Regulating Fraud Across Borders

Edgardo Rotman is Senior Lecturer in International and Comparative Law Emeritus at the University of Miami School of Law, USA.

Introduction
1. The Internationalisation Process
I. The Concept of Legal Internationalisation
II. Extraterritorial Application of National Law
III. International Cooperation
IV. Mutual Recognition
V. The Diffusion of the American Legal Model
VI. Suppression Treaties and Conventions
VII. Internationalisation through EU Directives and Regulations
VIII. Harmonisation
IX. Transnationalisation as a Subcategory of Legal Internationalisation Lato Sensu
A. Transnational Law in General
B. Transnational Criminal Law
C. ‘Transnationalisation’
X. Economic Underpinnings
A. The Globalisation of Financial Markets
B. Relationship between the Economy and Business-Related Criminality
XI. Social and Psychological Underpinnings: White-Collar Criminality in the Context of a Globalised Economy
2. The Internationalisation of Securities Fraud-Related Criminal Law in General
I. Introduction
II. Securities Fraud as a Criminal Offence
A. The Concept of ‘Securities’
B. The Concept of ‘Securities Fraud’ in American Law
C. Criminal Securities Fraud in American Law
III. Critical Statutory Interpretation
A. Shortcomings of American Legal Scholarship in the Field of Criminal Securities Frauds
B. The Use of Comparative Criminal Law to Rethink and Reform the Doctrine of Criminal Liability
in American Securities Law
3. Extraterritorial Application of United States Law
I. Introduction
II. The Crucial Role of Extraterritorial Enforcement of the United States Criminal Law in the Prevention and Repression of Financial Fraud
A. Evolution of the Notion of Extraterritoriality
B. Extraterritoriality of Business-Related Criminal Law in a Globalised Economy
C. The Pros and Cons of Extraterritorial Enforcement of Business-Related Criminal Law
III. Overview of United States v Vilar’s Fundamental Precedents
A. United States v Bowman
B. Morrison v National Australia Bank
C. Morrison’s Casualties
D. The United States Congress Attempt to Overrule Morrison
IV. Critical Analysis of United States v Vilar
A. United States v Vilar
B. How a Comparative Analysis of the German Criminal Law Model can Help Identify Signifi cant Shortcomings in United States v Vilar
V. Discussion of Each of United States v Vilar’s Supporting Arguments
A. First Critique of Vilar
i. Extent and Significance of the Bowman Exception
ii. The Presumption Against Extraterritoriality Called into Question
B. Second Critique of Vilar
C. Third Critique of Vilar
D. Fourth Critique of Vilar
E. Conclusion
4. The Internationalised Repression of Insider Trading
I. The United States Law on Insider Trading
II. The Internationalisation of Insider Trading Law
III. Switzerland
IV. European Union
V. France
A. Historical and Institutional Background
B. Past Developments on the Insider Trading Prohibition
C. Present Regulation of Insider Trading
D. Constitutionality of the Accumulation of Administrative and Criminal Sanctions
VI. United Kingdom
VII. Italy
VIII. Germany
A. Development of Insider Trading Law in Germany
B. Effectiveness of Insider Trading Provisions
C. Recent Reforms
5. The Internationalised Repression of Stock Market Manipulation
I. Introduction
II. Market Manipulation in the United States
III. Traditional Forms of Market Manipulation
IV. New Forms
V. Benchmark Manipulation
A. Significance: LIBOR and its Replacement
B. EU Benchmarks Regulation
VI. Swiss Criminal Law: Internationalisation of the Market Price Manipulation Prohibition through the Diffusion of the American Model
VII. European Regulation of the Market Manipulation Prohibition
VIII. Developments in Some EU Member States Towards Adjusting to European Regulation
A. France
i. Legislative Developments
ii. Constitutionality of the Accumulation of Criminal and Administrative Sanctions Dealing with Market Manipulation
B. United Kingdom
C. Italy
i. Legislative Developments
ii. The Two-Track Sanctioning System and the Principle Non Bis in Idem
D. Germany
Conclusions