Open Access Research Article
EVOLUTION OF THE LAW OF SECURITIES IN UK, USA AND INDIA BY: ABHISHEK KUMAR
Published Paper
Article Details
AUTHORED BY: ABHISHEK KUMAR
Chanakya National Law
University, Patna
Abstract
In
this research paper we can deals with the evolution of securities law in, the United Kingdom (UK), the United States
(USA) and India It has been a dynamic journey,
reflecting economic growth, globalization, and regulatory changes. Through this
paper we immerse into key milestones and significant legislations of these
country mentioned in our title. As we are coming forward we can see that it is essential for there to be a market-based statutory
body to protect investors and encourage the expansion and regeneration of
financial investments. These factors, such as disclosure, trading, listing and
liquidity accounting must be taken into consideration to keep the investors'
interests alive in the market.
In this research we can see what were the key drivers behind the
establishment of regulatory bodies such as the “Securities and Exchange
Commission [SEC] in the USA, the Financial Conduct Authority [FCA] in the UK,
and the Securities and Exchange Board of India in India [SEBI]”.How major
events such as the Great Depression and the Global Financial Crisis impacted
the development of securities laws in UK, USA, and India. Role major pieces of
legislation, such as the Securities Act of 1933 in the USA, “the Joint Stock
Companies Act of 1844” in the UK, and the SEBI Act of 1992 in India, played in
shaping the development of securities laws in UK, USA, and India, lastly we can
overview regulation of capital market and conclude our topic at the end of the
paper.
Introduction
The foremost
goal of the securities market reforms has been to improve the efficiency and
effectiveness of the markets, which has led to several significant changes. To support
a more active and vibrant capital market, it is imperative to have efficient
intermediaries. In the absence of effective regulators, the capital market may
encounter challenges in developing in a robust manner.
As in India
securities exchange board of India is responsible for overseeing the financial
sector, including stock exchanges, while the “Reserve bank of India [RBI]
governs the banking industry in India, Likewise also in UK and USA we have
different legislation In addition, specialised departments such as the
“Ministry of Company Affairs and the Ministry of Finance” aid in regulating the
market. The need for proactive steps has become increasingly clear in recent
years, as the capital markets have experienced various scandals. In particular,
the Harshad Mehta, Ketan Parekh, Satyam, and Roop Bhansali cases have prompted
the need for taking regular measures to prevent any similar occurrences. In the
past, such measures were reactive rather than proactive in nature.
The British
presence in India had a major impact on the formation of joint-stock companies
and stock exchanges in the region. Government loans were largely taken out in
London, while Indian railway businesses sourced their finances there too. As
the development of these indigenous stock corporations was crucial to the
expansion of the Indian securities market. The beginnings of the joint-stock
company movement were initially seen in Calcutta, a city populated largely by
British citizens. From there, it spread to Bombay, where both Indians and
British people established companies and
invested in them.
Development of
securities law in USA
When the
stock market crashed in 1929, it ushered in the Great Depression, which in turn
gave rise to federal securities legislation. Before the crash, companies were
issuing stock and touting the worth of their business to captivate investors
into buying these securities. Brokers offered investors the chance to purchase
the stock with the assurance of great profits, but failed to provide any
details about the company. In some cases, the promises made by the firm and
brokers were either entirely false or lacked any evidence to back them up.
Investors were eagerly snapping up shares in the stock market, dreaming of
tremendous windfalls. This period of frenzied speculation came to an abrupt end
in October 1929, when everyone suddenly started unloading their stocks, causing
the market to plummet.
Congress
took action in response to the disastrous event and President Roosevelt's
prompting, creating legislation to deter similar occurrences in the future. The
Great Depression prompted extensive research, which led to the passage of the
“Securities Act of 1933” and the “Securities Exchange Act of 1934”.
The major
thrust of the federal securities regulations is to make available to investors
data regarding the securities they purchase and the companies that issue them.
“The Securities Act and Exchange Act” enable this by mandating that enterprises
make known details about their operations and the securities they issue. The
laws set out by Congress guarantee that investors have access to unbiased data
and protect them from deception through imposing serious consequences for any
fraudulent activities related to the sale of securities. These disclosure
requirements are vital to maintaining the integrity of the securities industry.
