and regulatory restrictions. One-stop-shop multi-purpose and multi-asset platforms will be a key characteristic of post-COVID-19 finance bringing a radical transformation of the marketplace. Anticipated benefits range from a drastic reduction of intermediary rents and transaction costs to repatriation of investor control and alteration of today’s narrow asset allocation strategies. To facilitate this transformation, we offer a model of decentralised finance that goes far beyond so-called ‘autonomous’ finance. As the technical and regulatory challenges of increasing automation and integration in the supply of investment services will be considerable, a proactive approach is required to resolve these problems. Integrated decentralised platforms are the most promising route to: (a) counter the competitive threat of BigTech, (b) reform investment industry’s narrow asset allocation practices whose fragility has been badly exposed by the pandemic, and, (c) spread equally the dividend of financial development.
Badriyah, Siti Malikhatun, R Suharto and Retno Saraswati, ‘The Restructuring of Credit and Lease Agreements and Its Impact on Micro, Small, and Medium-Sized Enterprise and Insolvency Risks Amid the Pandemic: A Normative Juridical Method’ (2024) 6(3) Corporate Law & Governance Review 43–52 Abstract: Micro, small, and medium-sized enterprises (MSMEs) play a crucial role in Indonesia’s economy, contributing to job creation, income growth, and wealth distribution (Koeswahyono et al., 2022). This research aims to analyze the impact of the COVID-19 pandemic on lease agreements (leasing) in the non-banking financial sector, particularly in financing companies. The research is conducted through a normative juridical research method. The main findings of this study show that credit restructuring is a government solution to address instalment payment difficulties, especially for MSME debtors. The article also addresses legal certainty issues in lease agreements, mainly due to regulatory gaps in the Civil Code. With specific conditions, credit restructuring is provided with a maximum limit of IDR 10 billion (Siregar et al., 2021). This research concludes that, despite being considered an optimal solution, credit restructuring also has negative impacts, and legal certainty is critical in this context. Using data from the Financial Services Authority in 2021, the article explains that credit restructuring has positively stimulated Indonesia’s economic growth. MSME debtors are the main focus, comprising 39.73 percent of the total credit restructuring. This policy is seen as a strategic step to support economic recovery, especially considering the central role of MSMEs in the national economy.
Baker, Todd H, Kathryn Judge and Aaron Klein, ‘Credit, Crises, and Infrastructure: The Differing Fates of Large and Small Businesses’ (2022) 102(4) Boston University Law Review 1353–1396 Abstract: This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding. At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range of government programs implemented and their longer-term impact reveals a very different picture. By primarily providing grants to small businesses, the government helped address their short-term cash flow challenges but did little to encourage ongoing private credit creation for these businesses. The aid provided was real but finite in nature. By contrast, the nature of the programs used to facilitate financing for the largest businesses provided major support at the moment and created expectations of future support. These interventions enhanced the viability and attractiveness of inherently fragile intermediation structures and set them up to continue to provide cheap and easy financing for the largest businesses long after the acute phase of crisis had passed. This Essay further reveals how numerous seemingly neutral choices were anything but in practice, creating a disconnect between policymakers’ stated aims and the actual impact of many of their actions. A key takeaway is that the government should do more during times of peace to understand and shape the credit creation infrastructure in ways that facilitate small business lending in good times and bad.
Bakung, Dolot Ahsani et al, ‘The Urgency of Establishing a Legal Entity Issuing Force Majeure Certificates Against Creditor Protection During the Covid-19 Pandemic’ (Proceedings, 3rd International Conference on Law Reform, 2022) 148–156 Abstract: The Covid-19 that occurred in recent years has had an impact on public health as well as the economic sector. It has caused the Indonesian economy to experience a slump in the second quarter of 2020 until the real GDP contracted and its value became IDR 2,590 trillion, which previously was IDR 2,735 trillion in the second quarter of 2019. Accordingly, the government announced Presidential Decree No. 12 of April 13, 2020, on the determination of non-natural disasters due to the spread of COVID-19 in 2019, a national disaster, making use of it. The issue is that the economic impact affects creditors in paying their obligations to debtors. The problem is that the emergency status of Covid-19 does not necessarily cause force majeure that has an impact on losses for creditors. Therefore, it is necessary to form a state agency that specifically issues force majeure certificates like in China so that it can be used as a reference that the debtor is proven to have experienced force majeure. This certificate serves the purpose of proof which will ultimately be considered among all relevant factors by the court. Because in Indonesia, the only way to interpret force majeure in court is based solely on the opinion of the judge, and the creditor’s position does not have strong evidence to prove in a state of force majeure. The formulation of the problem in this study is: what about the concept of force majeure for loan protection in Indonesia? How to Establish a Legal Entity Providing Force Majeure in Indonesia Design Certificate?
de Bandt, Olivier, Celine Lecarpentier and Cyril Pouvelle, ‘Determinants of Banks’ Liquidity: A French Perspective on Interactions between Market and Regulatory Requirements’ (Banque de France Working Paper No 782, 2020) Abstract: The paper investigates the impact of solvency and liquidity regulation on banks’ balance sheet structure. The Covid-19 pandemics shows that periods of sharp increase in risk aversion often result in liquidity strains for banks due to the volatility of long-term funding markets.According to a simple portfolio allocation model banks’ liquidity increases when the regulatory constraint is binding. We provide evidence, using the ‘liquidity coefficient’ implemented in France ahead of Basel III’s Liquidity Coverage Ratio, of a positive effect of the solvency ratio on the liquidity coefficient. We also show that in times of crisis, measured by financial variables, French banks actually decreased the liquidity coefficient, with the transmission channel materialising mainly on the liability side.
Barnes, Matthew, ‘Coronavirus: What Now for the Global Economy and Financial Markets?’ (2020) 5 Wolverhampton Law Journal, 31–46 Abstract: The novel coronavirus has spread exponentially across the globe impacting many aspects of life and it continues to do so at an alarming pace. There are several concerns that stem from this pandemic such as when a vaccine will become available and the impact that it will have on human life. While the paramount concern is, without doubt, to conserve and protect life, there are other implications that should be acknowledged of which this paper is directed toward; the economy and financial markets. This paper will take a two-pronged approach focusing on the effects of the economy and financial markets; and looking to the future. Therefore, the focus of this paper is to illustrate the effects on the economy and financial markets during the beginning and heightened stage of the pandemic, including an up-to-date account, in three large economies, namely the UK, US and Japan. This will be followed by an observation of what the future holds taking into account financial stimulus packages, financial markets and the potential for financial crises. Data, literature and commentary from Governments, global organisations and other key entities will be included.
Barr, Michael S, Howell E Jackson and Margaret E Tahyar, ‘The Financial Response to the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3666461, 1 August 2020) Abstract: We are living through extraordinary times as the United States has struggled to deal with the global COVID-19 pandemic, and as of the writing of this paper, we remain in the midst of the crisis. We still do not know what the full economic and financial consequences of the pandemic will be, but they are likely to persist for an extended period, as many people are unlikely to return to normal work or consumption patterns soon, and household and business defaults are likely to increase and negatively affect the financial sector. This paper, written to assist faculty in teaching about the pandemic, focuses on key actions taken by the financial regulators in response to the crisis so far, giving a detailed summary of the actions taken by the Federal Reserve, the Treasury Department, and Congress. We discuss the Federal Reserve’s monetary policy actions, emergency lending facilities, and supervisory forbearance by the federal banking agencies. We also provide a summary of financial provisions of the CARES Act, including an analysis of the Paycheck Protection Program. We explore a number of central themes already emerging, including the blurry line between monetary policy and fiscal policy. We also highlight the fact that unlike the Financial Crisis of 2008, today’s economic crisis is caused by the failure to take sufficient public health actions to contain a global pandemic, not poor policy and risk choices in the financial markets; the fact that the crisis is caused by a public health failure poses unique problems for economic and financial policymakers in crafting responses.
Baxter, Alison, Mark Craggs and Kenneth Gray, ‘Moratoria Laws Globally and the COVID-19 Pandemic’ (2020) 35(8) Butterworths Journal of International Banking & Financial Law 536–539 Abstract: Compares the moratorium for businesses in difficulty under the Corporate Insolvency and Governance Act 2020 with US Chapter 11 proceedings, and administration in the UK. Considers EU guidance on the capital adequacy implications.
Bell, Gavin A and W Stacy Miller II, ‘Fraud in the Pandemic: How COVID-19 Affects Qui Tam Whistleblowers and The False Claims Act’ (2021) 43(3) Campbell Law Review 273–307 Abstract: The False Claims Act (FCA) and its qui tam provision allow whistleblowers who uncover fraud against the government to bring a civil action and assist in the recovery of assets. This little-known law has become the government’s most powerful tool to combat fraud and is responsible for the recovery of more than $59 billion since its amendment in 1986. As with most things, the COVID-19 pandemic has impacted the FCA and its qui tam practice. As of April 1, 2021, the federal government allocated a total of $3.0 trillion to address the pandemic. The public must rely on the FCA and its whistleblowers now more than ever to protect this public investment.
Berse, Kristoffer B, Kirsten Lianne Mae C Dedase and Lianne Angelico C Depante, ‘Autonomous Adaptation and Governmental Responses to the COVID-19 Pandemic: Exploring the Resilience of Micro, Small and Medium Enterprises in the Philippines’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 55–78 Abstract: This study frames the COVID-19 pandemic’s impact on Philippine micro, small, and medium-sized enterprises (MSMEs) from the lens of resilience, while discussing the various types of support that MSMEs have received from government agencies and public and private banks. Using data from a small-sized survey involving managers and workers, it explores the issues, needs, and responses that MSMEs have encountered. Preliminary findings reveal limited stimuli to ensure MSMEs’ survival. To cope with the disruption, most reported adopting adaptive mechanisms. The paper ends with a discussion of policy recommendations and future research directions to further explore and strengthen MSME resilience.
‘Beware of Coronavirus Scams’ (2020) 113(5) Servamus Community-based Safety and Security Magazine 25–25 Abstract: SABRIC, the South African Banking Risk Information Centre, warns bank clients that cybercriminals are exploiting the spread of COVID-19 for their own gain using the ‘Coronamania’ panic to spread coronavirus scams. Coronavirus scams exploit peoples concerns for their health and safety and pressure them into being tricked using social engineering. Social engineering is manipulative and exploits human vulnerability because criminals know that the weakest link in the information security chain is the human being.
Bhouri, Habiba, ‘Public Economic Law Constrained by the Number(s)? About the Pandemic Crisis and Its Consequences’ (2021) 7(4) International Journal of Public Law and Policy (advance article, published online 2 November 2021) Abstract: Faced with this health crisis and this pandemic, state intervention seems necessary and even essential. Thus, in an urgent attempt to stem the large-scale economic crisis, the government has already put in place legal and financial measures to ensure maximum stability. It mainly concerns the status of companies and employees who are the first victims of this pandemic. Public health interventions have generally taken the form of several preventive public health regulations designed to curb the spread of disease and limit their economic and social impact. This public action, however, framed by the principles of international economic law and in particular European. The interest of the subject is to present the proliferation of figures which seem to constitute as much the basis as a constraint to public action in the economy, an attitude which seems to be justified by the unexpected scale of this health crisis.
Billio, Monica and Simone Varotto, A New World Post COVID-19: Lessons for Business, the Finance Industry and Policy Makers (Fondazione Università Ca’ Foscari, 2020) OPEN ACCESS Abstract: Pandemics are disruptive events that have profound consequences for society and the economy. This volume aims to present an analysis of the economic impact of COVID-19 and its likely consequences for our future. This is achieved by drawing from the expertise of authors who specialise in a wide range of fields including fiscal and monetary policy, banking, financial markets, pensions and insurance, artificial intelligence and big data, climate change, labour market, travel, tourism and politics, among others. This book presents its chapters under the following thematic headings:
Part 1. Historical Perspective
Part 2. Fiscal and Monetary Policy
Part 3. Banking, Risk and Regulation
Part 4. Financial Markets
Part 5. Commodities and Real Estate Markets
Part 6. Business Performance, Funding and Growth
Part 7. Pensions and Insurance
Part 8. Climate Change
Part 9. Labour Market
Part 10. Ai and Big Data
Part 11. Travel, Tourism and Entertainment
Bischoff, Charles and Tom Maclean, ‘Approaches of Lenders and Borrowers in the Speciality Finance Space to the COVID-19 Pandemic’ 35(7) Butterworths Journal of International Banking & Financial Law 492–493 Abstract: Reviews the measures introduced by borrowers and lenders in the speciality finance sector in response to the coronavirus pandemic. Discusses the scrutiny of facility documentation, the position where borrowers seek accreditation under government schemes to make loans available, the questions for borrowers before breach of facility agreements occur, the questions arising after breach, and how mutual waivers may be documented.
Bitar, Mohammad and Amine Tarazi, ‘A Note on Regulatory Responses to Covid-19 Pandemic: Balancing Banks’ Solvency and Contribution to Recovery’ (SSRN Scholarly Paper No ID 3631131, Social Science Research Network, 19 June 2020) Abstract: We see spikes in unemployment rates and turbulence in the securities markets during the COVID-19 pandemic. Governments are responding with aggressive monetary expansions and large-scale economic relief plans. We discuss the implications on banks and the economy of prudential regulatory intervention to soften the treatment of non-performing loans and ease bank capital buffers. We apply these easing measures on a sample of Globally Systemically Important Banks (G-SIBs) and show that these banks can play a constructive role in sustaining economic growth during the COVID-19 pandemic. However, softening the treatment of non-performing loans along with easing capital buffers should not undermine banks’ solvency in the recovery period. Banks should maintain usable buffer in the medium-term horizon to absorb future losses, as the effect of COVID-19 on the economy might take time to fully materialise.
Bostoen, Friso et al, ‘Corona and EU Economic Law: Competition and Free Movement in Times of Crisis’ (2020) 4(2) European Competition and Regulatory Law Review 72–95 Abstract: The outbreak of the coronavirus—and the responses of governments and businesses to combat the medical and economic crisis it entails—raise a number of urgent questions, many of which concern European economic law, i.e. the competition rules and free movement provisions. Can businesses cooperate to guarantee the supply of essential items or a vaccine notwithstanding the cartel prohibition of Article 101 TFEU? Is the excessive price doctrine of Article 102 TFEU a match for the price increases caused by hoarding behaviour? Can competition authorities continue to assess mergers, and might they even become more sympathetic to certain arguments such as the failing firm defence and industrial policy considerations? Under which conditions are Member States allowed to grant aid to undertakings that face economic difficulties due to the crisis? Can Member States prohibit the export of medical supplies to other Member States, and can they close their borders for European citizens? And how much freedom do public procurement rules leave governments to quickly conclude contracts for essential supplies? This article addresses these pressing questions in a comprehensive manner. It situates the numerous guidance documents adopted by the European Commission within the broader framework of EU economic law and then evaluates the compatibility of the public and private corona-related measures with that framework. The aim is to offer a legal guide for governments and businesses combatting the corona crisis.
Bozza, James, ‘Stimulating Fraud: Comparing the Effectiveness of Fraud Recovery Mechanisms Between the United States and the United Kingdom Through the Lens of Public COVID-19 Expenditures’ (2024) 52(2) Georgia Journal of International & Comparative Law 462-478 Abstract: Fraud committed against the U.S. government is one of the largest costs that taxpayers must bear. The False Claims Act has been the most effective monetary fraud recovery mechanism in history. The question remains, however, of if it will continue to be as useful given modern trends of increased spending. An analysis of the U.S. fraud recovery model compared to the United Kingdom through the lens of Covid-19 expenditures demonstrates both the strengths and weaknesses of the U.S. model and provides reasoning for legislative alteration.
Brink, Ton van den and Matteo Gargantini, ‘Models of Solidarity in the EMU: The Impact of COVID-19 After Weiss’ (2021) 17(3) Utrecht Law Review 80–102 Abstract: Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had found that program to respect EU law. The ruling is as such not directly concerned with Covid-19 measures, but it may have nonetheless important consequences thereon. In this contribution we will explore what those consequences may be. Apart from the direct effects on the ECB’s pandemic emergency purchase programme (PEPP), we zoom in on the ruling’s indirect consequences on the broader question of how to arrange solidarity in EMU. With regard to the latter, we contend that Weiss and the Covid-19 crises combined will test the basic models of solidarity the EMU relies upon: the models of individual fiscal responsibility, ECB based solidarity and the model of fiscal union. These models are assessed from economic, constitutional and democratic perspectives.
Buckley, Ross P, Emilios Avgouleas and Douglas W Arner, ‘Three Decades of International Financial Crises: What Have We Learned and What Still Needs to Be Done?’ (University of Hong Kong Faculty of Law Research Paper No 2020/037, 2020) Abstract: Fragility that periodically erupts into a full-blown financial crisis appears to be an integral feature of market-based financial systems in spite of the emergence of sophisticated risk management tools and regulatory systems. If anything, the increased frequency of modern crises underscores how difficult it is to diversify away systemic risk and that perceptions of perfectly stable financial systems are normally flawed, even if the source of the next crisis remains well concealed to the expert eye.Although it is impossible to forecast a financial crisis with a high degree of accuracy and certainty, earlier crises always leave lessons useful in preparation for future crises, from whatever source. It is thus clear that the best way to deal with preventing and addressing major financial crises is to build the defenses of the financial system, including effective institutions, while at the same time trying to identify potential sources of crisis. We should take every opportunity to learn and work to build stronger and more effective financial systems. This paper compares and contrasts the three major crises of the past 3 decades, both to distill the lessons to be learned from them and to identify what more can be done to strengthen our financial systems. As the world addresses the financial impact of the COVID-19 pandemic, the centrality of these lessons is clear.
Busch, Danny, ‘Is the European Union Going to Help Us Overcome the COVID-19 Crisis?’ (2020) 15(3) Capital Markets Law Journal 347–366 Key points: The author discusses the most noteworthy measures taken or yet to be taken by the European Union (EU) to combat the coronavirus crisis. The measures fall into four categories: (i) flexible application of EU rules that could hinder Member States in their strenuous efforts to save their national economies; (ii) a financial support package put in place by the EU itself; (iii) monetary action by the ECB; and (iv) action by European financial regulators, including the ECB (albeit in its capacity of banking regulator rather than monetary authority). This is followed by some comments on the impact of the coronavirus crisis on (i) the intended completion of the European Banking Union, (ii) the plans for a European Capital Markets Union, (iii) Brexit and (iv) the EU climate plans. The author concludes that it is clear that the crisis has once again laid bare the divisions between north and south in Europe. These divisions are particularly apparent in relation to the issue of financing the European recovery fund and the power struggle that has now flared up between the German Constitutional Court on the one hand and the CJEU and the ECB on the other. Hard times lie ahead for the EU.
Chan, Elaine and Jenny Tsin, ‘The Coronavirus COVID-19 Pandemic: Testing the Adequacy of a Financial Institution’s Pandemic Measures’ (2020) 35(6) Butterworths Journal of International Banking & Financial Law 400–402 Abstract: Discusses the Singapore regulatory requirement that banks should have business continuity plans ready for all kinds of disruption, including pandemics. Examines banks’ obligations in the coronavirus pandemic, especially for workplace health and safety, and procedures for employment cost-cutting.
Cherdack, Melanie, ‘Trading in the Time of COVID: A Robinhood Bromance’ (2021) 28(2) PIABA Bar Journal 159–177 Abstract: Investors now hold the stock market in the palm of their hands, making trading frictionless and supposedly ‘commission free.’ But this has come at a cost, mostly to young men. The business model of Robinhood and other trading applications requires frequent trading by users. Better investor education and SEC regulation is needed to make this bromance a healthier and more balanced relationship.
Chiu, Iris HY, Andreas Kokkinis and Andrea Miglionico, ‘Addressing the Challenges of Post-Pandemic Debt Management in the Consumer and SME Sectors: A Proposal for the Roles of UK Financial Regulators’ (2022) 23(4) Journal of Banking Regulation 439–457 Abstract: Regulatory actions for short-term debt-relief during the Covid-19 pandemic are facilitating a significant level of indebtedness. We argue that regulators, in leaving the banking sector to manage small business and consumer debtors in ‘tailored arrangements’, risk allowing financial welfare goals to be unmet. Financial welfare goals are important to the Financial Conduct Authority’s (FCA) consumer protection objective and give substantive meaning to the long-term financial stability objective of the Prudential Regulation Authority (PRA). Although the struggles with debt on the part of small and medium-sized businesses and households are not capable of complete resolution by financial regulators, who are constrained by their statutory mandates, we argue that the PRA and FCA should establish a coordinated supervisory framework of ‘tailored supervision’ for banks’ ‘tailored arrangements’ with their debtors. This proposal allows both regulators to address to an extent the needs of unsophisticated post-pandemic debtors and meet their objectives in a joined-up and holistic manner.
Chiu, Iris, Andreas Kokkinis and Andrea Miglionico, ‘Relief and Rescue: Suspensions and Elasticity in Financial Regulation, and Lessons from the UK’s Management of the COVID-19 Pandemic Crisis’ (2021) 64(1) Washington University Journal of Law & Policy 63–112 Abstract: This Article analyzes the UK’s approach to handling the economic impact of COVID-19, offering insight for developed financial jurisdictions embarking on regulatory suspensions. When existing law no longer meets overarching policy goals such as financial stability, regulators resort to the theorization of legal elasticity. This Article situates regulatory suspension within this theory analyzing the tensions, hazards, and accompanying decision-making frameworks. The authors make three proposals for deployment of legal elasticity by regulators: (1) evaluate institutional stability; (2) engage in relational paradigms with relevant agencies, entities, and stakeholders; and (3) establish ex ante frameworks for crisis management and the potential use of legal elasticity.
Christiani, Theresia Anita, ‘Proposed Changes to the Bank Indonesia Law as a Solution to the Impact of the COVID-19 Spread on Banking in Indonesia’ (2021) 16(2) Banks and Bank Systems 127–136 Abstract: Every amendment to the Bank Indonesia Law is caused by a situation that requires changes to the Law regulating the Central Bank in Indonesia as a solution. The spread of COVID-19 in Indonesia has also led to proposals to amend the Bank Indonesia Law. The purpose of the study is to find answers to the relevance of the proposed Amendment to Bank Indonesia Law to address the spread of COVID-19 to banking institutions in Indonesia. This type of research methods is normative legal research. In normative legal analysis, secondary data are used, consisting of primary and secondary legal materials. They are obtained from applicable regulations in Indonesia. The study results show that every change is always based on events that prove the weak implementation of existing rules with a regulatory and conceptual approach. The spread of COVID-19 is a situation, that has no practical basis and requires amendments to the Bank Indonesia Law as an alternative solution. Also, the proposed amendments are not yet relevant to address the impact of COVID-19 on banks because they have not yet realized and achieved the legal goals of providing benefits to the community.
‘Commission Adopts Capital Markets Recovery Package’ (2020) 395 EU Focus 11–12 Abstract: Reports on the European Commission’s adoption of a Capital Markets Recovery Package, as part of its coronavirus recovery strategy, which contains targeted adjustments to key EU legislation on capital markets to help them to support European businesses recovering from the crisis.
Conti-Brown, Peter, Yair Listokin and Nicholas R Parrillo, ‘Towards an Administrative Law of Central Banking’ (2021) 38(1) Yale Journal on Regulation 1–89 Abstract: A world in turmoil caused by COVID-19 has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the Fed can glean from greater openness and transparency in its interpretations of law and in its long-term policymaking processes. These advantages fall into two categories: (1) sending more credible signals of future action and thereby shaping the behavior of regulated parties and other constituents, and (2) increasing the diversity of incoming information on which to base decisions, thereby improving their factual and predictive accuracy. Second, we apply this framework to two key areas—monetary policy and emergency lending—to show how the Fed can improve its policy signaling and input diversity in the areas of its authority that are most expansive. The result is a positive account of what the Fed already does as an administrative agency and a normative account of what it should do in order to preserve necessary policy flexibility without sacrificing the public demands for policy clarity and rigor.
Corke, Clare, ‘Coronavirus and Financing Arrangements: Practice Tips for Avoiding Turmoil’ (2020) 36(2) Australian Banking and Finance Law Bulletin 27–29 Abstract: In light of the impacts of Novel Coronavirus disease, renamed COVID-19, nation states and businesses are reacting by implementing robust mitigation measures. We are already seeing impacts of COVID-19 (and the mitigation measures) on domestic and international trade and commerce, capital flows, tourism and migration. But how does this relate specifically to borrowers and lenders and how will COVID-19 impact on their financing arrangements?
Crabb, John, ‘The Anti-Social Social Bond Club’ [2020] (Summer) International Financial Law Review 6–7 Abstract: Surveys banking lawyers about whether COVID-19 allocated social bonds could be used to finance not only the development of vaccines but also social projects unrelated to the coronavirus pandemic.
Dabrowski, Marek, ‘Two Major Economic Crises in the Early Twenty-First Century and Their Impact on Central Bank Independence’ (2023) 13(2) Accounting, Economics, and Law: A Convivium 169–215 Abstract: Two major economic crises in the early twenty-first century have had a serious impact on monetary policy and CB independence. Disruption in financial intermediation and associated deflationary pressures caused by the global financial crisis of 2007–2009 and European financial crisis of 2010–2015 pushed central banks (CBs) in major currency areas towards adoption of unconventional monetary policy measures, including large-scale purchase of government bonds (quantitative easing). The same approach has been taken by CBs in response to the COVID-19 crisis in 2020 even if the characteristics of this crisis differ from the previous one. As a result of both crises, CBs have become major holders of government bonds and de facto – main creditors of governments. Against rapidly deteriorating fiscal balances, CBs have become hostages of fiscal policies, which compromises their independence. Risks to the CB independence also come from their additional mandates (beyond price stability) and populist political pressures.
Daniele, Gianmarco et al, ‘Wind of Change? Experimental Survey Evidence on the Covid-19 Shock and Socio-Political Attitudes in Europe’ (Working Paper No 2020–10, Max Planck Institute for Tax Law and Public Finance, 11 August 2020) Abstract: This paper investigates whether the COVID-19 crisis has affected the way we vote and think about politics, as well as our broader attitudes and underlying value systems. We fielded large online survey experiments in Italy, Spain, Germany and the Netherlands, well into the first wave of the epidemic (May-June), and included outcome questions on trust, voting intentions, policies & taxation, and identity & values. With a randomised survey flow we vary whether respondents are given COVID-19 priming questions first, before answering the outcome questions. With this treatment design we can also disentangle the health and economic effects of the crisis, as well as a potential ‘rally around the flag’ component. We find that the crisis has brought about severe drops in interpersonal and institutional trust, as well as lower support for the EU and social welfare spending financed by taxes. This is largely due to economic anxiety rather than health concerns. A rallying effect around (scientific) expertise combined with populist policies losing ground forms the other side of this coin, and hints at a rising demand for competent leadership.
Davis, Glen, ‘Adopting the Contracts of Furloughed Employees: The Decisions in Carluccio’s and Debenhams’ (2020) 35(7) Butterworths Journal of International Banking & Financial Law 482–488 Abstract: Reviews Re Carluccio’s Ltd (In Administration) (Ch D) and Re Debenhams Retail Ltd (In Administration) (CA) on whether employees’ contracts were adopted, for the purpose of priority in the administration, by their variation to take advantage of the Coronavirus Job Retention Scheme, or by administrators making an application under the scheme or making payments to a furloughed employee, noting the relevance to priority of the variations agreed.
Debora, Debora, ‘Legal Protection on Consumers of Fintech Peer To Peer Lending Due to Covid-19 Pandemic’ (2021) 5(1) Nagari Law Review 69–75 Abstract: In March 2020, the WHO stated Covid-19 is pandemic disease. The Indonesian government has taken actions to prevent the spreading of Covid-19 by limiting people’s activities. Covid 19 has resulted in people who loans at lending institutions, having difficulty paying installments. The government issues policies in response to the Covid-19 effect, such as economic relaxation. However, the policy did not cover consumers Fintech Peer to Peer (P2P) Lending, this created a legal vacumm. The problem in this research is the urgency of legal protection for Fintech P2P lending consumers during pandemic Covid-19. The purpose of this research is for OJK policy to issue a stimulus to Fintech P2P Lending consumers. This research applied juridicial normative methodology. It uses secondary data, which consists primary legal material, namely the OJK regulations on Covid-19 prevention and related literature, analyzed descriptively analytically. The research shows that consumer fintech P2P lending are affected by Covid-19 pandemic, so they need to get legal protection, in the form of stimulus given to lenders and borrower of fintech P2P lending.
Demirguc-Kunt, Asli, Michael Lokshin and Ivan Torre, ‘The Sooner, the Better: The Early Economic Impact of Non-Pharmaceutical Interventions During the Covid-19 Pandemic’ (World Bank Policy Research Working Paper No 9257 No 9257, 26 May 2020) Abstract: The size of the economic shocks triggered by the COVID-19 pandemic and the effects of the associated non-pharmaceutical interventions have not been fully assessed, because the official economic indicators have not been published. This paper provides estimates of the economic impacts of the non-pharmaceutical interventions implemented by countries in Europe and Central Asia over the initial stages of the COVID-19 pandemic. The analysis relies on high-frequency proxies, such as daily electricity consumption, nitrogen dioxide emission, and mobility records, to trace the economic disruptions caused by the pandemic, and calibrates these measures to estimate magnitude of the economic impact. The results suggest that the non-pharmaceutical interventions led to about a decline of about 10 percent in economic activity across the region. On average, countries that implemented non-pharmaceutical interventions in the early stages of the pandemic appear to have better short-term economic outcomes and lower cumulative mortality, compared with countries that imposed non-pharmaceutical interventions during the later stages of the pandemic. In part, this is because the interventions have been less stringent. Moreover, there is evidence that COVID-19 mortality at the peak of the local outbreak has been lower in countries that acted earlier. In this sense, the results suggest that the sooner non-pharmaceutical interventions are implemented, the better are the economic and health outcomes.
