Compliance - En gränsöverskridande undersökning i finansmarknadsrätt, bankrätt, värdepappersmarknadsrätt och straffrätt

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: Financial markets have a central role in a well-working society and a bank has a central role on a well-functioned financial market. The characteristic of a bank’s business contributes to the financial ecosystem and promotes stability on the financial market. The society is undeniably becoming more and more globalised. This, combined with a constant technical development, has continuously led to the development of financial instruments and markets. This results in great opportunities but also great risks for financial markets. One of these risks is the compliance risk, which is a type of operational risk. The compliance risk may be understood as: ”The expression ’compliance risk’ is defined […] as the risk of legal or regulatory sanctions, material financial loss, or loss to reputation a bank may suffer as a result of its failure to comply with laws, regulations, rules, related self-regulatory organisation standards, and codes of conduct applicable to its banking activities (together, ’compliance laws, rules and standards’)”. (The Basel Committee in Compliance and the compliance function, s. 7, 3 §). Throughout the years, financial markets around the world have been affected by numerous disturbances causing instability on financial markets. This has led to devastating consequences for the financial markets, its actors, as well as for the society as a whole. However, on the other hand, the occurrence of financial crises, does also create opportunities for necessary changes. For example, the Basel Committee was established by the end of the 1970s and upholds financial stability at financial markets, the Financial Action Task Force was established in the late 1980s and promotes the work to prevent money laundering and terrorist financing. These intergovernmental institutions are today providing guidance within each sector. Recent examples on such financial crises are the large bank crises in Sweden at the beginning of the 1990s and the global financial crisis which inter alia led to the collapse of Lehman Brothers in 2008. These crises have resulted in an intense work with developing new regulations for financial markets. Since 2008, efforts at the international level have mainly focused on developing a common ambition of a more integrated legislation from the European Union. New intergovernmental institutions have been established and existing ones have been provided a larger influence. The ambition is that the intergovernmental efforts will result in the prevention of financial crises as well as prevention of money laundering and terrorist financing. The effort to prevent money laundering and terrorist financing has also contributed to a more internationalised legislative work. The Fourth Money Laundering Directive has been adopted and it is expected to be implemented into Swedish legislation within the near future. The Directive was designed to reduce the risk of financial markets being affected by money laundering and terrorist financing, to develop the risk based approach and to initiate more detailed legislation regarding simplified customer due diligence. Against the backdrop of this international legislative work for financial markets and the prevention of money laundering and terrorist financing, the term compliance has been developed. Today, it is necessary for a bank to have a well-working compliance function. The Banking and Financing Business Act (2004:297) was established as a reaction to the large bank crises in Sweden. The implementation of this Act resulted in an increased authority of Finansinspektionen concerning supervision. Based on this, it is today Finansinspektionen which at a national level is the inspection authority for the financial market, and which establishes the prerequisites and expectations of how a compliance function is to be structured within a bank. This has been issued through Finansinspektionen’s general guidelines (FFFS 2005:1) regarding governance and control of financial undertakings. A bank should apply these general guidelines to be able to satisfy the rules regarding risk management in Chapter 6, Section 2 of the Banking and Financing Business Act (2004:297). There are different opinions regarding Finansinspektionen’s supervision work as such and there are different opinions on whether the directions and the practical guidelines are inadequate or not. Hence, responsibility is given to practitioners to spend an increasing level of resources to structure their own compliance function since the banks are exposed to numerous risks. These compliance risks, if realised, will result in high costs and possibly large losses. However, if these risks, are transformed into opportunities, the bank sector will benefit from positive synergy effects and enhanced market credibility. If all practitioners apply this ambition in a reliable, reassuring and preventive way, the financial industry as a whole will benefit from the enhanced credibility. Viewed from a more long-term perspective, criminological purposes may even be fulfilled. The compliance function may be structured in different ways depending on several conditions, which this thesis aims to examine. Due to a lack of national guidance and guidelines, practitioners may apply international conditions to succeed with building a solid structure of the compliance function. An important document to consider is the Compliance and the compliance function by The Basel Committee, which contains best practice for banks. An additional approach to learn how the compliance function shall be structured is to consider exemplifying practice nationally and internationally. These practices indicate when and in what manner compliance risks are realised and may be conversely interpreted as an illustration of expectations on a bank. A fundamental pre-requisite to succeed with the work is to allocate sufficient amount of resources to handle this constant growing opportunity.

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