Mark Hsiao - Academia.edu (original) (raw)
Papers by Mark Hsiao
Social Science Research Network, Nov 15, 2011
ABSTRACT Contains legal and regulatory rules of the five main financial entities/markets: Hong Ko... more ABSTRACT Contains legal and regulatory rules of the five main financial entities/markets: Hong Kong, China, The United States, European Union and United Kingdom • Laws of each region are illustrated and compared. • Provides information on how these markets interact with each other to co-exist in the international financial market. • Covers the regulatory schemes in place to prevent the abuse of the banking system leading to another financial crisis. Efficiently guides the reader through legal principles related to banking practice and financial regulations in four, convenient parts. • Foundation of the markets – a view of what constitutes the markets. • International transaction fundamentals – basic questions and answers asked in the beginning of international transactions, e.g. conflict of laws. • Risk mitigation - examination of the important techniques and strategies essential to both international and domestic instruments. • Rules and regulations – discusses those which have an impact on the international transactions. International Banking and Finance laws: Principles and Regulations provides detailed information concerning the reforms of the banking and financial systems of the five (5) main active financial markets of (i) Hong Kong; (ii) China; (iii) United States; (iv) United Kingdom; and (v) European Union.
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The Journal of Business Law, 2015
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Social Science Research Network, Mar 1, 2009
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Social Science Research Network, Feb 1, 2012
ABSTRACT Since accession to the WTO, the liberalization of the Chinese planned economy to a marke... more ABSTRACT Since accession to the WTO, the liberalization of the Chinese planned economy to a market economy has evolved piecemeal. The risk management objective for the transition has been proceduralized in the form of regulation. The objective serves to benefit the infrastructure of the market economy. However, the objective of permitting financial institutions to engage in derivatives transactions as a means to manage risk may turn out to achieve the opposite. In practical terms, it is important to understand more clearly and precisely the manner in which the law regulates credit risk involving financial institutions, which may shape their lending attitude. In theoretical terms, such understanding paves the way for a consideration of the interrelationship between financial institutions and the capital market modernising the risk property from intangible to a potential tangible form. This article seeks to untangle these issues and consider the function that derivative regulation performs in the market economy infrastructure.
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Social Science Research Network, Mar 31, 2014
The paper attempts to reveal the policy and rationale behind the adoption of: (1) the floating ch... more The paper attempts to reveal the policy and rationale behind the adoption of: (1) the floating charge, and (2) the pledge over receivables in the Chinese Property Law of 2007. The discussion highlights the extent to which the floating charge applies to tangible and intangible forms of property. It is argued that its adoption from English common law is premised on the economic function of the floating charge. The use of pledge over receivables in China is also discussed. In a contextual analysis of the Chinese property law over receivables, it is argued that the operational mechanism is similar to the English equitable assignment. It is also argued that the Chinese pledge against a true sale from the regulatory objective of property law requiring the pledgee to return the surplus to the pledgor arose from the sale of pledged assets and that its registration has the functional effects of control and exclusion in the property jurisprudence.
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Lloyd's Maritime and Commercial Law Quarterly, 2018
A common law claim to recover the time value of money, the measure of a restitutionary claim for ... more A common law claim to recover the time value of money, the measure of a restitutionary claim for the award of interest at the rate of compound interest for the period of time that the money could not be used, has been recognised now for just over a decade. The focus of the law is whether the person in receipt of the money has an actual benefit or any form of benefit during the period of time in which the money was held in his possession
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Social Science Research Network, Oct 1, 2007
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Lloyd's Maritime and Commercial Law Quarterly, 2018
A common law claim to recover the time value of money, the measure of a restitutionary claim for ... more A common law claim to recover the time value of money, the measure of a restitutionary claim for the award of interest at the rate of compound interest for the period of time that the money could not be used, has been recognised now for just over a decade. The focus of the law is whether the person in receipt of the money has an actual benefit or any form of benefit during the period of time in which the money was held in his possession
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Social Science Research Network, 2008
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Capital Markets Law Journal, Dec 22, 2012
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Macroeconomics: Monetary & Fiscal Policies eJournal, 2015
As a fact of commercial reality, the time value of money in the common law restitutionary claim i... more As a fact of commercial reality, the time value of money in the common law restitutionary claim is assumed to be reflected by compound interest. Such assumption is a misperception, as compound interest is a value that is independent from money. The user principle, in measuring the time value, has failed to recognise this. However, that principle and time value are not mutually exclusive. The user principle should take into account the independent factor of time value. When money is contextualised in a functional approach, money could be treated for its internal value (use value) or it could be held as wealth (exchange value). According to what will be described as the “narrow version of the division of ideologies of property”, the thing is unique and is possessed and held for its own quality, while what will be described as the “broad version” treats the thing as having an exchange value and as being held as a representation of wealth. In contextualising money under the broad versio...
