markdownabstract__Key points__ • Article 17 MAR sets out the legal framework with respect to the disclosure of inside information. Article 17(1) MAR contains the primary duty to disclose inside information and stipulates that the issuer must disclose inside information that directly concerns that issuer. Article 17(4) MAR grants the issuer the possibility to delay the disclosure of inside information if three cumulative conditions are met; once one or more conditions are no longer met, the primary duty revives. • In addition to the primary duty, two separate duties to disclose have been included in Article 17 MAR: i) Article 17(8) MAR stipulates that the issuer must make complete and public disclosure of inside information that is disclosed to selected parties and ii) if the issuer had opted to delay the disclosure of inside information, Article 17(7) MAR stipulates that the issuer must make complete and public disclosure of that information if it has lost its confidential nature. • One could raise doubts over the necessity and function of Paragraphs 8 and 7 of Article 17 MAR. However, in this Paper we defend the independent status of these Paragraphs. If the inside information has lost its non-public nature, the duty to disclose that information can no longer be based on Article 17(1) MAR. Paragraphs 8 and 7 of Article 17 MAR contribute to legal certainty and to achieving the goals of the MAR.
{"title":"The subtle relationship between paragraphs 1, 4, 7 and 8 of Article 17 of the Market Abuse Regulation","authors":"Arnoud Pijls, M. Giltjes","doi":"10.2139/ssrn.3611338","DOIUrl":"https://doi.org/10.2139/ssrn.3611338","url":null,"abstract":"markdownabstract__Key points__ \u0000• Article 17 MAR sets out the legal framework with respect to the disclosure of inside information. Article 17(1) MAR contains the primary duty to disclose inside information and stipulates that the issuer must disclose inside information that directly concerns that issuer. Article 17(4) MAR grants the issuer the possibility to delay the disclosure of inside information if three cumulative conditions are met; once one or more conditions are no longer met, the primary duty revives. \u0000• In addition to the primary duty, two separate duties to disclose have been included in Article 17 MAR: i) Article 17(8) MAR stipulates that the issuer must make complete and public disclosure of inside information that is disclosed to selected parties and ii) if the issuer had opted to delay the disclosure of inside information, Article 17(7) MAR stipulates that the issuer must make complete and public disclosure of that information if it has lost its confidential nature. \u0000• One could raise doubts over the necessity and function of Paragraphs 8 and 7 of Article 17 MAR. However, in this Paper we defend the independent status of these Paragraphs. If the inside information has lost its non-public nature, the duty to disclose that information can no longer be based on Article 17(1) MAR. Paragraphs 8 and 7 of Article 17 MAR contribute to legal certainty and to achieving the goals of the MAR.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44299926","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}
As the global economic downturn from the coronavirus worsens, many sovereign debtors will have to choose between paying creditors and fighting the virus As of
随着冠状病毒导致的全球经济衰退加剧，许多主权债务人将不得不在偿还债权人和抗击病毒之间做出选择
{"title":"Necessity and the Covid-19 pandemic","authors":"W. M. C. Weidemaier, Mitu G. Gulati","doi":"10.1093/cmlj/kmaa013","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa013","url":null,"abstract":"As the global economic downturn from the coronavirus worsens, many sovereign debtors will have to choose between paying creditors and fighting the virus As of","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46567457","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 paper discusses the most noteworthy measures taken or yet to be taken by the EU to combat the coronavirus crisis. Basically, the measures fall into four categories: (i) flexible application of EU rules that could hinder member states in their strenuous efforts to save their national economies; (ii) a financial support package put in place by the EU itself, (iii) monetary action by the ECB and (iv) action by European financial regulators, including the ECB (albeit in its capacity of banking regulator rather than monetary authority). This is followed by some comments on the impact of the coronavirus crisis on (i) the intended completion of the European Banking Union, (ii) the plans for a European Capital Markets Union, (iii) Brexit and (iv) the EU climate plans. The paper concludes that it is clear that the crisis has once again laid bare the divisions between north and south in Europe. These divisions are particularly apparent in relation to the issue of financing the European recovery fund and the power struggle that has now flared up between the German Constitutional Court on the one hand and the CJEU and the ECB on the other. Hard times lie ahead for the EU.
