Highlight 27 November 2012

Dr Mårten Knuts writes on the privilege against self-incrimination in relation to listed companies

Krogerus partner Dr Mårten Knuts has written on the privilege against self-incrimination in the insider trading context for Juridisk Tidskrift, a premier law journal in Sweden.

The peer-reviewed text scrutinises whether or not the privilege against self-incrimination should extend to a listed company’s duty to register insiders with financial supervisory authorities.

The privilege against self-incrimination means that no person should be compelled to testify against himself or herself or to confess guilt. “My article analyses whether this protection in an insider context, at times, should be awarded to listed companies regardless of the fact that they are legal entities and not natural persons,” says Mårten.

He adds that traditionally the US Supreme Court has been restrictive in awarding the privilege against self-incrimination to collective entities under the Fifth Amendment of the US Constitution, but lately both the Court of Justice of the European Union and the European Court of Human Rights have been more open to the idea of awarding procedural rights, including the privilege against self-incrimination, to legal entities.

“I argue that from a Nordic point-of-view the application of the privilege against self-incrimination to listed companies need not be permanently out-ruled. Instead, the defence may, from time to time, be upheld by courts in the region.”

Mårten is head of Capital Markets and Securities at Krogerus and acts for clients in capital market transactions, public mergers and acquisitions, as well as regulatory matters. He is particularly renowned for his expertise in market abuse and is called upon by private companies and sovereign governments to provide counsel on their complex regulatory disputes.

The article is available in Swedish from the Juridisk Tidskrift website: http://www.jt.se/

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