Tristan Förster Regulierung von Verbriefungstransaktionen

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Securitisation transactions make it possible to isolate credit risks and transfer them to investors, which in principle leads to more efficient risk diversification in the financial system. This can increase both the stability and the allocative efficiency of the financial system.

However, it became apparent during the global financial crisis at the latest that securitisation, which does not result in a complete transfer of risk, can become a means of reducing regulatory capital requirements by way of regulatory capital arbitrage. Regulatory Capital arbitrage is therefore to be defined as the reduction of regulatory capital requirements without the (appropriate) reduction of economic risk. Regulatory Capital arbitrage has a destabilising effect on the stability of the global financial system and can lead to it no longer being able to fulfil ist macroeconomic tasks.

The regulatory optimum for the regulation of securitisation lies between these conflicting areas: On the one hand, securitisation regulation oriented towards the goal of economic efficiency should promote or enable securitisations that have positive effects on the allocative efficiency of the financial system. On the other hand, the negative effects, especially due to regulatory capital arbitrage, should be avoided or mitigated.

Against this background, the basic regulatory approaches for securitisation are examined on the basis of the economic theory of law, starting with the fundamental structures and functionalities of securitisation as well as the background of banking regulation theory, and own regulatory approaches based on regulation theory are formulated. In addition, the regulatory capital regulation of securitisations at the European level is presented and evaluated against the background of the guidelines developed for the best possible regulation.