Authors: Paul Nelson
ISBN-13: 9780521889360, ISBN-10: 0521889367
Format: Hardcover
Publisher: Cambridge University Press
Date Published: January 2008
Edition: (Non-applicable)
Paul Nelson is a partner and Head of the Financial Markets Group at Linklaters, London. He is also Professor of Capital Markets Regulation and Compliance at the ICMA Centre, University of Reading.
Book Synopsis
A practical guide to, and an analysis and critique of, the regulation of capital markets.
Table of Contents
Preface xiii
List of acronyms xiv
Evolution of capital markets regulation, FSA and the European single market 1
Introduction 3
FSMA and the single market 8
Evolution 8
Up to the 1930s 9
The secondary market and the London Stock Exchange 9
Primary market new issues 10
The Prevention of Fraud Acts 12
The Financial Services Act 1986 15
Reform of securities regulation 15
Self-regulation? 17
Rules and principles 19
A complete (functional) regulatory regime 22
FSMA 27
The statutory objectives 33
Conveyance structure 36
Annual report 37
Practitioner input and consultation 38
Enforcement 39
Complaints commissioner 43
Accountability to Treasury 44
The rulebook 45
European Union directives 53
Licensing and rule application 61
Licensing 63
Analysing the application of regulations 63
Regulated activities 64
'Investments' 65
'Investment activities' 79
Activities in and/or from a UK place of business 86
Activities into the UK and the overseas persons exclusion 86
Excluded activities 88
The ISD/MiFID override 90
By way of business 92
A licence is required 92
Process and criteria 94
Passporting 94
Non-EEA firms 96
The application of FSA MiFID rules 98
Methodology 98
Rules of application 98
The firm's infrastructure 111
Systems and controls 113
Evolution of FSA's approach 113
Systems and controls rules 117
Overall requirement 118
Apportionment of responsibility 121
Control functions 123
Employees 125
Outsourcing 128
Senior management responsibility 132
Registration as an Approved Person 132
Rule responsibilities 135
Approved Persons 139
Registration as an Approved Person 139
Rule responsibilities 140
Record-keeping 140
FSA's risk assessment methodology 142
Conflicts of interest 146
Differences in interests and conflicts of interest 146
The general law of fiduciaries 146
A fiduciary relationship 146
A conflict of interest 148
Solutions 153
Regulatory rules 158
The general rule 158
Inducements 166
Soft commission and bundling 171
Investment research 178
Corporate finance securities issues 189
Churning 191
Personal account dealing 191
Polarisation 193
Client property 194
Client assets and custody 194
Protecting the client's assets 194
Application of the custody rules 199
Procedures 203
Client money 208
Protecting the client's money 208
Defining client money 211
Procedures 216
Conduct of business 223
Client classification and client documentation 225
Regulatory policy 225
'Clients' for regulatory purposes 226
The definition of 'client' 226
Clients acting as agent 229
Client categorisation 230
Private customers and retail clients 231
Intermediate customers and professional clients 231
Market counterparties and eligible counterparties 239
Terms of business 241
The requirement 241
Content 243
Form 249
Amendments 249
Standard terms and exclusion clauses 250
Enforcement 251
One-way and two-way notifications 251
Principles of conduct 254
The FSA's 11 Principles 254
Policy 254
Application 257
Treating the customer fairly 259
The MiFID Principle 264
Marketing investments 265
The different regulatory regimes 265
Securities 265
Transferable securities 268
Offer to the public 268
Misleading etc marketing 270
Marketing by unlicensed persons 272
Marketing up to the end of the 20th century 272
The FSMA regime 276
Marketing by licensed persons 282
Full disclosure 282
Specific disclosures 289
Real-time promotions 293
Electronic Commerce Directive 293
Distance marketing 296
Collective investment schemes 298
Advising clients 306
General Law 306
The Regulated Activity 307
Execution-only services 318
Appropriateness 320
Margin Lending 324
Consumer Credit 324
Securities Regulation 324
Improper behaviour in dealing and executing orders 326
Introduction 326
Insider dealing 326
An individual 327
Territorial jurisdiction 327
Inside information 329
Connection 331
Dealing 332
Encouraging 332
Disclosure 333
Defences 333
Market manipulation 336
Act or course of conduct 336
False or misleading impression 337
In the UK 338
Purpose 339
Inducing 339
Reasonable belief 339
Defences 339
A principle of conduct and the need for an administrative remedy 343
An administrative offence 345
The burden of proof 345
Intention 346
Affected persons and certainty 347
Multiple jeopardy 347
The market abuse regime 347
'Behaviour' in relation to an exchange 349
Territorial ambit 350
Misuse of information 350
False or misleading impression 360
Distortion 364
The reasonable and regular user 371
Requiring or encouraging 373
Safe harbours 374
Mitigating factors 374
The Principle 375
The future 376
Dealing and executing orders 378
Transactions 378
Pre-transaction 378
The order to deal 378
The decision on how to deal 379
Executing transactions 380
Own account dealing 388
Best execution 391
Policy 391
When the best execution obligation applies 391
Achieving best execution 398
Systematic internalisers 407
Introduction 407
The Investment Services Directive 408
MiFID 409
Reporting 413
Trade reporting 413
Transaction reporting 415
Reporting to clients 417
Exchanges and MTFs 418
Regulated markets 418
Multi-lateral trading facilities (Alternative Trading Systems) 418
The need for separate regulation 418
Regulatory standards 419
Clearing services 422
Application of rules to particular businesses 423
Corporate finance 425
Regulatory status 425
Infrastructure rules 425
Conduct rules 426
Conduct rules 426
MiFID 427
Broker-dealers 429
Regulatory status 429
Infrastructure rules 429
Conduct rules 429
Securities and derivatives broking and dealing 429
Energy and oil markets 429
Stocklending 430
Asset managers 432
Portfolio managers 432
Regulatory status 432
Infrastructure rules 432
Conduct rules 432
Collective investment schemes 432
Trustees 434
Trustees of collective investment schemes 434
Custodians 434
Regulatory status 434
Infrastructure rules 434
Conduct rules 434
Other trustees 434
Regulatory status 434
Infrastructure rules 435
Pre-MiFID conduct rules 435
Retail intermediaries 438
Stockbrokers 438
Regulatory status 438
Infrastructure rules 438
Conduct rules 438
Packaged product intermediaries 438
Regulatory status 438
Infrastructure rules 438
Conduct rules 439
Bibliography 440
Index 441
Subjects