Market abuse : the UK perspective

Abstract

This thesis deals with the notion of 'market abuse' under English law, and mainly how this concept is defined under the Financial 福利在线免费 and Markets Act 2000 (the "Act") and expanded under the Code of Market Conduct (the "Code"). The financial services industry is an extremely important industry in the United Kingdom (UK); with the City of London being a leading global financial centre and the financial services industry accounting for circa 7% of the country's Gross Domestic Product and employing more than one million persons. Consequently, the financial services industry is a major concern for the entire UK, as on it depends to a large degree the country's future as a modern economy. The Financial 福利在线免费 and Markets Act 2000 brings about a major overhaul of the law governing the financial services industry in the UK and some factors that bear witness to the importance of this Act include; the fact that the Financial 福利在线免费 and Markets Bill was subject to some 200 hours of debate and more than 2,000 amendments in Parliament, that for the first time a Committee made from members of both Houses of Parliament was set up with the specific function of discussing the Bill in detail, and the fact that although the Bill received Royal Assent on the 14th June 2000, the Act only came into force on the 1st December 2001. This intervening period was necessary in order to give sufficient time to the members of the regulated community to ensure that their systems were compliant with the new Act and also due to the fact that most of the 'meat' of the Act lies in orders, sourcebooks, codes and other pieces of legislation that had to be drawn by the relevant competent authorities and principally by the main regulator within the UK financial services industry; the Financial 福利在线免费 Authority (the "FSA"). One innovative aspect of the Act that has given rise to numerous debates, and to a degree of concern and numerous criticisms, was the inclusion in Part VI II of the Act of the Market Abuse Regime. The intention behind the introduction of this regime, is to catch that noncriminal behaviour involving the financial markets, committed by anyone, whether regulated or not, that does not live up to the standards expected by those who regularly use the financial markets and hence risks damaging the integrity of those markets and the confidence of the other market participants. The FSA has also drawn a Code of Market Conduct that adds further detail to the provisions of the Act dealing with market abuse, by clarifying which types of abusive behaviour occurring in relation to financial markets will be sanctioned and by providing other general guidance. The introduction of this regime within the Act was necessary in view of the fact that major financial markets sit at the heart of every modern economy and provide a mechanism for the intermediation between savers and borrowers and between risk-takers and those who seek to hedge risk and help to ensure the efficient allocation of resources, by channelling funds to where they are best employed. Undoubtedly financial markets that are properly regulated and prudentially sound will deliver major benefits to consumers, including higher pensions, lower mortgage costs and a wider range of financial products. If the efficiency and liquidity of the major UK financial markets are reduced, the resulting effect would not be confined only to a small group of market participants, but would negatively affect the entire UK economy and possibly even the economies of other countries. The ultimate aim of the market abuse regime is to ensure that the UK's reputation as a fair and clean place to do business with high standards of conduct is maintained. Admittedly, obtaining this ultimate objective is not an easy task, in view of the fact that the structures of financial markets are rapidly changing, new products and technologies are being developed, the range of derivative products is growing, new and increasing number of participants are entering the financial markets, cross-border trading is increasing, competition for business is becoming more fierce and interconnected financial markets are developing. Such developments are enhancing the incentives, means and opportunities for the manipulation of financial markets and consequently these markets are becoming increasingly complex in nature and as a result require swift and co-ordinated responsive regulation. Thus, even if this thesis deals only with the UK position of market abuse, the fact that financial markets are becoming increasingly international in nature, means that manipulation carried out in a financial market situated outside a specific country could still have serious repercussions on the economy of that country. In view of this fact, it was thought appropriate that this thesis should deal with the market abuse regime in the UK, as the UK is one of the major European financial centres to have passed legislation in this respect and which should be taken into serious consideration by the local competent authorities when enacting legislation intended to eradicate abusive behaviour occurring on the local financial market(s). In this thesis, the writer sought to conduct an in-depth analysis of the notion of market abuse within the UK law, and in many instances, reference was made to the changes effected in the Act and the Code during the pre-legislative scrutiny and consultation process. Chapter 1 looks at the rationale for the regulation of the financial services industry and institutional market participants and for the introduction, within UK law, of the market abuse regime. Chapter 2 analyses in some detail the objectives of the market abuse regime and its major characteristics, including the fact that market abuse offences are characterised as 'civil' and not 'criminal' offences under UK law. In the last part of this chapter, the constituting elements of the offence are listed, and there is also a detailed explanation of the concept of 'behaviour' which is the word used in the Act to refer to all transactions occurring in relation to instruments traded on financial markets that could give rise to the abusive activities. Chapter 3 deals with three important concepts that are closely linked to the market abuse regime but which strictly speaking, do not feature anywhere within the legislation. These three concepts are; the Code of Market Conduct that was issued by the FSA as required by the Act in order to clarify certain aspects of the regime; the compatibility of the market abuse regime with the European Convention on Human Rights and the changes that were effected to the law as a result of the concerns raised that the regime would be incompatible with the Convention and finally the fact that in order to commit market abuse, the Act does not contemplate a specific intentional element. Chapter 4 explains which are the financial markets and the financial instruments in relation to which the market abuse offences can arise. In fact, this chapter deals, inter alia, with the notions of 'prescribed markets', 'qualifying investments' and 'relevant products'. Chapter 5 looks in detail at the three types of behaviour, that according to Section 118(2) of the Act can give rise to market abuse mainly; the 'misuse of information' offence, creating 'false and misleading impressions' and 'distortion'. Chapter 6 considers the concept of 'regular user' who is described as a hypothetical market user against whose standards, the behaviour of all other market participants must be judged against, in order to decide whether their behaviour constitutes market abuse. The safe harbours contemplated in the Act and in the Code are discussed in Chapter 7 of the thesis. This chapter not only discusses these safe harbours but also seeks to explain the reasons why the FSA thought it necessary to stipulate that particular behaviour does not give rise to market abuse in specific situations. Chapter 8 explains the two statutory defences of 'reasonable belief' that one's behaviour did not amount to market abuse or of requiring or encouraging another to commit market abuse and that of 'the exercise of all reasonable care and all due diligence' in order to avoid engaging in market abuse or of requiring or encouraging another to engage in behaviour that if engaged in by the encourager, would amount to market abuse. The secondary offence of 'requiring or encouraging' another person to engage in behaviour, which if committed by the person, who requires or encourages such behaviour, would amount to market abuse, is dealt with in Chapter 9. This offence is contemplated under Section 123(1)(b) of the Act, which stipulates that in such circumstances, the FSA can impose an unlimited civil fine on the person who requires or encourages such behaviour. Finally, Chapter 10 deals with the main investigative and enforcement powers bestowed by the Act on the FSA, so that the latter can enforce the market abuse regime within the UK.