An
Overview of the “Regulatory Framework”
These two pieces of legislation, “the Securities Act and the Exchange
Act”, give investors the right to take legal action if there has been a
violation of the necessary registration and disclosure requirements outlined by
“the federal securities laws”. This could be in the case of fraudulent
activities.
The Exchange
Act instigated the formation of the Securities and Exchange Commission (SEC), a
federal organization granted the power to oversee the securities sector. The
SEC is able to issue regulations in accordance with the federal securities acts
and to impose and implement federal regulations and its own rules. The SEC's power under the Exchange Act is to
register, oversee, and punish broker-dealers, keep an eye on stock exchanges,
and look into the activities of stock exchange's self-regulatory organizations
(SROs).
Before
Congress passed any federal laws on securities, most states already had laws of
their own in place, now referred to as blue sky laws. These laws were taken
into account when coming up with the federal regulations. When figuring out the
federal securities laws, judges frequently look to applicable state law to make
sense of the words and ideas that Congress incorporated into the regulations.
Unfortunately, state and federal regulations don't always match up exactly. The
scope of rights and remedies available to citizens may vary widely between
state and federal laws. In some cases, a cause of action may be available under
state law but not under federal law, and vice-versa. It's important to note
that laws of different states are not uniform, and may differ significantly
from federal regulations.
Blue
sky law
Blue sky
laws, provide extra layers of protection for investors in addition to federal
securities regulations. They require companies to register with the state and
disclose pertinent information about their business and the securities they are
offering. This helps to ensure that investors are aware of the risks associated
with their investments and are not being taken advantage of in any way. Back in
the early 1900s, individual states put forward laws to regulate the sale of
securities before the federal securities acts were passed by Congress. These
laws aimed to tackle speculative investments that had no real basis and were
referred to as "blue sky" investments, since they exaggerated
possibilities without any real substance.
The Supreme
Court, in Hall v. Geiger Jones Co.[1],
spoke of projects which had no foundation other than the "blue sky".
This phrase was used to describe the laws which were created in the time before
the Great Depression, when everyday people were losing money in investments
that promised high returns, like oil fields and foreign investments
In 1933,
Congressional regulation of securities began, apart from Nevada, all states had
blue sky laws. This made the national securities regulations intricate, as the
federal securities laws replicated certain areas regulated by the state laws.
The National Securities Market Improvement Act [NSMIA] of 1966 brought greater
organization to the area of securities regulation. It provided a clearer legal
framework by giving certain stocks listed on exchanges, such as NASDAQ or NYSE,
immunity from state blue sky laws. State governments may still impose their
anti-fraud measures on securities exempted from blue sky laws under the
National Securities Markets Improvement Act, even when the security in question
is not subject to specific state regulations.
Evolution of securities laws in UK
The development of
securities laws in the United Kingdom (UK) can be traced back to the early 19th
century. The first major piece of legislation governing securities was “the
Joint Stock Companies Act of 1844”, which permitted for the formation of limited
liability companies. This was followed by the Companies Act of 1862, which
established the modern framework for company formation and management.
In the early 20th century,
securities regulation in the UK was primarily driven by the Stock Exchange and
its rules. However, the Securities Act of 1936 established the first regulatory
framework for securities markets, giving the Bank of England and the London
Stock Exchange regulatory authority over securities trading.
The next major development
in UK securities laws came with the passing of the “Financial Services Act of
1986”. This Act created a comprehensive regulatory framework for the securities
industry in the UK, which included the establishment of the Securities and
Investments Board (SIB) as the main regulatory body for securities markets.
“The Financial Services
and Markets Act 2000” (FSMA) replaced the “Financial Services Act of 1986” and
established “the Financial Services Authority” (FSA) as the new regulator of
the UK financial services industry, including securities markets. The FSA was
later replaced by the “Financial Conduct Authority” (FCA) in 2013, which
continues to regulate the UK securities industry.
Today, the FCA regulates
securities markets and ensures that financial markets operate in a fair and
transparent manner. The FCA's regulatory framework includes rules on
disclosure, market abuse, and investor protection. The FCA also works closely
with other UK regulatory bodies, such as the Bank of England and the Prudential
Regulation Authority (PRA), to ensure that the UK financial system remains
stable and resilient.
