For a small, but developed, capital market such as Canada’s, major regulatory initiatives in the United States always pose hard choices. Looking at the trio of initiatives which marked a turning point in international markets, Regulation S, Rule 144A and the Multijurisdictional Disclosure System, this article traces the impact of both regional integration and internationalization on a domestic market.
{"title":"Canadian Participation in International Capital Markets: A Reassessment","authors":"Cally Jordan","doi":"10.2139/SSRN.1513647","DOIUrl":"https://doi.org/10.2139/SSRN.1513647","url":null,"abstract":"For a small, but developed, capital market such as Canada’s, major regulatory initiatives in the United States always pose hard choices. Looking at the trio of initiatives which marked a turning point in international markets, Regulation S, Rule 144A and the Multijurisdictional Disclosure System, this article traces the impact of both regional integration and internationalization on a domestic market.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124746347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Merger Guidelines released in March 2008 by the Australian Competition and Consumer Commission (ACCC) provide a guide to the analytical approach the ACCC intends to adopt to assessing mergers for the purposes of s.50 of the Trade Practices Act. The new Guidelines do a relatively good job in listing the factors that the contemporary economic literature identifies as potentially characterising mergers that reduce competition and harm consumer welfare. However, unlike the earlier Guidelines, they rarely explain the mechanism connecting the factors to the harm, and the conditions that need to be met for that harm to occur. This paper provides a “user’s guide” to the Guidelines that explains the reasoning that underpins the Guidelines’ assertions, and draws attention to the assumptions on which those assertions rest. We also provide an economic assessment of the Guidelines and recommend a simpler criterion by which the ACCC should judge mergers.
{"title":"The ACCC Merger Guidelines: A Review","authors":"H. Ergas, E. Ralph, A. Robson","doi":"10.2139/ssrn.1424721","DOIUrl":"https://doi.org/10.2139/ssrn.1424721","url":null,"abstract":"The Merger Guidelines released in March 2008 by the Australian Competition and Consumer Commission (ACCC) provide a guide to the analytical approach the ACCC intends to adopt to assessing mergers for the purposes of s.50 of the Trade Practices Act. The new Guidelines do a relatively good job in listing the factors that the contemporary economic literature identifies as potentially characterising mergers that reduce competition and harm consumer welfare. However, unlike the earlier Guidelines, they rarely explain the mechanism connecting the factors to the harm, and the conditions that need to be met for that harm to occur. This paper provides a “user’s guide” to the Guidelines that explains the reasoning that underpins the Guidelines’ assertions, and draws attention to the assumptions on which those assertions rest. We also provide an economic assessment of the Guidelines and recommend a simpler criterion by which the ACCC should judge mergers.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"169 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133888826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bankruptcy is imminent for General Motors Corporation (GM). If GM does not restructure and prove it can run a viable business by June 1, 2009, the federal government will force GM into “surgical” bankruptcy proceedings. When analyzing why GM has not yet proved it can restructure to the extent necessary to avoid bankruptcy, many have recognized the United Auto Workers and the bondholders as the significant impediments. One major group, however, has been largely overlooked: the auto dealers. In a recent interview with Automotive News, Fritz Henderson, GM’s new CEO, acknowledged that GM must consolidate brands to remain viable, but was resigned to the fact that consolidation would be very difficult due to the numerous state dealer franchise laws that protect auto dealers in every state. These laws exist because the auto dealers have considerable political clout at the state level, which they have used to get such laws passed in their favor. Not only have these very laws contributed to the demise of the domestic auto manufacturers, but they also are now severely hindering the auto manufacturers’ ability to navigate through the economic crisis. What is worse is that the auto dealers have continued to lobby for even more onerous state franchise laws in 2009, as the auto manufacturers struggle to remain viable. The proposed legislation sitting before roughly two-thirds of the state legislatures, if enacted, will favor the dealers to an even greater extent, therefore effectively preventing the manufacturers from streamlining their business operations, and potentially involving billions of taxpayer money going straight into the hands of the dealers. This paper discusses the history of the relationship between the auto manufacturers and their dealers and the reason why franchise laws now exist in every state. After examining a few of the state franchise laws and their impact on the auto industry, this paper focuses on current state legislation that is particularly overreaching and questions whether it is irresponsible for the dealers to continue to push for these laws - and for state legislatures to continue to pass these laws - in light of the economic crisis and failing auto industry. Finally, this paper concludes that state regulation is necessary to the extent it neutralizes the disparity in bargaining power between the automakers and the dealers, but that current legislation no longer achieves this and only benefits the auto dealers. Based upon these conclusions, this paper proposes that the dealers focus their resources and efforts on lobbying for laws that will benefit the entire auto industry, not just a select few.
