From Mark Grant, author of Out Of The Box
Who is Minding the Store?
Recently I sat and mused with the Chairman of the Board of one of the major international banks. One of the subjects under discussion was the oversight of risk by the Board. This included investment risk, counterparty risk and the general exposure of the bank to what various parts of management were engaged in with their businesses. He assured me that they had multiple reports that were filtered up to the Board and I asked the question about who was designing the reports and were they accurate not in terms of information but in terms of their structure. Banks, insurance companies and other managers of money typically have respected members of the business community on their Board but often lack investment professionals to help provide some guidance and oversight for their dealer operations and for their trust operations so that the oversight by the Board is, frankly, insufficient. The complexities of any large dealer operation, in particular, are far past what the CEO of some main street corporation on the Board has any real knowledge of and the consequences of not having the appropriate people providing guidance can be catastrophic.
This schematic was clearly demonstrated recently at J.P. Morgan. The Directors of the Risk Committee had virtually no Wall Street experience and, consequently, had no real knowledge of the exposure of the bank except the data that they were given but then I doubt if they knew how to make any real sense of the numbers in front of them and certainly they did not have enough experience to judge if those figures were all that they needed to make informed decisions. Now JPM is facing investigations by half a dozen Federal Agencies including the Department of Justice and this was caused, in my opinion, by not having the appropriate people in oversight positions on the Board. Smart people always learn from their mistakes but really smart people learn from the mistakes of others. Therefore I suggest to those of you in senior positions to stop and evaluate who is on your Board, who is on the Risk Committee and who is minding the store because it is the Board, in the final analysis, that is ultimately responsible for the business of your institution and while you may have great faith in your management it is the Board, not those in executive positions, that are held accountable for the risks your firm has undertaken.
When the Defendants are also the Judge and Jury
“All within the state, nothing outside the state, nothing against the state. “
Here is a prescription for disaster. Here is an opiate that, once seen, should be avoided at any and all costs because the hand is a losing one far past any combination of cards on the Blackjack table. Yet, this is exactly what Europe is proscribing for owners of unsecured bank debt on the Continent. The importance of Friday’s announcement was not that unsecured bank debt owners were to take losses if some bank foundered but just who would be deciding what losses were to be taken. Yes, it is true, investors for the last three years had been assured and re-assured that the sovereign nation where the bank was domiciled would be back-stopping any bank bonds or that the European Union itself would ring fence all bond holders so that the announcement was in direct contention to what we had all been told to get us to support European bank debt. Europe had claimed responsibility and now they have withdrawn it and this reason alone is enough to push yields for European bank bonds far wider than where they are currently as the charade of one more contingent liability has been officially ended. I assert, just for this reversal in position, that the yields of all unsecured bank bonds on the Continent will gap out from their current levels as what we were told is not what we are to get any longer. The new EU bank plan normalizes the losses to put them on the same plain with the American banks but the second part of the story is where disaster lies and I mean unmitigated disaster.
In America we have a formalized process for insolvency, bankruptcy that is overseen by the Rule of Law and the decisions are made by our courts. We have a functioning judicial system and all manner of statutes and regulations so that claims on assets are a matter of well-established Laws that govern this process. This also used to be the way of it in Europe but now we are being told that the legal system on the Continent is going to be irrelevant which will include, by the way, all of the nations in Europe including Great Britain. What the European Union has tossed on our plate is some sort of gruel that no one should eat for it is full of deadly poison; of that I have absolutely no doubt. The new EU bank plan states clearly and without remorse that the decisions for any bank insolvency will be made by Regulators. This would be people appointed by European politicians, this would be bureaucrats, this would be employees of the State as Europe returns to the governance of the old Soviet Union where the Rule of Law was subordinated to the designs of the nation. Let me make this clearer; unsecured bank debt owners will have no rights, no due process and no appeal. The State will decide who is to get what, how much they will get and your rights as a bond holder will be about equivalent to Russia under Stalin where the legal system operated under the thumb of the man in charge. Further the regulators can, once again, exempt the EU, the ECB, the EIB, the IMF or whomever they like from any call on assets so that the bond owner can be subordinated to whomever the Regulators so desire. Then if they will impose this system of State dominance on unsecured bond holders today who is to say that they will not impose it on other classes of assets tomorrow. When the Rule of Law is replaced by the Rule of the State then I will proclaim, unconditionally and without qualification, that the system has been rigged for the benefit of the nations and to the detriment of any private citizens. Therefore there is only one rational conclusion that can be reached which is that no one should own any European unsecured bank debt, NONE, of any bank on the Continent as the Regulators in Europe can now decide the fate of the bondholders for any political reason that they deem relevant and expedient.
If you cannot read the writing on the wall then allow me to read it for you. The European Union has abrogated the Rule of Law for the good of the State. This is the second such abrogation with the first being the exemption of certain European institutions and the IMF from the Private Sector Involvement of Greece. Greece may be a one-off exemption as they claim but we now have a second instance where jurisprudence has been overturned for the good of the nations of Europe. This is not Socialism or Capitalism but rather some sort of Fascist governance which I publically decry as the echo of the jackboots sounds across the Continent once again. The precedents have now been set and the future is clearly marked by a return to the totalitarianism of a politically controlled State. My advice is therefore succinct: