Private and Public Enforcement of Securities Regulation

2015 ◽  
Author(s):  
Howell E. Jackson ◽  
Jeffery Zhang
Keyword(s):  
Securities Regulation ◽  
Public Enforcement ◽  
Private And Public

Private and Public Enforcement of Securities Regulation

2015 ◽  
Author(s):  
Howell E. Jackson ◽  
Jeffery Y. Zhang
Keyword(s):  
Financial Stability ◽  
Regulatory Reform ◽  
Banking Regulation ◽  
Securities Regulation ◽  
Public Enforcement ◽  
Valuation Effects ◽  
Cross Listing ◽  
The Us ◽  
Private And Public ◽  
The Impact

This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.

scholarly journals Hong Kong’s Public Enforcement Model of Investor Protection

2017 ◽  
Vol 4 (2) ◽  
pp. 349-385 ◽  
Author(s):  
David C. DONALD ◽  
Paul W.H. CHEUK
Keyword(s):  
Hong Kong ◽  
Stock Exchange ◽  
Investor Protection ◽  
Securities Regulation ◽  
Public Authorities ◽  
Public Enforcement ◽  
Financial Centre ◽  
Foreign Companies ◽  
Enforcement Action ◽  
Private And Public

AbstractThe market of a successful financial centre must be efficient, orderly, and fair, which requires that investor protection rules be enforced effectively. While a substantial literature exists promoting privately driven enforcement of investor protection rules, there is a growing consensus that enforcement action by public bodies is likely to be more important for most markets than privately initiated litigation. Hong Kong exemplifies this point. In Hong Kong, public authorities carry almost the entire burden of enforcing corporate and securities laws. Yet Hong Kong functions at a high level of quality globally despite operating a market in which most companies are foreign-incorporated—often originating from jurisdictions with reputations for governance that are middling at best—and trading takes place in multiple currencies. To revisit the debate on the determinants of effective corporate and securities law enforcement, this paper evaluates the enforcement of investor protection laws in Hong Kong. The paper first examines the institutional context, presenting key corporate and securities regulation and explaining avenues for private and public actions. It looks at the powers and competencies of the relevant supervisory authorities, including the stock exchange, which has a quasi-public role in regulating the market. Then, using publicly available data supplemented through interviews with agency staff, the paper presents Hong Kong’s enforcement “inputs” (funding and staffing) and “outputs” (actions and sanctions) for the main public enforcers. We find evidence that the Hong Kong public enforcement model effectively disciplines even its dangerous environment of foreign companies, controlling shareholders, and complex, international groups, and might be able better to do so exactly because of a focus on public, rather than private, enforcement.

Enforcement

2021 ◽  
pp. 237-258
Author(s):  
Eva Micheler
Keyword(s):  
Public Law ◽  
Third Parties ◽  
Normal Process ◽  
Minority Shareholders ◽  
Public Enforcement ◽  
Private And Public ◽  
The Law

This chapter studies the rules governing the enforcement of the duties imposed on directors, distinguishing between private and public enforcement. Directors owe their duties to the company and so the company is responsible for enforcing these duties. The law prefers such litigation decisions to be taken by the company through its normal process. The courts only interfere if that process cannot be made to work independently of the wrong-doers. It is unlikely for a derivative claim to succeed against the wishes of an independent majority and so it is right to observe that the shareholders are the main focus of the law. But here too the law is more nuanced and integrates the interests of minority shareholders and creditors. The duties of the directors are also enforced through the means of public law. The chapter then shows that public law sanctions particularly attach in relation to duties that enhance the interest of third parties interacting with the company. This leads to the conclusion that these interests are at least formally better protected than those of the shareholders.

Part A Annotated Guide, 5 Public Enforcement of the Market Abuse Regulation

2017 ◽  
Author(s):  
Cools Sofie
Keyword(s):  
Financial Crisis ◽  
Economic Assessment ◽  
Securities Regulation ◽  
Macro Level ◽  
Historical Evolution ◽  
2008 Financial Crisis ◽  
Public Enforcement ◽  
Market Abuse ◽  
Annotated Guide ◽  
Legislative Initiative

This chapter discusses the MAR’s approach to public enforcement. It first describes the historical evolution of public enforcement of market abuse and securities regulation in general. The Market Abuse Regulation (MAR) is notably the first EU legislative initiative with an encompassing approach to enforcement following the watershed 2007–2008 financial crisis. The chapter sketches the innovations of the MAR relating to public enforcement. It deals with the enhanced powers of the competent authorities, the closer involvement of market actors, and the improved cooperation between authorities. Finally, the chapter makes an economic assessment of the effectiveness of the new enforcement regime and its impact at the micro and macro level.

