Fri, 19 Jan 2007South Africa’s financial regulators sleep as the best minds in the private sector gorge on dividends of greed.Nothing that happened in 2006 reduced the risks of the global financial system hitting a paranormal glitch and degenerating into a serious meltdown. Minor financial systems such as South Africa’s would be drawn haplessly into the maelstrom, and disappear down into the sewage pipes.
If anything, systemic risks increased during 2006. During the year, the UK’s super regulator, the Financial Services Authority (FSA), suggested that hedge funds could be the most potentially dangerous of legal creatures frequenting the global investment scene. The FSA identified 11 key risks associated with hedge funds, not least “serious market disruption and erosion of confidence”.
Around 10 000 hedge funds now populate the global financial scene. However, as the FSA states, it’s difficult to assess how many funds are operating due to “the largely unregulated and sometimes opaque nature of hedge fund operations”. Nowhere are hedge funds fully regulated.
The benchmark for hedge fund debacles remains John Meriwether, the once-fabled Salomon Brothers bond trader on Wall Street. Meriwether founded Long-Term Capital Management (LTCM), a hedge fund, in 1994. LTCM was populated with best-of-the-breed, including Nobel-prize winning economists Myron Scholes and Robert Merton, and also David Mullins, a former vice-chairman of the Federal Reserve, the US central bank.
Apparently smart investors, including the inevitable investment banks, charged to invest, pumping $1,3bn into LTCM up-front. Less than four years later, LTCM was technically bust; to avoid a possible systemic crisis in the global financial system, the Federal Reserve drummed up a $3,5bn rescue package from leading Wall Street investment and commercial banks. At one point, LTCM had around $1 400bn in gross exposures and, at one stage, displayed a leverage ratio of over 50 to one.
Hedge funds are among the supreme hyenas of the investment world. Many of their numbers (such as Meriwether) earned their dubious stripes at investment banks, where hyena royalty remains to this day. The growth of the hedge fund industry, and its size, may have galvanised recent interest by regulators, but investment banks remain the single biggest threat to the stability of the global financial system.
Investment banks deploy the muscle inherent in huge balance sheets, and exploit the brains of the brightest graduates available. These brains, which become scrambled within a relatively short period of time, are devoted almost exclusively to seeking and finding loopholes in the legal system, and exploiting the gaps like pirates hunting down hapless prey on the high seas.
Just as a high performance racing vehicle needs an appropriately qualified mechanic (politely called an engineer), investment banks work alongside lawyers, auditors, accountants and credit rating agencies. These combines go to extraordinary lengths to cover their tracks and confuse regulators and law enforcement agents, to say nothing of investors. On occasions, these royal hyenas are caught with their hands in the cookie jar. The results can be spectacular.
In June 2005, in a nine-to-zero decision of the US Supreme Court, erstwhile chief justice William Rehnquist ruled that Arthur Andersen, the once long-serving auditor of Enron, a Houston-based entity, had been wrongly found guilty on a single conviction of obstructing justice. Yet the failure of Enron ruined Arthur Andersen; its 2002 conviction forced 85 000 employees around the world to go find work elsewhere.
The perpetrators behind the Enron failure (beyond certain Enron executives) were, as it turned out, a motley crew of Wall Street investment bankers. Last year a US federal court approved a $6,6bn civil settlement by three of the banking entities accused of helping Enron hide financial abuses that led to its collapse.
There have been - or still are - Enron-related cases against, among others, JPMorgan, Barclays, Credit Suisse First Boston, Merrill Lynch, Canadian Imperial Bank of Commerce, Toronto Dominion Bank, Royal Bank of Canada, Deutsche Bank, and Royal Bank of Scotland. None of the investment banks that have offered settlements have admitted any wrongdoing. No doubt they’re all stone innocents.
Auditors and accountants – even when dressed in drag – can also stray, notwithstanding the innocence of the late Arthur Andersen in the Enron catastrophe. In August 2005, the US authorities announced that KPMG LLP, part of KPMG, one of the “big-four” global auditors, had admitted to criminal wrongdoing, and agreed to pay $456m in fines, restitution and penalties as part of an agreement to defer prosecution of the firm in respect of selling tax shelters between 1996 and 2002.
KPMG – “audit, tax, advisory” - admitted that it engaged in a fraud that generated at least $11bn in phoney tax losses. A US tax authority stated that “the only purpose of these abusive deals was to further enrich the already wealthy and to line the pockets of KPMG partners”.
If there is a golden thread in this putrid tale, it’s in conflicts of interest. On December 20 2002, New York State attorney general Eliot Spitzer announced a $1,4bn settlement with ten investment banks “to resolve issues of conflict of interest”. The names included most of Wall Street’s biggest: Bear Stearns, Credit Suisse First Boston, Deutsche Bank, Goldman Sachs, JPMorgan, Lehman Brothers, Merrill Lynch, Morgan Stanley, Salomon Smith Barney, and UBS Warburg.
This breakthrough was accompanied by reaction to Enron. The US federal government enacted fierce new laws, not least Sarbanes Oxley, in full the Public Company Accounting Reform and Investor Protection Act. In the UK, there was the coming-of-age of the all-encompassing FSA. Believe it or not, some major pieces of new legislation have also hit the South African statute books in the past few years. But has anyone even heard of, for instance, the Securities Services Act, 2004? This statute has big and very sharp teeth.
The main problem is that South Africa’s regulators are just not up to scratch. Right now, there are a good number of disgusting deals present in the markets, right under the noses of the JSE, the Financial Services Board (FSB), Securities Regulation Panel, and Competition Commission. Ask the leading lights at these entities about why they’re sitting it out, and the buck gets passed. It’s very frustrating.
One of the reasons for the lack of action is the clear and present danger posed by lawyers. Teams of them move around like flocks of well-fed vultures. They arrive at meetings in large numbers, acting on instructions to intimidate by deploying mental pyrotechnics. If that fails, the lawyers are expected to issue direct threats, like bully boys bathed in testosterone during a break at school.
Conflicts of interest lie at the root of South Africa’s rotting corporate culture. Fortunes, running into hundreds of millions of rands, are being generated and paid as the dividends of greed. While global surveys continue to see South Africa slip in practically all rankings, concerns on the investment front are thankfully largely limited to errant investment bankers and their howling packs of professional supporters.
In the wider domestic financial markets, South Africa’s domestic hedge funds are small and ineffectual, and of nuisance value at best. There are, by contrast, some very big characters among the investment banking community. In Wall Street parlance, these characters are known as “big swinging dicks”. Let them swing, and let the vapours intensify.
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