74 Pages Posted: 22 Feb 2007 Last revised: 19 Dec 2007
Non-U.S. companies increasingly spurn U.S. stock markets and choose to list their securities and raise capital abroad. The drivers behind this shift are complex, but many believe that a principal cause is regulatory. The SEC has promulgated arguably over-burdensome, one-size-fits-all rules which fail to account for non-U.S. companies' heterogeneous desires for differing levels of regulation. And this was before the Sarbanes-Oxley Act.
Previous proposals to ameliorate this problem have all suffered from the same analytical flaw: they have approached this issue from the supply side and argued that regulation should be structured to meet the desires of issuers. This Article is an attempt to reformulate this debate. I argue that analysis of the proper level of U.S. regulation for non-U.S. companies should take into strong account the demand side interests of U.S. retail investors who are deprived of investing opportunities abroad when non-U.S. companies choose not list in the United States. The SEC should therefore craft regulation to foster investor equality and opportunity, and ensure that global investments are, to the extent feasible, available to U.S. investors.
To achieve this, the SEC should adopt a different regulatory standard for non-U.S. companies listing both in the United States and in their home market. This regulatory standard would borrow from mutual recognition principles embedded in Conflict of Laws jurisprudence. Under this standard, a non-U.S. company's compliance with its home market rules would be deemed satisfactory unless the quality of home market regulation was deemed to be sufficiently incomparable to United States regulation such that the benefits of investor access were outweighed by insufficient investor protections. This approach would create a regulatory scheme which would serve U.S. interests by attracting foreign listings while sufficiently protecting domestic investors. It would also benefit U.S. stock markets by allowing them to differentiate and provide regulatory product tailored to the individualized nature of the non-domestic listing decision.
Keywords: bonding, competition among regulators, cross-listing, globalization, going public, international securities regulation, listing requirements, SEC, stock exchange
JEL Classification: D4, F21, G1, G2, G15, G18, G28, K22, K33, L51
Suggested Citation: Suggested Citation
Davidoff Solomon, Steven, Regulating Listings in a Global Market. North Carolina Law Review, Vol. 86, p. 89, December 2007; Wayne State University Law School Research Paper No. 07-02. Available at SSRN: https://ssrn.com/abstract=964704
By Jose Mendoza