Pub Date : 2020-01-02DOI: 10.1080/17521440.2019.1623488
N. Vandezande
Much has been written already about virtual currencies primarily serving as means of payment, such as bitcoin. However, it is becoming clear that the success of such virtual currencies on the payments market is limited at best. More and more, they are being used as a means of investment, with investors speculating on their often dramatic value fluctuations. Moreover, a new class of virtual currencies has emerged that serves primarily or even only as a means of investment. These virtual currencies, generally issued through what is called an “Initial Coin Offering” or as part of a decentralized autonomous entity, may have to be regarded from the perspective of securities laws, rather than from the perspective of payments laws. This paper analyses a few of those investment virtual currencies and assesses them from the perspective of the EU’s Markets in Financial Instruments Directive.
{"title":"Regulating initial coin offerings and DAO tokens under the EU’s financial instruments framework","authors":"N. Vandezande","doi":"10.1080/17521440.2019.1623488","DOIUrl":"https://doi.org/10.1080/17521440.2019.1623488","url":null,"abstract":"Much has been written already about virtual currencies primarily serving as means of payment, such as bitcoin. However, it is becoming clear that the success of such virtual currencies on the payments market is limited at best. More and more, they are being used as a means of investment, with investors speculating on their often dramatic value fluctuations. Moreover, a new class of virtual currencies has emerged that serves primarily or even only as a means of investment. These virtual currencies, generally issued through what is called an “Initial Coin Offering” or as part of a decentralized autonomous entity, may have to be regarded from the perspective of securities laws, rather than from the perspective of payments laws. This paper analyses a few of those investment virtual currencies and assesses them from the perspective of the EU’s Markets in Financial Instruments Directive.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"1048 ","pages":"33 - 38"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1623488","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41271655","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 : 2020-01-02DOI: 10.1080/17521440.2019.1640421
C. Buttigieg, Gerd Sapiano
Malta is one of the first countries to have enacted a framework for the regulation of crypto assets. This paper examines the Maltese initiative and compares this framework with developments in other jurisdictions, particularly France, which is the only EU Member State other than Malta, to have a sui generis framework for the sector. It also examines in detail the regime applicable to VFA Agents, which have a critical role in ensuring that only operators that are fit and proper get access to Malta’s financial system, thus acting as a first line of defence against the abuse of the system. The paper outlines how, through checks on an applicant for registration as a VFA Agent’s governance, business model, level of competence and systems and controls, the MFSA is ensuring that registered agents can perform as the Authority’s extended supervisory arm, thereby strengthening the level of monitoring in this field.
{"title":"A critical examination of the VFA framework – the VFA agent and beyond","authors":"C. Buttigieg, Gerd Sapiano","doi":"10.1080/17521440.2019.1640421","DOIUrl":"https://doi.org/10.1080/17521440.2019.1640421","url":null,"abstract":"Malta is one of the first countries to have enacted a framework for the regulation of crypto assets. This paper examines the Maltese initiative and compares this framework with developments in other jurisdictions, particularly France, which is the only EU Member State other than Malta, to have a sui generis framework for the sector. It also examines in detail the regime applicable to VFA Agents, which have a critical role in ensuring that only operators that are fit and proper get access to Malta’s financial system, thus acting as a first line of defence against the abuse of the system. The paper outlines how, through checks on an applicant for registration as a VFA Agent’s governance, business model, level of competence and systems and controls, the MFSA is ensuring that registered agents can perform as the Authority’s extended supervisory arm, thereby strengthening the level of monitoring in this field.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"14 1","pages":"48 - 58"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1640421","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44937370","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 : 2020-01-02DOI: 10.1080/17521440.2020.1722548
M. Gillis
The object of this short article is to examine one aspect of Myanmar’s recent market reform, namely, its prohibition of insider trading. The prohibition is itself uncontroversial and brings Myanmar into line with the securities laws of most other developed nations. The focus of this article is, rather, on whether the prohibition should be actively enforced or left to function as a mere symbolic legislative gesture. It is argued here that active enforcement is desirable in the developing economy context, but that the current legislative formulation of the insider trading prohibition in Myanmar leaves the prohibition to function really only as a symbolic gesture. The article undertakes a short comparative analysis with the Australian prohibition of insider trading and concludes both that prosecution under the current prohibition would be difficult and that legislative amendment is required.
