Search results

As financial markets across the world become more integrated, the potential for financial shocks to be transmitted both from one jurisdiction to another and from one financial sector to another increases. At the same time differences in national regulatory arrangements can be the source of important competitive distortions between financial institutions. Against this background national authorities have been seeking to coordinate the regulation of securities firms and of banks undertaking securities business. This paper, which is published in two parts, aims to clarify some of the policy issues arising from recent convergence initiatives by examining the US capital adequacy rules for US investment firms and contrasting the US approach with European securities regulation as formulated in the Capital Adequacy Directive. The second part of this paper will be published in the next issue of Journal of Financial Regulation & Compliance.

The purpose of this paper is two-fold: to analyze the legal issues on disgorgement and disgorgement funds in Indonesia, the USA and the UK and to construct the ideal law regarding disgorgement and disgorgement fund.

The type of legal research in this paper is normative legal research. The research approach used is a comparative approach and a legal approach. The legal materials used are all regulations on the disgorgement law and the disgorgement fund that apply in Indonesia, the USA and the UK. The technique of collecting legal materials is done by using library research techniques.

The rapid growth of the capital market in Indonesia still faces various legal issues such as various market manipulations, insider trading and illegal investment management activities. Based on the results of a comparative study, Indonesia does not yet have a calculation mechanism regarding the imposition of disgorgement on violators. Unlike Indonesia, the USA has the rules of practice and rules on fair funds and exchange commissions, and the UK has the decision procedure and penalties manual, which regulates the mechanism for calculating the imposition of disgorgement. Indonesia is solely able to use administrative action in imposing disgorgement, while in the USA and the UK, it can be through courts or direct administrative actions. These legal issues have resulted due to the lack of confidence by international investors and the growth of the investment climate in Indonesia itself.

This study examines the regulation of disgorgement and disgorgement funds in Indonesia, the USA and the UK. However, the focus of research in this paper is limited to legal issues that occurred in Indonesia.

The results of this study may help to construct the ideal regulations on disgorgement and disgorgement funds in various countries and protect the capital market of the investors.

The results of this study are expected to be helpful for the investment climate in various countries, especially developing countries.

The ideal legal construction regarding disgorgement, namely, parties to the mechanism for imposing disgorgement; disgorgement filing mechanism; sanctions in disgorgement; disgorgement fund sources; provider of fundholding accounts; mechanism for calculating disgorgement imposition; disgorgement fund distribution mechanism.

The purpose of this paper is to explore dynamic issues relating to Ponzi and other fraudulent investment schemes to demonstrate how scammers convince victims of investment opportunities that turn out to be nothing but fraudulent. Specifically, it explores the nature of Ponzi, Pyramid, Advance fees scams and the mechanisms used to defraud unsuspecting victims of their money. The risks associated with Ponzi schemes can be gleaned in the fraud case of Bernie Madoff (1998) who had been running a Ponzi scheme in the USA for 20 years and reaping investors of their returns without ever discovering it until the business collapsed. The other notorious investment scams include “the Nigerian letter frauds” which combine the threat of impersonation fraud with a variation of an advance fee scheme in which a letter is mailed to offer recipients the “opportunity” to share in a percentage of millions of dollars that the author – a self-proclaimed government official – is trying to transfer out of his country. This article assesses the possibility of using anti-money laundering regulatory tools such as a “risk based approach” and “Know Your Customer” to protect victims of fraudulent investment schemes.

The paper was written by analysis of primary and secondary data and by utilising newspaper reports on different types of fraudulent investment schemes and the context in which they normally happen in practice. It has also utilized case studies and relevant examples to demonstrate different typologies of fraudulent schemes and the possibility of using anti-money laundering regulatory tools to regulate them.

The findings suggest that many people who fall victims of fraudulent investment schemes such as Ponzi and advance fee fraud are not gullible but lack knowledge of their sophistication and how they operate to defraud unsuspecting victims of their savings.

