Some have suggested that, historically, the state’s attempts to intervene in and regulate secondary securities markets can be traced back to a Statute of Edward I in England in 1285, when brokers who worked as agents were required to take an oath of good behaviour.175 Others suggest that the more appropriate event was the Bubble Act in the seventeenth century.176 Notwithstanding the differences as to the beginning
Memorandum by the Futures and Options Association (FOA) (2010) a response to the paper ‘The Future Regulation of Derivatives Markets: Is the EU on the Right Track?’ European Union Committee,
<http://www.publications.parliament.uk/pa/ld200910/ldselect/ldeucom/93/93we13.htmb> accessed 29 June 2011
173 Pratap Subramanyam, Investment Banking: Concepts, Analyses and Cases (Tata McGraw-Hill 2008) 14
174 Oxford Business Group, The Report: Saudi Arabia 2008, (OUP 2008) 80. For more historical analysis, see chapter Four Part I (c) of the present study.
175 Pettet, Lowry and Reisberg (n 124) 343
176 Stuart Banner, Anglo-American Securities Regulation: Cultural and Political Roots (1690-1860) (CUP 2002) 41-88
of state intervention, it is accepted that modern securities regulation as a sophisticated and comprehensive system of law first emerged in the U.S. in the 1930s.
As far as primary securities markets are concerned, it was with the passing of the Securities Act 1933 first regulated the public offerings of securities.177 In the following year, the Securities and Exchange Act 1934 was passed to regulate secondary markets and also established the Securities and Exchange Commission (henceforth SEC) as a regulator of securities markets, brokers, dealers, and other matters. Since then, it has become a matter of public and general interest that securities markets should function properly, based on the belief that part of the cause of the Great Depression in the US resulted from their collapse.178
Currently, it is hardly disputed that the state has a role in regulating securities markets as well as instituting regulatory agencies to deal with them, to the extent that state intervention itself is considered as best practice by international organisations.179 The principal justification for regulations as far as secondary securities markets are concerned is to protect investors and maintain their confidence.180 It was noted in the Introduction chapter that empirical researches suggests a positive correlation between the strength of capital markets and the higher priority accorded to protecting investors against unacceptable behaviour in securities markets. In this case, it is necessary to ask if strengthening securities markets law by introducing regulations against unacceptable behaviour is a sufficient justification to introduce regulations and, if so, why.
177 Ibid 345
178 Thomas McGraw, Prophets of Regulations: Charles Francis Adams, Louis D. Brandeis, James M.
Landis, Alfred E. Kahn (Belknap Press of Harvard Univeristy press 1984)153-209; BME Research Department, ‘Close To the Investor’ (2009) Focus, World Federation of Exchanges, 3,
<http://www.world-exchanges.org/files/focus/pdf/focus%201109.pdf> accessed 29 June 2011
179 Some disagreement exists, see, for instance, Edward Strigham, Peter Boettke and J.R. Clark, ‘Are Regulations the Answer for Emerging Stock Markets? Evidence from the Czech Republic and Poland’
(2008) 48 The Quarterly Review of Economics and Finance 541
180 Amir Litch, ‘International Diversity in Securities Regulation: Roadblocks on the Way to Convergence’ (1998) 20 Cardozo L. Rev. 227, 245
The premise of securities regulations is that mandatory disclosure combined with anti-fraud liability and the regulation of securities intermediaries will permit securities investors and their advisors to have the information necessary to move capital to its optimal use. 181 In other words the protection of investors is a means to achieve healthy capital markets. Such a claim is based on the conclusion that securities markets involve major difficulties that market forces find burdensome or impossible to overcome on their own.
Initially, investors are unable to be sure of the quality of assets exchanged in the markets. Lacking the resources to gain access to information or to analyse information provided in different forms, investors may thus act irrationally and make poor investment choices.182 In the absence of regulation there is no incentive for those holding information, such as managements and issuers if shares, to share it with other participants, and it is meanwhile economically unjustifiable to force all participants to work to obtain it.183 Consequently, it is believed that regulation which imposes periodical disclosure requirements helps in redistributing information among participants in securities markets, and hence allowing investors to make informed decisions.184
In addition to judging the quality of assets, the Securities and Exchange Act 1934 is claimed to have been introduced to provide two primary benefits for investors through disclosure: firstly, determining the quality of the assets which should be reflected correctly in the price, and; secondly, to ‘prevent some fraudulent transactions that cannot stand the light of publicity’.185
181 Ibid
182 Stephen Choi and Andrew Guzman, ‘Portable Reciprocity: Rethinking the International Reach of Securities Regulation’ (1998) 71 S. Cal. L. Rev. 903, 924
183 Hudson, The Law of Finance (n 120) 944
184 Ibid
185 Loss and Seligman (n 121) 37
Conceptually, it could be suggested that the disclosure requirements that aim to protect investors are based on the informational disadvantages of investors against issuers of securities. Investors might be subject to sharp practices by professionals with access to greater information and resources who are willing to take advantage of it. Different regulatory techniques are recognised as essential, among which are periodic disclosure, standardising disclosure and the external auditing of companies’
financial statements.
