Abstract
The Financial Services and Markets Act 2000 (FSMA 2000) gave the Financial Services Authority (FSA) four statutory objectives of maintaining market confidence (Section 3), raising public awareness (Section 4), protecting the consumer (Section 5) and reducing financial crime (Section 6). An additional statutory objective (Section 3A) to maintain financial stability in the financial system was added by virtue of the Financial Services Act 2010 (Section 1(3)). One of the most novel and innovative parts of the new legislation is the market abuse regime contained in Part VIII of the FSMA 2000, and amended by the Market Abuse Directive. The broad aim of which is to ensure the integrity and probity of the financial markets while at the same time protecting consumers of financial products, lacking in previous regimes. As such the Market Abuse provisions within the FSMA, enforced by the FSA, arguably support at least two of the objectives, market confidence and systemic risk, and protecting the consumer, while also further supporting the financial crime objective. The market abuse regime was enacted to run parallel to the criminal provisions of insider dealing included in Part V of the Criminal Justice Act, and to complement the market manipulation provisions of the FSMA (Section 397), which replaced the older provisions of the Financial Services Act 1986. The global financial crisis that emerged through 2007 and into 2008 has precipitated major reforms of the regulatory structure with the FSA replaced by the Financial Conduct Authority (FCA), and the replacement of the original statutory objectives, with the financial crime objective replaced by an integrity objective. The core of the market abuse regime forms part of the risk-based approach common in much of the FSA’s and now the FCA’s approach to financial services regulation. The regime guards against the risk that misuse of information by market participants will lead to a lack of integrity in the UK’s financial markets and thus dissuade users from engaging with such an important component of the UK economy. This chapter will assess how the market abuse regime of the FSMA attempts to deal with the risk posed to financial markets by the misuse of information by market participants. The chapter will analyse the risks posed by the misuse of information, with some focus on insider dealing under both the civil and criminal provisions. The purpose is to assess whether the regime in its amended form is capable of ensuring that the UK financial markets are free from abusive practices and continue to operate in a fair and open manner.
The original version of this chapter was revised. An erratum to this chapter can be found at https://doi.org/10.1057/978-1-137-47384-4_13
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11 September 2018
An erratum has been published.
References
Alcock, A. (2001, September 28). Market abuse-the new witchcraft. New Law Journal, 151 NLJ 1398.
Alcock, A. (2002). Market abuse. Company Lawyer, 23(5), 142–150.
Alcock, A. (2007). Five years of market abuse. Company Lawyer, 28(6), 163–171.
Alexander, K. (2013). UK insider dealing and market abuse law: Strengthening regulatory law to combat market misconduct. In S. M. Bainbridge (Ed.), Research handbook on insider trading. Cheltenham: Edward Elgar.
Anon. (2011). Legislative comment: Tougher rules on market abuse proposed. EU Focus, 290, 19–21.
Anon. (2015). Manipulation of further key benchmarks to be made a criminal offence. Company Lawyer, 36(3), 72.
Ashe, M. (2010). Possession and use of inside information case comment. Company Lawyer, 31(4), 97.
Baber, G. (2013). A critical examination of the legislative response in banking and financial regulation to issues related to misconduct in the context of the crisis of 2007–2009. Journal of Financial Crime, 20(2), 237–252.
Bainbridge, S. M. (2008). Manne on insider trading: UCLA law and economics research paper series. Research paper no. 08-04. Accessible at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1096259. Accessed 3 Apr 2016.
Baker, A. H. (2011). In N. Ryder (Ed.), Financial crime in the 21st century: Law and policy. Cheltenham: Edward Elgar.
Baldwin, R., Cave, M., & Lodge, M. (2012). Understanding regulation: Theory, strategy, and practice (2nd ed.). Oxford: Oxford University Press.
Barnett, W. (1996). Fraud enforcement in the Financial Services Act 1986: An analysis and discussion of S.47. Company Lawyer, 17(7), 203–210.
Black, J. (2010). In R. Baldwin, M. Cave, & M. Lodge (Eds.), The Oxford handbook of regulation. Oxford: Oxford University Press.
Bosworth-Davies, R. (2013). The regulator’s tale: A triumph of hope over experience! Company Lawyer, 34(2), 33–35.
Burger, R., & Davies, G. (2005). Whats new in market abuse – Part 1. New Law Journal, 155 NLJ 820.
Callaghan, V., & Ullah, Z. (2013). Legislative comment the LIBOR scandal – The UK’s legislative response. Journal of International Banking Law and Regulation, 28(4), 160–165.
Conceicao, C. (2006). The FSA’s approach to taking action against market abuse. Company Lawyer, 29(2), 43–45.
