The Laws Applicable In Cross-border Securities Offerings And Trading

The fast economic globalization grealty promotes the issuance and trade of securities in cross-border aspect. Traditionally, scholars of law mainly concerned themselves with the public law aspect in this field. But today this situation has changed dramatically for more attention has been switched to the choice-of-law issues in cross-border securities'issuing and trading and many writings have been published since the late 1990s in 20th century. Paralell to the development in the theoretical research, much progress in the lawmaking and judiciary fields also have been achieved in some countries. This is also true with China. As the development of the practice, Chinese scholars, like their counterparts in foreign countries, have made a stride in theoretical research in this field. But their researches and legislation are not free from weaknesses and flaws. In the light of these inadequacies, it is of high necessity to carry out more theoretical studies to complement and/or modify their research findings. Motivated by this need, this dissertation attepmts to explore the the issues of the conflict of laws and the choice-of-law rules in securities'issue and trade in cross-border aspect.The dissertation falls into six chapters.Chapter one introduces the fundamental theories concerning securities'issuance and trade in the cross-border background. The analysis focuses on three issues:the jurisdiction, conflicts of laws and the choice-of-law rules on cross-border issuance and trade of securities. The research on the choice-of-law issues is divided into two parts:source of applicable law and the characters of choice-of-law rules. In this chapter, the relating concepts are defined, the general framework of conflict-of-law rules is established, and characters of such rules are analyzed.Chapter two concentrates on the conflict-of-law issues. As the premise and the basis of choice-of-law rules in the field of issuance, the conflicts among the relating domestic rules lie in the civil subject's qulaification and the capacity for issuing, the objects and the behavior of issuance, the title of shares and the effectiveness of the contract for the trading of shares. With regard to trade, the conflicts among the relating domestic rules are embodied in three aspects mainly:the qualification and the capacity of the subjects for trading, the contracts of securites'trading and their enforcements. Besides, in the field of issuing and trading of securities, the conflict-of-law issues also can be found in the cross-border acquisition and merge, the protection of the minority of shareholders, and the civil liabilities in torts.Chapter three is mainly concerned with the analysis of choice-of-law rules in securities'issuance. These rules lie in five fields:the subject's qualification and its capacity for issuing, the behavior of issuance, the title of shares, the contracts in securities'issuing, and the civil liabilities in issuance.Chapter four is devoted to the choice-of-law rules in securities'trading. This chapter analyzes fives problems in this field:the subject's qulaification and the capacity for trading, the trading contracts and their enforcements, the cross-border acquisition and merge, the protection of the minority of shareholders, and the civil liabilities in securities'trading.The research in chapter three and chapter four centers on the direct holding system of securities, while the research in chapter five focuses on the choice-of-law rules in the securities held through indirect holding system. In section one of chapter five, the close relationships among the indirect holding systems, the dematerialization and the immobilization of securities are shown for the readers. It is followed by a discussion about the basic framework of securities which held through indirect holding system in this chapter. The following section is an analysis of the choice-of-law rules in four fields, namely, security entitlement, trading contract, the investor's security entitlement as the bankruptcy of the intermediator, and the issues relating guaranty in the indirect holding systems.Chapter six is dedicated to the legislation and the judical practice of China in cross-border issuing and trading of securities. On the basis of a detailed analysis of the status quo in legislation and the judical practice in China and the latest development of this field in foreign countries, it puts forward some suggestions for perfecting relating rules, including the legal format and the general rules.