Reflexive Agency in the Legal Framing of Off-Balance-Sheet Financial Innovations: The Evolution of Leasing in Germany from 1962 to 1991

Transcription

1 Reflexive Agency in the Legal Framing of Off-Balance-Sheet Financial Innovations: The Evolution of Leasing in Germany from 1962 to 1991 Jan Friedrich (Goethe University Frankfurt/SAFE Research Center) 1

2 What is this Paper about? (1) I ask: How does it come that off-balance-sheet Financial Innovations, involving regulatory arbitrage, get legally framed? Why do they persist??? 2

3 My Case: Growth of 800% after initial legal framing All leases in Germany are off-balance sheet A young off-balance-sheet instrument (emerged in 1962 in Germany) 3

4 What is this Paper about? (3) I argue: The Resiliency of off-balance-sheet instruments is the result of historically grown means Ties to (state) actors Science as a Resource Reflexive Interaction with Social Context 4

5 Theoretical Frame Field Theory Socio-legal Scholars Law is Endogenous Exogenous Certification + Ties Reflexivity/Reactivity (Regulatory Arbitrage) Social Studies of Accounting + Giddens 5

6 Method A) Document Analysis B) 5 Expert Interviews - involved in Regulatory Debates (from 1968 onwards) C) Bibliographic Analysis 6

7 The Emergence and Certification of Leasing in Germany (1) social practice Regulation by Courts and subsequent tax enactments (Endogenous) Vindication of social practice??? In essence, the Court determined an On-balancesheet treatment for Leases No! Why??? Scientific discourse 7

8 The Emergence and Certification of Leasing in Germany (2) The Leasing industry directly intervened in the formulation of the subsequent tax enactments (released 1971,1972,1975,1991) The Tax enactments embedded and framed the court decision Sharp bright-lines Exploitation through Regulatory Arbitrage Off-balance-sheet effect 8

9 The Emergence and Certification of Leasing in Germany (3) The Industry observed and understood the link between Accounting literature and Regulation The Industry sought to shape the scientific discourse in their favor as a means for Regulatory discussions (Sponsered Research Center) Can you find this shift in the Literature? 9

10 Bibliographic Analysis 361 Publications in German Language from 1962 to 1991 in the contested areas a) Commercial Law and Taxation as well as c) Civil Law Analysis regarding author affilations: -> direct = Member of German lobbying body or works for a lessor -> indirect = Sponsored research studies, bankers, publications in journals or books of the industry, one or more co-authors are directly associated with the industry 10

11 A) Commerial Law 11

12 B) Taxation 12

13 C) Civil Law 13

14 Regulatory Contestations : Institute of Public Auditors in Germany (IDW) in 1973 sought to bring leases on balance sheet Repelled by combination of Sponsored Research Studies + Ties to State Agencies/Banks 1983: Attempt by the State to put Leasing sector under supervision (Bankruptcy of largest European Lessor due to accounting Fraud) Fended off though newly established ties to state actors, stemming from the industries involvement in scientific discourse : Contestation of Academics in the area of Civil Law Repelled by involvement in scientific discourse 14

15 Discussion and Conclusion Contributions: Empirical I provide empirical evidence for the endogeneity of law, however, I argue that the vindication of social practices can be superseded by other institutional forces, in particular by deviating scientific discourses I complement the study from McLeah et al. (2000) crucial role of academics in the rule-making process in Germany (through comment letters) as I show that publications in grey (accounting) literature also have a strong impact Theoretical Market actors may reflexively (Giddens 1979) interact with their social context (Hopwood et al 1985) to achieve certain ends 15

16 Thanks for your Attention! 16