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See detailCan the Plight of the European Banking Structural Reforms be a Blessing in Disguise?
Nabilou, Hossein UL

in European Business Organization Law Review (in press)

One of the problems perceived to be at the heart of the global financial crisis was an amalgamation of various commercial and investment banking activities under one entity, as well as the ... [more ▼]

One of the problems perceived to be at the heart of the global financial crisis was an amalgamation of various commercial and investment banking activities under one entity, as well as the interconnectedness of the banking entities with other financial institutions, investment funds, and the shadow banking system. This paper focuses on various measures that aim to structurally separate the banking entities and their core functions from riskier financial activities such as (proprietary) trading or investments in alternative investment funds. Although banking structural reforms in the EU, UK, and the US have taken different forms, their common denominator is the separation of core banking functions from certain trading or securities market activities. Having reviewed the arguments for and against banking structural reforms and their varieties in major jurisdictions, including the EU, UK, US, France, and Germany, the paper argues that a more nuanced approach to introducing such measures at the EU level is warranted. Given the different market structures across the Atlantic and the lack of conclusive evidence on the beneficial impact of banking structural reforms, the paper concludes that the withdrawal of the banking structural reforms proposal by the European Commission has been a prudent move. It seems that in the absence of concrete evidence, experimenting with structural reforms at the Member-State level would be less costly and would provide for opportunities for learning from smaller mistakes that could pave the way for a more optimal approach to introducing banking structural reforms at the European level in the future. [less ▲]

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See detailCentral Banks and Regulation of Cryptocurrencies
Nabilou, Hossein UL; Prüm, André UL

in Review of Banking & Financial Law (in press)

This paper explores the interface between central banks and cryptocurrencies. Focusing on the European Central Bank (ECB), it identifies the potential threats that the rise of cryptocurrencies would pose ... [more ▼]

This paper explores the interface between central banks and cryptocurrencies. Focusing on the European Central Bank (ECB), it identifies the potential threats that the rise of cryptocurrencies would pose to the basic and ancillary tasks of the ECB, in particular, its monetary policy operations and the exercise of its supervisory functions over credit institutions and payment systems. The paper finds that cryptocurrencies can potentially have both direct – through their potential impact on the price stability and monetary policy, and central banks’ monopoly over issuing base money – and indirect effects on central banks, mainly through the institutions and systems that fall under the ECB’s scope of competence. To address the challenges posed by cryptocurrencies, the ECB may take both legal (including supervisory and oversight) measures and non-legal (or technical) measures. With respect to technical measures, the ECB - to the extent falling within the scope of its competence - may focus on improving the efficiency of existing payment systems and addressing the existing frictions in market infrastructures to indirectly affect the cryptocurrency markets. Alternatively, it can venture into issuing Central Bank Digital Currency (CBDC). Regarding legal measures, central banks could envisage regulating cryptocurrencies either directly or indirectly. However, as the most significant potential impact of cryptocurrencies on central banks is likely to be indirect through the impact of cryptocurrencies on the banking and payment systems, and given the limitations on the ECB’s mandate and its regulatory and supervisory tools, it is apposite for the ECB to consider using indirect strategies and tools to influence cryptocurrency markets. This indirect approach can be implemented through the ECB’s existing supervisory and oversight powers over the banking and payment systems. This paper specifies the direct and indirect measures and assesses their merits in addressing the concerns about cryptocurrencies. [less ▲]

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See detailIn CCP We Trust ... Or Do We? Assessing the Regulation of Central Clearing Counterparties in Europe
Nabilou, Hossein UL; Asimakopoulos, Ioannis UL

in Capital Markets Law Journal (2019), 14(3),

As part of financial market infrastructures, central counterparties (CCPs) have long been deemed systemically important and are likely to gain in importance due to the regulatory developments mandating ... [more ▼]