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In 2011, China revised its prudential regulation on the derivatives activities of financial insti... more In 2011, China revised its prudential regulation on the derivatives activities of financial institutions as a result of the global financial crisis. This paper considers how prudential regulation, supervision of conduct and requirements that limit risk-taking are used to achieve policy objectives in the context of regulating derivatives in China. This is particularly pertinent in the case of China, where financial institutions were formerly state-owned enterprises. These objectives are closely related to defining the legitimate purpose of contracts which are used to hedge default risk of credit assets owned by financial institutions. The paper also considers the legal aspects of the executory contract arising from the legal transplant of the ISDA Master Agreement 2002 into China in the form of NAFMII Documents, and the way in which the Contract Law 1999 (CL) and the Enterprise Bankruptcy Law 2006 (EBL) interact to offer a solution to the issue. Finally, the paper offers an explanati...
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Emerging Markets: Theory & Practice eJournal, 2009
Derivatives are an interesting and exciting financial instrument that thr Financial Times describ... more Derivatives are an interesting and exciting financial instrument that thr Financial Times described in March 1995 as being like a razor, the law on financial derivatives is by turns a progressive and complex topic. This book analyzes the relationship between the financial derivatives regulation, Basel II, and trusts and securitizations, and offers an additional complication by lookin ginto regulations in China. Although it analyzes the regulations that were issued by the China Banking Regulatory Commission, the interpretatio of these regulations is from an English law perspective. Since 2003, the laws in China have evolved rapidly in this area. The Provisional Administrative Rules Governing Derivatives Activities of Financial Institutions, 2004 (amendment in 2006) consolidates the management of derivatives activities in China. The 2006 amendment illustrates the evolution of financial derivatives from both legal and economical perspective. Rather than being an introduction to the leg...
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Regulation of Financial Institutions eJournal, 2013
This paper argues that the Central Counterparty (CCP) clearing system will be able to provide an ... more This paper argues that the Central Counterparty (CCP) clearing system will be able to provide an effective platform in dealing with counterparty risk and insolvency risk in OTC derivative transactions. First, this paper assesses how authorized institutions can enter an OTC derivative contract in Hong Kong (HK). Second, it illustrates the issues in the context of the ISDA Master Agreement in the global financial crisis and why a new regulatory method is required. Third, the paper explains the principal functions of the designated clearing and settlement system. The paper concludes that the proposed CCP clearing system aimed at minimizing the counterparty risk, and which arose from insolvency, shows a shift in regulatory policy (welfare policy) in OTC derivatives to the regulatory policy (systemic stability) of finality orders in a clearing system. In theoretical terms, it is important to understand the shift of policy in which derivative contracts are regulated in HK. In practical te...
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Comparative Law eJournal, 2011
A comparative study on Depository Insurance in the U.K., and the U.S, that transplant into Chines... more A comparative study on Depository Insurance in the U.K., and the U.S, that transplant into Chinese context.
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The paper looks at the resulting-trust analysis adopted by the Supreme Court in the case of Prest... more The paper looks at the resulting-trust analysis adopted by the Supreme Court in the case of Prest v Petrodel Resources and argues that there is an inclination to an objectively deductive measure of inferred intention of the transferor. The presumed ownership for the transferor is based neither on intention inconsistent with a trust nor on intention to make a gift by the transferor; rather, the inferred intention is based on the objective deduction of the respondent-company not using property consistent with its beneficial ownership. The shift to the context-based application of objective inference is hidden in an unarticulated application of presumption in contextual-neutrality.
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When the Banking Act was brought into force in early 2009, it legitimised governmental power to i... more When the Banking Act was brought into force in early 2009, it legitimised governmental power to interfere in the market-economy as well as providing a transparency of proceduralisation. The Act confers three bodies-the FSA, the Treasury and the Bank of England-with a power called the special resolution regime (SRR) to deal with the troubled banking industry. The special resolution regime provides a means to correct systemic risk in banking. The Act provides stablisation powers that consist of a transfer to the private sector, bridge banks and public ownership. The regulatory objectives are similar to those found in the Financial Services and Markets Act 2000, but with an additional attention to property rights under human rights.It adds the new banking insolvency and banking administration respectively to the existing Insolvency Act 1986. The exercise of such power recognises potential infringement of property rights in relation to property transfer. The statutory power argubly re-s...
