sec consultation on jobs act implementation April 11, 2012
Posted by Bradley in : consultation, transparency , add a commentThe SEC invites public comment on implementation of the JOBS Act:
Under a process first utilized with the Dodd Frank Wall Street Reform and Consumer Protection Act, the public will be able to comment before the agency even proposes its regulatory reform rules and amendments.
The SEC is generally required by law to establish a public comment period at the time it proposes rules or rule amendments. However, similar to the Commission’s action with the Dodd-Frank Act, the public will have an opportunity to voice its views before rules or amendments are proposed under the JOBS Act. The public also will be able to see what others are saying to the agency about these issues.
There are separate web comment forms with respect to different titles of the Act, which are available here. The forms don’t include questions which might influence the responses, which is a good thing, but responding by means of the forms really requires some knowledge of the statute. The SEC does provide a link to the statute but the language in which it is drafted is pretty impenetrable to those who aren’t familiar with the federal securities laws. This does raise some questions about what the SEC thinks it is achieving by asking for public comment.
my transparency paper in american university business law review February 29, 2012
Posted by Bradley in : transparency , add a commentIs here.
esma short selling consultation February 15, 2012
Posted by Bradley in : consultation, transparency , add a commentThe responses are in and you can see them here. A number of the responses comment on the very short time for consultation. Today there’s a new consultation on technical advice relating to the same regulation which closes on March 9. The Consultation document says:
Who should read this paper
This paper may be specifically of interest to investors that take short positions, hedge funds, investment
firms whose clients hold short positions or engage in CDS activity, securities lending firms, hedge funds,
prime brokers, custodians, settlement systems, national debt management agencies and issuers.
But they still only get just over 3 weeks to respond.
There will be an open hearing on 29 February 2012.
Meanwhile I have been working on a paper on transparency and financial regulation in the EU.
uk consultation on registration of lobbyists January 20, 2012
Posted by Bradley in : consultation, transparency , add a commentThe Consultation Document is here. The document proposes that a body independent of Government and the lobbying industry should manage the register (a new arm’s length body?). The appropriate definition of lobbying is a central issue. Here are some of the questions posed by the document:
Should in-house lobbyists be covered? Many large companies have employees whose main duties are to lobby on behalf of that company. The Government proposes that only those lobbying on behalf of third parties should be covered by the Register. Given that is clear whose interests they represent, it is not evident that an extension of the register to in-house lobbyists would provide any additional transparency.
Should lobbyists or firms acting on a pro bono basis have an exemption from the duty to register?
Should organisations which engage in lobbying on behalf of interest groups such as Think Tanks and Charities be required to register? If so, how might this be captured in the definition of lobbying or lobbyist?
The Government does not wish to discourage the normal activity between constituents and MPs. Should there be an explicit exemption included in any definition?
critique of uk e-petitions system January 19, 2012
Posted by Bradley in : transparency , add a commentThe House of Commons Procedure Committee has published a report which critiques the Government’s implementation of e-petitions. Here’s an example of the problems the committee identified:
It is wrong for the Government to raise petitioners’ expectations of the e-petitions process to unrealistically high levels. E-petitions may be an easy way to raise awareness of an issue, to receive a response from the Government to a particular concern, or even to have a matter debated in Parliament. They are not, and should not be claimed to be, an easy way to change Government policy or legislation… We recommend that the Government should remove the sentence “e-petitions is an easy way for you to influence government policy in the UK”from its e-petitions website and replace it with a statement that more accurately reflects reality. We propose: “epetitions are an easy way for you to make sure your concerns are heard by Government and Parliament”.
independent review of terrorist asset freezing act 2010 December 15, 2011
Posted by Bradley in : transparency , add a commentDavid Anderson, the independent reviewer of terrorism legislation, has published his first report. There’s a lot in this report, including a very clear description of the background and of the statute. Reading the report it isn’t very clear that there’s much clarity about what the freezing of assets is really achieving. The report notes, for example, that the Treasury’s list of designated persons “has a distinctly haphazard look” (para. 10.12).
The report makes a number of recommendations, including:
The Treasury should issue and present to Parliament a statement of policy regarding ts approach to designation under TAFA 2010, in order to ensure that the power is used in a consistent and principled manner. That statement should deal, in particular, with: (1) the factors that may lead the Treasury to conclude that the statutory tests for designation (in particular, the necessity test) are satisfied;(2) the factors that in a case where the statutory tests are satisfied may inform the Treasury’s exercise of its discretion to designate (or to retain a designation in force). It should also confirm that no designation will be made, or retained in force, without consideration of whether designation would be proportionate bearing in mind the anticipated effect on private and family life (Article 8 ECHR) and property rights (Article 1 of the First Protocol).
The report also makes recommendations about improving procedures for designation and review, and for licensing and compliance (for example to reduce the humiliation suffered by designated persons) and about increasing transparency.
transparency about transparency October 25, 2011
Posted by Bradley in : transparency , add a commentAnnouncing new proposed rules about transparency, Michel Barnier and Andris Piebalgs stated:
These new measures will improve sustainable business among multinationals active in the oil, gas, mining or logging sectors. It will play a groundbreaking role in the better management of natural resources and in the increase of domestic fiscal resources available to provide basic social services to the citizens. This new legislation will be a strong contribution to the Agenda for Change of European Development policy which aims at equipping Developing countries with the tools to foster sustainable and inclusive growth.