As part of financial market infrastructures, central counterparties (CCPs) have long been deemed systemically important and are likely to gain in importance due to the regulatory developments mandating central clearing for an increasing number of financial products. This paper focuses on the regulation as well as the recovery and resolution of CCPs in Europe. The existing CCP regulatory framework consists of ex-ante measures, including, among others, capital and liquidity requirements, initial and variation margins, and loss sharing mechanisms. In addition, the European proposal for the recovery and resolution of CCPs (the Proposal) contains several ex-post regulatory measures mainly in the form of rules for recovery and orderly resolution. Having studied the prudential regulatory measures for CCPs contained in the European Market Infrastructure Regulation and the ex-post recovery and resolution measures of the Proposal, this paper puts a spotlight on the specific shortcomings of the existing and proposed rules, in particular in terms of misaligned incentives, externalities, collective action problems, and certain practical impediments, and concludes that it would be misguided to inordinately rely on ex-post measures. Highlighting the limitations of the recovery and resolution mechanisms, this paper proposes that given the systemic importance of CCP functions, it is critical to improve the ex-ante measures whose objective is to prevent the failure of a CCP, rather than ex-post measures, which kick in after its failure. Accordingly, recommendations for making such improvements are proposed. [less ▲]

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See detailThe Dark Side of Licensing Cryptocurrency Exchanges as Payment Institutions
Nabilou, Hossein UL

in Law and Financial Markets Review (2019), 13(4),

The ultimate objective of cryptocurrencies is to become a payment system substituting, complementing, or competing with the existing conventional fiat-based payment systems. Irrespective of whether such ... [more ▼]

The ultimate objective of cryptocurrencies is to become a payment system substituting, complementing, or competing with the existing conventional fiat-based payment systems. Irrespective of whether such an objective could be accomplished, the functional similarities between certain cryptocurrencies and fiat money has persuaded competent authorities of certain EU Member States to grant payment institution licenses to cryptocurrency exchanges. At first blush, granting such an authorization would seem to be a step forward as it would bring otherwise unregulated cryptocurrency exchanges within the scope of the existing payment regulatory framework. However, such authorization not only faces major legal challenges related to the definition of a payment institution but also introduces new lesser-known risks. Aside from the semantic and definitional issues, authorizing cryptocurrency exchanges as payment institutions can bring activities and instruments - with a different risk profile than that of conventional payment instruments - within the scope of payment systems. It appears that such risks embedded in those instruments cannot be fully addressed under the existing payment laws. This paper studies two examples of unattended risks under the cryptocurrency-exchange-as-payment institution regime. The first risk concerns the use of untethered, non-convertible, illiquid and volatile settlement assets for settlement purposes in cryptocurrency exchanges. The second risk concerns the risks associated with the finality of settlements arising from the use of probabilistic finality in some of the most popular cryptocurrency blockchains. Given that in the conventional payment institutions central bank money or commercial bank money is primarily used as the settlement asset, such risks have already been addressed or otherwise taken for granted, however, in cryptocurrency exchanges, the risks involved in the settlement of liabilities with an illiquid and volatile asset relying on probabilistically final settlement mechanism cannot be dealt with by the existing applicable regulations. As the risks cannot be addressed within the current European payment regulation framework, an alternative policy option would be granting a special license to cryptocurrency businesses or introducing ring-fencing mechanism to protect the conventional payment systems from the risks of cryptocurrency payments. [less ▲]

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See detailHow to Regulate Bitcoin? Decentralized Regulation for a Decentralized Cryptocurrency
Nabilou, Hossein UL

in International Journal of Law and Information Technology (2019)

Bitcoin is a distributed system. The greatest dilemma it poses to the current legal and regulatory systems is that it is hardly possible to regulate a distributed network in a centralized fashion as ... [more ▼]

Bitcoin is a distributed system. The greatest dilemma it poses to the current legal and regulatory systems is that it is hardly possible to regulate a distributed network in a centralized fashion as decentralized permissionless blockchain-based cryptocurrencies are antithetical to the existing centralized structure of monetary and financial regulation. By shifting the policy debate from whether to regulate bitcoin and other decentralized cryptocurrencies to how to regulate them, this paper proposes a more nuanced policy recommendation for regulatory intervention in the cryptocurrency ecosystem. This policy approach relies on a decentralized regulatory architecture that is built upon the existing regulatory infrastructure and makes use of the existing as well as the emerging middlemen in the industry. It argues that instead of regulating the technology or the cryptocurrencies at the code or protocol layer, which might not be desirable, even if feasible, the regulation should target the applications and use-cases of cryptocurrencies. Such a regulatory strategy can best be implemented through directing the edicts and interdictions of regulation towards the middlemen, and can be enforced by the existing financial market participants and traditional gatekeepers such as banks, payment service providers and exchanges, as well as new emerging participants, such as large and centralized node operators and miners that are likely to replicate the functions of the traditional gatekeepers. [less ▲]

