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Critical review of the international and contractual measures for optimal restructuring 对国际和合同措施进行严格审查,以实现最佳的结构调整
Q2 Social Sciences Pub Date : 2020-05-15 DOI: 10.1080/17521440.2020.1759240
Ferdous Rahman
Due to time constrain and uncertainties in getting payment through litigation, the sovereign creditors and the debtor prefer restructuring to litigation upon default. However, all the creditors may not agree on restructuring. Some of them may go for enforcement despite the detrimental effects on the restructuring process. After the experience of the sovereign debt crisis in several states, many legislative and contractual proposals were submitted and none of them achieved the desired success. This paper explores the challenges of the restructuring process and the national and international initiatives to mitigate these obstacles, especially the Collective Action Clauses (CACs). The findings express a skeptical view of the effectiveness of CACs to reduce the impediments in the restructuring process. Its overriding effect of majority debtholders’ decisions on exit or stay increases the borrowing costs for the state because of the decrease in the independent decision-making power of the creditors.
由于时间限制和通过诉讼获得偿付的不确定性,主权债权人和债务人更倾向于重组而不是违约诉讼。但是,所有债权人可能不会同意重组。其中一些可能会强制执行,尽管这会对重组进程产生不利影响。几个国家在经历了主权债务危机之后,提出了许多立法和合同建议,但没有一个获得了预期的成功。本文探讨了重组过程中的挑战以及缓解这些障碍的国家和国际举措,特别是集体行动条款(CACs)。研究结果对cac在减少重组过程中的障碍方面的有效性表示怀疑。多数债权人决定退出或保留的压倒性作用,由于债权人独立决策权的降低,增加了国家的借贷成本。
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引用次数: 0
Banking on AI: mandating a proactive approach to AI regulation in the financial sector 人工智能银行:在金融部门强制采取积极主动的人工智能监管方法
Q2 Social Sciences Pub Date : 2020-04-02 DOI: 10.1080/17521440.2020.1760454
J. Truby, R. Brown, A. Dahdal
Despite an emerging international consensus on principles of AI governance, lawmakers have so far failed to translate those principles into regulations in the financial sector. Perhaps, in order to remain competitive in the global race for AI supremacy without being typecast as stifling innovation, typically cautious financial regulators are unusually allowing the introduction of experimental AI technology into the financial sector, with few controls on the unprecedented risks to consumers and financial stability. Once an unregulated AI software causes serious economic harm, a public and regulatory backlash would lead to over-regulation that could harm innovation of this potentially beneficial technology. Artificial intelligence is rapidly influencing the financial sector with innumerable potential benefits, such as enhancing financial services and improving regulatory compliance. This article argues that the best way to encourage a sustainable future in AI innovation in the financial sector is to support a proactive regulatory approach prior to any financial harm occurring. This proactive approach should implement rational regulations that embody jurisdiction-specific rules in line with carefully construed international principles.
尽管国际上正在就人工智能治理原则达成共识,但立法者迄今未能将这些原则转化为金融部门的法规。也许,为了在全球人工智能霸主地位的竞争中保持竞争力,而不被认为是扼杀创新,通常谨慎的金融监管机构不同寻常地允许将实验性人工智能技术引入金融部门,而对消费者和金融稳定面临的前所未有的风险几乎没有控制。一旦一个不受监管的人工智能软件造成严重的经济伤害,公众和监管部门的强烈反对将导致过度监管,这可能会损害这项潜在有益技术的创新。人工智能正在迅速影响金融部门,带来无数潜在好处,例如加强金融服务和提高监管合规性。本文认为,鼓励金融部门人工智能创新实现可持续未来的最佳方式是在发生任何金融危害之前支持积极的监管方法。这种积极主动的做法应实施合理的条例,体现符合仔细解释的国际原则的特定管辖权规则。
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引用次数: 34
W[h]ither Australia? Will Parliament Act? 是澳大利亚吗?议会会采取行动吗?