{"title":"Is the European Union going to help us overcome the COVID-19 crisis?","authors":"D. Busch","doi":"10.1093/cmlj/kmaa010","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa010","url":null,"abstract":"The paper discusses the most noteworthy measures taken or yet to be taken by the EU to combat the coronavirus crisis. \u0000 \u0000Basically, the measures fall into four categories: (i) flexible application of EU rules that could hinder member states in their strenuous efforts to save their national economies; (ii) a financial support package put in place by the EU itself, (iii) monetary action by the ECB and (iv) action by European financial regulators, including the ECB (albeit in its capacity of banking regulator rather than monetary authority). \u0000 \u0000This is followed by some comments on the impact of the coronavirus crisis on (i) the intended completion of the European Banking Union, (ii) the plans for a European Capital Markets Union, (iii) Brexit and (iv) the EU climate plans. \u0000 \u0000The paper concludes that it is clear that the crisis has once again laid bare the divisions between north and south in Europe. These divisions are particularly apparent in relation to the issue of financing the European recovery fund and the power struggle that has now flared up between the German Constitutional Court on the one hand and the CJEU and the ECB on the other. Hard times lie ahead for the EU.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44355106","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}
Countries with large debts stocks are vulnerable to the vagaries of the markets. Confidence crises can arise out of nowhere, constricting access to the markets. Hence, the question arises as to whether these countries should put in place mechanisms that will help them better prepare for the possibility of crisis. In effect, the choice is whether to buy insurance. The cost of buying such insurance is that the possibility that markets will see the sovereign’s proactive steps to protect against a crisis not as an indication of prudent governance but rather as an indicator that a crisis is imminent. In this article, we use the case of a Euro area country (Italy) with a large debt stock and that has been hit particularly hard by Covid-19 to set forth its options, as of 2020, to anticipate a possible future debt restructuring. It can: do nothing, do a little; or do something substantial.
{"title":"How to restructure Euro area sovereign debt in the era of Covid-19","authors":"T. Arnold, Mitu G. Gulati, U. Panizza","doi":"10.1093/cmlj/kmaa015","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa015","url":null,"abstract":"Countries with large debts stocks are vulnerable to the vagaries of the markets. Confidence crises can arise out of nowhere, constricting access to the markets. Hence, the question arises as to whether these countries should put in place mechanisms that will help them better prepare for the possibility of crisis. In effect, the choice is whether to buy insurance. The cost of buying such insurance is that the possibility that markets will see the sovereign’s proactive steps to protect against a crisis not as an indication of prudent governance but rather as an indicator that a crisis is imminent. In this article, we use the case of a Euro area country (Italy) with a large debt stock and that has been hit particularly hard by Covid-19 to set forth its options, as of 2020, to anticipate a possible future debt restructuring. It can: do nothing, do a little; or do something substantial.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"15 1","pages":"322 - 346"},"PeriodicalIF":0.7,"publicationDate":"2020-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42507327","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}
{"title":"The regulation of the dual-class share structure in China: a comparative perspective","authors":"Longjie Lu","doi":"10.1093/cmlj/kmaa004","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa004","url":null,"abstract":"","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"15 1","pages":"224-249"},"PeriodicalIF":0.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49620059","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}
China’s bond market has expanded eightfold in the past decade. This rapid growth has transformed it into one of the largest bond markets globally. However, owing to the dual-track policy related to the public and private sectors during the early decades of Chinese economic reform, the regulatory regime of the bonds issued by state-owned enterprises and those that are privately owned has been treated differently and regulated by different authorities. The segmented regulation of government bonds, corporate bonds and financial bonds has seriously raised the transaction cost of issuers and motivated regulatory arbitrage as well. More interestingly, the regulatory system of China’s bond market has diversified during the past two decades. The regulatory regime of listing companies on the Chinese stock exchanges, by contrast, was unified as early as the late 1990s. Although the Financial Committee of the State Council has promised to unify the regulatory system of the Chinese bond markets since 2017, it does not appear to be easy to change the existing institution and there is uncertainty surrounding reform. Based on a detailed review of the origins and evolution of the regulatory regime of the Chinese bond markets, this article suggests that the segmented regulatory regime is rooted in the unequal status of the public and private sectors in the Chinese economy. Therefore, the pre-requisite for unifying China’s bond market regulation is the equal treatment of state-owned enterprises and privately owned companies.
