本份文档包含：关于该选题的外文文献、文献综述一、外文文献标题: Online brokers lead the way for French internet finance作者: Caffard, Christophe期刊名称: International Financial Law Review卷: 20；期: 3；页: 20-24Online brokers lead the way for French internet finance1 Regulated brokersRegulated brokers are legal entities which have an investment services licence and are subject to the prudential regulations of the Comite de Reglementation Bancaire et Financiere (CRBF) and the Conseil des Marches Financiers (CMF).* Choice of legal form: regulated brokers are not required to be incorporated in a specific legal form; however, under article 13 of the MAF Law, the CECEI checks whether the legal form of the brokerage company is appropriate for providing investment services. In practice, any type of commercial company is admitted: societes de capitaux (limited companies) or societes de personnes (partnerships). The formalities of share transfer, tax and the scope of liability of a company's management will be relevant factors to the choice of legal form.* Application for an investment services licence from the CECEI: the most important part of the application is the description of the investment services, and a business plan including prospective financial statements for the following three years. The CMF will check whether the business plan is consistent with the investment services licence requested by the broker. The CECEI will ensure that the applicant's own initial funds are consistent with the business plan.The scope of the investment services licence is variable and covers one or more ofthe following investment services:Reception and transmission of orders to another investment services provider on behalf of investors, for execution. This is the core investment service provided by thebrokerage companies and, as such, a licence to provide this service is the minimum required for a brokerage company. Brokerage companies may request an investment services licence limited to the reception and transmission of orders. In this case, there will need to be a tripartite agreement between the investor, the broker and an investment services provider authorized to execute the orders of the investor. These single-- licensed brokerage companies are mere intermediaries remunerated by a commission paid by the investors. They are not entitled to benefit from the European passport under the ISD.Execution of such order other than for own account. This is defined as the execution of orders on behalf of a customer under the provision of an agency or a brokerage agreement. The brokerage company authorized to execute orders received from the investors offers a larger range of services with more potential. The broker with an investment services licence covering the execution of orders will be in charge of executing the final orders on the regulated markets, provided it is has been authorized as a market member. Unauthorized brokerage companies transmit the orders they have received to authorized market members. Authorized brokerage companies may offer investors a quasi-immediate execution of orders on the markets.Placing. This is the search for subscribers or purchasers on behalf of the issuer or seller of financial instruments. According to the CMF, in the case of a public offer of listed financial instruments placed by a market firm (for example on the Paris Stock Exchange or Nouveau March&), an online broker, which sells financial instruments online, is deemed to be providing his client with a reception-transmission of orders service and not a placing service. A placing service requires the broker to comply with capital adequacy ratios whenever it is associated with an underwriting commitment.Account-keeping, custody and clearing. These are not considered to be investment services, but assimilated services restricted to credit institutions or investment firms, and are subject to the CMF's General Regulations.CRBF regulators. CBF regulations subject brokerage companies to the following requirements: the minimum issued and paid-up share capital depends on the nature and number of investment services carried out; brokerage companies who offeraccount-keeping, custody and reception, transmission and execution of orders must have a minimum paid-up share capital of Ffrl million (about $160,000). This is reduced to Ffr350,000 when the brokerage company is not involved in account-keeping or custody services;* the minimum shareholder funds must be equal to the higher of- 25% of the overheads of the previous year, or overheads forecast in the business plan; and- the aggregate client positions divided by 150;* internal compliance procedures must be established; and* the brokerage company must comply with certain ratios relating to solvency and large exposure.Regulated brokers are also subject to the CMF's rules on the appointment of a compliance officer, information and advice for clients, mandatory clauses to be inserted in clients' agreements, professional cards required from certain employees and reporting requirements to the CMF.2 Non-regulated brokersNon-regulated brokers are sole agents appointed by an investment firm authorized by the CECEI, or an appropriate authority of an EU member state. Sole agents are nonregulated entities and are neither subject to the minimum capital and shareholder funds requirements nor to the CMF/CRBF regulations.Sole agents enter into investment services agreements with clients on behalf and in the name of their