Q2 Social Sciences Pub Date : 2020-04-02 DOI: 10.1080/17521440.2020.1759218
David G Millhouse
Australia is replete with commissions and inquiries into egregious behaviour in its financial sector. This author has quantified the effects of those behaviours on individuals and the wider economy. 1 These investigations include Heydon 2 (elimination of unhealthy culture), Hayne 3 (confluence of law and morality) and the Productivity Commission 4 (trust). The most important Hayne recommendations 5 – which would reduce Australia’s international reputation as a regulatory outlier and better reflect community expectations remain unresolved. Confused parliamentary leadership has facilitated corruption of the financial regulatory system which has for many people been an abject disaster. 6 The Australian government must act. It must do so strategically. It must establish the nexus between the intent of the law and its practical implementation for those it purports to serve. Parliament has yet to debate the underlying causes focussing instead on tactical and punitive responses. If it does, then it must confront the distinction between prescriptive statute and principles-based supervision, recognising the power of antecedent fiduciary law. These are philosophical as well as legal questions. Hayne pointed to the need for a framework for the re-integration of the intent and spirit of the law with its statutory manifestations, presently scattered and inconsistent. This paper is that framework. Without it, much of the financial services and products sectors may continue their descent into the Stygian gloom of costly and inconsistent multi-layered bespoke regulation. An unintended consequence of paternalist policy will be fewer market participants, less choice and fewer opportunities to develop financial literacy.
澳大利亚对其金融部门的恶劣行为进行了大量的调查和调查。作者量化了这些行为对个人和整个经济的影响。1这些调查包括Heydon 2(消除不健康文化)、Hayne 3(法律与道德的融合)和生产力委员会4(信托)。最重要的海恩建议5——这将降低澳大利亚作为监管局外人的国际声誉,并更好地反映社区期望——仍未得到解决。混乱的议会领导层助长了金融监管体系的腐败,对许多人来说,这是一场悲惨的灾难。6澳大利亚政府必须采取行动。它必须从战略上这样做。它必须在法律的意图和法律对其声称服务的人的实际执行之间建立联系。议会尚未就根本原因展开辩论,而是将重点放在战术和惩罚性回应上。如果它这样做了,那么它必须面对规范性法规和基于原则的监督之间的区别,承认先前信托法的权力。这些既是哲学问题,也是法律问题。海恩指出,需要一个框架,将法律的意图和精神与其目前分散和不一致的法定表现形式重新结合起来。本文就是这样的框架。如果没有它,许多金融服务和产品行业可能会继续陷入成本高昂且不一致的多层定制监管的冥冥之中。家长式政策的一个意想不到的后果将是市场参与者减少,选择减少,发展金融知识的机会减少。
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引用次数: 0
EU Regulatory Developments 欧盟监管发展
Q2 Social Sciences Pub Date : 2020-04-02 DOI: 10.1080/17521440.2020.1767426
C. Chance
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引用次数: 0
How exceptional is Australian financial sector misconduct? The Hayne Royal Commission revisited 澳大利亚金融部门的不当行为有多特殊?海恩皇家委员会重访
Q2 Social Sciences Pub Date : 2020-04-02 DOI: 10.1080/17521440.2020.1759219
J. Singleton, J. Reveley
By failing to consider that the types of financial misconduct witnessed in Australia in recent years are relatively commonplace in other countries, the Hayne Royal Commission exaggerates the level of miscreance within the local financial sector. This paper seeks to rectify this neglect by offering an explicit comparison of misconduct in Australian and major British and American banks. It also suggests that the Commission’s work and findings inadvertently provide support for the populist view that Australian financial institutions are exceptionally unethical in their treatment of customers and clients. Given the emergence of Fintech and the potential for Big Tech firms to penetrate financial services markets, large incumbent Australian firms are already facing a serious challenge. If the net effect of the Royal Commission is to deepen mistrust of large Australian banks and insurers, their capacity to resist this challenge will be diminished with potentially far-reaching consequences.
