Abstract
The article explores the key factors that make the securities criminal law of the United States (US), as one of the integral building blocks of the capital markets and securities regulatory system, efficient. This includes the role and characteristics of sectoral (blanket) all-embracing securities crimes enshrined into the federal securities statutes, their nexus with general crimes, the close cooperation of the Securities Exchange Commission (SEC) and prosecutorial offices, the applicable evidentiary standards, and the fundamental policies undergirding these laws. The rich repository of US experiences should be instructive not only to the Member States of the European Union (EU) striving to forge deeper capital markets but also to those endeavoring to accede the EU (e.g., Serbia), or to create deep capital markets for which efficient prosecution of securities crimes is inevitable.
Highlights
Even the mandate of making European Union (EU) law part of domestic legal systems is perceived as a predominantly formal task, which itself is paralleled by numerous dilemmas from finding the right place of securities crimes in the legal system, determining their proper qualification,[2] hardships caused by frequent amendments of laws, to ‘hyper-criminalization.’[3]. Some tentative conclusions have already seen the daylight though
No matter which specific types of securities crimes are at stake – from insider trading, manipulation, to Ponzi schemes – the sheer number of successfully prosecuted cases in the United States (US) clearly surpasses those of Europe; as showed by available quantitative data.[8]
Irrespective of the high priority attributed to the development of deep capital markets by the EU, Europe is continuedly incapable of bringing about a major volte face in the domain, be it boosting equity financing of large corporates,[10] or making major advancements in prosecuting securities crimes notwithstanding that the underlying legislation has been in place for years.[11]
Summary
For those European jurisdictions still being outside the EU, taking over of the acquis communautaire with its securities laws remains both a priority and a daunting task. Courses devoted to the field are lacking from the curricula of law schools, given the fledgling capital markets, scarcity of jobs requiring specialization to the field, and lack of quality teaching materials. It should not come as a surprise that normally there is little interest for study of US securities laws either, irrespective that EU law is increasingly influenced by it in the securities domain[7] and unquestionably the US possesses the most tested and multi-faceted securities regulatory system in the world today. No matter which specific types of securities crimes are at stake – from insider trading, manipulation, to Ponzi schemes – the sheer number of successfully prosecuted cases in the US clearly surpasses those of Europe; as showed by available quantitative data.[8]
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