美国和欧盟外部人的内部交易

Dörte Poelzig, Paul Dittrich
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引用次数: 0

摘要

692 禁止内幕交易起源于美国法律,其结构特征也影响了欧盟的内幕交易法。如今,两种内幕交易法体系的教条做法截然不同。特别是在处理发行人以外的投资者,即所谓的局外人时,两种法律体系在涵盖交易的方式和范围方面存在差异。根据我们的理解,局外人是指那些既不通过其在发行人内部的地位,也不通过为发行人提供专业服务,与发行人之间的关系允许其有特权获取内部信息的投资者。我们将通过参考美国法院最近在美国证券交易委员会(SEC)诉 Panuwat 案中的判决来阐述欧盟法律与美国法律之间的差异,在该案中,法院批准了美国证券交易委员会所谓的影子交易理论。虽然这一判决在美国引起了广泛关注,但我们认为,由于广泛的信息对等原则,影子交易无疑属于欧盟内部人法的范畴。然而,由于欧盟内幕法的适用范围很广,基本上适用于所有掌握内部信息的投资者,因此也可能禁止可能对资本市场有用的局外人交易,如金融分析师或举报人的交易。因此,我们将仔细研究金融分析师或举报人是否以及在多大程度上享有《市场滥用条例》(MAR)第 28 条规定的特权,该条仅适用于基于公开数据的研究,但并未明确规定何时为公开信息。如果我们看看参与立法的政界人士,他们可以接触到许多发行人的重要信息,这一点就很明 显了。在美国,美国证券交易委员会(SEC)--在执行禁止内幕交易的规定方面发挥着推动作用--以及立法者本身都已经开始积极行动起来。在此背景下,我们研究了欧盟内幕交易法可以提供哪些手段来发现政客和其他局外人的内幕交易,并表明调整和扩展现有规则可能是一条可行的前进之路。
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Insider Dealing by Outsiders in the U. S. and EU
692The prohibition of insider dealing has its origins in U. S. law, the structural features of which have also influenced EU insider law. Today the dogmatic approaches of the two insider law systems differ diametrically. Particularly in dealing with investors outside the issuer, so-called outsiders, the two legal systems differ in terms of both the manner and the scope of covered transactions. According to our understanding outsiders are investors who, neither through their position within the issuer nor through the exercise of a profession for the issuer, have a relationship with the issuer that allows privileged access to inside information. We will lay out the differences between EU and U. S. law by reference to the recent decision of a U. S. Court in U. S. Securities and Exchange Commission (SEC) v. Panuwat, where the court approved the so-called shadow trading theory of the SEC. Whereas this decision has attracted a lot of attention in the U. S., we argue, that shadow trading is undoubtedly covered by EU insider law due to the broad principle of information parity. However, because of its broad scope EU insider law applies basically to all investors who possess inside information and hence may also prohibit transactions by outsiders which might be useful for capital markets, such as trading by financial analysts or whistle blowers. We will therefore scrutinize whether and how far financial analysts or whistleblowers are privileged by Recital 28 of the Market Abuse Regulation (MAR), which only applies to research based on publicly available data, but does not specify when information is publicly available.Whereas in regard to outsiders, the EU insider dealing law goes sometimes too far at the substantive level, in enforcement matters it is too restrictive on the other side. This becomes obvious when we look at politicians which are involved in legislation and hence have access to material information for many issuers. In the U. S., the SEC – acting as a driving force in the U. S. when it comes to the enforcement of the insider dealing prohibition – but also the legislator itself have already become active. Against this background, we examine what instruments EU insider law might provide to detect insider dealing by politicians and other outsiders and show that adapting and extending the existing rules may be a feasible way forward.
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来源期刊
CiteScore
1.00
自引率
16.70%
发文量
13
期刊介绍: In legislation and in case law, European law has become a steadily more dominant factor in determining national European company laws. The “European Company”, the forthcoming “European Private Company” as well as the Regulation on the Application of International Financial Reporting Standards (“IFRS Regulation”) have accelerated this development even more. The discussion, however, is still mired in individual nations. This is true for the academic field and – even still – for many practitioners. The journal intends to overcome this handicap by sparking a debate across Europe on drafting and application of European company law. It integrates the European company law component previously published as part of the Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR), on of the leading German law reviews specialized in the field of company and capital market law. It aims at universities, law makers on both the European and national levels, courts, lawyers, banks and other financial service institutions, in house counsels, accountants and notaries who draft or work with European company law. The journal focuses on all areas of European company law and the financing of companies and business entities. This includes the law of capital markets as well as the law of accounting and auditing and company law related issues of insolvency law. Finally it serves as a platform for the discussion of theoretical questions such as the economic analysis of company law. It consists of articles and case notes on both decisions of the European courts as well as of national courts insofar as they have implications on European company law.
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