{"title":"State Automobile Dealer Franchise Laws: Have They Become the Proverbial Snake in the Grass?","authors":"Jessica Higashiyama","doi":"10.2139/ssrn.1394877","DOIUrl":"https://doi.org/10.2139/ssrn.1394877","url":null,"abstract":"Bankruptcy is imminent for General Motors Corporation (GM). If GM does not restructure and prove it can run a viable business by June 1, 2009, the federal government will force GM into “surgical” bankruptcy proceedings. When analyzing why GM has not yet proved it can restructure to the extent necessary to avoid bankruptcy, many have recognized the United Auto Workers and the bondholders as the significant impediments. One major group, however, has been largely overlooked: the auto dealers. In a recent interview with Automotive News, Fritz Henderson, GM’s new CEO, acknowledged that GM must consolidate brands to remain viable, but was resigned to the fact that consolidation would be very difficult due to the numerous state dealer franchise laws that protect auto dealers in every state. These laws exist because the auto dealers have considerable political clout at the state level, which they have used to get such laws passed in their favor. Not only have these very laws contributed to the demise of the domestic auto manufacturers, but they also are now severely hindering the auto manufacturers’ ability to navigate through the economic crisis. What is worse is that the auto dealers have continued to lobby for even more onerous state franchise laws in 2009, as the auto manufacturers struggle to remain viable. The proposed legislation sitting before roughly two-thirds of the state legislatures, if enacted, will favor the dealers to an even greater extent, therefore effectively preventing the manufacturers from streamlining their business operations, and potentially involving billions of taxpayer money going straight into the hands of the dealers. This paper discusses the history of the relationship between the auto manufacturers and their dealers and the reason why franchise laws now exist in every state. After examining a few of the state franchise laws and their impact on the auto industry, this paper focuses on current state legislation that is particularly overreaching and questions whether it is irresponsible for the dealers to continue to push for these laws - and for state legislatures to continue to pass these laws - in light of the economic crisis and failing auto industry. Finally, this paper concludes that state regulation is necessary to the extent it neutralizes the disparity in bargaining power between the automakers and the dealers, but that current legislation no longer achieves this and only benefits the auto dealers. Based upon these conclusions, this paper proposes that the dealers focus their resources and efforts on lobbying for laws that will benefit the entire auto industry, not just a select few.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125333300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This conceptual paper starts with a question regarding the nature of the firm: is the firm a nexus of contracts or a real entity? To answer this question, the article departs from a critique of firm contract theory that usually focuses on moral personification to propose some theoretical foundations of the firm as a real entity. This provides crucial insights for the analysis of modern complex organizations. Then, this paper applies the real entity paradigm to the case of the network firm: is the network firm merely a collection of distinct legal entities or a single real entity? The integrating and unifying role of intra-network power relationships is emphasized, and some legal and economic aspects of the network firm are discussed to clarify the argument that the network firm is a singular real entity composed from distinct legal entities. Considering the network firm as a single real entity has strong policy implications in terms of employment protection rights and politico-legal responsibilities.
