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

Description

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. Hart Studies in Commercial and Financial Law: Volume 2 Foreword Acknowledgements Contents Abbreviations Table of Cases Table of Legislation Table of Acts of International, European and National Competent Authorities 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 General Conclusions Bibliography Index