The
Joint Stock Companies Act of 1844
“The Joint Stock Companies
Act of 1844” was the first major piece of legislation in the United Kingdom
that provided a legal framework for the formation and regulation of joint stock
companies. This Act established the principle of limited liability for shareholders,
It meant that shareholders were only accountable for the company's obligations
up to the amount of their investment. This was a important development in the
history of securities laws in the UK, as it paved the way for the growth of
joint stock companies and provided greater protection for investors.
Prior to the Act, there
were a number of legal and practical barriers to the formation of joint stock
companies, including restrictions on the number of partners that could be
involved in a business and the obligation of each partner to assume individual
responsibility for the company's obligations.
The Act aimed to remove
these barriers and provide a legal framework that would enable the formation
and regulation of joint stock companies in a more efficient and effective
manner. One of the key provisions of the Act was the introduction of limited liability,
which meant that shareholders would only be liable for the debts of the company
up to the amount of their investment. This helped to encourage investment in
joint stock companies, as it reduced the financial risks for investors and made
it easier for companies to raise capital.
Overall, the Joint Stock
Companies Act of 1844 was an important milestone in the development of
securities laws in the UK, as it provided a legal framework that paved the way
for the development of “joint stock companies” and helped to shape the modern business
landscape.
The
London Stock Exchange Regulatory Authority
The securities market
needs regulatory authority in order to ensure that financial markets operate in
a fair and transparent manner, and to protect investors from fraudulent or
unethical practices. “The London Stock Exchange (LSE)” was formed in 1801 and
became one of the world's largest stock exchanges, trading a wide range of
securities including stocks, bonds, and derivatives. As the LSE grew, the need
for a comprehensive regulatory system to keep an eye on the stock market and
make sure everyone is looking out for investors' best interests grew as time
went on.
“The Securities Act of
1936” established “the Bank of England and the London Stock Exchange” as the
regulatory authorities responsible for overseeing the securities market in the
UK. The Bank of England was given regulatory authority over banks and other
financial institutions, while the LSE was responsible for regulating securities
trading on the exchange.
The LSE's regulatory
authority was important for several reasons. Firstly, as a result, it aided in
maintaining an atmosphere where dealing in securities could take place without
any shadiness, with market participants adhering to a set of rules and regulations
designed to promote market integrity. Secondly, it helped to protect investors
from fraudulent or unethical practices, such as insider trading or market
manipulation. Finally, it helped to maintain the reputation of the UK
securities market as a safe and reliable place for investors to trade
securities.
Today, “the FCA is
responsible for regulating securities trading in the UK, including overseeing
the activities of the London Stock Exchange. The FCA's regulatory framework
includes rules on disclosure, market abuse, and investor protection, and is
designed to ensure that financial markets operate in a fair and transparent
manner.
The
Financial Services Act of 1986
The Act was passed in
response to a number of issues that had arisen in the UK financial services
industry in the 1970s and early 1980s. During this period, there were a number
of massive financial scandals, including the collapse of the Bank of Credit and
Commerce International (BCCI) and the fraud committed by the merchant bank,
Johnson Matthey.
These scandals highlighted
the need for stronger regulation and oversight of the economic services
industry in the UK. In particular, there was a need to address the lack of
coordination and consistency among the different regulatory bodies that were
responsible for overseeing financial services at the time. This led to the
establishment of “the Securities and Investments Board (SIB)” as the main
regulatory body for the securities industry in the UK.
The Act introduced a
number of important reforms to the UK financial services industry. One of the
key provisions of the Act was the introduction of a single regulatory framework
for the industry, which replaced the previous system of multiple regulatory
bodies. This helped to ensure that financial services providers were subject to
consistent regulation and oversight, and helped to promote greater stability
and confidence in the industry.
The Act also introduced
new rules and regulations governing the activities of financial services
providers, including rules on disclosure, market abuse, and investor
protection. This helped to protect investors from fraudulent or unethical
practices, and contributed to increased honesty and impartiality in the market.
It helped to establish a more coherent and effective regulatory framework for
the financial services industry.