{"title":"The Network-Firm as a Single Real Entity: Beyond the Aggregate of Distinct Legal Entities","authors":"Virgile Chassagnon","doi":"10.2139/ssrn.1386962","DOIUrl":"https://doi.org/10.2139/ssrn.1386962","url":null,"abstract":"This conceptual paper starts with a question regarding the nature of the firm: is the firm a nexus of contracts or a real entity? To answer this question, the article departs from a critique of firm contract theory that usually focuses on moral personification to propose some theoretical foundations of the firm as a real entity. This provides crucial insights for the analysis of modern complex organizations. Then, this paper applies the real entity paradigm to the case of the network firm: is the network firm merely a collection of distinct legal entities or a single real entity? The integrating and unifying role of intra-network power relationships is emphasized, and some legal and economic aspects of the network firm are discussed to clarify the argument that the network firm is a singular real entity composed from distinct legal entities. Considering the network firm as a single real entity has strong policy implications in terms of employment protection rights and politico-legal responsibilities.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122492563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-06-06DOI: 10.1142/9781860948497_0005
G. Gilligan
This chapter is based on the proposition that managing conflicts of interest and other potentially problematic regulatory issues, are, and probably always have been, integral to how individuals, groups and societies manage their trading relationships with other individuals, groups and societies. In particular, the levels of regulatory relative autonomy that market actors possess, both now and in the past, can be extremely influential in deciding a jurisdiction’s regulatory agendas. How those agendas and their regulatory priorities evolve can be significant in shaping market practice and perceptions of what constitutes conflicts of interest and what should, or should not, be done in relation to them. This is true for all trading sectors, but the historical analysis of this chapter is on the financial services sector. The discussion is Anglo-centric in its focus, but will have some resonance regarding non-Anglo jurisdictions and how they regulate their financial markets.
{"title":"The Significance of Relative Autonomy in How Regulation of the Financial Services Sector Evolves","authors":"G. Gilligan","doi":"10.1142/9781860948497_0005","DOIUrl":"https://doi.org/10.1142/9781860948497_0005","url":null,"abstract":"This chapter is based on the proposition that managing conflicts of interest and other potentially problematic regulatory issues, are, and probably always have been, integral to how individuals, groups and societies manage their trading relationships with other individuals, groups and societies. In particular, the levels of regulatory relative autonomy that market actors possess, both now and in the past, can be extremely influential in deciding a jurisdiction’s regulatory agendas. How those agendas and their regulatory priorities evolve can be significant in shaping market practice and perceptions of what constitutes conflicts of interest and what should, or should not, be done in relation to them. This is true for all trading sectors, but the historical analysis of this chapter is on the financial services sector. The discussion is Anglo-centric in its focus, but will have some resonance regarding non-Anglo jurisdictions and how they regulate their financial markets.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133561432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When Congress passed the National Securities Markets Improvement Act of 1996 (NSMIA), it unilaterally withdrew the preexisting power of the states to require pre-sale registration disclosures by issuers, including the power to conduct pre-sale disclosure review, merit review, or any other kind of fairness review in connection with most public and private offerings of securities conducted within the various states’ respective jurisdictions. It simply rewrote the 1933 Act’s savings clause to preempt most state laws requiring registration of, or imposing conditions on, a broadly-defined and open-ended group of securities and securities transactions. The passage of NSMIA inflicted a severe, if not fatal, wound on the dual system of securities regulation that had protected investors and their marketplace since the end of the Great Depression. This essay suggests an alternative approach that might contribute to the development of a more rational reallocation of state regulatory power than presently exists in NSMIA’s aftermath. First, the author addresses the remaining scope of state regulatory power given NSMIA’s dictates and prerogatives. Then, the author suggests for consideration significant alterations to the regulatory role traditionally performed by the states. These alterations include state withdrawal from the registration process, with the consequential demise of merit review, and, in its place, the development of a notification procedure accompanied by state criminalization of violations of both federal registration and state notification requirements. The author also suggests the adoption of corollary civil remedies to ensure supportive private reinforcement of the new regime. Finally, the author concludes that this reallocation of regulatory responsibility will realign the dual system of securities regulation to better achieve NSMIA’s elusive goal of regulatory uniformity. This suggested reallocation should serve the statutory policy of the Uniform Securities Act, that its interpretation be coordinated with the federal securities laws.
