JournalTOCs

Capital Markets Law Journal
Journal Prestige (SJR): 0.222

Number of Followers: 4

Hybrid journal (It can contain Open Access articles)
ISSN (Print) 1750-7219 - ISSN (Online) 1750-7227
Published by Oxford University Press

[419 journals]

Editors’ Note
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  Authors: Thomas A.
  Pages: 147 - 149
  Abstract: Before putting pen to paper for this, my first, Editor’s Note I sought inspiration from the Notes of those who have gone before me. Reading the Note from the beginning of 2021 I was struck by how the very uncertain future mentioned then has become, against all our hopes, even more uncertain in 2022. We now have the impact of Russia’s unlawful invasion of Ukraine to add to the list of uncertainties we face, alongside things such as the not insignificant matters of how economies can recover from the impact of Covid-19 and how we can cope with climate change. In the midst of all of this uncertainty one thing that is certain is that the global capital markets will have a vital role to play in addressing the challenges 2022 throws at us, making CMLJ essential reading for those wanting to understand how they work.
  PubDate: Sat, 30 Apr 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac007
  Issue No: Vol. 17, No. 2 (2022)
The principles guiding the ECB’s enforcement and sanctioning powers
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  Authors: Minto A.
  Pages: 150 - 166
  Abstract: Key pointsThis article examines the enforcement and sanctioning powers as an essential component of the wide array of powers attributed to financial supervisory authorities.It explores the powers enshrined in Article 18 TFEU in light of the recent ECB’s ‘Guide to the method of setting administrative pecuniary penalties’.The analysis aims to approach the ECB’s sanctioning powers by critically applying the main tenets of optimal deterrence theory as elaborated by the law and economics literature.
  PubDate: Mon, 21 Mar 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac002
  Issue No: Vol. 17, No. 2 (2022)
New York’s requirements for contractual definiteness with application to
the formation of investment vehicles
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  Authors: Barondes R.
  Pages: 167 - 195
  Abstract: Key pointsA review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness as also precluding recovery in restitution. That includes not giving effect to thoughtful drafting choices apparently designed to avoid that outcome.The survey gives rise to unease whether a court will find fatally indefinite an LLC operating agreement that grants one partner unfettered discretion in choice of section 704(c) method, if built-in-gain property is to be contributed. There is no authority directly addressing this issue. But the pattern of requiring excess specificity, coupled with authority addressing discretionary choices addressing circumstances that are not comparable, creates concern for this author.
  PubDate: Tue, 15 Mar 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac006
  Issue No: Vol. 17, No. 2 (2022)
Fighting insider dealing at all costs'—due process aspects on
the EU market abuse regime
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  Authors: Andersson H.
  Pages: 196 - 211
  Abstract: Key pointsBorn out of the financial crisis in 2008, the European Union (EU) Market Abuse Regulation (MAR) places a strong emphasis on effectiveness and deterrence, imposing strict obligations on listed companies and making sure that infringements will not go unpunished. Alongside an arsenal of substantial administrative sanctions, EU Member States are required to criminalize market abuse.However, while the MAR ensures that the national competent authorities (NCAs) have far-reaching enforcement powers, it provides few safeguards against abuse or arbitrariness. Nowhere in the MAR, except for a brief passage in the preamble, is there any mention of the rights of those targeted by the NCAs. Absent clear and adequate procedural safeguards, there is an apparent risk not only that any enforcement measures taken will infringe the defence rights of those targeted, but also that the level of protection will vary between Member States.This article examines the Union’s market abuse regime against the backdrop of the ruling of the European Court of Justice in DB v Consob on the right of those suspected of market abuse to remain silent, and discusses the implications of pursuing a market abuse regime with a one-eyed focus on effectiveness at the expense of procedural safeguards and fundamental rights.
  PubDate: Thu, 10 Mar 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac001
  Issue No: Vol. 17, No. 2 (2022)
The DLT sandbox under the Pilot-Regulation
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  Authors: Zetzsche D; Woxholth J.
  Pages: 212 - 236
  Abstract: Key pointsOne centerpiece of the European Commission’s Digital Finance Strategy of 24 September 2020 is the draft regulation on a pilot regime for market infrastructures based on distributed ledger technology (known as PilotR). The PilotR Proposal foresees a regulatory sandbox approach for the European Single Market, offering firms a set of exemptions from EU financial law that allow them to test distributed ledger technologies (DLTs) for trading, clearing and settlement. Besides offering room for experiment, the PilotR Proposal supports the education of EU regulators about DLTs in this context, which may come to form the basis for foundational changes to EU law. The PilotR Proposal constitutes a significant step towards a future-proof EU fintech framework. We appreciate the European scale of PilotR, with an ‘EU Passport’ and ongoing cooperation across competent authorities and the ESMA. PilotR is characterized by an innovative ‘Business Plan Approach’ where the DLT operator defines governance functions and liabilities of entities operating, and connected to, DLT. Through this Business Plan Approach, PilotR promotes innovation while demanding business-specific risk mitigation, avoiding one-size-fits-all approaches. This bold regulatory move, however, prompts legal questions regarding the enforceability of business-induced rules vis-à-vis the nodes that do not qualify as operators as well as third parties.We find that the PilotR Proposal would benefit from three amendments: First, EU legislators should articulate a clear link between the priorities laid down in the DFS 2020 and PilotR, along with an explanation of how PilotR fits into a broader set of measures to support innovation. Secondly, PilotR is characterized by a narrow scope with a relatively long timeline for testing, thereby the degree of mutual learning will be reduced. Thirdly, being limited to authorized MiFID firms and central securities depositories only, regulatory leniency will be reserved for incumbents—despite PilotR’s expressed objective to benefit innovative start-ups.
  PubDate: Wed, 06 Apr 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac003
  Issue No: Vol. 17, No. 2 (2022)
Policy responses to cross-border central bank digital
currencies—assessing the transborder effects of digital yuan
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  Authors: Tsang C; Chen P.
  Pages: 237 - 261
  Abstract: Ministry of Science and Technology of Taiwan10.13039/501100004663Research Project Grant ‘Constructing A Cross-Border-and-Industry Regulatory Framework for InteractionsMOST 110-2636-H-004-003-Seventh Biennial Global Conference of the Society of International Economic Law
  PubDate: Mon, 14 Mar 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac004
  Issue No: Vol. 17, No. 2 (2022)
‘Mandatory’ public takeover bids in Hong Kong: the case of
China Oriental
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  Authors: Churk S.
  Pages: 262 - 274
  Abstract: Key pointsThis article examines Hong Kong’s rules and practice on public takeovers and mergers as applied in the case of China Oriental, a dispute involving the rules on mandatory general offers that spanned nearly a decade.The unusual fact pattern of the case has put the rules on mandatory general offers to the test. The case reflects the Hong Kong Takeovers Panel’s regulatory style which tends to prefer an intuitive understanding of the facts of a case over a strict interpretation of the text of the Takeovers Code.It also highlights several procedural aspects that prejudice minority shareholders.The case reminds market participants of the cautionary language in the Takeovers Code that it ‘should not be interpreted as if they are statutes’ and ‘represent[s] a consensus of opinion of those who participate in Hong Kong’s financial markets and the SFC’.
  PubDate: Thu, 24 Feb 2022 00:00:00 GMT
  DOI: 10.1093/cmlj/kmac005
  Issue No: Vol. 17, No. 2 (2022)