This introductory chapter discusses the new prospectus regime of the European Union (EU). In part... more This introductory chapter discusses the new prospectus regime of the European Union (EU). In particular, it delves into the Action Plan on Building a Capital Markets Union (CMU). The CMU Action Plan should make it easier for providers and receivers of funds to come into contact with one another within Europe, especially across borders. This is regardless of whether raising capital occurs through the intermediation of banks, through the capital markets or through alternative channels such as crowdfunding. In addition, more non-bank funding will help to lessen dependence on the traditional banking industry and enhance the ability of the system to cope with economic shocks. The chapter considers what it means for the CMU Action Plan in light of recent events such as Brexit, before turning to a brief overview of the following chapters.
This book provides integrated analysis of and guidance on the Prospectus Regulation 2017, civil l... more This book provides integrated analysis of and guidance on the Prospectus Regulation 2017, civil liability for a misleading prospectus, and securities litigation in a European context. The prospectus rules are one of the cornerstones of the EU Capital Markets Union and analysis of this aspect of harmonisation, the areas not covered by the rules, and the impact of Brexit, provides valuable reference for all advising and researching this field. The book discusses the subjects of Prospectus Regulation from both a legal and economic perspective. It focuses on key subjects of the new Prospectus Regulation, providing an in-depth analysis of each issue. The book then moves on to explain the domestic law on liability for a misleading prospectus, this issue being omitted from the Regulation. The law and practice in each of the key capital markets centres in Europe is analysed and compared, with the UK chapter covering the issues and possible solutions under Brexit. A chapter on securities litigation gives full consideration of conflicts of laws issues with reference to the Brussels I regulation, and the Rome I and II Regulations. The book concludes by looking to the future of disclosure practices in connection with securities offerings in the EU.
This chapter explores the policy and regulatory issues generated by investment-based crowdfunding... more This chapter explores the policy and regulatory issues generated by investment-based crowdfunding in Europe. Firstly, it argues that crowdfunding raises serious investor protection concerns, particularly when directed to retail investors. As governments try to stimulate innovation and the formation of new enterprises, a trade-off is created between investor protection and economic growth. The laws of the EU and its Member States try to solve this trade-off in different ways, as the chapter shows with reference to MiFID and the laws of the UK, France, Italy, Spain and Germany. Secondly, it shows that MiFID II, while enhancing investor protection and furthering harmonization, does not create all the conditions needed for a pan-European crowdfunding market. At the same time, MiFID II narrows the potential for exemptions under which some Member States have adopted special regimes for crowdfunding, therefore restricting the scope for an enabling approach to investment-based crowdfunding at national level.
Supervisory fragmentation is a cause of systemic risk, as cooperation amongst national authoritie... more Supervisory fragmentation is a cause of systemic risk, as cooperation amongst national authorities is bound to fail in crisis events. The situation will be different under the Banking Union when the Single Supervisory Mechanism is in place even if it shows some weaknesses: the Ssm includes elements of cooperation and delegation, which will help the Ecb to perform its tasks as a central supervisor, but could also give rise to conflicts of interest and information asymmetries, being also limited to the Eurozone
This chapter analyses the concept of transferable security in the Prospectus Regulation and tests... more This chapter analyses the concept of transferable security in the Prospectus Regulation and tests the flexibility and latitude of this concept with reference to the recent phenomenon of Initial Coin Offerings (ICOs). It firstly examines MiFID's (Markets in Financial Instruments Directive 2004) definitions of financial instrument and transferable security, and then focuses on the latter with special regard to the Prospectus Regulation. The chapter subsequently introduces the ICO phenomenon and the categories of tokens that are issued through blockchain in practice. It goes on to consider the treatment of ICOs under US securities regulation and then focuses on whether tokens issued in ICOs qualify as transferable securities under the EU Prospectus Regulation. The chapter gives a positive answer not only with respect to investment tokens, but also to hybrid tokens which present an investment functionality. It concludes that in given circumstances also utility tokens could qualify as securities.
