Bank Governance Regulation between Special and General Law

Abstract

The article focuses on the provisions about Bank Governance in the «Fourth Capital Requirements Directive» (CRD IV - Directive 2013/36/EU), in the «EBA Guidelines on Internal Governance» and in the italian regulation (Supervisory Regulation of Banca d'Italia, issued in 2014). In the first part we explore the relationship between special regulation of banks and general corporation law, trying to discuss how the specialness of banking structure, business and regulation interacts with governance items; and at the same time to understand if some rules are able to be considered as a standard or as a best practice for general corporation law. The second part of the article criticizes some mandatory solutions, i.e. the so called «diversity » about boards' composition (that we consider unfit to improve administration and to avoid excessive risk taking behaviours), and the enhanced members liability (we suggest that special regulation is not able to compromise the so called «business judgement rule» and the principle of directors' personal liability). We also appreciate some rules, i.e. the separation of chairman and CEO, and some provisions about dualistic system, in order to fix a more certain distribution of respective tasks of each figure within corporate structure. In this context, we highlight the need of harmonising banking regulation, for the purpose of a better supervision from banking authorities.