Dermine, Paul and Menelaos Markakis, ‘EU Economic Governance and the COVID-19 Crisis: Between Path-Dependency and Paradigmatic Shift’ (2020) 6(4) International Journal of Public Law and Policy 326–345 pre-published version of article available on SSRN
Abstract: The COVID-19 pandemic and the dramatic recession that ensued, have precipitated new and ambitious economic and monetary policy initiatives at the European Union level. This article takes stock of the measures taken thus far and reflects on the impact of the ongoing crisis on the Eurozone’s political economy and its paradigms. It addresses the continued dominance of the European Central Bank; the emergence of a fiscal center in the Eurozone; and the role of the State in the economy more generally, as well as the place of Europe in the world economy. The article argues that the European response to the economic recession associated with the pandemic is marked both by continuity and path-dependency on the one hand, and potential paradigmatic shifts on the other hand.
‘Disease and Recovery in (COVID-Afflicted) Europe’ (2020) 57(3) Common Market Law Review 619–629 Abstract: Discusses how the EU will respond to the economic and political challenges as Member States recover after the coronavirus pandemic. Reports on public health co-operation initiatives, derogations from freedom of movement and the state aid rules, and the implications for international relations.
Domina, Mariia, ‘Reforming EU and UK Long-Term Investment Funds: Brexit, COVID-19 and War in Ukraine’ (2024) 39(2) Journal of International Banking Law and Regulation 75–77 Abstract: Long-term investment funds allocate capital to socially important projects aimed at sustainable growth and fuelling the economy in the times of Brexit, Covid-19 and the war in Ukraine. This article critically compares recent reforms of ELTIF (EU) and LTAF (UK), two long-term investment funds opened to both professional and retail investors.
El-Haija, Mohammed Ibrahim Abu, Mohammad A Al-Thunibat and Mustafa Mousa Alajarmeh, ‘Reasons and Results of the 28th Defense Order in Jordan under the Coronavirus Pandemic’ (2023) 77(210) International Journal of Legal and Comparative Jurisprudence Studies 160–164 Abstract: The aim of this study is to investigate the rationale behind Defense Order Number 28 in response to the Coronavirus Disease 2019 (COVID-19) pandemic and its impact on the legal rights of creditors. The study employed an analytical methodology, examining the defense orders, local laws, international conventions, and court decisions. The main findings of the study indicate that the Jordanian case appears to favor debtors, as it allowed for the postponement of imprisonment from March 2020 until the end of December 2022, without offering adequate solutions to protect the rights of creditors. The only recourse given to creditors was the option to request the competent judicial authority to prevent the debtor from leaving the country. On an international level, the study reveals that Defense Order Number 28 was implemented to meet Jordan’s international obligations. However, this order contradicts a fundamental principle of Civil law, which is to support and uphold the rights of the right holder. By prohibiting the creditor from employing essential means to claim their rights from the debtor, the order undermines the creditor’s position. In conclusion, the study suggests that Jordan is in the process of abolishing imprisonment sentences in civil and commercial transactions, yet it does not provide adequate solutions to safeguard the rights of creditors during this transition.
Emiemokumo, Gesiye-emi, ‘African Law, Commerce & Economic Development: Some Lessons African Nations Can Learn from the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 4040301, Social Science Research Network, 28 January 2022) Abstract: Devastating! An apt single-word description for the COVID-19 pandemic. It was nothing short. Explosive in its spread, its modus operandi was vicious and fiendish, with deteriorating progression from fever and respiratory nodi to organ failure and eventual death. Unrepentantly swift, it was initially reported to the World Health Organization (‘WHO’) in December 2019, only to be declared a global health emergency a month later. By March 2020, it was designated a global pandemic; the first since 2009’s H1N1 influenza, which inarguably pales in comparison. COVID not only oversaw an exodus to the afterlife, it also torpefied economies worldwide; and as Africa now makes gradatory headway towards recovery, she cannot be incautious of the reality that the pandemic and attendant lockdown bore some critical lessons, particularly relevant to the continent. This paper sheds light on a few of these salient lessons.
Enriques, Luca and Marco Pagano, ‘Emergency Measures for Equity Trading: The Case Against Short-Selling Bans and Stock Exchange Shutdowns’ (European Corporate Governance Institute, Law Working Paper No 513/2020, 11 May 2020) Abstract: After the COVID-19 crisis struck, equity prices abruptly plunged across the world. The clear prospect of an almost unprecedented decrease in supply and demand, coupled with extreme uncertainty about the longer-term prospects for the economy worldwide, justified the price adjustments. Yet, in conditions of plummeting prices and high volatility, policymakers around the world felt under pressure ‘to do something’ to stop the downward trend in market prices. As was the case during the financial crises of 2008-09 and 2011-12, these pressures have quickly led to the adoption of market-wide short-selling bans. In addition, both in Europe and in the US, there have been calls for an even more drastic measure: a lasting ‘stock exchange holiday’. This chapter reviews the evidence on the effects of short-selling bans during the financial crisis and discusses the merits of stock exchange holidays and concludes that neither of these measures bring benefits to financial markets.
Estrada, Ruiz and Mario Arturo, ‘Can COVID-19 Generate a Massive Corruption in Developing Countries and Least Developed Countries?’ (SSRN Scholarly Paper No ID 3597367, 10 May 2020) Abstract: The impact of COVID-19 on the generation of a massive corruption in developing countries (DC’s) and least developed countries (LDC’s) is obviously possible anytime and anywhere, but measuring such impact to get a sense of the intensity of its effects on the corruption expansion is subject to a great deal of uncertainty. As such, this paper primarily attempts to close this gap by introducing the massive corruption in times of pandemic crisis evaluation simulator (MCTPCE-Simulator), a new economic instrument that could be used to evaluate how COVID-19 crisis can generate a massive corruption. Based on five key indicators, the (MCTPCE—Simulator) considers and draws its assessment from different indicator available from our simulator. Hence, in this article, a simulation was used to illustrate the applicability of the simulator from where analyses provide a coherent evaluation how the COVID-19 can promote the country’s corruption in high and middle levels.
Fabbrini, Federico, ‘The Legal Architecture of the Economic Responses to COVID-19: EMU Beyond the Pandemic’ (2021) JCMS: Journal of Common Market Studies (advance article, published online 3 December 2021) Abstract: This article analyses from a law and policy perspectives the measures adopted by the European Union (EU) to address the devastating economic effects of COVID-19, assessing their implications for Europe’s economic and monetary union (EMU). The article first sets the background by exploring the main features of EMU before COVID-19. Subsequently, it examines the multiplicity of policies deployed by the EU institutions to contain the socio-economic damages of the pandemic – including, most crucially, the EU recovery fund ‘Next Generation EU’ – and underlines their transformative effect on the EU architecture of economic governance. As the article argues, the responses to COVID-19 have produced a significant rebalancing of EMU, bridging the asymmetry between EU monetary and economic policy. Finally, the article considers whether the COVID-19-related responses are likely to be only temporary, or rather a new normal for EMU, and sheds light on further constitutional adaptations which are needed to sustain this unprecedented transfer of fiscal power to the EU level.
Feibelman, Adam, ‘Bankruptcy and the State’ (2022) 38(1) Emory Bankruptcy Developments Journal 1–50 Abstract: Anticipating a wave of bankruptcies caused by the economic and financial effects of the COVID-19 pandemic, numerous commentators proposed measures to expand the institutional capacity of the bankruptcy system. A number of these proposals would represent dramatic and systematic government involvement in the U.S. bankruptcy system. Such involvement by the government in the bankruptcy system sits uneasily with dominant theories of bankruptcy that assume the bankruptcy system should be driven by the interests of direct stakeholders in particular cases. This Article argues that involvement or influence by government actors in the bankruptcy system is, in fact, broadly consistent with bankruptcy theory and with the structural relationship between bankruptcy law and other legal and regulatory components of the state. This relationship is subject to some basic ordering principles. Bankruptcy law constrains and adjusts other legal regimes to some extent, but it generally incorporates non-bankruptcy law and yields to government’s regulatory actions. These ordering principles reasonably extend to ad hoc government actions or ‘activism’ in the bankruptcy system. Thus, government actors generally do not contravene bankruptcy policy when they employ the system to advance non-bankruptcy policies within their authority, even when doing so enables the government to take actions and achieve goals that it could not outside of the system. This Article develops these claims by focusing in particular on the relationship between bankruptcy and financial regulation. Bankruptcy is part of the architecture of financial markets in a modern economy, and the influence of financial regulators on the bankruptcy system should be viewed as the product of overlapping regulatory functions. This Article describes three episodes of regulatory intervention in the bankruptcy system: (1) ‘regulatory bankruptcy’ during the 2008-09 financial crisis; (2) the efforts by the Reserve Bank of India to force some large commercial firms into India’s new insolvency system; and (3) the Chrysler bankruptcy. The ordering principles advanced in this Article generally justify the government involvement in these cases and, to some extent, in the COVID-era proposals as well. However, the degree of regulatory involvement in the bankruptcy system envisioned by some of these recent proposals may be disproportionate to, or attenuated from, their underlying regulatory goals. If so, they may fall beyond the scope of justified government involvement in the bankruptcy system.
Findlay, Mark, ‘Pandemic Paradox and Polanyi: Financial Markets Rise, Economies Crash, and Regulators Toss a Coin’ (SMU Centre for AI & Data Governance Research Paper No 2020/09, 11 August 2020) Abstract: In the pandemic, investors like all responsible citizens share an obligation to keep the community safe. This obligation extends to informed market decision-making which goes beyond self-interest. The current disconnect between financial markets and the economy is a story of two different realities – or perhaps one harsh reality and one expectant gamble. The disconnect cannot just be explained by the different purposes of economic and financial market analysis but rather by the information indicators on which these rely. To forewarn regulators concerned that these two worlds of global wealth generation and growth moving to polar opposite futures, this brief review has these aims:• To reflect on a legal model for financial markets, their regulation and its limitations so that law and finance may be understood as positively relational when considering market sustainability; and then• To suggest that the explanation for this dangerous disconnect can be found in Karl Polanyi’s understanding of fictitious commodities in self-regulating markets, dis-embedding from the social and his propositions for market correction through the double movement.Despite the neoliberal logic to the contrary (where financial markets are deemed only for maximising investor/shareholder profit) financial market regulation should prioritise market sustainability as part of pandemic control policy.
Foohey, Pamela, ‘Bursting the Auto Loan Bubble in the Wake of COVID-19’ (2021) 106(5) Iowa Law Review 2215–2239 Abstract: Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such as the ability to return new cars for up to a year upon job loss. Combined with the CARES Act’s relief rebates and moratoria, the bottom did not fall out of the auto loan market. These measures, however, are temporary. The pandemic alone will not reduce people’s need for cars, but it will burst the auto loan bubble. The economic fallout will require interventions in the auto sale and loan markets, which presents a moment to transform America’s car economy. This symposium Essay details a range of financial and related measures that can be implemented in the near future to shift auto financing away from promoting economically unequal and environmentally unfriendly use and access to automobiles, and, more broadly, to shift the United States away from prioritizing automobiles as the primary means of personal transportation.
Foohey, Pamela, Dalié Jiménez and Christopher K Odinet, ‘The Debt Collection Pandemic’ (2020) 11 California Law Review 222–241 Abstract: As of May 2020, the United States’ reaction to the unique and alarming threat of COVID-19 has partially succeeded in slowing the virus’s spread. Saving people’s lives, however, came at a severe economic cost. Americans’ economic anxiety understandably spiked. In addition to worrying about meeting basic expenses, people’s anxieties about money necessarily included what might happen if they could not cover already outstanding debts. The nearly 70 million Americans with debts already in collection faced heightened anxiety about their inability to pay.The coronavirus pandemic is set to metastasize into a debt collection pandemic. The federal government can and should do something to put a halt to debt collection until people can get back to work and earn money to pay their debts. Yet it has done nothing to help people deal with their debts. Instead, states have tried to solve issues with debt collection in a myriad of patchwork and inconsistent ways. These efforts help some people and are worthwhile. But more efficient and comprehensive solutions exist. Because debt collection brought by the COVID-19 crisis will not dissipate anytime soon, even after the crisis ends, the need to implement comprehensive, longer-lasting solutions remains. These solutions largely fall on the shoulders of the federal government, though state attorney generals have the necessary power to help people effectively, provided they act in concert. If the government continues on its present course, a debt collection pandemic will follow the coronavirus pandemic.
Foohey, Pamela, Dalié Jiménez and Christopher Odinet, ‘Steering Loan Modifications Post-Pandemic’ (2022) 85(2) Law and Contemporary Problems 201–224 Abstract: This Article focuses on the likely fallout for American households as a result of expiring moratoria and provides a regulatory path for steering creditors to offer borrowers workable loan modifications or else to bring people to the point of reckoning with their debts in bankruptcy.
Fuqua, Erik, ‘Resurrecting the Monster? Protecting the Market from Unfettered COVID-19 Fraud Enforcement’ (2021) Syracuse Law Review (forthcoming) Abstract: COVID-19 spread like a wildfire across the globe, and its effects have spread beyond public health and into all facets of society. The pandemic highlighted significant supply chain vulnerabilities in almost every market, especially those for critical health care supplies. The United States has spent trillions of dollars in response to the pandemic, and that spending has already invited significant fraud. The False Claims Act (FCA) will play a major role in combatting this fraud, and the Department of Justice (DOJ) will lead the charge. However, history indicates that aggressive FCA enforcement during and after a crisis risks producing unintended, negative market consequences. The impact of aggressive mortgage fraud enforcement following the subprime mortgage crisis illustrates this risk. Those efforts dramatically shifted the Federal Housing Administration (FHA) lending market, contributing to a large exodus of established financial institutions. Today’s market for critical health care supplies is even more vulnerable and susceptible to this enforcement impact. Therefore, the DOJ must develop an evaluation framework for COVID-related fraud that considers market impact.This article will outline the federal spending response to COVID-19 and the enforcement framework in which COVID-related fraud will be addressed. It will discuss the impact of enforcement on markets, using the impact of mortgage fraud enforcement on the FHA lending market as a historical example. It will conclude by identifying the need for an evaluation framework that considers market impact and will propose evaluation factors and implementation mechanisms to assist in this effort.
Gallego, Jorge A, Mounu Prem and Juan F Vargas, ‘Corruption in the Times of Pandemia’ (SSRN Scholarly Paper No ID 3600572, 13 May 2020) Abstract: The public health crisis caused by the COVID-19 pandemic, coupled with the subsequent economic emergency and social turmoil, has pushed governments to substantially and swiftly increase spending. Because of the pressing nature of the crisis, public procurement rules and procedures have been relaxed in many places in order to expedite transactions. However, this may also create opportunities for corruption. Using contract-level information on public spending from Colombia’s e-procurement platform, and a difference-in-differences identification strategy, we find that municipalities classified by a machine learning algorithm as traditionally more prone to corruption react to the pandemic-led spending surge by using a larger proportion of discretionary non-competitive contracts and increasing their average value. This is especially so in the case of contracts to procure crisis-related goods and services. Our evidence suggests that large negative shocks that require fast and massive spending may increase corruption, thus at least partially offsetting the mitigating effects of this fiscal instrument.
Geoffrey, Shanti, ‘The Effect of COVID-19 on the Capital Market’ in Loganathan Krishnan and Wai Meng Chan (eds), The Impact of COVID-19 on Corporations and Corporate Law in Malaysia (Springer Nature, 2022) 151–170 Abstract: This chapter provides an analysis of the effect of the COVID-19 pandemic on the capital market. It focuses on the efforts taken by the government to alleviate some of the challenges faced by public listed companies due to the pandemic and highlights some of the future trends that are beginning to emerge. In particular, participants in the capital market, both listed companies and investors have gravitated towards technology in addressing some of the difficulties posed by the movement control restrictions which were put into place in order to slow down the spread of the disease. A focus area for the government has been in responding to the challenges faced by small and medium sized businesses who have been particularly hard hit during this period. An analysis has also been carried out on the sectors which have been more severely impacted as a result of the pandemic. At the same time there have been certain businesses that have seen unprecedented growth, such as face mask and glove producers and this has been set out in this chapter. The period of financial upheaval oftentimes provides fertile ground in terms of opportunities and incentives for financial fraud. The writer explores this area given the financial pressures faced not only by companies but by individuals during the pandemic. Some examples of investment scams and financial fraud have been highlighted.
Ghazali, Robi Musthofa Al, ‘Boarding House Rent Refunds During Covid 19 Based on Sharia Economic Law’ (2022) 1(1) Nusantara Economy 38–47 Jurisdiction: Indonesia
Abstract: This research discusses the issue of returning boarding fees for tenants who do not stay at their boarding houses during the Covid 19 pandemic. Apart from that, this research also discusses the review of Islamic Economic Law. This research is field research. Respondents to this study were village heads, boarding house owners and tenants. The collection techniques used were observation, documentation, and interviews. The findings of this study are that the boarding house owner provides compensation for the cost of renting a boarding house during the Covid-19 pandemic. According to Sharia Economic Law, the return of this rental fee is appropriate and fulfils several conditions and pillars of the rental contract. However, tenants were disappointed during the Covid 19 pandemic because the rent payments were the same as before the pandemic; the tenants’ obligations continued to be carried out to pay the rent in full. The benefit rights obtained are not proportional to the payment in full. So, the practice of returning boarding house rent during a pandemic, according to Islamic economic law, is permissible as long as both parties are willing and do not harm both parties.
Ginting, Grenaldo, ‘Analysis and Assessment of Legal Protection of The Community and Online Loan Debtors During the Covid 19 Pandemic’ (2023) 1(4) International Journal of Engineering Business and Social Science 277–282 Jurisdiction: Indonesia
Abstract: Online loans during the Covid 19 pandemic have caused serious problems because of the many threats, extortion and even leakage of personal data by illegal online loan companies. However, that doesn’t mean that legal online loans don’t have their own problems. The author then conducts research to understand the causes of this phenomenon from the point of view of normative juridical analysis. The results of the study show that the legal system in Indonesia does not provide adequate legal protection so that people are not encouraged or forced to apply for online loans. In addition, the legal protection system from the government to the community and online loan debtors has not been properly systemized.
Gioia-Carabellese, Pierre de and Camilla Della Giustina, ‘The Tragic Choices During the Global Health Emergency: Comparative Economic Law Reflections’ (2022) 28(2) European Public Law 189–202 Abstract: The health emergency sparked off by the spread of the pathogen COVID-19, has led, especially during its first phase, to a situation of scarcity of resources. The problem, in other words, consisted of a disproportion between the demand from individuals who needed to receive emergency care and a situation of limited resources, including health personnel, beds and necessary machinery. Therefore, the multifarious scientific societies have drawn up guidance documents to define access criteria on the basis of the ethical principles developed by Beauchamp and Childress. In light of such a background, the analysis focuses on the legal analysis of the first recommendations adopted in Italy (recommendations and guidelines elaborated first by Italian Society of Anaesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) and then amended by SIAARTI Società Italiana Medicina Legale e delle Assicurazioni (SIMLA)). In this scenario, critical issues are identified and later analysed, also in the light of what was decided by the Swiss Academy of Medical Sciences (ASSM), as well as the British counterpart, the National Institute for Health and Care Excellence (NICE). Ultimately, bio-law is at the mercy of a less reputed, yet more strategic, factor: bio-law-and-economics.
Glanzmann, Lukas et al, ‘Masterclass in Swiss Efficiency: Spotlight on Switerland’s Government-Backed COVID-19 Loan Programme for SMEs’ (2020) 35(7) Butterworths Journal of International Banking & Financial Law 475–477 Abstract: Reviews key features of Switzerland’s government-backed bridge loans for small and medium-sized enterprises, introduced in response to the coronavirus pandemic. Discusses the types of loan available, the requirements for ‘COVID-light’ and ‘COVID-plus’ loans, the potential disadvantages of participation, including a ban on borrowers making loans themselves and the penalties for non-compliance. Considers the implications for cash-pooling schemes.
Göçoğlu, Volkan and Hayriye Şengün, ‘Initial Responses to COVID-19 Pandemic in Turkey: General, Financial, and Legal Measures’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 157–171 Abstract: The COVID-19 pandemic started in Wuhan, China, and spread to almost all over the world in four months. As pandemic cases began to be detected and increased in countries, governments have started to pursue various policies such as closing the city and country borders, social distance practices, the prohibition of going out, and creating herd immunity. Especially with the closure measures implemented, the countries’ financial systems have been adversely affected, and many sectors have suffered losses. On the other hand, the provision of public services in countries has become more complex. Therefore, countries have taken several measures to maintain their public services without interruption. Legal services are one of the essential services affected by this situation. This study deals with the general, financial and legal measures that Turkey has adopted to combat against COVID-19 pandemic. As a result of the study, while the functional features that stand out in the measures are presented, some suggestions are made for a better crisis management.
Goding, Vincent, ‘Exceptionality, Neoliberalism and Corporations in COVID Times: JobKeeper and the Legal Shaping of Economic Order in Crisis’ (PhD Thesis, University of the Sunshine Coast, 2024) Abstract: This thesis argues that the shaping of economic order in crisis is contingent upon both exceptional and normative forms of legal power and the interaction of these forms. It argues that extraordinary economic interventions are made possible by the partial suspension of normative politico-economic order during crisis, which enlivens an exceptional but fundamentally normalising state power. It shows how these exceptional interventions and their outcomes are influenced by their interaction with other elements of normative order which continue to function despite the crisis. Specifically, it demonstrates how extraordinary economic measures intended to stabilise and shape economic order during crisis depend upon and are influenced by an intimate relation between the institutions of the state, law and the corporation. This thesis makes these conclusions via a critical analysis of the Australian Commonwealth Government’s JobKeeper wage subsidy scheme, examining it through a theoretical lens which brings together Carl Schmitt’s theory of the state of exception and critical accounts of neoliberalism.
Gortsos, Christos V, ‘The Evolution of Monetary Policy in the Euro Area since the Outbreak of the Pandemic Crisis’ (2022) 34(1) European Review of Public Law_ _Abstract: The present study contains a brief presentation and analysis of the legal framework governing the single monetary policy in the euro area amidst the current pandemic crisis. After the General Introduction in Section A, it reviews the developments relating to the implementation of the single monetary policy since the outbreak of the pandemic, discussing, inter alia, the pandemic emergency longer-term refinancing operations (PELTROs), the Pandemic Emergency Purchase Programme (PEPP) and the amendments introduced to other APPs (Section B). Section C deals with the new (2021) monetary policy strategy of the European Central Bank (ECB) and the developments in relation to the ECB and the interbank interest rates (including the euro short-term rate (€STR)). Finally, Section D sets out some considerations relating to the impact of monetary policy on financial stability.
Gortsos, Christos and Wolf-Georg Ringe (eds), Pandemic Crisis and Financial Stability (European Banking Institute, 2020) OPEN ACCESS Contents:
Section I: The Broad Picture
1 Is the European Union going to help us overcome the COVID-19 crisis (Danny Busch)
2 COVID-19 and European banks: no time for lawyers (Wolf-Georg Ringe)
3 The COVID-19 crisis and financial regulation (Eddy Wymeersch)
4 Culutral reforms in Irish banks. Walking the walk during the COVID-19 pandemic (Blanaid
Clarke)
5 Mothballing the economy and the effects on banks (Matthias Lehmann)
Section II: Fiscal Response
6 European economic governance and the pandemic: Fiscal crisis management under a flawed policy process (Christos Hadjiemmanuil)
7 What recovery fund for Europe? For a dedicated equity line for business, and sound fiscal policy (Marco Lamandini, Guido Ottolenghi & David Ramos Muñoz)
8 The EU fiscal response to the COVID-19 crisis and the Banking sector: risks and opportunities (Luis Silva Morais)
Section III: Banking Regulation
9 Global pandemic crisis and financial stability (Filippo Annunziata & Michele Siri)
10 Blancing macro- and micro-prudential powers in the SSM during the COVID-19 crisis (Bart P. M. Joosen)
11 The application of the EU banking resolution framework amidst the pandemic crisis (Christos V. Gortsos)
12 Lending activity in the time of coronavirus (Concetta Brescia Morra)
Section IV: Capital Markets Regulation
13 Emergency measures for equity trading: the case against short-selling bans and stock exchange shutdowns (Luca Enriques & Marco Pagano)
14 Restrictions on Shareholder's Distribution in the COVID-19 Crisis: Insights on Corporate Purpose (Antonella Sciarrone Alibrandi & Claudio Frigeni)
Gowing, Rachel, ‘New Zealand: COVID-19 Pandemic - Legislative Response’ (2020) 35(9) Journal of International Banking Law & Regulation N110–N1121 Is the European Union going to help us overcome the COVID-19 crisis (Danny Busch)
2 COVID-19 and European banks: no time for lawyers (Wolf-Georg Ringe)
3 The COVID-19 crisis and financial regulation (Eddy Wymeersch)
4 Culutral reforms in Irish banks. Walking the walk during the COVID-19 pandemic (Blanaid
Clarke)
5 Mothballing the economy and the effects on banks (Matthias Lehmann)
Section II: Fiscal Response
6 European economic governance and the pandemic: Fiscal crisis management under a flawed policy process (Christos Hadjiemmanuil)
7 What recovery fund for Europe? For a dedicated equity line for business, and sound fiscal policy (Marco Lamandini, Guido Ottolenghi & David Ramos Muñoz)
8 The EU fiscal response to the COVID-19 crisis and the Banking sector: risks and opportunities (Luis Silva Morais)
Section III: Banking Regulation
9 Global pandemic crisis and financial stability (Filippo Annunziata & Michele Siri)
10 Blancing macro- and micro-prudential powers in the SSM during the COVID-19 crisis (Bart P. M. Joosen)
11 The application of the EU banking resolution framework amidst the pandemic crisis (Christos V. Gortsos)
12 Lending activity in the time of coronavirus (Concetta Brescia Morra)
Section IV: Capital Markets Regulation
13 Emergency measures for equity trading: the case against short-selling bans and stock exchange shutdowns (Luca Enriques & Marco Pagano)
14 Restrictions on Shareholder's Distribution in the COVID-19 Crisis: Insights on Corporate Purpose (Antonella Sciarrone Alibrandi & Claudio Frigeni)
Abstract: Summarises legislative reforms relevant to the banking and finance sectors which have been implemented by New Zealand in response to the coronavirus pandemic. Details key features of initiatives including the mortgage repayment deferral scheme, the business finance guarantee scheme, the removal of loan-to-value ratio restrictions, protections relating to credit contracts and changes to insolvency law relief.
Groenleer, Martijn LP and Daniel Bertram, ‘Plus Ça Change…? How the COVID-19 Crisis May Lead to a Revaluation of the Local’ (SSRN Scholarly Paper No ID 3673583, 13 August 2020) Abstract: With COVID-19 unfolding its deadly and disruptive force, calls from all across the political spectrum for putting an end to globalization are becoming louder. But will the pandemic really constitute a stumbling block to the inexorable machinery of growing interconnection? We argue that, as with previous global crises such as the financial crisis, it is not obvious that the COVID-19 crisis will lead to a process of de-globalization. However disastrous the consequences of international cross-linking may be for economies and societies. It is much more likely that the ‘new common’ will see an acceleration of the process of localization, already occurring as part of globalization in the ‘old common’.
Grund, Sebastian, ‘The Legality of the European Central Bank’s Pandemic Emergency Purchase Programme’ (Delors Institute Policy Brief (March 25, 2020), 21 March 2020) Abstract: The announcement of the Pandemic Emergency Purchase Programme (PEPP) by the European Central Bank on March 18, 2020 marks an unprecedented step in the European history of monetary integration. But it is a commensurate response to the global public health emergency that the COVID-19 outbreak continues to pose as well as the financial and economic shock that it triggered. The legality of the PEPP can be defended in light of both these extraordinary macroeconomic circumstances as well as the European Court of Justice’s assessment of previous ECB bond purchase programmes. As this short essay shows, the Court’s Gauweiler and the Weiss decisions have defined the boundaries within which the ECB may design its monetary policy measures. And the PEPP does not transgress these boundaries. However, in order to mitigate the risk of any ex-post legal challenges, the legal act on which the PEPP is based should underscore the following principles, which are informed by the pertinent case law:1. The PEPP’s objectives are proportional because they address a malfunctioning of the smooth transmission of monetary policy signals across the currency area triggered by the sudden stop of economic activity, thereby undermining the singleness of monetary policy.2. The PEPP’s design is proportional because it entails the following safeguards: bond purchases are (i) restricted to EUR750 billion, (ii) limited to periods of malfunctioning monetary policy transmission channels, (iii) not selective, (iv) limited to securities with stringent eligibility criteria, and (v) subject to a limited loss-sharing arrangement.3. The PEPP does not breach the monetary financing prohibition because it (i) has no equivalent effect to bond purchases on the primary markets (due to the safeguards mentioned in 2.) and (ii) does not incentivize Member States pursue unsound budgetary policies.