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See detailIgnorance, Debt and Cryptocurrencies: The Old and the New in the Law and Economics of Concurrent Currencies
Nabilou, Hossein UL; Prüm, André UL

in Journal of Financial Regulation (2019), 5(1), 1-35

Cryptocurrencies are expected to have a significant impact on banking, finance, and monetary systems. Due to uncertainty as to the possible future trajectories of the evolving cryptocurrency ecosystem ... [more ▼]

Cryptocurrencies are expected to have a significant impact on banking, finance, and monetary systems. Due to uncertainty as to the possible future trajectories of the evolving cryptocurrency ecosystem, governments have taken a relatively hands-off approach to regulating such currencies. This approach may be justified within the theoretical information-economics framework of this paper, which draws parallels between the information economics of money and quasi-money creation within the current central banking, commercial banking and shadow banking systems with that of the cryptocurrency ecosystem. In particular, drawing lessons from the literature on the role of information in creating ‘safe assets’, this paper finds that by building on symmetric (common) knowledge as to the inner workings of the Bitcoin Blockchain - though in a different way - bitcoin possesses a degree of endogenous information insensitivity typical of safe assets. This endogenous information insensitivity could support bitcoin’s promise of maturing into a viable store of value and a niche medium of exchange. This finding should not be overlooked in the policy discussions for potential future regulatory interventions in the cryptocurrency ecosystem. [less ▲]

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See detailCentral Bank Digital Currencies: Preliminary Legal Observations
Nabilou, Hossein UL

in Journal of Banking Regulation (2019), forthcoming

Breakthroughs in financial technology (fintech), ranging from early coins and banknotes to card payments, e-money, mobile payments, and more recently, cryptocurrencies portend transformative changes to ... [more ▼]

Breakthroughs in financial technology (fintech), ranging from early coins and banknotes to card payments, e-money, mobile payments, and more recently, cryptocurrencies portend transformative changes to the financial and monetary systems. Bitcoin (BTC) and cryptocurrencies bear a significant resemblance to base money or central bank money (CeBM). This functional similarity can potentially pose several challenges to central banks in various dimensions. It may pose risks to central banks’ monopoly over issuing base money, to price stability, to the smooth operation of payment systems, to the conduct of monetary policy, and to the stability of credit institutions and the financial system. From among several potential policy responses, central banks have been investigating and experimenting with issuing central bank digital currency (CBDC). This paper investigates CBDC from a legal perspective and sheds lights on the legal challenges of introducing CBDC in the euro area. Having studied the potential impact of issuing CBDC by the European Central Bank (ECB), particularly on the banking and financial stability, on the efficient allocation of resources (i.e., credit), as well as on the conduct of monetary policy, the paper concludes that issuing CBDC by the ECB would face a set of legal challenges that need to be resolved before its launch at the euro area level. Resolving such legal challenges may prove to be an arduous task as it may ultimately need amendments to the Treaty on the Functioning of the European Union (TFEU). [less ▲]

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See detailShadow Banking in Europe: Idiosyncrasies and their Implications for Regulation
Nabilou, Hossein UL; Prüm, André UL

in European Journal of Risk Regulation (2019)

This paper studies the specificities of the regulation of shadow banking in Europe. It argues that the idiosyncratic features of the EU shadow banking sector call for a different (or indigenized ... [more ▼]

