Appendices

Appendix 1: Sample project

University of Reading

Pre-sessional Course Block 4

September 2008

To what extent should insider dealing be regulated, and how can this be done effectively?

Name: Mansoor Alhagbani

Date: 19 September 2008

Abstract

Insider dealing is considered a financial crime in many countries. This criminalization of insider dealing is recent and regulators have been struggling to control it, as it is a complex situation. Furthermore, regulating insider dealing has never gained a consensus, as many economists and lawyers think it should not be regulated. This paper tries to analyze this activity from different perspectives, by first defining insider dealing and looking at how it happens. Then the argument for legalizing insider dealing is analyzed, and a discussion about why it is flawed is presented. Finally, this paper suggests that a proactive approach is the most effective way to regulate insider dealing.

Introduction

Financial markets in many countries such as the UK, USA and Saudi Arabia constitute an integral part of the domestic economy and help create a sound market. This task requires providing a market where efficiency and market integrity are dominant characteristics. In other words, in order to have an attractive market, where shares are traded, the performance of companies that should be reflected are quoted in it. Wrongdoing in general is a stumbling block to ensuring an efficient market. It is the job of regulatory bodies to eliminate such obstacles. However, some forms of wrongdoing are difficult to combat, not to mention the opposition against criminalizing them. Insider dealing is such a subject. Suter considers insider dealing one of the most challenging topics that have been encountered by legislators (Suter, 1989, p. 1). This may be due to two main reasons. First, the opposition against regulating insider dealing. There are many economists and lawyers who advocate deregulated insider dealing for many reasons that will be dealt with in more depth later on this essay. Moreover, if the battle over regulating insider trading is won by those who are in favour of regaling it, there will be another issue, which is the difficulty, although not an impossibility, of imposing effective regulation due to the complexity of the controversial crime. Nevertheless, all forms of insider dealing should be regulated. A possible way of doing this effectively may be through a proactive approach. This essay will first define insider dealing and examine when it is committed. Secondly, it will look at the argument against regulating insider dealing and why this is inadequate. Finally, it will discuss how insider dealing could be regulated effectively by taking a proactive approach.

Definition

The definition of insider dealing is absolutely vital as an inadequate definition may create a loophole through which the crime might be committed without, if proved, successful prosecution. The ‘traditional view’ of insider dealing is defined by Hannibal as ‘the use by an insider of price-sensitive information (known to him but not generally and which he has acquired by virtue of his position) to trade to his advantage in the shares of a company’ (McVea, 1993, p.42). The ‘insider’ in this definition is someone who is likely to come across information (as part of his/her job) that is not known by the public. This information has to be price-sensitive, which means that once it is made public it is likely to provoke a movement in the price of certain shares (McVea, 1993). However, this definition, if not complemented by other rules, will be flawed from a legal viewpoint. This is true as the definition merely covers the deal when it is traded to the insider’s advantage. The insider can easily avoid this by passing the confidential information to a relative such as his wife, or even more cautiously, the insider may recommend his wife to buy or sell in particular shares without revealing the information. In this case, and according to that definition, a crime is not constituted, despite an advantage being gained from the confidential information. Therefore, the definition that will be used to criminalize insider dealing has to cover all possible forms of abusing confidential price-sensitive information, or alternatively complemented by additional rules. For example, in the UK, the CSA Act 1985, amended by the FSA 1986, does not define insider trading, yet the Act differentiates between direct insider dealing, mentioned in the definition above, and indirect or ‘secondary’ insider dealing (ibid., p. 69). The latter criminalizes the incident in which an insider makes recommendations, based on confidential information, to another person to trade. Both of them will be liable for insider dealing if the recipient knows that recommendation is based on confidential information, and only the insider will be liable for the crime if the recipient does not know (ibid., p. 75). This approach ensures that all forms of abusing information will be considered as insider dealing. Nevertheless, it must be borne in mind that criminalizing an action does not mean prosecuting anyone who has carried it out, it means that anyone who carries it out will be prosecuted if there is sufficient evidence. It is this issue of evidence that makes insider dealing a difficult action to control.

Having clarified what insider dealing is and what elements constitute such an action, it is important to decide whether such an action should be considered a crime or not. In many countries, such as UK, the USA and Saudi Arabia , insider dealing is a financial crime. However, numerous lawyers and economists disapprove of this criminalizing of insider dealing. Their argument centres around three main justifications for insider dealing.

The economic benefit of insider trading

First, the economic benefit that insider trading brings about. Donald J. Boudreaux, a distinguished economist, claims that insider trading is beneficial in the sense that it gives an immediate reflection of the information generated by a certain company. He argues that when insiders of a company buy or sell shares in their company according to specific information, this implies to the public that some information is available, even before it is announced. In other words, if insiders start to buy shares, outsiders or other investors can anticipate that good news is about to be announced and therefore imitate the insiders in their actions (Boudreaux 2003). Marine, a very well-known lawyer who wrote a book in 1966 condemning the criminalization of insider dealing , agrees with Boudreaux on this point (McVea, 1993, p. 54). This view seems to ignore the fact that profiting in an efficient financial market should be based on the investors’ abilities to analyze information, not to imitate other traders while perhaps the information available to them suggests doing the contrary. McVea argues that the economic benefit argument is flawed in two ways; he asserts that such a phenomenon would encourage insiders to delay the announcement of the information as they accumulate quietly and leisurely, in order not to be noticed by outsiders, a vast number of stocks so when the information comes out the price soars (ibid., p. 54). He also argues that the price at such a stage would be an ‘artificial one’ and this is a ‘distortion’ of the market that will affect efficiency and dent public confidence (ibid., p. 55). Therefore, it seems that the economic argument for legalizing insider dealing provides no ground upon which insider dealing can be legitimized.