Guntur, Jeremy Abraham, ‘The Great Reset: Legal Perspective and Its Development’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 84–90 Abstract: COVID-19 Pandemic has led to several long-term consequences in many aspects of life and will exacerbate the global crisis that was already underway. The World Economic Forum has launched its newest program called The Great Reset in response to the situation in the midst of the COVID-19 Pandemic. The Great Reset is a concept introduced by Professor Klaus Schwab and Thierry Malleret that explained in order to achieve a better outcome, the world must jointly and swiftly act together to identify the challenges and solutions toward human interactions after the COVID-19 Pandemic. Such interactions include economic, social, public security, and also the law. Law has developed further since the rise of the pandemic and it threatening the legality of the enforcement including the right and obligation of the respective authority and institutions. How does The Great Reset impacting the law and how do we respond to it? This paper aims to discover the challenges as well as the solutions from the perspective of law and its development from the impact of The Great Reset. We will use quantitative methods of research including case analysis, statutory study, and correlational research to make sure the legality and comprehensiveness of the paper. Other methods that are needed will also be utilized to make sure that every aspect is covered in this paper. It is hoped that this paper will be used for the greater good of the world, especially in the perspective of law by finding the right solutions for the right challenges in response to the condition in the midst of pandemic.d-19 Act, such as the need to study and amend the saving clauses and improving the clarity and exactness of the provisions.
Hadrowicz, Edyta, ‘Possible Liability of the State Treasury for the Restriction of Economic Activities During the Pandemic of COVID-19’ in Polish Entrepreneurial Law in the Era of the COVID-19 Pandemic: Problems and Challenges (Springer, 2024) 1–20 Abstract: In connection with numerous restrictions on civil rights and freedoms, in particular on the freedom to conduct business activity during the SARS-CoV-2 virus, the question arises whether entrepreneurs who suffered damage due to these restrictions may seek compensation from the State Treasury. Thus, the subject of this study is an attempt to answer the question of the possibility to effectively pursue claims for compensation from the State Treasury for damage caused to entrepreneurs as a result of the implementation of bans or restrictions in certain areas of economic activity in connection with the COVID-19 pandemic. Lawsuits for compensation for such damage are currently being announced in the public space, and their legal basis is provided by the provisions of Article 417 et seq. Polish Civil Code.
Hakim, Lukmanul, Muhammad Qias Faslur Rahman and Shifa Sabilla Aprilia, ‘Review of Sharia Economic Law on Rahn’s Practices at the Surakarta Sharia Pawnshop during the Covid-19 Pandemic’ (Proceedings of the 2nd International Conference on Islamic Economics, Islamic Finance & Islamic Law (ICIEIFIL), 2022) 32–38 Abstract: The huge impact of COVID-19 on the economy has made it difficult for people to meet their funding needs. The government established a pawnshop institution which is currently growing rapidly. Sharia pawnshops are currently the choice of the Muslim community because in practice there is no usury. The practice of pawning is familiar with the Rahn contract. Pawning activities have existed since the time of the Prophet sallallaahu ’alaihi wa sallam and he has been practicing. The process of pawning is allowed in Islam as long as it is in accordance with Islamic law, there is no interest / usury in the pawn transaction. Pawning / rahn has been regulated in the DSN-MUI fatwa Number 25/DSN-MUI/III/2022. The process of borrowing through pawnshops is much shorter and the terms are relatively simple, causing pawning activities to develop rapidly until now. The purpose of this study is to describe the process of rahn practice at sharia pawnshops during the COVID-19 pandemic and to describe the views of sharia economics regarding the practice of rahn contracts during the COVID-19 pandemic. The method used in this study is a qualitative method sourced from primary data, namely the Sharia Pawnshop which is located at Jl. Captain Mulyadi No.242, Ps. Kliwon, Kec. Ps. Kliwon, Surakarta City. Methods of data collection in this study in the form of interviews and observation methods. The practice of rahn contracts at the Sharia Pawnshop in Surakarta is in accordance with sharia economic law. In Sharia Pawnshops, they use savings services per 10 days, this is different from conventional Pegadaians which use interest per 15 days. During the Covid-19 pandemic, the Sharia Pawnshop in Surakarta provided relief / leeway in payment, the period of pawning / rahn in sharia economic law was 4 months, and reduced to 5 months.
Hanif, Saima, ‘Potential Legal Implications of the Regulatory Response to COVID-19’ (2020) 35(7) Butterworths Journal of International Banking & Financial Law 431–432 Abstract: Considers the main regulatory interventions by the UK banking and financial sectors in response to the coronavirus pandemic, and their potential legal implications. Reviews the commercial impact of key interventions and the possible legal consequences of government loan schemes, restrictions on capital distribution and mortgage forbearance. Discusses whether certain regulatory measures may be unlawful.
Hanusz, Antoni and Paweł Szczęśniak, ‘Impact of the COVID-19 Pandemic on the Process of Making Public Finance Law Norms in Poland’ (2023) 3(1) International Journal of Legal and Social Order 1–20 Abstract: The article analyses and evaluates the legislative changes introduced to provide public funding to combat the effects of the COVID-19 pandemic. Therefore, regulations on the budgetary procedure and multi-annual financial planning required during the state of epidemic threat or the state of epidemic have been analysed. The study verified the assumption that the performance of financial activities at the time of epidemic threat consisting in collecting and disbursement of funds by bodies governed by public law under new conditions entailed fundamental changes in the design, adoption and implementation and auditing the central state budget and budgets of local government units. The aim of the work is to show that the episodic solutions introduced due to the effects of the COVID-19 pandemic in the area of collecting public funds and their disbursement by public law entities are conducive to more flexibility in public financial management. To the necessary extent, justified by the need to finance tasks to counteract the COVID-19 pandemic, the regulations analysed herein have ensured the protection of the stability of public finance.
Hashimy, Sayed Qudrat, ‘Impact of COVID-19 on the Trade in Afghanistan’ (SSRN Scholarly Paper ID 3984854, 14 December 2021) Abstract: Today Afghanistan faces different uncertainties and difficulties. Heavy burden is imposed by COVID-19 which has brought about decline in the economy, public finances and investments. Revenues have been significantly lost because of lockdown measures which prompted closing of trade avenues within the country and the borders. The study hence attempts to understand the impact of COVID-19 on the trade in Afghanistan. The study found decline in trade caused by closure of borders along with diminished imports and exports. The crisis brought about by the pandemic prompted decline in overall Economic Growth in Afghanistan.
Hayes, Peter, Philip Stopford and Helen Walsh, ‘Loans in the Time of COVID-19: How Loan Documentation Has Fared in This Challenging Environment’ (2020) 35(7) Butterworths Journal of International Banking & Financial Law 441–444 Abstract: Discusses how loan agreements have evolved in response to the coronavirus pandemic. Considers the similarities and differences between the loan documentation reforms made during the pandemic and during the global financial crisis, how financial covenant issues have been addressed, borrower adjustments to terms concerning annual audited financial statements and flexibilities for incurring additional debt. Anticipates potential future developments.
Hegenberg, Flávio Edmundo Novaes and Luiz César Martins Loques, ‘Law and Economics: Discussions Concerning the 2002 Brazilian Civil Code and COVID-19’ (2020) 2(43) Revista Direito & Paz 283–306 Abstract: This text is a discussion concerning economic and legal ‘powers’ in Brazil. The context of crisis caused by the COVID-19 pandemic makes this discussion necessary. The overall context adopted here is one of Law and Economics. A brief discussion is made about the contemporary Liberal State. Some ideas concerning the 20th century workings of the state (if the state is ´social` or if it is ´minimum´) is also analysed. Some reality is offered by providing numbers collected from The World Bank. Information regarding COVID-19 as a global cause for economic crises is given. Within the text, Article 421-A of the Brazilian Civil Code is discussed. Some concluding remarks shed some light regarding what could be done to improve things in Brazil.
Heradhyaksa, Bagas et al, ‘Indonesia Sharia Stock Investment During Covid-19: Based on Islamic Economic Law Review’ (2023) 11(3) Jurnal IUS Kajian Hukum dan Keadilan 512–527 Abstract: The development of technology and financial literacy has increased the number of Indonesians who use stocks as an investment instrument. This also has an impact on the popularity of Islamic stocks. This is because many people are interested in Islamic investment instruments. However, the COVID-19 pandemic has had a significant impact on stock price movements. Sharia stock prices have also experienced very volatile movements due to the COVID-19 pandemic. This phenomenon raises the question of whether investing in Islamic stocks during the COVID-19 pandemic is against Islamic economic law. This is because Islamic stock prices seem to be filled with uncertainty and have experienced a very significant price decline. Moreover, due to the COVID-19 pandemic, the number of stock investors is increasing rapidly. This article aims to analyze Islamic stock investment during the COVID-19 pandemic through the perspective of Islamic economic law. To analyze this issue, this article collects data through library research. The data were analyzed using qualitative methods. In the end, this article finds that investing in Islamic stocks during the COVID-19 pandemic does not contradict the principles of Islamic economic law. Instead, this article suggests that the public can take advantage of a certain momentum to start investing in Islamic stocks.
Hill, Julie Andersen, ‘COVID-19 and FinTech’ (2021) Consumer Finance Law Quarterly Report (forthcoming) Abstract: The 2020 COVID-19 pandemic and the social distancing measures implemented to stop its spread will leave its mark on people, industries, and government policies long after the disease’s health risk recede. One of the industries that has been transformed is financial services. As the pandemic spread, customers flocked to online and mobile platforms for financial services. Banks turned to fintech companies for the technology and expertise to be able to safely provide these products. Thus the pandemic hastened the adoption of technology by traditional banks and opened new partnership opportunities for non-bank fintech companies. The pandemic also reoriented financial regulators toward technology. By highlighting the risks that arise when technology does not live up to its promise, the pandemic encouraged regulators to scrutinize banks’ use of technology and bank-fintech partnerships. At the same time, by highlighting the promise of technology, the pandemic encouraged regulators to use more technology in their supervision of banks. Finally, the pandemic will accelerate the transformation of some fintech companies from agile disruptors operating largely outside significant regulatory framework, to mainstream financial services companies that are regulated more like traditional banks. Policymakers will have difficult decisions about the best way to bring fintech companies within the regulatory fold. Nevertheless, the pandemic emphasized that fintech is now a critical element of a modern financial system.
Hinarejos, Alice, ‘Next Generation EU: On the Agreement on a COVID-19 Recovery Package’ (2020) 45(4) European Law Review 451–452 Abstract: Reflects on the EU’s July 2020 agreement on a recovery package to tackle the damage caused by the coronavirus pandemic, including the creation of a ‘Next Generation EU’ (NGEU) recovery fund and an updated EU budget. Details how revenue for the NGEU will be raised and explains the significance of the agreement, including its unprecedented joint debt issuance and burden sharing, and its distribution of funds to Member States by grants and loans.
Hockett, Robert C, ‘The Fed’s Municipal Liquidity Facility: Present & Future Possibilities & Necessities’ (SSRN Scholarly Paper No ID 3597732, Social Science Research Network, 10 May 2020) Abstract: The Fed’s new Community QE Facility, which is unprecedented in Fed history, will function as a literal lifeline to States and their Subdivisions. But it remains, precisely because of its novelty, unfamiliar and possibly even off-putting or intimidating to many State and City financial officers, not to mention Mayors, Governors, City Councils and State Legislatures. It also continues to fall short of what will be required if our States, our Cities, and our federal polity itself, which the present White House occupancy is doing virtually nothing to assist, are to survive the present pandemic. Continuing unfamiliarity on the part of State and City officials with Community QE raises the danger that those in serious need of funding to address the present pandemic will not seek or receive it. It also diminishes the likelihood that City and State officials will press the Fed to do a further easing of terms – and this form of pressure will be critical if the Facility is to do all that it’s meant to do. This Memorandum is meant to solve those two problems. It first briefly summarizes what the newly eased MLF enables now. It then addresses what the new Facility probably will, and, at least as importantly, must enable in future. The Memorandum then closes with an updated three-phase ‘Game Plan’ for States and Cities to put into operation the moment the Fed makes clear that the MLF is not a mere ‘virtue signal,’ but a sincere offer of badly needed funding – by actually beginning to provide funding.
Hondius, Ewoud, ‘Corona, Millennium and the Financial Crisis’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Corona may be a new issue, but epidemics are not. Legal issues related to epidemics are of all times. Two disasters which struck in recent times were the millennium bug and the financial crisis. This paper deals with the question how Dutch law has coped with the corona crisis. More in particular it addresses how the 1992 Civil Code’s new provision on unforeseen circumstances has been (non) applied in practice. The paper then turns to two international developments: the work of the International Chamber of Commerce – see also the paper by Denis Philippe in this volume – and the work of the Common core of European private law (Trento) project.
Howell, Elizabeth, ‘Brexit, Covid‐19, and Possible Frameworks for Future UK/EU Financial Governance Cooperation’ (2021) 84(6) Modern Law Review 1227–1256 Abstract: The EU project is at an inflection point. Intra‐EU alliances are altering following the UK’s departure, the EU’s financial markets remain segmented, and there is limited appetite for completing the Banking Union. The second stage of Brexit negotiations also collided with the Covid‐19 pandemic, which has strained economies around the world. These issues amount to a ‘polycrisis’ for the EU, raising existential questions about its future. This article focuses on one strand of the debates generated within this polycrisis: future UK/EU policy cooperation with respect to financial governance. The article discusses the importance of the financial services sector to the UK and the EU, and examines potential institutional options for future cooperation. In particular, it advocates harnessing dexterous aspects evident within precedents, including existing EU/third country association agreements, to develop a functional arrangement for future financial governance cooperation, which could also lead to closer UK/EU cooperation than currently appears likely.
Huertas, Michael, ‘Tackling Non-Performance: Does the Banking Union Need a Pillar IV in the Form of a Single Asset Management Company--Could Covid-19 Now Be the Catalyst for Change?’ (2020) 35(11) Journal of International Banking Law & Regulation 433–443 Abstract: Interest from commentators on the feasibility of establishing a common EU or Eurozone asset management company (AMC), i.e. a ‘bad bank’, has been growing again even if the overall rate o f non-performing loans (NPLs) across the EU had hit lowest levels in 2019. Cause for such renewed interest comes courtesy of Covid-19 and the threat that the EU will need to deal with a whole new wave of NPLs and a different dynamic compared to the 2008 Global Financial Crisis (GFC). The EU’s 2020 responses to the pandemic may provide a catalyst for comprehensive solutions to what is a Europe-wide problem. This article analyses some of the recent commentary and proposes how an AMC, as a Pillar IV to the banking union, might resolve legacy as well as the range of new NPLs caused by Covid-19.
Husein, Yunus and Ichsan Zikry, ‘Legal And Institutional Aspects Of The Financial Sector In Handling The Covid-19 Pandemic’ (2022) 1(2) Journal of Central Banking Law and Institutions Jurisdiction: Indonesia
Abstract: The Covid-19 pandemic has negatively impacted economic conditions, health, and social activities of the community. This study elaborated on two things. First, the legal aspects of handling the Covid-19 Pandemic. Second, it outlines the aspects of institutions involved in handling the Covid-19 Pandemic. The results of this study show that the legal aspects of the Government in dealing with the Covid-19 Pandemic are through Law No. 2 of 2020. In this regulation, at least two main things are regulated, namely the legal protection of members of the Financial System Stability Committee (KSSK) from lawsuits in exercising their authority and exceeding the deficit limit of 3 percent of GDP, furthermore, regarding institutions involved in handling the Covid-19 Pandemic, it is necessary to strengthen institutions. In this case, the institution in question is included in the KSSK members, because of its large authority in handling the Pandemic, especially for national economic recovery, as well as large state budget allocations. The strengthening efforts that can be done are First, amendments to Law No. 2 of 2020, especially regarding the protection of the KSSK against claims and exemptions from state financial losses. Second, the issuance of a PERPPU on supervision and reporting of financial responsibility for handling the Covid-19 Pandemic. Through these institutional strengthening efforts, it is hoped that the handling of the Pandemic, especially in the context of national economic recovery, can run optimally.
Ibnu, Adi, ‘The Covid-19 Containment in Indonesia and Soft Law: A Risk-To-Objective Analysis’ (2024) 3(1) Journal of Central Banking Law and Institutions 1–36 Abstract: This article illustrates how Basel III, a soft law legal framework guiding how regulators supervise financial institutions in order to prevent and mitigate systemic financial crises, especially the requirement regarding the governance of sovereign debt, is being implemented in Indonesia. The analysis was done by scrutinising the relevant authority’s responses and monetary policy during COVID-19. Also, it examines whether the applicable regulations and other related policies align with the grand objectives of the financial sector. This article provides several important takeaways. First, benefiting from the soft traits of Basel III, the oversight authorities (OJK and BI) have tried to enshrine the government’s resilient and prudent financial state through flexibility. Second, instead of taking expansionary legal measures to stimulate the state’s income and limit the state’s expenses, BI and the government have worked together to contain the damage of the pandemic through a quasi-fiscal program (burden-sharing program, BSP). Third, the legislation of Law No. 3/2023 did not make the BI’s objective less risky. It also suggests that more could have been done to prevent the fiscal deficit, especially by the government, through fiscal consolidation (limiting or decreasing the state’s expenses).
Ibrahim, Ahmed, Malack El Masry and Dania Yassin, ‘Embracing Change’ [2020] (Summer) International Financial Law Review 49–51 Abstract: Discusses how the coronavirus pandemic has affected corporate transactions and prospects of investment in the United Arab Emirates.
Idayanti, Soesi, ‘Issue to the Legal Protection of the Use of the State Budget to Handling Covid-19’ (2021) 4(1) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 1168–1177 Abstract: The Covid-19 pandemic, which impacted the health, social, and economic sectors as a non-natural disaster, led the President to make efforts to handle it with state financial policies by stipulating Perpu Number 1 of 2020. Budget misuse during the Covid-19 pandemic should be punishable by the death penalty because carried out when the state is facing a precarious situation; however, in Perpu No.1/2020, the Government grants immunity rights state budget managers. This legal immunity needs to be studied as a standard-issue regarding the state budget to overcome the Covid-19 pandemic. This study aims to examine the pandemic’s impact on state finances and how Government policies are in dealing with the Covid-19 pandemic. This study used a normative juridical approach with data obtained from the literature, and the results were analyzed qualitatively. The results showed that the Covid-19 pandemic resulted in the Government changing the output of the use of the state budget aimed at dealing with the pandemic and restoring the country’s economic condition due to the pandemic; the legal solution is to stipulate Perpu Number 1 of 2020, which was then approved by the DPR and became Law Number 2 2020. At the technical, operational level, the Government has also issued various policy regulations as a follow-up to Law Number 2 of 2020, which is used as an effort to deal with precarious situations as a result of the Covid-19 pandemic, such as fiscal policy stimulus, taxes, social assistance, and policies. Adjustment of regional finances. The problem that was considered urgent due to the Covid-19 pandemic led the Government to stimulate immunity in Law Number 2 of 2020.
Igwe, Gloria U, ‘Regulatory Forbearance and Its Application in the Banking System during the COVID-19 Pandemic: Jurisdictional Experiences’ (2022) 46(2) CBN Bullion 13–25 Abstract: This paper provides an overview of regulatory forbearance and its jurisdictional application in the banking system during the COVID-19 Pandemic. Over the years, regulatory forbearance has been used in the banking system and in recent times, it was prominently brought to the fore during the Pandemic as some banking system regulators applied it to cushion the adverse impact of the Pandemic on the sector and economy. The paper is descriptive in nature and draws on existing literature to explain the concept of regulatory forbearance, the types and those applied by regulators in some climes during the Pandemic. It also discusses the rationale for the use of regulatory forbearance such as financial stability and consumer protection, the challenges associated with it and how measures like stringent conditions can be instituted to ensure its effectiveness.
Ilmih, Andi Aina, Kami Hartono and Ida Musofiana, ‘The Financing Restructuring Legal Analysis for Debtors Affected by Covid-19 in Sharia Multifinance Institutions’ (2021) 8(2) Jurnal Pembaharuan Hukum 172–183 Abstract: This study focuses on problematic financing by debtors affected by Covid-19 at Islamic multi-finance institutions in Semarang City, with the aim of finding the reality of the form of problematic financing experienced by debtors during the Covid-19 Pandemic. This study uses an empirical juridical approach, data analysis using descriptive-analysis methods. Based on the research that has been done, the regulation of the Financing Restructuring Law is guided by POJK Number 11/POJK.03/2020 concerning National Economic Stimulus as a Countercyclical Policy on the Impact of Coronavirus Disease 2019 which regulates asset determination, financing restructuring and provision of new funds. The impact arising from the existence of a financing restructuring policy for debtors affected by Covid-19 can be viewed from the following aspects: (1)Juridical Aspect, meaning that there are no sanctions for the financing institution as a creditor if it does not follow or apply, only based on the willingness of the creditor; (2) Economic Aspect, can help debtors to recover and stabilize the economy so that they can fulfill promises (achievements) to creditors; and for creditors the impact on financial activities or transactions that occurred during the Covid-19 pandemic can still be stable; (3)Psychological Aspects, meaning that one side fosters a strong mentality and confidence for creditors/financing customers to fulfill their obligations, and on the other hand, the existence of the presence of financial institutions is maintained in the future.
Inozemtsev, Maxim I, ‘Legal Regulation of Crypto-Asset Markets in the EU in the Post-COVID Period’ in Vladimir S Osipov (ed), Post-COVID Economic Revival, Volume I: Sectors, Institutions, and Policy (Springer, 2021) 315–326 Abstract: This chapter examines the theoretical understanding and legal regulation of the European crypto-asset market in the post-COVID period, including compatibility of the proposed draft unified legal framework for the crypto-assets circulation with the legal order of the EU member states (Germany, Malta), as well as the competition between the EU legal order and the legislation of the advanced European countries (Switzerland, Liechtenstein) in the field of legalizing crypto-assets. The traced evolution of legal regulation in the field of crypto-assets circulation allows us to conclude that the EU institutions are working quite effectively and consistently to give a ‘pan-European response’ to the challenges of digitalization, but there are some difficulties in synchronizing the created European legal framework with the interests of the EU member states and their often more advanced regulation. The results of the study of the problems of regulating crypto-assets in the European Union contribute to the development of the Russian scientific doctrine in the field of crypto-assets circulation allowing us to adjust the digital assets and digital currencies legalization model in Russia, also laying the foundation for forming supranational legal foundations that will let crypto-assets circulate in the Eurasian Economic Union.
Iqbal, Ayesha and Amjad Iqbal Falak, ‘COVID-19 Epidemic in Pakistan: Review on Precautionary Measures (Law Policy, Governance) and Impact on Pakistan’ (2022) 3(3) International Journal of Economics Development Research (IJEDR) 236–244 Abstract: The COVID-19 pandemic has ruined the worldwide economy. The study intended to evaluate the pandemic effects on the Pakistan economy, openly emphasizing economic growth and poverty alleviation and the efforts take to control pandemic in the country. The investigation discovered that the pandemic affects the financial development of the country, and the measure taken by the official though their policy law and good governance are the good initiatives to decrease pandemic effect in the country.
Irawan, Anang Dony and Ega Permatadani, ‘Government Policy in Handling the Covid-19 Pandemic Judging from Law Number 2 of 2020’ (Proceedings of the 1st UMSurabaya Multidisciplinary International Conference 2021 (MICon 2021), 2023) 51–58 Abstract: The world was shocked by the emergence of an infectious virus called COVID-19 at the end of 2019. Viruses that can be transmitted by camouflage by indiscriminately consuming every human life that lives on the surface of this earth, including in Indonesia. Indonesia is one of the countries with the most COVID-19 cases in the world, which has implications for the country’s economic condition. Even in the health of the People of Indonesia with a fairly high death rate. The government then made a policy with the aim of minimizing the explosion of the number of COVID-19 victims who are increasing and harming many parties. The Government issued Law Number 2 of 2020 on The Establishment of Government Regulations in Lieu of Law Number 1 of 2020 on State Financial Policy and Financial System Stability for Handling the Coronavirus Disease Pandemic 2019 (Covid-19) and/or in Order to Deal with Threats that Endanger the National Economy and/or Financial System Stability into Law. This research uses a type of juridical normative research with a level on applicable laws and regulations. The policy regarding this rule has actually been implemented properly. However, the rights of the people related to the existence of Law Number 2 of 2020 are still not implemented properly. Further arrangements are needed that are more in favor of the condition of the people and the country’s finances for the realization of good and clean government, so that the handling of the COVID-19 pandemic is in accordance with the common expectations of the Indonesian people.
Isaac, William M, ‘How Regulators Can Kick COVID-19’s Bank Shock into Remission’ (2020) 185(53) American Banker 1 Abstract: How regulators can kick COVID-19’s bank shock into remission Congress has imposed laws, rules and ratios on financial institutions which in times like this limit the ability of lenders and regulators to do their jobs. The 2008 financial crisis was due, in no small part, to the mark-to-market accounting rule known as SFAS 157, which resulted in the senseless destruction of $500 billion of capital in the banking system.
Jabotinsky, Hadar Y and Roee Sarel, ‘How Crisis Affects Crypto: Coronavirus as a Test Case’ (2023) 74(2) Hastings Law Journal 433–488 Abstract: Everybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse ‘cryptomarket.’ The cryptomarket is still mostly unregulated, but this is about to change. With President Biden’s adoption of the Executive Order on Ensuring Responsible Development of Digital Assets, regulatory initiatives are being adopted abroad, and global regulation looms ahead. In light of the expected regulatory changes, two important questions emerge: is there a clear rationale for legal intervention in the cryptomarket? And if so, what type of regulation is optimal? This Article is the first to consider how to regulate the cryptomarket through an empirical analysis of how the COVID-19 crisis affected the cryptomarket. We take a two-step approach to answer these pivotal questions. First, we analyze empirical evidence from the early days of the COVID-19 pandemic to better understand the risks posed by the cryptomarket when a crisis emerges. Second, we apply a law-and-economics approach to identify which market failures are consistent with the data and derive novel regulatory lessons. Our empirical analysis reveals an interesting pattern: investors initially shifted funds to the cryptomarket when the pandemic erupted, but then made a U-turn and diverted funds out of cryptocurrencies, leading to a plunge in the market. We maintain that such investor behavior can have both rational and behavioral explanations, which in turn affects the optimal choice of regulation. Accordingly, we map each rational and behavioral explanation onto potential market failures by surveying different possible interpretations of our findings, such as substitution effects between traditional markets and the cryptomarket, exploitation of investors in the form of pump-and-dump schemes, and other criminal activities. We then discuss how each type of failure can serve as justification for regulation and derive regulatory lessons on how to best intervene in the cryptomarket depending on the source of the market failure.
Jackson, Howell E and Steven L Schwarcz, ‘Pandemics and Systemic Financial Risk’ (SSRN Scholarly Paper No ID 3580425, Social Science Research Network, 19 April 2020) < https://papers.ssrn.com/abstract=3580425 > Abstract: The coronavirus has produced a public health debacle of the first-order. But the virus is also propagating the kind of exogenous shock that can precipitate – and to a considerable degree is already precipitating – a systemic event for our financial system. This currently unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Additional scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. We compare and contrast the two crises in terms of systemic financial risks and then explore two dimensions on which financial regulatory authorities might profitably engage with public health officials. As we are writing this essay, the pandemic’s ultimate scope and consequences, financial and otherwise, are unknown and unknowable; our analysis, therefore, is necessarily provisional and tentative. We hope, however, it may be of interest and potential use to the academic community and policymakers.
Jamaruddin, Wahida Norashikin and Ruzian Markom, ‘The Application of Fintech in The Operation of Islamic Banking Focussing on Islamic Documentation: Post-COVID-19’ (2020) 3(1) International Seminar on Syariah and Law (INSLA) E-Proceedings 31–43 Abstract: FinTech is innovation, and it is developing rapidly as part of current human need dealing with financial transactions in daily life, embracing the banking industry as convenience instruments to the consumers. Adapting FinTechin Islamic banking is challenges in terms of Shariah-compliant as the essential elements of riba’,maysir, and gharar prohibited from forming part of the FinTechcomponent. Islamic finance institutions in the world face problem in dealing with financial transactions as well as saviour during pandemic COVID 19, where most countries in the world are affected and declared lockdown as an emergency solution to cutthe chain of COVID 19. Concerning the pandemic crisis, problems on the operation of Islamic banking adopted Islamic Fintech need to explore, which also concerning the conduct of legal firms in managing Islamic banking documentation. The objective of this paper is to identify the application of Islamic fintech in Islamic banking, the legal framework of Islamic fintech, issues in managing the operation and Islamic banking documentation at legal firms, and analysethe suitability of Islamic fintech in the service of Islamic banking during the Movement Control Order. The methodology used in attaining the objectives is qualitative by utilizing the library as the data centre, review the journals and articles, including collecting data from books and available reports. As a result of the study, the paper suggested new norms need a new approach by Islamic finance and any legal institution since the operation heavily relies on the adherence to Syariah requirements and guidelines issued by Bank Negara Malaysia and Security Commission. The support from the government in providing an adequate legal framework for fintech’s instrument to operate needs attention, and consultation among the experts is much welcome by the fintech community.
James, Benedict and Elli Karaindrou, ‘COVID-19 Measures from a Lender’s Perspective’ (2020) 35(7) Butterworths Journal of International Banking & Financial Law 460–464 Abstract: Considers, from the perspective of lenders, the main banking regulations introduced in response to the coronavirus pandemic. Outlines changes including reductions to some liquidity and capital buffers, the creation of payment moratoria for mortgages, the postponing of non-essential reporting, the distribution of dividends, and measures to maximise banks’ lending capacity. Discusses the uncertainties for banks and anticipates future developments.