principal, who must be a regulated investment services provider. These agreements are binding on who is, as a general rule, solely liable visa-vis clients and the supervisory authorities (the CMF and/or the Bank of France). In this respect, the incorporation and activities of a sole agent brokerage is simpler, safer and cheaper than for regulated brokers. However, sole agents are fully dependent on the principal since they are not authorized to be appointed by more than one investment firm and if, for any reason, the mandate is cancelled or terminated, sole agents must stop any brokerage activity, unless they get a new mandate or are granted an investment service licence by the CECEI. Sole agents do not benefit from theEuropean passport under the ISD, as they are not considered to be investment firms. It is important to note that the sole agent does not own the brokerage business, since clients simply have a contractual relationship. This is why sole agent status is generally more suitable when the principal and agent are companies within the same group or with long-term common interests.French branches of EU investment service providersThe licence for an EU investment service provider allows it to set up branches in France, subject to authorization from the authorities of its home state.This procedure is much simpler and quicker than an application for an investment services licence with the CECEI. The other advantages of operating in France in this way are that a branch is not required to show an endowment capital in France, and that prudential ratios of the home state apply to the French branch.As a general rule under the ISD, the home state authorities retain jurisdiction over the branch in the home state, with the exception of the public policy rules, which will apply to the branches. In France, the regulation referred to below is considered to be a public policy rule with which French branches operating online brokerage services in France must comply.Regulations applicable to brokerage servicesThe offer of brokerage services and the provision of brokerage services are regulated by reference to the nature of the financial instruments offered online.The offer of brokerage servicesAdvertising / marketingThe advertising of financial instruments is heavily regulated when advertisements are included in a public offering process. In this case the advertisement is in the form of a prospectus, which must comply with COB regulations, which provide detailed requirements regarding the form and content of the prospectus. As a general rule, any other form of advertising in a public offering process must refer to the prospectus approved by the COB.* The marketing in France of financial instruments listed on a foreign market must comply with COB regulation no. 99-04. This provides that, before anytransaction, the broker must send his clients an information memorandum presenting the foreign market and the financial instruments dealt on that market. This may be sent to clients via the internet.Any advertising of operations on the foreign market must include certain mandatory information, including the identification of the legal entity which is soliciting French clients.As a general rule, the advertising of collective investment schemes is subject to regulation by the COB, which ensures that any advertisement is consistent with the notice d'information and with regulations applicable to collective investment schemes generally. SICA Vs and FCPs subject to COB regulation no. 89-02 may not be marketed until the management company has been notified of the COB's approval.However, any direct or indirect solicitation to invest in collective investment schemes subject to the simplified COB approval procedure (less formal because the scheme only targets professional investors), must contain a disclaimer informing investors that any subscription or transfer of shares or units, is restricted to qualified investors or investors whose initial investment is at least euro500,000 ($457,000) or (depending on the scheme) euro,30,000. The disclaimer must also mention that these collective investment schemes are not approved by the COB and adhere to specific investment rules.* The COB has issued guidelines no. 99-02 relating to the marketing and sale via the internet of i) collective investment scheme units or shares; and ii) discretionary mandates. These guidelines are not binding. Its purpose is to clarify certain aspects of the COB regulations which apply to collective investment schemes (management company and depositary) and to any information on financial instruments disclosed during a public offering. The COB is preparing new guidelines relating to financial advice and information disseminated via the internet.* COB regulations and recommendations are applicable to online brokers whenever financial instruments (listed or otherwise) are offered to the public.* Under the CMF's regulations, regulated brokers are bound to inform and advise their clients after having assessed their financial knowledge.