THE SANCTIONING OF INSIDER TRADING IN BRAZIL AND IN THE EUROPEAN UNION AND THE PROTECTION OF RIGHTS: A COMPARATIVE ANALYSIS

Abstract

Our purpose here is to compare the protection against insider trading in Brazil and the European Union law, specifically the way insider trading is sanctioned in these two jurisdictions. We highlight the different compositions between administrative and criminal sanctions found in the two systems and their implications for the fundamental rights and personal rights (in case of Brazil) of those held liable for the practice of insider trading. The possible cumulation of punishments imposed by criminal courts and administrative regulatory bodies raise the question whether there might be a violation of the ne bis in idem principle. The response to that question is different in each system. We will start by briefly taking stock of the genesis and evolution of anti-insider trading regulation in Brazil and in the EU in order to comprehend the different rationales for the prohibition of insider trading in the two jurisdiction, so as to understand the reasons behind their divergencies and convergencies.