{"title":"Reflections on Dual Regulation of Securities: A Case for Reallocation of Regulatory Responsibilities","authors":"Manning G. Warren","doi":"10.2139/SSRN.1621830","DOIUrl":"https://doi.org/10.2139/SSRN.1621830","url":null,"abstract":"When Congress passed the National Securities Markets Improvement Act of 1996 (NSMIA), it unilaterally withdrew the preexisting power of the states to require pre-sale registration disclosures by issuers, including the power to conduct pre-sale disclosure review, merit review, or any other kind of fairness review in connection with most public and private offerings of securities conducted within the various states’ respective jurisdictions. It simply rewrote the 1933 Act’s savings clause to preempt most state laws requiring registration of, or imposing conditions on, a broadly-defined and open-ended group of securities and securities transactions. The passage of NSMIA inflicted a severe, if not fatal, wound on the dual system of securities regulation that had protected investors and their marketplace since the end of the Great Depression. This essay suggests an alternative approach that might contribute to the development of a more rational reallocation of state regulatory power than presently exists in NSMIA’s aftermath. First, the author addresses the remaining scope of state regulatory power given NSMIA’s dictates and prerogatives. Then, the author suggests for consideration significant alterations to the regulatory role traditionally performed by the states. These alterations include state withdrawal from the registration process, with the consequential demise of merit review, and, in its place, the development of a notification procedure accompanied by state criminalization of violations of both federal registration and state notification requirements. The author also suggests the adoption of corollary civil remedies to ensure supportive private reinforcement of the new regime. Finally, the author concludes that this reallocation of regulatory responsibility will realign the dual system of securities regulation to better achieve NSMIA’s elusive goal of regulatory uniformity. This suggested reallocation should serve the statutory policy of the Uniform Securities Act, that its interpretation be coordinated with the federal securities laws.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130766796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scandals are a recurring feature of UK financial services and they were probably more common in the 1840s than they are in the 1990s. There is no overwhelming evidence that general financial practice is less ethical than it was and it appears more likely that ethical standards have risen. They are certainly higher than in the Victorian era, for example the ‘railway mania’ of 1845—46 which structurally established large‐scale financial fraud in Britain. During this period, hundreds of railway schemes were launched as a source of enormous fees for promoters, lawyers, engineers and surveyors. Many were never intended to be built, with some promoters (once they had accumulated substantial funds from investors) actively lobbying for their Railway Bills to be rejected by Parliament. However, this relative rise in the ethical standards of contemporary general financial practice will be of little comfort to the thousands of angry investors who have been mis‐sold pensions, or have been victims of modern scandals perpetrated by Peter Clowes, Roger Levitt or Robert Maxwell. Their anger is understandable because modern society expects increasing levels of security from its industries and institutions, and regulation is the medium for achieving this. Despite general trends towards deregulation, in financial services increasing regulation is inevitable, and politically desirable, because of the rising complexity and elaborate nature of exchange relationships. It is the state which is taking on the role of guaranteeing the security of those relationships. It is this guarantor role of the state which ensures that when scandals happen, the anger of victims is not merely directed at the fraudsters, but also at the regulatory system and the government which is responsible for that system.
{"title":"Policing the Markets: Structures and Policies","authors":"G. Gilligan","doi":"10.1108/EB025910","DOIUrl":"https://doi.org/10.1108/EB025910","url":null,"abstract":"Scandals are a recurring feature of UK financial services and they were probably more common in the 1840s than they are in the 1990s. There is no overwhelming evidence that general financial practice is less ethical than it was and it appears more likely that ethical standards have risen. They are certainly higher than in the Victorian era, for example the ‘railway mania’ of 1845—46 which structurally established large‐scale financial fraud in Britain. During this period, hundreds of railway schemes were launched as a source of enormous fees for promoters, lawyers, engineers and surveyors. Many were never intended to be built, with some promoters (once they had accumulated substantial funds from investors) actively lobbying for their Railway Bills to be rejected by Parliament. However, this relative rise in the ethical standards of contemporary general financial practice will be of little comfort to the thousands of angry investors who have been mis‐sold pensions, or have been victims of modern scandals perpetrated by Peter Clowes, Roger Levitt or Robert Maxwell. Their anger is understandable because modern society expects increasing levels of security from its industries and institutions, and regulation is the medium for achieving this. Despite general trends towards deregulation, in financial services increasing regulation is inevitable, and politically desirable, because of the rising complexity and elaborate nature of exchange relationships. It is the state which is taking on the role of guaranteeing the security of those relationships. It is this guarantor role of the state which ensures that when scandals happen, the anger of victims is not merely directed at the fraudsters, but also at the regulatory system and the government which is responsible for that system.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131564756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
State regulators utilize merit review to protect investors, issuers, and the marketplace by focusing on the substantive quality of securities offerings. In this article, the author addresses the evolution of the dual regulatory system and the resulting roles of the state and federal securities laws. The author responds to criticism that the state and federal schemes are duplicative, not complementary, by explaining the differing scopes and philosophies of state and federal securities laws. Expanding on the role of state regulators, the author elaborates on the importance of their accommodation of local interests at the state level in preserving cooperative federalism. Further, he recognizes the need for overlap in a dual regulatory system, due to shifts in regulatory intensity at both levels and to the evolving regulatory atmosphere. Because of a trend in federal deregulation and a corresponding intensified reliance on state regulators, the author dispels the duplicative coverage argument. The author also questions the argument that capital formation is impeded by merit regulation, providing evidence that states with reputations for strict merit regulation have not experienced adverse effects on capital formation. Although he recognizes the utility of the merit regulation debate, the author concludes by acknowledging the positive effects of state merit review: protective regulation and the promotion of capital formation.
