fairness? transparency? June 14, 2013
Posted by Bradley in : transparency , add a commentThe European Council’s press release about the forthcoming G8 summit states:
Promoting fairness and sustainable growth, jobs and development will be at the heart of the EU’s ambition for this G8 summit under UK with a special focus on the three T’s: trade, tax and transparency.
A quotation from José Manuael Barroso in the press release elucidates (?):
The European Union is coming to this G8 summit to promote global fairness: through unimpeded international trade as a vital engine for growth, jobs and development; by stepping up the global fight against tax evasion and avoidance, through automatic exchange of information; and through stronger transparency on revenue streams from extractive industries and forestry, on land governance and on government data.
I think they have a different understanding of fairness and transparency from mine, especially when it comes to the linkages between transparency and trade. A week ago the EU’s General Court held in Stichting Corporate Europe Observatory v Commission (Case T-93/11) that the Commission was entitled to respond to a request for access to documents by withholding documents relating to trade negotiations between the EU and India which were shared with trade associations which had participated in meetings as experts with respect to market access. Corporate Europe Observatory claimed:
that the documents at issue were sent, in full and without indication that they were in any way of a confidential nature, to trade associations with very large memberships and, therefore, to a very large, possibly indeterminate, number of persons, which effectively amounted to publishing or releasing those documents into the public domain.
The General Court adopted a rather formalistic approach. For example:
the Commission’s dissemination of the documents at issue cannot be regarded as having been intended to, and liable to, make those documents known to the public, that is to say, to an indeterminate group of persons, considered in general and in the abstract..Nor can the group of putative recipients of the documents requested, namely the members of the trade associations participating in the work of the advisory committee and of the working groups on market access, be treated as synonymous with the ‘public’. Those members also represent a specific group of persons defined according to a predetermined criterion, in this case membership of a trade association whose expertise is required in connection with the provision of assistance to the Commission for the purpose of deciding upon a strategy for access to the markets of a third State.
Not fair. Not transparent.
iosco investor education gateway June 4, 2013
Posted by Bradley in : financial education , add a commentIs here. IOSCO investor education materials are available via the gateway and there is a search function which provides some information about IOSCO members’ activities with respect to investor education and some links to their materials.
eu access to documents May 16, 2013
Posted by Bradley in : transparency , add a commentAdvocate General Cruz Villalón opined today that the Court of Justice should follow the General Court’s judgment in Access Info Europe v Council: where the Council acts in its legislative capacity “the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’” does not “constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001.” The Advocate General wrote:
‘Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, and this term must apply to the EU, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate…Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made legislation ‘easier’, if easy is taken to mean ‘hidden from public scrutiny’, as public scrutiny places serious constraints on those involved in legislating… to hide from public view the identity of those making the proposals being discussed during one of the stages in the legislative procedure is to deprive the citizen of an item of evidence that is necessary for the effective exercise of a fundamental democratic right, namely the ability effectively to hold politically accountable the participants in the process of shaping the public will into the form of a piece of legislation…. Democratic political debate involves, above all, accountability; and to have accountability it is essential to know the identity of those participating in the debate and, in particular, the terms on which they are doing so.
This is all good stuff, but he also makes some comments about the difference between EU states co-operating to legislate through the Council (where they are acting like a national legislature) and other circumstances where sovereign states negotiate and where a “mind-set of discretion and even secrecy… is justified.”
eu citizenship report 2013 May 8, 2013
Posted by Bradley in : governance , add a commentThe Commission announced the report and 12 steps to strengthen citizens’ rights, including strengthening citizens’ participation in the democratic process. The report says that:
Bolstering EU citizens’ full participation in the democratic life of the EU, at all levels, is the very essence of EU citizenship.
How are they going to do this? The Commission is looking into barriers to voting (disenfranchisement when citizens leave their Member State of origin, lack of an EU right to vote in national elections in a host state). And it plans develop a European public space and to publish a handbook:
To raise awareness about EU citizenship and the concrete rights it confers to all EU citizens, in particular their electoral rights, and about the possibilities to participate in the decision-making process of the EU, the Commission will produce and promote the dissemination of a hand-book presenting in a clear, concise and readable way, the rights attached to EU citizenship. The handbook could be distributed by national authorities to every young EU citizen reaching voting age, but also on other occasions, such as the registration of new births, the issuing of passports, the acquisition of a Member State’s nationality,or as material to be included in school curricula, in particular on citizenship education.
That’s really likely to work.
eu citizen participation and the european ombudsman April 19, 2013
Posted by Bradley in : eu , add a commentOn April 23 the European Ombudsman is organizing an event (focusing on solving the economic crisis and building a clean and healthy Europe) at the European Parliament:
to help focus on European citizens and how they can concretely contribute to shaping the European Union, either by using the European Citizens’ Initiative (ECI), by turning to the European Ombudsman, or by mobilising large groups of citizens to carry out grassroots initiatives.
The event will be streamed live.
strange wording of disclaimer on burford capital website April 18, 2013
Posted by Bradley in : language , add a commentThe beginning of the disclaimer (a pop-up on the investor relations section of the website) reads:
Viewing the information contained on this site may not be lawful in certain jurisdictions. In certain jurisdictions only certain categories of person may be permitted to view this information. The information published or made available via this site is not intended to be published or made available in any jurisdiction where to do so would result in the breach of any applicable law or regulation in that jurisdiction or would subject the manager, adviser, distribution adviser, placing agent or broker to any registration or licensing requirement in that jurisdiction.
