After the Reference: Regulating Systemic Risk in Canadian Financial Markets
Author | Anita Anand |
Pages | 197-221 |
• 197
Aer the Reference:
Regulating Systemic Risk in
Canadian Financial Markets
Anita Anand1
A. Introduction
markets, believing that such risk could cause the markets that
they oversee to implode. At the same time, they have demonstrat-
ed a certain inability to develop and implement a comprehensive
policy to address systemic risk. This inability is likely due not
only to indeterminacy inherent in the term “systemic risk” but
also to existing institutional structures which, because of their
central to the current inquiry. In this chapter, using the Supreme
Court of Canada’s recent decision in the Securities Reference case
as a springboard,2 I analyze and clarify the term “systemic risk”
crisis. I then propose the creation of a systemic risk regulator for
Canada, the Financial Market Regulatory Authority (FMRA).
1 Thanks to Jeff MacIntosh for very helpful comments and to Grant Bishop,
Adam Curran, and Chava Schwebel for excellent research assistance
funded by the Social Sciences and Humanities Research Council of
Canada.
•
The main holding in the Securities Reference case is the
rejection of the federal government’s proposed statute3 as a whole
because it falls outside the general trade and commerce power
in the Constitution.4 The Court further held, however, that
trade and commerce power and are therefore constitutional. The
viable n ational s cheme. With t he Supreme Cou rt’s endors ement
of the federal government’s jurisdiction in regulating systemic
risk, questions arise: What is systemic risk, and how (if at all)
should it be regulated?
The term “systemic risk” inspires ambiguity, despite the
volumes of academic writing in this area.5 While many agree
institutions such that the failure of one may lead to the failure
which the risk should be crystallized and whether the contem-
entire economic system.6 This chapter weeds through various
3 Proposed Canadian Securities Act (25 May 2010), online: Department of
4 Securities R eference, above note 2; Constitution Act, 1867 (UK ), 30 & 31
5 This writing is reviewed and discussed in Steven Schwarcz, “Systemic
Risk” Duke Law School Legal Studies Resear ch Paper No 163 (March
Securities Regulation?” (2010) 60 UT LJ 941 [Anand]; Miquel Dijkman,
A Framework for Assessing Systemic Risk (World Bank Policy Research
Hartmann, Systemic Risk: A Surve y (European Central Bank Working
Paper No 35, November 2000); George G Kaufman & Kenneth E Scott,
“What Is Systemic Risk, and Do Ban k Regulators Retard or Contribute to
It?” (2003) 7:3 The Independent Rev 371 [Kaufman & Scott]; John Taylor,
& John Taylor, eds, Ending Government Bailouts As We Know Them
João AC Santos, Bank Capital Regulation in Contemporary Banking
Theory: A Review of the Literature (Bank of International Settlements
(BIS) Working Paper, No 90, September 2000); Seraina Gruenewald,
“Financial Cr isis Containment and its Implications For Institutional and
Legal Reform” (31 December 2009), online: Social Science Resea rch Net-
work papers.ssrn.com/sol3/papers.cfm?abstract_id=1516700.
6 See Kaufman & Scott, ibid.
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