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MiFID II and Private Law: Enforcing EU Conduct of Business Rules

MiFID II and Private Law: Enforcing EU Conduct of Business Rules

Author: Federico Della Negra
Publisher: Hart Publishing
ISBN: 9781509925292

Published In: July 2019
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509946266

List Price: HKD 1,300.00

HKD 1,261.00 Save HKD 39.00 (3%)

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Description
Contents

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In the wake of the global financial crisis, retail clients have filed numerous claims against banks and investment firms for breaches of conduct of business rules in the distribution of financial instruments.

Significantly, MiFID II raises key issues on the interplay between conduct of business rules and national private law. Building on the case law of national courts, decisions of alternative dispute resolution mechanisms in Italy, Spain, France and the UK, and the most recent literature, this monograph shows how the new MiFID II conduct of business rules can influence the interpretation of national private law, giving rise to hybrid private law duties and remedies.

More specifically, the book illustrates the different forms and implications of this emerging, hybrid form of private law and argues that it will effectively supplement the actions of EU and national supervisory authorities aimed at ensuring the deterrent effect of conduct of business rules; furthermore, it will strengthen the protection of unsophisticated retail clients and investors’ confidence in financial markets.

The book brings an essential contribution to academic research and will also be of interest to policy-makers and legal practitioners working on financial litigation.

Introduction

1. The Rise of EU Investor Protection Regulation and the Role of Private Law

I. Harmonisation in EU Securities Markets: From Liberalisation to Regulation

II. The Development of EU Investor Protection Regulation

III. Protecting Investors without Private Law: The Reasons for (The Lack of) Private Law Harmonisation

IV. Bridging EU Conduct of Business Rules and National Private Law via EU General Principles

V. The Interplay between EU Sectoral Regulation and National General Private Law: Towards Hybridisation of National Private Law?

VI. Preliminary Conclusion

2. Regulatory Design of MiFID II's Conduct of Business Rules

I. Rationales of Conduct of Business Rules

II. The Scope of Conduct of Business Rules

III. The Clients' Categorisation Rules

IV. Regulating Investment Firms' Conduct

V. Private Law Duties and Remedies (in the Shadow of) MiFID II

VI. National Conduct of Business Rules

VII. Preliminary Conclusion

3. Civil Law Effects of ESMA's 'Conduct of Business Handbook'

I. Conduct Supervision and Private Law: The Issues at Stake

II. ESMA's Institutional Design

III. ESMA's 'Conduct of Business Handbook'

IV. National Supervisory Models

V. A Comparative Assessment

VI. Shaping Private Law Through Supervisory Standards

VII. Preliminary Conclusion

4. Civil Law Effects of Conduct of Business Rules in Out-of-Court Proceedings

I. Out-of-Court Retail Dispute Resolution in EU Law

II. The EU Regulatory Framework

III. National Out-of-Court Dispute Resolution Mechanisms

IV. Adjudicative Approach

V. A Comparative Assessment

VI. Preliminary Conclusion

5. Civil Law Effects of Conduct of Business Rules before National Courts

I. Mis-selling Litigation: An EU Law Issue

II. National Judicial Approaches

III. A Comparative Assessment

IV. Preliminary Conclusion

6. The Emergence of Hybrid Private Law in Retail Financial Markets: Foundations and Legitimacy

I. Anchoring Hybrid Private Law to EU Law

II. Hybrid Private Law Duties

III. Hybrid Private Law Remedies

IV. The Design of Effective Private Law Remedies

V. Horizontal Application of EU of Fundamental Rights

VI. Preliminary Conclusion

7. Hybrid Enforcement Mechanisms: Future Perspectives

I. Private Enforcement of Conduct Regulation in the EU: Unexpected Importance and Limitations

II. The Goals of Private Enforcement

III. The Risks of Private Enforcement

IV. The Incentives' Design in Retail Clients' Litigation

V. Connecting Public and Private Enforcement: Towards Hybrid Enforcement Mechanisms?

VI. Preliminary Conclusion

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