The
Financial Conduct Authority
The Financial Conduct
Authority (FCA) was established in the UK in 2013 as a result of “the Financial
Services Act of 2012”. The Act was introduced in response to a number of issues
that had arisen in “the financial services industry”, including “the global
financial crisis of 2008”, which had exposed serious weaknesses in the
regulatory framework governing financial services in the UK.
The purpose of "The
Financial Services Act of 2012" was to better protect consumers and
enhance regulations governing financial services in the United Kingdom. A
number of significant changes were made, most notably the Financial Conduct
Authority (FCA) being established as the primary UK financial services
regulator.
The FCA was created with a
number of key objectives, including promoting competition in the financial
services industry, protecting consumers from harm, and ensuring that financial
markets operate in a fair and transparent manner. To achieve these objectives,
the FCA was granted extensive regulatory authority, including the authority to
implement and enforce legislation, investigate and prosecute financial
misconduct, and impose fines and sanctions on financial services providers who
breach its rules.
One of the main reasons
for the establishment of the FCA was to address some of the weaknesses in the
previous regulatory framework for financial services in the UK. The FCA was
given a more proactive and interventionist role in regulating the industry, with
a greater focus on preventing harm to consumers and promoting competition.
Overall, the establishment
of the FCA was a significant development in the evolution of securities laws,
as it helped to establish a more robust and effective regulatory framework for
financial services and to improve consumer protection in the industry.
Evolution of Securities Laws in India
Dutch East
India Company was founded, a stock market in Amsterdam in 1602, which served as
the world's first stock exchange. Before this, brokers who dealt in treasury
bonds already existed in France. In the latter part of the 18th century, the
first stock exchange in the United States was established in Philadelphia. This
paved the way for the New York Stock Exchange to become the iconic trading hub,
with Wall Street at its core. Although the stock market's brokers were
originally dispersed and unstructured, they later banded together to establish
larger institutions. Trading in investments for gain has been a
part of India's history since the 1700s, when the East India Company started to
buy and sell loan securities.
Derivatives
trading has been an established practice in India. The first recorded example
of a corporate stock transaction took place in Bombay during the 1830s, while
the Bombay Cotton Trade Association began futures trading in 1875. At the turn
of the twentieth century, the country had established what would become the
largest futures market in the whole globe. Under a banyan tree outside Bombay's
Town Hall in the 1850s, 22 stockbrokers got the stock market rolling. The same
tree may be seen in the Horniman Circle area now as it did a hundred years ago.
Earlier
purchasing and selling of shares relocated further away from what was then
known as the Meadows Street Junction and is now called the Mahatma Gandhi Road.
The number of brokers escalated, culminating in 1874 when they settled at Dalal
Street, which is now known as the hub of trading. The “Native Shares and Stock
Brokers Association” was established by a collective of 318 individuals with a
membership fee of Re 1. This association later evolved into the “Bombay Stock
Exchange” [BSE] which was granted permanent recognition by the government of India
in 1965 under the “Securities Contracts Regulation Act [SCRA], 1956”. The BSE
has maintained its position as the oldest stock exchange in Asia throughout its
144-year history. After its establishment, “the Ahmedabad Stock Exchange” was
established the next year in 1894 to facilitate the trade of shares in various textile
companies. After that, in 1908, the plantation and jute mill stocks were traded
on “the Calcutta Stock Exchange”, and in 1920, “the Madras Stock Exchange” was
founded. Both of these stock exchanges were located in India.
Post-Independence
Reforms in the Market
The anxiety
of the World War II as to the impact it could have on Indian industries was
later replaced by the fear of a depression, which ultimately came to pass. In
the years immediately after World War II, the majority of stock markets
experienced severe losses. Simultaneously, India's political situation was
changing and it eventually gained independence. The Lahore stock exchange
relocated to Delhi, and eventually was integrated into the “Delhi Stock
Exchange”. In 1947, the two exchanges in Delhi were combined to form the “Delhi
Stock Exchange Association Limited”.
The BSE was
officially registered in 1957 and granted recognition by the Central Government
in 1963. At that time, there were few stock exchanges that had been given the
okay by the governing body. The SCRA of 1956 was the first law to acknowledge
and regulate these exchanges. The act granted official recognition to the
already existing stock exchanges located in “Mumbai, Ahmedabad, Calcutta,
Madras, Delhi, Hyderabad and Indore”.