This paper studies the specificities of the regulation of shadow banking in Europe. It argues that the idiosyncratic features of the EU shadow banking sector call for a different (or indigenized) regulatory approach from that of the US. It highlights striking differences between the EU and the US shadow banking sectors based on both market structure and legal micro-infrastructure of the shadow banking sectors in these two jurisdictions. These different institutional and legal infrastructures of the shadow banking activities, instruments, and entities, as well as the different trajectories in the evolution of the banking and shadow banking sectors in terms of business models, size and composition of actors and transactions can be the driving force behind the differential regulatory treatment of shadow banking in the EU and the US. In highlighting the differences between shadow banking across the Atlantic, this paper focuses on the repo markets, as the main instruments and activities that play a significant role in credit intermediation outside the regulatory perimeter of the traditional or regular banking system. It then discusses one specific segment of the shadow banking entities, i.e., Money Market Funds (MMFs), and highlights the fundamental differences in the structure, functioning, and existing regulatory treatment of the MMFs in the US and the EU. The paper concludes that the market structure, business models, as well as legacy legal and regulatory frameworks of shadow banking (as well as banking) display substantial differences in the US and the EU. The findings in this paper rally against one-size-fits-all approaches to addressing the problems of the shadow banking system worldwide and recommends differentiated and more nuanced regulatory approaches to regulating shadow banking across the Atlantic. By implication, any adoption of the US regulatory framework or recommendations of international fora for the shadow banking sector by the EU regulatory authorities should not overlook these differences. [less ▲]

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See detailRepo Markets Across the Atlantic: Similar but Unalike
Wu, Songjiwen; Nabilou, Hossein UL

in European Business Law Review (2018)

This paper sketches the key differences in the EU and the U.S. repo markets to inform the policy recommendations for harmonization and standardization of rules governing repo contracts put forward by the ... [more ▼]

This paper sketches the key differences in the EU and the U.S. repo markets to inform the policy recommendations for harmonization and standardization of rules governing repo contracts put forward by the international financial fora and standard setters. In so doing, it examines three main aspects of the repo markets. First, it highlights the differences in the legal framework governing repo markets, such as legal construction of repo contracts, special insolvency treatment, and legal treatment of the reuse of collateral. Second, it discusses the composition, structure, and organization of the repo markets, such as differences in the composition of repo participants, the maturity of repos and the composition of the underlying collateral in repo contracts. Finally, it investigates the differences in the issues related to the market infrastructure of repo markets such as differences in the clearing and collateral management stages. The main finding of this paper is that in spite of significant efforts to standardize and harmonize repo markets as well as their applicable legal framework in the past, there remains significant differences across the Atlantic. Such differences in the legal framework, composition, structure, and organization of repo markets and repo markets infrastructure would require differential and more nuanced approach to regulating repo markets than what is pursued by the current international financial standard setters. [less ▲]

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See detailThe Law and Economics of Shadow Banking
Pacces, Alessio M.; Nabilou, Hossein UL

in Chiu, Iris H.; MacNeil, Iain (Eds.) Research Handbook on Shadow Banking: Legal and Regulatory Aspects (2018)

This essay discusses the economic case for regulating shadow banking. It asks three questions. First, what is shadow banking? Second, why shadow banking should be regulated. Third, how to regulate shadow ... [more ▼]

This essay discusses the economic case for regulating shadow banking. It asks three questions. First, what is shadow banking? Second, why shadow banking should be regulated. Third, how to regulate shadow banking efficiently. Although shadow banking is, like banking, based on maturity transformation, no definition of shadow banking is ideal for regulatory purposes. Focusing on systemic risk, we take an instrument-based approach and define banking as leveraging on collateral to support liquidity promises. For regulation to be effective, however, this definition must be combined with other entity-based approaches. The economic rationale for regulating shadow banking is the negative externality stemming from systemic risk. Because uncertainty makes any measure of systemic risk imprecise, quantity regulation is preferable to a Pigovian tax to cope with this externality. Regulation should limit the leverage of shadow banking by imposing a minimum haircut regulation on the assets being used as collateral for funding. In theory, minimum haircuts regulation is an efficient way to constrain shadow banking. However, the practical difficulties of monitoring leverage at the assets level call for an indirect regulation of institutional leverage, too. This is effectively achieved through the regulation of bank leverage, which increases the cost of liquidity puts to shadow banking. Such risk-insensitive restrictions, however, undermine the efficiency of banking, whether official or shadow. [less ▲]

