Bibliographie sélective OHADA

The definitions of ‘insider’ and ‘inside information’ in the Financial Markets Act 19 of 2012 are, as is the case with their international counterparts, central to the Act’s regulation of insider trading. It has long been recognised, however, that those definitions, inherited from repealed companies and market abuse legislation, are cumbersome and counter-intuitive. This state of affairs obtains as the South African legislature has failed to undertake the most fundamental enquiry in formulating a coherent regulatory scheme aimed at prohibiting supposedly wrongful conduct: identifying a single theory of wrongfulness upon which to base its prohibitions. Instead, the definitions include elements of all possible regulatory bases for insider trading, including those having as their object the protection of proprietary rights in information and born out of the fiduciary doctrine. It is argued that the definitions, part of legislation aimed at addressing a financial market wrong, should be formulated with reference to the rights and obligations at play in those markets and the legislature’s objectives for those markets. A proposal is made in that regard.