Post
Reform Phase after 1991
Since
gaining independence, India's stock markets have been steadily increasing. From
1985-1991, the number of exchanges skyrocketed, and the subsequent two decades
saw a qualitative development in the country's market. Technological
advancements, a plethora of products, and greater investor protection are now
features of the market. The Indian capital market saw a growth in numbers, but
it was hindered by issues such as a lack of liquidity, incomplete information,
a dearth of transparency, and long settlement periods. In addition, benami
transactions and some fraudulent activities in the stock market further
detrimentally affected the small investor. The beginning of the nineties saw
the formation of two significant stock markets, the “Over-the-Counter Exchange
of India” [OTCEI] and NSE.
Overview
of Regulation on the Capital Market in India
The Indian
Securities Act, 1920, was established with the purpose of organizing and
amending existing laws related to government securities. This legislation is no
longer active and is only of importance in the historical context.
The Bombay
Legislative Assembly stepped up to regulate the stock exchanges by passing the
Bombay Securities Contract Control Act of 1925. This was the first time that a
special law was crafted to govern these exchanges and it gave the government
the authority to recognize or reject them. Additionally, it stated that any
changes to the rules of the exchanges had to have the government's prior
approval. The BSE and the “Ahmedabad Stock Exchange” were officially
established in 1927 and 1939, respectively, with their own laws and
regulations. This act remained in force until 1956
when the Central Government passed the SCRA.[2]
A new
legislative framework for the issuance and management of government securities
was created with the passage of the Government Securities Act of 2006, which
superseded the Public Debt Act of 1944. As the original law had become
antiquated, a new one was enacted to bring it up to current.[3]
For over 45
years, the “Capital Issues Control Act 1947” governed the operations of the
Indian stock market until it was repealed by the “Capital Issues Control Repeal
Act of 1992”. Government of India's Ministry of Finance, Department of Economic
Affairs, and Controller of Capital Matters enacted and implemented the law's
requirements. These regulations have now been transferred to the Securities and
Exchange Board of India. The Act was designed to safeguard the interests of
investors, regulate securities transactions, and ensure the market has a sound
capital structure. It also sought to prevent over-crowding of the market with
new public issues. The Government of India was given control over the timing
and pricing of such issues.
In 1954, a
bill based on the draft suggested by the Gorwala Committee was created. After
examining their suggestions, the Indian Government chose to implement a law to
control and manage the stock exchange. The Parliament decided that an
all-encompassing law was essential to keep an eye on and monitor the activities
of stock exchanges nationwide. Having a well-ordered market, in which people
can trust, will drive the conversion of savings into investments in the nation.
The
Companies Act of 1956 was brought into existence, overseeing the financial and
non-financial actions of corporations within India. It set up a unified bond
between the people who were running the company, the shareholders, and the
management. This Act controls all corporate actions, from incorporation through
dissolution. When it comes to monetary considerations and obtaining funds,
particular arrangements have been put in place by the act; these include the
issuance of capital, the company's capital structure, the distribution of
dividends, investments between corporations, and the allocation of shares. The
Central Government's Department of Company Affairs and the Company Law Board
are in charge of enforcing the Companies Act. The new Companies Act of 2013 has
since taken its place, with only minor adjustments to the original provisions.[4]
In 1973,
FERA was brought into effect in India when the nation's foreign exchange
reserves were not plentiful. This law assumed that all foreign exchange earned
by citizens of the country needed to be handed over to the RBI, as it was the
rightful property of the GOI. FERA mainly disallowed any trading that was not
authorized by the Reserve Bank of India. In 1998, Atal Bihari Vajpayee's
administration did away with the act and replaced it with the FEMA which eased
up on foreign exchange control and limitations on foreign investments.[5]
The Indian financial system needed to be bolstered in the wake of
globalization, so reforms were carried out. To ensure it was adequately
protected, an independent regulatory body was set up in the last decade - this
was the SEBI, which was formed in 1992 by statues.
