The rush to regulate legal frameworks for microfinance

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The Rush to Regulate:

Legal Frameworks for Microfinance

by Robert Peck Christen and Richard Rosenberg

Copyright 2000. All Rights Reserved

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Introduction

Formal credit and savings for the poor are not recent inventions: for decades, some

customers neglected by commercial banks have been served by credit cooperatives and

development finance institutions. These organizations have legal charters that govern

their financial operations and allow them access to savings or other public funding.

But the past two decades have seen the emergence of powerful new methodologies for

delivering microfinance services,1 especially microcredit. Much of this innovation has

been pioneered by non-governmental organizations (NGOs), who typically do not have a

legal charter authorizing them to engage in financial intermediation. Governments,

donors, and practitioners are now talking about new legal structures for microfinance in

dozens of countries. Microfinance regulation and supervision has suddenly become a hot

topic, with conferences, publications, committees, and projects appearing everywhere.

Much of the attention is focused on NGO microfinance.2

Regulation of microfinance is being discussed in one country after another. But the

people doing the discussing are often motivated by differing objectives, which tends to

confuse the dialogue:

• Looking to fund themselves, NGOs with microcredit operations often want to be

licensed (and thus regulated) in order to access deposits from the public, or credit

lines from donors or governments.

• Sometimes microfinance institutions (MFIs), especially NGOs, believe that

regulation will promote their business and improve their operations.

• Some NGOs, governments, and donors want financial licenses to be more widely

(and easily) available in order to expand savings services for the poor.

• Donors and governments may expect that setting up a special regulatory window

for microfinance will speed the emergence of sustainable MFIs.

• Occasionally, where unlicensed MFIs are already taking deposits, the central

bank’s motivation in pushing to license them is to protect depositors.

1 In this paper microfinance means formal banking services for poor people (definitions of “poor” in this

context vary widely). Governments or others regulate financial service providers when they make rules

for them, controlling for instance the safety standards they must meet. Supervision is systematic

oversight of such providers to make sure that they comply with the rules, or close down if they don’t.

In order to limit the cumbersome repetition of “regulation and supervision,” this paper will sometimes

used “regulation” as a shorthand for that phrase.

Unless otherwise indicated, this paper refers only to microfinance in developing countries.

Microfinance in rich countries presents very different issues.

2 It is worth noting that even today, most of the world’s microfinance clients are served by banks, credit

unions, and other licensed institutions.

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• Many MFIs charge surprisingly high interest rates. Government may view these

rates as exploitative and want to protect small borrowers from them.

• Local authorities are sometimes troubled by the weakness of many MFIs, and

unimpressed with the coordination and supervision being exercised by the donors

who fund them. They want someone to step in and clean up a situation that they

think is hurting the development of microfinance in their country.

• Occasionally governments look to regulation as a means of clamping down on

bothersome foreign-funded NGOs or other groups that it would like to control

more tightly.

• In some countries there is simply no legal structure under which a socially

motivated group can lawfully provide loans to poor clients. Unless such a

structure is developed, loans may be legally uncollectable, and microfinance

providers may even be at risk of prosecution.

• Finally, microfinance is getting a high political profile in many countries,

especially since the 1997 Microcredit Summit and its aftermath. Occasionally,

attention to regulation springs from a government’s sense that it has to do

something about microfinance, for reasons that may combine concern for the

poor and the demands of practical politics.

For all these reasons, microfinance today seems to find itself in the midst of a rush to

regulate. There is no shortage of people willing to offer views on when and how to do it.

But all of them, including the authors of this paper, suffer from the same handicap:

experimentation with microfinance supervision is so recent that we can’t rely much on its

historical results to guide us.3 Some important questions can be answered only

tentatively, if at all. And of course individual country situations vary greatly. So readers

looking for a string of confident practical conclusions or one-size-fits-all advice will find

themselves frustrated (though not completely!) by this paper.

Organizing this discussion proved troublesome: the logical relationships among the

topics are annoyingly complex. At the cost of delaying our arrival at the directly practical

questions, we decided to begin with some important background issues:

• The practical problems faced by bank supervisors who are asked to take

responsibility for MFIs.

• The costs of regulating and supervising MFIs, including the danger that

defining a legal framework can have unintended consequences.

Then the paper moves into policy questions, arguing

3The paper has more examples from Latin America than from other regions, in part because the authors

are somewhat more familiar with this region, but mainly because Latin America has more experience

with microfinance regulation than some other regions.

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• That credit-only MFIs should generally not be subject to prudential

regulation and supervision in which the government supervisory agency is

expected to monitor the financial soundness of the licensed institution.

• That small

community-based MFIs should not be prohibited from deposit-

taking just because they are too small or too remote to be regulated effectively.

