‘Towards a General Framework for a Common Definition of
‘Securities’: Financial Markets Regulation in Multilingual Contexts, Uniform Law
Review / Revue de droit uniforme Vol XVII 2012 pp.449-481
The article aims at providing a linguistic and comparative
perspective on financial markets governance by investigating the meanings and
legal categories underlying the term “securities” in a multilingual society. It
first illustrates how the term “securities” is not a straightforward legal
concept and requires clear definition – both at the national and transnational
levels – to limit regulatory arbitrage and forum shopping phenomena that might
endanger investor protection and financial stability. Subsequently, moving from
the economic function of securities, the article analyses the legal techniques
adopted to define the term “securities” in the United States and in selected
European countries, with particular attention to France, Italy and the United
Kingdom. The legal and linguistic comparison reveals hidden similarities,
converging towards a common a set of shared components related to the concepts
of investment, negotiability and value. Notwithstanding this common core,
several discrepancies emerge when finally the study focuses on the application
of EU securities law and on the legal standardisation efforts carried out by the
International Organization of Securities Commissions (IOSCO). The article points
out that in a globalised and multilingual society, the meanings attributed to
the term “securities” have a crucial impact on the overall soundness of the
financial system. Furthermore any attempt to reach a common legal definition of
the term must consider the implicit cognitive processes, embedded in language,
that are necessary to interpret and apply securities law in different legal
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(with: Jeunemaitre A., Lange B.), ‘Reforming European Union
Financial Regulation: Thinking through Governance Models’, European Business
Law Review Vol. 23, No. 3, 2012, pp. 437-474.
‘Rising from Ashes: A Financial Perspective on Emerging
Systemic Risks’ in Alemanno A., Governing Disasters. The Challenges of
Emergency Risk Regulation (Cheltenham: Edward Elgar Publishing, 2011).
‘Governing Ignorance. Emerging Catastrophic Events: Industry
Responses and Policy Frictions’, 3 Geneva Papers on Risk and Insurance:
Issues and Practices, Vol. 35 No. 3, 2010, pp. 391-415.
The growing interconnections between people, markets and networks together with the development of new technologies have increased the frequency and impact of large-scale disasters around the globe. Many of these events, defined as emerging catastrophic (or systemic) risks, have no previous record. At the same time there is a strong probability that their frequency and impact will increase in the future. This paper takes a governance perspective by assuming that policy actions should be designed to cope with ignorance and large-scale losses, being the primary features characterising such emerging catastrophic risks. Precisely, the governance activity should aim both at expanding the industries' capacity to absorb losses and at acquiring more information about frequency and impact of such losses. However, it appears that some solutions may conflict with policy objectives. Direct governmental interventions to compensate victims and stringent antitrust policy goals might block the development of a market for first-party property insurance for emerging systemic risks. In particular, frictions between competition law and precautionary actions (such as the development of an insurance market for unexpected risks) are here examined. The paper, thus, elicits crucial points that require further elaboration by policy-makers and it advances the idea for a workable legal definition for such line of risk that, by embracing the precautionary principle, avoids policy conflicts.
(with: Bassanini F., Barcellona E., Bussani M., Calabresi G.,
Garapon A., Djiré M., Guanghua L., Hakimdavar G., Halevi J., Haskell J., Kroncke
JJ, Lollini A., Lucarelli A., Mamlyuk BN, Mastruzzo G., Mattei U., Monti A.,
Muro SA, Nicolò D., Reviglio E., Sartori N., Varady T., ‘IUC Independent Policy
Report: At the End of the End of History - Global Legal Standards: Part of the
Solution or Part of the Problem?’, Global Jurist Vol. 9 No. 3, 2009.