海恩皇家委员会没有考虑到近年来在澳大利亚发生的金融不当行为在其他国家相对常见,因此夸大了当地金融部门的不法行为水平。本文试图通过对澳大利亚和英国及美国主要银行的不当行为进行明确的比较来纠正这种忽视。它还表明,委员会的工作和调查结果无意中支持了民粹主义观点,即澳大利亚金融机构在对待客户和客户时异常不道德。鉴于金融科技的出现以及大型科技公司渗透金融服务市场的潜力,澳大利亚的大型现有公司已经面临着严峻的挑战。如果皇家委员会的净影响是加深对澳大利亚大型银行和保险公司的不信任,那么它们抵御这一挑战的能力将减弱,并可能产生深远影响。
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引用次数: 1
Choice of law and jurisdiction in banking and finance contracts after Brexit: a perspective from Europe 英国脱欧后银行和金融合同的法律选择和管辖权:一个来自欧洲的视角
Q2 Social Sciences Pub Date : 2020-04-02 DOI: 10.1080/17521440.2020.1759233
Oriol Espar, J. Castell
English law is the preferred law for banking and finance transactions whether they take place in the United Kingdom or not. When opting for English law to govern a contract, the choice of the jurisdiction of the English courts usually follows suit. The European Union’s favourable regimes of several recognition and enforcement of Judgments, especially the Brussels I Recast regulation, have made it even more attractive for member state’s banks. But given that this regime changes after Brexit, will this privileged position of the UK be jeopardised?
无论银行和金融交易是否发生在英国,英国法律都是首选法律。当选择英国法律管辖合同时,通常也会选择英国法院的管辖权。欧盟在承认和执行若干判决方面的有利制度,特别是布鲁塞尔第一次修订规定,使其对成员国的银行更具吸引力。但考虑到英国脱欧后这一制度发生变化,英国的这一特权地位会受到威胁吗?
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引用次数: 1
The Pros and Cons for Insider Trading Regulation in Zimbabwe 津巴布韦内幕交易监管的利弊
Q2 Social Sciences Pub Date : 2020-03-17 DOI: 10.1080/17521440.2020.1726617
Howard Chitimira, Pontsho Mokone
The debate on the regulation of insider trading has existed for several decades and it remains unresolved to date. For instance, proponents for the deregulation of insider trading argue that it should not be treated as an offence while proponents for the regulation of insider trading contend that it is an offence that could, inter alia, give rise to a host of problems such as poor market efficiency, poor market integrity and low public investor confidence in the financial markets of any country. It appears the Zimbabwean policy makers also view insider trading as an offence in the Zimbabwean financial markets. Consequently, insider trading is currently outlawed in Zimbabwe. Notably, insider trading is mainly prohibited to enhance public investor confidence, market efficiency and market integrity in the Zimbabwean financial markets. Accordingly, insider trading activities are statutorily prohihited in Zimbabwe under the Securities Act 17 of 2004 [Chapter 24:25] as amended (Securities Act). Given this background, the article investigates the merits and demerits of the insider trading regulation and deregulation debate. The authors submit that adequate insder trading laws that are consistently enforced by the relevant enforcement authorities and other key role-players could effectively combat insider trading activities in the financial markets of any country.
关于内幕交易监管的争论已经存在了几十年,至今仍未解决。例如,对内幕交易放松管制的支持者认为,不应将其视为犯罪,而对内幕交易进行监管的支持者则认为,这一犯罪可能会引发一系列问题,如市场效率低下、市场诚信低下以及公众投资者对任何国家金融市场的信心低下。津巴布韦决策者似乎也将内幕交易视为津巴布韦金融市场的犯罪行为。因此,津巴布韦目前禁止内幕交易。值得注意的是,内幕交易主要是为了增强津巴布韦金融市场的公众投资者信心、市场效率和市场诚信。因此,根据经修订的2004年第17号《证券法》[第24:25章],津巴布韦依法禁止内幕交易活动。在此背景下,本文对内幕交易监管与放松管制之争的利弊进行了考察。作者认为,由相关执法机构和其他关键角色持续执行的适当内幕交易法可以有效打击任何国家金融市场的内幕交易活动。
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引用次数: 0
New Forms of Money for the Twenty-first Century and the Legacy of France’s Assignat Experiment 21世纪的新货币形式和法国的货币实验的遗产
Q2 Social Sciences Pub Date : 2020-01-27 DOI: 10.1080/17521440.2020.1717170
Phoebus Athanassiou
The assignat, the French Revolution’s innovative but failed currency experiment, is amongst the most instructive in the entire history of currency innovations. Although the example of the assignat is often invoked to demonstrate the importance of restraint in the issuance of token money, and to illustrate the evils of uncontrolled inflation, it has so far received little attention in the debate surrounding contemporary currency innovations, such as crypto-currencies and stablecoins. This paper pursues a three-pronged objective: first, to explore the core lessons of the unsuccessful assignat experiment for money, in general, and for contemporary currency innovations, in particular; second, to identify, on their basis, the main determinants for the success of currency experiments; and third, to apply to twenty-first Century currency innovations the lessons drawn from the assignat experiment’s failure, with a view to assessing the prospect of their success, as viable alternatives to fiat currencies, relative to the assignat.
