MiFID II and Private Law

Enforcing EU Conduct of Business Rules
Erscheinungsjahr 2021
ISBN: 978-1-5099-4626-6
Verlag: Hart Publishing

Buch, Englisch, 288 Seiten, Paperback, Format (B × H): 154 mm x 232 mm, Gewicht: 480 g

In the wake of the global financial crisis, investors have suffered significant losses as a result of breaches of conduct of business rules in the distribution of financial instruments.

MiFID II introduced new disclosure, distribution and product governance rules to strengthen the protection of investors but, like MiFID I, did not harmonise the civil law consequences for their violation.
This book asks whether, in spite of the silence of the EU legislators, the MiFID II conduct of business rules may produce civil law effects, enabling investors to enforce them against investment firms before national courts and alternative dispute resolution (ADR) mechanisms.
Building on the case law of the CJEU, the book shows the conditions under which the breach of MiFID II conduct of business rules should give rise to a private law remedy, and what remedies would be compatible with EU law.
MiFID II and Private Law is an essential contribution to academic research in EU and financial law and will be a key text for policy-makers and legal practitioners working in the field of investor protection regulation and mis-selling litigation.

Autoren/Hrsg.

Della Negra, Federico

Fachgebiete

• Rechtswissenschaften Wirtschaftsrecht Bank- und Versicherungsrecht Bank-, Sparkassen- und Börsenrecht
• Rechtswissenschaften Bürgerliches Recht Schuldrecht Verbraucherschutz, Verbraucherverträge, AGB
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Handels-, Wirtschafts- und Gesellschaftsrecht, Währungsrecht

Inhaltsverzeichnis

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

Über Autor(innen)

Della Negra, Federico
Federico Della Negra is a Senior Legal Counsel in a leading central bank. He holds a PhD from the European University Institute (Florence) and he is member of the Associate Researcher Group of the European Banking Institute (Frankfurt am Main).

Federico Della Negra obtained his PhD in Law at the European University Institute.