I have been asked to make a few remarks regarding Arthur Laby's presentation, but, as everyone knows, it is very hard to discuss anything with the Securities Exchange Commission (“SEC”). As far as I can see, the conceptual interplay of ‘disclosure versus substantive rules,‘ or rather — in its historical order — ‘substantive rules versus disclosure,‘ has not yet been widely discussed in Europe. Let me first set out what I mean by the two approaches as there are probably differences of definition between the United States and Europe, and, indeed, my understanding differs a bit from the one presented by my colleague, Mr. Laby. Let me try a rough definition: the substantive rule concept encompasses not only rules for disclosure of sufficient information to the client, but also requires that intermediaries owe further duties to the client in good faith. The client must be ‘tutored,‘ even though the degree of such tutoring is subject to a variety of opinions.
The Concept of Disclosure Within European Financial Institutions,
23 Fordham Int'l L.J. S41
Available at: http://ir.lawnet.fordham.edu/ilj/vol23/iss6/4