Las agencias de rating como terceros de confianza: responsabilidad civil extracontractual y protección de la seguridad del tráfico

Abstract

The recent course followed by international financial markets has endowed with an unexpected prominent role a certain group of entities in a variety of forms and profiles that share a core function: providing trust to markets by supplying specialized, reliable, and precise information about issuers and the assets issued. The role performed by rating agencies, evolving from its traditional role of trusted third parties to its current position of real gatekeepers, has aroused concerns and attracted especial attention due to their controversial participation in the development of the financial crisis. Within that context, the debate over the advisability of adopting market-based control mechanisms or regulatory devices seems to favor categorically a self-regulation approach, at least in a first stage. Later on, as long as the functional profile of rating agencies is becoming more sophisticated by providing, not only decisional variables, but also «regulatory inputs», the regulatory approach has veered towards registry-based and direct supervision models. All this process, however, has to a certain extent disregarded one of the most interesting spaces for the analysis of the activity of rating agencies, which refers, firstly, to the functions of trusted third parties in international markets, and second, to the role that the law on tort liability must have in order to protect persons and entities that rely on ratings when making investment decisions.