Insider Dealing by Outsiders in the U. S. and EU

Abstract

692The prohibition of insider dealing has its origins in U. S. law, the structural features of which have also influenced EU insider law. Today the dogmatic approaches of the two insider law systems differ diametrically. Particularly in dealing with investors outside the issuer, so-called outsiders, the two legal systems differ in terms of both the manner and the scope of covered transactions. According to our understanding outsiders are investors who, neither through their position within the issuer nor through the exercise of a profession for the issuer, have a relationship with the issuer that allows privileged access to inside information. We will lay out the differences between EU and U. S. law by reference to the recent decision of a U. S. Court in U. S. Securities and Exchange Commission (SEC) v. Panuwat, where the court approved the so-called shadow trading theory of the SEC. Whereas this decision has attracted a lot of attention in the U. S., we argue, that shadow trading is undoubtedly covered by EU insider law due to the broad principle of information parity. However, because of its broad scope EU insider law applies basically to all investors who possess inside information and hence may also prohibit transactions by outsiders which might be useful for capital markets, such as trading by financial analysts or whistle blowers. We will therefore scrutinize whether and how far financial analysts or whistleblowers are privileged by Recital 28 of the Market Abuse Regulation (MAR), which only applies to research based on publicly available data, but does not specify when information is publicly available.Whereas in regard to outsiders, the EU insider dealing law goes sometimes too far at the substantive level, in enforcement matters it is too restrictive on the other side. This becomes obvious when we look at politicians which are involved in legislation and hence have access to material information for many issuers. In the U. S., the SEC – acting as a driving force in the U. S. when it comes to the enforcement of the insider dealing prohibition – but also the legislator itself have already become active. Against this background, we examine what instruments EU insider law might provide to detect insider dealing by politicians and other outsiders and show that adapting and extending the existing rules may be a feasible way forward.