The successful transfer of known mortgage finance innovations to a developing financial market requires adaptation to local institutional and financial conditions.
The influential comparative work on financial systems by Allen and Gale focuses onlyon a verysmall subset of five advanced economies (USA, UK, Germany, France and Japan) to generate a rich set of hypotheses about whydifferent countries have different financial systems, whythese different systems came to exist, and, whether these differences eventually matter to the financing of the economy. Allen and Gale also highlight the fact that financial systems in different countries have a tendency to maintain their core structural and organization characteristics over considerable periods time, some being more bank-based than capital markets-based, for instance.
A central factor in shaping the development of a financial system appears to be the nature of the legal system. Within that context, the basic point of path dependencyis that 'the path of the law shapes the law'. Recent work in comparative law and economics has shown, for instance, that a different legal system may favour or hinder the development of capital markets. In the context of global financial development, it is not possible to limit one's attention to simplified comparisons between countries of civil law and countries of common law.
Among mortgage finance systems that are either under civil or common law regimes, path dependencyeffects vary even across neighbouring countries, as the difficulties in harmonizing collateral laws, regulations and practices within the Euro zone show. Beyond these two major legal systems, there are also countries that are influenced byOttoman law, byother forms of Islamic laws, and/or traditional tribal ownership rights. Large countries like Indonesia have had to contend with a reconciliation of most of these legal traditions at once.
There are two areas where legal path dependencyis readily noticeable in the development of modern mortgage finance systems.
• First there is the well-known contrast between common law and civil law countries in the treatment of real property rights, which affects the nature of 'secured lending' and the legal possibilityof trusts for securitization and the transfer of property. However, the treatment of real property rights is not limited to these two major types of legal systems that actually interact with vernacular systems of rights in most developing countries; for instance with the legacyof Ottoman law in manyparts of the Middle East.
• Another path dependency issue of significance is the fragmentation of property rights that is the legacyof Marxist ideologyand central planning in former centrally planned economies, where 40% of the world's population lived in 1990. The fragmentation of urban propertyrights in the countries making the transition to markets can be a major obstacle to the efficient use and trading of urban assets; especially during the earlyy ears of the transition to markets. This fragmentation of property rights across different administrations, state enterprises and new private owners must first be resolved in the main bodyof laws and regulations. Afterwards, the incorporation of these new laws into official behaviour and local practices can take substantially longer and can varyfrom cityto city.
Heller coined the expression 'the anticommons' in a law paper on the costs of fragmented property rights during Russian property reforms in the early 1990s. Heller's definition is that 'when there are too manyowners holding rights of exclusion, the resource is prone to underuse - a "tragedyof the anticommons'.
This anticommons problem was first analysed in the case of Russian commercial real estate by Harding. She was investigating whythe services sector and small enterprises had such great difficulties in securing commercial space in spite of the great demand for retail services in Russian cities during the earlyy ears of the transition to markets in the early1990s.
James Buchanan and Yong J. Yoon have shown the basic symmetry in economic waste between the lack of propertyrights that is the well-known commons problem, and the fragmentation of propertyrights among competing parties that is the anticommons problem arising in transition economies moving back to markets.
Even after legal reforms and the creation of new forms of private property rights, the legacyof Marxist ideology continues to affect the registration of rights and property registries in manytransition economies, and causes numerous disputes. According to the Marxist labour theoryof value, land not being the product of man's labour should be the propertyof the state. On the other hand, buildings clearlyare the result of man's labour. The practical consequence is that the basic concept of 'real estate property' that includes land and built improvements was not usable in socialist economies.
Our website is not responsible for the information contained by this article. Articleinput.com is a free articles resource thus practically any visitor can submit an article. However if you notice any copyrighted material, please contact us and we will remove the article(s) in discussion right away.
Note: This article was sent to us by: Diane von Ruhhen at 06172010
1. Buy today pay tomorrow is not doing any good to your finances
All articles are property of their respective authors. Please read our Privacy Policy!
© 2009 ArticleInput.com.