Today, the Commission establishes itself as an avant-garde in promoting transparency and goes well beyond the US Dodd-Frank act, putting the interests of developing countries at the forefront of this European domestic legislation. This will help to achieve a new step in the quality of our relations with Africa, based on mutual accountability and transparency.
Strange euro-English (establishes itself as an avant-garde). Moreover, the proposal for the directive does not seem to claim to be going well beyond Dodd-Frank (see, e.g., the SEC’s proposal for implementation):
This proposal is comparable to the US Dodd-Frank Act, which was adopted in July 2010, and requires extractive industry companies (oil, gas and mining companies) registered with the Securities and Exchange Commission governments on a country- and project-specific basis. The SEC’s implementing rules are scheduled to be adopted by the end of 2011.
The Extractive Industries Working Group has suggested that there is a risk that the implementation of the US rules will allow for failure to report. But it’s not obvious that the EU’s rules will be more effective.
Later: The EU FAQ explains that the EU rules are to apply to logging as well as to oil gas and mining and that “the EU rules would apply to large unlisted companies, as well as listed companies, whereas the US rules are restricted to listed extractive companies only”. In fact the US disclosure requirements will not just apply to listed companies but apply to public companies registered under the Exchange Act.
peer review and transnational financial regulation October 17, 2011
Posted by Bradley in : transparency , add a commentHow meaningful are peer reviews as a mechanism of ensuring that states comply with transnational standards of financial regulation? In April 2009 responding to the financial crisis the G20 countries announced that they would monitor compliance with international standards. Members of the Financial Stability Board committed to:
undergo periodic peer reviews, using among other evidence IMF/World Bank public Financial Sector Assessment Program reports
.
This doesn’t sound too bad – IMF members produce regular reports on their financial systems, so there is some information available anyway that the FSB can use as the basis for peer reviews. But there are some huge time lags – the peer review of Australia published in September 2011 states that:
The analysis and conclusions of the peer review are largely based on the Australian financial authorities’ responses to a questionnaire designed to gather information about the initiatives undertaken in response to the relevant FSAP recommendations.
The footnote cites to the IMF’s FSAP assessment of Australia dated October 2006. What faith can one put in a peer review that is “largely based” on data over 5 years old (the FSAP assessments are themselves produced long after the missions on which they are based)? In fact the peer review contains a lot of information dated after October 2006. So what then to make of the “largely based” language? There’s a lack of transparency here with respect to the methodology used to create the peer reviews, although they are piggy-backing on the FSAP which has been established for some time and subjected to reviews by the Independent Evaluation bodies of the IMF and the World Bank the FSB work on the peer reviews is new and not clearly explained. The FSB provides a list of the members of the committee responsible for standards implementation but no details about their working methods. So it isn’t obvious how meaningful these documents actually are.
more (or less) transparency September 28, 2011
Posted by Bradley in : transparency , add a commentWhile looking for the judgment in this case dealing with issues of sentencing for conduct during the riots I came across another decision of the Court of Appeal in this case involving the Iraq sanctions regime. The court had some observations on the lack of transparency of English law in this area:
We are most grateful to all counsel for their industry and the help that they have given to the court. It became necessary to ask counsel at the conclusion of the oral hearing to conduct some further research, as no one could be sure that all the relevant subordinate legislation had been found and whether such as had been found was in force at the material time. The work done has revealed serious and significant deficiencies in the system that the Executive branch of the State employs for the making and recording of the type of subordinate legislation in issue in this case….We would wish to make it clear that it is wrong in principle and inimical to the rule of law that legislative provisions which carry such long sentences of imprisonment should be the subject of such legislative techniques which leaves the operation of the scope of the law so uncertain and which, even with the significant resources available to the Crown, is difficult to find. There is no good reason why the Executive Government cannot amend Orders so that the position under the criminal law is clear…
It must be for Parliament and the relevant Departments of State to consider the issues raised in this appeal. They may consider it necessary to take steps to ensure that proper public records are kept of subordinate legislation, particularly that which imposes penal sanctions, and to reconsider the way in which changes to Security Council Resolutions are made compatible with UK domestic law.
isda’s new blog September 27, 2011
Posted by Bradley in : transparency , add a commentISDA has a new blog which
will comment on mainstream business and financial media coverage of the derivatives industry. Our hope is that media.comment will help lead to a more informed debate and understanding of the OTC derivatives markets for all our audiences.
Why a blog format rather than (or in addition to) press releases? Who do they hope to reach this way? And of course the aim is rather to influence views about derivatives rather than to produce a more informed debate. On the subject of what losses may eventuate in CDSs on European sovereign debt there’s something of a contrast between the first post on this ISDA blog and this (much more complex and nuanced) posting by Tyler Durden at zerohedge.