MiFID II and private law : enforcing EU conduct of business rules

In the wake of the global financial crisis, retail clients have filed numerous claims against banks and investment firms for breaches of conduct of business rules in the distribution of financial instruments. Significantly, MiFID II raises key issues on the interplay between conduct of business rules and national private law. Building on the case law of national courts, decisions of alternative dispute resolution mechanisms in Italy, Spain, France and the UK, and the most recent literature, this monograph shows how the new MiFID II conduct of business rules can influence the interpretation of national private law, giving rise to hybrid private law duties and remedies. More specifically, the book illustrates the different forms and implications of this emerging, hybrid form of private law and argues that it will effectively supplement the actions of EU and national supervisory authorities aimed at ensuring the deterrent effect of conduct of business rules; furthermore, it will strengthen the protection of unsophisticated retail clients and investors' confidence in financial markets. The book brings an essential contribution to academic research and will also be of interest to policy-makers and legal practitioners working on financial litigation.-- 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 ConclusionPublished version of EUI PhD thesis, 201