这是法国大革命的创新但失败的货币实验,是整个货币创新史上最具启发性的实验之一。尽管转让人的例子经常被用来证明代币发行中克制的重要性,并说明不受控制的通货膨胀的罪恶,但迄今为止,在围绕加密货币和稳定币等当代货币创新的辩论中,它几乎没有受到关注。本文追求一个三管齐下的目标:首先,探索不成功的货币分配实验的核心教训,特别是对当代货币创新的核心教训;第二,在它们的基础上,确定货币实验成功的主要决定因素;第三,将从指定货币试验失败中汲取的经验教训应用于21世纪的货币创新,以评估其成功的前景,作为法定货币相对于指定货币的可行替代品。
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引用次数: 0
EU regulation and supervision of securities business: a critical analysis of the challenges faced by the National Competent Authorities of small EU and EEA EFTA Member States 欧盟对证券业务的监管:对欧盟和欧洲经济区欧洲自由贸易联盟小成员国国家主管当局面临的挑战的批判性分析
Q2 Social Sciences Pub Date : 2020-01-02 DOI: 10.1080/17521440.2019.1602695
C. Buttigieg
The paper aims at identifying the main challenges faced by the National Competent Authorities responsible for securities regulation and supervision of small EU and EEA EFTA Member States (SNCAs), within the context of the existing EU regulatory and supervisory framework. The central argument of the paper is that SNCAs face human, technical and financial resource limitations, which have an impact on their level of participation in the discussion at the European Securities andMarkets Authority (ESMA) and with regard to supervision when compared to their larger peers. The paper also makes the point that the likelihood of regulatory capture is another challenge faced by SCNAs, which may also have an impact on their level and quality of supervisory engagement. These structural disadvantages may be addressed by SNCAs if they form alliances and pool resources for this purpose. The paper makes a number of proposals in this regard. The research question this paper aims at addressing is: What are the challenges faced by the NCAs responsible for securities regulation of small EU and EEA EFTA Member States in the context of the evolving European framework for financial regulation and supervision? The hypothesis of this paper is that the challenges faced by SNCAs that result from the lack of resources and the likelihood of regulatory capture may be alleviated or resolved if SNCAs are willing to form alliances and pool resources to: [a] set up a network of SNCAs to discuss the challenges faced and come to common positions; [b] invest in supervisory technology; [c] establish an academy for financial supervisors to train their staff; [d] put proportionality back in Europe’s regulatory and supervisory agenda; and [e] discuss the possible implementation of robust governance measures to mitigate the risk of regulatory capture. In terms of methodology, the author identified the main challenges of SNCAs and the possible solutions in this regard. This exercise was based on the author’s eighteen years of experience as a financial regulator/ supervisor in Malta, EU’s smallest Member State by population, and twelve years representing the Malta Financial Services Authority in EU related fora, including the Committee of European Securities Regulators and ESMA. The identified challenges were discussed with the former deputy-governor of the Central Bank of Malta and two former experienced financial regulators, who provided their views in this regard. These challenges and the proposed solutions formed the basis of a questionnaire which was sent to high officials of SNCAs of eleven EU Member States and three EEA EFTA States. A copy of the questionnaire sent to SNCAs has been included as annex 1 to this paper. The selected jurisdictions have a population below 5.5 million and are considered as Europe’s small states. Thirteen SNCAs replied to the questionnaire which represent 93% of the sampled population. The replies to the questionnaire, which have been analysed to identify ge
