Property Rights in Investment Securities and the Doctrine of Specificity
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Erica Johansson
Property Rights in Investment Securities
Property Rights in Investment Securities and the Doctrine of Specificity
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Property Rights in Investment Securities and the Doctrine of Specificity
Erica Johansson
Property Rights in Investment Securities and the Doctrine of Specificity
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Dr. Erica Johansson Associate - Finance Group Mayer Brown International LLP 11 Pilgrim Street London EC4V 6RW United Kingdom [email protected]
ISBN: 978-3-540-85903-1
e-ISBN: 978-3-540-85904-8
Library of Congress Control Number: 2008935630 c 2009 Springer-Verlag Berlin Heidelberg ° This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMX Design GmbH, Heidelberg Printed on acid-free paper springer.com
For Matthias Pannier
Preface
This book is, with some adjustments and additions, largely based on my PhD thesis on Property Rights in Investment Securities and the Doctrine of Specificity, which I defended in London on 15 June 2007 with Professor Lars Gorton and Dr. Kern Alexander as examiners. The subject matter is the doctrine of specificity and its non-conformity with the developments in the financial markets. As this book shows, the requirement for specificity in book-entry securities is closely linked to loss allocation. If we decided that the rights that the investor has against its intermediary shall be property rights (as opposed to claims), then, loss allocation is crucial. Should the intermediary become insolvent and there be insufficient securities, the shortfall has to be distributed. Through segregation on designated accounts the level of protection for the investor can be increased. It can also be increased by a requirement that the intermediary should hold a sufficient number of securities corresponding to its customers’ securities. During the course of this work I have received valuable assistance from several persons, for which I am very grateful. First of all, I am indebted to Tekn. dr. Marcus Wallenbergs Stiftelse f¨or utbildning i internationellt industriellt f¨oretagande and F¨oretagsjuridik Nord & Co for the financial support they have provided. Justice Torgny H˚astad initially brought my attention to the issues discussed in Chap. 2 and Professor Sir Roy Goode, QC and Professor P
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