{"title":"Legitimacy in the Securities Industry: The Role of Merit Regulation","authors":"Manning G. Warren","doi":"10.2139/SSRN.1621814","DOIUrl":"https://doi.org/10.2139/SSRN.1621814","url":null,"abstract":"State regulators utilize merit review to protect investors, issuers, and the marketplace by focusing on the substantive quality of securities offerings. In this article, the author addresses the evolution of the dual regulatory system and the resulting roles of the state and federal securities laws. The author responds to criticism that the state and federal schemes are duplicative, not complementary, by explaining the differing scopes and philosophies of state and federal securities laws. Expanding on the role of state regulators, the author elaborates on the importance of their accommodation of local interests at the state level in preserving cooperative federalism. Further, he recognizes the need for overlap in a dual regulatory system, due to shifts in regulatory intensity at both levels and to the evolving regulatory atmosphere. Because of a trend in federal deregulation and a corresponding intensified reliance on state regulators, the author dispels the duplicative coverage argument. The author also questions the argument that capital formation is impeded by merit regulation, providing evidence that states with reputations for strict merit regulation have not experienced adverse effects on capital formation. Although he recognizes the utility of the merit regulation debate, the author concludes by acknowledging the positive effects of state merit review: protective regulation and the promotion of capital formation.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1987-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122584678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Congress, urged by the states to fill the “gap” left by their existing regulatory schemes for local securities markets, passed the Securities Act of 1933 and the Securities Exchange Act of 1934. Since the enactment of federal legislation, investors in securities have been protected by a dual regulatory system. In recent years, federal and state administrators have commenced efforts to coordinate their respective regulatory schemes in order to reduce any unnecessary obstacles to capital formation without a corresponding reduction in investor protection. Despite the success of the dual regulatory system, it has been subjected to extensive criticism by investment bankers. The primary focus of this criticism is two fold: the absence of uniformity among the federal and state schemes makes compliance difficult and expensive, and the federal and state schemes are needlessly duplicative. Investment bankers have complained that the dual regulatory system’s negative impact on the securities industry far outweighs the benefits to investors. Consequently, it has called for the Securities and Exchange Commission to seek legislation to preempt states from concurrent regulation. Currently, the preemption issue is being used to encourage, if not frighten, the states to adopt uniform regulatory schemes. This article first addresses the judicial, congressional, and executive recognition that has been extended to the states in the field of securities regulation. After reviewing these sources of support for state regulation, a response is made to the claim that duplication and the absence of uniformity have undermined the advantages, if any, of the dual regulatory system. In addressing this criticism, the different regulatory philosophies of the state and federal regulatory schemes and the resulting benefits to investors are explored. This article concludes that the complementary policies inherent in the present system establish a persuasive case against preemption of state securities laws.
