Missing pieces in the patchwork of EU financial stability regime? The case of central counterparties

This article builds on a recent case (Case T-496/11, UK v. ECB (Location policy)), in which the General Court determined that the ECB does not have competence to regulate so-called Central Counterparties (CCPs), and annulled an ECB policy which sought to restrict access to the euro area of certain non-euro area CCPs. It is argued that the Court’s central finding, though possibly correct, is problematic from the perspective of financial stability, especially considering the growing systemic importance of CCPs. Second, the Court’s finding is symptomatic of certain drawbacks inherent in the patchy architecture of the evolving EU financial stability regime, which is excessively focused on banks. Finally, the case acts as a warning of likely future situations where the exercise of EU level competences and forms of direct administration related to the objective of financial stability can result in an outright conflict with basic free movement rights

Shadow Rulemaking : Governing Regulatory Innovation in the EU Financial Markets

The number and diversity of the European Supervisory Authorities' (ESAs) soft law acts continue to grow. The recent reform of the ESAs' founding regulations added two new instruments to their toolbox, "questions & answers" (Q&A) and "no action letters," both invented and already used by the ESAs in their supervisory practices. The reformed regulations continue to encourage the ESAs to pursue their tasks by developing new instruments and convergence tools. The article assesses the ESAs' rulemaking and regulatory innovation from a broad governance perspective, asking what type of procedural controls and review mechanisms would best facilitate beneficial forms of regulatory innovation while also controlling its excesses. It is argued that the main shortcoming of the present regime is not the lack of adequate procedural controls so much as the incomplete system of legal remedies. Flexibility should be preserved, but more credible judicial controls are needed to check the ability of soft law to bypass legislative processes.Peer reviewe

Public/Private Conflict in Investment Treaty Arbitration – a Study on Umbrella Clauses

In investment treaty arbitration a neutral international tribunal adjudicates an investment related dispute between a private foreign investor and the host state of the investment. Access to tribunal is usually granted in investment treaties. Treaties are generally in a bilateral form (Bilateral Investment Treaty, BIT). Investment treaty arbitration is in many ways an abnormal way of settling in- ternational disputes. It is not totally public, in that it does not concern a dispute between signatory states. It is also inevitably linked to the municipal law of the host states of the investments. However, investment treaty arbitration is not private either because by assessing alleged violations of treaty provisions by signatory states it, transcends the boundaries of international commercial arbitration. Many investment treaties include umbrella clauses which create an obligation for the host-states of the investment to observe their obligations towards private investors. The nature of these obligations, however, can be subject to dispute. Whether a treaty protects e.g. the obligations stemming from investor-state contracts can become a puzzling question when a contract itself includes another forum for the settlement of disputes. These situations have resulted in jurisdictional conflicts which the tribunals have solved in an inconsistent manner. This paper argues that this well-known inconsistency is rooted in the praxis of judging state conduct along sovereign/merchant lines. It is argued that this categorization of state conduct according to the arbitrary rubrics of “sovereign” or “commercial” is but a mirror image of public/private distinction of law constituted in classical legal thought. Accordingly, the jurisdictional conflict generated is here called a public/private conflict in investment treaty arbitration

Sharing global regulatory space : transatlantic coordination of the G20 OTC derivatives reforms

Peer reviewe

What role for courts in protecting investors in Europe: a view from Finland

Using Finnish case law on complex financial products as an example, this paper deals with the question of what role national courts could, and indeed should, have in the future disputes between investment firms and their clients, given that their private law relationship is embedded in an increasingly self-sufficient EU rulebook. Will there be room for principles deriving from national private law, or could the courts take a more active role in interpreting principles deriving from the MiFID itself? The paper argues that national courts should complement the ‘administrative paradigm’ of the European Union’s financial services law, enhanced by the new MiFID regime, with a more principles-based enforcement

Security Tokens and the Future of EU Securities Law : Rethinking the Harmonisation Project

Peer reviewe

Editorial

Non peer reviewe

Vepsä, Antti. Vaihtuvapääomainen sijoitusyhtiö

Virallisen vastaväittäjän, apulaisprofessori, dosentti Heikki Marjosolan Tampereen yliopiston johtamisen ja talouden tiedekunnalle antama 26.5.2023 päivätty lausunto vähäisin muutoksin