Juliani, Adella Rachma and Siti Malikhatun Badriyah, ‘The Impact of the Covid-19 Pandemic on the Fulfillment of Credit with Mortgage Rights in Legal Terms for the Debtor’ (2023) 5(2) Awang Long Law Review 519–525 Jurisdiction: Indonesia
Abstract: The Covid-19 has an impact that affects many sectors, including the implementation of credit agreements that are subject to dependent rights. These effects led the debtor to experience overmacht and force majeure, so it is difficult to fulfill the obligations from the contract because income during the CoAvid-19 pandemic was unstable. The approach used in this study is normative juridical. The results showed that the situation of the Covid-19 pandemic can be used as a basis for overmacht because it has fulfilled the elements of overmacht. Thus, the execution of the debtor’s liability rights object is not possible, which is hindered by the fulfillment of its credit obligations. Issuance of POJK Number 11/POJK.03/2020 on National Economic Stimulus as a Countercyclical Policy on the Impact of Coronavirus Disease 2019 as a policy that provides legal protection for overmacht debtors affected by Covid-19 by providing credit restructuring.
Kaneko, Yuka, ‘Asian Perspective on the State and Market Responses to the COVID-19 Pandemic’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 123–147 Abstract: This chapter summarizes major findings from the joint survey on the ‘justice’ sought in the pandemic within the contexts of legal, institutional and cultural differences between Asian economies, under the auspices of the Kobe University Center for Social System Innovation, involving contributors from China, Indonesia, Korea, Myanmar, New Zealand, the Philippines, Thailand and Vietnam as well as Japan. Opposing to the economists’ arguments on the ‘trade-off’ between infection control and the economic impact of COVID-19, the survey found that countries which applied a ‘request-based’ pandemic control in an attempt to mitigate the ‘trade-off’ have seen a prolonged negative impact in the socio-economy where the SME sector is compelled to assume risks. Normal time contractual relations are expected to be modified to avoid the worst type of transfer of burden onto the most vulnerable groups, but the joint survey has found a tendency of ‘dry’ contractual culture in most of the target countries where the historical doctrines of capitalist law for the emergency modification are forgotten, except for rare exceptions such as the regional SME financing in Japan.
Kaneko, Yuka, ‘Law and Social Changes in a Pandemic: Results of Survey of COVID-19-Affected SMEs in Kobe, Japan’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 1–26 Abstract: This chapter investigates into the law and social changes in Japan under the impact of COVID-19, in a search for ‘justice’ in the social allocation of the burden caused by the pandemic, with a particular focus on the contractual relations surrounding small- and medium-sized enterprises (SMEs). A number of distortions are detected in the contractual relation resulted from regulatory intervention or trade customs which impede contract renegotiation which could otherwise be expected for mutual risk-sharing in the emergency. Another controversy is that the results of the failure of ‘small government’ that delayed infection control have been transferred to the regional financial sector for SMEs, but the government is taking this as an opportunity for a financial sector restructuring.
Kashyap, Amit Kumar and Vijaylaxmi Sharma, ‘Law and Policy Reforms in India amidst COVID-19 to Mitigate Risk in Infrastructure Structured Project Financing’ (2022) 19(1) US-China Law Review 35–52 Abstract: The management of risk is critical for creating a strong project financing market that, in turn, supports infrastructure development. Legal risk reduction is a crucial topic that must be addressed for the growth of the infrastructure industry and project finance. It anticipates regulatory incentives based on the expanding infrastructure sector’s demands. Over the last decade, it has been observed that India’s regulatory environment for taking action to address non-performing assets and the Reserve Bank of India’s (RBI) strict insolvency resolution norms for stressed assets has been cumbersome and does not give the infrastructure financing market any special treatment. The project financing industry has suffered a blow due to significant corporations like IL & FS and Dewan Housing Finance Ltd (DHFL) defaulting on payment commitments in the Non-Banking Financial Firm (NBFC) sector in 2018-2019. Furthermore, due to the Novel coronavirus (COVID-19) spread, India’s project financing business, which is dominated by banks (both government-owned and private), is already experiencing a downturn. Legal claims and many conflicts would arise if the project were to be disrupted. Due to increasing interconnectivity, a downturn in the project financing industry would send several shocks across the whole financial system. This situation has compelled the Indian government and authorities to take several significant moves in the lending and project finance markets. The author attempted to investigate the influence of recent financial sector failures and COVID-19 on structured project financing. This article examines how regulatory changes assist the practice in the structured financial market to revive and address difficulties while evaluating concerns and challenges in the infrastructure sector’s current structured project finance market.
Kazzaz, Zachary, ‘Emergency Disbursements During COVID-19: Regulatory Tools for Rapid Account Opening and Oversight’ (SSRN Scholarly Paper No ID 3656651, Social Science Research Network, 20 July 2020) Abstract: More than 100 countries have launched emergency cash disbursement programs to alleviate financial hardships for individuals and households in light of the COVID-19 pandemic. Many of these programs are based in digital payments; however, a lack of official identification, mobile data services and the difficulties in face-to-face interactions restrict potential users from a standard customer due diligence process. Guidance from the Financial Action Task Force (FATF), the global anti-money laundering standards-setting body, encourage the use of innovative solutions for customer onboarding, specifically the risk-based approach and simplified due diligence (SDD). This paper summarizes the range of practice across jurisdictions that have employed a combination of SDD (also known as tiered CDD), licensing of non-bank financial institutions, and digital identification to enroll unbanked individuals into financial accounts so that they could receive COVID-19-related relief cash transfers. As this note concludes, jurisdictions that had adopted such practices were able to quickly ramp-up disbursement programs, bringing tens of millions of beneficiaries into the formal financial system.This report provides an analysis of varied SDD implementations and provides considerations for financial regulators looking to promote appropriate risk mitigation while digitally delivering emergency financial assistance.
Kennedy, Amy and Nicholas Pascal, ‘UK Government Support Packages: New Challenges for Lenders?’ (2020) 35(8) Butterworths Journal of International Banking & Financial Law 521–522 Abstract: Examines the remedies for lenders if borrowers default, under the Government’s coronavirus loan guarantee schemes. Contrasts the Loan Market Association’s standard form. Examines the lender’s duty of care, no transfer rights without consent, claims procedures and termination rights.
King, Katiuska and Philipp Altmann, ‘Between Justice and Money: How the Covid-19 Crisis Was Used to De-Differentiate Legality in Ecuador’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1039–1057 Abstract: Legality in the Global South suffers from problems of application by convenience. Some rules are applied, and some are not, depending on certain actors, such as the State, the stakeholders, or others. This undermines legitimation as constructed by legality and due process. These problems are connected to a wider complex formed by coloniality, internal colonialism, and a form of functional differentiation that limits autonomy of the different social systems. This complex of structural properties allows States and other actors to systematically use one system against the other or—within a given system—one level of rules against the other. This was the case in Ecuador: in the initial months of quarantine due to Covid-19, the government took decisions about external state bonds following international legislation—and quite contrary ones related to local work contracts. Once again, legality followed different paths in diverse cases. Ecuadorian economic authorities accept and respect conditions on external public bonds which are protected by some complex and specific clauses to secure the payment. The same authorities have different practices towards international and national legislation that were organized in the sense of legal subsidiarity. This text will explore reasons and effects of legal de-differentiation in the Global South in times of crisis. The Ecuadorian case in time of Covid-19 helps to understand how structural problems related to the lack of autonomy of the legal system are perpetuated and lead to effects of convenient political action.
Kizil, Cevdet, Vedat Akman and Erol Muzır, ‘COVID-19 Epidemic: A New Arena of Financial Fraud?’ (SSRN Scholarly Paper ID 3899275, 17 June 2021) Abstract: The COVID-19 epidemic is going on as a serious health problem and threat. Indeed, it is also a devastating financial and economic problem. Unfortunately, the COVID-19 epidemic is causing many firms to shut down and go out of business. This triggers unemployment and instability in countries all over the World. The developed countries armed with higher funds are able to better support their citizens and businesses compared to developing and underdeveloped countries. All countries implement different measures to eliminate the several negative effects of COVID-19 epidemic, which has undesired reflections on numerous sectors such as the health, education, tourism, food & beverages and manufacturing industries. This paper argues that, the COVID-19 epidemic in fact has deeper reflections and it may be a new arena of financial fraud. Based on this research, citizens and governments must be extra careful about the new types of financial fraud observed as a result of the COVID-19 epidemic. Also, additional and new measures are needed such as awareness and training on the subject. Especially, emerging financial fraud related to information technologies (IT) require special attention. This article suggests that, firms as well as governments must operate their internal controls and internal auditing mechanisms efficiently in order to prevent the negative consequences and financial fraud arising as a result of the COVID-19 epidemic. Emerging new types of financial fraud in the COVID-19 epidemic era and recommendations to minimize their negative effects are discussed.
Klingler, Desiree, ‘Government Purchasing During COVID-19 and Recessions: How Expansionary Legal Policies Can Stimulate the Economy’ (2020) 50(1) Public Contract Law Journal 1-35_ _Abstract: The traditional approaches to ‘cure’ economic recessions are monetary and fiscal policies. Most economic crises are first addressed with monetary instruments, as the Federal Reserve’s extensive corporate bond purchasing program of March 24, 2020, has shown. However, when interest rates are zero or close to zero—referred to as the zero-lower bound—and the economic downturn is expected to be significant, governments often launch additional fiscal stimulus programs, such as the U.S. COVID-19 Stimulus Package in the amount of $2.2 trillion passed by Congress on March 27, 2020. But monetary and fiscal policies are not the only means of influencing an economy’s business cycle. A third and novel option is expansionary legal policies, also referred to as countercyclical regulation, which is the focus of this article.Legal instruments have been used only to a limited degree to stimulate the economy. One of the first advocates of law and macroeconomics was Yair Listokin who promotes the use of legal policies and lawyers in macroeconomic policy. In this article, the author explains and applies the idea of expansionary legal policies to the field of public procurement law. Public procurement lends itself particularly well to expansionary legal policies for two reasons. First, public contracts form a large part of the government’s expenditure side, amounting to fifteen to twenty percent of global GDP, and can therefore be used to expand the money supply. Second, government contracting is governed by a set of complex administrative rules that can be adjusted to better reflect the business cycles. This article will discuss the idea, design, application, and potential effects of expansionary legal policies by means of two procurement policies that were adopted in the United States and Switzerland in response to COVID-19 this March and compare them to Germany’s relaxation of procurement rules after the financial crisis in 2009. To protect taxpayers’ money and mitigate the risk of corruption, this article suggests legal safeguards for expansionary procurement policies. With the necessary measures in place, expansionary procurement policies will help procurement regulations to reflect economic realities more accurately and stimulate the economy by increasing and expediting spending through public projects in infrastructure, healthcare, and other sectors.
Kokkinis, Andreas and Andrea Miglionico, ‘The Role of Bank Management in the EU Resolution Regime for NPLs’ (2020) 6(2) Journal of Financial Regulation 204–232 Abstract: During the global financial crisis, the growth of non-performing loans (NPLs) was partly a consequence of lack of regulatory oversight and poor bank internal processes. NPLs require intrusive monitoring tools and effective corporate governance is crucial in dealing with the deterioration of loans; however, perverse incentives to delay their recognition leave the process at risk. The EU legislation has adopted a set of regulatory measures to resolve and restructure non-performing exposures. While existing literature approaches NPLs from a regulatory and accounting perspective, this article takes a distinctive corporate governance view in order to conceptualize the NPL problem. The strategies through which senior management and shareholder incentives may undermine regulatory objectives on NPL disclosure are identified and an evidence-based approach to reconsidering and settling these problems is advanced.
Kondrat, Elena N, ‘System of Legal Means of Ensuring the Financial Security of the Russian Federation at Post-COVID Period’ in Vladimir S Osipov (ed), Post-COVID Economic Revival, Volume I: Sectors, Institutions, and Policy (Springer International Publishing, 2021) 327–341 Abstract: This chapter is devoted to financial security as one of the most important components of an effective government mechanism. Financial security is based on a system of legal norms, which at various levels of legal regulation must ensure the stability of the financial system. In the course of ensuring financial security, the entire complex of means should be used, and not only the financial and legal means themselves. This should include both administrative and legal means, and criminal law means, as well as a number of other sectoral means. This is determined by the fact that only the entire arsenal of legal means will reliably ensure financial security. The financial security of the state acquires particular importance in the post-COVID period, since many financial procedures have significantly transformed. Accordingly, new legal means are required to ensure the financial stability of the state and society.
Kreltszheim, David, ‘Creating Deeds in Electronic Form: Why We Should Not Be Deterred by the Ghosts of the Past’ [2020] Australian Banking and Finance Law Bulletin 68–74 Abstract: The electronic transactions laws have been on the statute books in Australia for 20 years. But 5 years ago, a highly influential text advanced a powerful argument that deeds cannot be entered into by electronic communications. And last year a Supreme Court judge opined in passing that had it been necessary to decide the question, the judge would have concluded that it remains a common law requirement of a deed that it be written on paper. Why is it so? This article considers how we got to where we are. It suggests that the electronic transactions laws can be used to facilitate parties’ entry into deeds by means of electronic communications. It concludes, however, that given the experience of the last 20 years the best course would be for there to be further legislative intervention, ideally on a national basis. It suggests that the temporary COVID-19-driven reforms relating to deeds could be extended from time to time until the further legislative intervention happens.
Lalafaryan, Narine, ‘Orchestrating Finance with Material Adverse Changes?’ (2022) 42(1) Legal Studies 1–22 Abstract: From a legal and economic perspective, the global financial crisis, terrorist attacks, wars, natural catastrophes, and COVID-19 all have one thing in common: they are potentially ‘material adverse change’ events. Such events are unpredictable and have severe consequences for the global economy. To help manage the fallout from such negative events, businesses in economically valuable and complex deals, such as debt financing or mergers and acquisition (M&A) agreements, include special contractual risk allocation provisions, called Material Adverse Change/Effect (MAC) clauses. The COVID-19 crisis has had a drastic effect on M&A and debt financing deals, often leading to renegotiation and sometimes to litigation of these agreements based on MAC clauses. Termination of such transactions via MAC clauses poses serious risks, including those of causing a domino-effect in the market. The effects of MAC clauses in debt finance (as opposed to M&A deals), however, have been largely overlooked both in law and in finance. This paper is the first to investigate the pre-contractual (ex-ante) and contractual (ex-post) effects of MAC clauses in commercial debt financing agreements. It proposes a novel Multifunctional Effect Approach of MAC clauses in debt finance. This paper aims to explain why the commercial parties attach high importance to these vague and uncertain MAC clauses in debt financing agreements but hardly ever rely on them. First, the paper argues that apart from acceleration of the credit facilities, MAC clauses have various beneficial effects, such as screening. Secondly, MAC clauses should be regarded not only as mechanisms to solve information asymmetry but also have the following effects: improving governance, decoupling debt, providing restructuring impulses, countering uncertainty, signalling with acceleration. Potentially, MAC clauses also have the effect of a penalty default rule. The paper finds that despite these functions, the potential of MAC clauses in debt finance is not fully utilised, due to the unique characteristics of debt finance. This significantly undermines the efficiency of MAC clauses in debt finance, as lenders overprotect themselves by additionally relying on other contractual protection mechanisms and risk offsetting strategies for more efficiency.
Le Roux, Matthieu, Olivier Bustin and Carolina Reis, ‘Gabon: Priority Measures’ [2020] (Summer) International Financial Law Review 69–72 Abstract: Gabon responded quickly to COVID-19, leveraging off its experience with ebola and cholera. This article reviews the results of the government’s actions and what the pandemic says about Gabon’s future economic development.
‘Lending in the Time of Coronavirus’ (2022) 135(May) Harvard Law Review 1885–1906 Abstract: This Note proceeds as follows. Part I discusses the historical evolution of the relationship between the Treasury, the nation’s fiscal policy authority, and the Federal Reserve, the nation’s monetary policy authority, in addition to the development of the Fed’s lender-of-last-resort powers under section 13(3) of the Federal Reserve Act. Part II describes the Fed’s actions during the 2008 and 2020 financial crises and the respective political responses. Part III catalogues the tensions between section 13(3) of the Federal Reserve Act and the Fed’s COVID-19 response, arguing that the Fed’s intervention was well within the letter of the law. Finally, Part IV attempts to debunk some of the stickier myths surrounding the Fed’s actions during March and April 2020.
Levitin, Adam J, Lindsay A Owens and Ganesh Sitaraman, ‘No More Bailouts: A Blueprint for a Standing Emergency Economic Resilience and Stabilization Program’ (Roosevelt Institution Great Democracy Initiative Report, 30 June 2020) Abstract: Since the COVID-19 pandemic first landed our shores in late January, Congress has scrambled to pass five relief and recovery packages to deal with the health and economic fallout. The first included just $8.3 billion in spending—an astonishingly small sum given the threat of the virus. The third bill included critical spending priorities for struggling families, but was paired with a no-strings-attached $500 billion slush fund for corporate America. The fourth and fifth bills remedied problems with the third bill—Congress didn’t appropriate enough money for its signature small business relief program, the Payroll Protection Program, and needed to top it up (fourth bill), and then needed to extend the loan repayment period (fifth bill) for the program because most businesses had yet to reopen and begin generating new revenue. Congress is likely to take up a sixth bill in late July, in part to deal with the imminent expiration of the temporary expanded unemployment insurance benefits passed in the third bill.This ad hoc approach to crisis policymaking is inefficient at best and malpractice at worst. Delays have resulted in bankruptcies and closures for businesses large and small and countless hardships for the more than 40 million Americans who have filed jobless claims since March. There is a better way.In this paper we propose a standing emergency economic resilience and stabilization program that will be deployed in the event of an economic emergency. The program has four central components: 1. An off-the-shelf, bankruptcy-based restructuring process for large or publicly- traded firms that involves a federal equity stake and a potential federal senior secured loan; 2. A program for smaller businesses to cover payroll and operating expenses to prevent mass layoffs and closures on Main Street; 3. A financial system infrastructure reform to enable direct government payments to consumers and businesses without reliance upon private intermediaries; and, 4. A system of automatic stabilizers to engage policy tools without repeated and recurrent congressional action, including a suite of programs to address housing insecurity for both renters and homeowners.This emergency economic resilience program would blunt the foreseeable impacts common to all recessions—unemployment, income shocks, and liquidity constraints— so that Congress can focus its attention on the unique causes of the particular downturn. In the case of the most recent downturn, had such a program been in place, Congress would have been able to spend the lion’s share of the spring narrowly focused on testing production, building out a community health corps of contract tracers, and supporting the development of a vaccine, instead of scrambling to patch together an economic relief program.
Li, Alexandra, ‘The Unreasonableness of Reasonable: Rethinking the Reasonable Investor Standard’ (2023) 117(6) Northwestern University Law Review 1707–1737 Abstract: This Note explores the ‘reasonable investor’ standard in light of recent developments in pandemic-era securities litigation. Scholars have long criticized the reasonable investor standard for determining materiality. Given the dramatic backdrop of the COVID-19 pandemic, the limitations of the standard are becoming ever more evident. This Note provides a brief history of the development of the current standard and highlights some of its problems through two recent COVID-19 securities fraud cases. This Note argues that the reasonable investor standard is no longer sufficient to protect investors. Through examining tort law and First Amendment jurisprudence, this Note differentiates between the ‘reasonable’ and ‘average’ persons and recommends replacing the reasonable investor standard with the average investor standard.
Loayza, Norman, ‘Costs and Trade-Offs in the Fight Against the Covid-19 Pandemic: A Developing Country Perspective’ (World Bank Research and Policy Briefs No 148535, 15 May 2020) Abstract: The world is experiencing the worst pandemic crisis in one hundred years. By mid-April 2020, more than 80 percent of countries around the world had imposed strict containment and mitigation measures to control the spread of the disease. The economic fallout has been immense, with dire consequences for poverty and welfare, particularly in developing countries. This Brief first documents the global economic contraction and its potential impact on developing countries regarding macroeconomic performance, poverty rates, and incomes of the poor and vulnerable. It then argues that the pandemic crisis may hurt low- and middle-income countries disproportionately because most of them lack the resources and capacity to deal with a systemic shock of this nature. Their large informal sectors, limited fiscal space, and poor governance make developing countries particularly vulnerable to the pandemic and the measures to contain it. Next, the Brief reviews recent epidemiological and macroeconomic modelling and evidence on the costs and benefits of different mitigation and suppression strategies. It explores how these cost-benefit considerations vary across countries at different income levels. The Brief argues that, having more limited resources and capabilities but also younger populations, developing countries face different trade-offs in their fight against COVID-19 (coronavirus)than advanced countries do. For developing countries, the trade-off is not just between lives and the economy; rather, the challenge is preserving lives and avoiding crushed livelihoods. Different trade-offs call for context-specific strategies. For countries with older populations and higher incomes, more radical suppression measures may be optimal; while for poorer, younger countries, more moderate measures may be best. Having different trade-offs, however, provides no grounds for complacency for developing countries. The Brief concludes that the goal of saving lives and livelihoods is possible with economic and public health policies tailored to the reality of developing countries. Since ‘smart’ mitigation strategies (such as shielding the vulnerable and identifying and isolating the infected) pose substantial challenges for implementation, a combination of ingenuity for adaptation, renewed effort by national authorities, and support of the international community is needed. The lockdowns may be easing, but the fight against the pandemic has not been won yet. People and economies will remain vulnerable until a vaccine or treatment are developed. The challenge in the next few months will be to revive the economy while mitigating new waves of infection.
Lochagin, Gabriel Loretto, ‘Changes in South-American Fiscal Rules in a Post-Pandemic Scenario: A Case-By-Case Analysis’ (2024) 17(2) Law and Development Review 483–509 Abstract: Public finances have been extensively affected by the effects of the COVID-19 pandemic and the measures enacted to mitigate them. In South America, have these effects been permanent, or were fiscal rules solid enough to allow for flexibility and a later return to normality? The hypothesis in this paper is that Covid had a significant impact on the fiscal institutions of countries with previous difficulties in using norms as stabilization tools for public finance, but had only temporary effects for countries with a stronger tradition of implementing fiscal rules more effectively. The text is structured as follows: in the first part, a general panorama of the creation of fiscal rules in South America is presented to offer comparison patterns with their post-pandemic evolution. Secondly, a description of the possible structures of fiscal rules is analyzed, and these categories will be applied to the South American case. In the third and last part, the types of fiscal rules are classified according to each country, as well as the transformations observed after the COVID-19 pandemic. As a result, the paper will offer a consolidated approach to changes in fiscal rules in the region.
López-Santana, Mariely and Philip Rocco, ‘Fiscal Federalism and Economic Crises in the United States: Lessons from the COVID-19 Pandemic and Great Recession’ (2021) 51(3) Publius: The Journal of Federalism 365–395 Abstract: The architecture of fiscal federalism in the United States represents an obstacle for prompt and comprehensive policy responses to economic crises, especially by subnational levels of government. As both a public health and economic crisis, the COVID-19 pandemic has put unique fiscal pressures on subnational governments. This article reviews the pandemic’s fiscal effects on these governments, as well as the federal government’s response. By comparing the response to the COVID-19 crisis during the Trump administration with the response to the Great Recession during the Obama administration, we show that while the speed and magnitude of federal aid was unprecedented in 2020, it was nevertheless conditional in nature and beset by familiar political and institutional obstacles. Despite major fiscal pressures, state revenues rebounded earlier than expected, in part due to the relaxation of public health measures and the collection of taxes from online transactions; yet, state resources remained strained throughout the year, especially in states reliant on the hospitality and the oil sectors. And while local property taxes were buoyed by a surging housing market, cities and counties were confronted with declining revenue from other sources and intense emergency spending needs. Thus, despite unprecedented levels of federal support for state and local governments, the legacies of ‘fend for yourself’ federalism live on.
Lu, Lerong and Sergio Cappuzzello, ‘Maintaining Financial Market Stability during COVID-19 Pandemic: A Case Study of the US Securities and Exchange Commission’s Regulatory Responses and Crisis Management Measures’ (2021) 36 Journal of International Banking Law and Regulation 515–523 Abstract: This article provides an in-depth and comprehensive analysis of regulatory measures taken by the US Government to mitigate the negative effects of the Coronavirus pandemic (COVID-19) on its economy and financial markets. It focuses on the actions of the US Securities and Exchange Commission (SEC) which is in charge of the making and enforcement of capital markets regulations. This article looks at regulatory responses to the previous financial crisis to see if the regulator has learned lessons from the past experience of crisis management. It also considers the difference of the current crisis and assesses the effectiveness of the SEC’s recent regulatory measures, addressing both positive or negative impacts. This article seeks to understand the strategies that the SEC has implemented to help the financial markets survive the pandemic as well as studies the concrete measures that make the crisis less traumatic for all market participants.
Lukasiewicz, Agnieszka and Aleksandra Nadolska, ‘The Sharing Economy Business Models in Poland: Aspects of Trust, Law, and Initiatives Facing the COVID-19 Pandemic’ in Vida Česnuitytė et al (eds), The Sharing Economy in Europe: Developments, Practices, and Contradictions (Springer, 2022) 343-363 Abstract: Undoubtedly, since the World Health Organization (WHO) officially declared the outbreak of coronavirus disease 2019 (COVID-19) in March 2020, the financial situation in sharing economy gets worsen. As the basic need during COVID-19 time is to significantly reduce movements and keep social distance, there has been a drop in accommodation or transportation services. However, the crisis caused by the coronavirus triggers a reaction from the side of consumers, entrepreneur leading to the emergence of new initiatives within the collaborative economy.
Macey-Dare, Rupert, ‘COVID-19: Assessing Some Potential Global Economic, Business and Legal Impacts’ (SSRN Scholarly Paper No ID 3615148, 31 May 2020) Abstract: The new and fast evolving COVID-19 global pandemic has already caused, according to the IMF, ‘the worst downturn since the great depression’. This paper considers what the history and scientific analysis of previous large scale economic and disease shocks and current economic modelling can tell us about the likely scale and location of the challenge to global business, which are likely to play out in due course through legal restructuring, bankruptcy and litigation channels.Previous economic shocks briefly considered include: the (2007-8) financial crisis and its aftermath, WW1 (1914-18) and WW2 (1939-45), Wall Street Crash (1929) and Great Depression (1930-36), the collapse of the FSU and its aftermath (1990-97) and the 9-11 attacks (2001).Previous epidemics and pandemics briefly considered include: Ebola, SARS, MERS, HIV/AIDS, Malaria, Asian flu (1957), Spanish flu (1918-19) and the Black Death (14th century).Initial epidemiological, SIR, and global economic modelling results and uncertainties are also considered, and some of the most vulnerable business sectors identified.
Mack, Nicholas, ‘The COVID–19 Pandemic Highlighted the Need for Mandated ESG Disclosures: Now What?’ (2022) 30(2) University of Miami Business Law Review 188-224 Abstract: This is not simply your run-of-the-mill COVID-19 article. No, instead, this article highlights a salient point that has been right in front of our eyes this whole time and COVID-19 simply took our blinders off. ESG—short for environmental, social, and governance—is gaining significant momentum both at the firm level and in investment strategy, yet the SEC is trailing behind in ensuring the market is adequately informed of firms’ ESG information. The COVID-19 pandemic initially threw the market into a downward spiral, but most ESG funds outperformed the market in the midst of financial downturn. Why is that and where do we go from here?
Mahmoodi, Ali Asghar et al, ‘Conditional Accounting Conservatism and Financial Flexibility: The Corona Pandemic in the Formation of Legal Claims’ [2024] International Journal of Law and Management (advance article, published online 4 June 2024 Abstract: The purpose of this research is to investigate the importance and status of conditional accounting conservatism indicators and financial flexibility for the management of legal claims of the company during the outbreak of Corona. The research method was implemented using statistical analysis in the SPSS environment. The participants of this research can be experts and specialists working in companies admitted to the stock exchange and expert professors in accounting fields; auditing; economy; financial engineering and financial management, categorized. The data related to the localization tool of research variables were collected by snowball sampling method in the summer of 2022. Findings One of the main results of the research is that based on the opinions and professional experience of experts and professionals working in companies admitted to the stock exchange and academic experts, within a range of seven, ‘The number of legal claims of the company with electronic businesses’ under the title of the main indicator in the legal claims of the company in the outbreak of Corona from the importance dimension; ‘Exchange rate fluctuations in financial resilience’ under the title of the main indicator in financial resilience in the Corona outbreak from the functional dimension; ‘The number of legal claims of the company with government institutions’ under the title of the main indicator in the company’s legal claims in the Corona outbreak from the functional dimension; ‘The company’s conservatism score’ under the title of the main indicator in the conditional conservatism of accounting in the Corona outbreak from the functional dimension; ‘oil price fluctuations in financial resilience’ under the title of the main indicator in financial resilience in the Corona outbreak from the importance dimension; and ‘type of industry based on total assets’ under the title of the main indicator in the conditional conservatism of accounting in the Corona outbreak was calculated from the importance dimension. Originality/value Although the previous literature has studied the direct correlation between accounting conservatism and financial flexibility, this work focuses on examining the direct association between accounting conservatism and financial flexibility in the post-Corona era and is carried out to resolve legal claims.
Malinovsky, Aleksei A, Dina M Osina and Elena N Trikoz, ‘Legal Fundamentals for Institutional Changes to Revive the Economy After the Pandemic’ in Vladimir S Osipov (ed), Post-COVID Economic Revival, Volume I: Sectors, Institutions, and Policy (Springer, 2021) 71–82 Abstract: ‘Legal Fundamentals for Institutional Changes to Revive the Economy after the Pandemic’. Issues related to changes in the Russian legal and tax system are thoroughly studied, specifically: the actual cancellation of flat scale of taxation, payment of taxes on fixed profits of controlled foreign companies, the abolition of preferential rates for withholding tax provided for by a number of treaties etc. These aspects are examined through the prism to, on the one hand, support the people and businesses and, on the other hand, get maximum taxes for the budget, since fulfillment of social obligations during a pandemic requires significant financial resources. While preparing the work, not only has the legal framework been analyzed, but also scientific papers, materials of international organizations, government bodies, expert comments, etc. As a result of the study, the authors come to the following conclusions: (1) to support and restore the economy, many areas of law including bankruptcy legislation, labor and tax laws, legislation on legal liability etc. have been substantially modified; (2) the tax sphere, in which there have been trends towards strengthening the regulatory function of taxes, tightening tax control over super-wealthy individuals, promoting further deoffshorization of the Russian economy, providing tax benefits to taxpayers in order to prevent their massive bankruptcy, has undergone the most significant institutional changes.
