Posible papel de la interacción cabeza-cola en la regulación de C3G

9.2.1 Payment systems can have a wide variety of cross-border aspects. At one extreme, a system can include sophisticated arrangements for making cross-border payments, involving operations in multiple currencies and participants in several jurisdictions. Further down the scale, payment systems can include facilities for remote access by participants located in countries or jurisdictions other than the system’s own, or, more simply, a system can have participants that are either foreign-owned domestic institutions or the local branches of foreign institutions. The issues that such cross-border aspects raise become increasingly important as the scale of cross-border activity grows. For example, the worldwide trend towards greater financial integration tends to mean that correspondent arrangements are used less and that there is increasing demand for payment systems that allow payments to be exchanged and settled directly among participants located in more than one country or jurisdiction.

9.2.2 There are a few prominent examples of large-scale payment systems operating in more than one jurisdiction. For example, the TARGET system of the European System of Central Banks and the payment system of the BCEAO for the West African Monetary Union process and settle payments in a single currency within a monetary union. There are also several examples of systems that process payments in more than one currency. Payment systems with more limited cross-border aspects are relatively common.

9.2.3 The following paragraphs draw attention briefly to some of the main issues that arise in complying with the Core Principles or in overseeing compliance where a system has cross-border aspects. These are not, for the most part, wholly different from issues that arise for purely domestic systems, but cross-border aspects can add to their importance or complexity.

Complying with the Core Principles

9.2.4 Compliance with Core Principle I, in particular, can be considerably more complex where a system has cross-border aspects. In order to establish whether a system has a well founded legal basis, it is necessary to assess not only whether the arrangement is legally robust in its domestic legal environment but also to identify possible conflicts between the relevant laws of the domestic jurisdiction and laws of other relevant jurisdictions. In determining which jurisdictions are relevant, a range of possible circumstances needs to be taken into account. As well as the jurisdiction whose laws govern the system itself, any other jurisdiction is relevant if its laws govern participants, for example participants located or licensed in other countries, whether they have a local presence (for example a branch) or whether they access the system remotely. Insolvency laws are likely to be particularly important, but the laws governing collateral arrangements (see Box 2), settlement finality, or dispute resolution can also be relevant.

9.2.5 Cross-border netting is a particular example of an arrangement that can give rise to complex legal issues. A system engages in such cross-border netting if it settles payments on a net basis and if

whether a particular case of cross-border netting is legally well founded requires an examination of any law that could be relevant to the arrangement itself, to any central counterparty involved in the netting, or to the involvement of any of the system’s participants (their head offices and relevant branches), particularly in the event of a participant’s insolvency. The detailed arrangements for any system involving cross-border netting would need to be examined, for example by obtaining specific legal opinions. It would not normally be sufficient to rely on opinions expressed in more general terms. In several countries, there has been recent legislation that can be expected to simplify such assessments and to improve the reliability of their conclusions. For example, there are current programmes of legislation to ensure the enforceability of netting under all jurisdictions of the European states belonging to the European Economic Area. The centrepiece of this programme is the Settlement Finality Directive, which was adopted in May 1999 (see Box 3 for a discussion of the directive).

9.2.6 Issues involved in complying with certain of the other Core Principles can also be more complex where a system has cross-border aspects. For example, a multicurrency system requires careful consideration of the risks associated with the settlement assets in relation to compliance with Core Principle VI. See Paragraph 7.6.6 for a discussion of systems that settle in claims on a central bank in a currency which that central bank does not itself issue.

9.2.7 For systems with significant cross-border aspects, the issue can arise of whether to establish more demanding standards for participation than for domestic systems. For example, there might be a case for restricting eligibility to participate in the system in such a way as to ensure compatibility of legal jurisdictions, a comparable ability to bear and manage risks, or the ability of all participants to comply with technical standards. In order for the system to comply with Core Principle IX, it is important that any such requirements are proportionate to the risks involved and are reasonable, fair and publicly disclosed. See Paragraph 7.9.6 for a general consideration of how to approach the trade-off between open access and risk and/or efficiency.

Overseeing compliance with the Core Principles

9.2.8 Systemically important payment systems with significant cross-border aspects can affect financial stability in more than one country. In the worst case, a problem in such a system could transmit disturbances to others. For this reason, close cooperation among all relevant overseers and supervisors of the parties involved is desirable in such cases. (This is discussed in Paragraph 8.4.4.)