LSE - London School of Economics - Department of Law

Joanna Benjamin

Joanne Benjamin

Professor Joanna Benjamin is emeritus professor of law at the London School of Economics. Joanna has consulted for major law firms, financial institutions and industry bodies in the city of London for many years. Previous positions include: member of the Bank of England's Financial markets Law Committee and Deputy Chief Executive, Financial law Panel. Joanna is frequently consulted by the public sector in the UK, EU and internationally.

Research Interests

Joanna's research interests focus on legal risk in the international financial markets.

External activities

Consultancy and advice to the public sector has included:-

- member of the Bank of England's Fair and Effective Markets Review Academic Panel (2014)

- delegate to UNIDROIT committee of governmental experts, intermediated securities, Nov 06

- addressed EU Council as English expert in relation to proposed law reform relating to indirectly held securities, Oct 06.

- Assisting the Law Commission in relation to indirectly held securities (2005 - present);

- Assisted Central Bank of Ireland in relation to securities lending (2005);

- Member of Bank of England's Financial Markets Law Committee (2002 - present);

- Member of Financial Markets Law Committee working party on indirectly held securities (2002 – 2005)

- UK delegate, European Commission clearing and settlement legal certainty project (2005 – 2008)

Consulted by Law Commission in relation to proposed reform of corporate securities law (2002 – 2004).

- Consulted by UNIDROIT concerning right of use of securities collateral (2003)

- Member of International Bar Association Legal Risk Committee (2003 - 4)

- Assisting London Economics in consultancy to European Commission on competition issues on EU securities markets (2003 – 4);

- Invited to address the European Central Bank and delegates from EU national central banks on legal aspects of straight through processing (2002);

- Consulted by The World Bank in relation to financial collateral survey (2002);

- At the Financial Law Panel assisted HM Treasury and The Financial Services Authority in the development of policy for regulating financial services on the Internet (1998-9).

- Member of Financial Law Panel working parties on E-Commerce and Jurisdiction, and E-Commerce and Substantive Law (2000 - 2002);

- Member of International Swaps and Derivatives Association Working Party of EU Collateral Law Reform (1999 – 2000);
- Member of Bank of England Working Party on the Dematerialisation of Securities (1998 - 2001);

- Assisted World Bank on collateral and derivatives (1998);

- Chair of practitioners' working group on conflict of laws and immobilised securities (1998);

- Member of Trust Law Committee Working Party on Equitable Problems in the Financial Markets (1996);

- Assisted Financial Services Authority in connection with regulation of custody of investments (1994 – 2001);

- Member of Law Society Standing Committee on Company Law, CREST Working Party (1994 –2001);

- Assisted Bank of England to advise on collapse of TAURUS (1993);

- Regular submissions to regulatory and governmental bodies concerned with international financial law (1993 – present)

Editing:-

- Editor and Member of Core Steering Committee, Butterworths Journal of International Banking and Financial Law

- invited to join advisory board of Capital Markets Law Journal

While in practice:-

- Described by the Financial Times as "a leading authority on the law relating to international clearing systems and the international trade in securities", March 1998;

- Cited in Chambers and Partners Directory as "a market leader in financial services law" (1997/8);

- Cited in The Legal 500 as "particularly well regarded in financial services";
(Financial Services) (1996).

Joanna assisted the Law Commission in its project on property rights in investment securities. http://www.lawcom.gov.uk/investment_securities.htm

She was part of the UK delegation to the UNIDROIT Committee of Governmental Experts for the preparation of a draft Convention on Substantive Rules regarding Intermediated Securities, November 2006.