Surely what they mean to say is that making the information available may not be lawful. But this is written to suggest that reading it may not be lawful.
Meanwhile the annual report, which notes they had a “splendid year” is generally available.
sec asks for information on broker-dealer and investment adviser regulation March 3, 2013
Posted by Bradley in : consultation , add a commentThere’s a long document explaining the background to the notice, which has not yet been published in the Federal Register. The press release states:
Specifically, the SEC is requesting data and other information from the public and interested parties about the benefits and costs of the current standards of conduct for broker-dealers and investment advisers when providing advice to retail customers, as well as alternative approaches to the standards of conduct.
While the SEC is particularly interested in receiving empirical and quantitative data and other information, all interested parties are encouraged to submit comments, including qualitative and descriptive analysis of the benefits and costs of potential approaches and guidance.
The SEC recognizes that retail investors are unlikely to have significant empirical and quantitative information, and welcomes any information they would like to provide. Commenters should only submit information that they wish to make publicly available.
america saves week February 26, 2013
Posted by Bradley in : financial education , add a commentThis is America Saves Week:
an annual opportunity for organizations to promote good savings behavior and a chance for individuals to assess their own saving status. Typically thousands of organizations participate in the Week, reaching millions of people.
The Consumer Federation of America, which manages the campaign, released data showing that the financial condition of American families has not improved in the last year. But saving isn’t easy. Even if people can find money to save they won’t earn good rates of interest:one website describes the 1% savings account rate as “the unicorn of banking”.
But not everyone is working hard to encourage savings: Governor Chris Christie signed New Jersey’s Internet Gaming Bill today.
cameron on mantel on kate February 19, 2013
Posted by Bradley in : truth , add a commentThe whole kerfuffle really just shows how perceptive Mantel is:
BBC News devoted a discussion to whether a pregnant woman could safely put on a turn of speed while wearing high heels. It is sad to think that intelligent people could devote themselves to this topic with earnest furrowings of the brow, but that’s what discourse about royals comes to: a compulsion to comment, a discourse empty of content, mouthed rather than spoken. And in the same way one is compelled to look at them: to ask what they are made of, and is their substance the same as ours.
To criticize Mantel for her comments as if they are criticisms of Kate Middleton is to miss the point. It’s the rest of us she is criticizing:
Cheerful curiosity can easily become cruelty. It can easily become fatal. We don’t cut off the heads of royal ladies these days, but we do sacrifice them, and we did memorably drive one to destruction a scant generation ago. History makes fools of us, makes puppets of us, often enough. But it doesn’t have to repeat itself. In the current case, much lies within our control. I’m not asking for censorship. I’m not asking for pious humbug and smarmy reverence. I’m asking us to back off and not be brutes.
posner and the highwaymen February 11, 2013
Posted by Bradley in : law , add a commentJudge Posner likes the highwayman’s case, Everet v Williams. One highwayman sued his partner for his share of the ill-gotten gains of the enterprise. The court refused to help him out. Judge Posner cited the case in SEC v Lyttle in 2008 to reject claims by defendants in a securities case who argued that they themselves had been defrauded by another participant in the scheme (a defense Judge Posner characterized as ‘the “honor among thieves” defense’:
Their second defense is that Eldridge defrauded them, as shown by the fact that she pocketed the lion’s share of the $ 32 million stolen from the investors. The defendants, however, pocketed almost $9 million, and even if Eldridge took more than her fair share of the loot, that would not exonerate them. One is reminded of the high-wayman’s case. Everet v. Williams…One highwayman sued another, claiming that he was entitled to a larger share of the loot from a series of joint robberies. The suit was dismissed, both were hanged, and the plaintiff’s lawyers were fined for having brought a suit “both scandalous and impertinent.”
Last year he referred to the case in Schlueter v. Latek as the classic illustration for the following principle:
The common law teaches that if the opposing parties in a lawsuit are equally in the wrong and as a result neither has a colorable claim against the other—more precisely, if awarding relief to the plaintiff would reward wrongdoing—courts will not adjudicate their dispute.
And last week the case turned up again in Thomas v UBS. Clients of UBS sought to sue UBS for its failures to prevent them from breaching US tax law. Judge Posner does not like this claim:
This is like suing one’s parents to recover tax penalties one has paid, on the ground that the parents had failed to bring one up to be an honest person who would not evade taxes and so would not subject himself to penalties.
And then he gets to the highwaymen:
There is in general no common law duty to prevent another person from violating the law. At worst, UBS, as we’re about to see, violated an agreement with the IRS designed to prevent the kind of evasion that the plaintiffs engaged in. That might conceivably make UBS an aider or abettor of the plaintiffs’s tax evasion and so make this case a distant relative to Everet v. Williams … A highwayman had sued his partner in crime for an accounting of the illegal profits of their criminal activity. The court refused to adjudicate the case, and both parties were hanged. Minus the hanging and with certain exceptions (such as contribution and indemnity) irrelevant to this case, the principle enunciated in The Highwayman’s Case applies to accomplices in civil wrongdoing, as noted in our recent decision in Schlueter v. Latek… In The Highwayman’s Case one accomplice was seeking a bigger share of the profit from the crime from the other one; here one accomplice is seeking a smaller share of the costs of the crime from the other one. The principle is the same; the law leaves the quarreling accomplices where it finds them.