Information Disclosure, Risk Trading and the Nature of Derivative Instruments: From Common Law Perspective

本文之主要目的在探討於英美法下衍生性商品交易之締約前資訊揭露義務問題。僅管於英美法下目前尚無一般性之締約前揭露義務,本文將衍生性商品之揭露問題與證券法與保險法之揭露義務相比較。本文以為,證券法下之強制資訊揭露義務尚無法延伸至非證券相關之期貨契約;並且,僅管衍生性商品與保險相似,但大部分情形尚欠缺類似保險契約之資訊不對稱問題,因此尚非另一形態之最大善意契約。然而,在尚難建立一般性之締約前資訊揭露義務之前提下,本文以為濫用市場以及內線交易係可作為解決於風險交易市場中資訊問題之基礎。

This paper explores issues of pre-contractual disclosure for derivative instruments, of which this paper describes as contracts to trade risks, in the UK and US. While there is no general duty of disclosure in common law, this paper focuses on whether there should be a duty of disclosure for derivative instruments by comparing with securities law and insurance law. This paper argues that mandatory disclosure in the securities market cannot be extended to exchange-traded futures contracts (save where securities are involved) because of the nature of securities. In addition, this paper argues that derivative instruments, though similar to insurance in certain regards, lack the inequality of knowledge issue underlying contracts of insurance; and thus, derivative instruments should not be seen as another type of contract uberrimae fidei. However, while we cannot establish a duty of disclosure by treating derivative instruments like securities or insurance, we argue that the concepts of market abuse and insider dealing might provide a better basis for addressing information issues in the risk trading market.