Article 1
Research on the Conflict of Laws and the Application of Rules in Transnational Securities Investment
With China's vigorous development of international business, some activities in China's transnational investment also involve some legal application issues. After China's entry into WTO, there are more and more transnational investment and financing enterprises in China, and the scope of communication with the country is expanding. Conflicts of laws and different application of rules often occur. How to understand these conflicts and rules and make the most favorable choice is an important guarantee for the development of multinational enterprises in China. This paper discusses some problems in the legal application of transnational securities investment from the perspective of conflict of laws and application of rules.
First, the legal conflict of transnational securities investment.
In order to better ensure the normal operation of cross-border securities trading, all countries have formulated special laws for some problems in cross-border securities investment. However, these laws and regulations are not worldwide, but formulated by countries from the perspective of their own development, and there are also many conflicts. Generally speaking, these conflicts are mainly reflected in the following aspects:
1. There is a conflict in adjusting the legal relationship.
Different countries have different understandings of securities investment, so there will naturally be great differences in the process of formulating laws and solving problems by using laws. First, there are differences in the subjects, methods and procedures of securities issuance, and the understanding of laws and regulations is very different; Secondly, there are differences in the formulation of some rules such as securities trading methods and payment methods; Third, China's different regulations on securities regulatory structure, regulatory methods and measures, and securities rights protection mechanism; Finally, there are differences in the legal provisions of securities market entities in different countries, involving legal conflicts in the qualification and identity confirmation of securities companies, stock exchanges, securities registration institutions, securities investment companies, listed companies and securities investors.
Second, different countries have different regulations on securities investment behavior.
Cross-border securities investment requires a series of behaviors, and there are different understandings of the norms and designated standard rules of these behaviors. For example, when regulating securities issuance and trading, countries have different understandings of how to identify the two behaviors and how to control them in the implementation process, and there are also differences in the content of supervision; There are also differences in the conditions for multinational companies to go public and the supervision of this behavior. These are the differences in the process of regulating some behaviors in international securities investment. These different understandings also lead to conflicts in the application of the law, which is not conducive to the effective solution of the same problem.
In the above content, it mainly analyzes and describes the legal conflicts of various countries in transnational securities investment. In fact, in theoretical research, there are also differences in understanding this issue. For example, some scholars divide this issue into three parts in the process of summarizing the conflict of law application: the conflict of issuers, the conflict of issuers and the conflict of issuance behavior and management. No matter which department it is, it is aware that there are some problems in the application of laws in transnational securities investment, which we need to focus on in the future.
Second, the conflict norms of the application of transnational securities investment laws
All countries in the world have regulations on transnational securities investment, and there are also some international treaties and multilateral treaties. So how to apply and choose when transnational securities investment problems really arise? There are five different issues in the international understanding of this issue, and there are conflicting norms in securities trading and issuance.
1. The personal law of the issuer shall apply.
In transnational securities investment, once legal problems arise, the laws of some countries stipulate that the issuer's personal law should be applied, that is, the law of the place where the multinational company issuing investment acts is registered determines what kind of law should be applied to the conflict of laws. The most important country, such as Hungary, stipulates in Article 28, paragraph 4, of its private international law: "Where securities involve members' rights, the issuer's personal law shall apply to the creation, transfer, extinction and entry into force of securities rights and obligations.
Resolve disputes according to the laws of the place of issuance and the place where the business organization is located.
This is a typical idea of territorialism and a common practice in China. In many cases, when countries stipulate how to solve legal conflicts, they stipulate that conflicts should be solved by the laws of the place where the business organization is located. The purpose of this regulation is to enable the issuing place and the place where the business organization is located to truly and accurately understand the situation of some multinational securities investment enterprises, to timely understand the information through the investigation in the place of registration, and to facilitate the parties to give evidence and the adjudication organization to resolve disputes.
