Market Soundings: The Interaction between Securities Regulation and Company Law in the United Kingdom and Italy

Stefano Lombardo and Mucciarelli Federico M.
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Mucciarelli Federico M.: Reader at SOAS, University of London (U.K.) and Associate Professor at University of Modena Reggio Emilia (Italy). A previous version of this work was presented during a PhD Business Law Seminar, Bocconi University, Milan, 14th May 2018. We would like to thank Pierre-Henri Conac, Renzo Costi, Nicholas Foster, Sergio Gilotta, Paolo Giudici, Chiara Mosca, Mario Notari, Mathias Siems and Giovanni Strampelli as well as an anonymous referee for their helpful comments and suggestions. We are, of course, the only persons responsible for omissions or mistakes. This article has been conceived, discussed and elaborated together by the authors; for the purpose of academic evaluation, Section 2 was written by Stefano Lombardo while Section 3 was written by Federico M. Mucciarelli; Sections 1 and 4 were written by the authors together. LondonUnited Kingdom of Great Britain and Northern Ireland

European Company and Financial Law Review, 2019, vol. 16, issue 3, 310-348

Abstract: Before deciding on operations involving share issuance or sale, companies or shareholders may seekto disclose information to selected investors, in order to gauge their opinion on the envisaged market operation. Despite such “market soundings” risk violating the prohibition of insider trading, selective disclosures have been partially accepted in several European jurisdictions. Market soundings have been eventually regulated in the MAR, which clarifies under which circumstances they are allowed and the position of the involved parties. This article analyses the rules on market soundings in the MAR with regard to issuance in the secondary market and accelerated bookbuildings. In this context, the question arises of whether harmonised rules on market soundings are compatible with national company law regimes. To address this issue, it will be assessed how Italian and English company law regimes react towards selective disclosures. It will be shown that a tension may still exist between uniform rules on market abuses and national company law rules, mostly with regard to directors’ duties and liabilities.

Keywords: MAR; market soundings; insider trading; company law; securities regulation; European Union; Italy; United Kingdom (search for similar items in EconPapers)
Date: 2019
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DOI: 10.1515/ecfr-2019-0012

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