The evolution of regulatory enforcement action in the UK capital markets: a case of 'less is more'?

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• Formal enforcement action is a relatively rare occurrencewithin the UK capital markets regulatory framework. This characteristicdistinguishes the UK from the US, where there is a more intensefocus on enforcement, both public and private.
• Several featuresof the UK regulatory system contribute towards a low incidenceof enforcement. Some of these features are embedded in the statutoryframework, but the FSA has played a key role in the developmentof enforcement policy, while the continuing presence of self-regulationin the form of the Combined Code has also played a part.
• Thefocus on risk-based regulation in the UK has been a major influencefor enforcement policy. The move to more principles-based regulationhas also been a factor but one that is more difficult to interpret.If it is correct to assume that principles-based regulationdoes not affect the intensity of regulation, then the effecton the . . . [Full Text of this Article]

 

Deregistration issues in the US for foreign private issuers

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• While the passage of Sarbanes–Oxley in the USwas just one of the many causes for the lack of competitivenessof the US capital markets recently, it served to focus the attentionof foreign private issuers in the US on the difficulty and sometimesimpossibility of exiting the US capital markets.
• Unlike manyother jurisdictions, the process of deregistering in the USis distinct from process of delisting. The current rules forderegistration of foreign private issuers focus on the numberof US shareholders, regardless of how or where those shareholderspurchased their shares. In addition, foreign private issuers,were subject to complicated rules for counting US shareholders,and deregistration often would only suspend (not terminate)their reporting obligations.
• As a result of pressure from foreignprivate issuers, the SEC proposed new rules at the end of 2005to liberalize the existing deregistration regime for foreignprivate issuers. . . . [Full Text of this Article]

 

Lessons from Cukurova

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• The recent decision of the High Court of the BritishVirgin Islands in Alfa v Cukurova has caused a stir among lawyersserving the international financial markets based in London.
• Thedecision concerns the meaning of ‘appropriation’.Appropriation is a new remedy for collateral takers introducedby the Financial Collateral Arrangements (No. 2) Regulations2003, which implement the Financial Collateral Directive.
• Thedecision holds that effective appropriation requires the collateraltaker to take over from the collateral giver the ability todeal with the collateral as its own.
• In Cukurova, where anequitable mortgage was taken over directly held shares, thisrequired that the collateral taker become the registered ownerof the shares.
• The decision was appealed to the BVI Court ofAppeal in late January 2008 and may go further. In the meantime,this article provides an overview of the decision and considersits wider significance.

 

Emissions trading in the European Union

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• The EU ETS will undergo a number of changes consequentupon the commencement of the first Kyoto Commitment Period on1 January 2008.
• This article considers the existing EU ETSframework and also the key developments that are anticipatedin the European emissions market for 2008–2012.
• A secondarymarket for trading EUAs has already developed and this market,together with the standard-form documentation used, is discussed.
• Inconclusion, the article questions the future of emissions tradingin Europe—particularly after the current Kyoto targetsexpire in 2012.

  European businesses entered a carbon-constrained economic environmenton 1 January 2005. For some, the impacts were immediate anddirect in the form of caps on their emissions. The majorityfelt it indirectly and more slowly through increased energycosts as the perceived cost of compliance was passed on by generators.The full impacts are not yet clear, but a quiet revolution is. . . [Full Text of this Article]

Legal clarity and regulatory discretion exploring the law and economics of insider trading in derivatives markets

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• Unspecified boundaries in the commodities, derivatives,and securities law have not only increased the discretion ofindividual regulatory authorities, but have also resulted inexpanded and often overlapping assertions of jurisdiction bythe Securities and Exchange Commission, the Commodity FuturesTrading Commission, the Federal Energy Regulatory Commission,and other authorities.
• The Securities and Exchange Commissionhas recently sought to expand its jurisdiction into the derivativesmarkets to seek registration of hedge funds and other usersof derivatives and commodity futures as investment advisors,and to seek to apply its insider trading laws broadly to thevarious assets traded by funds.
• Financial institutions, intermediaries,and end users are increasingly being asked to demonstrate theeconomic or business purpose of their financial transactionsand their trading practices to ensure their legitimacy and avoidregulatory scrutiny.
• Compliance and litigation costs have predictablyrisen in this environment, in part due to the . . . [Full Text of this Article]

 

Private equity: the UK regulatory response

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• Rapid growth in private equity in recent years hasgenerated a public debate over the possibility of regulation.The Financial Services Authority (FSA), British Venture CapitalAssociation (BVCA), Treasury and the Treasury Select Committeehave all been active on this front in recent months.
• This briefingnote provides an overview of the current state of play in theUK, taking account of the final guidelines published by SirDavid Walker and the changes to capital gains tax that havebeen announced by the Treasury.
• The BVCA guidelines will bringwithin its enhanced disclosure regime around 65 portfolio companiesand will operate on a ‘comply or explain’ basis.
• TheFSA has indicated that it will focus on the risks of marketabuse and conflicts of interest arising from private equitytransactions, but it does not envisage a discrete regulatoryregime for the sector.

 

Only connect--the importance of considering disclosure requirements in the light of their legal consequences

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• This article explains why the recent TransparencyDirective led to an unintended change in law in the United Kingdomrelating to liability for annual and other reports by listedcompanies. The change was the result of a misunderstanding ofthe fact that the expressed or implied purpose of disclosurecan act as a trigger for liability in negligence. The articleargues that new disclosure requirements should always be reviewedin the light of the liability that will be imposed on thoseresponsible for the disclosure, so that costs and benefits canbe correctly balanced and prompt, reliable and relevant disclosurewill be encouraged.
• The new liability regime for reports inthe United Kingdom is considered and it is argued that the regimeshould logically be extended beyond company reports to the fullrange of disclosures required of companies that are admittedto regulated markets.
• The article concludes by . . . [Full Text of this Article]

 

The pan-European retail market are we there yet?

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• When the EU Prospectus Directive was introduced inlate 2003, there was great optimism that it would finally leadto the long awaited pan-EEA retail capital market.
• This articleasks whether the Directive has achieved this result and looks,in particular, at the disclosure regime relating to the admissionof debt securities to EEA-regulated markets and the public offeringof such securities in the EEA.
• A number of impediments to thecross-border retail market, that are completely separate fromdisclosure, are examined.
• In conclusion, the article discusseswhether, in fact, expectations for the Prospectus Directivein this area were set too high and could never be met and looksat what more needs to be done in order to achieve the goal ofa single retail debt market in the EEA.