{"title":"A symbolic legislative gesture? An argument for active enforcement of the insider trading prohibition in Myanmar","authors":"M. Gillis","doi":"10.1080/17521440.2020.1722548","DOIUrl":"https://doi.org/10.1080/17521440.2020.1722548","url":null,"abstract":"The object of this short article is to examine one aspect of Myanmar’s recent market reform, namely, its prohibition of insider trading. The prohibition is itself uncontroversial and brings Myanmar into line with the securities laws of most other developed nations. The focus of this article is, rather, on whether the prohibition should be actively enforced or left to function as a mere symbolic legislative gesture. It is argued here that active enforcement is desirable in the developing economy context, but that the current legislative formulation of the insider trading prohibition in Myanmar leaves the prohibition to function really only as a symbolic gesture. The article undertakes a short comparative analysis with the Australian prohibition of insider trading and concludes both that prosecution under the current prohibition would be difficult and that legislative amendment is required.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"14 1","pages":"59 - 64"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2020.1722548","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45255957","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 : 2020-01-02DOI: 10.1080/17521440.2019.1582204
Ing. Jitka Matějková, Bc. Ondřej Pavelek
The aim of this paper is to discuss and answer the issue whether the trading of claims and their use in civil proceedings may be an abuse of rights. Claims processing is a regular part of the business both in the Czech Republic and within the European Union. The European Commission proposed a special regulation governing the applicable law in 2018, as well emphasizes the legal arrangements for the assignment, especially its assets. Claims are made both between large business corporations and small business owners. Assignment of claims is also very important in ensuring the liquidity of a particular entrepreneur. If the assignment of a claim is made in the course of civil proceedings, the plaintiff – the promoter – usually submits a proposal for a procedural succession for bringing the assignee in the proceedings in their place. However, this right is easily abuse-able if it is an entrepreneur of a business corporation that fights with financial difficulties. In case of dismissal the defendant will not be entitled to reimbursement of the costs.
{"title":"Claim trading as a misuse of law","authors":"Ing. Jitka Matějková, Bc. Ondřej Pavelek","doi":"10.1080/17521440.2019.1582204","DOIUrl":"https://doi.org/10.1080/17521440.2019.1582204","url":null,"abstract":"The aim of this paper is to discuss and answer the issue whether the trading of claims and their use in civil proceedings may be an abuse of rights. Claims processing is a regular part of the business both in the Czech Republic and within the European Union. The European Commission proposed a special regulation governing the applicable law in 2018, as well emphasizes the legal arrangements for the assignment, especially its assets. Claims are made both between large business corporations and small business owners. Assignment of claims is also very important in ensuring the liquidity of a particular entrepreneur. If the assignment of a claim is made in the course of civil proceedings, the plaintiff – the promoter – usually submits a proposal for a procedural succession for bringing the assignee in the proceedings in their place. However, this right is easily abuse-able if it is an entrepreneur of a business corporation that fights with financial difficulties. In case of dismissal the defendant will not be entitled to reimbursement of the costs.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"14 1","pages":"29 - 32"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1582204","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43590871","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 : 2020-01-02DOI: 10.1080/17521440.2020.1724373
J. O'Brien
The Irish revolutionary Sean Lemass wrote in 1927 that wars always end with necessary compromise. ‘We must,’ he warned, ‘forget the petty conceits that bedevil us like rouge on the face of a corpse and face the facts, the hard facts, we must overcome.’ Lemass, instrumental in sparking a civil war, went on to become the leader of Fianna Fail, the Soldiers of Destiny, a party that has dominated Irish politics for close on a century. The quote has lost none of its all-encompassing resonance rhetorical power. It facilitates reflection on all existential crises, whether these are personal or communal, social, political, economic or environmentally driven. Its applicability transcends national boundaries. It forces us in the starkest terms possible to confront ourselves. Who are we? What do we seek to achieve? What is the purpose? Can it be justified on normative grounds that go beyond self-interest? The quotation is particularly appropriate to base analysis on the compromises brokered at the fiftieth World Economic Forum (WEF), recently concluded in the Swiss resort of Davos. While these compromises may not end the climate wars, the war on truth and fake news, they do reposition the battleground. Much media reporting privileged bombastic sloganeering from an American president to an equally shrill Scandinavian teenager. President Trump’s denial of urgency in addressing global challenges and Greta Thunberg’s furious objections to governmental inaction on climate change hijacked debate on the underlying science itself and for what purpose we should apply it. The claim and counterclaim threatened and did overshadow a significant, and potentially transformative, initiative. For the first time, from industry came recognition that sustainable