This dissertation considers the reforms made to the liability rules in Australia�s prospectus laws during the 1990s. It traces the rewrite of the fundraising provisions at the end of the 1980s as part of the new Corporations Law through to the rewrite of those provisions at the end of the 1990s as part of the CLERP Act initiative. As the law in this area is not particularly well served by detailed judicial or academic analysis in Australia, the dissertation seeks to define the scope of the Australian liability regime by reference to case law analysis, a review of relevant theoretical considerations and comparative analysis with other key jurisdictions. The thesis of the dissertation is that many of the reforms were, particularly initially, misconceived in key respects because of a failure to apply appropriate theoretical underpinnings and to take account of the lessons that could have been learned from a comparative analysis with other key jurisdictions.

This dissertation considers the reforms made to the liability rules in Australia�s prospectus laws during the 1990s. It traces the rewrite of the fundraising provisions at the end of the 1980s as part of the new Corporations Law through to the rewrite of those provisions at the end of the 1990s as part of the CLERP Act initiative. As the law in this area is not particularly well served by detailed judicial or academic analysis in Australia, the dissertation seeks to define the scope of the Australian liability regime by reference to case law analysis, a review of relevant theoretical considerations and comparative analysis with other key jurisdictions. The thesis of the dissertation is that many of the reforms were, particularly initially, misconceived in key respects because of a failure to apply appropriate theoretical underpinnings and to take account of the lessons that could have been learned from a comparative analysis with other key jurisdictions.

It is unfair to the investing public and detrimental to the interests of the security markets for a person to trade on the basis of inside information. In this short dissertation, the laws regulating insider trading in South Africa prior to the current legislative provisions are briefly discussed. It is found that the old provisions were inadequate in deterring and punishing insider trading activities. The current legislative provisions are analysed in detail. It becomes clear that whilst the current provisions are a substantial improvement on their predecessor, certain aspects need to be reconsidered. These include the widening of their scope to include trading in all kinds of derivatives; the reformulation of the statutory civil action and the empowerment of the securities regulation panel to bring a civil action against insider traders. / Private Law / LL.M.

En France, la notion de valeurs mobilières se situe à un carrefour à la fois juridique, conceptuel et historique. Pourtant, elle est aujourd'hui menacée par la place grandissante prise par les titres financiers, et a été supprimée du Code monétaire et financier par l'ordonnance du 8 janvier 2009. La question du maintien des valeurs mobilières est régulièrement posée, sans que toutefois des réponses définitives ne soient apportées. Or, il en va aujourd'hui non seulement de la lisibilité de notre droit face aux investisseurs, mais également de son efficience au sein de marchés mondialisés. L'utilité bien réelle de la notion de valeurs mobilières leur a permis d'être maintenues jusqu'à aujourd'hui. La notion apparaît en effet au sein de nombreux textes et se trouve au centre de constructions juridiques intéressantes. Il pourrait également exister un risque d'insécurité juridique en cas de disparition de la notion. Pourtant, les titres financiers, qui présentent les caractéristiques de remplacement des valeurs mobilières, pourraient constituer une réponse de poids. / The French concept of valeurs mobilières finds itself at a legal, conceptual and historical crossroads. Despite this situation, the notion of valeurs mobilières is now threatened by the exponential role of the titres financiers, and was also removed from the French Financial and Monetary Code by the order of 8 January 2009. The issue of maintaining valeurs mobilières in French law is regularly raised and no definitive answer is forthcoming. The legibility of French law for investors is at stake, as well as its efficiency within global markets.The utility of the concept of valeurs mobilières has allowed it to be preserved until today. Effectively, the concept is within numerous texts and appears to be central in various interesting legal interpretations. The risk of legal uncertainty could also be important in the event of the disparition of the concept of valeurs mobilières. Notwithstanding these disadvantages, the concept of titres financiers, which presents the characteristics for replacing valeurs mobilières, could provide a cogent response.

It is unfair to the investing public and detrimental to the interests of the security markets for a person to trade on the basis of inside information. In this short dissertation, the laws regulating insider trading in South Africa prior to the current legislative provisions are briefly discussed. It is found that the old provisions were inadequate in deterring and punishing insider trading activities. The current legislative provisions are analysed in detail. It becomes clear that whilst the current provisions are a substantial improvement on their predecessor, certain aspects need to be reconsidered. These include the widening of their scope to include trading in all kinds of derivatives; the reformulation of the statutory civil action and the empowerment of the securities regulation panel to bring a civil action against insider traders. / Private Law / LL.M.

