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MiFID II and Private Law

Enforcing EU Conduct of Business Rules

By: Federico Della Negra
Media of MiFID II and Private Law
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Published: 11-07-2019
Format: Hardback
Edition: 1st
Extent: 288
ISBN: 9781509925292
Imprint: Hart Publishing
Series: Hart Studies in Commercial and Financial Law
Dimensions: 234 x 156 mm
RRP: £75.00
Online price : £67.50
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About MiFID II and Private Law

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.

Table Of Contents

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


“A major strength of Della Negra's analysis lies in the fact that it does not only comprise a thorough examination of the relevant EU legislation and case law, but also provides the reader with very insightful and practical national law perspectives... The book has resulted in an original contribution to legal scholarship, which makes for a splendid read that will definitely refine our understanding of this highly pertinent topic.” –  Evariest Callens, Common Market Law Review

“EU law has increasingly regulated financial transactions but it has done so without harmonising the national private law which is applicable to these transactions. That leaves challenges on many levels. Federico Della Negra's MiFID II and Private Law: Enforcing EU Conduct of Business Rules is the most important scholarly response so far.” –  Mads Andenas, Quaderni di Ricerca Giuridica, Banca d'Italia

“Della Negra sets out the critical issues with clarity, providing extensive empirical case studies and a comparative methodology. At the same time, he exposes the civil law implications of such rules and the underlying 'Europeanisation of private law', providing practitioners and scholars with a new and comprehensive interpretation of EU financial regulations.” –  Marta Cantero Gamito, European Review of Contract Law

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