Document Type : Research Paper
Authors
1 Asociate professor, Department of Islamic and private law, Faculty of Law and Political Sciences, University of Tehran, Iran
2 LL.M..Faculty of Law and Political Sciences, University of Tehran, Iran.
3 LL.M.Faculty of Law and Political Sciences, University of Tehran, Iran.
Abstract
With the emergence of the age of explosion of information and communication, all aspects of human life were affected by this. In such a way that the use of technology has become one of the inseparable parts of today's world. With the expansion of global trade, the need for advanced systems for monetary and financial exchanges was felt more. With the remarkable progress of information and communication technology, banking networks have decided to facilitate and develop their calls and orders regarding financial transactions by creating infrastructures based on information and communication technology. In this, financial messenger systems have been of special importance, because in fact, these systems are the main infrastructure of establishing communication between domestic and international banks. Also, these systems are used for large financial transactions such as issuing letters of credit and guarantees. The most famous international example of these systems is the SWIFT network, which is the most extensive financial messaging network where almost all banks in the world are in contact with each other through the infrastructure and language of this network. Due to the unique features that SWIFT has compared to other financial transfer networks and methods, it can be said that the monopoly of financial messaging networks is in the hands of this financial messaging network. This means that returning to bilateral methods or creating a parallel platform is impractical and uneconomical. On the other hand, in different systems, governments regulate regulations based on various motives, such as limiting the economic power of a company, securing the interests of a particular company, or even for political exploitation. One of the ways to achieve this goal, the public institutions regulating the sectoral regulations, in order to provide safe and continuous public services to the citizens, protect the rights of consumers and investors, and also use the order as much as possible in the way of the interaction of the players of the markets in question. The distinctive feature of the recognition of sector regulations should be considered as the monopoly of these regulations in the market and the constituent sectors. Therefore, it is considered the main inspection of non-competitive markets that the government enters this sector with the title of "regulator". That is, the government intervenes by using the policy of economic regulation and in the form of sectoral regulatory institutions, in order to, on the one hand, support the consumers by bringing the performance closer to the optimal conditions, and on the other hand, prevent the spread of inefficiency and economic anomalies. In this case, the purpose of sector regulatory institutions and economic regulation systems is to regulate the activities of natural monopolies, especially public benefit industries and services, to protect the interests of consumers and improve efficiency. Thus, by creating economic regulation systems, the government tries to simulate a competitive market in a way, and by imposing regulatory regulations, it forces the relevant monopolies to act like a competitive market. Natural monopoly and the creation of a banking messaging unit network for financial exchanges and transfers have led to a sharp reduction in transaction costs for banks. In other words, with the advancement of technology and the provision of suitable infrastructure for the communication and connection of all banks to each other, the creation of a platform and a single communication language made the use of traditional methods such as telex and two-by-two communication of each bank with the other bank eliminated. However, due to the fact that the control and supervision of SWIFT is in the hands of a minority of the member countries, this company has abused this position based on its economic interests and its influential members and can, based on unilateral contractual conditions, target the members of the minority. Deprived of their services this minority practically has no substitute. On the one hand, since the existence of a natural monopoly in a product and service excludes it from the supervision and control of the regulations of competition law, and since SWIFT, as a system that provides banking services, is a natural monopoly, and the creation of other networks for Financial transactions for banks have no relative advantage, so it seems that this monopoly network should be monitored and controlled through sectorial regulations. With regard to the above, this research by explaining the special features of banking financial messenger networks, emphasizing and relying on SWIFT features and the similarities of these features with natural monopoly industries; It is looking for a solution to set regulations to control and monitor this financial messenger network. First, by examining the structure and legal nature of SWIFT, it has acquainted with the mechanism of this financial messenger network and its relationship with banks, and by examining the role of information technology in creating a natural monopoly for monopoly networks and systems; it has to know the advantages and disadvantages of such a monopoly.
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