3. The law of the place where the application is made.
In transnational securities investment, there are a wide range of issues and transactions, so when legal disputes occur, the problems are also diverse, and different countries have different provisions on legal dispute resolution. In order to better protect the interests of the parties and realize the timely relief of rights, for example, Korean law stipulates that the acquisition and loss of the rights of bearer securities shall be governed by the laws of the place where bearer securities are located.
Applicable to the development of the location of the stock exchange.
This is aimed at how to use the law in securities trading in the process of transnational securities investment. Different countries have different regulations, but many countries stipulate that in the event of a dispute over securities trading, the law of the place where the transaction takes place should be applied to solve the dispute. Article 27 of Hungarian private international law stipulates: "The laws of the place where the stock exchange is located shall apply to the contracts concluded through the stock exchange". Article 28 of Polish private international law stipulates: "The law of the place where the stock exchange is located shall apply to the debts arising from legal acts in the stock exchange." Article 1 125 of the Civil Code of the Republic of Belarus stipulates: "The laws of the country where an auction, tender or stock exchange is located shall apply to the contracts concluded by auction, tender or stock exchange." In addition, Article 28 of Polish Private International Law, Article 39 of Austrian Private International Law and Article 3 1 15 of Quebec Civil Code of Canada all have similar provisions. These provisions are also consistent with the traditional concept of "location dominant behavior" in private international law.
5. The adjustment shall be made according to the laws of the place where the transaction takes place.
The securities trading of multinational companies is different from domestic securities trading. Transnational securities investment has greater flexibility in the process of securities trading, and can conduct securities trading according to actual needs. Moreover, the development of modern network technology also provides the greatest possibility for the cross-space nature of securities trading. Therefore, in order to adapt to the international development and ensure the normal transaction, the laws of some countries stipulate that the law of the place where the transaction takes place shall apply to the settlement of disputes. For example, Argentine law stipulates that the transfer of bonds and bills payable to holders shall be governed by the laws of the country where the transfer is made.
In addition, the private international law of the French Civil Code stipulates that "the relationship between the transferor and the holder, and the relationship between the holder and the third party may also be governed by the law indicating the place of payment of securities."
Three, the characteristics and development of transnational securities investment law application
Dual legal application of securities trading
From the practical work and legislative process, we can see that the laws related to securities supervision actually have the dual nature of public law and private law, and countries have fully considered the dual application of securities trading: mandatory legal provisions and direct application law in the process of formulating laws according to their actual conditions. Under the guidance of these two different legislative ideas, countries have different regulations on transactions in transnational securities investment. However, from the compulsory aspect of the subject and transaction, this is the field of private law adjustment, but from the perspective of the state regulating the order of securities trading and issuing management behavior, this is also the category of public law. So it is a double law.
Second, the direct application of securities law.
The system of managing the securities market in various countries belongs to the scope of adjustment in the field of public law and should be different from the conflict of laws in the sense of traditional private international law.
These problems in the field of securities supervision are directly applicable to the securities laws of various countries, and there is no choice or traditional legal conflict between the parties. Those who violate the laws and regulations on securities supervision shall bear administrative responsibility, and those who cause damage to others shall also bear civil responsibility. Although securities supervision belongs to the field of public law, the relationship between securities issuance and trading and its rules are still private law in nature, so securities law is a special legal department with both private law and public law. The securities law regulates the behavior of all parties in the securities market, and the adjustment of private law based on civil liability is the legal basis for constructing the securities market. As mentioned above, different countries have different provisions on the constitution of securities civil liability, which leads to certain legal conflicts in the case of cross-border issuance and trading of securities. Therefore, first of all, we should clarify the specific norms in the securities law, distinguish the attributes of public law and private law, and adopt different principles of law application.
Four. conclusion
The development of transnational securities investment is the expression of world economic integration, and it is also the symbol of a country and social progress. As a developing country, it is a desirable way to establish effective economic ties with other countries and use world funds and other resources to support China's economic development. But at the same time, we should also see some problems, such as the differences in competitiveness and management mode in China. These problems will ultimately be solved by law. Only by making a good choice of law application and solving the problems of law application can we provide support for the development of transnational securities investment business in China.