Moreover, certain acts based on informational advantages are prohibited in securities regulations.186 Insider dealing regulations, for example, are introduced to prohibit corporate officials and owners with information about the financial prospects of their companies to profit at the expense of non-insiders. Defrauding investors by leading them to subscribe or purchase securities in bogus companies was a common practice that led to the development of the concept of the suitability of advice in the US.187 Such importance ascribed to the disclosure and informational disadvantage of investors is supported by research that shows that the priority accorded to investor protection against unacceptable behaviour correlate positively with the strength of capital markets.188
It should be emphasised that there are other investor protection measures deemed necessary which, nonetheless, are not based on informational advantages.
These measures are fundamentally based on the notion that regulations should protect investors against ‘excessive prices or opportunistic behaviour by providers of financial services’.189 Takeover rules and the protection of minority shareholders are based on
186 Franklin Allen and Richard Herring, ‘Banking Regulation Versus Securities Market Regulation’
(2001) The Wharton Financial Institutions Center, Working Paper No.01-29, 23
<http://escal.free.fr/docs/finance/bankingregulation.pdf> accessed 29 June 2011
187 See Part IV of this chapter
188 See chapter One, Part II for more discussion.
189 Allen and Herring (n 186) 10-11
the notion that minority shareholders should not be exploited by majority shareholders.190
Therefore, it could be claimed that regulation in secondary markets is justified to ensure a level of quality of protection provided to investors.191 An important regulatory technique to ensure this level, in addition to disclosure, is for the regulatory regime to establish and publish a minimum level of accepted standards of conduct that are binding for the participants in services in securities markets.
Another rationale for securities regulations is the reduction of systemic risk in these markets. In general, a systemic risk in financial markets refers to the risk of an event which ‘will trigger a loss of confidence in a substantial portion of the financial system that is serious enough to have adverse consequences for the real economy’.192 Whereas systemic risk is cited as the most common rationale for regulations in the banking industry, counter-party risk in wholesale markets has recently become a matter of importance in both academia and policy markers. In theory, a systemic event in securities markets, exemplified in the insolvency of a service provider or massive fraud by issuers, may have a severe impact on the real economy in three ways. Firstly, it may trigger a domino effect that will affect other financial institutions and undermine confidence in whole financial markets.193 Secondly, it may result in a subsequent decrease in levels of engagement so that fewer resources are available to be allocated through securities markets;194 and, finally, the disappearance of a financial institution may lead to the disappearance of information related to persons
190 Ibid, 24
191 Ibid, 20
192 Darryll Hendricks, ‘Defining Systemic Risk’ (2009) Pew Financial Reform Task Force, 2. The report is available at the following website: <http://www.pewfr.org/project_reports_detail?id=0012>
accessed 29 June 2011
193 See a speech by Dominique Strauss-Kahn, Managing Director of International Monetary Fund,
‘Crisis Management and Policy Coordination: Do We Need a New Global Framework?’ (May 2009)
<http://www.imf.org/external/np/speeches/2009/051509.htm> accessed 29 June 2011; Alan Page and Robert Ferguson (n 105) 20
194 Strauss-Kahn, ibid
and projects that the failed institution was engaging with.195 In practice, the existence of financial institutions so large that their failure is deemed to have a severe impact on the economy, also known as ‘too big to fail’, is currently an ongoing concern for policy makers in terms of how to reduce the likelihood of such an event or its impact.
An important technique is the imposition of prudential regulation as to minimum liquidity and capital requirements.
Accordingly, it could be claimed that securities regulations are necessary to reduce the informational advantages in the market, ensure the solvency of financial institutions, and protect investors against malpractices by participants which may affect the integrity of the market. For each issue a solution to the problem is proposed:
disclosure, prudential requirements and the conduct of business, respectively.
