Self-regulation: Is it time?

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NCFA Canada | Robin Ford, Advisory Group | 12 Jan 2018

 

The problem

A.  NCFA’s objective for regulation is that it should cost-effectively support (or not unduly inhibit) a competitive and vibrant crowdfunding regime and fintech industry in Canada that provides enhanced access to capital and investment opportunities and is worthy of  investor confidence.

B.  However well-intentioned, the current regulatory regime is inhibiting innovation and competition in Canada (although other factors are also in play). Please see the most recent NCFA submission to Ontario Ministry of Finance: ‘Urgent Need for Regulatory Change’ or the Competition Bureau's market study report titled ‘Advancing the Dialogue on the Future of Financial Services’.

C.  Detailed, prescriptive regimes can cause harm by (among other things): (1) not providing the right incentives for businesses to take responsibility for managing themselves well and treating customers fairly, and (2) distracting senior management and boards from focusing on essential governance improvements, strategic planning, policy and process improvements, fundraising, marketing, etc.

D.  NCFA has argued that the regulatory environment in Canada must change so fintechs, and start-ups generally, may enter the market, grow, and thrive. But supportive regulation is not enough.   Businesses must do more to bridge the gap between starting up, scaling up and maturing.  This is especially true if regulation does not focus on the right things.

E.  So - what can platforms and issuers (and prospective issuers) do, besides continuing to lobby for regulatory change? Answer - quite a bit. This brief post aims to start a conversation about self-regulation and the “right things”.

 

Self-regulation

  1. Self-regulation can be defined as: “regulating (i.e, controlling or governing conduct) without intervention from external bodies”. Self-regulation includes written or unwritten internal policies and procedures (specific to a business) and may extend to regulation by an IIROC-type self-regulatory organization (Investment Industry Regulatory Organization of Canada).

  1. While the NCFA has no particular outcome in mind at this stage, we think most would agree that:

(1) as industries or businesses grow and mature, self-regulation becomes more important and must itself mature;

(2) good self-regulation can enhance the profitability and growth of businesses or sectors by reassuring and educating investors and clients/customers (building knowledge and trust), by improving and aligning business processes (for greater cost effectiveness), by helping to attract and keep employees and so on.

 

  1. There is another benefit.

“As regulators start to develop their own measures for setting and enforcing cultural norms there is a clear advantage for boards who can get ahead of this trend and demonstrate leadership in setting a culture that is strategically effective as well as meeting the lowest common denominator of regulatory acceptability. Companies with strong cultures that support their strategic aims will outperform those with weak or unaligned cultures.” - https://www.linkedin.com/pulse/why-culture-issue-board-julie-garland-mclellan/

Appropriate and effective self-regulation can also help to persuade an external regulator that the businesses being regulated pose a lower risk to its regulatory objectives. If so, supervision may be less intense and specific requirements may be less constraining. It can also help to shift the regulatory approach to one that is more principles based and outcomes focused, and to matters (the “right things”) that are arguably more important for the achievement of regulatory objectives than many of the prescriptive requirements that businesses in Canada now face (and not just from capital markets regulators).

See:  Fintech Regulation: Achieving the right balance to foster innovation

What outcomes should businesses be aiming for? There are several questions to ask:

(1) Our starting point is the UK Financial Conduct Authority's principles for businesses. Capital markets regulators in Canada tend not to require or focus on  these principles, but for UK regulators they are almost always the first priority.  Indeed, the regulatory approach of the FCA (and the FSA before it) has ensured that the principles have become not only the priority  for the capital markets regulators, but also for the regulated firms.

In the UK, regulated firms must be able to demonstrate to the FCA at all times that they meet the principles for businesses, which are:

  1. Integrity: a firm must conduct its business with integrity.
  2. Skill, care and diligence: a firm must conduct its business with due skill, care and diligence.
  3. Management and control: a firm must take reasonable care to organize and control its affairs responsibly and effectively, with adequate risk management systems [and, in particular - robust governance arrangements, a skilled and knowledgeable staff, and adequate record-keeping].
  4. Financial prudence: a firm must maintain adequate financial resources.
  5. Market conduct: a firm must observe proper standards of market conduct.
  6. Customers’ interests: a firm must pay due regard to the interests of its customers and treat them fairly.
  7. Communications with clients: a firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.
  8. Conflicts of interest: a firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.
  9. Customers relationships of trust: a firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely on its judgment.
  10. Clients’ assets: a firm must arrange adequate protection for clients’ assets when it is responsible for them.
  11. Relations with regulators: a firm must deal with its regulators in an open and cooperative way, and must disclose to the appropriate regulator any thing relating to the firm of which that regulator would reasonably expect notice.

 

We suggest that every business, regardless of regulatory requirements, should be able to make a clear, positive statement to its stakeholders about what it is doing to comply with these principles. 

Since regulation should be proportionate and reflect the nature, scale and complexity of the business (and the risk the activity may pose to consumers), each business will comply with the principles in a different way and will ramp up or change its internal standards and compliance as it grows and matures. At the same time, self-regulation should align with (and perhaps support) external regulation.

See:  The ICO Governance Deficit

(2) Better self-regulation for which sectors in particular? - portals, fintech, DLT, cryptocurrencies, start-ups, ICOs? What are the areas in greatest need of improved self-regulation (for either business improvement or greater trust or both)?

(3) What principles for businesses matter the most right now? For example, should we focus on standards of market conduct?  If so, then (as a first step) a code of market conduct might be suitable. If so, should it be an industry code of conduct that businesses can sign up to? How should it be enforced? Would the code of conduct  be worth the paper it is written on if there is no independent and transparent supervision?  Or would regular reporting by the businesses using the code be sufficient to persuade stakeholders that it is adding value?

(4) How should we take this discussion forward (if at all)?  What role could NCFA play - leader, issuer of guidance, educator?   What other organizations should be involved with this collaborative domestic/- global community effort?

We’d love to hear your views!

Please let us know what you think by email to info@ncfacanada.org by January 19, 2018.

 


The National Crowdfunding Association of Canada (NCFA Canada) is a national non-profit actively engaged with social and investment crowdfunding, alternative finance, fintech, peer-to-peer (P2P), initial coin offerings (ICO), and online investing stakeholders across the country. NCFA Canada provides education, research, industry stewardship, networking opportunities and services to thousands of community members and works closely with industry, government, academia and eco-system partners and affiliates to create a vibrant and innovative fintech and online financing industry in Canada.  For more information, please visit: www.ncfacanada.org

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