References:
[1] weeks. On the development of China's securities investment and the integration of the world economy [J]. Financial Development, 2009 10.
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the second
Legal application of transnational securities issuance and securities trading
1. Application of law in securities issuance
In the process of transnational securities investment transactions, the issuer or underwriter of securities and investors are bound by the applicable spirit of contractual relationship, so it is natural to be adjusted by contractual legal relationship. According to the different objects of securities investment, the process of securities issuance can be divided into public offering and private offering. Due to the different applicable objects of public offering and private offering, the regulation of their corresponding legal relations should also be different. For private placement, what happens in the process of private placement is an offer, an offer or negotiation between the two parties. All the activities of both parties involved in this process are carried out on the premise of autonomy of both parties, and their actions should be regulated by private law. If the contract is applicable, the corresponding applicable law should also be selected through the conflict norms of the contract. For the public offering of securities investment, the applicable law is determined by the special method of contract application, that is to say, the applicable law is determined by the provisions of the directly used law, because in the process of public offering of securities investment transactions, it will inevitably have a significant impact on the social and public interests of the place where securities investment is issued. Then, the following focuses on the legal rules that may be applied in transnational securities investment.
1. The laws of the place of issue shall apply.
Considering the applicable law of securities issuance in the spirit of jurisprudence, we must first clarify the legal nature of securities. In many countries, securities are regarded as a kind of creditor's rights, so the law applicable to creditor's rights as one of the bases of contractual relationship should be contractual relationship law. From this point of view, the law of contractual relationship should be applied to securities issuance, and the place where the contractual relationship takes place is the most important one, which is the law of the place where the issuance behavior takes place for securities investment issuance. From the essence of contract spirit, it is also a principle adopted by most countries in the world that the law of the place of issuance is applicable to the issuance of securities investment. Its main legal basis lies in the traditional concept of private law and the behavior habit of "local domination". Many countries stipulate that the law of the place of issuance shall be the applicable law when securities issuance involves fund raising and information disclosure. As early as the beginning of the 20th century, the private international law adopted by the American Conference made relevant provisions. When issuing stocks or bonds, the relevant laws should be applied according to the local laws of the contracting States. In most European countries, stock securities are generally adopted according to the laws of the place where the stock is issued. In their legal concept, securities are related to the implementation of the national financial order. Once securities are issued or traded, it will inevitably have a greater impact on the national financial securities market. In order to relatively limit the influence of such problems, it is necessary to make clear provisions on the application of securities investment law to avoid the situation that the applicable legal basis is uncertain and the applicable law often adopts securities issuance in the process of conflict.
2. The personal law of the issuer shall apply.
Some countries regard securities as a form of company equity, so they adopt the relevant management system of the company's internal articles of association to invest in securities. The advantage of adopting personal law is that as long as the owner of the company's shares and other securities is determined, the applicable law of securities issuance can be immediately clarified without a series of executions in the process of securities issuance.
The applicable principle stipulated in the Romanian Code of Private International Law is personal law, which is embodied in the issuance of registered shares, transferable shares, bearer shares and interest-bearing bonds by applying the laws governing the articles of association of legal persons issuing shares. The principle of personal law has also been adopted. Hungary's private international law determines that if securities involve members' rights, the issuer's personal law shall apply to the creation, transfer, extinction and effectiveness of securities rights and obligations. In the early German judicial practice, the issuer's personal law was used as a precedent for the applicable law of securities trading for a period of time. In one case, bearer shares of a joint stock limited company outside Germany were deposited in Germany after purchase. In the subsequent process of securities investment and issuance, the acquisition or loss of securities in countries other than Germany may lose the interests of other shareholders of the acquiring company. At this time, German law stipulates that the interests of shareholders will be protected by the personal law of securities.
You can choose to apply personal law or territorial law.