As far as the protection of investors as a justification for securities regulations is concerned, it raises the question of who is eligible for protection and from what behaviour. Any systematic research attempting to approach questions of the concept of investor protection from a cross-country perspective will likely end with confusion rather than clarity as a result of different national and theoretical frameworks.
Essentially, countries may differ in terms of protecting whom from what. For instance, Allen and Herring point out that, whereas insider dealing has been outlawed in the US since the 1930s, ‘insider trading was not illegal in Germany nor effectively policed in Japan’ until recently.196 The situation changed in these two countries because of the introduction of the Insider Trading Directive of the European Union in the former, and the disclosure of insider dealing cases in the latter.197
195 Stiglitz (n 60) calls this information ‘informational capital’.
196 Ibid, 23
197 Richard Herring Robert Litan, Financial Regulation in the Global Economy, cited in Allen and Herring (n 186) 23
Furthermore, confusion as to how investor protection should be provided is evident in the literature on securities markets, economy and regulations. Such confusion exists because, firstly, the term has been used so broadly by some scholars to the extent that it overlaps conceptually with other justifications for different kind from misconduct.198 For example, investor protection has been used as the basis for measures taken to reduce systemic risks of the insolvency of financial institutions, whereas these are not based on the theoretical justifications for securities regulations based on disclosure and anti-fraud.199
Secondly, there are different conceptual perspectives as to the existing problems in securities markets and different views as how to solve these problems.
There is little agreement as to the subject, but nonetheless, it is possible to identify three major strands of explanation in the literature: economic, political and moral.
Each type of explanation suggests different measures for investor protection initiatives. A little explanation is necessarily to evaluate the benefits and shortcomings of each strand.
The first and most dominant strand is the economic perspective on investor protection. This suggests that state intervention on the basis of investor protection is needed to increase efficiency in securities markets by widening the engagement of economic agents. It should be emphasised that this explanation is different from the rationale of enhancing efficiency. Theories underpinning the economic efficiency rationale tend to see markets as a whole and aim to decrease costs in the financial
198 Colin Mayer, ‘Regulatory Principles and Financial Services and Markets Act 2000’ ch. in Eilís Ferran and Charles Goodhart (eds), Regulating Financial Services and Markets in the 21st Century (Hart 2001) 29; Laura Costanzo and John Ashton, ‘Product Innovation and Consumer Choice in the UK Financial Services Industry’ (2006) 14 JFR&C 285; Andromachi Georgosouli, ‘The Debate Over the Economic Rationale for Investor Protection Regulation: A Critical Appraisal’ (2007) 15 JFR&C.
236; Peter Cartwright, Consumer Protection in Financial Services (Kluwer Law International 1999) 50-51
199 ‘The second fundamental rationale for financial regulation is the protection of investors against excessive prices or opportunistic behavior by providers of financial services … Antitrust enforcement is the most obvious policy tool to counter excessive prices’ in Allen and Herring (n 186) 10-11
system. Theories based on the rationale of investor protection which support economic efficiency are distinguished by their focus on increasing investors’ engagement with financial markets in general and securities markets in particular. The justification, subsequently, focuses on the behaviour of investors rather than pure cost analysis.
The economic explanation of investor protection poses a difficulty to this thesis. Different economic models and hypotheses are provided to deal with the type of specific securities market in question, whether, equity, bonds, on-exchange or over the counter. To cover them all is not within the remit of this thesis, nor does the limitation imposed by space permit such an exercise. Therefore, the following discussion is narrowed towards making some generalisations and proving some examples.
A good starting point is Llewellyn’s paper ‘The Economic Rationale for Financial Regulation’,200 where he identifies seven different perspectives for how to look systemically at problems in financial markets in general, and securities markets in particular: (1) potential systemic problems associated with externalities (a particular form of market failure); (2) the correction of other market imperfections and failures;
(3) the need for the monitoring of financial firms and the economies of scale that exist in this activity; (4) the need for consumer confidence which also has a positive externality; (5) the potential for gridlock, with associated adverse selection and moral hazard problems; (6) moral hazard associated with the revealed preference of governments to create safety net arrangements such as lender of last resort, deposit insurance, and compensation schemes; and (7) consumer demand for regulation in order to gain a degree of assurance and lower transactions costs.
200 David Llewellyn, ‘The Economic Rationale for Financial Regulation’ (1999) FSA, Occasional Paper No. 1, <http://www.fsa.gov.uk/pubs/policy/P14.pdf> accessed 29 June 2011
Given the complexity of the economic explanations within these different perspectives, it is possible to identify different explanations reaching different conclusions and extremely different recommendations, from no-regulation at all to detailed regulations. By way of illustration, an important question concerns when there is a need to introduce a new regulation, and two broad themes of explanation can be identified.