The paper was largely a library-based research, and there were no interviews carried out to corroborate some of the data used in writing it. This minimises inherent bias in the use of secondary data sources to undertake a study.

The practical implication of the paper is to highlight the inherent risks in Ponzi and other fictitious investment schemes that are often cleverly conjured to exploit ignorance of the public and defraud them of their savings. It demonstrates that while financial institutions can use their regulatory tools such as KYC to safeguard financial markets from criminal exploitation, people should be vigilant to avoid falling victims of criminal exploitation and lose their savings.

With globalisation, the market is awash with different types of investment opportunities, but people need to keep in mind that it has also created opportunities for criminal exploitation. Some opportunities that are being offered such as advance fee and other schemes are cleverly devised to exploit ignorance of the public. Therefore, this paper highlights the pitfalls which potential investors need to bear in mind when deciding on where to invest and how to invest their money.

Research on Ponzi schemes, advance fee fraud and misuse of letters of credit do not seem to have received proportionate scholarly attention as other forms of financial crimes. This paper, therefore, addresses a need in the market on many issues it relates.

The purpose of this paper is to help parties to “TBA contracts” better understand how their claims would be treated in the event that a Securities Investor Protection Act of 1970 (SIPA) proceeding was commenced with respect to their counterparty.

The paper explores the arguments made in favor of and against treating TBA contract claims as “customer claims” under SIPA in the Lehman Brothers Inc. SIPA proceeding and the resulting decision of the United States Bankruptcy Court for the Southern District of New York on the issue.

The Bankruptcy Court found that TBA contract claims are not “customer claims” under SIPA and properly are classified as general unsecured claims.

This was an issue of first impression for the Bankruptcy Court and may have a binding effect on other TBA contracts (although other TBA contracts may have distinguishable facts). Future investors may alter the way they purchase and sell these securities in order to manage counterparty risk. Deeming TBA contract claims as general unsecured claims will also result in a larger pool of assets for creditors actually deemed customers of Lehman Brothers Inc. under SIPA.

The paper provides guidance from experienced bankruptcy lawyers.

The purpose of this paper is to explore organized crime on Wall Street and expose the lack of regulatory control thus impacting upon innocent investors in the money market. Organized crime has for many years reaped rewards from unsuspecting investors. This exploration, however, aims to turn away from organized and focus on organizational crime. Specifically, the “highly respected” investor Bernard Madoff.

This paper examines the impact upon innocent investors of the US Securities and Exchange Commission's (SEC) response to repeated efforts by a whistle blower to investigate an “alleged” out‐of‐control “Ponzi” scheme.

Bernard Madoff's multi‐billion dollar Ponzi scheme was never uncovered by the SEC. The fact is that the economic recession did the SEC's work. The SEC appeared to be willfully blind. Without the economic recession, some suggest that the Madoff Ponzi scheme might have involved close to 100 billion dollars.

The SEC's regulatory effectiveness in regulating the financial industry was found wanting for over ten years. No regulatory agency ever determined Madoff to be in serious violation of any laws, hence others within the financial industry continued to engage in similar illicit organizational activity. The question remains whether regulatory agencies have learned a lesson from the Madoff episode or is the organizational Ponzi scheme alive and well?

To alert financial market participants to rules jointly proposed by the US Securities and Exchange Commission (SEC) and US Federal Deposit Insurance Corporation (FDIC) regarding orderly liquidation of certain large broker-dealers as mandated in Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank).

Explains how typical broker-dealer liquidations are generally effected, the alternative of determining a broker-dealer to be a “covered broker-dealer” to be liquidated through an orderly liquidation proceeding under Title II of Dodd-Frank, the appointment of the FDIC as receiver and Securities Investor Protection Corporation (SIPC) as trustee, the requirement for the SIPC to file a protective decree with a federal district court, the possible use of “bridge broker-dealers” to facilitate an orderly liquidation, the FDIC’s procedures for settling claims of customers and other creditors against covered broker-dealers, and additional proposed provisions for administrative expenses and unsecured claims.