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Social Science Research Network, Nov 15, 2011
ABSTRACT Contains legal and regulatory rules of the five main financial entities/markets: Hong Ko... more ABSTRACT Contains legal and regulatory rules of the five main financial entities/markets: Hong Kong, China, The United States, European Union and United Kingdom • Laws of each region are illustrated and compared. • Provides information on how these markets interact with each other to co-exist in the international financial market. • Covers the regulatory schemes in place to prevent the abuse of the banking system leading to another financial crisis. Efficiently guides the reader through legal principles related to banking practice and financial regulations in four, convenient parts. • Foundation of the markets – a view of what constitutes the markets. • International transaction fundamentals – basic questions and answers asked in the beginning of international transactions, e.g. conflict of laws. • Risk mitigation - examination of the important techniques and strategies essential to both international and domestic instruments. • Rules and regulations – discusses those which have an impact on the international transactions. International Banking and Finance laws: Principles and Regulations provides detailed information concerning the reforms of the banking and financial systems of the five (5) main active financial markets of (i) Hong Kong; (ii) China; (iii) United States; (iv) United Kingdom; and (v) European Union.
Bookmarks Related papers MentionsView impact
The Journal of Business Law, 2015
Bookmarks Related papers MentionsView impact
Social Science Research Network, Mar 1, 2009
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Social Science Research Network, Feb 1, 2012
ABSTRACT Since accession to the WTO, the liberalization of the Chinese planned economy to a marke... more ABSTRACT Since accession to the WTO, the liberalization of the Chinese planned economy to a market economy has evolved piecemeal. The risk management objective for the transition has been proceduralized in the form of regulation. The objective serves to benefit the infrastructure of the market economy. However, the objective of permitting financial institutions to engage in derivatives transactions as a means to manage risk may turn out to achieve the opposite. In practical terms, it is important to understand more clearly and precisely the manner in which the law regulates credit risk involving financial institutions, which may shape their lending attitude. In theoretical terms, such understanding paves the way for a consideration of the interrelationship between financial institutions and the capital market modernising the risk property from intangible to a potential tangible form. This article seeks to untangle these issues and consider the function that derivative regulation performs in the market economy infrastructure.
Bookmarks Related papers MentionsView impact
Social Science Research Network, Mar 31, 2014
The paper attempts to reveal the policy and rationale behind the adoption of: (1) the floating ch... more The paper attempts to reveal the policy and rationale behind the adoption of: (1) the floating charge, and (2) the pledge over receivables in the Chinese Property Law of 2007. The discussion highlights the extent to which the floating charge applies to tangible and intangible forms of property. It is argued that its adoption from English common law is premised on the economic function of the floating charge. The use of pledge over receivables in China is also discussed. In a contextual analysis of the Chinese property law over receivables, it is argued that the operational mechanism is similar to the English equitable assignment. It is also argued that the Chinese pledge against a true sale from the regulatory objective of property law requiring the pledgee to return the surplus to the pledgor arose from the sale of pledged assets and that its registration has the functional effects of control and exclusion in the property jurisprudence.
Bookmarks Related papers MentionsView impact
Lloyd's Maritime and Commercial Law Quarterly, 2018
A common law claim to recover the time value of money, the measure of a restitutionary claim for ... more A common law claim to recover the time value of money, the measure of a restitutionary claim for the award of interest at the rate of compound interest for the period of time that the money could not be used, has been recognised now for just over a decade. The focus of the law is whether the person in receipt of the money has an actual benefit or any form of benefit during the period of time in which the money was held in his possession
Bookmarks Related papers MentionsView impact
Social Science Research Network, Oct 1, 2007
Bookmarks Related papers MentionsView impact
Lloyd's Maritime and Commercial Law Quarterly, 2018
A common law claim to recover the time value of money, the measure of a restitutionary claim for ... more A common law claim to recover the time value of money, the measure of a restitutionary claim for the award of interest at the rate of compound interest for the period of time that the money could not be used, has been recognised now for just over a decade. The focus of the law is whether the person in receipt of the money has an actual benefit or any form of benefit during the period of time in which the money was held in his possession
Bookmarks Related papers MentionsView impact
Social Science Research Network, 2008
Bookmarks Related papers MentionsView impact
Capital Markets Law Journal, Dec 22, 2012
Bookmarks Related papers MentionsView impact
Macroeconomics: Monetary & Fiscal Policies eJournal, 2015
As a fact of commercial reality, the time value of money in the common law restitutionary claim i... more As a fact of commercial reality, the time value of money in the common law restitutionary claim is assumed to be reflected by compound interest. Such assumption is a misperception, as compound interest is a value that is independent from money. The user principle, in measuring the time value, has failed to recognise this. However, that principle and time value are not mutually exclusive. The user principle should take into account the independent factor of time value. When money is contextualised in a functional approach, money could be treated for its internal value (use value) or it could be held as wealth (exchange value). According to what will be described as the “narrow version of the division of ideologies of property”, the thing is unique and is possessed and held for its own quality, while what will be described as the “broad version” treats the thing as having an exchange value and as being held as a representation of wealth. In contextualising money under the broad versio...