{"title":"The segmented regulatory system of the bond markets in China: current situation, causes and reform","authors":"Chi Zhang","doi":"10.1093/cmlj/kmaa002","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa002","url":null,"abstract":"China’s bond market has expanded eightfold in the past decade. This rapid growth has transformed it into one of the largest bond markets globally. However, owing to the dual-track policy related to the public and private sectors during the early decades of Chinese economic reform, the regulatory regime of the bonds issued by state-owned enterprises and those that are privately owned has been treated differently and regulated by different authorities. \u0000 \u0000The segmented regulation of government bonds, corporate bonds and financial bonds has seriously raised the transaction cost of issuers and motivated regulatory arbitrage as well. More interestingly, the regulatory system of China’s bond market has diversified during the past two decades. The regulatory regime of listing companies on the Chinese stock exchanges, by contrast, was unified as early as the late 1990s. \u0000 \u0000Although the Financial Committee of the State Council has promised to unify the regulatory system of the Chinese bond markets since 2017, it does not appear to be easy to change the existing institution and there is uncertainty surrounding reform. \u0000 \u0000Based on a detailed review of the origins and evolution of the regulatory regime of the Chinese bond markets, this article suggests that the segmented regulatory regime is rooted in the unequal status of the public and private sectors in the Chinese economy. Therefore, the pre-requisite for unifying China’s bond market regulation is the equal treatment of state-owned enterprises and privately owned companies.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"15 1","pages":"175-190"},"PeriodicalIF":0.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44435997","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}
A little over a year ago, the leaders of the countries of the euro area formally pledged to reform the European Stability Mechanism (the ‘ESM’). At the Euro Summit of 14 December 2018, the Heads of State or Government of the euro area Member States endorsed the ‘Term Sheet on the reform of the European Stability Mechanism’, including the anticipated changes to its founding treaty. In December 2019, both the Eurogroup in inclusive format and the subsequent Euro Summit reached an agreement in principle on this reform package, subject to the conclusion of national procedures. The anticipated reform of the ESM follows seven years of ESM financial assistance programmes, during which the ESM, together with its predecessor the European Financial Stability Facility (EFSF), provided almost EUR 300 billion in financial assistance to five euro area Member States. As of the beginning of 2020, all beneficiary countries have successfully exited their programmes and some have already started early repayment to the EFSF/ESM and other creditors, such as the International Monetary Fund (IMF). Key points
{"title":"The reform of the European Stability Mechanism","authors":"J. Aerts, Pedro Bizarro","doi":"10.1093/cmlj/kmaa001","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa001","url":null,"abstract":"A little over a year ago, the leaders of the countries of the euro area formally pledged to reform the European Stability Mechanism (the ‘ESM’). At the Euro Summit of 14 December 2018, the Heads of State or Government of the euro area Member States endorsed the ‘Term Sheet on the reform of the European Stability Mechanism’, including the anticipated changes to its founding treaty. In December 2019, both the Eurogroup in inclusive format and the subsequent Euro Summit reached an agreement in principle on this reform package, subject to the conclusion of national procedures. The anticipated reform of the ESM follows seven years of ESM financial assistance programmes, during which the ESM, together with its predecessor the European Financial Stability Facility (EFSF), provided almost EUR 300 billion in financial assistance to five euro area Member States. As of the beginning of 2020, all beneficiary countries have successfully exited their programmes and some have already started early repayment to the EFSF/ESM and other creditors, such as the International Monetary Fund (IMF). Key points","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"27 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cmlj/kmaa001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41301330","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}
It has been begrudgingly presumed that Italy's bonds governed by New York law will remain untouched during an Italian debt restructuring as a result of an expectation that holdout creditors will successfully challenge any such restructuring attempt. However, this presumption was based on the flawed belief, based in a discrepancy between the language contained in the bond prospectus and the underlying indenture, that the bonds contain creditor-friendly pari passu language. As the controlling legal instrument – the indenture – instead uses the version of the pari passu clause that is much less creditor-friendly, Italy will be able to restructure the bonds with a dramatically reduced threat of holdout creditor litigation based on that clause. However, this discrepancy between the prospectus and the indenture makes Italy vulnerable to securities fraud claims by its creditors. Additionally, the presence of a similar variation in the pari passu clause in some of Venezuela’s bonds lends concern about the pervasiveness of the problem for sovereign debt issuances.
