Internet Banking and the Law in Europe: Regulation, Financial Integration and Electronic Commerce

by Apostolos Ath. Gkoutzinis

• ISBN13: 9780521860710
• ISBN10: 0521860717
• Format: Hardcover
• Copyright: 2006-11-20
• Publisher: Cambridge University Press

Summary

The European Union has long sought to create a single financial area across Europe where consumers in one country benefit from financial markets and activities in other countries. With the emergence of the Internet as a platform for the provision of online banking services, the creation of a pan-European market for banking services appeared a realistic proposition. In practice, however, this has not happened. This book asks why and argues that the creation of banking markets via the Internet relies on both available technologies and appropriate laws and regulations. The institutional and legal framework for online banking services in the single European market are examined, as is the level of legal harmonization achieved in the UK, France and Germany under the influence of the EU Directives pertaining to online banking activities.

Author Biography

Apostolos Ath. Gkoutzinis was lecturer in Financial Law and joint Academic Director of the MSc Programme in Finance and Financial Law at the School of Oriental and African Studies (SOAS), University of London

Table of Contents

Tables	xiii
Preface	xv
Tables of legislation	xix
Table of EU legislation	xxvii
Table of international conventions	xxxvi
Table of cases	xxxvii
Abbreviations	xliii
Introduction	1	(4)
PART I Introduction to electronic finance and Internet banking	5	(44)
1 Internet banking in Europe: basic concepts and recent trends	7	(22)
The Internet as catalyst of international financial integration	7	(13)
Internet banking in Europe	20	(9)
2 The legal foundations of electronic banking activities	29	(20)
The banker—customer relationship	29	(11)
Electronic finance and credit	40	(2)
Online securities trading	42	(7)
PART II Online banking and international market access: The causes of incomplete financial integration and what to do about them	49	(86)
3 Legal barriers and necessary regulatory reforms	51	(31)
The causes of incomplete European integration in online financial services	51	(12)
International governance of cross-border electronic commerce and finance	63	(10)
EU policies affecting electronic commerce in financial services	73	(9)
4 The governance of the European market in cross-border electronic banking activities	82	(53)
Introduction	82	(2)
Institutional foundations of the single European market in financial services	84	(2)
Mutual recognition of national laws as institutional principle	86	(13)
Mutual recognition beyond the EC Treaty: 'home country' control in various forms as institutional anchor of the single financial market	99	(24)
Minimum harmonization of national laws and enforcement practices as prerequisites of mutual recognition of national laws and 'home country' control	123	(12)
PART III EU harmonization and convergence of national laws relating to electronic banking activities	135	(94)
5 Risks and regulatory concerns relating to electronic banking activities and the convergence of national prudential regulatory standards	137	(28)
Convergence of national laws and the notion of 'general good' in the single European market	137	(11)
Risks and prudential regulatory concerns caused by electronic banking activities	148	(2)
Non-EU international initiatives of legal harmonization concerning electronic banking activities	150	(4)
EU harmonization measures in the field of prudential banking regulation	154	(2)
The prudential regulation of electronic banking activities in key European countries	156	(9)
6 EU measures of legal harmonization concerning electronic commerce and distance marketing of financial services, data protection, banking contracts and investor protection	165	(64)
E-commerce and distance marketing of financial services	165	(14)
Privacy and data protection	179	(4)
The harmonization of national laws of banking contracts	183	(22)
Online bank loans and the Consumer Credit Directive	205	(8)
Convergence of national laws regulating the provision of online investment services	213	(13)
Assessing the level of convergence of national laws regulating Internet banking	226	(3)
PART IV Applicable law and allocation of regulatory responsibility in cross-border electronic banking activities	229	(81)
7 Cross-border Internet banking and the principle of 'home country' control in the EU Financial Services Directives	231	(31)
Introduction	231	(1)
Cross-border Internet banking without the benefit of 'home country' regulation and supervision	232	(5)
Mutual recognition of national laws on the basis of 'home country' control in the Banking and Investment Services Directives	237	(5)
The notion of 'general good' in the Banking Consolidation Directive	242	(1)
'Host country' powers to apply domestic laws in non-prudential matters	243	(19)
8 Mutual recognition of national laws under the principle of 'country of origin' of the Electronic Commerce Directive	262	(27)
Scope of application of the 'country of origin' rule	262	(4)
The 'coordinated field'	266	(12)
The implementation of the 'country of origin' principle	278	(3)
The case-by-case derogation of Article 3(4)–(6)	281	(5)
The normative impact of the principle of 'country of origin'	286	(3)
9 Applicable law and jurisdiction in cross-border electronic banking contracts	289	(21)
International contracts, conflicts of laws and European financial integration	290	(2)
Choice of law and choice of jurisdiction in cross-border banking contracts	292	(4)
Choice of law and forum in consumer contracts	296	(9)
Choice of law and the impact of mandatory rules	305	(5)
Conclusions	310	(9)
Select bibliography	319	(20)
Index	339