Mansour, Walid, Hechem Ajmi and Karima Saci, ‘Regulatory Policies in the Global Islamic Banking Sector in the Outbreak of COVID-19 Pandemic’ (2022) 23(3) Journal of Banking Regulation 265–287 Abstract: This paper forecasts the response of Islamic banks’ dynamics (size, profitability, nonperforming financing, and stability) to the COVID-19 pandemic over the period ranging from 2019Q4 to 2021Q4. Nine jurisdictions are considered based on their Islamic banks’ systemic importance, namely Bahrain, Brunei, Indonesia, Kuwait, Malaysia, Pakistan, Saudi Arabia, Turkey, and UAE. Using the bivariate VARX model, our forecasting exercise shows that the Islamic banks’ response to the COVID-19 pandemic is not uniform across jurisdictions. While the Islamic banks’ dynamics in Saudi Arabia, UAE, and Kuwait are less likely to be impaired, Bahrain, Brunei, Malaysia, Pakistan, and Turkey are expected to be relatively more affected especially in terms of their size growth. Saudi Arabia will continue leading the growth momentum of the global Islamic banking sector, and its Islamic banks’ assets are expected to reach at least $185.4 billion by the end of the fourth quarter of 2021. This paper recommends a prioritization approach for the implementation of the policy measures by the jurisdictions based on their banks-specific responses to the COVID-19 pandemic.
Mansyuroh, Firqah Annajiyah and Rahmat Fadillah, ‘Opportunities and Threats of Online Loans During the Covid-19 Outbreak: The Importance of Disseminating Sharia Economic Law to South Kalimantan Society’ (2022) 3(1) Proceeding International Seminar of Islamic Studies 687–694 Abstract: During the covid-19 outbreak, there was a drastic decrease in income with living expenses that still had to be met, causing people to finally decide to take out loans to meet their daily needs. This also happened to the people of South Kalimantan, where there were cases of illegal online loans that violated sharia economic law in various aspects. This paper examines the importance of disseminating sharia economic law during the covid-19outbreak.This topic is theoretically and practically important in legal culture. Public Understanding of the opportunities and threats of online loans cannot be separated from the intensity of dissemination and counseling carried out to society.This research combinesempirical legal analysis with survey method to see how the opportunities and threats of online loans are according to South Kalimantan’s people. The results of this study will show that public welfare and the principle of legal fiction must be supported by the dissemination of law to the entire public of South Kalimantan.
Markakis, Menelaos, Charikleia Kafka and Lina Triantafyllia Papadopoulou, ‘Accountability and Democratic Legitimacy in EU Economic Governance: From the Euro Crisis to the Pandemic and Beyond’ (University of Milano-Bicocca School of Law Research Paper No 23–01, 21 December 2022) Abstract: This article looks at the measures that were adopted in response to the Euro crisis and the COVID-19 pandemic and their implications for accountability and democratic legitimacy in the area of Economic and Monetary Union (EMU). The discussion begins with the legitimacy issues that were facing the EMU/EU in the aftermath of the Euro crisis, as well as the accountability and transparency arrangements that obtain in the area of EU economic governance. The focus then shifts to the further evolution of the Economic Union (the ‘E’ of EMU), as triggered by the EU’s response to the pandemic. The relevant section does not purport to provide a detailed exegesis of the powers of the EU institutions, bodies, offices and agencies (and their domestic-level, principally technocratic, counterparts) in all sub-fields of EMU. It rather aims to illustrate the significance of their ever-expanding tasks, as well as the need that the exercise of those powers be subject to robust accountability and transparency arrangements. Accordingly, the discussion of the key features of these novel measures is followed by analysis of the accountability arrangements that are enshrined therein or accompany them, as well as their implications for the legitimacy of EMU/EU. It will be shown that, although there has been some progress made in terms of accountability and transparency, plenty of gaps remain. The penultimate section will provide a glimpse into what the future may bring for EMU, thereby looking at other suggested reforms that could be implemented in order to further ‘deepen’ the EMU. It will be argued that those reform plans emanating from (or under consideration by) the EU institutions have not always placed enough emphasis on the need for robust accountability and transparency arrangements and that their potentially far-reaching nature bolsters the argument made in this paper that such arrangements would be indispensable. It will be concluded that our assessment of the degree of accountability and democratic legitimacy in this area varies depending on the aspects of crisis reforms one focuses on. It is further argued that the empowerment of the European Parliament (and, where appropriate, of national parliaments) in EMU matters must continue in the future, especially as more reforms are implemented to ensure a robust EMU framework.
McCarthy, Jonathan, ‘The Legacy of COVID-19 Financial Supports: (1) Judging the Effects of the Pandemic-Era Measures’ (2024) 39(9) Journal of International Banking Law & Regulation 295–301 Abstract: As the first of two articles for the Journal of International Banking Law and Regulation, this article considers the immediate effects of financial support measures implemented during the COVID-19 pandemic. The article describes the initial purposes of the assistance, explains the distinct phases of financial supports, and questions how the ‘success’, or efficacy, of the measures can be quantified.
Menand, Lev, ‘Unappropriated Dollars: The Fed’s Ad Hoc Lending Facilities and the Rules That Govern Them’ (European Corporate Governance Institute, Law Working Paper No 518/2020, 16 May 2020) Abstract: In response to the spread of COVID-19, the Federal Reserve has established fourteen ad hoc facilities to lend to financial firms, foreign central banks, nonfinancial businesses, and state and local governments. This Article reviews these facilities, explains what they are for, and examines the statutory rules that govern them. It distinguishes between seven liquidity facilities designed to backstop deposit substitutes issued by shadow banks and seven credit facilities designed to invest directly in the real economy. Ten of these facilities – three of the liquidity facilities and all seven of the credit facilities – are contemplated by the CARES Act, which appropriates money for the Treasury Secretary to invest in them. But all ten are inconsistent with at least one of the following three provisions of existing law, none of which the CARES Act explicitly amends: (1) section 13(3)(B)(i) of the Federal Reserve Act, which requires the Fed to ensure that 13(3) lending is ‘for the purpose of providing liquidity to the financial system’; (2) section 13(3)(A), which requires the Fed to ‘obtain evidence’ that participants are ‘unable to secure adequate credit accommodations’ from other banks; and (3) section 10(a) of the Gold Reserve Act, codified at 31 U.S.C. § 5302, which limits the Treasury Secretary to using the Exchange Stabilization Fund to ‘deal’ in ‘securities’ consistent with ‘a stable system of exchange rates.’ Of the four liquidity facilities not contemplated by the CARES Act, two are inconsistent with any reasonable interpretation of section 14(2)(b) of the Federal Reserve Act, which authorizes the Fed to buy and sell government debt only ‘in the open market,’ and one is inconsistent with a similar requirement in section 14(1) regarding foreign currency. (Although these facilities are permitted by sections 13(13) and 13(3) respectively.) Hence thirteen of the Fed’s fourteen facilities as currently constituted are in tension with either the Federal Reserve Act, the Gold Reserve Act, or both. Three conclusions follow. First, most of the Fed’s current, critical lending activities are an exception to the baseline statutory framework, permissible only in conjunction with the CARES Act. Second, Congress’s failure to amend that framework is obscuring the fact that it is asking the Fed to take on substantial new responsibilities – ones for which it was not designed and which it may struggle to discharge. Third, Congress should update our money and banking laws to clarify the rules governing Fed lending, reduce the need for monetary backstops, and improve the government’s ability to respond quickly and effectively to fiscal emergencies in the future.
Menkes, Jerzy and Magdalena Suska, The Economic and Legal Impact of Covid-19: The Case of Poland (Routledge, 2021)Note: this book is not open access. Link to book webpage on publisher site for details and pricing.
Includes the following chapters:
* Elżbieta Kawecka-Wyrzykowska, ‘EU Funds for Addressing the Consequences of the COVID-19 Pandemic: Implications for Poland’
- Adam A. Ambroziak, ‘Financial Measures Adopted in Poland in the Light of COVID-19 State Aid EU Framework’
- Alina Dorota Szypulewska-Porczyńska, ‘The Emergency Measures Underpinning Poland’s Convergence Programme 2020: The Case of the Trade Credit Reinsurance Scheme’
- Andrzej Janik, ‘Polish Banking Sector in the Face of COVID-19’
Extract from Introduction: The COVID-19 threat offers legal scholars a unique opportunity to seriously think about the legal order that should govern the society we want to live in and an economy that serves the expectations of people in the post-COVID-19 world.7 The COVID-19 threat has opened a window of opportunity for transgressing boundaries, for thinking the unthinkable: a fundamental revision of the European Economic Constitution and therewith European private law.
Mollo, Giovanni, ‘Financial Market Regulators and Crisis of Pandemic’ in New Legal Reality: Challenges and Perspectives. II (University of Latvia Press, 2022) 494–502 Abstract: The pandemic has affected all sectors of economy and finance. Having outlined the characteristics of the financial market regulatory authority, the question arises as to the role it should play in this context. Given that the authority is not an expression of popular sovereignty, the conclusion is that it cannot take action to counter the crisis generated by the pandemic, as it cannot define its own autonomous political and economic guidelines.
Mooij, Annelieke AM, ‘The Legality of the European Central Bank’s Pandemic Emergency Purchase Programme’ (BRIDGE Network Working Paper No 5, 19 August 2020) Abstract: The COVID-19 crisis has a big impact upon the European economy. To restore its transmission mechanisms and mitigate the financial impact the European Central Bank(ECB) introduced its Pandemic Emergency Purchase Programme (PEPP). A €750 million purchasing plan. This paper discusses the legality of these plans using the European legal framework and the recent framework generated by the German Constitutional Court (GCC). This paper claims the PEPP is legal under the European framework. The PEPP would not have been considered legal by the German Constitutional Court, though this probably changed with some of the recent developments. This paper furthermore analyzes the impact of this programme upon the mandate of the ECB. It describes the change of the role of the ECB from a cautious bank to a bank ready to fight a crisis. This role has generated tension between the core and periphery countries. These tensions result from the underlying flaw in the EMU which can only be solved by further integration or disintegration.
Mukhsin, Mukhsin, ‘Juridical Overview of The Implementation of Regional Autonomy Related to the Government Legal Politics of Budgeting for the Covid-19 Actions’ (2023) 7(2) Syiah Kuala Law Journal_ _Abstract: Article 18 verse (2) of the 1945 Constitution of the Republic of Indonesia it says: ‘The regional governments of the province, the regency, and the municipality shall regulate and manage their own government affairs according to the principles of autonomy and duty of assistance.’ However, with the encactment of the Act Number 2 of 2020, requires the regional governments to refocus their budgets, thus impacting on the disruption of regional autonomy implementation as mandated by the constitution, especially in the field of budgeting. The results of the study indicate that the implementation of regional autonomy in Banda Aceh City is related to budgeting for the actions of the Covid-19 after the enactment of Act Number 2 of 2020 namely the enactment of the Banda Aceh Mayor Regulation Number 19 of 2020 as the legal basis for shifting the budget from the budgets that had been previously set in the pure Regional Budget of 2020 to the budget directed at actions of the Covid-19 such as incentives for medical personnel, medical equipment materials including vaccination costs, as well as incentives for the field officers who carry out vaccinations, so that they have an impact on priority programs and activities with ceilings that have been set in the Banda Aceh City of RKPD which refers to the Banda Aceh City of RPJMD of 2017-2022. The controlling and the budgeting functions of the Banda Aceh DPRK can run as usual. The implementation of this function is carried out by discussing with the Budget Team of the City Government of Banda Aceh with the City Councils Budget Board of the Banda Aceh DPRK.
Mulkan, Hasanal, ‘Criminal Elements in Debt Restructuring During The Covid-19 Pandemic: Between Business Continuity and Legal Compliance’ (2022) 11(2) Legal Brief 1223–1245 Jurisdiction: Indonesia
Abstract: The coronavirus (Covid-19) pandemic has hit the world economy, including Indonesia. In addition to direct handling of the epidemic problem, the government is also preparing to anticipate the impact of the economic slowdown caused by the pandemic. The government has issued regulations in relation to the forms of restructuring that can be carried out by banks and national financial institutions with their debtors that open up various alternative patterns of restructuring the settlement of obligations based on POJK No. 11 of 2020. This regulation has the potential to create an imbalance between creditors and debtors. The regulation provides the dominant flexibility for creditors to assess and offer forms of restructuring, so that there is the potential for an imbalance in the form of restructuring between creditors and debtors. The law enforcement scheme has its relevance to Law no. 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (UUK and PKPU). Some adjustments are needed so that the law which is intended to restore economic conditions by providing protection to creditors and debtors can find its context with the crisis caused by Covid-19. The results of this study indicate that PKPU is a strategic tool in designing debt restructuring. If the PKPU application is granted and peace is reached between the debtor and his creditors, the debtor concerned can continue his business activities. Some adjustments are needed so that the law which is intended to restore economic conditions by providing protection to creditors and debtors can find its context with the crisis caused by Covid-19. The results of this study indicate that PKPU is a strategic tool in designing debt restructuring. If the PKPU application is granted and peace is reached between the debtor and his creditors, the debtor concerned can continue his business activities. Some adjustments are needed so that the law which is intended to restore economic conditions by providing protection to creditors and debtors can find its context with the crisis caused by Covid-19. The results of this study indicate that PKPU is a strategic tool in designing debt restructuring. If the PKPU application is granted and peace is reached between the debtor and his creditors, the debtor concerned can continue his business activities.
Mungmunpuntipantip, Rujittika, ‘COVID-19 and Securities Laws: A Contemporary Legal Issue’ (2020) 3(2) Journal of Capital Market and Securities Law (advance article, published 20 November 2020) Abstract: COVID-19 pandemic is the present global problem. The new disease already attacks all continent and more than 100 million infected persons has already been recorded worldwide since its first appearance in 2019. The legal correspondence to the emerging disease is an interesting issue. Regarding COVID-19, there are many legal control measures for diseases containment. The objective of this article is to give an overview on COVID-19 outbreak and securities laws interrelationship. The retrospective literature analysis on the international publication regarding COVID-19 outbreak and legal containment is done. In this specific article, the authors discuss on specific securities laws for legal control of COVID-19. The finding from this study shows that there are advantages of legal measures for management of pandemic but there are still possible adverse effects of legal measure implementation. The utility of this work is a note for further of requirement for weighing between utility and possible side effect of the new laws. Nevertheless, since there are still limited reports on impact securities laws for COVID-19 containment, the additional monitoring of future literatures for fulfilling the knowledge gap is required.
Muslih, Muhammad and Supeno Supeno, ‘Financial Technology: Digital Legal Challenges and Indonesia’s Economic Prospects after Covid-19 Outbreak’ (2022) 30(2) Legality: Jurnal Ilmiah Hukum 255–266 Abstract: Online loans are one of the financing business models organized using applications on the internet, the online loan business is currently developing so fast because it offers loans that can reach a sufficiently large amount with easy terms, procedures, and transaction processes, all intended to improve people’s economic conditions. However, its implementation still sparks many legal problems and presents challenges for digital law in Indonesia. This study aims to study the challenges faced by Indonesian digital law due to the growth of the online loan business and to explore how the prospects of the online loan (fintech) business in improving the economic conditions of the Indonesian people. This research used empirical juridical methods, a case, and a statutory approach. The results showed that the challenges faced by Indonesian law in anticipating the growth of online businesses tainted by various legal cases require a more comprehensive rule of law in the form of legislation, thereby supporting the growth of prospects of the online loan business in an effort to improve the economy of the people of the state.
Neisen, Martin and Hermann Schulte-Mattler, ‘The Effectiveness of IFRS 9 Transitional Provisions in Limiting the Potential Impact of COVID-19 on Banks’ (2021) 22(4) Journal of Banking Regulation 342–351 Abstract: The purpose of this paper is to assess the effectiveness of the transitional provisions for the impact of International Financial Reporting Standard 9 (IFRS 9) as a supervisory tool to strengthen a bank’s capital base. The new IFRS 9 provisions are a significant banking supervisory measure of the so-called Capital Requirements Regulation (CRR) Quick Fix to mitigate possible adverse effects of the COVID-19 pandemic on banks. With the discharge rules, the supervisor aims to strengthen the banks’ regulatory capital in order to ensure the supply of credit to households and companies at all times. Based on the published disclosure reports of 107 significant European banks at the reporting dates end 2019 and June 2020, our study analysed how many banks already apply the transition rules, whether there are geographical focusses and to what extent banks use the new CRR Quick Fix adjustments. To the best of our knowledge, this paper is the first empirical analysis of the extent to which European banks use the original IFRS 9 transitional arrangements and COVID-19 extension and what effects its use has on their common equity Tier 1 (CET1) capital. The results are of interest to regulators, bank managers and analysts alike, as they fundamentally demonstrate the effectiveness of this particular regulatory tool.
Neurath, Daniel, ‘Circuit Breakers: A legal analysis of volatility safeguards in the rules of stock exchanges on the occasion of the COVID-19 crisis’ (2020) 32(4) Zeitschrift für Bankrecht und Bankwirtschaft 259–264 Abstract: This paper examines circuit breakers (CBs), i. e. emergency systems of trading venues that interrupt or restrain trading when significant price movements of financial instruments occur. After a description of the ratio legis and the economic fundamentals, the genesis and the different forms of CBs are presented. The European legal framework is then outlined. The relevant rules of the Frankfurt Stock Exchange (FWB) serve as an example.
Ni, Xiaoran, ‘Litigating Crashes? Insights from Security Class Actions’ (SSRN Scholarly Paper No ID 3591634, 1 May 2020) Abstract: Investors tend to litigate large stock price declines, i.e., file ‘stock-drop lawsuits’. Enterprising plaintiffs’ attorneys seek to take advantage of the stock market declines that have accompanied the COVID-19 outbreak in early 2020 by filing class action lawsuits. However, it is less clear whether the ex-ante threat of security class actions can deter stock price crashes. To address this question, we exploit the 1999 ruling of the Ninth Circuit Court of Appeals that discourages security class actions as a quasi-exogenous shock, and find that reducing the threat of security class actions leads to a significant increase in stock price crash risk. This effect is more pronounced for firms faced with higher litigation risk, with worse earnings quality and weaker monitoring from auditors, and is partially driven by decreased timeliness of bad-news disclosure. Our overall findings highlight the importance of security class actions in constraining bad-news hoarding and maintaining market stability.
Nwafor-Orizu, Mmaobi, ‘Can the EBRD’s New 2021-25 Green Economy Transition Approach Enable a Green and Sustainable COVID-19 Recovery: A Transnational Law Outlook’ (SSRN Scholarly Paper No 4123646, 31 May 2021) Abstract: As one of the most proactive and prominent International Financial Institutions (IFI) involved in the battle against climate change, the European Bank for Reconstruction and Development (EBRD) has continued to engage and implement diverse strategies for the promotion of a green and sustainable economy. The Green Economic Transition (GET) approach for 2021-25 also known as ‘GET 2.1’ is a new stratagem of the EBRD which aims to enable a green COVID 19 recovery in countries where the bank operates by facilitating novel policies and procedures for green investments. Generally, the social and economic impacts of the pandemic has increased the need for more innovations in the goal towards the achievement of the net-zero carbon emissions target by 2050. Hence, in the quest for a green and sustainable COVID 19 recovery, the EBRD has devised novel techniques within its GET approach to help economies where it operates attain sound environmental standards in their fight against climate change and the promotion of sustainable development. The aim of this paper is to analyse EBRD’s new GET approach and explore the diverse ways in which it can be utilised in the pathways towards the attainment of a green and sustainable COVID 19 recovery. In so doing, this paper will argue that IFIs and development banks have an undeniable role to play in ensuring the achievement of a green COVID 19 recovery. Furthermore, this paper will argue that EBRD needs to implement more ambitious strategies in its response to the pandemic in order to achieve its 2050 GET target. Essentially, this paper would suggest that transnational law mechanisms would be very useful tools that can be further implemented within EBRD strategies in order enable a more inclusive COVID 19 recovery. By drawing particular focus on both the policy and practice strategies of EBRD new 2021-2025 Green Economy Transition approach, Section Two of this paper will analyse the role of EBRD in promoting SDGs. Building on such analysis, Section Three will introduce the role of transnational law and in so doing, this paper will further explore the ways in which transnational law mechanisms can be implemented within EBRD strategies. Section Four will examine the events provoked by COVID 19, and thus, suggest novel ways in which the EBRD GET approach can enable a green and sustainable COVID 19 recovery. Finally, this paper will conclude by presenting policy proposals as well as useful practical strategies for the implementation of transnational law mechanisms within EBRD new GET approach.
Odinet, Christopher K, ‘Predatory Fintech and the Politics of Banking’ (2021) 106(4) Iowa Law Review 1739–1800 Abstract: With American families living on the financial edge and seeking out high cost loans even before COVID-19, the term financial technology or ‘fintech’ has been used like an incantation aimed at remedying everything that’s wrong with America’s financial system. Scholars and supporters from both the public and private sector proclaim that innovations in financial technology will ‘bank the unbanked’ and open new channels to affordable credit. This exuberance for all things tech in finance has led to a quiet yet aggressive deregulatory agenda, including, as of late, a federal assault via rulemaking on the ability of states to police the cost and privilege of extending credit within their borders. This deregulation and the ethos behind it have made space for growth in high cost, predatory lending that reaches across state lines via websites and smart phones and that is aggressively targeting cash-strapped families. These loans are made using a business model whereby funds are funneled through a group of lightly regulated banks in a way designed to take advantage of federal preemption. Fintech companies rent out and profit from the special legal status of these bank partners, which in turn keeps the bank’s involvement in the shadows. Stripping down fintech’s predatory practices and showing them for what they really are, this Article situates fintech in the context of this country’s longstanding dual banking wars, both between states and the federal government and between consumer advocates and banking regulators. And it points the way forward for scholars and regulators willing to shake off fintech’s hypnotic effect. This means, in the short term, using existing regulatory tools to curtail the dangerous lending identified here, including by taking a more expansive view of what it means for a bank to operate safely and soundly under the law. In the long term, it means having a more comprehensive and national discussion about how we regulate household credit in the digital age, specifically through the convening of a Twenty-First Century Commission on Consumer Finance. The Article explains how and why the time is ripe to do both. As the current pandemic wipes out wages and decimates savings, leaving desperate families turning to predatory fintech finance ever more, the need for reform has never been greater.
Ojo D Delaney, Marianne, ‘Achieving Targeted Aims and Objectives of Fiscal, Monetary, Prudential Policy Responses Post Regulatory Crises and Global Pandemics’ (SSRN Scholarly Paper No ID 3682765, 28 August 2020) Abstract: Even though it has recently been highlighted that the timeline for recovery from the ongoing pandemic is highly uncertain and ‘will depend heavily on the course of the pandemic’, consumer confidence and expectations, also impact the level of consumer spending and the role of providing greater certainty as regards the resumption of economic activity, ultimately, lies with respective governments.What measures could be introduced as incentives to encourage banks to make greater use of macro prudential policy tools and particularly those targeted towards Basel III objectives and tools introduced through the conservative, countercyclical buffers, as well as liquidity (Liquidity Coverage Ratio, Net Stable Funding Ratios) and leverage ratio tools of supervision?How can bank lending be encouraged as a means of achieving the targeted aim of boosting economic activity?As well as addressing the afore mentioned issues, this paper aims to consider the impact of recent Covid-19 regulatory measures on bank activities, incentives and risk taking activities. Further, it aims to explore possibilities whereby Basel III measures, which have been designed to address banking and economic problems during periods of economic downturns could be implemented and taken greater advantage of, more effectively.As the paper will further highlight, innovative approaches are increasingly being embraced and adopted by many businesses who recognize the need to adapt to a changing environment and way of life. Herein lies a role, not only for governments, employees and employers in facilitating speedier resumption of economic activities and a return to economic recovery, but also in ensuring that efforts undertaken by regulatory bodies, as well as central bank and federal regulators, achieve their intended and maximal objectives.
Ojo D Delaney, Marianne, ‘The Year the World Stood Still: Lessons and The Unquantifiable Consequences of the COVID-19 Outbreak, The Social Pandemic’ (2020) 2 Centre for Innovation and Sustainable Development Economic Review_ _Abstract: In its recent March report, two particularly note worthy observations are made in relation to the OECD’s projections and predictions about possible outcomes of the recent COVID-19 outbreak (See Le Figaro, 2020):‘The OECD put forward two main possible scenarios: The first, the basic one, which considers that the epidemic will peak in the first quarter following, and that its distribution in the rest of the world will be relatively contained…’The COVID-19 has not only impacted on a social, unprecedented magnitude as never before seen, with the cancellation of major sports tournaments and events, the deferral of the 2020 Olympics, but also highlights the importance of never under estimating a potentially devastating – and particularly unknown unprecedented unchartered phenomenon.Whilst the magnitude and consequences of the outbreak can certainly not be compensated – at least for many, or even quantified, it is hoped that greater cooperation between global economies, will be fostered in the ongoing efforts to find a solution to address the outbreak. This paper is aimed at contributing to the literature on a topic on which previous literature, at least prior to December 12 2019, practically and literally, in respect of COVID-19, did not exist. Many major economies and global economies have extended shut downs from excluding essential workers, to 80-90% of its citizens being ordered to stay at home. Whilst it is certainly crucial to ensure that the outbreak is contained, it appears that certain economies, given uncertainties associated with the nature, scope of recent developments, are willing to take risks at salvaging their economies. At what stage does a government decide that prevailing restrictive social distancing measures should be relaxed? What are possible mental, long term consequences associated with, and attributable to a protracted economic shut down? What options exist for monetary policy and central banks in particular, given less options available amidst historically low interest rate levels? These constitute some of the questions which this paper aims to address
Othman, Imtiyaz Wizni Aufa binti and Izyan binti Nazim, ‘Modifications to Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966: Protection to Purchaser and Financial Institutions Interests During Covid-19 in Malaysia’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 72–83 Abstract: In containing the spread of Covid-19, the Malaysian government has imposed the Movement Control Order (MCO) starting from March 2020, which led to a halt in the progress of several sectors, including the hire purchase and housing development sectors. Realising several parties’ financial and legal implications due to the MCO, the government has recently enacted new legislation as a temporary measure to curb the issue. The new Covid-19 Act received two-edged feedback from the society as some claimed that the Act is just too late, and the others argued on its efficiency to help the consumers due to its lack of clarity. Thus, the question that this paper seeks to resolve is whether the new Act does protect the interest of the parties involved? To answer this, this paper analyses the modifications made to the existing Hire Purchase Act 1967 and Housing Development (Control and Licensing) Act 1966 by discussing four sub issues, namely (i) whether the relief given in section 23 forms unfair leniency against the owners, (ii) whether section 24 of Covid-19 Act is a necessary clause (iii) whether the Act protects the interest of the housing developers and purchasers because of the existence of Section 37 and (iv) whether the lack of the consequences in the event of contravention and guidelines for application limit the Act’s effectiveness. Literature review methodology is applied to identify the gaps in the modification to the existing law by studying publications and news articles on the matter. By the end of the study, this paper finds that the Covid-19 Act does have the provisions intended to protect consumers but with the absence of specific provisions covering financial institutions. The saving clauses in the said modifications are found to be highly questionable and calls for analysis and amendment. This paper finds critical points within the Covid-19 Act, such as the need to study and amend the saving clauses and improving the clarity and exactness of the provisions.
Packin, Nizan Geslevich, ‘In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19’ [2020] (5) Wisconsin Law Review 1043–1064 Abstract: The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.In an effort to support the economy, the US government passed numerous stimulus acts, which included, among other things, a Paycheck Protection Program (PPP), and the distribution of relief checks to consumers. To effectuate the massive distribution of liquidity on an expedited basis, the government relied on big banks. But instead of prioritizing the public welfare, the banks were focused on their bottom lines and thus did not carry out the true intent of the stimulus. For example, with respect to the PPP, although the Small Business Administration was required to process the loans on a first-come, first-served basis, the banks were not. And absent that requirement, the banks prioritized richer and bigger customers. As a result, women and minority-owned small businesses, as well as peripheral area-based small businesses, found themselves facing more barriers to getting loans. Similarly, with respect to the direct distribution of relief checks to consumers, banks prioritized their own interests over those of their customers. For example, in an effort to collect bank debt, banks froze and seized the funds from government relief checks deposited into consumer accounts before the consumers that needed those funds received them. Consequently, various state attorney generals and courts had to intervene, and mandate that the consumers be permitted to use the funds as the government had intended—for necessities like food and shelter.There are several techniques we can employ to modify banks’ ethical behavior and cultural norms. This Essay discusses such methods, which include (i) a top-down regulatory approach; (ii) the creation of market-led initiatives; (iii) an interpretive fix, offered by the judicial system; and (iv) a public criticism and shaming semi-regulatory approach.