* In any event, there is a prohibition on advertising units of investment funds which invest in futures markets (Article 23 of the law of 23/12/1988), or to market non-OECD financial instruments in France without the prior consent of the French Ministry of Economy.3 Canvassing lawUnder the law of 1972 relating to financial canvassing, canvassing consists of contacting potential clients by way of visits, letters, circulars and telephone calls to: i) induce them to subscribe, purchase, exchange or sell securities or participate in such operations; and ii) offer services and advice on a regular basis.The law of 1972 is not adapted to the internet and legislative reform in this field is awaited. The CMF, the COB and the CECEI consider that offers to provide e-banking and e-brokerage services would be treated in the same manner as offers of services or advice by way of letters, circulars or telephone calls.It is difficult to determine which information systems or practices will qualify as financial canvassing (and therefore regulated) or merely as financial advertising (and therefore permitted); the CECEI and the COB have not yet given any clear guidance on this question.According to a discussion and research paper on internet risk released by the Commission Bancaire (the supervisory arm of the Bank of France) in July 2000, advertising messages, including a link to the seller's site (in the case of banks) displayed on general purpose websites, or posting information, advice or offers on sites or news groups in the client's country, would be viewed as financial advertising and would not constitute financial canvassing.The Bank of France takes the view that in these examples there is no active solicitation of clients since they access the financial advertisements deliberately and of their own accord, as if visiting the premises of a bank.In contrast with these passive marketing techniques, sending messages to email addresses would be equated with sending letters and as such would qualify as canvassing, according to the Bank of France.In any case, before soliciting French customers, the brokerage company mustnotify the Bank of France (CECEI) of its intention to solicit such customers; and employees of the brokerage company must be granted a specific solicitation card by the French authorities. Any breach of this rule would constitute a criminal offence.4 Public offering regulationsPublic offering regulations are applicable whenever financial instruments are issued or transferred to the public in France, using advertising, canvassing, credit institutions or investment service providers. Public offerings are heavily regulated and are subject to a number of requirements, including prior approval by COB of a prospectus, filing with the Commercial Registry of the French translation of the issuer's constitutional documents, publication of a legal notice in the BALO and continuing information obligations.The public offering regulations apply to offers of both listed and unlisted financial instruments. In this respect, online brokers offering listed shares to the public are subject to public offering regulations and in particular COB Regulation no. 99-08, under which the online broker must comply with the following disclosure and advertising rules:* the preparation of a simplified prospectus which must be approved by the COB and made freely available to the public; and * any advertisement must refer to the simplified prospectus and specify how to obtain a copy.A private placement (as opposed to a public offering) is defined as the issue or transfer of financial instruments to qualified investors or to a restricted circle of investors.In order to ensure a private placement via the internet, it is necessary to restrict electronic access to the broker's website by passwords granted solely to qualified investors. It is also mandatory under COB Regulation No. 99-09 that a private placement disclaimer be displayed on the webpages of the broker's website. The disclaimer must mention that:* offering materials (advertisements, information memoranda, etc) have not been submitted to the COB for its approval;* qualified investors must participate in the private placement for their ownaccount;* any offer to the public of the financial instruments subscribed or purchased by the qualified investors in the private placement would be subject to public offering regulations; and* if the investors are members of a restricted circle of more than 100, they must certify that they are associated with the management of the issuer on a professional or a personal basis. The provision of online brokerage servicesRules of conduct applicable to online brokers Regulated brokers and principals of non-regulated brokers are investment service providers and are subject to the rules of conduct set out in its General Regulation. The CMF has issued General Decision no. 99-07 providing regulations and guidelines. It implements the CMF rules of conduct.As a general rule, the message must clearly identify the issuer of a message offering the service of reception or transmission of orders. In particular, the website must display the legal status of the broker and the investment service it is authorized to provide. Regulated brokers and non-regulated brokers must be clearly distinguished, and the latter must disclose the identity of their investment service provider whom they are asking as agent.If the online broker is not in charge of account-keeping and custody services, whoever is must be clearly identified. Before entering into a contract with any new client, theonline broker must verify the client's identity and domicile by requesting the following documents:a photocopy of a valid official identity document (passport, identity card, driving licence);* bank details; and* written evidence of address.The broker must send confirmation that he has