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cised such authority in seven applications thus far since the entry into
force of the Communiqué, the first one starting with the bond offering
of Fenerbahçe FC, raising funds to eliminate the effects of the contro-
versial match-fixing investigation.
The latter approvals of the CMB introduced other conditions that
were not present in the Communiqué. The clearance for issuance is
given, provided that the sale is structured as a private placement, or
backed by a bank guarantee, if made to qualified investors
7
. Although
the Communiqué prescribes that the CMB is entitled to request either
a guarantee or limit the sale to the qualified investors, it went beyond
its powers and requested both by requiring a bank guarantee in a bond
sale to qualified investors. In response to another application, the CMB
requested a bank guarantee regardless of the sale structured as a private
placement or being directed to qualified investors
8
. Lately, the CMB
even restricts sales to collective investment institutions and pension
investment funds
9
. We believe that the regulatory aim in the last
approach is to prevent the investors of the aforementioned institutions
from investing in non-guaranteed bonds.
Above all, the standards applied by the CMB through this catch-all
provision seem to be exercised beyond power. Thus, since the reason-
ing of the CMB approval is not transparent, it causes uncertainty for
the issuers as it is not clear when such guarantee will be requested.
Additionally, investors may be misled by such approvals because the
CMB in some applications, requests the issuer to obtain a bank guar-
antee while not in the others. Consequently, not exercising such power
to request a guarantee from the issuer may create a mind of protection
for an investor despite the fact that the CMB has a disclaimer in offer-
ing documents indicating that its approval does not qualify as a repre-
sentation and warranty of the financial condition of the issuer. It is
noteworthy to mention that after such decisions, except for
Fenerbahçe, none of the issuers were able to launch the bond offering.
CAPITAL MARKETS LAW
235
7
CMB Bulletins numbered no. 2014/28 and 2014/35.
8
CMB Bulletin numbered no. 2014/35.
9
CMB Bulletins numbered no. 2014/35 and 2015/10.