The Regulation of Corporate Governance in European Financial Market Infrastructures: A Critique

Ferran Eilís and Hickman Eleanore ()
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Ferran Eilís: Professor of Company and Securities Law, University of Cambridge. Independent director of Euroclear but writing in personal capacity, views not attributable to Euroclear.CambridgeUnited Kingdom of Great Britain and Northern Ireland
Hickman Eleanore: Lecturer in Company Law and Corporate Governance, University of Bristol.BristolUnited Kingdom of Great Britain and Northern Ireland

European Company and Financial Law Review, 2024, vol. 21, issue 1, 1-38

Abstract: 1This article is the first to consider the variations in governance requirements applicable to European financial market infrastructures. It charts the tangled combination of laws, codes and regulations that apply to the governance of the largest European central counterparties, central securities depositories, and international central securities depositories. Despite the similarity of these institutions in terms of their sector, criticality, complexity and purpose, there are substantive variations in what is required of their governance. Here we question whether this variance is an appropriate reflection of differing institutional needs or a by-product of piecemeal regulatory reform.Our research found no apparent need to regulate for consistency of board size or structure, nor in relation to specificities of committee requirements. However, there are convincing arguments that change is needed around the meaning and application of independence. The current approach to FMI directorial independence is a poor fit given the sectors highly technical nature, its interconnectedness, and the limited pool of available expertise. On top of this, expertise, diversity, and commitment can become trade-offs for adherence to the requirements of independence. We argue that regulation needs to be sensitively calibrated to ensure these important factors do not get squeezed out under the weight of formalized independence. It is our view that independence requirements can be structured to create better balanced boards where the needs of independence, expertise, diversity, and commitment can be weighed against each other in context.

Date: 2024
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DOI: 10.1515/ecfr-2024-0001

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