This introductory chapter discusses the new prospectus regime of the European Union (EU). In part... more This introductory chapter discusses the new prospectus regime of the European Union (EU). In particular, it delves into the Action Plan on Building a Capital Markets Union (CMU). The CMU Action Plan should make it easier for providers and receivers of funds to come into contact with one another within Europe, especially across borders. This is regardless of whether raising capital occurs through the intermediation of banks, through the capital markets or through alternative channels such as crowdfunding. In addition, more non-bank funding will help to lessen dependence on the traditional banking industry and enhance the ability of the system to cope with economic shocks. The chapter considers what it means for the CMU Action Plan in light of recent events such as Brexit, before turning to a brief overview of the following chapters.
This book provides integrated analysis of and guidance on the Prospectus Regulation 2017, civil l... more This book provides integrated analysis of and guidance on the Prospectus Regulation 2017, civil liability for a misleading prospectus, and securities litigation in a European context. The prospectus rules are one of the cornerstones of the EU Capital Markets Union and analysis of this aspect of harmonisation, the areas not covered by the rules, and the impact of Brexit, provides valuable reference for all advising and researching this field. The book discusses the subjects of Prospectus Regulation from both a legal and economic perspective. It focuses on key subjects of the new Prospectus Regulation, providing an in-depth analysis of each issue. The book then moves on to explain the domestic law on liability for a misleading prospectus, this issue being omitted from the Regulation. The law and practice in each of the key capital markets centres in Europe is analysed and compared, with the UK chapter covering the issues and possible solutions under Brexit. A chapter on securities litigation gives full consideration of conflicts of laws issues with reference to the Brussels I regulation, and the Rome I and II Regulations. The book concludes by looking to the future of disclosure practices in connection with securities offerings in the EU.
This chapter explores the policy and regulatory issues generated by investment-based crowdfunding... more This chapter explores the policy and regulatory issues generated by investment-based crowdfunding in Europe. Firstly, it argues that crowdfunding raises serious investor protection concerns, particularly when directed to retail investors. As governments try to stimulate innovation and the formation of new enterprises, a trade-off is created between investor protection and economic growth. The laws of the EU and its Member States try to solve this trade-off in different ways, as the chapter shows with reference to MiFID and the laws of the UK, France, Italy, Spain and Germany. Secondly, it shows that MiFID II, while enhancing investor protection and furthering harmonization, does not create all the conditions needed for a pan-European crowdfunding market. At the same time, MiFID II narrows the potential for exemptions under which some Member States have adopted special regimes for crowdfunding, therefore restricting the scope for an enabling approach to investment-based crowdfunding at national level.
Supervisory fragmentation is a cause of systemic risk, as cooperation amongst national authoritie... more Supervisory fragmentation is a cause of systemic risk, as cooperation amongst national authorities is bound to fail in crisis events. The situation will be different under the Banking Union when the Single Supervisory Mechanism is in place even if it shows some weaknesses: the Ssm includes elements of cooperation and delegation, which will help the Ecb to perform its tasks as a central supervisor, but could also give rise to conflicts of interest and information asymmetries, being also limited to the Eurozone
This chapter analyses the concept of transferable security in the Prospectus Regulation and tests... more This chapter analyses the concept of transferable security in the Prospectus Regulation and tests the flexibility and latitude of this concept with reference to the recent phenomenon of Initial Coin Offerings (ICOs). It firstly examines MiFID's (Markets in Financial Instruments Directive 2004) definitions of financial instrument and transferable security, and then focuses on the latter with special regard to the Prospectus Regulation. The chapter subsequently introduces the ICO phenomenon and the categories of tokens that are issued through blockchain in practice. It goes on to consider the treatment of ICOs under US securities regulation and then focuses on whether tokens issued in ICOs qualify as transferable securities under the EU Prospectus Regulation. The chapter gives a positive answer not only with respect to investment tokens, but also to hybrid tokens which present an investment functionality. It concludes that in given circumstances also utility tokens could qualify as securities.
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Papers by Guido Ferrarini