The definitions of 'inside information' and 'insider' in the Financial Markets Act 19 of 2012

[摘要] ENGLISH ABSTRACT : The definitions of 'insider' and 'inside information' in the Financial Markets Act 19 of 2012are, as is the case with their international counterparts, central to the Act's regulation of insidertrading. It has long been recognised, however, that those definitions, inherited from repealedcompanies and market abuse legislation, are cumbersome and counter-intuitive. This state ofaffairs obtains as the South African legislature has failed to undertake the most fundamentalenquiry in formulating a coherent regulatory scheme aimed at prohibiting supposedly wrongfulconduct: identifying a single theory of wrongfulness upon which to base its prohibitions.Instead, the definitions include elements of all possible regulatory bases for insider trading,including those having as their object the protection of proprietary rights in information andborn out of the fiduciary doctrine. It is argued that the definitions, part of legislation aimed ataddressing a financial market wrong, should be formulated with reference to the rights andobligations at play in those markets and the legislature's objectives for those markets. Aproposal is made in that regard.

[发布机构] Stellenbosch University