Bookmarks Related papers MentionsView impact
In 2011, China revised its prudential regulation on the derivatives activities of financial insti... more In 2011, China revised its prudential regulation on the derivatives activities of financial institutions as a result of the global financial crisis. This paper considers how prudential regulation, supervision of conduct and requirements that limit risk-taking are used to achieve policy objectives in the context of regulating derivatives in China. This is particularly pertinent in the case of China, where financial institutions were formerly state-owned enterprises. These objectives are closely related to defining the legitimate purpose of contracts which are used to hedge default risk of credit assets owned by financial institutions. The paper also considers the legal aspects of the executory contract arising from the legal transplant of the ISDA Master Agreement 2002 into China in the form of NAFMII Documents, and the way in which the Contract Law 1999 (CL) and the Enterprise Bankruptcy Law 2006 (EBL) interact to offer a solution to the issue. Finally, the paper offers an explanati...
Bookmarks Related papers MentionsView impact
Bookmarks Related papers MentionsView impact
Bookmarks Related papers MentionsView impact
Emerging Markets: Theory & Practice eJournal, 2009
Derivatives are an interesting and exciting financial instrument that thr Financial Times describ... more Derivatives are an interesting and exciting financial instrument that thr Financial Times described in March 1995 as being like a razor, the law on financial derivatives is by turns a progressive and complex topic. This book analyzes the relationship between the financial derivatives regulation, Basel II, and trusts and securitizations, and offers an additional complication by lookin ginto regulations in China. Although it analyzes the regulations that were issued by the China Banking Regulatory Commission, the interpretatio of these regulations is from an English law perspective. Since 2003, the laws in China have evolved rapidly in this area. The Provisional Administrative Rules Governing Derivatives Activities of Financial Institutions, 2004 (amendment in 2006) consolidates the management of derivatives activities in China. The 2006 amendment illustrates the evolution of financial derivatives from both legal and economical perspective. Rather than being an introduction to the leg...
Bookmarks Related papers MentionsView impact
Regulation of Financial Institutions eJournal, 2013
This paper argues that the Central Counterparty (CCP) clearing system will be able to provide an ... more This paper argues that the Central Counterparty (CCP) clearing system will be able to provide an effective platform in dealing with counterparty risk and insolvency risk in OTC derivative transactions. First, this paper assesses how authorized institutions can enter an OTC derivative contract in Hong Kong (HK). Second, it illustrates the issues in the context of the ISDA Master Agreement in the global financial crisis and why a new regulatory method is required. Third, the paper explains the principal functions of the designated clearing and settlement system. The paper concludes that the proposed CCP clearing system aimed at minimizing the counterparty risk, and which arose from insolvency, shows a shift in regulatory policy (welfare policy) in OTC derivatives to the regulatory policy (systemic stability) of finality orders in a clearing system. In theoretical terms, it is important to understand the shift of policy in which derivative contracts are regulated in HK. In practical te...
Bookmarks Related papers MentionsView impact
Comparative Law eJournal, 2011
A comparative study on Depository Insurance in the U.K., and the U.S, that transplant into Chines... more A comparative study on Depository Insurance in the U.K., and the U.S, that transplant into Chinese context.
Bookmarks Related papers MentionsView impact
Bookmarks Related papers MentionsView impact
The paper looks at the resulting-trust analysis adopted by the Supreme Court in the case of Prest... more The paper looks at the resulting-trust analysis adopted by the Supreme Court in the case of Prest v Petrodel Resources and argues that there is an inclination to an objectively deductive measure of inferred intention of the transferor. The presumed ownership for the transferor is based neither on intention inconsistent with a trust nor on intention to make a gift by the transferor; rather, the inferred intention is based on the objective deduction of the respondent-company not using property consistent with its beneficial ownership. The shift to the context-based application of objective inference is hidden in an unarticulated application of presumption in contextual-neutrality.
Bookmarks Related papers MentionsView impact
When the Banking Act was brought into force in early 2009, it legitimised governmental power to i... more When the Banking Act was brought into force in early 2009, it legitimised governmental power to interfere in the market-economy as well as providing a transparency of proceduralisation. The Act confers three bodies-the FSA, the Treasury and the Bank of England-with a power called the special resolution regime (SRR) to deal with the troubled banking industry. The special resolution regime provides a means to correct systemic risk in banking. The Act provides stablisation powers that consist of a transfer to the private sector, bridge banks and public ownership. The regulatory objectives are similar to those found in the Financial Services and Markets Act 2000, but with an additional attention to property rights under human rights.It adds the new banking insolvency and banking administration respectively to the existing Insolvency Act 1986. The exercise of such power recognises potential infringement of property rights in relation to property transfer. The statutory power argubly re-s...
Bookmarks Related papers MentionsView impact