The “Europeanisation’’ of national contract law in the financial services sector: A judge-driven modernization of national contract law

Sommario: 1. Introduction. – 2. The Legal Nature and Purpose of Financial Regulatory Duties. – 2.1. The Legal Nature of Financial Regulatory Duties. – 2.2. The Purpose of Financial Regulatory Duties. – 3. The Role of Contract Law in the Regulation of Financial Transactions. – 4. Retail Financial Transactions. – 5. Non-Retail Financial Transactions. – 6. The Case Law of the Court Of Justice. – 6.1. The Peter Paul Judgment. – 6.2. The Bankinter Judgment. – 7. The Impact of EU Financial Regulation on National Private Law. – 7.1. The Impact of EU Financial Regulation on National Legislation. – 7.2. The Impact of EU Financial Regulation on National Case Law. – 7.2.1. The Challenges of Complex Financial Disputes for the National Judge. – 7.2.2. The National Adjudication Techniques. – 7.2.3. The (Regulatory) Implications of Adjudication s Techniques. – 8. The Role of Alternative Dispute Resolution (ADR) Mechanisms. – 8.1. The Influence of EU Law on ADR: From Convergence to Harmonisation. – 8.2. The National Models of ADR. – 9. Concluding Remarks.

Abstract

This paper explores the interactions between the general law of contract and the EUderived financial regulatory duties. Starting from the analysis of the legal nature of the EU-derived conduct of business rules duties and the role played by contract law in the governance e of financial markets, the paper shows that, after the global financial crisis, national courts have used the remedies based on general contract law as tools to enforce the EU-derived conduct of business rules and to ensure a high level of client protection. This paper argues that this case law provides evidence of a gradual process of Europeanisation and modernization of the general law of contract, i.e. of transformation of traditional autonomy- driven categories of general contract law into regulatory tools to govern financial transactions and increase the protection of investors.