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Questo articolo è stato pubblicato il 13 novembre 2012 alle ore 04:59.
L'ultima modifica è del 13 novembre 2012 alle ore 03:32.


The turnaround in the Italian judicial investigation on credit-rating agencies is neither unrealistic nor isolated.

The European financial crisis has brought down many taboos and clichés. Among them is the immunity of the rating agencies that had withstood the violent controversies that have intensified from the time when crisis hit the countries of Southeast Asia at the end of the ’90s. Since then, all major sectors subject to rating (sovereign countries, banks, companies, structured securities) have revealed serious deficiencies. A U.S. Senate report published in April 2011 states explicitly that “having given an inaccurate AAA judgment to structured securities has introduced an element of risk in the U.S. financial system, constituting a fundamental cause of the financial crisis. In addition, the general downgrade in July, which had no similar precedent either in number or in size, has precipitated the collapse of CDOs and RMBs on the secondary market and, perhaps more than any other event, marked the beginning of the crisis.”

These words illustrate the changing attitude of politicians and regulators in relation to credit-rating agencies. Until then, these agencies were able to avoid both regulation and legal (civil and criminal) accountability based on the fact that theirs were judgments projected into the future and even by appealing to constitutional guarantees, especially freedom of speech and freedom of the press. Until an American court pointed out one small detail: while a newspaper deems any issue of securities worthy of comment, a rating agency expresses an opinion only on its customers, who, by the way, pay handsomely for them.

In recent years, there have been various initiatives to completely change the overall framework within which the rating agencies operate, primarily by introducing a more stringent system of supervision. Europe has taken the opportunity to introduce its exclusive responsibility in this area at a European level, which is undoubtedly an important step forward. The problem is that supervision on such an elusive matter is very difficult.

Sure, blatant negligence—such as that of the agencies that at the beginning of the crisis adjourned the probability of risk only for new issuances and not for the old ones, whose ratings were upgraded with apparent delays—may be avoided in the future. But for the rest, it is illusory to think that supervision, however observant of methods and procedures it may be, can introduce independent judgment, which is the only true guarantee of efficient ratings. The many issues that still need to be addressed in the credit rating sector and the fairness opinions expressed by investment banks show that these subjects, even if regulated and supervised, are often “independent,” just like Billy Wilder’s honest sheriff in The Front Page. But only in quotes.

The other way that the regulatory authority intends to travel is to weaken the rating. In fact, the enormous power that rating agencies enjoy today is also a result of all the provisions (from the regulations that govern mutual funds to the provisions concerning acceptable guarantees to the capital requirements of the Basel agreements) that reference the ratings and inevitably give a higher status to the titles that get the highest ratings. The objective is to give more responsibility to individual subjects and to base investment decisions (or the banks’ capital) on independent evaluations of individual subjects. But even this is not an easy road to travel, because many market operators find it comfortable to lean on the assessments of a subject, which can then be blamed when things go wrong, and because the problems with implementing Basel III have already demonstrated (beyond a reasonable doubt, since we’re talking about justice) that the banks’ internal models are not necessarily better than those of the agencies.

 The other remaining road to be traveled is that of legal liability. Let it be clear that every matter federal court issued a ruling that highlights the gross negligence of a rating agency in the evaluation of complex, structured products purchased from local government. The heavy motivation highlights elements of serious negligence and collusion with the issuing bank (i.e., the customer who paid for the service), which chases away the nagging suspicion that the judgment was influenced only in retrospect. But above all, the ruling establishes the basic principle, which is crucial in Anglo-Saxon law, that there was a fiduciary relationship between the agency and the investor and that therefore there are sufficient elements for a lawsuit.

In short, whether it is damage done to investors (as in Australia) or misleading information (as presumably alleged by the Italian judge), rating agencies respond to the market. They can neither point to a conspiracy theory (the Trani-Sidney axis appears at the very least unlikely) nor hide behind the shield offered by the freedom of speech, which has protected them for so long. It is the price to be paid for the enormous importance that their judgments now have or, if you prefer, the counterpart to the huge profits raked up in the last two decades.

Versione Italiana

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