James Moore: Energy 'price-fix' is hard to prove and act upon
Outlook There has been a certain amount of hot air vented over revelations about potential fixing of energy prices, revealed by a whistleblower, who worked for a price reporting agency, in a blaze of publicity.
For a start the Financial Services Authority isn't actually investigating the case, only considering whether there's an issue there for it or for Ofgem, the energy regulator. As with Libor interest rates, energy prices are unregulated. If the revelations of price fixing have impacted on energy derivatives, futures and the like (they may well do), the FSA can go in all guns blazing.
But it will have to first prove that this is the case. Which might not be as easy as it seems: no one has yet proven that Libor interest rates were actually manipulated, only that attempts were made and the fine imposed by the FSA on Barclays over the affair came about because it breached the FSA principles of business. That option wouldn't be open to it in the case of an energy firm.
The Energy minister Ed Davey has pledged "tough action" if wrongdoing is found to have occurred. But that's just so much bluster. It's not actually clear what he can do.
Which goes to the heart of the problem, really. Another light shone into another of the City's unregulated dark corners has revealed something potentially ugly. But demonstrating sharp practice is one thing. Bringing those involved to book might be altogether more difficult.
It is true that things are beginning to move. The oil markets are being looked at by Iosco, the international organisation of securities watchdogs that is bizarrely based in Madrid, presumably because regulators from places like London, New York and Frankfurt aren't averse to a bit of sun, sangria and a siesta or three at their get-togethers. The EU is also involved.
The review into Libor by Martin Wheatley, who will head the new Financial Conduct Authority, suggested a criminal offence of trying to fix the interest rates. Fine 'n' dandy.
But what about gold and other precious metals? And the foreign exchange markets? All unregulated. All, so far, avoiding real scrutiny.
Perhaps the Libor law needs to be extended to impose a general offence of trying to dishonestly manipulate markets for personal gain.
In the meantime if people have been playing fast and loose with the energy markets, bringing the culprits to book might have to rely on some form of fix or creative use of inadequate existing rules. Good luck to the regulator that tries it when it comes time for the inevitable appeals/judicial reviews/European court petitions.
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