Finance, Law, and the Courts

by Lamandini, Marco; Ramos Muñoz, David

• ISBN13: 9780192898692
• ISBN10: 0192898698
• Format: Hardcover
• Copyright: 2024-01-31
• Publisher: Oxford University Press

Summary

Law and courts are often neglected in finance. The discipline is so permeated by economic analysis - the enforcement of its rules so based on regulatory authorities - that it often seems more natural to speak of financial regulation rather than financial law, de-emphasizing the role of courts.

Authored by leading experts in commercial law, Finance, Law, and the Courts goes beyond this limited perspective. The book demonstrates that law and courts are essential in providing finance with the certainty it needs to operate, and the elasticity it needs to evolve. As explored in Part I of the book, these benefits result from law's status as an interpretative construct formed by rules and principles, a construct shaped by a need for consistency.

When principles collide, courts are often called to solve "hard cases", and in doing so the Law of Finance evolves. Examining such hard cases, Parts II and III analyze courts' roles in influencing finance's key concepts and principles. For Public Law this includes the impact of sovereign immunity, separation of powers or individual rights on the justiciability of financial acts, central banks' mandates, and the interplay between regulatory concepts and fundamental rights. For Private Law, these include the foundations of liability for misstatements, the validity and interpretation of financial contracts, and creditor-creditor conflict. The book further explores the interplay between specialist and generalist courts and other bodies in Part IV, concluding with a case for limited specialization of finance justice in the EU.

Offering a comprehensive legal treatment of finance's regulatory sources, this book is an unparalleled resource for law academics, practitioners, and policymakers seeking to better understand the complex financial cases that they may encounter.

Author Biography

Marco Lamandini, Full Professor of Commercial Law, University of Bologna,David Ramos Muñoz, Associate Professor of Commercial Law, Carlos III University of Madrid

Marco Lamandini is Full Professor of Commercial Law at the University of Bologna. He is a member of the Academic Board of the European Capital Markets Institute (ECMI), the Appeal Panel for the Single Resolution Board (SRB), the Italian Arbitro Bancario Finanziario, and the Informal Company Law Expert Group (ICLEG) appointed by the European Commission. He currently serves as a Vice-Chair of the Academic Board of the European Banking Institute (EBI) and was formerly President of the Board of Appeal of the European Financial Supervisory Authorities. Prof. Lamandini is an advisor to the ECON Committee of the European Parliament, providing legal expertise on bank resolution matters. He has published extensively on banking and financial law.

David Ramos Muñoz is an Associate Professor of Commercial Law at Carlos III University, and an Academic Board Member of the European Banking Institute, leading its Working Group on Finance, Climate Change and Sustainability. He is the author of The Law of Transnational Securitization (OUP, 2010) and numerous journal articles on the Law of Finance. In addition to his academic work, he advises the European Parliament and collaborates with UNIDROIT in bank resolution and crisis management. Prof. Ramos Muñoz is involved in financial disputes as an Alternate Member of the Board of Appeal of the European Supervisory Authorities (ESAs) and the Appeal Panel for the Single Resolution Board (SRB), and works as a commercial arbitrator.

Table of Contents

Part I - The Conceptual Framework
1. An Introduction on Courts' and Principles-Based Interpretivism
2. Finance, the Rule of Law and the Courts
Part II -Public Law Disputes in the Law of Finance
3. An Anatomy of Issues in Public Law disputes
4. Financial Authorities' Decisions, their Justiciability and Accountability
5. Courts Review of Monetary and Financial Stability Decisions
6. Courts Review of Regulatory and Supervisory Decisions
7. Courts Review of Crisis Management Decisions
Part III - Private Law Disputes in the Law of Finance
8. An Anatomy of Issues in Private Law Disputes
9. Courts, and the Law of Liability for Misstatements in Securities Offerings
10. Courts and Financial Contract Disputes
11. Courts in Insolvency, Collateral and Inter-creditor Disputes
Part IV -Towards Better Justice in Finance. The Case for Specialized Courts in Europe
12. Dispute Resolution in Finance and its Shortcomings: Europe as a Test Case
13. A Snapshot of the Current Court System's Nodes, and Challenges
14. A Way Forward: Specialised Courts in the Law of Finance in the EU