tion 746 âInsider Tradingâ, Section 747 âAnti-disruptive practices authorityâ, Section 748 âCommodity whistleblower incentives and protectionâ, Section 753 âAntimanipulation authorityâ and Section 763 âAmendments to the Securities Exchange Act of 1934â. However, some of these required to be made into law by the competent authority in order to take eïŹect.(16) For example, such was the case of the âanti-disruptive practices authorityâ provision whose ïŹnal interpretative guidance came into force on 28 May 2013.(17) American regulators have now passed almost all the necessary regulations in order to implement the above mentioned Sections of Title VII. In concrete terms, those provisions extend SECâs (already extensive) powers of investigation, prosecution and sanction of market abuses to security-based swap contracts and strengthen signiïŹcantly the CFTCâs powers regarding â but not limited to â other swap contracts (see infra II.A.).
II. A global reinforcement of the ght against market abuses All aspects of the ïŹght against market abuses have been reinforced from the legal deïŹnition of the oïŹenses (§ A) to their sanctions (§ C) and from their investigation to their prosecution (§ B).
A. Incrimination of new behaviors Both legislative resolutions on amended proposals of MAD II and MAR were adopted at ïŹrst reading by the European Parliament, respectively by 618 votes to 20, with 43 abstentions and by 659 votes to 20 with 28 abstentions. îąose votes look like a real plebiscite for toughening up the ïŹght against market abuse. îąe reading of the numerous amendments completing the original proposals adopted by the European Parliament conïŹrms this impression. Firstly MAR directly incriminates (many) new behaviors by completing and specifying existing deïŹnitions of market abuse oïŹenses provided by MAD and by creating new oïŹenses. In particular, Article 6 gives the exact same general deïŹnition of inside information provided by MAD but it develops many important clariïŹcations 16. Sec. 754. EïŹective date. âUnless otherwise provided in this title, the provisions of this subtitle shall take eïŹect on the later of 360 days aîer the date of the enactment of this subtitle or, to the extent a provision of this subtitle requires a rulemaking, not less than 60 days aîer publication of the ïŹnal rule or regulation implementing such provision of this subtitle.â 17. CFTC, Anti-disruptive Practices Authority, Interpretive guidance and policy statement, Commodity Exchange Act Release No. 3038-AD96, May 20, 2013. 2014/2
regarding the deïŹnition of this concept(18). Article 7 extends and speciïŹes the scope of insider dealing (for example inducing another person to engage in insider dealing falls within the scope) while Article 8 does the same with market manipulation (for instance, it provides a non-exhaustive list of algorithmic trading and high frequency trading strategies, which shall be considered as market manipulation), etc. Finally, Article 9 prohibits any person from engaging or attempting to engage in insider dealing, from recommending that another person engages in insider dealing or induces another person to engage in insider dealing, and from improperly disclosing inside information. Article 10 prohibits any person from engaging in market manipulation or attempting to engage in market manipulation. îąe prohibition of market abuse attempt is one of the main innovations brought by MAR. Secondly, in addition to ïŹnancial instruments traded on regulated markets, Article 2 of MAR indirectly incriminates new behaviors by extending the scope of antimarket abuse rules to : a) ïŹnancial instruments admitted to trading on a regulated market or for which a request for admission to trading on a regulated market has been made ; b) ïŹnancial instruments traded, admitted to trading or for which a request for admission to trading on a MTF has been made ; c) ïŹnancial instruments traded on an OTF [organized trading facilities created by the new directive on markets in ïŹnancial instruments(19) (âMiFID IIâ)] ; d) ïŹnancial instruments not covered by points (a) or (b) or (c) the price or value of which depends on or has an eïŹect on the price or value of a ïŹnancial instrument referred to in those points, including, but not limited to, credit default swaps and contracts for diïŹerence.â îąis last provision means that any ïŹnancial instrument traded on a regulated market, on a MTF or on an OTF, as well as any derivative ïŹnancial instrument shall be covered by MAR and MAD II when they are traded OTC. Article 2 of MAR also states that benchmarks are included within the scope of the regulation while Article 3 provides some exemptions â already included in 18. For instance regarding the âpreciseâ nature of inside information, and mainly in reaction to the EADS case in France, Article 6 speciïŹes that : âIn this respect in the case of a protracted process intended to bring about, or that results in, a particular circumstance or a particular event, not only may that future circumstance or future event be regarded as precise information, but also the intermediate steps of that process which are connected with bringing about or resulting in that future circumstance or event. An intermediate step in a protracted process can be inside information if, by itself, it satisïŹes the criteria of inside information as referred to in this article.â 19. Amended proposal for a directive on markets in ïŹnancial instruments repealing directive 2004/39/EC (Recast).
Revue internationale des services ïŹnanciers/International review of ïŹnancial services
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Chroniques
IV.A. Intégrité du marché