In their article entitled A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework, Ethiopis Tafara and Robert Peterson offer a proposal for eliminating some of the barriers between U.S. financial markets and comparably regulated financial markets outside the United States. Under this proposal, non-U.S. securities exchanges and broker-dealers (termed “foreign financial service providers” in the article) would be able to obtain exemptions from registration with the U.S. Securities and Exchange Commission (“SEC”) based on their compliance with substantively comparable non-U.S. securities regulations and laws and supervision by a substantively comparable non-U.S. securities regulator. With the benefit of this registration exemption, U.S. investors will have better and less costly access to a wider array of diversified investment opportunities and reciprocal exemptions for U.S. financial service providers will afford the same benefits to non-U.S. investors.
This is an idea whose time has certainly come. Indeed, it is one that is long overdue. There can be no argument that the securities markets are now global and that the dominance of the United States as the leading player in the global marketplace is being challenged. The SEC can no longer afford to sit on the sidelines and pretend that the U.S. market is the only game in town. It must acknowledge that other securities markets and regulators have matured to the point where they rival (and some might argue exceed) the United States in sophistication. Investing in non-U.S. markets is no longer the exclusive province of megainstitutions or the ultrawealthy; it is an essential component of prudent portfolio diversification for all investors. The SEC must find a way to work with its counterparts outside the United States to eliminate barriers to cross-border investment. Tafara and Peterson have proposed a new framework (the “Proposed Framework”), one built on the idea of “substituted compliance,” to commence this process. The Proposed Framework is certainly a step in the right direction and its basic tenets should be embraced and pursued by the SEC. The SEC, however, must exercise care
and restraint in its implementation (especially with respect to its assessment of the comparability of non-U.S. regulatory regimes) in order for the Proposed Framework to succeed. Moreover, the SEC needs to be bolder and go farther in its response to the globalization of the securities markets. It should extend the substituted compliance approach to other areas, such as capital raising, and to other market participants. And it should do so quickly….
* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.