Feb. 21, 2015

Breaking news

The SEC could remove those operators who disregarded the law their "privilege" allowing them to raise funds without prior authorization: the announcement by the regulator 21 February 2015 shows its inventiveness in enforcement

by Armand Paris

There was a time when the key was in the rule. Today is essentially in the effectiveness of the rule. What the English and Americans call: Enforcement.

When operators are very powerful and regulators have little information, when the rule is complex, when situations are always changing and diverse, most of the regulatory art focuses on enforcement.

It shows a little more the continuum between Ex ante and ex post, moreover the circularity between them. Not only sanction is necessary ex post to the regulatory body for the rules that it asked ex ante have an effectiveness, but conversely, if we want that breaches the rule that powerful operators are committed could be sanctioned, it is through the Ex ante they must be punished.

Thus, when a financial operator wants to raise funds in the US financial market, he must request authorization from the Regulator to do so or at least to declare beforehand. It is therefore an Ex Ante mechanism. But if the operator is trustworthy, then it can be a kind of privilege that allows him to raise funds without submitting to the heavy and lengthy procedure. It takes but just whether trusted opérator.

However, Reuters reported the next development by the SEC guidelines for applying its power to withdraw the exemption to operators which had broken the law, civil or criminal.

While this may be explained by the fact that these operators have shown they don't deserve the confidence that justified access to the status of "well-known seasoned issuer" (WKSI) offering this "privilege" exempting regulation.

This is especially a new crackdown. The withdrawal of that relief proceedings valuable to the operator who regularly raises funds on the market, making him reach the common lot of borrowers, making carrying a disadvantage compared to operators who respect the law and shall remain holders of "bureaucratic privilege".

In a regulation in which repression becomes the central arrow in the quiver, here is an acute .

It begs the question: claiming that it is within the Ex Ante, can the regulator be dispensed to apply the rights of the defense?

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