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Regulation of Insider Trading under the Moldovan Legislation
State University of Moldova, Chisinau, Moldova
In the Republic of Moldova insider trading is regulated by the Stock Market Law (further on - SML) . Article 3 of the SML provides the definitions of the concepts used throughout the Law. This Article defines the term “insider” as any person with knowledge of the issuer’s privileged information. The definition of “privileged information” is an almost verbatim transposition of the definition of inside information under the Market Abuse Directive 2003/6/EC . However, the core elements of the Moldovan insider trading regulation are to be found in articles 59 and 60 of the SML, under the heading of Title 4 of the SML “Investors Protection on the Stock Market”.
The most striking feature of the insider trading regulation in Moldova is that there is virtually no insider trading prohibition. Insiders are allowed to trade, if several conditions are fulfilled (these will be discussed later in this paper). Another important feature is that the law automatically grants the status of “insider” to certain categories of persons, regardless of their possession of inside information. I shall proceed to analyze the basic elements of the Moldovan insider trading regulation.
Who are insiders? The law does not distinguish between primary and secondary insiders. Article 59 of the Stock Market Law provides the following:
a) persons holding a job of responsibility within the issuer, including members of the issuer’s supervisory and management boards, members of the issuer’s censors’ commission, as well as members of other administrative bodies of the issuer.
b) persons holding individually, or together with their affiliated persons, at least 50% + 1 out of the issuer’s outstanding shares, bearing voting rights.
c) persons having access to the privileged information by virtue of their job, provisions of the contract or as a result of contract negotiations, or as a result of having been delegated this right by the issuer or by a issuer’s insider.
d) natural persons, which belonged to the three aforementioned categories during the previous six months.
e) natural persons, affiliated to the persons specified at lit. a) – d)
f) in cases when persons mentioned at lit. b) and c) are legal persons, the statute of insider is also held by persons holding jobs of responsibility within these legal persons, as well as persons which by virtue of the exercise of their duties within the particular legal person, have access to the privileged information of the issuer.
g) any other person, possessing privileged information”.
In this context, I would distinguish between insiders by the virtue of their status and insiders by the virtue of their possession of privileged information. The law establishes a presumption of possession of privileged information by virtue of status for an extremely broad range of persons. These are the members of the management and supervisory boards (Moldova follows the two-tier board model); members of the censors’ commission (it controls the economical and financial activity of the company); major shareholders, whose holding exceeds a prescribed amount; natural persons which belonged to the aforementioned categories during previous 6 months; natural persons affiliated to the aforementioned categories; as well as natural persons holding jobs of responsibility with the aforementioned major shareholders – legal persons. In order to understand the real implications of this broad coverage, it is necessary to understand what an “affiliated person” means under the Moldovan law. In Moldova, the notion of “affiliated person” is a far-reaching one. In the case of legal persons, it includes members of the company bodies; persons holding jobs of responsibility within the company; legal or natural persons holding control within that legal person; affiliated persons of the categories mentioned above, and others. In the case of natural persons, the notion of “affiliated persons” includes, inter alia, spouses and relatives until the second degree, legal persons within which the natural person holds a controlling position. These lists are longer; those were just examples of the major categories of affiliated persons under the Moldovan law. Accordingly, bearing in mind the far-reaching definition of affiliated person, the actual number of insiders “by law” is overwhelming. According to some estimates, each Moldovan company has approximately 195 insiders . There are 3 000 Joint Stock Companies in Moldova. Therefore, the total number of insiders “by law” amounts to 585 thousand, which represents approx. 17,3 % of the Moldovan population. It has to be noted, that the abovementioned estimates do not include those persons, which retain the insider status for a period of 6 months after the cessation of the event that initially granted them that status (Art. 59, lit d) of the SML), as these numbers have to be assessed on a case-by-case basis. Thus, it seems like the actual number of insiders “by law” might be higher than the estimates. Once again, it has to be emphasized that for this type of insiders the law does not require any possession or use of privileged information. They become insiders merely by virtue of their status.
The other group of insiders consists of persons who become insiders by virtue of their access to or possession of privileged information. Access to privileged information might be granted by virtue of:
Elements of the Insider Trading Prohibition. The most important feature of the Moldovan insider trading regulation is that there is no insider trading prohibition under the Moldovan law. Article 60, paragraph (1), of the SML provides the following:
“Insiders are allowed to buy or sell issuer’s securities:
Article 54, paragraph (6) of the SML provides an exhaustive list of 13 events, deemed to affect the financial and economical activity of the issuer. Article 54, paragraph (7) of the SML provides the issuer’s obligation to publish information related to these 13 events within 15 days form the date when such events occurred. Publication has to be made according to the provisions of the issuer’s Articles of Association. Article 21, paragraphs (4) – (4³) contains provisions related to means of determining the price of securities within a public offer .