本文旨在确定在现有欧盟监管框架的背景下,负责欧盟和欧洲经济区EFTA成员国(SNCAs)证券监管和监督的国家主管当局面临的主要挑战。该论文的中心论点是,snca面临人力、技术和财政资源的限制,这对他们参与欧洲证券和市场管理局(ESMA)的讨论以及与更大的同行相比的监管水平产生了影响。本文还指出,监管俘获的可能性是scna面临的另一个挑战,这也可能对其监管参与的水平和质量产生影响。如果snca为此目的结成联盟并集中资源,则可以解决这些结构性缺陷。本文在这方面提出了若干建议。本文旨在解决的研究问题是:在不断发展的欧洲金融监管框架的背景下,负责欧盟和欧洲经济区小成员国证券监管的国家监管机构面临的挑战是什么?本文的假设是,如果snca愿意结成联盟,集中资源,可以缓解或解决snca面临的资源缺乏和监管捕获可能性带来的挑战:[a]建立snca网络,讨论面临的挑战并达成共同立场;[b]对监控技术进行投资;[c]设立一所学院,供金融监管人员培训其员工;[d]将相称性重新纳入欧洲的监管议程;[e]讨论可能实施的强有力的治理措施,以减轻监管俘获的风险。在方法方面,作者确定了snca的主要挑战以及在这方面可能的解决方案。这项工作是基于作者在欧盟人口最小的成员国马耳他担任金融监管机构/监督员18年的经验,以及在欧盟相关论坛(包括欧洲证券监管机构委员会和ESMA)代表马耳他金融服务管理局12年的经验。与马耳他中央银行前副行长和两位前经验丰富的金融监管人员讨论了所确定的挑战,他们在这方面发表了意见。这些挑战和提出的解决办法构成了一份调查表的基础,该调查表已发给11个欧盟成员国和3个欧洲经济区欧洲自由贸易联盟国家的国家行政当局高级官员。本文件附件1载有发给各国家行政当局的调查表副本。所选的司法管辖区人口低于550万,被认为是欧洲的小国。13个snca回答了问卷,代表了93%的抽样人口。对问卷的答复已经过分析以确定一般趋势,由于这是参与者同意的条件之一,因此以匿名方式提出。本文的价值在于,它考察了snca在欧洲证券监管框架背景下面临的挑战。这些挑战是金融监管和监督治理的一个特定领域,尚未得到任何充分程度的学术考虑和研究。论文的其余部分分为四个额外的部分。第2节简要介绍了当前的欧洲监管框架和监督制度,包括对ESMA进行审查的建议。第3节确定了snca面临的挑战。第4节分析收到的问卷答复。在本文的最后一节作了一些总结。
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引用次数: 2
Accounting and financial reporting of economic entities: adaptation of Ukrainian legislation to the standards of the European Union 经济实体的会计和财务报告:乌克兰立法适应欧洲联盟标准
Q2 Social Sciences Pub Date : 2020-01-02 DOI: 10.1080/17521440.2019.1612629
T. Bodnar, V. V. Reznikova, N. Patsuriia, Valeria V. Radzyviliuk, I. Kravets
The article is devoted to today's most pressing issues of adaptation of the Ukrainian legislation on accounting and financial reporting of economic entities to the standards of the European Union. The paper defines the concepts of accounting, accounting statements, financial reporting, accounting organization, establishes the key task of accounting, the purpose of financial reporting. The article provides grounds for the conclusion that the economic relations regarding organization and management of accounting in Ukraine, compilation, presentation and disclosure of financial statements by economic entities are regulated by a multilevel system of normative legal acts with different legal effects. The paper has analyzed the novelties of the accounting legislation and provided suggestions for further improvement of legislation on accounting and financial reporting regulation. The article has explored the status and outlined the prospects for further adaptation of the provisions of normative legal acts, which regulate procedures of accounting management and financial reporting.
这篇文章专门讨论了当今最紧迫的问题,即乌克兰关于经济实体会计和财务报告的立法是否符合欧洲联盟的标准。本文界定了会计、会计报表、财务报告、会计组织的概念,确立了会计的核心任务、财务报告的目的。本文为以下结论提供了依据:乌克兰的会计组织和管理、经济实体财务报表的编制、列报和披露等方面的经济关系受到具有不同法律效力的多层次规范性法律行为体系的规范。本文分析了我国会计立法的创新之处,并对我国会计和财务报告监管立法的进一步完善提出了建议。该条探讨了规范性法律法规规定的会计管理和财务报告程序的现状,并概述了进一步调整这些法规的前景。
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引用次数: 1
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Law and Financial Markets Review
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