The research defines derivatives as private contracts, with future rights and obligations imposed on all parties, used to hedge or transfer risk, which derives value from an underlying asset price or index, which asset price or index may take on various forms. The nature of derivatives is that the instruments are intended to be risk management tools. The objectives of derivatives is either to hedge a risk, or to speculate. Derivatives may be classified by the manner in which they are traded, either over the counter (OTC) or on exchange. Alternatively, derivatives may be classified on the basis of structure and mechanisms, i.e. forwards, futures, options or swaps. Risk and risk management are defined in the third chapter with the focus on merchant banking. The nature of risk is that it is inherent in all activities. The nature of risk management is that it aims to ensure that the risks faced by the merchant bank are managed on a daily basis. The objective of risk management is to ensure that losses are minimised and the appropriate level of risk is taken in order to maximise profits. Risk may be classified as operational, operations, market, systemic, credit and legal risk. A comprehensive discussion of credit risk is presented, as it pertains to the legal risk in derivatives in a merchant bank. This includes insolvency, set-off, netting, credit derivatives and collateral. Legal risk is defined as the risk of loss primarily caused by legal unenforceability (i.e. a defective transaction, for instance a contract), legal liability (i.e. a claim) or failure to take legal steps to protect assets (e.g. intellectual property). The nature of legal risk is that it is caused by jurisdictional and other cross-border factors, inadequate documentation, the behaviour of financial institutions, a lack of internal controls, financial innovation or the inherent uncertainty of the law. The objectives of legal risk management in derivatives is to avoid the direct and indirect costs associated with legal risk materialising. This includes reputational damage. Derivatives attract specific legal risks due to the complexity of the instruments as well as the constant innovation in the market. There remains some legal uncertainty regarding derivatives in terms of gaming, wagering and gambling, as well as insurance. The relationship between risk and derivatives is that due to the complexity and constant innovation associated with derivatives, there are some inherent risks to trading in derivatives. It is therefore important to ensure that there is a vested risk management culture in the derivatives trading environment. Chapter four gives an overview of derivatives legislation in foreign jurisdictions and in South Africa. The contractual and documentation issues are discussed with reference to ad hoc agreements, master agreements and ISDA agreements. The practical implementation issues of master agreements and ad hoc agreements are also discussed. The recommendations are that legal risk management be approached in a similar manner to credit, market and other risk disciplines. A legal risk management policy needs to be developed and implemented. The second recommendation is that a derivative to manage the legal risk in derivatives be developed. / Prof. P. Sutherland Dr. C. van der Bijl

Theoreticians and practitioners consider regulation of the capital marketplace to be an important area of concern due to the potential effects of such regulation on capital resource allocation, investment decision-making, and market efficiency. It is hypothesized that if the level of issue quality required by a state prior to public sale supplies investor benefits, such benefits should take the form of excess returns and/or less variation in return in relation to issues complying with lower standards of quality. The study utilizes an Analysis of Variance and, an analysis of average and cumulative average residuals. Both investigations provide findings that merit regulation is beneficial to new investors increased market efficiency.

Short selling came onto the centre stage during the recent financial crisis when the collapse in price of financial listed securities after the demise of Lehman Brothers led to the introduction of a number of temporary short selling bans. In Europe however it was the commencement of the recent European sovereign debt crisis that was the true stimulus for proposing new short selling rules, the culmination of which was the introduction of the European Short Selling Regulation (the 'Regulation'). The thesis asks whether the Regulation is a justifiable response to the concerns posed by short selling. Such issues are measured against the relevant economic literature that almost overwhelmingly demonstrates that short selling contributes to market efficiency, that restrictions generally make markets less efficient and that constraints do not achieve the desired objective of stabilising prices. The thesis then analyses the political economy and backdrop to the Regulation’s introduction that largely dictated the shape of the final rules. The precise legislative choices made by Europe, including with respect to sovereign credit default swaps, are analysed, and (where relevant) there is a comparative element with a consideration of the US short sale regulations. These rules are used as a contrast and as a means of commenting more effectively on the European provisions. The doctorate concludes that the Regulation is not a justifiable response to policymakers' concerns and that the rules have suffered from the politicisation of the legislative process. The thesis suggests that short-term political point scoring has triumphed over the long-term benefits of market efficiency and that short sellers are now the subjects of highly technical rules that will negatively impair on market efficiency. Although, with time, parties may learn to use the new rules to their advantage, this does not justify the introduction of unreasonable rules in the first place.

University of Macau / Faculty of Law

This thesis examines the Government Accounting Standards Board by considering its history, current structure, and treatment of a current accounting standards debate. It then uses this examination to make recommendations as to reforms of the GASB and government accounting.