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.
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.