The first theme includes economic models that are based on so-called ‘rational expectation theory’. This theory states that investors are self-interested agents who are rational in making their own decisions.201 It presumes that a rational investor assumes that other professional participants, such as brokers and corporate managers, are self-interested as well. An investor would assume, therefore, that corporate insiders or a professional participants will steal money if they can do so, and subsequently a rational investor would hesitate to invest (especially in intangible assets such as bonds or shares) unless he or she is presented with enough evidence to show that professional participants face external constraints that deter them from defrauding them or stealing their money. It follows that a rational investor would be willing to invest should he or she assume that a legal system would effectively deter negligence, disloyalty, and dishonesty.If the legal system fails, rational investors will be the first to recognise that and to remove their money from the market and refuse to invest.202 Within this framework, it could be suggested that the role of a state is to assure investors that there are appropriate measures provided by a regulatory regime that constrain professional participants from defrauding investors.
201 Stanford Grossman, ‘An Introduction to the Theory of Rational Expectations Under Asymmetric Information’ (1981) 48 Rev. Econ. Stud. 541; Burton Malkiel, A Random Walk Down Wall Street: A Time-Tested Strategy for Successful Investing (Norton 1999)
202 Roberta Romanoo, ‘Empowering Investors: A Market Approach to Securities Regulation’ (1998) 107 Yale L.J. 2359, 2368
The second theme is not only different from the first, but also advances economic models that undermine the main assumption in the previous economic explanations, namely the rationality of investors in securities markets.203 There are different proposals based on the irrationality of investors, but the economic model provided by Professor Stout can exemplify this theme since it is based on trust and confidence.
Stout points to the failure of the theory of rational expectations to explain some irrational behaviour by investors in financial markets. To solve the puzzle, she suggests an understanding of the role of trust.204 She claims that investors are willing to believe that at least some people or some institutions might be trustworthy because it is more convenient or cost-saving to do so.205 Trusting investors behave in this way with people who have shown honest and co-operative behaviour in the past and assume that such persons will continue to behave in a similar way in the future (in contrast to a rational expectation investor who neglects past behaviour).206 Stout tells us that trust can encompass both institutions and systems. ‘Trust’ in humans ‘…is so strong and universal that many people are prepared to believe … in the innate character or trustworthiness of things - including perhaps such abstract things such as
“the law” or “the stock market”’.207 Consequently, she claims that trusting investors
203 For example on the basis of cognitive weaknesses in individuals, see Emilios Avgouleas,
‘Reforming Investor Protection Regulation: The Impact of Cognitive Biases’ in Michael Faure and Frank Stephen (eds), Essays in the Law and Economics of Regulation: In Honour of Anthony Ogus (Intersentia 2008)
204 Lynn Stout, ‘Trust Behavior: The Essential Foundation of Securities Markets’ (UCLA School of Law/ Law-Econ Research Paper No. 09-15, 2009) 12-14 <http://ssrn.com/abstract=144202> accessed 29 June 2011
205 Similar emphasis on the importance of trust is mentioned by other writers: it is noted that ‘trust is a kind of social glue that allows people to interact at low transaction costs’ in Larry Ribstein, ‘Law v.
Trust’ (2001) 81 B.U. L. Rev. 553; Lynn Stout, ‘The Investor Confidence Game’ (2002) 68 Brook. L.
Rev. 407, 428
206 Stout ‘Trust Behavior: The Essential Foundation of Securities Markets’ (n 204) 416. Stout also claims that ‘…real people behave as if they believe that, for some reason, some players refrain from opportunistic behavior even when they could safely indulge in it’, 425
207 Ibid, 427. See further discussion in Peter Huang, ‘Trust, Guilt, and Securities Regulation’ (2003) 151 U. Pa. L. Rev. 1059; Peter Huang, ‘Emotional Impact Analysis in Financial Regulation: Going
may not trust a manager, broker or advisor, but they, nonetheless, invest because ‘…
they rely on the legal system (including legally enforceable contracts) to discourage managers, brokers and investment advisors from behaving like the scoundrels that they are’.208 When the trust in the system is shaken, by financial scandal for example,
they rely on the legal system (including legally enforceable contracts) to discourage managers, brokers and investment advisors from behaving like the scoundrels that they are’.208 When the trust in the system is shaken, by financial scandal for example,