Certain
authorities from particular sections of the SCRA and CA 2013 have been given to
SEBI. Its headquarters are in Mumbai, with the Ministry of Finance, from the
Central Government, having ultimate control. The Act was established to prevent
the issue of multiple regulatory bodies that may lead to misapprehension among
those involved in the market, due to the overlapping of roles. Thus, SEBI was
set up to provide a secure and reliable environment in the securities market
with the intention of protecting investors and encouraging the development and
proper functioning of the securities industry. The SEBI Act is also intended to
ensure efficient resource mobilization and distribution through the securities
market.
The
Parliament of India passed the Government Securities Act, 2006, This seeks to
strengthen the Reserve Bank of India's authority over the government securities
market and implement a number of reforms in that arena.
The
quickening pace of advancements in technology necessitated the implementation
of the Depositories Act, 1996 in order to effectively manage any issues arising
from its utilization in the capital market. The purpose of this law is to
ensure that the transfer of securities is safe, efficient, and precise. The
rules have been set to allow the stocks of public companies to be easily
transferred and recorded in electronic form, eliminating the need for physical
securities.[6]
The RBI Act
of 1934 is a major piece of legislation that oversees and manages the banking
system in India. While it does not have direct control over capital markets,
certain participants in the market are bound by its regulations. During the
90s, there were some unscrupulous activities taking place at Non-banking
Financial Corporations. The RBI has taken a tough stance towards NBFCs who have
used their excess funds and resources in the financial market. They are facing
severe repercussions for breaching the rules and regulations of the RBI Act, such
as being banned from taking deposits and even facing criminal charges.
Conclusion
The development of
securities law in India, USA, and UK has been shaped by different historical,
political, and economic factors, but has ultimately been driven by a shared
desire to protect investors, promote transparency and fairness in financial
markets, and prevent fraud and misconduct.
In India, the Securities
and Exchange Board of India (SEBI) was established in 1992, and has since
played a important role in regulating the securities industry and protecting
investors. SEBI has introduced a range of reforms and regulations designed to improve
transparency and fairness in financial markets, and to promote investor
protection.
In the USA, the
“Securities Act of 1933 and the Securities Exchange Act of 1934” established
the SEC as the main regulatory body for securities trading in the country. The
SEC has been instrumental in regulating the securities industry, and has
introduced a range of reforms and regulations aimed at protecting investors and
promoting transparency in financial markets.
In the UK, the regulatory
framework for securities trading has evolved over time, with major pieces of
legislation such as the Joint Stock Companies Act of 1844 and the Financial
Services Act of 1986 playing important roles in shaping the development of securities
law in the country. The establishment of the Financial Conduct Authority (FCA)
in 2013 represented an important milestone in the evolution of securities law
in the UK, and has helped to establish a more coherent and effective regulatory
framework for financial services.
Despite the differences in
the development of securities law in these countries, they all share a
commitment to protecting investors, promoting transparency and fairness in
financial markets, and preventing fraud and misconduct. This has been essential
in creating trust and confidence in financial markets, and ensuring that they
operate in a manner that benefits both investors and the broader economy.
Bibliography
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Securities and Exchange Board of India Act, 1992.
·
Securities Contracts (Regulation) Act, 1956.
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Companies Act, 2013.
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Foreign Exchange Management Act, 1999.
·
The Foreign Exchange Regulation Act, 1973.
·
Reserve Bank of India Act, 1934.
·
Securities Act of 1933.
·
Securities Exchange Act of 1934.
·
The Financial Services and Markets Act, 2000.
·
The Joint Stock Companies Act, 1844.
·
The Financial Services Act, 2012.
§ Edward L. Pittman,
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§ Umakanth Varottil, The
Evolution of Corporate Law in Post-Colonial India: From
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[2] Bombay
Securities Contracts Control Act, 1925, Sebi, India, available
at:http://www.sebi.gov.in/History/bombayact.pdf (visited on August 29, 2017)
[3] Administration
of the Public Debt Act, available at:
http://finmin.nic.in/acts/administration-public-debt-act-1944-18-1944(visited
on February 10, 2023)
[5] Foreign
Exchange Regulation Act 1973 (FERA), available at
https://www.gktoday.in/foreign-exchange-regulation-act-1973-fera/(visited on
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[6] An
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Article Information
EVOLUTION OF THE LAW OF SECURITIES IN UK, USA AND INDIA BY: ABHISHEK KUMAR
Authors: ABHISHEK KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/05
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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