Complementarity in public and private intellectual property enforcement; implications for international standards

2020 ◽  
Vol 72 (3) ◽  
pp. 748-771 ◽  
Author(s):  
Michael A Klein
Keyword(s):  
Intellectual Property ◽  
Public Investment ◽  
International Standards ◽  
Investment Incentives ◽  
Public Enforcement ◽  
Public And Private ◽  
Minimum Quality Standards ◽  
Private And Public ◽  
Counterfeit Products ◽  
Ip Law

Abstract I examine the relationship between public enforcement of intellectual property (IP) rights and firm strategies to influence entry of non-deceptive counterfeit products: illegal copies of authentic goods purchased consciously by consumers. I assume that private enforcement investment determines the probability that a counterfeit entrant will be detected, while public investment determines the efficacy of the legal institutions responsible for enforcing IP law. Private and public enforcement serve distinct complementary roles, which combine to determine total IP protection in the economy. I show that differences in the investment incentives of the two entities that control enforcement lead to inefficiently low public investment in equilibrium. In this context, international efforts to impose stricter legal penalties against counterfeiters can be counterproductive: further reducing public enforcement and increasing counterfeit prevalence. In contrast, minimum quality standards can be implemented to better align incentives, encourage higher public enforcement, and reduce inefficiency.

scholarly journals Collecting Evidence Through Access to Competition Authorities’ Files – Interplay or Potential Conflicts Between Private and Public Enforcement Proceedings?

2015 ◽  
Vol 8 (12) ◽  
pp. 161-180
Author(s):  
Anna Gulińska
Keyword(s):  
Law Enforcement ◽  
Competition Law ◽  
Case Law ◽  
Antitrust Enforcement ◽  
Public Enforcement ◽  
Competition Law Enforcement ◽  
Private Action ◽  
National Competition ◽  
Private And Public ◽  
Access To Documents

Information asymmetry between claimants seeking damages for competition law violations and the alleged infringing undertaking(s) is a key problem in the development of private antitrust enforcement because it often prevents successful actions for damages. The Damages Directive is a step forward in the facilitation of access to evidence relevant for private action claims. Its focus lies on, inter alia, 3rd party access to files in proceedings conducted by national competition authorities (NCAs). The harmonization was triggered by the inconsistencies in European case-law and yet the uniform rules on access to documents held in NCAs’ files proposed in the Damages Directive seem to follow a very stringent approach in order to protect public competition law enforcement. The article summarizes the most relevant case-law and new provisions of the Damages Directive and presents practical issues with respect to its implementation from the Polish perspective

scholarly journals The questions of administrative enforcement

2021 ◽  
pp. 10-24
Author(s):  
Aleksei Valentinovich Kurakin
Keyword(s):  
Economic Development ◽  
Administrative Law ◽  
Public Enforcement ◽  
Social Instability ◽  
Social And Economic Development ◽  
Private And Public ◽  
New Challenges ◽  
Points Of View ◽  
The Individual

Despite the fact that the questions of administrative enforcement are classic for the theory of administrative law, they retain their relevance. New challenges and threats, as well as the paradigm of social and economic development, substantiate the need for revising the traditional points of view regarding such phenomenon as “administrative enforcement”. The key question on the agenda is the problem of determination of balance between private and public components in application of administrative enforcement measures, as well as the criteria that prevent excessive enforcement. Attention is turned to the functionality of such enforcement. The author describes its procedural and administrative aspects, as well as analyzes the effectiveness of implementation of this type of public enforcement. The questions of administrative enforcement do not cease to be relevant in the time of political and social instability; therefore, in order for the administrative enforcement to discharge its functions, the legislation should take into account the emerging processes and realities. The author notes that for preventing excessive administrative enforcement, the individual rights and freedoms should not be unduly restricted; only this guarantees fair public enforcement. It is also underlined that the administrative enforcement is of procedural nature, which justifies introduction of the category “procedural enforcement” into the formal legal discourse.

scholarly journals Genetic Information, Privacy and Insolvency

2005 ◽  
Vol 33 (1) ◽  
pp. 79-88 ◽  
Author(s):  
Edward J. Janger
Keyword(s):  
Human Tissue ◽  
Genetic Information ◽  
Information Privacy ◽  
Private Benefit ◽  
Public Enforcement ◽  
Public And Private ◽  
Tissue Samples ◽  
Legal Norms ◽  
Private And Public

Biobanks hold out the prospect of significant public and private benefit, as genetic information contained in tissue samples is mined for information. However, the storing of human tissue samples and genetic information for research and/or therapeutic purposes raises a number of serious privacy and autonomy concerns. These concerns are compounded when one considers the possibility that a biobank or its owner might go bankrupt. Insolvency impairs the ability of enforcement regimes, and liability-based regimes in particular, to enforce legal norms. The goal of this essay is to develop guideposts for thinking about private and public enforcement of privacy imposed by donors on tissue samples and/or genetic information when a biobank becomes insolvent.

The Temple of Leniency

2020 ◽  
Vol 37 (1) ◽  
pp. 169-177
Author(s):  
Spencer Waller
Keyword(s):  
Competition Law ◽  
Short Article ◽  
Public Enforcement ◽  
Private And Public ◽  
The Temple

This short article mourns the loss of Laura Guttuso, celebrates her contributions and accomplishments as a scholar, and comments on one of her final publications which appeared as a chapter in a fascinating book entitled Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion (‘Leniency Religion’).  In this article, I discuss many of the general themes presented in the book as a whole and then turn to the specifics of Laura’s chapter on the role of leniency and the intersection of private and public enforcement of competition law.

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