{"title":"Restructuring Italy’s New York law bonds","authors":"Andrea E Kropp","doi":"10.1093/cmlj/kmaa003","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa003","url":null,"abstract":"It has been begrudgingly presumed that Italy's bonds governed by New York law will remain untouched during an Italian debt restructuring as a result of an expectation that holdout creditors will successfully challenge any such restructuring attempt. However, this presumption was based on the flawed belief, based in a discrepancy between the language contained in the bond prospectus and the underlying indenture, that the bonds contain creditor-friendly pari passu language. As the controlling legal instrument – the indenture – instead uses the version of the pari passu clause that is much less creditor-friendly, Italy will be able to restructure the bonds with a dramatically reduced threat of holdout creditor litigation based on that clause. However, this discrepancy between the prospectus and the indenture makes Italy vulnerable to securities fraud claims by its creditors. Additionally, the presence of a similar variation in the pari passu clause in some of Venezuela’s bonds lends concern about the pervasiveness of the problem for sovereign debt issuances.","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"32 1 1","pages":"139-145"},"PeriodicalIF":0.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540249","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 paper discusses the potential impacts of the so-called “initial coin offerings”, and of several developments based on distributed ledger technology (“DLT”), on corporate governance. While many academic papers focus mainly on the legal qualification of DLT and crypto-assets, and most notably in relation to the potential definition of the latter as securities/financial instruments, the authors analyze some of the use cases based on DLT technology and their potential for significant changes of the corporate governance analyses. This article studies the consequences due to the emergence of new kinds of firm stakeholders, i.e. the crypto-assets holders, on the governance of small and medium-sized enterprises (“SMEs”) as well as of publicly traded companies. Since early 2016, a new way of raising funds has rapidly emerged as a major issue for FinTech founders and financial regulators. Frequently referred to as initial coin offerings, Initial Token Offerings (“ITO”), Token Generation Events (“TGE”) or simply “token sales”, we use in our paper the terminology Initial Crypto-asset Offerings (“ICO”), as it describes more effectively than “initial coin offerings” the vast diversity of assets that could be created and which goes far beyond the payment instrument issue
{"title":"Initial crypto-asset offerings (ICOs), tokenization and corporate governance","authors":"Stéphane Blemus,Dominique Guégan","doi":"10.1093/cmlj/kmaa005","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa005","url":null,"abstract":"This paper discusses the potential impacts of the so-called “initial coin offerings”, and of several developments based on distributed ledger technology (“DLT”), on corporate governance. While many academic papers focus mainly on the legal qualification of DLT and crypto-assets, and most notably in relation to the potential definition of the latter as securities/financial instruments, the authors analyze some of the use cases based on DLT technology and their potential for significant changes of the corporate governance analyses. This article studies the consequences due to the emergence of new kinds of firm stakeholders, i.e. the crypto-assets holders, on the governance of small and medium-sized enterprises (“SMEs”) as well as of publicly traded companies. Since early 2016, a new way of raising funds has rapidly emerged as a major issue for FinTech founders and financial regulators. Frequently referred to as initial coin offerings, Initial Token Offerings (“ITO”), Token Generation Events (“TGE”) or simply “token sales”, we use in our paper the terminology Initial Crypto-asset Offerings (“ICO”), as it describes more effectively than “initial coin offerings” the vast diversity of assets that could be created and which goes far beyond the payment instrument issue","PeriodicalId":43720,"journal":{"name":"Capital Markets Law Journal","volume":"52 1","pages":"191-223"},"PeriodicalIF":0.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540246","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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