development and societal well-bring necessitated a new and binding social contract. In addition, came acceptance that action on climate could not be divorced from the United Nation’s broader Social Development Goals. These, in turn, necessitated the implementation of global tax reform to ensure national exchequers have the revenue to build or enhance physical and social infrastructures, thereby addressing the scourge of rising inequality. Moreover, corporations had a moral duty to negotiate and uphold this contract. Holistic and measurable stakeholder engagement measures were accepted as essential to embed corporate self-interest and rebuild societal trust. To achieve transformative objectives necessitates acknowledgement of past failure, humility and a commitment to change. Rouge alone cannot disguise the reality of death. In sharp contrast to political timidity, corporations have recognised time is a luxury they can no longer afford. The rise of populism means sovereign risk can be added to the travails facing the corporation. With the Doomsday Clock that measures the aggregated risks facing the planet now sitting at twelve seconds to midnight, the WEF forged a partnership at Davos with the United Nations (UN). Graci
{"title":"The moral foundations of stakeholder capitalism","authors":"J. O'Brien","doi":"10.1080/17521440.2020.1724373","DOIUrl":"https://doi.org/10.1080/17521440.2020.1724373","url":null,"abstract":"The Irish revolutionary Sean Lemass wrote in 1927 that wars always end with necessary compromise. ‘We must,’ he warned, ‘forget the petty conceits that bedevil us like rouge on the face of a corpse and face the facts, the hard facts, we must overcome.’ Lemass, instrumental in sparking a civil war, went on to become the leader of Fianna Fail, the Soldiers of Destiny, a party that has dominated Irish politics for close on a century. The quote has lost none of its all-encompassing resonance rhetorical power. It facilitates reflection on all existential crises, whether these are personal or communal, social, political, economic or environmentally driven. Its applicability transcends national boundaries. It forces us in the starkest terms possible to confront ourselves. Who are we? What do we seek to achieve? What is the purpose? Can it be justified on normative grounds that go beyond self-interest? The quotation is particularly appropriate to base analysis on the compromises brokered at the fiftieth World Economic Forum (WEF), recently concluded in the Swiss resort of Davos. While these compromises may not end the climate wars, the war on truth and fake news, they do reposition the battleground. Much media reporting privileged bombastic sloganeering from an American president to an equally shrill Scandinavian teenager. President Trump’s denial of urgency in addressing global challenges and Greta Thunberg’s furious objections to governmental inaction on climate change hijacked debate on the underlying science itself and for what purpose we should apply it. The claim and counterclaim threatened and did overshadow a significant, and potentially transformative, initiative. For the first time, from industry came recognition that sustainable development and societal well-bring necessitated a new and binding social contract. In addition, came acceptance that action on climate could not be divorced from the United Nation’s broader Social Development Goals. These, in turn, necessitated the implementation of global tax reform to ensure national exchequers have the revenue to build or enhance physical and social infrastructures, thereby addressing the scourge of rising inequality. Moreover, corporations had a moral duty to negotiate and uphold this contract. Holistic and measurable stakeholder engagement measures were accepted as essential to embed corporate self-interest and rebuild societal trust. To achieve transformative objectives necessitates acknowledgement of past failure, humility and a commitment to change. Rouge alone cannot disguise the reality of death. In sharp contrast to political timidity, corporations have recognised time is a luxury they can no longer afford. The rise of populism means sovereign risk can be added to the travails facing the corporation. With the Doomsday Clock that measures the aggregated risks facing the planet now sitting at twelve seconds to midnight, the WEF forged a partnership at Davos with the United Nations (UN). Graci","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"14 1","pages":"1 - 4"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2020.1724373","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49143182","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 : 2019-10-02DOI: 10.1080/17521440.2019.1678892
J. O'Brien
Rarely has an official Australian report been so keenly awaited across regulatory, practitioner and academic circles. Just what would the shrink in the boardroom make of contemporary practice? What stunning insights could an organisational psychologist bring to the table, albeit incorporated into a framework that comprised the usual suspects? The answer is not much but not for the reasons that have prompted such apocalyptic resentment from the big end of town. The staging for maximum impact could not be faulted. More than 2500 members and associates of the Australian Institute for Company Directors had gathered at the Sydney International Convention Centre. The chair of the Australian Securities and Investments Commission, James Shipton, had turned down an invitation to help shape global discourse at the OECD’s Trust in Business forum in Paris to impart the findings of a year-long investigation into the risk management practices of Australian Stock exchange listed corporations, with particular reference to the identification by boards of directors of non-financial indicators. The content and tone of the speech was accusatory if somewhat pleading.