received these documents and, in doing so, check the client's address. These formalities and verifications may not be carried out via the internet.Once the identity and domicile ofthe new client have been checked, the onlinebroker can provide investment services to his client where:* the client has signed an agreement relating to the evidential rules and procedures applicable to the reception of orders via the internet;* the funds or financial instruments have been credited to the client's account. This does not apply to the broker if it is not the account keeper or the custodian;* the broker has checked that its client may receive the information on the relevant financial instruments and risks via the internet; and* the broker must ensure that the client receives in advance more detailed information regarding operations involving financial instruments which do not correspond to the client's regular dealings.In cases where the broker is responsible for account-- keeping, it should operate an automated system monitoring the accounts of the client and freezing any order in the event of insufficient provision or margin cover.The CMF also recommends that this automated system should freeze any order sent by the client which does not comply with market regulations.Compliance with these rules of conduct raises problems when the broker's website is outsourced to a third party, which happens frequently. The authorities are concerned that brokers may lose control over the operation of their websites and would be unable to take any operational responsibility, while remaining liable. This is why the Commission Bancaire is considering imposing an obligation on investment firms and credit institutions providing online financial services, to monitor their outside internet service providers and/or software companies.5 Regulation of contracts entered Into by online brokersContracts with clients These are subject to the CMF regulations, and in particular to CMF General Decision no. 98-28 relating to the mandatory clauses which must be included in agreements entered into with clients. It came into force in June 2000 and any existing contract is required to be duly amended.The agreements must contain a clause setting out the identity of the client and its legal capacity. In particular, qualified investors must be identified among other legal entities as well as the investment services provided. The categories of financialinstruments and financial services must also be stated in the agreement. This is important since it is taken into account when determining whether the broker has properly assessed the skills of his client. In this respect, it is recommended that high-risk speculative and/or complex operations, such as operations on futures markets, be restricted to informed clients or to qualified investors.In practice, the online broker asks new clients to answer a questionnaire which acts as proof that the broker has fulfilled its obligations to assess the skills ofits client.The agreement must contain a confidentiality clause which is binding. In this respect, it is useful for the online broker to provide exceptions to this obligation so that information on clients can be centralized within a member ofthe same group of companies, or accessed by an outside software company.Contracts with other investment services providersThe number of contracts entered into by brokers with other investment service providers depends on the scope of its licence. Non-regulated brokers must enter into an exclusive mandate with a licensed investment service provider.Regulated brokers which are not market members or not licensed for the execution of orders must conclude a transmission of orders agreement with market members or other investment service providers.These contracts are not subject to the CMF General Decision no. 98-28 or to other specific regulations, with the exception of.* clearing agreements;* when a client gives a broker with whom he has an account an order for transmission to another non-resident institution with comparable status, the broker is forbidden from being remunerated in the form of hard commission (a commission rebate) by the institution to which the order has been transmitted; and* a non account-keeping broker receiving orders from a client for transmission to another institution may be remunerated in the form of a hard commission, provided that the broker informs the client when entering into contractual relations (and thereafter annually) of the terms and conditions and amount of the hard commission.Contracts entered into with software companiesThese contracts might at first appear to have regulatory implications. However, recent financial regulations applicable to e-- brokerage now have a direct bearing on implications for IT agreements.In practice, brokers must ensure that the operation of the website and the reception and transmission of software orders complies with the CMF General Decision and any other applicable regulations applicable. The upgrade clause of the IT agreement entered into with the software company should address the question of the software being upgraded in the event of changes to applicable regulations.It is also recommended that any outsourcing agreement contains a clause which sets out how the online broker monitors the operation of the outsourced website.二、文献综述互联网金融发展文献综述摘要互联网金融的快速发展成为近年来中国经济金融领域备受瞩目的重要现象，国内学术界讨论互联网金融的文献数量也急速膨胀，但目前尚缺少对与互联网金融相关的各类文献进行全面梳理的综述类论文。