在各州的敦促下，国会通过了1933年的《证券法》和1934年的《证券交易法》，以填补现有的地方证券市场监管计划留下的“空白”。自联邦立法颁布以来，证券投资者一直受到双重监管体系的保护。近年来，联邦和州行政人员已开始努力协调各自的管理计划，以便在不相应减少对投资者保护的情况下减少对资本形成的任何不必要的障碍。尽管双重监管体系取得了成功，但它受到了投资银行家的广泛批评。这种批评主要集中在两个方面:联邦和州计划之间缺乏一致性使得合规变得困难和昂贵，联邦和州计划不必要地重复。投资银行家抱怨称，双重监管体系对证券业的负面影响，远远超过对投资者的好处。因此，它呼吁美国证券交易委员会(Securities and Exchange Commission)寻求立法，以防止各州同时实施监管。目前，先发制人的问题正被用来鼓励(如果不是恐吓的话)各州采用统一的监管方案。本文首先讨论了司法、国会和行政部门在证券监管领域对各州的认可。在回顾了这些支持国家监管的来源之后，对重复和缺乏一致性破坏了双重监管体系的优势(如果有的话)的说法做出了回应。在解决这一批评时，探讨了州和联邦监管计划的不同监管理念以及由此给投资者带来的好处。本文的结论是，现行制度中固有的互补政策为反对国家证券法的优先购买权提供了一个有说服力的案例。
{"title":"Reflections on Dual Regulation of Securities: A Case Against Preemption","authors":"Manning G. Warren","doi":"10.2139/SSRN.1621829","DOIUrl":"https://doi.org/10.2139/SSRN.1621829","url":null,"abstract":"Congress, urged by the states to fill the “gap” left by their existing regulatory schemes for local securities markets, passed the Securities Act of 1933 and the Securities Exchange Act of 1934. Since the enactment of federal legislation, investors in securities have been protected by a dual regulatory system. In recent years, federal and state administrators have commenced efforts to coordinate their respective regulatory schemes in order to reduce any unnecessary obstacles to capital formation without a corresponding reduction in investor protection. Despite the success of the dual regulatory system, it has been subjected to extensive criticism by investment bankers. The primary focus of this criticism is two fold: the absence of uniformity among the federal and state schemes makes compliance difficult and expensive, and the federal and state schemes are needlessly duplicative. Investment bankers have complained that the dual regulatory system’s negative impact on the securities industry far outweighs the benefits to investors. Consequently, it has called for the Securities and Exchange Commission to seek legislation to preempt states from concurrent regulation. Currently, the preemption issue is being used to encourage, if not frighten, the states to adopt uniform regulatory schemes. This article first addresses the judicial, congressional, and executive recognition that has been extended to the states in the field of securities regulation. After reviewing these sources of support for state regulation, a response is made to the claim that duplication and the absence of uniformity have undermined the advantages, if any, of the dual regulatory system. In addressing this criticism, the different regulatory philosophies of the state and federal regulatory schemes and the resulting benefits to investors are explored. This article concludes that the complementary policies inherent in the present system establish a persuasive case against preemption of state securities laws.","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1984-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121409957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Question presented: under what circumstances a judge may order the dissolution of a corporation on the ground that a deadlock exists and that irreparable injury to the corporation is threatened or being suffered; what constitutes a deadlock within the meaning of G. L. c. 156D, § 14.30 (2). The Amici write to call the Court’s attention to a very recent decision of Delaware’s highest court addressing similar issues under a Delaware judicial dissolution statute that is comparable in many respects to G. L. c. 156D, § 14.30 (2).
{"title":"Amicus Brief: Koshy v. Sachdev, MA SJC","authors":"Brian JM Quinn, Nioufar Abae, Alex Peña","doi":"10.2139/ssrn.3440721","DOIUrl":"https://doi.org/10.2139/ssrn.3440721","url":null,"abstract":"Question presented: under what circumstances a judge may order the dissolution of a corporation on the ground that a deadlock exists and that irreparable injury to the corporation is threatened or being suffered; what constitutes a deadlock within the meaning of G. L. c. 156D, § 14.30 (2). The Amici write to call the Court’s attention to a very recent decision of Delaware’s highest court addressing similar issues under a Delaware judicial dissolution statute that is comparable in many respects to G. L. c. 156D, § 14.30 (2).","PeriodicalId":309706,"journal":{"name":"CGN: Governance Law & Arrangements by Subject Matter (Topic)","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124418607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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