Hence, the following two scenarios are available for an insider. According to the first scenario, any insider is allowed to trade if she makes a public offer for the securities under consideration. The futility of this provision is patently obvious. It establishes a cumbersome and useless procedure to be followed by those innocent insiders “by law” who are trading on the basis of public information. In case of “real” insiders, possessing privileged information, this provision allows them to trade as much as they want. For example, a member of the Supervisory Board of Company X possesses information regarding a potential takeover. Instead of being prohibited from trading, all she has to do is to register a public bid offer with the National Securities Commission and to start buying. The public offer requirement, implying that the insider will be obliged to buy (in this case) at a price established in accordance with some criteria, as mentioned above, does not protect market participants. The price will be established either on the basis of previous prices paid for the same securities, which by no means could have reflected the privileged information possessed by the insider at the moment she decides to trade, or on the basis of other criteria. In most cases, the price determined in the context of a public offer will be based on publicly available information and will not incorporate the privileged information known by the insider. Hence, in no way could such a price reflect the true value of securities traded by the insider, granting thus no protection to the innocent market participants.
Moreover, while the public offer requirement might place all the potential counterparties of the insider on an equal footing (as public offers should provide equal conditions for all potential counterparties), this requirement does not place the insider and her counterparties on an equal footing. Perhaps the requirement that a public offer should be valid for at least 30 days slightly increases the chances that during this period, privileged information will somehow become public, but this looks like a lottery game and legislation aiming at protecting investors should not rely on hopes.
According to the second scenario, in order to trade, the insider has to wait until the issuer makes public disclosure of any of the 13 events allegedly affecting the issuer’s economical and financial activity. After this, the insider can sell and buy issuer’s securities, at a price established in the same way as in the context of a public offer. This scenario seems to be more protective for the innocent investors than the first one, because at least in several instances the insider is obliged to wait for the disclosure before trading. Nevertheless, this provision has significant shortcomings. First, it provides an exhaustive list of events affecting the issuer’s activity. However, the truth is that privileged information can relate to any aspect of the issuer’s activity, as well as to the overall market situation; moreover, as mentioned in previous sections of this work, political news or virtually any other piece of information might amount to privileged information. Nevertheless, in Moldova, disclosure of the prescribed 13 events suffices for an insider to start trading. Thus, the bad-faith insider, possessing relevant privileged information that does not relate to any of the 13 events from the list, is allowed to trade freely on it.
Second, according to this scenario, disclosure has to be made by the issuer, and not by the insider. If an insider becomes aware of any information related to the list of events, she cannot disclose it herself and trade, but she has to wait for the disclosure to be made by the issuer. This requirement delays the conveyance of relevant information into the market.
As far as tipping is concerned, insiders are prohibited from tipping. The Moldovan tipping prohibition is an almost verbatim transposition of the tipping prohibition of the Market Abuse Directive.
According to the above brief analysis of the Moldovan insider trading regulation, the latter is blatantly different from modern models of insider trading regulations. First, it does not require a case-by-case analysis of each alleged insider-trading episode. Instead, trading by certain prescribed categories of insiders is automatically caught under the Moldovan law. This amounts to a “presumption of guilt”. Moreover, insider trading as such is not prohibited, it is allowed under several conditions. As a result, innocent traders, which were attributed by law to the category of insiders, have to perform all their trades in securities in relation to which they are deemed insiders following a cumbersome a costly procedure. This requirement diminishes their activity on the capital market and, perhaps, might decrease the overall stock market liquidity. On the other hand, true insiders, possessing inside information and willing to trade on it, can do it either under the conditions of a public offer, or after the issuer made the prescribed disclosure of an exhaustive list of events allegedly affecting the issuer’s activity. Nevertheless, the fact that “real” insiders can perform trades, does not mean that the number of transactions will be high and the stock market liquidity will grow. On the contrary, evidence exists that insider trading hampers stock market liquidity . The Law also requires that in both cases the price of securities has to be determined according to prices of the same securities under prior transactions. This requirement serves no protective function for the ordinary investor, as the very meaning of inside information is that it has not yet been incorporated in the market prices. Therefore, previous market prices by no means can reflect the inside information possessed by the true insider and the latter finds no obstacles in reaping profits as a result of his trade.
The reasons behind this peculiarity of the Moldovan insider trading regulation might be multifarious. One of such reasons could be the powerful lobbying exercised by wealthy corporate insiders in the process of this law’s drafting and adoption. The prohibition of insider trading has been virtually excluded from the Stock Market Law in 2005, generating many indignation and negative comments from the part of market participants. Nevertheless, even after the 2008 revision of the Law, no actual insider trading prohibition has been provided for.
Another plausible reason explaining the design of the insider trading regulation might be the inability of the executive branch to carry out and implement rules and regulations drafted by the legislative. Carrying out a case-by –case analysis of each element of inside information (such as its price sensitivity, non-public nature), proving that a particular person was indeed an insider and that her trade was effected on the basis of inside information, tracing all the alleged insider trading transactions – all these activities require a lot efforts, skills and knowledge. Therefore, it proves easier to establish a general presumption, covering a vast majority of traders. In this context, a general insider trading prohibition would lead to a huge outflow of traders from the market. Hence, the Moldovan legislator chose what it considered the “middle way” – allowing insider trading, under several conditions. However, this approach is more detrimental than either of the two models: insider trading prohibition and absolute insider trading deregulation. Under the Moldovan regulation, the alleged beneficial effects of any of these two models cannot be taken advantage of.
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