This is an Insight article, written by a selected partner as part of GIR's co-published content. Read more on Insight
Even as we emerge, slowly, from the restrictions of the worldwide pandemic, securities markets continue to expand beyond international borders, making international enforcement of securities laws, and cooperation among regulatory authorities, an increasingly important issue among securities market participants and the practitioners who advise them. Financial institutions and other regulated entities have operations on multiple continents; corporations commonly engage in cross-border transactions and operations; securities issuers are offering investments internationally; and distributed ledger and blockchain technology has brought together investors from around the world.
By necessity, therefore, we have seen increased reliance among international law enforcement authorities on mutual cooperation, whether for the purpose of obtaining evidence or information outside their jurisdictions or jointly investigating potential securities law violations that touch multiple countries. Collaboration with the International Organization of Securities Commissions (IOSCO) is one of the most apparent ways in which securities regulators around the world coordinate their regulatory agenda and enforcement efforts. Its members regulate more than 95 per cent of the world’s securities markets and have resolved to cooperate in developing, implementing and promoting compliance with the securities laws and enforcement of those laws to protect investors, maintain fair, efficient and transparent markets, and address systemic risks.
As one of the leading securities regulators in the world, the US Securities and Exchange Commission (SEC) reports that its international reach and cooperation significantly increased after the global financial crisis of 2007–2008. The SEC’s Office of International Affairs states that:
The crisis demonstrated how closely capital markets around the globe are interconnected as well as their fundamental importance to the world’s economies. The crisis also demonstrated that facilitating international cooperation and coordination is critical in helping to ensure the effectiveness of financial regulatory reform efforts, to develop high regulatory standards across jurisdictions, and to minimize regulatory gaps.
Accordingly, international securities regulators rely on the IOSCO Multilateral Memorandum of Understanding (MMOU) for global multilateral information sharing among securities regulators. The SEC was among the first signatories to the MMOU in 2002, and today more than 100 securities and derivatives regulators are signatories, including the recent addition of regulators in Costa Rica, Georgia, Ghana, India and Monaco. Pursuant to the MMOU, signatories agree to provide one another with certain critical information, to permit use of that information in civil or administrative proceedings and for onward sharing with self-regulatory organisations and criminal authorities, and to keep that information confidential.
This book has brought together leading practitioners from the world’s major securities markets to present, in one cohesive volume, an overview of international securities regulatory regimes and enforcement programmes. Part I addresses the basic anatomy of securities enforcement investigations in the United States, while also covering issues that commonly arise in cross-border securities enforcement matters, including the differences between representing individuals and entities, issues of privilege and data privacy, how to conduct international forensic procedures and the resolution of multinational investigations. Part II drills down into the specific regulatory regimes and enforcement programmes in major securities markets around the world and provides the perspectives of the foremost experts in their markets.
This second edition reflects recent key updates in each jurisdiction, including new regulatory updates (including a new Spanish circular regarding advertising of cryptoassets and new regulations in India governing related-party transactions); recent statements by the US Department of Justice to maximise reliance on domestic and international cooperation in cross-border investigations; recent action taken by regulators in the United States and Europe to strengthen whistleblowing protections; and new case law.
We hope this international collaboration provides an insightful and useful survey for international securities issuers, underwriters, auditors and accountants, broker-dealers and other regulated entities, and those who advise and represent these and other market participants around the world.
1 John D Buretta and David M Stuart are partners, and Lindsay J Timlin is a practice area attorney, at Cravath, Swaine & Moore LLP.
2 SEC Office of International Affairs, https://www.sec.gov/about/offices/oia/oia_intlorg.shtml.