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See detailReconceptualising Global Finance and Its Regulation
Nabilou, Hossein UL

in Banking & Finance Law Review (2017), 32(3), 579-602

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See detailBank Proprietary Trading and Investment in Private Funds: Is the Volcker Rule a Panacea or Yet Another Maginot Line?
Nabilou, Hossein UL

in Banking & Finance Law Review (2017), 32(2), 297-341

The Volcker Rule is part of the post-financial-crisis regulatory reforms that partly aim at addressing problems associated with proprietary trading by banking entities and the risks associated with the ... [more ▼]

The Volcker Rule is part of the post-financial-crisis regulatory reforms that partly aim at addressing problems associated with proprietary trading by banking entities and the risks associated with the interconnectedness of private funds (e.g., hedge funds and private equity funds) with Large Complex Financial Institutions (LCFIs). This mission is pursued by introducing provisions that prohibit proprietary trading and banking entities’ investment in and sponsorship of private funds. These prohibitions have three specific objectives: addressing problems arising from the interconnectedness of private funds with LCFIs; preventing cross-subsidization of private funds by depository institutions having access to government explicit and implicit guarantees; and regulation of conflicts of interest in the relationship between banks, their customers, and private funds. Having studied the provisions of the Volcker Rule in light of its objectives, this article highlights the potential problems with the Rule and provides an early assessment as to how successful the Rule is in achieving its objectives. With respect to achieving these objectives, the Volcker Rule can only be partially successful for various reasons. The foremost reason is the numerous built-in exceptions (i.e., ‘permitted activities’) in the Rule included as a result of political compromises. Although the permitted activities under the Rule are backed by sound economic reasoning, there are serious practical problems with these exceptions. The main problem involves distinguishing prohibited activities from permitted activities. Such determinations require regulatory agencies to make subjective and case-by-case evaluations of activities. It is not known what the costs of such determinations would be in practice or how regulators would react if the costs of such determinations exceed their benefits. Regarding concerns about moral hazard, the Volcker Rule strikes a reasonable balance between preventing such an opportunistic behavior (i.e., taking advantage of government subsidies) while not stifling the investment by the banking industry in start-up private funds. However, with regard to mitigation of conflicts of interest, the Volcker Rule only marginally addresses such concerns. This limited regulatory intervention in mitigating conflicts of interest could be partially understood in light of the fact that market forces and private law have been successful in addressing conflict-of-interest concerns originating from the relationships between hedge funds and the banking industry. [less ▲]

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See detailThe Conundrum of Hedge Fund Definition
Nabilou, Hossein UL

in European Company and Financial Law Review (2017), 14(1), 149-186

This Article attempts to define hedge funds and to distinguish them from a variety of similar investment funds. After reviewing the hedge fund definition in the U. S. and the EU, this Article argues that ... [more ▼]

This Article attempts to define hedge funds and to distinguish them from a variety of similar investment funds. After reviewing the hedge fund definition in the U. S. and the EU, this Article argues that the current regulatory framework, which defines hedge funds by reference to what they are not rather than to what they are, is prone to regulatory arbitrage. Even in the presence of a statutory definition, due to the ineluctable indeterminacy of language and regulatory arbitrage problems, borderline issues will persist, which makes statutory definitions of hedge funds neither possible nor desirable. Therefore, regulators should avoid the temptation of proposing such statutory definitions. Instead, they should rely on regulatory discretion within a broad principles-based regulatory framework to do so. For such a principles-based regulatory regime to work, regulators should rely on a functional definition of hedge funds. Accordingly, this Article defines hedge funds as privately organized investment vehicles with a specific fee structure, not widely available to the public, aimed at generating absolute returns irrespective of market movements (Alpha) through active trading and making use of a variety of trading strategies. This functional definition is likely to help address regulatory problems that might originate from statutory definitions of hedge funds. [less ▲]

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See detailA Tale of Regulatory Divergence: Contrasting Transatlantic Policy Responses to the Alleged Role of Alternative Investment Funds in Financial Instability
Nabilou, Hossein UL

in Capital Markets Law Journal (2017), 12(1),

This article analyzes the regulatory measures adopted to address the potential contribution of hedge funds to financial instability in the U.S. and the EU in the wake of the Global Financial Crisis. The ... [more ▼]