Packin, Nizan Geslevich and Srinivas Nippani, ‘Ranking Season: Combating Commercial Banks’ Systemic Discrimination of Consumers’ (2022) 59(1) American Business Law Journal 123–174 Abstract: The recent disbursement of COVID-19 pandemic-related federal relief funds to businesses and individuals under the CARES Act exposed significant problems in the U.S. system of money and payments. U.S. banks’ wealth maximization objectives clashed with the federal government’s goals of diversity, equity, and inclusion (DEI). The discriminatory, self-interested behavior of banks, which essentially served as the federal government’s long arm in these transactions, worsened the pandemic-induced economic crisis for many, especially women and minorities, and intensified racial injustice. The U.S. government’s inability in 2020 to successfully execute its stimulus plan and give all its intended recipients the benefits it had designated due to the role played by banks begs the question: Should U.S. banks be subject to any legal obligations when they help the government execute its fiscal goals? This article argues that U.S. banks should help advance the federal government’s fiscal policy, including the DEI social agenda, especially during critical junctures such as the economic crisis instigated by COVID-19, and proposes an agency theory approach to mandate the implementation of government social policy goals among commercial banks via a CAMELS rating-like system that includes social goals, such as DEI. This DEI rating system would create public consequences for noncomplying banks, including depositors withdrawing their funds from lower-rated banks and redepositing them in top-rated banks, resulting in higher-rated DEI banks overtaking lower-rated banks. This DEI rating system will also provide an incentive for banks to compete for more diversity and inclusion, which would solve many of the systemic discrimination-related issues that led to economic inequality and intensified the 2020–2021 crisis. Lastly, DEI-based scores could help prevent banks from finding themselves on the losing side of the growing public banking movement in the United States, enabling banks to reposition themselves and avoid future radical changes in the banking industry.
Parchimowicz, Katarzyna and Ross Spence, ‘Basel IV Postponed: A Chance to Regulate Shadow Banking?’ [2020] (2) Erasmus Law Review_ _Extract from Introduction: The aim of this study is to explore the significance of the most recent set of changes to the Basel III framework – the so-called Basel IV6 – both in relation to the rise of the SBS and in the context of current coronavirus-related developments. In doing so, we intend to demonstrate that ever more stringent regulation and supervision of the TBS without creating an analogous framework for the SBS is not going to make the financial system more stable. Our contribution will be structured as follows: Section 2 will explain the shadow banking phenomenon, from its origins to the struggle to accurately define it. Section 3 will describe the rise of the SBS by demonstrating that the impact of prudential regulation on profitability has resulted in the exploitation of regulatory arbitrage, leading to new forms of financial innovation. In that context, dichotomy between TBS and SBS and the previous Basel Accords will be discussed. This analysis will provide a crucial benchmark showing why market participants keep shifting their activities towards the less stringently regulated SBS. Section 4 will examine the specific example of Basel IV and the main novelties therein. Basel IV has arguably resulted in further debate, namely that the regulation of the TBS has deepened the resulting imbalance between the TBS and the SBS. However, its implementation has been postponed in order not to additionally burden banks dealing with the current coronavirus crisis. Could it be seen as a chance to correct what was omitted/add the SBS to the picture? Section 5 includes policy recommendations and concludes the discussion.
Peihani, Maziar, ‘From (No) Bail-Outs to Bail-in: A Comparative Assessment of Canada’s Bank Recapitalization Regime’ (SSRN Scholarly Paper ID 3850982, 21 May 2021) Abstract: Bail-in within resolution has been at the forefront of the regulatory agenda to end too-big-to fail. The article examines Canada’s recently introduced bail-in framework through a comparative lens, in the backdrop of the COVID-19 pandemic. It argues that Canada embraces a less stringent approach than its international counterparts in applying the bail-in tool and permitting use of public funds. This flexible approach is preferable as it can help the stabilization of the bailed-in bank by facilitating its access to liquidity. Yet, the administration of the bail-in tool will not be without difficulties in Canada. The extensive administrative discretion and opaqueness embedded in the regime come at the expense of rule of law and creditor protection. Further challenges arise from the country’s highly concentrated financial system and interdependencies among the large banks which can also result in a reluctance to turn to bail-in if systemic solvency concerns are present.
Peihani, Maziar, ‘Regulation of Cyber Risk in the Banking Sector: A Canadian Case Study’ (SSRN Scholarly Paper ID 3880115, 4 July 2021) Abstract: Cyber risk is one of the greatest threats facing any modern financial system, a result of increasing dependence on technology and the appeal of troves of personal data to well-equipped hackers. This article examines the governance of cyber risk in the Canadian banking system in the backdrop of the COVID-19 Crisis which has led to a surge in cyber attacks. It argues that the existing operational risk framework, developed by the Basel Accords, is unfit to handle the unique challenges posed by cyber risk. Cyber incidents are unlike traditional operational disruptions in both their dynamism and impact, and are not adequately captured by backward-looking proxies, such as historical losses. There is also a mismatch between the traditional risk-based supervision, which relies on annual risk rating of banks, and the quickly changing cyber profile of regulated entities. The article calls for a paradigm shift in banking regulation such that cyber resilience is set as an explicit regulatory objective for both individual firms and the system as a whole. It outlines a number of strategies which can help banks and regulators navigate and adapt to the ever-changing cyber landscape.
Pejović, Aleksandar-Andrija, ‘“Would Money Make a Difference?”: How Effective can the Rule-Of-Law-Based Protection of Financial Interests in the EU Structural and Enlargement Policy Be?’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 1021–1048 Abstract: In recent years, the rule of law and, especially, its ‘proper’ implementation has become one of the most debated topics in Europe in recent years. The ‘Big Bang Enlargement’ marked the beginning of dilemmas whether the new EU Member States fulfil the necessary rule of law criteria and opened the way for divergent views on how to implement TEU Article 2 values in practice. Furthermore, constant problems and difficulty of the candidate countries to fulfil the necessary rule of law criteria added to the complexity of the problem. In turn, the European institutions have tried to introduce a series of mechanisms and procedures to improve the oversight and make the states follow the rules - starting from the famous Treaty on the European Union (TEU) Article 7, the Rule of Law Mechanism, annual reports on the rule of law and the most recent Conditionality Regulation. The Conditionality Regulation was finally adopted in December 2020 after much discussion and opposition from certain EU Member States. It calls for the suspension of payments, commitments and disbursement of instalments, and a reduction of funding in the cases of general deficiencies with the rule of law. On the other hand, similar provisions were laid out in the February 2020 enlargement negotiation methodology specifying that in the cases of no progress, imbalance of the overall negotiations or regression, the scope and intensity of pre-accession assistance can be adjusted downward thus descaling financial assistance to candidate countries. The similarities between the two mechanisms, one for the Member States, the other for candidate countries shows an increased sharing of experiences and approaches to dealing with possible deficiencies or breaches of the rule of law through economic sanctioning, in order to resolve challenges to the unity of the European union. The Covid-19 pandemic and the crisis it has provoked on many fronts has turned the attention of the Member States (i.e. the Council) away from the long running problematic issues. Consequently, the procedures against Poland and Hungary based on the Rule of Law Mechanism have slowed down or become fully stalled, while certain measures taken up by some European states have created concerns about the limitations of human rights and liberties. This paper, therefore, analyses the efforts the EU is making in protecting the rule of law in its Member States and the candidate countries. It also analyses the new focus of the EU in the financial area where it has started to develop novel mechanisms that would affect one of the most influential EU tools – the funding of member and candidate countries through its structural and enlargement policy. Finally, it attempts to determine and provide conclusions on the efficiency of new instruments with better regulated criteria and timing of activities will be and how much they would affect the EU and its current and future member states.
Pekmezovic, Alma, ‘COVID-19 Impacts on Financial Market Integration in the ASEAN: Regional Trends, Challenges and Future Outlook’ (2020) 37(8) Company and Securities Law Journal 565–574 Abstract: An important aspect of regional economic integration is the integration of financial markets. Prior to the outbreak of COVID-19, financial market integration in the Association of Southeast Asian Nations (ASEAN) region was expected to accelerate. ASEAN Member States along with other countries in the Asia-Pacific region, including Australia and New Zealand, took active steps to create an enabling environment for promoting the integration of financial markets and improving banking liberalisation. The launch of the ASEAN Economic Community represented a watershed moment in this process. However, as countries respond to the current global economic slowdown, they are likely to re-evaluate region-level co-operation on matters of financial and economic policy. To date, ASEAN economic integration has not produced the supranational supervisory structures and centralised institutions associated with integration in other regional trading blocs such as the European Union. This remains a substantial impediment to continued financial market integration, especially in the context of the current COVID-19 crisis.
Perera, Ángel Carrasco, ‘Bank Loans under Spanish State Guarantee in Times of Covid: Clawback of Payments Made to Financial Lenders after the Commencement of Insolvency Proceedings’ (2023) 38(11) Journal of International Banking Law & Regulation 421-425 Abstract: Three financial institutions granted separate loans to refinance unpaid debt owed by almost the same insolvent debtor. The new financing was guaranteed by the Spanish state, drawing to a line of credit exceptionally open in times of Covid-19. The financial lenders had old debts paid off with the new money. Upon subsequent insolvency proceedings of the debtor, a Companies Court has held that the payments made with the money from the new finance must be void, because the money received by the debtor and guaranteed by the state would have to have been distributed pari passu among the rest of the argues why this is so.
Persaud, Avinash, ‘COVID-19: Did the Banking Reforms That Followed the Last Crisis Make a Difference?’ (2020) 35(8) Butterworths Journal of International Banking & Financial Law 515–516 Abstract: Discusses why so far the coronavirus pandemic has not caused a major financial crisis, whether the 2008 financial crisis resulted in better regulation of important banks which helped to avert another crisis, or the relationship between financial boom and subsequent crash was missing.
Picton, Thomas and Zena Kukreja, ‘Beyond COVID-19: Current Developments in Public and Private UK Securitisations’ (2020) 35(8) Butterworths Journal of International Banking & Financial Law 564–567 Abstract: Discusses the securitisation of consumer debts, implications of the payment holidays which were offered in the coronavirus pandemic, and measures implemented by issuers to protect their interests.
Pooe, TK, ‘Ending 1990s Law and Development Ideas, Paradox of Path Dependence in Economic Planning Institutions Under Covid-19: SA’s Response’ (2024) Law and Development Review (advance article, published online 6 March 2024) Abstract: This paper argues that the COVID-19 pandemic can and should be understood as a form of creative destruction (Schumpeter’s gale), at a hyper level owing to its biological/medical dimension. Therefore, the critical response to such a hyper force is to rethink how institutions administer Public Policy in South Africa (Path Dependency), most importantly economic development planning institutions and Covid-19 responses, in the form of ‘The Economic Reconstruction and Recovery Plan’. It’s the contention of this paper that the reason why Covid-19 continues to impact the South African government’s economic planning ethos is anchored in its developmental orientation, particularly how constitutional legalism has impaired economic development planning. This could impart be due to the unaddressed influences of the initial waves of Law and Development post-1994. The South African experience with the initial waves of Law and Development were muted owing to the problematic nature of the 1994 transition which sought peace at all costs without necessary addressing substantive economic development reform considerations. Therefore, using the policy experiences of Covid-19 and Lee’s, General Theory of Law and Development, particularly the aspects of Development and State Capacity and Political Will, a revision of the South African Constitution will be called on, principally chapter’s 2 and 6 (Bill of Rights) and (Province).
Puaschunder, Julia and Martin Gelter, ‘The Law, Economics, and Governance of Generation Covid-19 Long-Haul’ 19(1) Indiana Health Law Review 47–125 Abstract: The SARS-CoV-2 novel coronavirus is an external shock to all societies with lasting impacts that have changed individual, political, and corporate decisions profoundly. Increasing evidence reveals that an estimated 10-50% of those previously infected with COVID-19 face a longer-term or long-term health impact and/or chronic debilitation that in many cases comes and goes in waves. This phenomenon has already been referred to as a pandemic within the pandemic. The broad-based and long-term impact of COVID Long Haulers have also holds the potential to change our world and modern society, lasting through the following three outlined speculative trends: (1) The coronavirus crisis has widened novel and already existing inequalities, of which the rather surprising finance performance versus real economy liquidity constraint gap led to unequal emotional and sociopsychological crisis fallout propensities. Corporate governance and political economy power dynamics may shift in the eye of Long Haulers’ relation to work and a healthy, productive environment. Employers will likely face pressure to create a safe and secure working environment but also have rising tort liability risks that may be mitigated by hiring health consulting agents. Proactive care for maintaining a healthy workforce and the overall long-term well-being of employees, including preventive care in teams, will become an essential corporate feature to attract qualified labor, whose bargaining power increased in the eye of labor shortages in direct contact industries and positions. (2) Long Haulers may initiate an artificial intelligence revolution of self-monitoring and constant health status tracking, but also democratization of healthcare information. Artificial intelligence, robotics, and big data offer essential complements to fill in for long-haul attention and productivity deficits that may occur in waves. Long Haulers have already found themselves in online self-help groups – such as Survivor Corps – for quick and unbureaucratic information exchange about an emerging group phenomenon. Social online media platforms served as an easy remedy during a time when a surge of severe COVID cases precluded COVID hospitalization. Nowadays, COVID long-haul patients have become – more than ever before – citizen scientists that bundle decentralized information on their health status and potential remedies in order to inform the medical profession about newly emerging trends. The rise in medical self-help and mutual support will have profound implications for the regulation of the medical profession and will likely stretch the medical remedy spectrum and boost alternative medicine. In the online exchange of sensitive information about one’s health status, citizen scientists are also particularly vulnerable in terms of their privacy, potentially even more susceptible to online marketing campaigns under medically impaired conditions, but also because of their sensitive information having been publicly disclosed online over time. (3) As historical precedents show, Generation COVID Long-Haul partially being recognized as a disability may result in increased pressures to reform social, healthcare, and retirement systems. Given waves of debilitation, the analysis of macroeconomic aggregates will have to change in order to reflect a more diversified and temporal view of social preferences. Future economic policy research may take inspiration from the legal concept of disparate impact. Behavioral insights on how to navigate the world with attention deficits and uncertainty may focus on developing an idea of the economic benefits of rest by incorporating preferences for minimalism in a turbulent world longing for recovery.
Rachmawati, Irma and Mohd Zakhiri Md Nor, ‘Legal and Shariah Framework of Crowdfunding in Batling Covid-19: Some Observation in Indonesia’ (2021) 6(2) BiLD Law Journal 1–9 Abstract: Crowdfunding provides a group with an alternative investment option. Its existence makes it simple for people in an organisation who have limited funds. Especially for those who have been afflicted by the COVID 19 pandemic. Crowdfunding can be an alternative financing method for Indonesian small and medium-sized businesses. The purpose of this study is to investigate the legal and Shariah framework for crowdfunding in Indonesia. This paper also investigates how Crowdfunding can benefit the Micro, Small, and Medium Enterprises (MSMEs) sectors during Covid-19 in Indonesia. The report employs qualitative legal research as its methodology. A descriptive and analytical process is used to analyse the data. This paper found that Crowdfunding benefits the MSMEs sector during the Covid-19 period. Some models of crowdfunding are based on the Shariah principles of wakaf, zakat, waqf, and sadaqah. There is no clear law governing online crowdfunding. Online crowdfunding is also vulnerable to fraud, hijacking, and illegal activity. As such, it is critical to improve Indonesia’s legal and regulatory framework for crowdfunding activities.
Rahman Rafid, Raihan, ‘E-Commerce Bubble during the Pandemic and Post-COVID Sustainability in Bangladesh: Quest for a Facilitating Legal Environment’ (Paper presented at South Asian Institute of Advanced Legal and Human Rights Studies (UMSAILS)-UAP International Virtual Conference on the Impact of Covid -19 Pandemic in the Legal Field 2021) 2021 Abstract: The COVID-19 pandemic has significantly changed the commercial trajectory of world business, especially for Business to Consumer (B2C) transactions. Social distancing, lockdown and other measures in response to the COVID- 19 pandemic have led urban consumers to lean more towards e-commerce. In Bangladesh, e-commerce witnessed an exponential growth of 166% in 2020 compared to its usual 50% growth per annum. However, the country is yet to introduce any special law for regulating the e-commerce sector. The legal environment is primarily premised on the laws designed for traditional business transactions. Hence, in the absence of a stable legal environment, the pandemic induced e-commerce bubble and associated treachery may shatter this potential sector prematurely. Against this backdrop, this research paper reviews and recommends laws, rulemaking, capacity building, enforcement, and establishing central regulatory watchdog to minimize regulatory gaps, ensure policy consistency, and streamline compliance obligations to meet specific challenges arising from e-commerce. Following a socio-legal research approach, this paper will evaluate the existing regulatory mechanism in Bangladesh for three priority areas: (i) cyber security, (ii) digital privacy and, (iii) protection of consumer rights. Relevant legal texts from will be considered for this purpose and recommendations based on existing regulation approach applied in the other nations would assist policymakers in developing a sustainable e-commerce friendly legal environment in post-COVID Bangladesh.
Rahmanto, Gumelar Taufik Yugo and Arman Nefi, ‘Policy for Widening the Budget Deficit for Handling Covid-19 Reviewed from a Responsive Legal Perspective’ (2024) 11(6) International Journal of Multicultural and Multireligious Understanding 461–479 Abstract: The writing of this article aims to analyze whether the policy of widening the budget deficit for handling COVID-19 is in accordance with the perspective of responsive law. The Corona Virus Disease 2019 (COVID-19) pandemic has caused a multidimensional crisis, the impact of which is felt throughout the world, including Indonesia. The extraordinary impact of COVID-19 conditions occurs in the humanitarian sector and the economic sector. The government took swift measures, through Perpu 1/2020, which specified that the budget deficit could exceed 3%. The research method used is doctrinal legal research, with research typology using descriptive-analytical. The research material uses secondary data, which includes primary, secondary, and tertiary legal materials. The writing of this article will use literature studies whose results are analyzed qualitatively. Through this research, it was found that the policy of widening the budget deficit has provided fiscal space for the government to maneuver in order to finance the handling of COVID-19, which is focused on three areas, namely Health, Social Safety Net, and Economic Recovery. This responsive policy has provided legal legitimacy that allows the Government to achieve its goal of protecting the public from the dangers of the COVID-19 pandemic. The policy of widening the budget deficit has also saved lives and restored the people’s economy.
Ram, Aniruddha, Sarbha Bhaskar and Adarsh Pandey, ‘An Assessment of Ethical Social and Legal Impact of Covid 19 Pandemic’ in Deepika Saini and Prabhat Kumar Singh (eds), Biotechnology and Covid-19 Pandemic: Role of Biotechnology in Covid Vaccine Development (ABS Books, 2022) 224–230 Abstract: While the immediate focus of the government was to safeguard the economy and human lives, governments must now ramp up their efforts to tackle long-term problems. In the worst hours of the crisis, timely government assistance helped protect working people and companies; public spending is what kept our economy from collapsing. It not only weathered the storm, but it also served as a reminder of the need of counter-cyclical fiscal policy, especially during a severe economic slump. To conclude, all stakeholders should work for continuous and sustained financial assistance as long as COVID-19 remains a danger.
Rennie, Ellie and Stacey Steele, ‘Privacy and Emergency Payments in a Pandemic: How to Think about Privacy and a Central Bank Digital Currency’ 3(1) Law, Technology and Humans 6–17 Abstract: The economic fallout of the COVID-19 pandemic prompted many governments to provide emergency payments to citizens. These one-off and recurring payments revealed the shortcomings of existing financial infrastructures even as electronic payments replaced cash for everyday expenses. Delays in getting government payments to citizens in many countries focused attention on the potential benefits of central bank digital currencies (CBDCs). This article outlines the social and economic policy choices involved in designing a CBDC and the consequences of these choices for privacy. Priorities including preventing the criminal abuse of the financial system, geopolitical concerns and private sector innovation compete with, and potentially undermine, privacy. We identify and categorize four key privacy risks as ‘losses’ associated with current CBDC models: loss of anonymity, loss of liberty, loss of individual control, and loss of regulatory control.
Reyes-Simpe, Jaime, ‘On Freedom in Pandemic’ (SSRN Scholarly Paper No 4320646, 30 December 2022) Abstract: Pandemic times define the value of freedom in society. Not only uncertainty and fear are faced by the people, but also the abusive control measures that governments, especially those with great concentration of power, impose to achieve some shadow targets in the name of saving lives. However, doing so entails costs that constrain unlimited control, such as the negative economic outcomes in the long run, the rising probabilities of protests, and the cost to prevent them. We develop a model to estimate an optimal control level that governments should set based on their beliefs of how much their society values freedom. We test the macro-efficiency of the model using data from the COVID-19 pandemic, and its micro-efficiency with the Chinese case, in particular, Xi Jinping’s ‘ZeroCovid’ policy. We argue that the policy set abusive control measures since the restriction of freedom of speech and research of non-governmental scientists, that can offer more accurate information about the pandemic, disincentivized the civilian population, especially those that depend on micro and mid-size companies, to protest against the measures imposed. Our model suggests that governments with better economic outputs, given a pandemic, set medium control measures due to the recognition of a higher percentage of people subject to protest for their freedom, jointly with a reasonable cost for preventing damage caused.
Rogowska, Beata, ‘Economic Conditions of Legal Regulations during the Covid-19 Pandemic’ (2022) 156 Scientific Papers of Silesian University of Technology Organization and Management Series 407–423 Abstract: Purpose: The purpose is to present the importance of law for the proper functioning of the state economy within an international organization during the Covid-19 pandemic. Design/methodology/approach: analysis of the legal regulations, comparative studies. Findings: Distinguishing the positive and negative aspects of the law’s impact during the pandemic crisis. Originality/value: Linking the legal and economic dimensions at the two levels of the state and the European Union (EU) integration grouping. Analysis of selected regulations of economic life from the perspective of law and economics.
Rose, Paul, ‘Toward a National Resilience Fund’ [2021] Northwestern University Law Review Online (forthcoming) Jurisdiction: USA
Abstract: The economic impact of COVID-19 has been catastrophic for state and local governments. By Federal Reserve estimates, income and sales revenues will have declined by over $50 billion in fiscal year 2020 and may decline by as much as $137 billion in 2021. Pandemics are, of course, not the only catastrophic risks we may face in coming years. Financial crises, natural disasters, social justice crises, and climate change-related catastrophes all present serious risks, and often have a compounding and exacerbating effect on one another. These risks are also especially salient for state and local governments, which are at the forefront of crisis response. The legitimacy of government is tested and measured by its ability to respond to these challenges, but existing state and local financial frameworks have proven too thin and brittle to absorb shocks like COVID-19 or the Financial Crisis. This commentary describes how a national resilience fund, with subaccounts created for each state and territory, would strengthen the ability of state and local governments to respond to crises that are likely to arise in the coming years. A national resilience fund could be based on a familiar, flexible structure that has been in use for decades: the unemployment trust fund. Such a structure would help insulate the resilience fund from local political pressures, yet would have the financial strength to help state and local governments absorb the costs associated with severe crises such as pandemics and natural disasters, thereby helping to preserve governmental legitimacy in times of severe social stress.
Rostami, Vali and Hamid Ghahvechian, ‘An Analytical Exploration of the Legal Dimensions Governing the Financial Measures of the Government (Sovereignty) in Times of Crisis with Emphasis on the Covid-19 Pandemic’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Jurisdiction: Iran
Abstract: The spread of Covid 19 in the world has created opportunities to re-defend the theory of government and authority in social life, and yet the role and function of government varies according to the quality of social life and its actions will create financial burden. In this article, the legal aspects of government financial measures in times of crisis have been examined with emphasis on the Covid pandemic. Explaining and analyzing the legal aspects governing government actions requires pursuing this issue in constitutional law and public finance law, and choosing different scenarios in this regard (especially according to the theory of “necessity”) will have a different response in establishing laws and regulations. Also in this article, two general and exceptional systems governing government expenditures have been examined due to the occurrence of the crisis.
Rudy and Chaidir Ali, ‘Public Health or Economic Recovery: Regulatory Choice Against COVID-19 in Indonesia’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 43–54 Abstract: Indonesia has made a number of efforts to contain the spread of COVID-19 occurring since March 2020 using both regulatory control and economic stimulant. However, the choice of regulatory and economic policy options to mitigate COVID-19 is not easy for Indonesia, as the strict regulatory control will burden the national economy, while the more loose regulatory control will greatly impact the public health control. Hence. Indonesia is struggling to set the level of regulatory strictness to mitigate the trade-off between the pandemic control of public health and the economic impacts.
Rusydianaa, Aam Slamet, Aisyah As-Salafiyah and Muhammad Isa Mustafa, ‘Covid-19, Maqasid Sharia & Islamic Economic Law: VOSviewer Application’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 47–58 Abstract: This study aims to determine the map of the development of research on the theme of Islamic economic law from the point of view of the maqashid sharia in the Covid-19 pandemic published by indexed journals. The study was conducted in November 2020. The data analyzed were more than 50 published papers. The object of study is a published journal published in 2020. The data is then processed and analyzed using the VOSviewer application program to determine the bibliometric mapping of the development of Islamic economic law research from the perspective of maqashid sharia in the Covid-19 pandemic. The results showed that the research development map of this theme was divided into 6 clusters. Cluster 1 consists of 10 topics, cluster 2 consists of 10 topics, cluster 3 consists of 8 topics, cluster 4 consists of 7 topics, cluster 5 consists of 6 topics and cluster 6 consists of 4 topics. The findings from this study indicate that the sharia economy and its instruments and products are in accordance with the maqashid sharia, all the aspect of maqashid sharia must be guarded by all parties involved in Islamic economic activities, especially the government in charge of managing state finances while maintaining a balance of prices and can be applied and this concept even become a solution during the Covid-19 pandemic, where the objectives of each sharia economic instrument become more focused and their usefulness in this field can be optimized. All economic instruments in Islam that are based on maqashid sharia are expected to be a solution that reduces the impact of the economic crisis due to the Covid-19 pandemic and can continue to be utilized in a sustainable manner.
Sabatino, Gianmatteo, ‘COVID-19 and Freedom to Conduct a Business’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 225–270 Abstract: The present survey is meant to offer a general overview concerning the different approach that courts in several jurisdictions on a global scale adopted to deal with the potential and actual conflicts between Covid-19 related emergency measures (justified by public health interests) and the freedom to conduct a business. Such conflicts encompass either situations where business activities were closed down or limited due to the pandemic or situations in which closed businesses requested compensation or questioned the appropriateness of the relief schemes designed by public authorities. The relation between public health and economic freedoms in times of pandemic is a complex one, which is also deeply affected by how the interactions between the principles of the economic constitutions are shaped and function in different legal systems. The issue, therefore, necessarily requires the assessment of the critical connection between law and economic policy. The analysis carried out in the survey mainly revolves around case law and places great emphasis on the use of general legal principles such as proportionality, reasonableness, precaution, and non-discrimination to carry out a balancing of conflicting rights and interests. At the same time, given the factual complexity of the concrete situations triggering such conflicts, the analysis also highlights how the specific features of the ‘legal emergency’, such as the declaration of a state of emergency or the reliance on scientific evidence concerning the evolution of the pandemic, may affect the courts’ reasoning. The goal of the survey is to provide a general comparative landscape of the different approaches chosen by courts to deal with some of the economic consequences of the pandemic.
Sabirin, Ahmad et al, ‘Green Economy as a Law for the Economic Recovery Post Covid-19 Amidst the Increasing Cross-Border E-Commerce in Indonesia’ (3rd International Conference on Law Reform, 2022) 25–42 Abstract: The development of information technology pushed the economic ecosystem toward digital. The convenience provided in online shopping through e-commerce has increased the number of trades in Indonesia. Currently, economic activities are not only carried out domestically but also occur in non-domestic trade. This digitalization brings high competitiveness to domestic and non-domestic business actors. This paper aims to convey that the Green Economy policy is a solution to increase the acceleration of economic recovery in Indonesia post Covid-19 pandemic. The paper is used for normative juridical research. According to Indonesia’s economic records, online trade transactions grew in a positive direction during the Covid-19 pandemic, reaching 70 percent throughout 2020 and in 2022, Lazada reported 73% customers in Southeast Asia see online shopping as a part of their daily life. If we see, although there is an increase, it is not significant. On this occasion, regulatory reforms are needed in order to help accelerate the Indonesian digital economy post the pandemic. However, this law is deemed insufficient so regulations and/or legal norms that specifically regulate digital trade are needed, especially regarding cross-border e-commerce. Besides, trade activities are closely related to monopolistic and unfair competition, so it is necessary to form binding agreements both within Indonesia and international countries to prevent any acts of abuse of international trade progress. In achieving this goal, it is not only the role of the government but also necessary steps such as the establishment of green regulation, green government, and green e-commerce.
Salah, Omar, ‘Netherlands: Economic Conditions: COVID-19’ (2020) 35(7) Journal of International Banking Law & Regulation N83–N85 Abstract: Details measures by the Netherlands’ Government to address the impact of the coronavirus pandemic on the economy, including provisions allowing companies to defer the payment of taxes, temporary reductions on the interest on overdue tax, and a guarantee enterprise facility which guarantees 50% of bank loans to corporate borrowers.
Saurugger, Sabine and Fabien Terpan, ‘Integration through (Case) Law in the Context of the Euro Area and Covid-19 Crises: Courts and Monetary Answers to Crises’ (2020) 42(8) Journal of European Integration 1161–1176 Abstract: The aim of this article is to analyse whether, why and with which consequences courts support or on the contrary oppose decisions taken by non-majoritarian institutions and governments, and hence constrain or, on the contrary, enhance the integration process in times of crises. Focusing on judicial decisions on the subject of the European Central Bank’s (ECB) monetary policy by the Court of Justice of the EU (CJEU) and the German Federal Constitutional Court (FCC) during the Euro area and the Covid-19 crises, the article shows that during the Euro area crisis, the European judicial system had an enhancing effect on the ECB’s monetary policy; on the contrary, it has had a constraining effect during the Covid-19 crisis. Four different institutionalist explanations are put forward, relating to: the severity of the crisis; the timing of the judgments; the legal framing of the judgments; the functioning of the judicial system.