Books

Financial Law (Oxford University Press, 2007)

The traditional financial market sectors of insurance, commercial banking, derivatives, capital markets and asset management are converging in practice, but their analysis is still largely sector-based. This book offers a cross-sectoral, functional approach. It highlights anomalies in the different legal treatment of the respective sectors (suggesting law reform to sum, and arbitrage opportunities to others) and identifies key trends.
This book offers an integrated approach to financial law which is both useful and timely, as the markets have been converging for over two decades. Functions traditionally performed in one sector are now undertaken in another, and financial techniques are emerging which combine characteristics of different traditional transaction types. Investment banks increasingly offer new structured products in a range of alternative legal "wrappers". Securitisation, particularly in association with credit derivatives, continues to be a dominant force, drawing ever more categories of business into the capital markets.

click here for publisher's site

The Law of Global Custody (with Madeleine Yates) (Butterworths, 1996, 2nd edition 2003)

This book, presented at its book launch by Lord Browne-Wilkinson, examines the legal and regulatory basis of the international industry of safekeeping, settling and administering portfolios of investment securities. The impact of the transition from a paper based to an electronic environment is assessed, and the transformation of the EU post trade infrastructure considered.

Interests in Securities (Oxford University Press, 2000)

This book, presented at its book launch by Lord Millett, provides a proprietary law analysis of the international securities markets, including the indirect holding pattern of securities, a wide range of securities-based products, securities collateral of all types and the post trade infrastructure.

click here for publisher's site

Selected articles
and chapters in books

J. Benjamin and M. Raffan, 'Wholesale Markets and the Limits of Regulation', IFLR, December/January 2015, Vol 40.

Over six years have passed since the failure of Lehman Brothers. Many millions of expert hours have been devoted to framing and implementing financial market regulatory reforms. But there is little sense among the public that the financial services industry is serving the collective good. Hating bankers remains a national sport. Why is successful financial market regulation such a hard nut to crack? There is much distinguished comment on this problem, most of it from economists. Yet regulation is part of law, and its apparent lack of traction is, in part, a legal issue. Some good examples of this – old and new – include the Fair and Effective Markets Review (FEMR), the limits of fiduciary duty, legal factors contributing to short-term investment, and perverse legal incentives.

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'The law and regulation of custody securities: cutting the Gordian knot' Capital Markets Law Journal (2014) 9 (3) pp.327-338

'The future of securities financing' Law and Financial Markets Review (1752-1440) 7 (1), p. 4.

'The Narratives of Financial Law' Oxford Journal of Legal Studies (2010) 30 787.

'Lessons from Cukurova' with Felicity Mayer, Capital Markets Law Journal (2008) and Insolvency Intelligence (2008) and 'Cukurova in the Court of Appeal' case note, Insolvency Intelligence (2008)

'Law and regulation for global financial markets' with Paul Bowden and David Rouch Law and Financial Markets Review (2008)

'The international financial markets as a source of global law' with David Rouch Law and Financial Markets Review 2 (2008) 78;

'Providers and distributors: responsibilities in relation to retail structured products' with David Rouch Law and Financial Markets Review 1 (2007) 5 413

"The Sources of Legal Risk", Butterworths Journal of International Banking and Financial Law, April 2004, special supplement.

Identifies the legal, operational and market based sources of legal risk in the wholesale financial markets.

"An Introduction to Managed Funds", Butterworths Journal of International Banking and Financial Law, December 2004 and January 2005.

Presents the law and practice of the managed funds industry based in London.

"Overview of the Post Trade Infrastructure", Butterworths Journal of International Banking and Financial Law, March, April and May 2003.

Considers fragmentation and legal risk in the EU post trade infrastructure, and legislative and operational reforms seeking to address them.

"The Dematerialisation of Money Market Instruments", in Commercial Law and Commercial Practice, S. Worthington (ed.), 2003, Hart.

Analyses the substantive law and cultural implications of the transition from paper based to electronic practice in the MMI markets.

click here for publisher's site

Chapter on English Law, Cross Border Collateral: Legal Risk and Conflict of Laws London, Butterworths, 2002 (with Guy Morton and Richard Potok).

Analyses the English law conflicts position for cross border securities collateral.

"Intermediary Credit Risk in the Indirect Holding System for Securities", Duke Journal of Comparative and International Law, 2002 (with Steven Schwarcz).

Assess the exposure to credit risk for investors and collateral takers in the insolvency of custodial intermediaries.

click here for full text of the article

"Security of Transfer and Formalities of Transfer in the Electronic Financial Markets", Butterworths Journal of International Banking and Financial Law, March 2001.

Considers the impact of computerisation on the interrelation of the principles of security of transfer and security of title, insolvency displacement and formalities of transfer in the financial markets.