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C. King Chanetsa

Abstract

An effective securities and capital markets industry has existed in South Africa for over 120 years. The regulatory authorities have been alive to globally competitive pressures for inward investment and have endeavoured to implement a conducive environment therefore in compliance with international standards. As recently as 2015, South Africa was considered the best regulator of securities in the world. The effects of the global financial crisis (GFC) were keenly observed. The fall out from the GFC contained lessons for all markets, but not to the same extent. Commentators may therefore regard aspects of the South African reform agenda as replicative of initiatives in other jurisdictions and, consequently, uncritical in parts. In light of the fall to forty sixth place in the world in securities regulation ranking and some uncertainty in respect of the extent and shape of the reform process, this opus reviews activities in South Africa along the busy securities and capital markets value chain, and considers the continuing and emerging regulatory and supervisory framework.

Christopher Chen

Abstract

In this article, Dr Christopher Chen examines and compares the regulation of over-the-counter derivatives in Hong Kong and Singapore, the two largest international financial centres in Asia Pacific. Dr Chen analyses current or proposed regulations on trade reporting, centralised clearing and mandatory exchange trading mandates regarding OTC derivatives against the backdrop of reforms of international financial regulatory structure after the global financial crisis. The article also relates the reforms in Asia to development in major Western markets such as the U.S., U.K. or European Union. Apart from technical comparison and dissecting of content of rules from different angles, this article also examines the rationale behind those reforms and policy concerns behind Asian adoption of the regulatory mandates prescribed by G20 as well as potential policy concerns (such as competition and extraterritoriality) in a market that is dominated by Western banks.

Kabir Duggal and Wendy W. Cai

Abstract

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.

By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

Chiara Giorgetti

Abstract

This book explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms. In its first part, this book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules. It then reviews critically the necessary and desirable qualities for arbitrators’ selection and appointment, and addresses some important and related policy issues, such diversity and repeat appointments. Finally, it discusses the recent calls to review the methodologies used to appoint arbitrators, and specifically the proposal by the European Commission to create a permanent tribunal to resolve international investment disputes, the UNCITRAL Working Group III Reform Process and the rules amendment proposal undertaken by the Secretariat of the International Center for Settlement of Investment Disputes (ICSID Secretariat). In its second part, the book addresses the companion and similarly important issue of challenging and removing arbitrators. It does so by reviewing first the provisions that are appplied under a variety of arbitration rules to remove arbitrators who fail to possess the necessary qualities to sit in arbitral proceedings. It then evaluates the reasons for challenge and discusses some important cases that addressed challenges. The book assesses appointments and removals in a multifaceted and comprehensive way, and includes a critical assessment of the reasons and calls for reform of the ISDS system.

A Critical Appraisal of Initial Coin Offerings

Lifting the “Digital Token’s Veil”

Dominika Nestarcova

Abstract

Initial Coin Offerings (ICOs) emerged in 2017 as a revolutionary form of raising capital by technology companies and investment vehicles. ICOs enable start-up companies to issue blockchain-based assets (‘digital tokens’) to the public in return for a payment in cryptocurrencies or fiat money. The fundraising objective is to finance technology projects carried out by the ‘ICO issuer’. The ICO funding model represents a financial revolution as it provides additional pools of liquidity for capital formation purposes and a powerful tool for incentivizing communities through network effects. More importantly, the latent value of ICOs lies in the usage of the raised funds to develop cutting-edge distributed ledger technologies (DLTs). The advent of ICOs mushrooming worldwide promises to democratize financing, yet the commonly unregulated space in which ICOs operate, opens up a Pandora’s Box of investment and legal risks. The present paper argues that regulation needs to be goal-orientated and for that purpose, it is crucial to identify the nature of the ICO funding model, the cryptoeconomics behind it and the legal nature of digital tokens. With ICOs, academia, economists and regulators are at ground zero. Practitioners’ first instinct is to apply the knowledge of capital markets, but ICOs are a fundamentally new model of raising funds that have spawned different dynamics from ‘traditional’ capital markets. If we can establish how to approach ICOs within their own right, then choosing the correct regulatory stance will become a matter of identifying how ICOs and markets interact and how the investment risks can be allocated. Keeping with the spirit of ICOs as a financial innovation, the paper proposes self-regulation by ICO issuers to be a suitable regulatory approach, while limiting the role of regulators to policing the secondary market of crypto-intermediaries. For the purpose of fully rationalizing this position, the paper outlines the process of carrying out an ICO, relevant benefits and risks to the model, the current state of ICO regulation, digital token characterization and merits of different regulatory approaches.

Andri Fannar Bergþórsson

What Is Market Manipulation?

An Analysis of the Concept in a European and Nordic Context

Andri Fannar Bergþórsson

Abstract

The Market Abuse Regulation (MAR) entered into force in 2016 within the European Union, which introduced a fully harmonized ban on market manipulation. Even though the regulation is quite detailed, the terms used to define market manipulation are relatively vague and open-ended.

In What Is Market Manipulation? Dr. Andri Fannar Bergþórsson offers unique insight to and an interpretation of the concept of market manipulation, which includes an analysis of case law from the Nordic countries. The aim of the book is to clarify the concept as described in MAR and to provide readers some guidelines to distinguish between lawful behaviour and market manipulation (the unlawful behaviour). Dr. Andri Fannar convincingly argues that misinformation is an essential element of all forms of market manipulation.

Brody K. Greenwald and Jennifer A. Ivers

Abstract

In Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers provide a comprehensive overview of the key issues that arise in international arbitrations involving allegations of corruption drawing upon their significant experience in these high-stakes cases, including in the only two reported investment treaty cases dismissed specifically as a result of corruption. Their monograph is a valuable resource guide that analyzes, among other things, the public policy against corruption, the requirements for establishing corruption, issues relating to the burden and standard of proof, how corruption has been proved in practice, and the legal consequences where corruption is established. Mr. Greenwald and Ms. Ivers also assess issues that arise where a sovereign State raises an arbitration defense based on alleged corruption, but does not prosecute the alleged wrongdoers in its domestic courts.

Irmgard Marboe

Abstract

The assessment of damages in investor-state arbitration involves complex legal and economic considerations. Particular challenges arise from the interdisciplinary nature of this endeavor. The present issue discusses some of the pertinent specificities in investor-state disputes reflecting the tensions between sovereignty and self-determination of states and their legal obligations towards foreign investors. These tensions are primarily present in the context of expropriation, but also commitments undertaken by states in bilateral investment treaties and contracts as well as changing economic circumstances need to be taken into consideration. The lack of valuation principles that are uniformly accepted and implemented leads to uncertainty and unpredictability in practice. The present volume analyses some of the most controversial and unsettled issues, including the choice of the valuation date, appropriate valuation methods, moral damages, and the awarding of interest.