Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Authors


  • This article is based on a research project that was funded by the Netherlands Organization of Scientific Research (NWO). It was written during a visiting scholarship at the Center for the Study of Law and Society, University of California, Berkeley. The author wishes to thank members of the department of criminology of the Erasmus School of Law; Ashley Rubin at CSLS; the editor and anonymous reviewers of this article for valuable contributions to earlier versions; and her colleagues Henk van de Bunt and Karin van Wingerde for comments on an earlier version. Marinke te Pest provided excellent research assistance.

Judith van Erp, Sectie Criminologie, Faculteit Rechtsgeleerdheid, Erasmus Universiteit Rotterdam, Department of Criminology, Erasmus School of Law, Kamer L7-17, Postbus 1738, 3000 DR Rotterdam, the Netherlands, 010 4081755. Telephone: 31 10 4081755; E-mail: vanerp@frg.eur.nl.

Abstract

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.

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