Davies, P. L. (2008). Gower and Davies principles of modern company law (8th ed.). London: Sweet & Maxwell.
Davies, J. (2015a). From gentlemanly expectations to regulatory principles: A history of insider dealing in the UK: Part 1. Company Lawyer, 36(5), 132–143.
Davies, J. (2015b). From gentlemanly expectations to regulatory principles: A history of insider dealing in the UK: Part 2. Company Lawyer, 36(6), 163–174.
European Commission. (2011). Getting tough on insider dealing and market manipulation. Press release, IP/11/1217.
FCA. (2008). Why market abuse could cost you money. www.fca.gov.uk. Accessed 23 Mar 2016.
FCA. (2013). The FCA’s approach to advancing its obligations. London: Financial Conduct Authority.
FCA. (2016). Press Release (2016). Former equities trader pleads guilty.
Filby, M. (2004). Part VIII Financial Services and Markets Act: Filling insider dealing’s regulatory gaps. Company Lawyer, 23(12), 363–370.
Haines, J. D. (2008). FSA determined to improve the cleanliness of markets: Custodial sentences continue to be a real threat. Company Lawyer, 29(12), 370.
Hayes, A. (2010). Market abuse. Compliance Office Bulletin, 75(Apr), 1–31.
Haynes, A. (2007). Market abuse: An analysis of its nature and regulation. Company Lawyer, 28(11), 323–335.
Horan, S. (2011). Corporate crime. Haywards Heath: Bloomsbury Professional.
Joint Committee on Financial Services and Markets. (1999). First report. Available at http://publications.parliament.uk/pa/jt199899/jtselect/jtfinser/328/32809.htm. Accessed 22 Mar 2016.
Kripke, H. (1985). Manne’s insider trading thesis and other failures of conservative economics. Cato Journal, 4(3), 945–957.
Linklater, L. (2001). The market abuse regime: Setting standards in the twenty-first century. Company Lawyer, 22(9), 267–272.
Lomnicka, E. (1994). The new insider dealing provisions: Criminal Justice Act 1993, Part V. Journal of Business Law, Mar, 173–188.
Manne, H. G. (1966). Insider trading and stock market. New York: Free Press.
Manne, H. H. (1985). Insider trading and property rights in new information. Cato Journal, 4(3), 933–943.
McGee, R. W. (1988). Insider trading: An economic and philosophical analysis. The Mid Atlantic Journal of Business, 25(1), 35–48. In Sifuna, A. P. (2012). Disclose or abstain: The prohibition of insider trading on trial. Journal of International Banking Law and Regulation, 27(9), 340–352.
McVea, H. (1995). What is wrong with insider dealing. Legal Studies, 15, 390.
Rider, B. (2010). Editorial: An abominable fraud. The Company Lawyer, 31(7), 197–198.
Sheikh, S. (2008). FSMA market abuse regime: A review of the sunset clauses. International Company and Commercial Law Review, 19(7), 234–236.
Sifuna, A. P. (2012). Disclosure of abstain: The prohibition of insider trading on trial. Journal of International Banking Law and Regulation, 27(9), 340–352.
Simonova, A. (2015). EU banking law: Developments and challenges. International Company and Commercial Law Review, 26(2), 51–62.
Swan, E. J. (2004). Market abuse: A new duty of fairness. Company Lawyer, 25(3), 67–68.
Sykes, A. (1999). Market abuse: A civil revolution. Journal of International Financial Markets, 1(2), 59–67.
The Daily Telegraph. (2015, August 3). Libor scandal: Former city trader gets 14 years for rigging rates. Available at http://www.telegraph.co.uk/finance/financial-crime/11767437/Libor-trial-Tom-Hayes-found-guilty-of-rigging-rates.html. Accessed 19 Mar 2016.
Turner, A. (2009). The Turner review: A regulatory response to the global banking crisis. FSA London. Available at http://www.fsa.gov.uk/pubs/other/turner_review.pdf. Accessed 1 Mar 2016.
Wheatley, M. (2012). The Wheatley review of LIBOR: Final report. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/191762/wheatley_review_libor_finalreport_280912.pdf. Accessed 20 Mar 2016.
Acknowledgement:
This chapter was previously published: Baker, A.H. (2017). Market Abuse and The Risk to the Financial Markets. The Financial Crisis and White Collar Crime – Legislative and Policy Responses: A Critical Assessment. Abingdon: Routledge.
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Baker, A. (2018). Market Abuse and the Risk to the Financial Markets. In: Ryder, N. (eds) White Collar Crime and Risk. Palgrave Studies in Risk, Crime and Society. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-47384-4_6
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