• That the push to create special regulatory windows for MFIs may make

sense in a few developing countries, but that in most it is probably premature

right now, running too far ahead of the organic development of the local

microfinance industry.

• That self-regulation by MFI-controlled federations is highly unlikely to be

effective.

The authors believe strongly that the future of microfinance lies in a licensed

setting, because it is the only setting that will permit massive, sustainable delivery

of financial services to the poor. Thus, the cautionary overall message of this paper is

not meant to question the importance of microfinance regulation and supervision, which

are essential to any licensed framework. Rather, we are raising questions about timing,

and about certain expectations that may turn out to be inflated. In focusing heavily on

certain problems, we don’t want to imply that they have no solutions—only that they are

problems that need to be dealt with realistically.

A. The supervisor’s challenges

The problems of bank supervisors4 in poor countries may not sound like a “visionary”

place to start our reflections. 5 But unless we give this subject its due, our planning of

frameworks can lead us into an alluring cloud-land of elegant structures that can’t be

implemented. The most carefully conceived regulations will be useless, or worse, if

they can’t be enforced by effective supervision.

For bank supervisors in many developing countries (though certainly not all), the central

fact of life is responsibility for supervising a commercial banking system with severe

structural problems, often including some sizable banks teetering dangerously close to the

edge of safety. The collapse of one—or a half-dozen—of these banks could threaten the

4 We use the term supervisor to refer to the government official responsible for prudential oversight of

financial institutions, whether in a central bank department, the finance ministry, or an independent

agency.

5 In this paper we focus on bank supervisors in developing countries. Of course, their colleagues in rich

countries have plenty of problems too—trillions of problems, in cases like the savings and loan debacle in

the United States or the recent East Asian banking crises.

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country’s financial system with implosion. In trying to manage bank risk, the supervisor

may have to work in a political minefield, because the owners of banks are seldom

underrepresented in the political process. The supervisor’s legal authority to enforce

compliance or manage orderly clean-ups is often inadequate. She6 may not have enough

control over the tenure, qualification, and pay of her staff. Monitoring healthy banks is

challenging enough, but the real problems come when it is time to deal with institutions in

trouble. When a sick bank finally crumbles, its president can start sleeping again (though

perhaps in a different country), while the supervisor has to stay awake at night worrying.

The Minister of Finance may be pacing the floor with her, since in many countries a

government-issued financial license carries with it a guarantee, implicit or explicit, that

the government will bail out depositors if a licensed institution collapses.

If a bank supervisor displays resistance to adding MFIs—mostly small, mostly new,

mostly weak on profitability—to her basket of responsibilities, we should recognize that

her reasons may be nobler than narrow-mindedness or lack of concern for the poor.

Box 1—Rural banks in the Philippines: the burden of supervising small intermediaries

In the Philippines, the sm allest licensed interm ediaries are “rural banks.” Despite the nam e,

they are found in both rural and urban settings. Supervised by the central bank, they are

integrated into the paym ents system. Their operations include credit and deposit services for

relatively poor clients. As of Septem ber 1997, 824 rural banks were serving a half a m illion

clients. These banks had only about 2 percent of the banking system ’s assets and deposits, but

they m ade up 83 percent of the institutions the central bank had to supervise. Branches of the 52

com m ercial banks outnum bered offices of the 824 rural banks by m ore than 2 to 1.

Supervising the rural banks has severely stretched the resources of the Philippine central

bank’s supervision departm ent, tying up as m uch as one-half of its total staff and budgetary

resources at tim es. In the early 1990s one in every five rural banks had to be shut down, and

m any others had to be m erged or otherwise restructured.

A 1996 report estim ated that 200 inspectors were assigned to the rural banks. Even this level

of resources was viewed as inadequate. Each field visit consum ed up to three person-weeks or

m ore. At one point the supervisory departm ent found that this burden, com bined with its budget

lim itations, was severely endangering its ability to function.

Minim um capitalization of $100,0007 to $1,000,000 in equity is now required to constitute a

rural bank, depending on the size of the m unicipality where the bank is located. According to the

1996 report, the experience with the Philippine rural banks showed that m inim um capital for such

institutions should be set higher rather than lower, in order to provide m ore stability and to

rationalize the dem ands on the financial authorities.

Deposits in rural banks are protected under the national deposit insurance system. The

Philippine Deposit Insurance Corporation (PDIC) covers up to 100,000 pesos (about $2,500) per

6 We arbitrarily use the feminine pronoun here to celebrate the increased number of female bank

supervisors in recent years.

7 All dollar amounts are U.S. dollars.

Source: www.researchgate.net

Category: Payday loans

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