Análisis de la regulación del equity crowdfunding en España y Estados Unidosuna perspectiva comparada

Résumé

Thesis Objectives: The topic of study is investment crowdfunding or “financiación participativa” legal framework in the United States and Spain. Loan-based crowdfunding is excluded from the scope of this research and will only be incidentally addressed. The interest of this doctoral thesis lies in analyzing both the U.S. and Spanish legal frameworks and understanding their characteristics and aspirations, as well as identifying their limitations and advantages. In the current legal literature, the subject of this doctoral thesis, which has undergone substantial legislative reforms in recent years, has not been thoroughly examined to the extent addressed in this thesis. This is due to the relative novelty of this financing instrument and the complexity of its operation. Methodology: The research is based on analyzing the legal systems of Spain and the United States and subsequently comparing them to identify areas of regulation where each has employed a better legislative technique, resulting in fewer potential practical issues. Following this approach, areas for improvement have been identified, and possible reforms of legal provisions have been proposed to achieve a balanced and successful development of the crowdfunding mechanism. The study primarily utilizes documentary sources of information, and an in-depth analysis of the relevant bibliography has been conducted. Additionally, statistical data from various sources, including different active crowdfunding platforms in the United States and Spain, have been reviewed. This research incorporates references to economic aspects and job creation, highlighting the different economic impact of implementing and applying crowdfunding in both legal systems. Conclusions: The U.S. regulation conceives crowdfunding more as an alternative channel, an exception to the existing regulation on offers of securities in regulated financial markets. It appears to be more oriented towards ensuring that this exception does not undermine the essential principle of investor protection. On the other hand, the applicable regulation in Spain approaches crowdfunding or “financiación participativa” as a novel and independent institution, and in need of more comprehensive and holistic provisions to regulate it. However, it appears to have been too limited in terms of regulation regarding certain participants involved in crowdfunding. The focus of the regulation is on the providers of such services, i.e., the intermediaries, but little attention is given to project promoters, who are the issuers of the securities offered in crowdfunding. In our view, the U.S. regulation seems more balanced and offers greater options for investor protection, in part because it addresses substantively two key actors in crowdfunding operations: intermediaries, particularly crowdfunding portals, as well as the issuers.