미국의 헤지펀드 규제에 대한 비판적 소고 -2006년 Goldstein v. SEC 판결 이후의 동향을 중심으로-
A Critical Analysis of the U.S. Hedge Fund Regulation Focused on the Tendency after Goldstein v. SEC
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Abstract
Due to their recent astronomical growth and profound influence on financial markets, hedge funds have attracted the attention of media, investors, and governmental regulators all around the world. In the U.S., hedge funds have traditionally been unregulated because they usually qualified for exemptions under four major federal securities laws. In response to this, the SEC passed a new Rule (the Hedge Fund Rule) which subject almost all hedges funds to its registration and regulation in 2004. However, in Goldstein v. SEC in 2006, the Court of Appeals for the D.C. Circuit vacated the Hedge Fund Rule as “arbitrary” and consequently re-exposed the markets to the unregulated dangers of hedge funds. After Goldstein v. SEC, the PWG released a report setting out principles and guidelines in order to provide regulators with guidance in their oversight of hedge funds in 2007. Shortly after the PWG’s release, the SEC published three releases resulting in the adoption of new final Rule 206(4)-8 under the Advisers Act, the proposal of three new rules (Rules 216, 507 and 509 under the Securities Act), and the proposed revision to the Rule 501(a). Through these activities, the U.S. authorities have tried to change the regulatory environment of hedge funds for more oversight and balance of information. In this context, the U.S. Senate and House of Representatives respectively introduced four bills designed to increase the level of regulation of hedge funds and their advisers / managers. However, the above measures seem to be ineffective in some aspects and the measures could be struck down when they were involved to enforcement actions, as in Goldstein v. SEC although authorities can implement effective actions for hedge funds-related regulations. Thus, it would be desirable for the Congress to directly regulate activities with respect to hedge funds. In this context, this article recommends the Congress to amend the Advisers Act to include the Hedge Fund Rule’s interpretation of “client” so that the Congress can effectively and simply regulate almost all hedge funds. In addition, the Congress would efficiently protect smaller and unsophisticated investors from hedge funds’ potential risk if it determined an eligible wealth and financial sophistication of each hedge fund investor in law.
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