Of course, some countries' legislation also defines securities as both equity and creditor's rights. For French countries that can choose to apply personal law or territorial law, once there are legal problems in securities investment, they will adopt selective conflict norms to solve the corresponding problems through the provisions of the state on private international law procedures. The most typical example is that the Swiss Federal Private International Law stipulates that securities investment by sponsorship or similar means can be regulated by the applicable laws of the company or the laws of the country where it is issued. Judging from this provision, once it is determined that it is a conflict of securities investment laws, it should be resolved in accordance with the conflict norms of the above-mentioned applicable laws, and this principle of legal application is a typical unconditional selective conflict norm. The choice of personal law or territorial law can be used as the basis of conflict resolution norms. In specific judicial practice, how to apply it can be determined according to the principle of close contact and convenient conflict resolution.
II. Application of the Securities Exchange Law
1. The transfer of securities is governed by the laws of the place where the securities are located.
Some countries regard securities as real right of movable property, and the transfer of securities belongs to real right transaction in nature. Therefore, the applicable law of securities trading should be the relationship of securities property rights. In these legal relationships, many countries will refer to the principle of the application of real right and adopt the principle of the law of the location of securities. According to the French Civil Code, the law of the place where bearer securities are located or the law indicating the place where securities are paid shall apply to the relationship between the transferor and the holder of a stock and the relationship between the holder and a third party. In the newly revised "Korean National Furniture Law", it is stipulated that the law on the rights of bearer securities shall apply to the law where bearer securities are located. China's securities trading also adopts this rule. The Securities Law applies to the issuance and trading of stocks, corporate bonds and other securities recognized by the State Council in China. It can be seen that the law of the place where the securities are located applies to the securities trading in China, and the place where the securities are related should be the place where the physical securities or the list of securities holders are recorded.
2. Securities trading shall be governed by the laws of the place where the stock exchange is located.
Some countries regard the securities in the transaction as creditor's rights and adopt a model consistent with other creditor's rights laws, such as the private international law code of Poland and other countries. In the legal application of securities trading, the principle of contractual relationship is often adopted. The applicable law for transnational securities transactions in these countries is based on the location of the stock exchange, and the contractual relationship is the place where the contractual relationship is performed. Hungarian private international law clearly stipulates that the law of the place where the stock exchange is located is applicable to contracts concluded through the stock exchange. In addition, Poland, Canada and other countries have also stipulated operating rules consistent with the concept of "location domination" in private international law. In China's legislation, it is also advocated that the location of the stock exchange is suitable for the trading of securities such as stocks and corporate bonds in China.
3. Apply the principle of autonomy of will and actual connection.
In the international business of transnational securities, the rights and obligations of securities issuers, investors, stock exchanges and other subjects are confirmed by written contracts. Whether it is an underwriting agreement between a securities issuer and an underwriter, a listing agreement between a listed company and a stock exchange, or various securities service agreements between the above-mentioned entities, it must be clearly stipulated in the contract. On the one hand, the principle of autonomy of will in the field of civil private law determines that transnational securities business should also follow this fundamental principle, and the corresponding applicable law is determined according to this principle. At the same time, we should clearly realize that in the case of autonomy of will and freedom of will, we should also make necessary restrictions on it. In addition, the law chosen by the parties under the premise of autonomy of will shall not conflict with the mandatory norms of the court on capital market management. In the case that the parties have not made a choice or the agreement is unclear, all countries advocate that the legal application of the securities service agreement should be determined according to the principle of actual contact. Therefore, it has become a common practice in all countries to determine the applicable law according to the principle of actual connection and the principle of closest connection. For example, in the securities underwriting agreement, underwriting securities constitutes the characteristic performance of the securities underwriting agreement, so the applicable law of the securities underwriting agreement should be the law of the country where the underwriter is located.
In short, there are differences in the issuance and trading of transnational securities investment in different countries, so how to determine the corresponding applicable law or how to determine the balanced legal rules that can be applied between countries should vary from country to country and suit local conditions.
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