The SEC and Foreign Companies – A Balance of Competing Interests

Abstract

Foreign private issuers sell their securities to US investors principally in one of three ways – a public offering registered in the US under the 1933 Act, sales to US qualified institutional buyers under Rule 144A, and offshore transactions within the requirements of Regulation S. US investors also have access to foreign securities through the domestic and international trading markets. The first part of this article examines the evolution, regulation and current importance of each of these investment settings. The inherent mobility of capital, coupled with the dramatic growth of international capital markets over the last two and a half decades, have substantially expanded the opportunity for issuers, financial intermediaries, and investors to shift their activities from jurisdiction to jurisdiction in search of regulatory advantage. This necessarily complicates the task of securities regulators, both in the US and abroad. To identify and evaluate the principal issues that the SEC will likely face in the years ahead, the second part of the article separately considers the (often conflicting) interests of the three U.S. groups with the biggest stakes in the outcome of this process – issuers, investors and the financial services industry.

Keywords: Cross-Listing, Foreign Private Issuers, Global Capital Markets & U.S. Securities Regulation

JEL Classification: F39, K22