Schillig, Michael, ‘Banking and Finance after COVID-19’ (2021) 32(1) King’s Law Journal 49–59
Schillig, Michael, ‘EU Bank Insolvency Law Harmonization: What Next?’ (SSRN Scholarly Paper No ID 3678723, 21 April 2020) Abstract: After the COVID-19 crisis has subsided, the (further) harmonization of bank insolvency law will again be high on the agenda of EU regulators and policy makers. On the basis of an analysis of the status quo pain points, the paper advocates the extension of the BRRD resolution regime to all bank failures, regardless of their systemic relevance. This could be achieved by removing the public interest requirement as part of the resolution trigger. The ensuing consolidation would significantly reduce complexity and enhance the transparency and legitimacy of the EU crisis management framework.
Schillig, Michael, ‘The Too-Big-To-Fail Problem and the Blockchain Solution’ (SSRN Scholarly Paper No ID 3680759, 25 August 2020) Abstract: The paper seeks to ascertain whether and to what extent blockchain technology may contribute to solving the politically and socially intractable problems of effectively resolving distressed TBTF financial institutions. It revisits the TBTF problem in the light of the Global Financial Crisis and the COVID-19 crisis and provides an overview of the constantly evolving DLT/blockchain ecosystem. It further seeks to address the main arguments commonly advanced by blockchain sceptics/opponents against the more widespread adoption of crypto-assets. Given blockchain’s capacity for decentralization, transparency and automation, the technology seems particularly well suited for tackling TBTF. On that basis, the paper discusses the potential impact of blockchain technology on (TBTF) bank resolution in three possible scenarios. Gradual adoption over the next five years may significantly improve the resolution process primarily through enhanced transparency of the blockchain-recorded history of assets and transactions. Over the next decade, a ‘smart securities world’ may emerge where bail-in could be automated and systemically important assets and liabilities resolved through distributed financial market infrastructures (dFMIs). The final scenario, with a 20-year horizon, is a fiat cryptocurrency in a reformed financial system where banking panics are eradicated. These scenarios are speculation. However, the basic technological building blocks are already available today and with improved scalability, more reliable smart contract execution and widespread adoption over time they could help to significantly improve the resolvability of TBTF institutions.
Schmidt-Jessa, Katarzyna, ‘The Impact of COVID-19 on Digital-Only Banks: Are They Winners or Losers?’ (2023) 24(3) Journal of Banking Regulation 310–320 Abstract: The main objective of this paper is to determine the impact of the COVID-19 pandemic on the operations of digital-only banks. In order to achieve the main objective, two methods have been used. The first method is a strategic analysis, and the second method is a financial analysis of the digital-only banks covering two periods, that is, before the emergence of the COVID-19 pandemic (2018–2019) and during the coronavirus pandemic (2020). The strategic analysis of digital-only banks has shown that they have many weaknesses, as well as the fact that they face numerous threats, which are due to the age of fintech banks and competition from traditional banks creating and developing mobile and Internet banking. Preliminary analyses conducted for digital-only banks indicate that most of them generated losses, and these losses were already at the operating level. The return on assets and return on equity ratios showed a slight improvement in 2020, and in most cases the interest income generated was higher than the interest expenses.
Schweigl, Johan, ‘ECB’s Pandemic Emergency Purchase Programme from Legal Perspective’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 61–75 Abstract: Following the unconventional monetary policy tools of the last decade, ECB introduced a special monetary policy response to the COVID 19 pandemic, which occurred as a global challenge in early 2020. Aside from the measures aimed at providing ample liquidity, such as the targeted longer-term refinancing operations (TLTROs) and the pandemic emergency longer-term refinancing operations (PELTROs), collateral easing and the ongoing asset purchase programme (APP), ECB designed a special non-standard monetary policy measure, the Pandemic emergency purchase programme (PEPP). This new programme is of temporary nature and targets both private and public securities. Given the fact that some of the previous ECB’s unconventional programmes (OMT, PSPP) were challenged before the Court of Justice of the EU, one can expect the PEPP to be subject to judicial review as well. In this chapter, the author focused on the legal aspects of the PEPP. He outlined the core requirements arising from EU primary law and from the CJEU case law and considered compliance of PEPP with the EU law.
Seatzu, Francesco, ‘On the Legitimacy and Effectivity of the World Bank and Its Pandenic Emergency Financing Facility (“PEF”) at the Time of the Covid-19 Outbreak’ (2021) 18(3) International Organizations Law Review 423–447 Abstract: Pandemic financing has in the current climate of disruption and turmoil of an ongoing global pandemic become the most highly debated and controversial issue within the field of international public health law and policy. From the perspective of international public health law and policy, a precondition for success is that financial resources and funds are employed in an effective manner. Whether the International Bank for Reconstruction and Development (‘World Bank’ or ‘WB’) and the Pandemic Emergency Financing Facility (‘PEF’) – a financing mechanism housed at the WB – may be perceived as effective public health players shall be established by referring to their mandates, their inherent capacity for enhancing accepted global legal standards and rules on public health and their funding methods and practices. After the affirmation and consolidation of its role in the public health sector in the early 1990s, the WB has rapidly accredited itself as the most active intergovernmental institution dealing with pandemic and epidemic financing. Its direct involvement in public health trust funds, such as the Avian Flu Trust Fund Facility and the Health Emergency Preparedness and Response Multi-Donor Fund (the HEPRF), and its lending practices and internal policies and procedures were of crucial significance in this respect. Considering that acceptance of international institutions, including international financial institutions, has always been conditioned by their acknowledgment as legally legitimate, legitimacy is regarded as closely connected to effectiveness. The criteria for establishing legitimacy in relation to international financial institutions are increasingly, amongst others, the respect and promotion of rule of law standards in the recipient states. From this perspective, the WB’s functional and management structures, but not the PEF’s structures and management, have made noteworthy progress, and notwithstanding some deficiencies and peculiarities they present several elements of legitimate decision-making.
Seelye, Nancy and Paul Ziegler, ‘Impacts of COVID-19 on Banking’ (SSRN Scholarly Paper No 3645556, 9 July 2020) Abstract: COVID-19 has had major impacts for banking, with the United States government making various efforts to shore up the financial system. These have included temporary and permanent rule changes, easing Capital requirements in an effort to spur lending and maintain bank solvency. Using publicly available data on bank holdings, we constructed tests for the changes in lending and allocation for pending loan loss. Our study finds that there has been a significant increase in loan loss reserves, yet the ratio of these reserves to total lending is not significant. This work will be extended with 2020-Q2 data when it becomes available.
Shelby, Cary Martin, ‘Profiting From Our Pain: Privileged Access to Social Impact Investing’ (2020) 109 California Law Review (forthcoming) Abstract: Social impacting investing has become the latest trend to permeate the financial markets. With massive anticipated funding gaps for sustainable development goals, and a millennial driven thirst for doing good while doing well, this trend is likely to continue in the coming decades. This burgeoning industry is poised to experience yet an additional boost, since it provides an alternative mechanism for private actors to ‘profit from our pain’ particularly in the wake of the COVID-19 pandemic and the Black Lives Matters movement. As to be expected, the law has not sufficiently adapted to this new wave of innovation as regulatory concerns have arisen such as the extent to which impact should be measured and disclosed. Even with this emerging focus, limited attention has been paid to whether the public/private divide under the federal securities laws has contributed to these harms. This Article seeks to fill this scholarly gap by exploring the extent to which the public/private divide under the federal securities laws induces reductions to the net social benefits generated by social impact investments. While social impact investing has the highest potential for impact along the continuum of socially conscious strategies, they largely operate as exempt entities due to the need for regulatory flexibilities such as the power to invest in illiquid assets. As a result, retail investors, which encompass all members of the general public, are restricted from accessing these privately held vehicles due to investor protection concerns. This serves to exclude affected community members as investors, who are the targeted beneficiaries of these schemes, while limiting transparency which would enable the general public as well as policy makers to make assessments about the extent to which these schemes are maximizing net social welfare. This is particularly problematic given the potential for such investments to generate unaccounted for negative externalities which can occur for example when seemingly clean energy technologies inadvertently destroy surrounding environments or habitats. Solely relying on privately ordered solutions can leave costly loopholes given that they are completely voluntary and lack standardization. Innovative regulatory solutions that reconceptualize antiquated notions of publicness may best address these harms. This Article therefore concludes with a novel proposal which seeks to combine existing indicators of ‘publicness’ and ‘privateness’ while perhaps creating new measures. This could be effectuated through the creation of an entirely new series of exemptions entitled the ‘Social Impact Exemptions’ that would appear under the Securities Act of 1933 and the Investment Company Act of 1940. They would effectively recalibrate existing rules related to access and disclosure, while possibly creating new frameworks for accountability and management structure.
Shen, Wei, Carrie Shu Shang and Li Fang, ‘COVID-19 Populism Challenges and China’s Financial Law Responses: Three Emerging Case Scenarios’ (2023) 2(1) Journal of Central Banking Law and Institutions_ _Abstract: China’s increasing engagement in international governance order has significant ramifications in international rule-making and institutional build-up. The outbreak of COVID-19 has elevated China’s significance. This article presents a new-perspective analysis of China’s growing influence by focusing on two case scenarios: championship of financial multilateralism and an emerging digital currency landscape. We argue that China’s status as a rising power leads it to advocate for international rules, standards and institutions in a de-Americanized and anti-populist manner.
Shill, Gregory H, ‘Congressional Securities Trading’ (University of Iowa Legal Studies Research Paper No 2020–11, 7 April 2020) Abstract: In March 2020, it was revealed that several U.S. Senators had cashed in their stocks after receiving intelligence on COVID-19, sparking both outrage and renewed interest in congressional insider trading. The pandemic trades exposed gaps not only in current law, but in scholarship and leading reform proposals. Congressional securities trading (CST) generates unique challenges, such as the risk of policy distortion, as well as more prosaic ones, like the management of benign trading by insiders. The current framework—which centers fiduciary regulation of theft—is poorly matched to both types. Surprisingly, rules from a related context have been overlooked.Drawing on SEC regulations that govern public company insiders, this Essay proposes a taxonomy of CST, situates the Senators’ conduct within it, and develops a novel, comprehensive prescription to manage it. Like Members of Congress, corporate insiders such as CEOs engage in securities trading despite possessing valuable inside information. The system designed to manage these trades provides a model. Specifically, Rule 10b5-1 plans (which disclose trades ex ante) and the short-swing profits rule of Section 16(b) (which disgorges illicit profits ex post) should be adapted to the congressional context. Both devices emphasize the management of legitimate trades rather than the punishment of criminal ones (which is already accomplished by other rules).Rules like these would address policy distortion and unjust self-enrichment by Members of Congress. To reduce those risks further, lawmakers should also be restricted from owning any securities other than U.S. index funds and Treasuries. None of these rules would require new legislation or regulation; all can be adopted by chamber rule. A third risk—the unjust enrichment of third parties—is often conflated with the others, but presents distinct tradeoffs and should be taken up separately. SEC rules provide useful precedent here as well.
Siciliano, Gianfranco and Marco Ventoruzzo, ‘Banning Cassandra from the Market? An Empirical Analysis of Short-Selling Bans during the Covid 19 Crisis’ (Bocconi Legal Studies Research Paper No No 3657375, 14 July 2020) Abstract: During the recent COVID-19 pandemic crisis, stock markets around the world have witnessed an abrupt decline in security prices and an unprecedented increase in security volatility. In response to a week of financial turmoil on the main European stock markets, some market regulators in Europe, including France, Austria, Italy, Spain, Greece, and Belgium, passed temporary short-selling bans in an attempt to stop downward speculative pressures on the equity market and stabilize and maintain investors’ confidence. This paper examines the effects of these short-selling bans on market quality during the recent pandemic caused by the spread of COVID-19. Our results suggest that during the crisis, banned stocks had higher information asymmetry, lower liquidity, and lower abnormal returns compared with non-banned stocks. These findings confirm prior theoretical arguments and empirical evidence in other settings that short-selling bans are not effective in stabilizing financial markets during periods of heightened uncertainty. In contrast, they appear to undermine the policy goals market regulators intended to promote.
Singh, Premjit Singh Kolwant, ‘Analysis on Malaysian Non-Performing Loans and Financing Sale, Effects of Covid-19 and Its Legal and Regulatory Framework’ (2022) 4(2) International Journal of Advanced Research in Economics and Finance 1–11 Abstract: With Covid-19 banking and financial relief measures coming to an end, it is viewed that there will be a growth trend and change in Malaysia moving forward surrounding financial institutions behaviour in dealing with their non-performing assets including disposing their non-performing loans and non-performing financing comprising of both unsecured and secured products by way of sale and purchase to third parties. The purpose of this article is to analyse the market trends in disposing non-performing loans and nonperforming financing by way of sale and purchase to third parties in Malaysia during the last several years taking into consideration all Covid-19 moratoriums measures and relaxing on the underwriting process by financial institutions. The article will examine the prevailing legislations and regulations that governs the sale activity as well as considering the recent Financial Sector Blueprint 2022-2026. The author intends to adopt a multi-method research strategy primarily doctrinal legal research as well as qualitative research approach. This article aims to contribute to the legal fraternity and people in general with an overview of the current position in Malaysia.
Siswanti, Inda, ‘The Role of Notaries in Loan Restructuring Impacted by Covid-19 in Islamic Banking’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 18–28 Abstract: This paper examines the role of notaries in loan restructuring due to the impact of Covid-19 in Islamic banking. The research problem is formulated in the followings: first, how to restructure the loan as the impact of Covid 19 in Islamic banking, and second, how is the role of a notary in loan restructuring as the impact of Covid-19 in Islamic banking. This is an empirical legal research carried out by examining primary data obtained from the field. The results of this study reveal the mechanism for loan restructuring as the impact of Covid-19 in Islamic banking, and the roles of a notary in loan restructuring as the impact of Covid-19 in Islamic banking. It is clear that the bank does not immediately approve the request for loan restructuring submitted by the customer, since the application must go through several stages of approval by the bank. In the first stage, customers shall contact the bank to convey their financial decline of income or business profit affected by Covid-19. Customers shall submit a request for loan restructuring along with the required documents. The bank will conduct online interview to verify customers, and to make a report on the results of the interview. Afterwhich, the bank will need to pay a field visit or survey to analyze the information submitted by the customer. Once, the application is approved, the bank will send a restructuring offer letter to customers to be signed with the addendum. After signing the financial addendum, customers only have to wait for the restructuring process in the bank’s operational division system. In this process, notaries play a significant role in loan restructuring due to the impact of Covid-19 in Islamic banking, by making authentic deeds for the bank office and by complying with the health protocols set by the government. Another role of the notary is to legalize the addendum agreement made by the bank and the customer to carry out the authority of legalizing the deed under the hand of a notary only to guarantee and ensure the date and signature between the Islamic bank and customer applying for loan restructuring. In line with the notary’s authority in providing legal counseling related to the deed making, Islamic banks generally have operational standards of implementation, and thus the addendum clause of financing has been determined by the bank.
Slamowitz, Charles, ‘Profiteering Off Public Health Crises: The Viable Cure for Congressional Insider Trading’ (2020) 77(1) Washington and Lee Law Review Online 31–46 Abstract: This article takes an approachable, forward-thinking, and academic dive into congressional insider trading in the wake of the coronavirus (COVID-19) pandemic. After a confidential briefing by the Senate Health Committee warned of COVID-19, massive stock sell-offs by members of Congress and their spouses suddenly ensued. Some senators even publicly disparaged COVID-19’s viral effects while their own shares were being offloaded. By the time the American people were made aware of its dangers, vast investment holdings by congressional insiders had already been sold. Shockingly, it is unclear if congressional insiders trading on confidential coronavirus information are actually breaking the law. Congress members are also not required to timely disclose trades, even during pandemics, leaving the American people in the dark. This article provides the only viable remedy to congressional insider trading, crucial for governmental transparency and accountability to precipitously curb public health crises moving forward.
Skeel, David A, ‘Pandemic Hope for Chapter 11 Financing’ (2021) 131 Yale Law Journal Forum 315–336 Abstract: The pandemic revealed that the increasing complexity of debtor’s capital structure could supply much-needed competition in the Chapter 11 financing market, as other inside lenders increasingly challenge a debtor’s favored inside lenders. After discussing the benefits of this surprising development, the Essay identifies several impediments and offers strategies for removing them.
Skeen, Jackson, ‘Uptier Exchange Transactions: Lawful Innovation or Lender-on-Lender Violence?’ (2023) 40(1) Yale Journal on Regulation 408–452 Abstract: This Note examines the recent phenomenon of ‘uptier exchange transactions’: transactions in which a borrower takes assignment of existing loans from participating lenders—those lenders holding a majority of the principal amount of the loan—and then issues new superpriority tranches of debt to the participating lenders, subordinating nonparticipating lenders in the process. Uptier exchange transactions were born in the throes of the COVID19 pandemic and continue to evolve in the courts. This Note analyzes these transactions and all major litigation concerning them to date. It makes a normative argument in favor of curbing the reach of uptier exchange transactions through equitable judicial interpretation. Finally, this Note proposes an amendment to Article 9 of the Uniform Commercial Code that would protect nonparticipating lenders against these transactions, invoking the Trust Indenture Act of 1939 as a textual model.
Smelcer, Susan, Anne M Tucker and Yusen Xia, ‘Regulating Dynamic Risk in Changing Market Conditions’ (SSRN Scholarly Paper ID 3905506, 13 August 2021) Abstract: How successful are the SEC’s attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks—the Puerto Rican debt crisis and COVID-19—we find evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in regulating dynamic, future risk. We find evidence of widespread and, often, detailed disclosures for new risks. But not all funds disclose new risks, and those that do vary in specificity ranging from individualized to generic disclosures. This creates perverse incentives for funds to opt-out of disclosure or downplay threats with boilerplate language when new risks are emerging. We recommend several SEC interventions to improve dynamic risk disclosures including empirically monitoring disclosures, issuing guidance when problematic variation is observed, and enforcing disclosure standards.
Sovilj, Ranko P and Sanja N Stojković Zlatanović, ‘Tackling the Impact of the COVID-19 Pandemic in Economy and Labour: A Case Studey of Serbia Regulation’ (2021) 14(2) Medicine, Law & Society 301–320 Abstract: The paper deals with the foundation of policy and legal national framework addresses, particularly, the adequacy of state measures in the areas of economy and labour as a response to Covid-19 pandemic. The aim is, by analyzing recent soft law documents of international organizations and the introduced models of comparative policy practices, to make critical considerations regarding the policy responses in the crises conducted by the Serbian Government. The human-centered, holistic, and integrated approach had been applied accompanied by the legal normative and comparative methods. Putting the current Serbian regulation in the context of the international area of policy emergency response, the territorial approach has been determined as most applicable, accompanied by the spatial coverage to the most vulnerable sectors. Government stimulation policy in the area of economy and employment in the Covid-19 crisis must be based on the rapid and reliable assessment of the impact of a lockdown or trade and job restrictions as on medium to longer-term recovery strategies of trade and employment. The principle of global and national solidarity, public-private partnership are core elements that need to be incorporated in the legal framework to tackle the impact of the Covid-19 pandemics in the economy and labour.
Steele, Graham, ‘The Tailors of Wall Street’ (2022) 93(3) University of Colorado Law Review 993-1060 Abstract: The narrative that emerged in the aftermath of the COVID-19 financial crisis has focused on nonbank financial inter-mediation as the primary vulnerability that plagued financial markets starting in March of 2020 and the exogenous nature of a public health crisis as a unique precipitating event. As a result, the crisis has largely been viewed as vindication for financial regulation as it applies to banks, with the Federal Reserve playing the role of heroic rescuer of the financial system. This Article offers an alternative—and critical—analysis of the performance of banks during the COVID-19 financial crisis and the Fed’s role as a financial regulator. Charting the course from the landmark reforms of the Dodd-Frank Wall Street Reform and Consumer Protection Act to the COVID-19 crisis reveals disconnects between the legal and policy objectives of financial regulation and the actions taken by policymakers. Rather than completing the implementation of Dodd-Frank and addressing known sources of financial fragility, the Fed pivoted to a focus on ‘tailoring’ regulations for the largest bank holding companies. Tailoring resulted in a banking system that was unable to respond effectively to the financial market disruptions imposed by the COVID-19 pandemic, necessitating unprecedented fiscal and monetary support. A thorough analysis of the financial policy choices in the lead-up to, and policy responses during, the COVID-19 pandemic yields important insights into the ideological underpinnings and substantive impacts of the Fed’s role as a financial regulator. The Fed’s emphasis on tailored regulation and its financial support for a range of markets during times of stress should be seen as two sides of a financial regulatory policy that has prioritized efficiency above resiliency and situated private interests above the public interest. Above all, this analysis reveals that, rather than being value-neutral, the project of tailoring, as practiced during this period, is fundamentally deregulatory. A better alternative to tailoring is a ‘precautionary approach’ to financial regulation, ensuring that large bank holding companies are able to withstand a wide range of existing and emerging financial risks.
Stojanović, Aleksandar, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) Link to book page on publisher website
Book summary: This book provides a novel in-depth study of the early pandemic response policy at the intersection of political economy and law. It explores: (1) whether the responses to COVID-19 were democratically accountable; (2) the ways in which new surveillance and enforcement techniques were adopted; (3) the new monetary and fiscal policies which were implemented; (4) the ways in which employed and unemployed persons were differently impacted by the new policies; and (5) how companies were economically sustained through the pandemic. A compelling look at what happens to societies when disaster strikes, this book will be of interest to legal scholars, political scientists and economists.
Contents:
- Aleksandar Stojanović, Luisa Scarcella and Christina R. Mosalagae, ‘Global Covid-19 Policy Response Between Law and Political Economy’ 1-13
- Aleksandar Stojanović et al, ‘Law and Political Economy of China’s Early Pandemic Response: Limited Economic Support and Insulation’ 15-54
- Vincent Jerald Ramos et al, ‘Are Militarized Lockdowns the Great Equalizer? Evidence from the Philippines’ 55-85
- Apilang Apum et al, ‘First 100 Days of COVID-19 Firefighting: Hits and Misses of the Policy in India’ 87-119
- Elisa Gibellino and Federica Cristani, ‘First 100 Days of Italian COVID-19 Policy: A New Image for Democracy, Security, Education, and the Economy in Italy’ 121-144
- Ádám Kerényi and Weichen Wang, ‘First 100 Days of Hungarian COVID-19 Policies’ 145-171
- Michael W. Müller et al, ‘Purchasing Time: The First 100 Days of German COVID-19 Policy’ 173-205
- Arletta Gorecka, ‘COVID-19 Crisis in the United Kingdom: The First 100 Days of the Unknown’ 207-234
- Osatohanmwen Anastasia Eruaga, Abigail Osiki and Itoro Ubi-Abai, ‘Nigeria’s Political, Economic, and Social Dynamics in a Pandemic Era’ 235-272
- Muriuki Muriungi and Naomi Musau, ‘Inequality Dimensions of Kenya’s Responses to COVID-19’ 273-294
- Zita M. Hansungule et al, ‘Reinforcing Inequality: First 100 Days of South African COVID-19 Policy’ 295-339
- Christopher Pomwene Shafuda, ‘A Bumpy and Gloomy Road Ahead: An Analysis of Covid-19 Response in Namibia’ 341-372
- Zvikomborero Chadambuka, ‘The Informal Economy and the First 100 days of the Pandemic Policy in Zimbabwe’ 373-397
- Tiago Couto Porto et al, ‘First 100 days of Brazilian COVID-19 Policy’ 399-428
- Javiera Rojas et al, ‘The Deepening of an Economic and Political Crisis: The First 100 Days of COVID-19 in Chile’ 429-462
- Aleksandar Stojanović, Lauren Sweger-Hollingsworth and Dashiell Anderson, ‘Reinforcement of Economic Inequality and Extra Economic Power: Law and Political Economy of the US Pandemic Policy Response’ 463-506
Abstract: Notes the April 2020 announcement by the Fitch rating agency of its maintenance of Cyprus’s long-term credit rating at BBB, amidst the coronavirus pandemic. Details Cyprus’s rapid response to COVID-19, its economic flexibility, its prediction of future GDP growth, and the issues it should address to increase its chance of obtaining an ‘A’ category rating.
Stuber, Walter, ‘Purchase and Sale of Private Assets by the Central Bank of Brazil during the COVID-19 Pandemic’ (2020) 35(10) Journal of International Banking Law & Regulation N120–N122 Abstract: Notes the June 2020 publication by the Board of the Central Bank of Brazil of Circular No.4.028 governing the purchase and sale of private assets by the Central Bank in the Brazilian secondary markets during the coronavirus pandemic. Details the range of assets to which the rules apply, the use of public offerings, the role of risk management, the classification of companies by their gross operating revenues, and the concentration limits.
Stuber, Walter, ‘The Effects of Coronavirus on Financial Statements in Brazil’ (2020) 35(6) Journal of International Banking Law & Regulation 56–57 Introduction: The Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários —CVM) has closely monitored the impacts of coronavirus in the world capital markets and particularly in the Brazilian market. Given the interconnectivity of the global production chain, some entities regulated by CVM may be subject to economic and financial impacts arising from the epidemic. Such impacts should be, to the possible extent reflected, in the financial statements of companies registered with CVM.
Sulistyandari and Putri Ayu Sutrisno, ‘Legal Aspects and Role of Ojk in Bank Digital by Digital Banking Services During Post-Covid 19 Pandemic in Indonesia’ (2023) 11(12) Journal of Law and Sustainable Development e2364–e2364 Abstract: The purpose of this research is to analyze the implementation of bank digital by digital financial services that are able to maintain bank secrecy and personal data security; and to analyze the application of prudent banking principles in the implementation of bank digital by digital services in Indonesia; and it also aim to analyze the role of the OJK in regulating and supervising Bank Digital by digital services post Covid 19 pandemic.
Sumarno, ‘The Legal Strength of Home Ownership Credit Agreements During Covid 19’ (2021) 4(3) Budapest International Research and Critics Institute (BIRCI-Journal): Humanities and Social Sciences 7422-7430 Abstract: At this time, during the COVID-19 pandemic, the government’s role in meeting the community’s needs for housing is urgently needed in providing funds and providing initiatives in housing development efforts. The presence of the Home Ownership Credit system is very much needed by people whose economic income is in the small and medium levels. During this pandemic, banking is one of the sources for obtaining funds which is considered easy and fast for some people in terms of needing funds to meet their needs, such as in utilizing funding from banks in the Home Ownership Credit facility. Each granting credit, there will be rights and obligations. Banks can only consider granting credit if the applicant is a legal subject, because the legal subject is a supporter of rights and obligations, meaning that they can receive rights and be charged with obligations. This study describes the legal arrangements in Home Ownership Loans during the covid 19 pandemic, to find out the rights and obligations of the parties in the Home Ownership Loan agreement, as well as to find out efforts to settle defaults in the Home Ownership Loan agreement. This research was obtained from secondary data, namely library research, namely by collecting references related to the object or research material. Article 1754-1769 is one of the forms of loan-borrowing agreement. By the agreement that has been stated in the credit agreement, each party will obtain its rights and obligations. What is the right of the debtor is the obligation of the bank, and what is the obligation of the debtor is the right of the bank. The implementation of the Home Ownership Credit agreement is made based on a free agreement with the meaning that the agreement can be made freely. Any form of agreement is made between two parties who capable of acting by law to carry out an achievement that does not conflict with the applicable legal rules, morality, and public order, in agreeing to the provision of credit loans, the bank needs to pay attention to the restrictions regulated by the applicable laws and regulations.
Susanto, Deny, ‘Sharia-Based Legal Formula for Personal Data Protection in the Financial Services Industry Post-Covid-19 Pandemic’ (2022) 1(04) BULLET: Jurnal Multidisiplin Ilmu 545–552 Abstract: As a country with a substantial Muslim population, Indonesia provides a market for sharia-based financial firms. Corporate organizations, minimal liability companies, seek the most effective way to promote business growth. One objective is to develop its digital ecosystem for the financial services industry, including banking, insurance, capital markets, and non-bank financing organizations. The most crucial factor is the corporation’s attempts to deliver effective and efficient services in response to the community’s demands as the number of Covid-19 cases continues to fall and the economy begins to improve. This study aims to examine the perspectives on formulating the right and applicable law for the protection of personal data in the management conducted by corporations in the sharia-based financial services sector in Indonesia during the Covid-19 pandemic as post-pandemic expectations. Covid-19 examines law enforcement for potential personal data violations on technology users by businesses. Finding an appropriate and effective legal formulation that can be fundamentally applied in the form of fair regulations and in accordance with sharia values in parallel is the result of the research, and it can be concluded that the formulation of legal rules can rapidly provide regulatory solutions to achieve an equilibrium of rights. and justice for businesses based on sharia law.
Sutcliffe, Charles, ‘The Implications of the COVID-19 Pandemic for Pensions’ in Monica Billio and Simone Varotto (eds), A New World Post COVID-19: Lessons for Business, the Finance Industry and Policy Makers (Ca’ Foscari University Press, 2020) Abstract: COVID-19 and the lockdowns have had a big global economic effect, as well as increasing mortality. We examine the effects of COVID-19 and the resulting relaxations of pension regulations on pension schemes. Those who transfer their pension or withdraw cash from their pension pot while asset prices are depressed by COVID-19 are losers; as are members of defined benefit schemes with a deficit whose employer fails due to COVID-19. The increased mortality from covid-19 will have a minimal effect on pensions. If economies recover to pre-covid-19 levels, the long run effects on pensions should be small.
