The Future for the Global Securities Market: Legal and Regulatory Aspects

By Fidelis Oditah | Go to book overview

4
The Law Applicable to Securities Transactions: Choice of Law Issues

PROFESSOR HANS VAN HOUTTE


INTRODUCTION

The law applicable to securities transactions is difficult to analyse within the confines of a short study. Securities transactions are often complex and multifaceted. Moreover, the applicable law in securities transactions has not yet been explored extensively. Indeed, conflict of law writers, on the one hand, have treated securities transactions in a stepmotherly manner. Academics are probably less familiar with and excited by the technicalities of securities transactions. Practising lawyers, on the other hand, are often shy to engage in conflict of law-exercises and prefer to ignore issues of applicable law.

As a result, this Chapter has extremely limited ambitions. It surely does not pretend to provide some exhaustive analysis or even a list of the problems raised. It only reveals a few lines of thought which may be helpful to locate the legal rules applicable to some securities transactions, such as the issuing and acquisition of securities. Moreover, this is done from a West- European perspective, mainly relying on West-European conflict of law texts and theory.

However, which rules are applied to a securities transaction depends to a large extent on the court which decides the case. Consequently, this Chapter will not only deal with the applicable law, but also with court jurisdiction over security matters.


THE ISSUING OF SECURITIES

Shares

Applicable law

In conflict of laws, questions related to share capital and issuing or subscription of shares are governed by the lex societatis, i.e. the law which

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