Counterparties of broker-dealers that could be subject to an orderly liquidation proceeding should evaluate the proposal and consider whether, if adopted, the rules would require any changes to credit risk or other internal procedures. Large broker-dealers that could be the subject of such an orderly liquidation proceeding should do the same. Although the formal comment period has closed regarding the proposal, market participants that did not submit comments but who still wish to influence final rule making should still consider submitting written comments to the SEC and FDIC or otherwise advocating before them.

Practical guidance from experienced securities and financial services lawyers.

The purpose of this paper is to summarize the SEC's recent approval of amendments to its net capital, customer protection, books and records, notification and reporting requirements for broker-dealers, in an effort to enhance financial responsibility and investor asset safekeeping obligations.

The paper summarizes new requirements for broker-dealers relating to custody, reporting, and Rules 15c3-3 (customer protection rule), 15c3-1 (net capital rule), 17a-3 and 17a-4 (books and records rules) and 17a-11 (notification rule) under the Securities Exchange Act of 1934; explains that several of the amendments approved codify long-standing SEC staff interpretations of the rules and accounting standards that govern these requirements; clarifies whether the requirements apply to broker-dealers that carry customer accounts on their books (commonly referred to as “carrying brokers”) and/or to limited-purpose broker-dealers that do not carry customer accounts on their books.

Although certain of the amendments codify long-standing SEC staff interpretations of the rules and accounting standards, broker-dealers will be subject to additional legal and regulatory requirements resulting from the amendments commencing in October 2013.

Broker-dealers should begin to consider whether changes to operations, policies and procedures, and reporting obligations will be required as a result of the amendments.

The paper provides practical explanation by experienced financial services lawyers.

Much debate has swirled around the issue of registration, regulation or disclosure requirements for financial websites. The authors have put together thoughtful analysis of the issues along with some of the most recent pronouncements and thinking of the regulators.

The purpose of this paper is to describe the separate but related relief issued by the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) that permits the commingling and portfolio margining of centrally cleared credit default swap (CDS) positions held in customer accounts.

The paper provides a brief overview of the bifurcated approach taken to the regulation of CDS; explains the benefits of portfolio margining and the need for portfolio margining relief; and provides an overview of the relief provided by the SEC and CFTC.

The relief provided by the SEC and CFTC may contribute to the efficient use and allocation of capital by market participants; however, the SEC's and CFTC's orders are limited in scope only to CDS products, and the viability of the relief for CDS products will depend upon SEC approval of the margin methodology used by brokers to set margin levels for their customers.

The paper provides practical insights into first of its kind regulatory relief permitting commingling and portfolio margining of centrally cleared derivatives for customer accounts and the requirements incumbent on a market intermediary when implementing a program to commingle and portfolio margin centrally cleared CDS positions.

The purpose of this paper is to explain three new rules FINRA has proposed as part of the process of developing a consolidated rulebook: Rules 4314 (Securities Loans and Borrowings), Rule 4330 (Customer Protection – Permissible Use of Customer Securities), and Rule 4340 (Callable Securities).

The paper explains Rule 4314, which sets forth the requirements for a member firm that is a party to an agreement for the loan or borrowing of securities; Rule 4330, which governs the borrowing or lending of a customer's margin securities that are eligible to be pledged or loaned; and Rule 4340, which establishes the obligations of a member as to callable securities in its possession or control.

Broker‐dealers engaging in securities lending activities will need to review their agreements, disclosures and recordkeeping procedures in order to comply with the proposed rules upon their adoption, particularly those who may engage in such activities involving fully paid and excess margin securities. As to the proposed new rule on callable securities in their possession and control, broker‐dealers will need to review their recordkeeping procedures and consider whether they want to adopt more flexible procedures on allocations involving partially redeemed or called securities.

The paper provides practical guidance from experienced securities lawyers.