ANALYSIS OF THE AUTHORITY OF CAPITAL MARKETS BOARD TO IMPOSE ADMINISTRATIVE FINES IN CAPITAL MARKET LAW BASED ON RELEVANT PROVISIONS

The aim of this paper is to analyze the legal infrastructure of the authority of administrative fines that imposes by Capital Markets Board in the Capital Markets Law No. 6362 (CML/Law). General principles of administrative fines are regulated in the first paragraph of Article 103 of the Law while special cases of administrative fines are regulated in the following paragraphs of the same article and in Article 104. Violation of take-over bid obligation, non-deliver of net gain to the issuer, passive transfer pricing regulation, withholding information and document, preventing the auditing and market abuse actions can be mentioned among special cases. In our study, the purpose of the administrative fine, the problem to whom the administrative fine will be applied, the problems encountered in the practice related to the subject, the current amendments made in the law especially the regulation on the administrative fines that imposed for legal entities, legal ways to be applied against the administrative sanction decision and the issues on which administrative fines are imposed in practice are also investigated. Finally it is aimed to contribute to doctrine and practice.

AN ANALYSIS OF THE GENERAL ENFORCEMENT APPROACHES TO COMBAT MARKET ABUSE (PART 1)

This article analyses the role and use of selected general anti-market abuse approaches in order to increase awareness and enforcement on the part of the relevant stakeholders. To this end, the article provides an evaluation of selected general anti-market abuse-enforcement approaches as well as the significant advantages and disadvantages of such approaches. This is done in two parts: firstly, Part I discusses the anti-market abuse measures that primarily deal with enforcement and Part II discusses anti-market abuse measures that primarily deal with surveillance, detection and investigation which will be covered in the next article.

AN ANALYSIS OF THE GENERAL ENFORCEMENT APPROACHES TO COMBAT MARKET ABUSE (PART 2)

This article is the second part in a two-part series on general enforcement approaches to combat market abuse. Part 2 analyses the role and use of selected general anti-market abuse approaches in order to increase awareness and enforcement on the part of the relevant stakeholders. To this end, the article provides an evaluation of selected general anti-market abuse-enforcement approaches as wellas the significant advantages and disadvantages of such approaches. This is done by discussing anti-market abuse measures that primarily deal with surveillance, detection and investigation, whereas Part 1 examined the anti-market abuse measures that primarily deal with enforcement.

OVERVIEW OF THE ROLE-PLAYERS IN THE INVESTIGATION, PREVENTION AND ENFORCEMENT OF MARKET-ABUSE PROVISIONS IN SOUTH AFRICA

This article analyses the role and effectiveness of selected key role-players primarily dealing with the investigation, prevention and enforcement of the market abuse prohibition in South Africa in order to increase awareness on the part of the general public, policy-makers and other relevant stakeholders. To this end, the article provides an overview analysis of selected role-players as well as their distinct functions in the investigation, prevention and combating of market-abuse practices in South Africa. This is done by discussing the roles of the Financial Services Board, the Directorate of Market Abuse and the Enforcement Committee.

Wirecard and European Company and Financial Law

Wirecard constitutes not only a major scandal in Germany but also touches some fundamental concepts of European corporate and capital market law and will therefore dominate the discussion for further reforms for several years. This discussion will touch general questions of corporate governance, the examination of financial reports, the role of auditors, the (current) market abuse regime and yet again short sellings. Some reforms are in a way self-evident and will probably be undertaken within this or next year. This is especially the case for a (further) reform of the regulation of auditors and for a reform of the regulation of the examination of financial reports. For both areas – usually stricter – concepts already exist and will this time have a better chance to be enacted. Therefore, Wirecard might turn to be a bad case that hopefully does not make bad law. However, there also are other aspects such as the relation of the market abuse regime and financial reporting that might require a deeper and longer analysis before concrete legislative measures can be put into place. The same applies for a further reform of the corporate governance of listed corporations, the regulation of short sellings and especially for the creation of a European framework for invalid (or false) financial reports. For these aspects Wirecard might constitute some kind of promoter for a further harmonization. This paper gives a short summary of the already publicly known facts of the Wirecard scandal, analyses how European Company and Financial Law was involved and identifies the challenges for a reform of European Company and Financial Law.

Digital Financial Services: Prospects and Challenges

Digital financial services (DFSs), being financial services accessed and delivered through digital channels, have grown rapidly in South Africa as well as globally. The adoption of the technology for DFSs has led to an increase in financial inclusion, enabling more individuals and businesses to have access to useful and affordable financial products and services, where payments, savings, credit, investment and insurance are included. Through the Financial Sector Regulation Act 9 of 2017 financial inclusion was statutorily enacted for the first time. The regulators are now empowered to insist that financial institutions take proactive steps to expand financial inclusion and can take the necessary steps to enforce these powers. One of the factors that have an influence on whether consumers will adopt DFSs is consumers' perspectives of DFSs. Lack of information and knowledge combined with the cost of data negatively influences the adoption of DFSs. The transfer of information to unbanked people in South Africa with regards to DFSs should be enhanced by the state as it strives to improve financial literacy. DFSs are susceptible to financial crimes like fraud, money laundering, terrorist financing, bribery, corruption and market abuse. The challenges that threaten the interests of customers should be addressed by stricter information verification methods when transacting with clients online. Technological detectors and digital identification should be used more effectively to verify customers and to alert authorities to suspicious transactions. Financial institutions might consider authenticating online transactions by thumb-print or a voice recognition system. This paper emphasises that because of the prospects of greater and deeper financial inclusion in South Africa, the use of DFSs has to be improved and developed and the challenges have to be constructively addressed to unleash the true potential thereof.

Prospects and limitations in the modernization of securities settlement operations in Ukraine

The article points to the critically insufficient compliance of Ukraine's stock market infrastructure with the relevant international recommendations, first of all in the segment of securities settlements. The author states that despite the creation of market infrastructure in Ukraine and the possibility to avoid problems related to the evolutionary errors, the market participants face numerous difficulties, such as risks in legal empowerment and in the activities of key infrastructure actors, limited competition, excessive transaction costs, ongoing defragmentation of the system of depository accounting, as well as inconvenience and limitations of the existing risk management systems. The study on the evolution of securities settlement models in Ukraine revealed that the radical reform of infrastructure in 2013 led to contradictory consequences, in particular, the abuse by the settlement bank and the central counterparty of its monopolistic positions, active participation of this monopolist in high-profile market abuse, stagnation in clearing and settlement technologies, and a slowdown in the development of the derivatives market. It was found that, despite lengthy discussions, the updated legislation in the field of organized capital markets, which is designed to implement a number of EU laws and should enter into force in 2021, does not really rectify the problems in the existing infrastructure, in particular due to a rather dubious proposed procedure of securities settlement and conservation for a few more years of the monopoly in the field of settlement and clearing services. It is substantiated that Ukraine has constructive practical experience and skills that can allow to implement the best international standards for building a system of cash settlements in "central bank money", organically integrated into Ukrainian payment system and able to adapt to European payment systems.