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Pub Date : 2019-09-25DOI: 10.1080/17521440.2019.1668130
Carla Farinhas
In the years between 2014 and 2018, in judgements Altmann, Baumeister, UBS and Buccioni, the Court examined the scope of the obligation of professional secrecy incumbent on financial and banking supervisory authorities of Member States pursuant to Article 54 MiFID and Article 53 CRD. The Court has not only clarified the notion of “confidential information” but has also provided guidance to national courts on how to reconcile the concerns which underpin the obligation of professional secrecy laid down by the EU legislator in this field and certain core values to democracy and to the rule of law in the EU.
{"title":"Access to confidential information in the financial and banking sectors: judgements of the Court of Justice in Altmann, Baumeister, UBS and Buccioni","authors":"Carla Farinhas","doi":"10.1080/17521440.2019.1668130","DOIUrl":"https://doi.org/10.1080/17521440.2019.1668130","url":null,"abstract":"In the years between 2014 and 2018, in judgements Altmann, Baumeister, UBS and Buccioni, the Court examined the scope of the obligation of professional secrecy incumbent on financial and banking supervisory authorities of Member States pursuant to Article 54 MiFID and Article 53 CRD. The Court has not only clarified the notion of “confidential information” but has also provided guidance to national courts on how to reconcile the concerns which underpin the obligation of professional secrecy laid down by the EU legislator in this field and certain core values to democracy and to the rule of law in the EU.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"13 1","pages":"203 - 210"},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1668130","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46076455","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 : 2019-09-23DOI: 10.1080/17521440.2019.1669327
Eduardo Alonso Olmos
From an international perspective, there is a lack of debarment from public procurement and disgorgement of illegal profits by senior executives of corporations that conclude a negotiated settlement in grand corruption in domestic or foreign bribery cases. Instead, the corporations serve as scapegoats and are paying to protect high-profile individuals. When an individual provides substantial cooperation, it still be possible to negotiate jail time and fine amounts, but not debarment or disgorgement for those who planned, initiated, or carried out the wrongdoing. It is important to consider and motivate the disgorgement by forfeiture of shares or debarment of executives to ultimately change the control and the culture of the corporation. Additionally, it is necessary to enhance coordination across agencies and compliance offices, so that they can join particular skills and implement measures not taken before, although in different stages. The countries should help each other to implement these measures in a harmonized way, including through civil or administrative procedures, whether to recognize foreign decisions or start new procedures in favor of the victim country of corruption. International recommendations are necessary in this field.
{"title":"Too Small to Debar? Too Small to Disgorge Illegal Profits? What About the Senior Executives, Including the CEO?*","authors":"Eduardo Alonso Olmos","doi":"10.1080/17521440.2019.1669327","DOIUrl":"https://doi.org/10.1080/17521440.2019.1669327","url":null,"abstract":"From an international perspective, there is a lack of debarment from public procurement and disgorgement of illegal profits by senior executives of corporations that conclude a negotiated settlement in grand corruption in domestic or foreign bribery cases. Instead, the corporations serve as scapegoats and are paying to protect high-profile individuals. When an individual provides substantial cooperation, it still be possible to negotiate jail time and fine amounts, but not debarment or disgorgement for those who planned, initiated, or carried out the wrongdoing. It is important to consider and motivate the disgorgement by forfeiture of shares or debarment of executives to ultimately change the control and the culture of the corporation. Additionally, it is necessary to enhance coordination across agencies and compliance offices, so that they can join particular skills and implement measures not taken before, although in different stages. The countries should help each other to implement these measures in a harmonized way, including through civil or administrative procedures, whether to recognize foreign decisions or start new procedures in favor of the victim country of corruption. International recommendations are necessary in this field.","PeriodicalId":43241,"journal":{"name":"Law and Financial Markets Review","volume":"13 1","pages":"254 - 260"},"PeriodicalIF":0.0,"publicationDate":"2019-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17521440.2019.1669327","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42087542","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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