Taskinsoy, John, ‘COVID-19: Is the Great Outbreak a Sign of What the Future Has Stowed for the Human Race?’ (SSRN Scholarly Paper No ID 3597434, 10 May 2020) Abstract: COVID-19, the novel coronavirus pandemic, placed the U.S. economy (and capitalism) on a ventilator. A new recently published study has revealed that close to 90% of patients who needed ventilators to breathe did not make it. Of course this is a metaphoric inference, but valuable lessons provided by coronavirus crisis should not be ignored as the previous signs were in the past. The Fed must realize that ‘creating money out of thin air’ (i.e. credit expansion) is nothing but “‘legalized counterfeiting’ which will only foster even greater pandemics and financial crises in the near future. Since the Fed was created in 1913, financial and economic crises have become more damaging, longer lasting, and costlier. Every time a high-magnitude crisis strikes (financial, economic, or pandemic), to calm people and restore confidence, governments of advance nations and their high profile central banks (Federal Reserve, European Central Bank, Bank of Japan, and Bank of England) rush to enact unprecedented economic relief/stimulus packages which got larger and larger over the years but sources of systemic crises have remained unresolved since the stock market crash of 1929 and the subsequent Great Depression. In today’s economy, $5 trillion or $10 trillion virus relief package is mindboggling, but will it be enough to prevent a looming recession? A better question to ask is, will the Fed’s infinite money creation out of thin air send American capitalism on a ventilator to the burial ground? In the near future (by 2050), global warming induced climate changes and the resultant catastrophes will make the coronavirus pandemic trivial. Unfortunately, one thing that never changes, in the long-run great financial crises and pandemics kill deprived people in developing and poorest countries.
Teichman, Doron and Eyal Zamir, ‘Exponential Growth Bias and the Law: Why Do We Save Too Little, Borrow Too Much, and Fail to React on Time to Deadly Pandemics and Climate Change?’ (2022) 75(5) Vanderbilt Law Review 1345–1400 Abstract: Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth. This phenomenon, dubbed the exponential growth bias (‘EGB’), has been documented in numerous contexts and across different populations, using both experimental and observational methods. Despite its centrality to human decisionmaking, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of the EGB and the law. Incorporating the EGB into legal analysis sheds a new light on a long list of policy debates and highlights new solutions to many problems that the legal scholarship has been grappling with. More concretely, in the sphere of policymaking, the EGB explains the systematically delayed legal response to novel exponential risks such as the COVID-19 pandemic and climate change. Building on this insight, this Article highlights new legal strategies that could improve officials’ ability to react promptly and effectively to such threats. In the sphere of individual decisionmaking, this Article shows that the EGB causes people to systematically err when making decisions that involve exponential phenomena. Consequently, people often borrow too much, save too little, and fall prey to sophisticated marketing tactics. In light of these findings, this Article presents a novel regulatory framework, which includes new disclosure duties that could assist people to grasp the long-term implications of their choices, and the imposition of mandatory rules that would minimize the exploitation of the EGB by savvy profit-maximizing entrepreneurs.
Temidayo, Akindejoye, Olabanjo Olumide Ayenakin and Fateropa Tolulope Omolola, ‘Post Covid 19 Economy in Nigeria: The Role of Law for Sustainable Economic Development’ (2022) 10(2) Global Journal of Politics and Law Research 23–31 Abstract: Covid-19 otherwise known as Corona virus has impacted negatively on global economy and it may take time for nations of the world to come out of economic depression occasioned by the pandemic. This paper qualitatively identifies the roles of laws in post covid 19 economic recoveries. Specifically, the article seeks to asses the degree with which law promotes economic sustainability in the areas of banking & Finance, dispute resolution, energy, infrastructure, insurance and transportation. It also examines the extent to which economic growth might be affected if laws are not clearly defined, made public and applied in a consisten manner. Provision and application of legal frameworks in these key areas of the economy will trigger quick recovery and stabilize it for future growth. It was recommended among others that more laws should be enacted to provide additional lending authority for certain Small and Medium Scale Enterprises (SMEs) so as to boost the post COVID-19 economy in the country; loans and advances should be given to agricultural enterprises to speed up more supply of food to the economy.
Tesche, Tobias, ‘The European Union’s Response to the Coronavirus Emergency: An Early Assessment’ (LSE ‘Europe in Question’ Discussion Paper Series No 157, 11 June 2020) Abstract: This article provides an assessment of the EU institutions’ response to the coronavirus pandemic. It contends that it followed the new intergovernmental tendency to empower de novo bodies like the European Stability Mechanism, the European Investment Bank and the European Central Bank. The European Central Bank’s early and unconstrained action structured European politics. Its pandemic emergency purchase programme ensured that euro area member states were able to maintain market access and lowered the financial attractiveness of the subsequently created instruments to tackle the corona crisis. The European Commission was relegated to the role of ‘cheerleader of European solidarity’. It partially redeemed itself by creating a new temporary loan-based instrument to support national short-term work schemes and by proposing a large-scale recovery instrument termed ‘Next Generation EU’.
Thao, Le Thi, ‘The Impact of the Covid-19 Pandemic on Legal Policies on Investment and Business Activities of Commercial Banks in Vietnam’ (2023) 11(2) Russian Law Journal 338–348 Abstract: The COVID-19 pandemic has hit all corners of the world, causing many negative impacts on the economies of many countries, including Vietnam. Faced with these influences, the Government of Vietnam has adopted many policies and laws to regulate the banking system, especially investment and business activities of commercial banks. The article is based on the use of secondary documents from the State Bank of Vietnam, commercial banks, domestic and foreign studies on legal policies on investment business activities of commercial banks and recommendations on improving legal policies on business investment activities of commercial banks as a basis and conditions for businesses and people to resume production and business.
Theodosopoulou, Aikaterini, ‘ESM Pandemic Crisis Support: Can It Help?’ (2020) 35(8) Butterworths Journal of International Banking & Financial Law 573–574 Abstract: Reports on the pandemic crisis support instrument established by the European Stability Mechanism (ESM) to provide financial assistance for healthcare, cure and prevention both for Eurozone members and for other EU Member States.
Tjio, Hans, ‘2020: Securities and Financial Services Regulation’ (SSRN Scholarly Paper ID 3782136, 9 February 2021) Abstract: COVID-19 clearly dominated many of the pressing issues in the world in 2020 and necessitated changes such as the suspension of wrongful trading provisions to help financially distressed firms and the restriction on share buybacks in the case of the CARES Act in the US for government bail-outs and by the MAS for financial institutions given capital adequacy relief in Singapore. It also brought greater focus back on the real economy as opposed to the over-financialized one that was described in the introduction to this chapter in the previous Annual Review. One positive thing to come out of a pandemic is that it may reduce the inequalities seen in the world since the 1990s, in particular, without the even greater upheaval that has been thought necessary to level society.
Tjoanda, Merry, ‘The Outbreak of Covid-19 as an Overmacht Claim in Credit Agreements’ (2021) 15(1) Fiat Justisia: Jurnal Ilmu Hukum 75–92 Jurisdiction: Indonesia
Abstract: This research aims to determine and analyze the law consequences of overmacht in credit agreements due to the Covid-19 Pandemic and as legal remedies for settlement of the credit agreement due to the Covid-19 Pandemic. This research is socio-legal research, a combination research method between doctrinal law research methods and empirical legal research methods. This research was conducted in banking institutions and financing institutions in Ambon City, namely at Bank Mandiri Ambon Branch Office, BCA Ambon Branch Office, Bank Artha Graha Ambon Branch Office, and BFI Limited Company Ambon Branch Office. The types of research data are primary data and secondary data, obtained through literature study and interviews. Based on the results of the research, the Covid-19 Pandemic is a non-natural disaster, so it is categorized as a relative overmacht, so the result of the comparative overmacht law in the credit agreement due to the Covid-19 Pandemic in Ambon City has not changed the risk burden in the sense that the Debtor still fulfills their achievements after the outbreak of Covid - 19 Pandemic is over. The legal effort that can be taken to settle credit agreements due to Covid-19 Pandemic in Ambon City is through credit restructuring in the form of lowering interest rates, extending the period, reducing principal arrears, and reducing interest arrears as determined by the government to be implemented by the bank or financing institutions with debtors.
Truong, Quang-Thai et al, ‘COVID-19 in Vietnam: What Happened in the Stock Market?’ (SSRN Scholarly Paper No ID 3633754, 23 June 2020) Abstract: The purpose of this paper is to investigate the performance of the stock market during the outbreak of the novel Coronavirus (COVID-19) in Vietnam- a frontier country that successfully tackles the outbreak of this pandemic. Employing data from 11 different industries and more than 700 firms from two main stock exchanges from January 23, 2020 (the first case reported in Vietnam), results suggest that COVID-19 exerts heterogeneous impacts on different industries. Moreover, when focusing on firm-level, results depicts that firms with a better financial background (leverage, liquidity, profitability, and cash holdings) have better stock performance.
Urbanek, Anna, ‘Consumer Credit in Poland and France and the COVID-19 Pandemic: Prevention and Sanctions’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 1–21 Abstract: We are facing an unprecedented economic crisis. Inequality between borrowers and entrepreneurs in the financial market is growing, especially as creditors use misselling and take advantage of their clients’ vulnerability. This chapter compares the sanctioning of granting credit in violation of Directive 2008/48/EC on consumer credit in Polish and French law and assesses its implementation in those regimes. It also compares the policies of both countries in the field of borrower protection during the COVID-19 pandemic. The research uses a dogmatic analysis of EU, Polish and French law and compares the implementation of directive 2008/48/EC. The analytical method was used to evaluate the commercial practices of creditors and the actions of national authorities. The results show that the sanctions and procedures adopted by these countries differ, although in each case the obligations of borrowers are identical. Different remedies have been adopted in the two countries to protect borrowers during the pandemic. This leads to the conclusion that consumer protection has not been sufficiently harmonised by the directive. Doubts as to whether the purpose of the directive has been achieved are confirmed by its planned revision. It must be concluded that the current economic crisis highlights the inconsistency in consumer protection. Binding sanctions for Member States should be specified in the directive. It would be more beneficial to the protection of the collective interests of consumers if the directive were to include remedial procedures, such as credit moratoria, which the Member States will be obliged to implement during the economic crisis.
Velentina, Rouli Anita, Suherman Suherman and Rohana Amelia Putri Handayani, ‘Legal Issues in the Implementation of Credit Relaxation Policy in the Banking Sector as a Counter Cyclical Impact on the Covid-19 Pandemic’ (2022) 10(3) Russian Law Journal 26–37 Jurisdiction: Indonesia
Abstract: The spread of coronavirus disease 2019 (Covid-19) has a direct or indirect impact on the financial capacity of debtors, including micro, small, and medium business debtors. This condition may disrupt banking performance, which can affect economic growth. Therefore, to encourage the optimization of the banking intermediation function, maintain financial system stability, and support economic growth, economic stimulus policies are needed as a countercyclical impact on the spread of Covid-19. OJK has issued several regulations to stimulate the banking sector. On 16 March 2020, the OJK issued OJK Regulation No.11/POJK.03/2020 concerning National Economic Stimulus as a Countercyclical Policy Impact of the Spread of Coronavirus Disease 2019 (POJK No.11/POJK.03/2020). There are some weaknesses with credit relaxation regulated in POJK No.11/POJK.03/2020. The legal question in this research is: What are appropriate legal solutions to overcome the weakness of credit relaxation regulated by POJK No.11/POJK.03/2020? This legal research employs a juridical normative method with secondary data. The secondary data consists of the applicable regulation, books, articles, and other sources. To solve the above-mentioned problems, the OJK might consider improving POJK No.11/POJK.03/2020 by providing further guidelines on the criteria of affected debtors and business sectors, and providing further guidelines on the implementation of the credit relaxation. Besides that, the OJKS needs to increase its supervisory role in monitoring the granting process of the credit relaxation and settle objections from debtors if their relaxation application is refused by the bank.
de Villiers, Charl, Dannielle Cerbone and Wayne Van Zijl, ‘The South African Government’s Response to COVID-19’ (2021) Journal of Public Budgeting, Accounting & Financial Management (forthcoming) Abstract: Purpose: This paper provides a critical analysis of the South African government’s response to the COVID-19 crisis and its effect on state finances and budgets. Design/methodology/approach: The paper critically analyses publicly available data. Findings: The South African government’s initial health response was praised by the international community, given the early lockdown and extensive testing regime. The lockdown devastated an already precarious economy, which led to negative social consequences. The initial lockdown delayed the epidemic, but subsequently, the infection rate climbed, requiring new restrictions, suggesting further economic disruption. Government has had to increase its borrowings, while the future tax take is forecast to be significantly reduced, a combination which will lead to a severely constrained public purse for many years to come. This will limit the Government’s ability to address the basic social needs that predated the COVID-19 crisis. Originality: This is one of the first academic papers to critically assess the effect of the South African government’s response to the COVID-19 crisis on state finances and budgets.
Wai, Kok Chee and Tan Kai Liang, ‘Singapore: COVID-19 Pandemic - Additional Support’ (2020) 35(9) Journal of International Banking Law & Regulation N112–N115 Abstract: Highlights the April 2020 announcement by the Monetary Authority of Singapore of additional support for those experiencing financial problems due to the coronavirus pandemic. Details key features of: measures to ease cashflow problems, including the deferred repayment of commercial loans and mortgage equity withdrawal loans; debt reduction measures involving removal of the total debt servicing ratio; and improved access to banking services.
Walt, Johan van der, ‘Forensic Practitioners Will Play Key Role in Recovery of South African Economy Post COVID-19’ (2020) 20(6) Without Prejudice 35–36 Abstract: With numerous sectors experiencing financial distress, and companies and individuals facing the increased likelihood of insolvency as a result of the economic disruption caused by COVID-19, forensic practitioners will play a key role in supporting South Africa’s economic recovery.
Walters, Robert, ‘Close out Netting Provisions: Their Current Value in a Time of International Uncertainty!’ (2020) 31(10) International Company and Commercial Law Review 564–595 Abstract: The world is facing significant geopolitical and economic challenges. This article explores the current value of close-out netting provisions as a result of the recent coronavirus outbreak. It examines the netting provisions of Australia, European Union, United Kingdom and the United States. The article makes the argument that as states increasingly turn inward, upholding the current international legal framework will be more important.
Warna-kula-suriya, Sanjev and Christopher Anthony Sullivan, ‘Can the ECB Keep European ABS Markets Moving during the COVID-19 Crisis?’ (2020) 35(6) Butterworths Journal of International Banking & Financial Law 406–407 Abstract: Discusses the role of asset-backed securitisations (ABS) in the European Central Bank’s (ECB) programme to help refinance EU banks and support their liquidity in the coronavirus pandemic.
Widyaningsih, Aryana Sekar, ‘Compare with the Conditions of Increasing Fintech in the Pandemic Era’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 59–67 Abstract: Technological developments affect all fields including the economic sector and in the current pandemic era, it is said to be a fast solution for people in search of technology. One of the most popular technologies is financial technology (fintech). Fintech is a financial services company that combines technology in providing services, the existence of fintech is not only running but a complaint for the public, especially peer to peer lending fintech, whose interest is too high so that members of the public. The formulation of the problem in the research is, first, how is the urgency of regulations related to peer-to-peer lending interest rates? Second, what is the situation related to the development of peer-to-peer lending fintech during the Covid 19 pandemic and its impact on society? This study uses a normative legal research method with an invitation visit approach and a conceptual approach. The method of thinking that the writer uses is the method of inductive thinking with qualitative analysis. From these results, first, there must be a regulation governing the law to accommodate interest rate issues, the substance of which is in the form of preventive action and representation from the government, namely stipulating P2P lending interest rate intervals and classification information. Regarding loans and not only contains material provisions on the threat of sanctions, but also sanctions as formal content. Other than that. Second, the impact of the current Covid-19 pandemic on the development of peer-to-peer lending technology and the impact of problems that arise in society.
Williams, Bryan, ‘Identification of Potential COVID-Related Insider Trading by US Representatives Based on Financial Disclosures’ (SSRN Scholarly Paper ID 3807508, 18 March 2021) Abstract: Just over a year after the initial COVID-19 shutdown, the United States finds itself as one of the worst-hit nations in the world in terms of COVID infections and deaths per capita. While the cost of delayed action in addressing the pandemic can be debated, one thing that cannot be is when the US Congress learned of the seriousness of the virus. While our previous paper focused on the US Senate, this one focuses on the lower chamber of Congress, the US House of Representatives. Like their senate counterparts, representatives learned of the potential impact of COVID-19 on the US in a closed door meeting in late January, nearly a month-and-a-half before the initial shutdown. As in the previous paper, we sought to find signals of insider trading US Representatives based on this non-public information. Much like the upper chamber, the public also has access to stock transactions of US Representatives thanks to the United States House of Representatives Financial Disclosures database. Using the original source data as well as Quiver Quantitative’s cleaned version, Novatero Investments ran three analyses on US Representative stock transactions. These analyses looking for signs of insider trading centered around the late-January closed-door COVID-19 briefing: alterations in transactional volume, significant changes in strategy relative to the US market, and a market timing advantage relative to two baselines. Unlike the clear-cut findings from the Senate analyses, we found 15 representatives whose transaction activity and patterns range from ‘doubtful’ to ‘strong likelihood’ of insider trading, reflective of the myriad of results we’ve obtained from this data. While there are strong suggestions of insider trading within these results, the data provided can only go so far in terms of solid evidence, and we hope to see a deeper analysis and investigation by those who have access to a more-complete picture of these transactions.
Wilmarth, Arthur E, ‘The Pandemic Crisis Shows That the World Remains Trapped in a “Global Doom Loop” of Financial Instability, Rising Debt Levels, and Escalating Bailouts’ (GWU Legal Studies Research Paper No 2021–34, August 2021) Abstract: In January 2020, I completed a book (Taming the Megabanks: Why We Need a New Glass-Steagall Act) analyzing the financial crises that precipitated the Great Depression of the 1930s and the recent Great Recession. My book argued that the world’s financial system was caught in a ‘global doom loop’ at the beginning of 2020. Bailouts and economic stimulus programs during and after the global financial crisis of 2007-09 (GFC) imposed heavy debt burdens on most governments, and leading central banks were carrying bloated balance sheets. The rescues arranged by governments and central banks during the GFC created a widely-shared expectation that they would continue to intervene to ensure the stability of major financial institutions and important financial markets. That expectation encouraged speculative risk-taking by financial institutions and investors as well as dangerous growth in private and public debts. I warned that the global doom loop was planting the seeds for the ‘next’ financial crisis, which could overwhelm the already strained resources of governments and central banks.The ‘next’ global crisis began only two months later, in March 2020. The rapid spread of the Covid-19 pandemic caused governments in most developed countries to shut down large sectors of their economies and impose social distancing mandates. Many thousands of businesses closed, setting off a downward spiral in economic activity that paralyzed global financial markets. Investors, businesses, and financial institutions ‘scrambled for cash’ and engaged in panicked ‘fire sales’ of financial assets. Governments and central banks in the U.S. and other advanced economies adopted fiscal stimulus measures and financial rescue programs with a size, speed, and scope that far surpassed the emergency actions taken during the GFC.The pandemic financial crisis and the extraordinary responses of governments and central banks demonstrate that policymakers have not addressed the root causes of the GFC. Major financial institutions and financial markets remain highly unstable. They continue to underwrite rapidly rising levels of private and public debts based on their shared expectation of future government bailouts. Governments and central banks have expanded their ‘safety nets’ far beyond banks and now protect the entire financial system, including short-term wholesale credit markets, systemically important nonbanks, and the corporate bond market. As a practical matter, governments and central banks have ‘bankified’ the financial system, thereby undermining market discipline, stimulating dangerous asset bubbles, and increasing social inequality.Our financial system must be reformed so that it no longer promotes unsustainable booms, fueled by reckless growth in private debts, followed by destructive busts that require massive bailouts and huge increases in government debts. My recent book provides a blueprint for needed reforms, including a new Glass-Steagall Act. A new Glass-Steagall Act would break up financial giants by separating banks from the capital markets and by prohibiting nonbanks from financing their operations with functional substitutes for bank deposits. A new Glass-Steagall Act would establish a financial system that is more stable, more competitive, and more responsive to the needs of consumers, communities, and business firms. Properly implemented, a new Glass-Steagall Act would provide the most direct and practical way to break the global doom loop and end the toxic boom-and-bust cycles of the past quarter century.
Wirawan, Arka, Wibowo Murti Samadi and Dora Kusumastuti, ‘Juridical Analysis of State Financial Policies in Handling the Covid-19 Pandemic’ (2023) 6(1) Awang Long Law Review 83–90 Abstract: The purpose of this research is: to juridically analyze state policies in handling the Covid-19 pandemic through Law Number 2 of 2020. The writing method used in this research is normative juridical using a statute approach and conceptual approach. Based on the results of the discussion and research, it can be concluded that based on the system of division of powers in Indonesia contained in the 1945 Constitution as the state constitution, the President is given the authority to establish regulations which hierarchically have the same degree as laws known as Government Regulations in Lieu of Laws (Perppu). The existence of Perppu is also widely regulated in countries that apply the presidential system. In addition, the stipulation of Perppu must be based on the existence of a compelling urgency that is temporary (emergency). The category of compelling urgency is the prerogative of the President. Furthermore, legislators can accept or reject the Perppu into law as a definitive rule of law or law. Testing Perppu is the authority of the legislature to accept or reject the Perppu.
Woods, Kyra Babcock, ‘Corpus Linguistics and Student Loan Debt’ 31(3) Boston University Public Interest Law Review 203–237 Abstract: An American college degree is both elite and very expensive. Thus, with the average annual tuition list price hovering in the tens of thousands of dollars, large swaths of students are forced to take out student loans to fund their educations. Unfortunately, unpredictable job opportunities resulting from the COVID-19 pandemic require each student loan debtor to ask: How do I pay my loans back? The bankruptcy code, found under 11 U.S.C. § 523(a)(8), offers student loan debtors an opportunity to discharge their loans—provided they can show that repayment will inflict ‘undue hardship.’ There is currently a shallow circuit split over undue hardship’s meaning. The majority view found in the Second Circuit’s Brunner decision rarely permits discharge under section 523(a)(8), essentially requiring debtors to prove complete destitution.1 Conversely, the minority view under the Eighth Circuit’s Long decision is more lenient, merely requiring the court to balance various factors on a case-by-case basis.2 Neither scholars nor members of the judiciary agree over how strict or lax Congress intended undue hardship to be.
Wroldsen, Jack, ‘Emergency Electronic Savings Accounts in a Post-COVID World’ (2021) 52(2) Seton Hall Law Review 507–543 Abstract: The shutdowns stemming from COVID-19 revealed the need for emergency cash savings, especially for unbanked and low- to middleincome people. As COVID-19 emerged, the US turned to impromptu solutions like government stimulus payments and expanded unemployment benefits. But those solutions were only available because a large-scale emergency galvanized political support around immediate aid. The stop-gap measures suggest the need for a transformational and long-term strategy for people to be more prepared for emergencies, as most emergencies in life are not nationwide events, but personal shocks where government rescue packages are not available. This Article proposes the creation of tax-favored Emergency Electronic Savings Accounts (‘EESAs’) to address two concerns. First, EESAs should be designed to help low- to middle-income people save for future emergencies. The tax code incentivizes savings for other anticipated life expenses, such as retirement and medical expenses. But many middle- to low-income people do not have retirement accounts in the first place. And for those who do, raiding a retirement account is a perverse way to survive an economic emergency, for it sacrifices the future to endure the present. Additionally, medical savings accounts are too limited because emergencies are not confined to healthcare expenses. Furthermore, this Article proposes that EESAs should include refundable tax credits paid electronically as matching savings funds deposited directly into EESAs, like employers’ matching investments deposited directly into employees’ 401(k) accounts. Addressing an additional concern, EESAs should be designed to help unbanked people establish online bank accounts. By not having a bank account, unbanked people lose out on lower-cost and more-efficient financial products and, instead, often resort to payday lenders that charge exorbitant interest rates. Capitalizing on innovations in scalable financial technologies that make free online accounts with no minimum balance requirements (such as PayPal and Venmo) easier to access than ever before, EESAs should usher unbanked people into free or low-cost online banking relationships. An added benefit of establishing electronic EESAs is that they can serve as a bridge to, or integrate seamlessly into, the future development of a central bank digital currency (‘CBDC’).
Wulandari, Mila Dianur and Siti Mahmudah, ‘Implementation of Debtor Law in Force Majeure Credit Financing During the Covid-19 Pandemic’ (2024) 5(2) JILPR Journal Indonesia Law and Policy Review 299–309 Abstract: The COVID-19 pandemic has had an impact on the economy, especially the people of Kudus Regency. This research uses an empirical juridical approach, namely an approach that examines statutory regulations related to the issues to be discussed, and also takes a field approach to obtain information as supporting material. This research aims to analyze the implementation of the law and the legal consequences for debtors in Force Majeure in credit financing during the COVID-19 pandemic at PT. Bank Rakyat Indonesia Kudus Regency Unit Office. Implementation of law on debtors in Force Majeure credit financing during the COVID-19 pandemic at PT. BRI Kudus Regency Unit Office in accordance with POJK No.11 of 2020, the Bank can provide credit financing restructuring to debtors provided that the debtor is affected by the spread of COVID-19 which results in the debtor having difficulty fulfilling obligations to the Bank.
Yeoh, Peter, ‘COVID-19 Legal-Economic Implications of a Pandemic’ (2020) 41(3) Business Law Review 74–84 Abstract: Assesses the impact of the COVID-19 pandemic on global and national economies, focusing on the US and the UK. Looks at legal implications, including force majeure clauses in commercial contracts, the doctrine of frustration, material adverse change clauses, and companies’ reporting obligations.
Young-Geun, Kim and Jung Minjung, ‘Disaster Management and COVID-19 Financial Support for SMEs in Korea’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 27–41 Abstract: This chapter illuminates the Korean government’s disaster management and its impacts on large swaths of the economy during COVID-19. Our study shows that Korea has implemented a convergence system that closely connects numerous stakeholders with ‘communication resilience’ in preparation for big catastrophes. However, the survey results on small and medium-sized enterprises (SMEs) and banks in Seoul and Ulsan, Korea confirms there are still limits in closing the gap between economic sector contribution and need in disaster response. Our study is the first known study that has focused on both disaster management and SMEs’ financial governance, and thus it can suggest implications for the economic resilience from pandemics.
Yuliani, Rizki Amalia, ‘Legal Certainty of Suspension of Debt Payment Obligations Proceedings during The Covid-19 Pandemic Period’ (2022) 22(3) Jurnal Penelitian Hukum De Jure 371–386 Abstract: During the Covid-19 pandemic period, the Suspension of Debt Payment Obligations (PKPU) Proceedings at the Commercial Court in Indonesia are now carried out online. The implementation of Suspension of Debt Payment Obligations (PKPU) Proceedings Online in the Commercial Court during the Covid-19 pandemic period was carried out based on the Regulation of the Supreme Court of the Republic of Indonesia (PERMA) Number 1 of 2019 and the Decree of the Chief Justice of the Supreme Court of the Republic of Indonesia Number 109/KMA/SK/IV/2020. However, the implementation of Suspension of Debt Payment Obligations (PKPU) Proceedings Online during the Covid-19 pandemic period in every Commercial Court in Indonesia varies, depending on the conditions and facilities at the Commercial Court. In response to this, since the beginning of 2022, the Supreme Court has drawn up a draft amendment to PERMA Number 1 of 2019 and formed technical instructions for amendments to PERMA Number 1 of 2019 which the preparation is still ongoing until August 2022. This research was conducted using a normative juridical law research method. This study discusses the amendments to PERMA Number 1 of 2019 and the draft technical instructions for amendments to PERMA Number 1 of 2019. The results of the study showed that the draft amendments to PERMA Number 1 of 2019 and the draft of technical instructions for amendments to PERMA Number 1 of 2019 still do not regulate the implementation of creditor meetings and online voting. In this regard, it is recommended that the Supreme Court add rules regarding guidelines for conducting creditor meetings and online voting in the Suspension of Debt Payment Obligations (PKPU) Proceedings Online process so that the Suspension of Debt Payment Obligations (PKPU) Proceedings Online process in all Commercial Courts is uniform and provides legal certainty for the parties.
Zaring, David T, ‘The Government’s Economic Response to the COVID Crisis’ (2021) 40(2) Review of Banking and Financial Law 315–421 Abstract: The COVID-19 crisis has been an economic, as well as a public health, disaster, and the government has responded to it by trying to loan money to as many institutions as it could, offering corporations, cities, states, banks, foreign central banks, and nonprofits access to cheap credit. The lending has been routed through the Federal Reserve Board, making the nation’s central bank not just a resource for banks, but a backstop for the entire economy. The deputization of the Fed, with the assistance of the Treasury Department, as an unfettered economic firefighter is something that can perhaps be legally justified, given that both agencies’ governing statutes were promulgated almost a century ago, when Congress freely established administrative authorities, and provided them with broad scope to regulate as they wished. Nonetheless, the unprecedented steps taken by the Fed need to be endorsed by the legislature much more clearly, Treasury’s role in economic response should be clarified, and both should be paired with some safeguards, because they have distributional consequences. The interventions have benefited firms over individuals, and big and small businesses over medium sized ones. The Fed and Treasury’s regulation-by-credit taken in this financial emergency more broadly calls into question the role of legal constraint when emergencies arise. Law matters, so legal reform is appropriate. Treasury’s and especially the Fed’s economic firefighter roles should, in the future, be triggered by a declaration of economic emergency by the President, a politically accountable figure.
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