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Financial Supervision in the Interstices Between Private and Public Law

Financial Supervision in the Interstices Between Private and Public Law The article focuses on the recently enacted EU legislative provisions on financial product development from the perspective of the current supervisory approach of national financial authorities of three EU Member States: the Netherlands, France and Germany. Of principal interest is the interaction of the EU substantive interventions into the private law dimensions of financial product development ­ such as contracting and corporate governance ­ and the remedial emphasis of the legislative package on public law sanctioning. To study their current practices, we conducted interviews with officials of the three national authorities, focusing on their supervisory approach, as well as the ways in which they currently intervene either formally or informally into the private law aspects of financial product development, oversight and distribution. While we find persistent divergences in the supervisory approaches of the authorities, as well as the regulatory paradigms that inform those approaches, three important aspects are worth highlighting. First, the authorities that probe more deeply into the product manufacturing processes do not necessarily do so with the intention of limiting the parties' contractual freedom, but also to help them evaluate their interests more deliberately. Secondly, all authorities have already developed techniques for probing into the contracting http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Review of Contract Law de Gruyter

Financial Supervision in the Interstices Between Private and Public Law

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Publisher
de Gruyter
Copyright
Copyright © 2014 by the
ISSN
1614-9920
eISSN
1614-9939
DOI
10.1515/ercl-2014-0023
Publisher site
See Article on Publisher Site

Abstract

The article focuses on the recently enacted EU legislative provisions on financial product development from the perspective of the current supervisory approach of national financial authorities of three EU Member States: the Netherlands, France and Germany. Of principal interest is the interaction of the EU substantive interventions into the private law dimensions of financial product development ­ such as contracting and corporate governance ­ and the remedial emphasis of the legislative package on public law sanctioning. To study their current practices, we conducted interviews with officials of the three national authorities, focusing on their supervisory approach, as well as the ways in which they currently intervene either formally or informally into the private law aspects of financial product development, oversight and distribution. While we find persistent divergences in the supervisory approaches of the authorities, as well as the regulatory paradigms that inform those approaches, three important aspects are worth highlighting. First, the authorities that probe more deeply into the product manufacturing processes do not necessarily do so with the intention of limiting the parties' contractual freedom, but also to help them evaluate their interests more deliberately. Secondly, all authorities have already developed techniques for probing into the contracting

Journal

European Review of Contract Law – de Gruyter

Published: Dec 1, 2014

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