This article analyzes the regulatory measures adopted to address the potential contribution of hedge funds to financial instability in the U.S. and the EU in the wake of the Global Financial Crisis. The relevant provisions of the Dodd-Frank Act include two sets of direct regulatory measures. The first set of these measures addresses information problems, whereas the second set is intended to address potential too-big-to-fail problems by imposing prudential regulation on systemically important nonbank financial companies. The article then studies the Volcker Rule, as an indirect regulatory measure intended to address the potential systemic risk of hedge funds originating from their interconnectedness with Large Complex Financial Institutions (LCFIs). The second part of this article analyzes the European Directive on Alternative Investment Fund Managers and its attempt to address the potential contribution of hedge funds to financial instability. Despite the common driving forces of hedge fund regulation across the Atlantic, ultimate policy outcomes were significantly divergent. Primarily concerned with creating a single market for Alternative Investment Funds, EU regulators prioritized the EU passport mechanism, which engendered demand for investor protection and more stringent and direct regulatory measures. In contrast, the main concern in the U.S. remained to be addressing potential systemic risk of hedge funds. Such differential regulatory objectives gave birth to indirect regulation of hedge funds with a focus on their interconnectedness with LCFIs. This is mainly embedded in the provisions of the Volcker Rule; a rule whose absence is significantly palpable in the EU regime for regulating hedge funds. [less ▲]

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See detailRegulatory Arbitrage and Hedge Fund Regulation: A Need for a Transnational Response?
Nabilou, Hossein UL

in Fordham Journal of Corporate & Financial Law (2017), 22(2),

Hedge funds, as paragons of exploiting regulatory discrepancies, are heavily criticized for thwarting regulatory efforts to address systemic risk. This paper investigates arbitrage seeking behavior of ... [more ▼]

Hedge funds, as paragons of exploiting regulatory discrepancies, are heavily criticized for thwarting regulatory efforts to address systemic risk. This paper investigates arbitrage seeking behavior of hedge funds in the globally-fragmented financial regulatory framework. Regulatory arbitrage is viewed as an indispensible element of regulatory competition, which plays a significant role in delivering the benefits of regulatory competition by providing regulatory substitutes for regulated firms, thereby increasing the elasticity of demand for regulators and engendering regulatory accountability. Despite its benefits, regulatory arbitrage involve costs. Market discipline can constrain the negative externalities of regulatory arbitrage, however, this paper argues that due to certain idiosyncratic features of the hedge fund industry, such as sophistication of investor base, higher attrition rate, and lack of transparency, market discipline by itself cannot fully address the potential externalities of regulatory arbitrage by hedge funds. These features weaken market signals and reduce the reputational advantages of being subject to high-quality regulation. The lower reputational costs in turn reduce the overall costs of regulatory arbitrage for hedge funds compared with mainstream financial institutions, which makes it more likely for hedge funds to engage in regulatory arbitrage than other mainstream financial institutions do. In a departure from the mainstream research, which recommends regulatory coordination, cooperation, harmonization, and consolidation as legal remedies to address problems originating from regulatory arbitrage by hedge funds, this paper argues that such proposals are at best misguided and at worst systemic risk amplifier. Instead, this paper suggests that to reduce the likelihood of regulatory arbitrage, instead of regulating hedge funds directly, the strategies for regulating hedge funds should focus on indirect regulation of hedge funds through their counterparties, creditors and investors for which reputational costs of regulatory arbitrage tend to be significantly high. [less ▲]

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See detailDerivatives in Islamic Finance: Examining the Market Risk Management Framework (Book Review)
Nabilou, Hossein UL

in Banking & Finance Law Review (2016), 32(1), 203-207

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See detailThe Hedge Fund Regulation Dilemma: Direct vs. Indirect Regulation
Nabilou, Hossein UL; Pacces, Alessio M.

in William & Mary Business Law Review (2015), 6(I), 183-236

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See detailCode de droit bancaire et financier européen
Prüm, André UL; Conac, Pierre-Henri UL; Riassetto, Isabelle UL et al

Book published by Larcier - 2015 (2015)

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See detailEuropean Banking and Financial Law Code
Prüm, André UL; Conac, Pierre-Henri UL; Riassetto, Isabelle UL et al

Book published by Larcier (2015)

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